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Nedelkoska, Irena [2002] MRTA  1676  (27 March 2002)

Last Updated: 14 October 2002

 [2002] MRTA 1676 

CATCHWORDS: Review of visa refusal - Subclass (Spouse)(100) -

REVIEW APPLICANTNote that the CMS data merge provides only the first Review Applicant's details. Please check CMS and insert other Review Applicant's details as necessary.: Irena NEDELKOSKA

VISA APPLICANT: As Above

TRIBUNAL: Migration Review Tribunal

PRESIDING MEMBER: Wendy Boddison

MRT FILE NUMBER: V01/04163

DIMIA FILE NUMBER: F97/29516

DATE OF DECISION: 27 March 2002

AT: Melbourne

DECISION: The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Spouse (Migrant) (Class BC) visa.

STATEMENT OF DECISION AND REASONS

APPLICATIONWhen converting an FE to a draft Decision an AutoText entry needs to be inserted at the beginning of this heading. sodr(Press F3). This will insert the heading Statement of Decision and Reasons. FOR REVIEW

1. This is an application for review of a decision made by a delegate of the then Minister for Immigration and Multicultural Affairs (the delegate). Irena NEDELKOSKA (the applicant), a national of Macedonia, born on 30 November 1971, applied for a Spouse (Migrant) (Class BC) visa on 5 December 1997 (D1, f. 13-22). The delegate's decision to refuse to grant the visa was made on 5 July 2001 (D1, f. 126).

JURISDICTION AND STANDING

2. The visa applicant lodged an application for review with the Tribunal on 18 July 2001 (T1, f. 2-4). The application for review was validly made under section 338 of the Migration Act 1958 (the Act) (which goes to decisions reviewable by the Tribunal), and it complies with section 347 (which goes to the standing of the review applicant).

LEGISLATION AND POLICY

3. The Act and the various Regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various Regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural and Indigenous Affairs (the Department). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.

4. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa to the Department for reconsideration. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.

5. The criteria and policy immediately relevant to this review are:

Legislation:

Part 100 of Schedule 2 to the Regulations

Regulation 1.15A

Policy:

Procedures Advice Manual 3: Regulation 1.15A - Interpretation - Spouse

Du v Minister for Immigration & Multicultural Affairs [2000] FCA 1115

6. The Tribunal generally has regard to the Regulations as they stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.

EVIDENCE

7. The Tribunal has the following documents:

T1 - MRT case file V01/04163, folio numbered 1-50

D1 - Department case file F97/29516, folio numbered 1- 137.

The applicant gave evidence to the Tribunal at hearing held on Monday 21 January 2002.

8. The applicant applied for a Spouse (Provisional) (Class UF) visa, subclass 309 on 5 December 1997 based on her marriage to Gordon NEDELKOSKI (sponsor), a permanent resident, who was born in the Former Yugoslav Republic of Macedonia on 25 March 1968. On 7 September 1998 she was granted a subclass 309 Spouse (Provisional) visa and she arrived in Australia on 8 October 1998.

9. On 3 May 2001, the Department received information that the relationship between the applicant and the sponsor had ended. On 3 May 2001, the delegate wrote to the applicant advising her to contact the Department to clarify her situation.

10. On 23 May 2001 the delegate was advised by the applicant that she met her sponsor in Macedonia when he was holidaying in 1997. They spent three weeks together and on 24 September 1997 they married. She arrived in November 1998 in Australia and almost immediately she saw a complete change in the sponsor. She stated that the sponsor was always out and about and she was left home alone, that he is on drugs, does not work and he is on benefits. In May 1999, they had a big wedding and she was very happy thinking that things were going to be better. However towards the end of 1999 he started to beat her. On one occasion when she was bleeding, she went to the emergency ward of the nearby hospital in Sunshine. The report from the hospital indicated she had an ectopic pregnancy and also suffered hayfever. The applicant also stated that the sponsor became very violent when he did not get what he wanted. She had not reported him to the police because she was very scared of him. As a consequence her mother made arrangements for her to go and stay with friends. She has been supporting herself for the last year and a half. She has been in a new relationship for the previous six months and she loves her new partner, is happy now and wants to stay in Australia (D1, f 114-115).

11. In a statutory declaration dated 5 June 2001, the applicant stated that her problems with the sponsor started almost immediately upon her arrival in Australia. The situation spiralled out of control due to the sponsor's gambling and drug taking. He would leave her for extended periods and when he returned sexually abused her. She became pregnant but there were complications and she miscarried. Eventually the sponsor told her that he was not prepared to take on responsibility for a wife and family and therefore she had to start thinking about herself (D1, f 116).

12. The delegate refused the visa on the basis that the applicant was no longer in a spousal relationship with the original sponsor and the sponsorship which was in existence at the time of the visa application had now ended (D1, f. 124-125).

13. In her application for review the visa applicant stated that she disagreed with the delegate's decision (T1, f.2).

14. At the hearing the applicant confirmed that she separated from her husband on 1 September 2000 and they had subsequently divorced. She had not taken out an intervention order against her husband as she was too afraid to do so. She was also too afraid to go to the police. The applicant gave evidence that she had been consulting a psychiatrist or psychologist throughout 1998-1999. She claimed to have been sexually abused by her husband and that he caused her a great deal of stress. She was very afraid of him. She believed that her husband was still alive.

15. The applicant has been in a defacto relationship with an Australian citizen Mr Magazin for the past 13 months. She never sought any help during the time with her husband because she was too afraid and did not speak English so did not know what services were available.

16. The Tribunal allowed the applicant further time to obtain material that would satisfy regulation 1.22and 1.23 to establish that she was the victim of domestic violence.

17. On 15 February 2002 the Tribunal received from the applicant's agent a statutory declaration dated 11 February 2002 from Petra Kukic who holds a Diploma, Bach Degree in Clinical Hypnosis [sic] and provides psychotherapy and counselling services. She declared that she had seen the visa applicant between 1998 to mid 2000. The consultations were in secret as the visa applicant was afraid of her husband finding out she was seeking assistance. She discussed with the visa applicant the fact he was molesting her verbally, sexually and bodily. Ms Kukic suggested to the visa applicant that she go to the police but she was too afraid of her husband to do this. Also provided was a letter from the parish priest of Saint Nikola, Father Mile Talesui. He advised that the visa applicant came to him in confidence to seek advice about the problems she was having with her husband. He advised her to go to the police or a women's refuge. She was too afraid of her husband to do either of these things.

FINDINGS

18. Pursuant to section 65 of the Act in order to succeed in an application for a visa under the Regulations it is necessary for an applicant to satisfy all of the criteria for the grant of the visa.

19. At the time the visa application was lodged, Spouse (Migrant) (Class BC) contained the following subclasses: Subclass (Spouse)(100). The only subclass in respect of which any claims have been advanced is Subclass (Spouse)(100).

20. Subdivision 100.22 sets out the criteria the visa applicant must meet at the time of decision. In order to meet clause 100.221, the applicant must satisfy either subclause (2), (3) or (4).

21. Based on the applicant's evidence that she is divorced from her husband and that they have not lived together since September 2000 the Tribunal finds that she is not longer the spouse of the sponsoring spouse. They are not married and they do not have a mutual commitment to a shared life as husband and wife to the exclusion of all others and the relationship between them is not genuine and continuing (regulation 1.15A). Therefore she cannot satisfy subclause 100.221(2).

22. There is no evidence before the Tribunal to suggest that her spouse has died and therefore the applicant cannot satisfy subclause 100.221(3).

23. Subclause 100.221(4) states that the applicant meets the requirements of this subclause if: she first entered Australia as the holder of a Subclass 309 (Spouse (Provisional)) visa and continues to be the holder of that visa; and the applicant would meet the requirements of subclause (2) except that the relationship between the applicant and the sponsoring spouse has ceased;... and after the applicant first entered Australia as the holder of that visa: the applicant; ... has suffered domestic violence committed by the sponsoring spouse.

24. Division 1.5 of the regulations sets out the special provisions relating to domestic violence. The Regulations are in quite specific and peremptory terms (Du). Regulation 1.23 sets out the circumstances where a person is taken to have suffered domestic violence. The visa applicant has not been granted an injunction under paragraph 114 (1) (a), (b) or (c) of the Family Law Act 1975 against her spouse nor has the visa applicant obtained an intervention order under the Crimes (Family Violence) Act 1987 or any other law. There have not been court proceedings relating to any acts of violence by the spouse against the applicant and he has not been found guilty of an offence of violence against the applicant. Therefore she cannot satisfy 1.23 (a), (b), (c), (e) or (f). Regulation 1.23(g) provides that she must provide evidence in the accordance with regulation 1.24.

25. In the applicant's case to satisfy 1.24 she must provide two statutory declarations from competent people and one from herself. The applicant has provided a statutory declaration from herself and one from Ms Kukic and a letter from Father Mile Talesui. Regulation 1.21 provides a definition of competent person. Neither Ms Kuskic or father fall within the definition of competent persons set out in regulation 1.21. Further Father Mile Talesui's letter is not in the format required by 1.26 and neither is the statutory declaration of Ms Kukic. Therefore the applicant cannot satisfy regulation 1.24 and consequent cannot satisfy 1.23(g). As she does not meet any of the provisions in 1.23 she is not taken to have suffered domestic violence and her spouse is not taken to have committed domestic violence.

26. Regulation 1.22 provides that the applicant must satisfy regulation 1.23 to be taken to have suffered domestic violence under the regulations. Therefore in the absence of the relevant documentary proof the Tribunal cannot be satisfied that she has suffered domestic violence although the Tribunal does accept, based on the evidence at the hearing, that she was scared of her spouse and abused by him.

27. The applicant cannot be taken to have suffered domestic violence she cannot satisfy subclause 100.221(4) and cannot meet 100.221(1) one of the criterion for the grant of the visa sought.

28. The applicant has asked the Tribunal to consider her application on compassionate grounds; as she was the victim of an abusive spouse and is now in a defacto relationship with an Australian citizen however the Tribunal's role is limited to determining whether the applicant satisfies the criteria for the grant of a Spouse (Migrant) (Class BC) visa. A consideration of her circumstances on other grounds is a matter solely within the Minister's discretion.

CONCLUSION

29. As the visa applicant does not meet one of the criteria for the grant of the visa, the Tribunal has no alternative but to affirm the decision under review.

DECISION

30. The Tribunal affirms the decision under review that the visa applicant is not entitled to the grant of a Spouse (Migrant) (Class BC) visa.