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Administrative Appeals Tribunal of Australia |
Last Updated: 23 March 2022
1807166 (Migration) [2022] AATA 486 (12 February 2022)
DECISION RECORD
DIVISION: Migration & Refugee Division
MEMBER: Jennifer Cripps Watts
DATE: 12 February 2022
PLACE OF DECISION: Sydney
DECISION: The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:
Statement made on 12 February 2022 at 12:12pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK)
visa – Subclass 820 (Spouse) – relationship ceased and claim of
family
violence – report of independent expert accepted –
requirement of genuine relationship at time of application –
validly
married – limited evidence of financial, household and social aspects of
relationship while living with sponsor’s
mother – mutual commitment
before deterioration and ceasing of relationship – poor recollection and
vague and inconsistent
evidence related to trauma – decision under review
remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.15A, 1.21, Schedule 2, cls
820.211, 820.221
Any references appearing in square brackets
indicate that information has been omitted from this decision pursuant to
section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR
REVIEW
1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 March 2018 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant applied for the visa on 29 March 2017 on the basis of her relationship with her sponsor, [Mr A]. At that time, Class UK contained Subclass 820. The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
3. Relevant to this matter, the primary criteria, which include cl.820.211 and cl.820.221, must be satisfied by the applicant at the time of application and decision. The applicant must the spouse or de facto partner of the sponsor, unless the relationship has ceased and certain circumstances exist. These include that the applicant, or a member of the family unit, has suffered family violence committed by the sponsor: cl 820.211(8) or (9) and 820.221(3)(a) and (3)(b)(i). The family violence provisions are applicable in this case.
4. The Minister refused to grant the visa on the basis that the applicant did not meet cl 820.211(2)(a) because they were not satisfied the applicant was the ‘spouse’., as defined in s.5F of the Act, of the sponsoring partner.
5. The applicant appeared before the Tribunal on 14 May 2021 to give evidence and present arguments. The Tribunal and applicant were assisted by an interpreter accredited in the Vietnamese and English languages. The applicant’s representative attended the Tribunal hearing.
6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
FAMILY VIOLENCE
7. The subclass 820 visa was refused on 12 March 2018 because the applicant was found not to be the sponsor’s spouse, as described in s.5F of the Act. At the time the visa was refused, the applicant had not made a claim against the family violence provisions. After the review application was lodged, the Tribunal was informed by the applicant’s representative, on 29 April 2021, that the applicant had been a victim of family violence, and that she was requesting her ‘case be assessed under family violence provisions of the Migration Regulations’. In the present case, on review before the Tribunal, the applicant claims the relationship with the sponsor was genuine at the time the visa application was made, but that the relationship broke down permanently in August 2018, and she was a victim of family violence perpetrated against her by the sponsor during the relationship, from September 2017 to August 2018.
8. The applicant attended a scheduled hearing in May 2021 and was referred, by the Tribunal, to be assessed by an Independent Expert (IE) relating to her family violence claim. There were significant delays and difficulties in making the necessary arrangements for the applicant to attend for her interview. The applicant informed the Tribunal that she did not want to attend a video interview, but preferred to be interviewed in person. With another round of restrictions and lock-downs in Sydney throughout 2021, due to the COVID-19 pandemic, this was not possible and the applicant agreed to attend a video interview. The interview was held on 3 February 2022. The Tribunal received the IE’s report on 11 February 2022. The IE’s finding is that the applicant suffered relevant family violence and this is discussed in more detail later.
CONSIDERATION OF CLAIMS AND EVIDENCE
9. For the purpose of being satisfied that the applicant suffered ‘relevant family violence’ (as described in reg.1.121(1)) the issue in the present case is whether the applicant was in a spouse relationship with the sponsor at the time of application and, if she was, when the relationship ceased. Claimed family violence can only be found to be relevant family violence if it occurred during the relationship.
10. Notwithstanding that the IE has assessed the applicant and made a finding that she did suffer relevant family violence, perpetrated against her by the sponsor, the Tribunal must be satisfied that at the time the visa application was made the applicant and sponsor were in a genuine spouse relationship: s.5F of the Act, and reg.1.15A(3) of the Regulations.
Whether the parties are in a spouse or de facto relationship
11. Clauses 820.211(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.
12. ‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage, as described in s.5F(2)(a)-(d) of the Act:
13. In forming an opinion about these matters, the Tribunal must have regard to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg.1.15A(3), which is extracted in the attachment to this decision.
Is the marriage between the applicant and sponsor valid – s.5F(2)(a)?
14. On the evidence, the Tribunal is satisfied that the applicant and sponsor married each other on 8 February 2017 and that the marriage is valid for the purposes of the Act as required by s 5F(2)(a).
15. Therefore the applicant meets s.5F(2)(a).
Are the other requirements for a spouse relationship met – s.5F(2)(b)-(d)?
16. The applicant is a citizen of Vietnam. She first arrived in Australia holding a student visa, in December 2014. She and the sponsor met in around November 2015 and started a relationship. [In] February 2017 they got married and, on 29 March 2017, lodged the partner visa application that is the subject of this review. During the relevant period, up to August 2018, the applicant and sponsor lived with the sponsor’s mother in her home.
17. Evidence in support of the relationship was provided at the time of application. Additional evidence, and written submissions from the applicant’s representative, were provided to the Tribunal. All relevant information contained in the documents provided, and in the applicant’s oral evidence given at the scheduled hearing, has been considered by the Tribunal relating to the nature of the claimed spouse relationship between the applicant and sponsor, at the time of application, as required by referring to the matters in 1.15A of the Regulations. The Tribunal has also had regard to the IE’s report.
Financial Aspects of the Relationship
18. The Tribunal has had regard to the extent to which the parties pool their resources, their joint assets and liabilities, any legal obligations and the nature of their day-to-day household expenses. The Tribunal has before it fairly limited documentary evidence that the applicant and sponsor shared or pooled their resources or finances in any meaningful way. However, it has been explained, and is accepted, that at the time they opened a joint bank account in 2017 the applicant was unemployed and neither she, nor the sponsor, had much income to speak of. The sponsor was receiving his Centrelink benefits into a different bank account. It appears that they both agreed that this arrangement was satisfactory between them.
19. The applicant has provided a [Bank] statement in joint names for the period March 2017 to October 2018. Up to the end of 2017, there is little indication from the entries in the bank statement that the applicant and sponsor were using the account for day to day living expenses. However, from December 2017 onwards, there are purchases from Woolworths and Chemist Warehouse, payments to Optus and other typical personal day to day expenses. By February 2018, the applicant was working and her wages were credited to the account, as were the sponsor’s Newstart Allowance payments from around July 2018.
20. The applicant and sponsor lived with the sponsor’s mother and the Tribunal is unconcerned, for this reason, that they have not provided financial evidence of setting up a home together in a manner that may be usual for a couple living together in their own home. The Tribunal accepts that the home they lived in during the relevant period was public housing in the name of the sponsor’s mother and that bills and the like were in her name.
21. The Tribunal is satisfied that the applicant and sponsor pooled their resources.
Nature of the Household
22. The Tribunal has had regard to any joint responsibility for care and support of children and the parties’ household and living arrangements.
23. The applicant and sponsor have no children. They lived in the home of the sponsor’s mother until August 2018, other than for short periods of temporary separation due to the incidents of family violence by the sponsor against the applicant and abusive behaviour by the sponsor’s mother towards her.
24. The applicant has provided the Tribunal with correspondence, including from Medicare, Optus, [a bank] and a PAYG payment summary addressed to her at her mother-in-law’s home during the relevant time period. While there appears to be no question that this was not a happy or harmonious home, the Tribunal is satisfied that the applicant and sponsor lived there together in a manner consistent with that of a young couple living with one of their parents.
Social Aspects of the Relationship
25. The Tribunal has had regard to whether the parties represent themselves to other people as being married to each other, the opinions of friends and acquaintances about the nature of the relationship, and any basis on which the persons plan and undertake joint social activities.
26. It is acknowledged that it was raised in the primary decision record that there was an inconsistency between the sponsor’s mother and his aunt relating to the commencement of the relationship. The Tribunal is satisfied that this has been explained adequately to support the assertion that it was a simple mistake that wasn’t picked up.
27. The applicant has provided a number of statutory declarations in support of the relationship, sworn by friends and family. Their statements, and photographs that have been provided, indicate that the applicant and sponsor socialised together and with others during the relevant period, including at significant celebrations such as their wedding. The evidence has been carefully considered and the Tribunal is satisfied that the relationship was declared widely to family and friends and that they considered the relationship, although troubled, to be genuine.
28. The applicant’s parents, who live in Vietnam, did not travel to Australia for the wedding. Evidence has been given, both in written submissions and by the applicant at the Tribunal hearing, that she and the sponsor planned to travel to Vietnam at a later time to celebrate their marriage there when they could afford to. There is evidence that the applicant and sponsor were of limited means and the Tribunal accepts that the applicant and her family could not, between them, afford for the applicant’s parents to travel to Australia for the wedding in 2017.
Nature of the Parties’ Commitment to Each Other
29. The Tribunal has had regard to whether the parties demonstrate a mutual commitment, and has considered matters including duration of the relationship, the length of time the parties have lived together, the degree of companionship and emotional support they draw from each other, and whether they see the relationship as long-term.
30. The Tribunal has considered relevant evidence and although clearly for the majority of 2018 the relationship was deteriorating, eventually irreparably in August 2018, the Tribunal is satisfied that at the time the visa application was made the applicant and sponsor had a mutual commitment to a shared life and considered the relationship to be long term.
Other relevant circumstances
31. At the hearing in May 2021, the Tribunal observed the applicant to be very nervous, emotional, teary and confused by questions. Some of her answers were vague, non-responsive and internally inconsistent. The IE’s report received by the Tribunal on 11 February 2022 refers to the applicant’s presentation and demeanour at the interview that took place on 3 February 2022 and the IE makes these observations in their report (at. p.3):
‘It is noted that [the applicant] was quite distressed for much of the interview, with occasions where she was tearful and also broke down sobbing to the point where the interview had to be paused for her to sufficiently compose herself to continue. She discussed the ongoing impacts of alleged family violence and how distressed she remains, which was consistent with her presentation at interview. Additionally, [the applicant] displayed poor recollection of some events, particularly around dates. For example, she could not recall when in 2017 she began working at the [Workplace]. When pressed, she estimated that it was early 2017, however, this was noted to have commenced in December 2017 according to the Tribunal hearing reviewed. When this was put to her, [the applicant] advised that her bank statements would show the correct date, which were subsequently provided to the IE. These clearly show work payments commencing from December 2017. This difficulty recalling dates appears, at least to some extent, to highlight how the ongoing impacts from the alleged family violence and relationship breakdown continue to affect [the applicant]’s memory. It is noted that a similar presentation was observed during the Tribunal hearing. Poor recollection and difficulty recalling linear events over a period of major stress is often found with features of trauma.’
32. The Tribunal defers to the expert opinion expressed above when considering whether the applicant’s uninformative answers to questions at the scheduled hearing impact on her credibility. The IE includes (at.p8) that, ‘On balance, I have accepted that at least some of [the applicant]’s memory loss appears credible and genuine’. In the circumstances, the Tribunal has not given negative weight to the applicant’s oral evidence where she was vague or unable to recall events and dates.
33. Taking into account the IE’s opinion that ‘poor recollection and difficulty recalling linear events over a period of major stress is often found with features of trauma’, the Tribunal is unconcerned that there is some variation in certain aspects of the versions of events relating to the claim that she suffered family violence, given in writing, at the Tribunal hearing and to the IE.
34. In summary, the applicant claims to have been subjected to financial and emotional abuse by the sponsor and his mother. She describes, over time, being excluded from conversations and being excluded from meals by the sponsor and his mother. If she tried to speak to the sponsor without his mother present, he ignored her. She was pressured to give the sponsor and his mother money, they made threats to withdraw the sponsorship if she did not give them the money. On at least two occasions from September 2017 to August 2018, the applicant left the home she shared with the sponsor and his mother temporarily, due to the abuse, but returned. In August 2018, the applicant attempted suicide. She did not return to the relationship or the home she shared with her husband and his mother.
35. After ending the relationship, in September 2018 the applicant commenced counselling, with the psychologist and socialist worker who have provided statutory declarations (discussed below) in support of the family violence claim.
36. The Tribunal has carefully considered the matters specified in r.1.15A(3) and is satisfied that at the time the visa application was made the applicant and sponsor had a mutual commitment to shared life to the exclusion of others; genuine and continuing relationship; and live together / not separately and apart on a permanent basis.
37. On the basis of the above the Tribunal is satisfied that the applicant and sponsor were in a genuine spouse relationship at the time the visa application was made, until the relationship broke down in August 2018. The Tribunal is satisfied that the requirements of s 5F(2)(b)-(d) were met at the time the visa application was made.
Conclusion
38. The Tribunal is satisfied the applicant and the sponsor were in a genuine spouse relationship at the time the visa application was on 29 March 2017.
Family Violence
39. There is evidence before the Tribunal that the family violence and abuse commenced in September 2017 and that the applicant and sponsor’s relationship ceased in August 2018. The issue that arises on the evidence in this case is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.
40. Under reg 1.23 of the Regulations, a person is taken to have suffered or committed family violence if there is evidence tested before a court; or the visa application includes a non-judicially determined claim of family violence, and either the Minister (or the Tribunal on review) is satisfied that the alleged victim has suffered relevant family violence or an opinion of an independent expert has been given that the alleged victim has suffered relevant family violence. Relevant family violence is defined in reg 1.21. These regulations, as relevant to this decision, are extracted in the attachment to this decision. The Tribunal notes that the violence, or part of the violence must have occurred during the relationship: reg 1.23(3), (5), (7), (12), (14).
41. In the present case the applicant is seeking establish family violence on the basis of a non-judicially determined claim of family violence.
Has a claim of family violence been made under the regulations?
42. Under reg.1.23, a visa application is taken to include a non-judicially determined claim of family violence where either a joint undertaking to a court has been made by the alleged victim and alleged perpetrator or evidence in accordance with reg.1.24 is provided.
43. The applicant in this case is seeking to rely on evidence referred to in reg.1.24 – namely, a statutory declaration under reg.1.25 and evidence of a type and number specified by the Minister for these purposes in Legislative Instrument IMMI 12/116.
44. A statutory declaration under reg 1.25 must be made by the spouse or partner of the alleged perpetrator. In this case the alleged victim is the spouse of the sponsor; the statutory declaration must set out the allegation of family violence, name the person alleged to have committed the relevant family violence and, if the conduct was not directed at the spouse or partner, name the person to whom it is directed and their relationship with the deponent: reg 1.25(2).
45. The applicant provided the Tribunal with:
46. The Tribunal has considered the applicant’s statutory declaration and the information she included. The applicant sets out the abuse directed at her, perpetrated by the sponsor and his mother, and specific and detailed allegations of the family violence committed by the sponsor. For these reasons, the Tribunal is satisfied the requirements of reg.1.25(2) are met.
47. The relevant instrument specifies that a minimum of two different types of specified evidence be given.
48. The Tribunal is satisfied that the applicant has provided statutory declarations from a treating psychologist and social worker (as described in the Instrument), which is acceptable evidence specified in Legislative Instrument 12/116.
49. Therefore, the evidence presented meets the requirements of reg.1.24, and a claim of non-judicially determined claim of family violence has been made under reg 1.23.
Has the applicant suffered family violence?
50. Having considered all of the evidence before it, including oral evidence given by the applicant at the hearing in May 2021, the Tribunal was not satisfied for the purposes of reg.1.23 that the applicant has suffered relevant family violence. In accordance with that regulation, the Tribunal sought the opinion of an independent expert. The Tribunal confirmed with the applicant at the hearing the information that would be sent to the IE to allow them to prepare for her interview and provided the following information to the IE with the referral sent by the Tribunal on 21 May 2021:
51. On the basis of an interview conducted with the applicant and relevant documentary evidence (specified as above in the IE’s report), the IE provided an opinion that the applicant had suffered relevant family violence. The Tribunal has carefully considered the IE’s report dated 11 February 2022 and is satisfied that the IE has applied the definition of ‘relevant family violence’ correctly in forming and stating their opinion that the applicant has suffered relevant family violence, as defined in. reg.1.21(1), and that the IE’s opinion was therefore properly made.
52. The Tribunal is satisfied that the opinion is authorised by the Regulations, in that it is provided by an independent expert who is a person suitably qualified to make the assessment, is an employee of an organisation specified for this purpose, and was properly made. Under reg 1.23 the Tribunal is required to take as correct an independent expert’s opinion, properly made.
53. Where the independent expert’s opinion is that a person has suffered relevant family violence, at least part of the violence that led to that opinion must have occurred while the married or de facto relationship existed. The Tribunal is satisfied, for the reasons given, that at least part of the family violence occurred during the relationship before it ceased in August 2018.
54. Accordingly, the Tribunal finds that the applicant is taken taken to have suffered family violence committed by the sponsor for reg 1.22.
55. As the relationship between the applicant and sponsor has ceased, and the applicant has suffered relevant family violence committed by the sponsor, the applicant meets the requirements of cl.820.221(3)(b)(i)(A).
Conclusion
56. For the reasons given and findings made, the applicant meets cl.820.221(3) of Schedule 2 to the Regulations at the time of this decision. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
DECISION
57. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:
ATTACHMENT - Extract from Migration Regulations
1994
1.15A Spouse
(1) For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.
(2) If the Minister is considering an application for:
(a) a Partner (Migrant) (Class BC) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
(c) a Partner (Residence) (Class BS) visa; or
(d) a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3) The matters for subregulation (2) are:
(a) the financial aspects of the relationship, including:(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day to day household expenses; and
(b) the nature of the household, including:(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:(i) whether the persons represent themselves to other people as being married to each other; and
(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons’ commitment to each other, including:(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long term one.
(4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
ATTACHMENT – EXTRACT FROM THE MIGRATION REGULATIONS 1994
In this Division:
independent expert means a person who:
(a) is suitably qualified to make independent assessments of non-judicially determined claims of family violence; and
(b) is employed by, or contracted to provide services to, an organisation that is specified, in a legislative instrument made by the Minister, for the purpose of making independent assessments of non-judicially determined claims of family violence.
non-judicially determined claim of family violence has the meaning given by subregulations 1.23(8) and (9).
relevant family violence means conduct, whether actual or threatened, towards:
(a) the alleged victim; or
(b) a member of the family unit of the alleged victim; or
(c) a member of the family unit of the alleged perpetrator; or
(d) the property of the alleged victim; or
(e) the property of a member of the family unit of the alleged victim; or
(f) the property of a member of the family unit of the alleged perpetrator;
that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.
statutory declaration means a statutory declaration under the Statutory Declarations Act 1959.
violence includes a threat of violence.
...
1.23 When is a person taken to have suffered or committed family
violence?
(1) For these Regulations, this regulation explains when:
(a) a person (the alleged victim) is taken to have suffered family violence; and
(b) another person (the alleged perpetrator) is taken to have committed family violence in relation to the alleged victim.
Note Schedule 2 sets out which visas may be granted on the basis of a person having suffered family violence. The criteria to be satisfied for the visa to be granted set out which persons may be taken to have suffered family violence, and how those persons are related to the spouse or de facto partner of the alleged perpetrator mentioned in this regulation.
Circumstances in which family violence is suffered and committed — injunction under Family Law Act 1975
(2) The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if, on the application of the alleged victim, a court has granted an injunction under paragraph 114(1)(a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator.
(3) For subregulation (2), the violence, or part of the violence, that led to the granting of the injunction must have occurred while the married relationship between the alleged perpetrator and the spouse of the alleged perpetrator existed.
Circumstances in which family violence is suffered and committed — court order
(4) The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a) a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence; and
(b) [...] order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter.
(5) For subregulation (4), the violence, or part of the violence, that led to the granting of the order must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
Circumstances in which family violence is suffered and committed — conviction
(6) The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if a court has:
(a) convicted the alleged perpetrator of an offence of violence against the alleged victim; or
(b) recorded a finding of guilt against the alleged perpetrator in respect of an offence of violence against the alleged victim.
(7) For subregulation (6), the violence, or part of the violence, that led to the conviction or recording of a finding of guilt must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
Circumstances in which family violence is suffered and committed — non-judicially determined claim of family violence
(8) For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:
(a) the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and
(b) the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim.
(9) For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:
(a) the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and
(b) the alleged victim is:(i) a spouse or de facto partner of the alleged perpetrator; or
(ii) a dependent child of:
(A) the alleged perpetrator; or
(B) the spouse or de facto partner of the alleged perpetrator; or
(C) both the alleged perpetrator and his or her spouse or de facto partner; or
(iii) a member of the family unit of a spouse or de facto partner of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse or de facto partner); and
(c) the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:(i) the alleged victim has suffered relevant family violence; and
(ii) the alleged perpetrator committed that relevant family violence.
(10) If an application for a visa includes a non-judicially determined claim of family violence:
(a) the Minister must consider whether the alleged victim has suffered relevant family violence; and
(b) if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis; and
(c) if the Minister is not satisfied that the alleged victim has suffered the relevant family violence:(i) the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence; and
(ii) the Minister must take an independent expert’s opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.
(11) The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a) an application for a visa includes a non-judicially determined claim of family violence; and
(b) the Minister is satisfied under paragraph (10)(b) that the alleged victim has suffered relevant family violence.
(12) For subregulation (11), the Minister must be satisfied that the relevant family violence, or part of the relevant family violence, occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
(13) The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a) an application for a visa includes a non-judicially determined claim of family violence; and
(b) the Minister is required by subparagraph (10)(c)(ii) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence.
(14) For subregulation (13), the violence, or part of the violence, that led to the independent expert having the opinion that the alleged victim has suffered relevant family violence must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
ATTACHMENT
EXTRACT FROM SCHEDULE 2 TO THE MIGRATION
REGULATIONS 1994
820.22 Criteria to be satisfied at time of decision
(1) In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:
(a) continues to meet the requirements of the applicable subclause; or
(b) meets the requirements of subclause (2) or (3).
(2) An applicant meets the requirements of this subclause if the applicant:
(a) would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the sponsoring partner has died; and
(b) satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and
(c) has developed close business, cultural or personal ties in Australia.
(3) An applicant meets the requirements of this subclause if:
(a) the applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and
(b) either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B) a dependent child of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner;
(ii) the applicant:
(A) has custody or joint custody of, or access to; or
(B) has a residence order or contact order made under the Family Law Act 1975 relating to;
at least 1 child in respect of whom the sponsoring partner:
(C) has been granted joint custody or access by a court; o
(D) has a residence order or contact order made under the Family Law Act 1975; or
(E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.
Note: For special provisions relating to family violence, see Division 1.5.
(4) If paragraph 820.211(2)(c), (5)(f) or (6)(c) requires the applicant to be sponsored:
(a) the sponsorship has been approved by the Minister and is still in force; and
(b) the sponsor has consented to the disclosure by the Department, to each applicant included in the sponsorship, of any conviction of the sponsor for a relevant offence (within the meaning of subregulation 1.20KC(2)).
Note 1 : Regulations 1.20J, 1.20KA, 1.20KB and 1.20KC limit the Minister's discretion to approve sponsorships.
Note 2: The sponsor may be asked to consent to the disclosure mentioned in paragraph (b) on the approved form required to be completed by the sponsor in relation to the visa application.
(5) For the purposes of subclause (4), the conviction of the sponsor for a relevant offence is to be disregarded if:
(a) the conviction has been quashed or otherwise nullified; or
(b) both:
(i) the sponsor has been pardoned in relation to the conviction; and
(ii) the effect of that pardon is that the sponsor is taken never to have been convicted of the offence.
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URL: http://www.austlii.edu.au/au/cases/cth/AATA/2022/486.html