1715628 (Migration)

[2018] AATA 2838

1715628 (Migration) [2018] AATA 2838 (14 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1715628

MEMBER:Margie Bourke

DATE:14 June 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa

Statement made on 14 June 2018 at 3:27pm

CATCHWORDS

Migration – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – Federal Court remittal – Practice and Procedure – Ground of appeal – Non-disclosure of s375A certificate to applicant – Whether disclosure contrary to public interest – Relationship ceased – Claims of family violence committed by sponsor – Assessment by independent expert considered – Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(2), 5CB, 5F, 65, 359A, 375A

Migration Regulations 1994 (Cth), rr 1.21, 1.22, 1.23, 1.24, 1.25, Schedule 2, cl 100.221

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 Immigration on 23 April 2015 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 24 May 2010 on the basis of his relationship with his [sponsor]. At that time, Class BC contained Subclass 100. The criteria for the grant of this visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the primary criteria include cl.100.221 which requires the applicant to be 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.100.221(4)(b), (c)(i). The applicant claims this occurred in this case.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl.100.221 because the delegate was satisfied that the relationship between the applicant and the sponsor had ceased, but the delegate was not satisfied that the applicant had suffered relevant family violence.

5. The applicant appeared before me in the first hearing of this matter on 12 December 2016. My decision record is dated 2 February 2017.

6. The matter was remitted back to the Tribunal by order of the Federal Circuit Court, because the Department had issued a s.375A certificate on 18 May 2015, and the existence of the certificate was not disclosed to the applicant, and some of the documents which were the subject of the certificate were relevant or potentially relevant to the issues arising on the review by the Tribunal.

7. The applicant appeared before the Tribunal on 23 April 2018 to give evidence and present arguments. An earlier hearing scheduled for 12 February 2018 was rescheduled by the Tribunal, and the applicant also requested a postponement on the morning of that hearing.

8. The applicant was represented in relation to the review by his registered migration agent.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The s.375A Certificate

10. The certificate issued on 18 May 2015 identified three folios (57, 58 and 60) that contain information about the applicant provided by the sponsor, and stated that disclosure would be contrary to the public interest as it may jeopardise the safety or well being of the sponsor.  The certificate identified a further three folios (68 - 70) that contained confidential information about departmental methods and procedures, and stated disclosure would be against the public interest as it would cause the effectiveness of the methods and procedures to be prejudiced.

11. The Tribunal provided a copy of the certificate dated 18 May 2015 to the applicant with the invitation to the hearing dated 12 December 2017. The Tribunal indicated in the hearing invitation that the validity of the certificate would be discussed the hearing. The Tribunal did not receive any written submissions in relation to the validity of the certificate.

12. The Tribunal invited the applicant’s representative to make submissions in relation to the validity of the certificate in the hearing. The representative submitted that the non-disclosure of folios 57, 58 and 60 was potentially unfair to the applicant, as they were made by the sponsor and were unknown to the applicant. The Tribunal clarified the nature of the documents and explained the ‘general gist’ of the documents that were the six folios identified in the s.375A certificate.

13. The Tribunal discussed with the applicant and his representative in the hearing that folios 57 and 58 related to contact details of the sponsor or people related or known to her. The Tribunal discussed with the applicant and his representative that folio 60 contained contact information from the sponsor, confirmation that the relationship ended in the year 2011 and the sponsor’s information as to why the relationship ended. The Tribunal discussed with the applicant and his representative that the Department had provided the reason why disclosure would be contrary to the public interest, and that the confidentiality provisions relating to the contact details for people met the requirements for s.375A. The Tribunal considered the submissions of the representative and noted that the contact details for the sponsor and other persons were not relevant to its findings on the review. The Tribunal discussed with the applicant and his representative that no unfairness would be caused to the applicant as a result of not disclosing the contact details recorded in the folios 57 and 58. The Tribunal is of the opinion that the information contained in folio 60 which is information provided by the sponsor in relation to the relationship and her opinions about the relationship is a document that should not be disclosed to the applicant, and which meets the requirements of s.375A. The tribunal provided the gist of the information provided by the sponsor about the ending of the relationship. The Tribunal advised it was of the opinion that the information is not adverse information, because in relevant details, the information was consistent with that of the applicant about the ending of the relationship. The tribunal is satisfied that the s.375A certificate is valid in relation to folios 57, 58 and 60.

14. After the hearing the Tribunal determined that the certificate was valid but not in relation to all six documents. The Tribunal decided that disclosure of the three folios of the family violence referral form from the Department to a different independent expert would not be contrary to the public interest for the reason that it contained information about departmental methods and procedures. The Tribunal was aware that the applicant had previously been provided with documents that were similar in content.  To provide the applicant procedural fairness the Tribunal released the three documents which included folios 68 to 72 the applicant. The Tribunal draws a distinction between a referral form for an earlier assessment by an Independent Expert, and the current opinion of the Independent Expert upon which to Tribunal may rely in making its decision.

15. The Tribunal had discussed with the applicant and his representative in the hearing that the folios 68 to 70 was the Family Violence Referral form that the Department sent to the Independent Expert. The Tribunal is satisfied that the information contained in these folios was not relevant to this review as the Tribunal is relying on the opinion of the Independent Expert dated 9 January 2017, which was provided to the Tribunal.

16. In relation to the documents listed as folios 68 to 70 in the s.375A certificate disclosed by the Tribunal to the applicant after the hearing, the Tribunal decided the applicant should be given the opportunity to provide comments on the information it had provided to the applicant, if he wished to do so. The Tribunal invited the applicant to provide any further comments or responses that he may wish to make in writing and allowed a period of seven days for him to do so. The applicant sought an extension of time in which to provide his comments or response, and the tribunal granted the request for the extension of time which was sought. The applicant’s comments and responses to the information provided are discussed later in this decision record at paragraph 22 and following.

    Independent expert opinion from the previous review

17. The applicant and his representative stated that they never received the Tribunal’s letter dated 12 January 2017. The applicant’s representative indicated that this was another ground of their appeal to the Federal Circuit Court. The Tribunal has noted that there was only one reason for the matter being remitted back to the Tribunal for review, and that was the nondisclosure of the certificate. The Tribunal is satisfied that the Independent Expert’s report dated 9 January 2017 had been provided to the applicant by letter dated 12 January 2017 pursuant to s.359A, and was sent to the applicant’s representative via his nominated email address for correspondence as part of the previous review. However the Tribunal considers in the interests of procedural fairness that it is appropriate that the applicant have the opportunity to comment and respond on information that is available to the Tribunal, and after the hearing provided the applicant with a copy of the previous Independent Expert report and the documents provided by the Tribunal to the Independent Expert pursuant to s.359A.

    Relationship between the Applicant and the Sponsor

18. In the present case, the applicant claims the relationship with the visa sponsor has ceased, and he has been the victim of family violence.

19. I have considered the evidence provided to the Department, and the Tribunal and the evidence at the previous hearing on 12 December 2016 and the hearing on 23 April 2018. I have considered the written and oral evidence before me. I am satisfied that the parties met in 2007 and commenced a de facto relationship sometime that year. I am satisfied the parties married on 2 May 2009 and members of the sponsor’s family attended that wedding. I am satisfied that the parties met the requirements of s.5CB and s.5F of the Act at the relevant times for a de facto relationship and a spousal relationship.

    Cessation of the Relationship between the Applicant and the Sponsor

20. I am satisfied based on the consistent evidence before me that the applicant resided with the sponsor from July to October in 2009 in [Suburb 1]. I accept his evidence that the relationship was fairly good but there were some disputes in relation to finances as he could not obtain employment. I accept based on the applicant’s oral evidence that when the applicant departed Australia the sponsor was very upset and expressed a wish to go with him. I accept based on the applicant’s evidence that the applicant has not seen the sponsor since he departed Australia in October 2009. I accept that in late 2010 or early 2011 when the applicant was attempting to telephone the sponsor she advised him that she no longer loved him and the relationship was over. I accept that the applicant tried to call the sponsor, and on occasions the call was answered by someone named ‘[Mr A]’ who advised the applicant that he was the sponsor’s new partner.

21. I accept the evidence of the applicant that he believed the sponsor had a new partner, the man ‘[Mr A]’, who answered the phone when the applicant rang the sponsor. I accept the sponsor had commenced a new relationship at the time she advised the applicant that she no longer loved him and at the time that [Mr A] was answering the phone when the applicant rang. I accept based on the applicant’s evidence, that the applicant decided to return to Australia anyway to attempt to salvage his marital relationship. I accept based on the applicant’s evidence that when the applicant returned to Australia in April 2011 he was detained by customs officials, and when contacted the sponsor had told customs officials that she did not know the applicant. I accept based on the applicant’s evidence that when the applicant then travelled to [Suburb 1] both the sponsor’s parents told him that the sponsor did not want anything to do with him. I accept the applicant’s evidence that after one month, he accepted the relationship was over. I am satisfied that since May 2011 the applicant has accepted the relationship between him and the sponsor had ceased.  

22. I am satisfied that the evidence of the applicant and the information provided by the sponsor is that the parties did not meet after the applicant departed in October 2009 and did not meet after the applicant returned to Australia in April 2011. I accept that there has been some form of communication between the applicant and sponsor since that time which has related to filing for divorce and requests for repayment of the loan to the sponsor’s parents.

23. On the basis of the consistent evidence before me I am satisfied that from the time the sponsor commenced a new relationship the applicant and sponsor were no longer in a spousal relationship within the meaning of s.5(2) of the Act. The evidence in relation to the time the sponsor commenced a new relationship is not clear. I have erred on the side of caution and I am satisfied that at the very latest the sponsor commenced a new relationship in February 2011. I am satisfied that from February 2011 the applicant and sponsor did not have a mutual commitment to a shared life as husband and wife to the exclusion of all others. I am satisfied that from February 2011 the applicant and sponsor were not in a spousal relationship within the meaning of s.5(2)(b) of the Act.

24. The Tribunal provided the three folios to the applicant that it identified that the s.375A certificate did not validly provide reasons why disclosure would be against the public interest. The applicant provided comments through a written submission from his representative, in relation to these documents. The essence of the applicant’s submission was a reference to the time of the cessation of the spousal relationship and to a discrepancy in the date when the spousal relationship ceased.

25. The applicant’s representative submitted that despite another date contained in the information provided by the applicant, the applicant believes the spousal relationship ceased on 27 May 2011, when the applicant accepted the relationship was over after the applicant had been back in Australia for one month. However, the Tribunal must apply the definition of spouse set out in s.5F(2). In s.5F(2)(b) it is required that is spousal relationship include a mutual commitment to a shared life as husband and wife to the exclusion of all others. Therefore, the Tribunal finds that when the sponsor commenced another relationship, which the Tribunal is satisfied occurred at the latest in Fairbury 2011, the parties did not continue to satisfy the requirement of mutual commitment to a shared life as husband and wife to the exclusion of others. The relevant date for the cessation of the relationship is not when the applicant accepts the relationship is over. The relevant date the spousal relationship ceases is when the relationship no longer meets the criteria in s.5F(2). The applicant sponsor did not continue to meet the criteria for a spousal relationship from February 2011.

26. On the basis of the evidence, the Tribunal is satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased.

    Family Violence Claims

27. 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.

28. Under r.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 r.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: r.1.23(3), (5), (7), (12), (14).

29. 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?

30. Under r.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 r.1.24 is provided.

31. The applicant in this case is seeking to rely on evidence referred to in r.1.24 – namely, a statutory declaration under r.1.25 and evidence of a type and number specified by the Minister for these purposes (see IMMI 12/116)

32. A statutory declaration under r.1.25 must be made by the spouse or partner of the alleged perpetrator. If the alleged victim is the spouse or partner, 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: r.1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: r.1.25(3).

33. The applicant provided a statutory declaration dated 29 March 2014 in which he names the sponsor is the perpetrator of the family violence that he suffered, identifies verbal abuse that he suffered before he left Australia in 2009 and verbal abuse including threats and pressure by telephone whilst he was in Nigeria before he returned to Australia.

34. The applicant provided a psychological report and statutory declaration dated 6 March 2014 from [Mr B] a psychologist. [Mr B] gives his opinion that the applicant was subject to family violence during his relationship with the sponsor, [Mr B] details the reasons for his opinion and identifies the sponsor as the alleged perpetrator.

35. The applicant provided a report from an accredited social worker in which the social worker states in their opinion the applicant was the victim of family violence, details the reasons for his opinion and identifies the sponsor as the alleged perpetrator.

36. I am satisfied that the statutory declaration from the applicant meets the requirements of r.1.25(2) and the other evidence provided in support meets the specifications in the instrument IMMI 12/116.

37. Therefore, the evidence presented meets the requirements of r.1.24. As such, a non-judicially determined claim of family violence has been made under r.1.23.

    Has the applicant suffered family violence?

38. The Tribunal has considered the evidence before it. The Tribunal is satisfied that when the applicant returned to Australia in April 2011 the relationship between himself and the sponsor did not resume. The Tribunal is satisfied that from February 2011 the sponsor was in a relationship with another person and did not have a commitment to a relationship with the applicant. The Tribunal must consider whether the applicant suffered any relevant family violence prior to the cessation of the relationship. The Tribunal has considered the evidence before it which included that the applicant and sponsor had some arguments during the time they lived together in [Suburb 1] from July to October when the applicant was unable to find work. The Tribunal has considered the applicant’s evidence that there were phone calls prior to his return to Australia with verbal requests to repay the loan to the sponsor’s parents. The Tribunal has considered that the applicant wished to continue with the relationship and did not express that he had any sense of apprehension or fear for his well-being when he returned to [Suburb 1] to find the sponsor. The tribunal is not satisfied that the evidence before it indicates that the applicant suffered relevant family violence during the time he was in a de facto relationship and then a spousal relationship with the sponsor. Having considered all of the evidence before it in the previous review, the Tribunal was not satisfied for the purposes of r.1.23 that the applicant has suffered relevant family violence. In accordance with that regulation, the Tribunal sought the opinion of an independent expert.

1. The Tribunal in the previous review received the independent expert report which is dated 9 January 2017. The report was actually received by the Tribunal on 11 January 2017, so it is on 11 January 2017 the Tribunal that the independent expert provided an opinion that the applicant had not suffered relevant family violence. By letter dated 12 January 2017 sent to the applicant’s representative, the Tribunal invited the applicant to comment or respond to the finding of the independent expert pursuant to s.359A, and attached a copy of the family violence assessment and opinion of the independent expert. The Tribunal is satisfied that the applicant was provided with the independent expert’s assessment and opinion pursuant to the s.359A process as part of the previous review in this matter. The Tribunal did not receive a response to the invitation to comment letter dater dated 12 January 2017 on the adverse information in the Independent Expert’s report, and the Tribunal proceeded to finalise its decision on the basis of the evidence before it.

2. As stated above the applicant claimed he did not receive the letter dated 12 January 2017 provided by the Tribunal which provided a pursuant to s.359A to the applicant. In the interests of procedural fairness, although this was not necessarily required in the further hearing, the Tribunal again provided the opinion of the independent expert report dated 9 January 2017 to the applicant pursuant to s.359A.

3. After the hearing on 23 April 2018, the Tribunal provided a copy of the independent expert’s report dated 9 January 2017 together with a copy of the information provided to the independent expert by the Tribunal, pursuant to the s.359A process. The Tribunal invited the applicant to comment or respond to the finding of the independent expert’s report and conclusions.

4. The applicant provided responses to the invitation to comment which included a submission from his representative dated 8 May 2018, a letter of support from his pastor dated 22 April 2018 and two statutory declarations from the applicant, previously provided dated 15 July 2014 and 14 April 2015. The two statutory declarations are referred to in the representative submissions dated 8 May 2018.

5. The representative submitted that the applicant respectfully disagreed with the opinion of the independent expert, and the applicant relied on the account he gave of his experiences in relation to his claim of family violence as provided in his statutory declarations dated 15 July 2014 and 14 April 2015. The representative submitted that the independent expert had erred in her summary of the abuse suffered by the applicant, and the independent expert had not considered the applicant’s account of the abuse in its totality. The representative submitted that the independent expert had not considered the extent of the financial and verbal abuse suffered by the applicant or the tensions and apparent violence prior to March 2011 The representative submitted that the applicant rejected the independent experts conclusion that the applicant had not suffered either actual or threatened conduct, and that the applicant had not feared for his safety.

6. The representative also submitted that the review applicant disagreed with the independent expert assessment that his counselling was sought to deal with his distress; the representative submitted that the applicant sought spiritual counselling to assist with the trauma of the breakdown, and the abuse and threats after the relationship broke down. The representative accordingly provided the letter from the pastor in relation to this spiritual guidance provided.

7. The representative submits that the independent expert has provided an assessment that was not neutral and was not independent. The representative submits that the procedure applied by the independent expert was based on opinion and was not a non-biased process. The representative submits that the assessment by the independent expert was based on the content of the previous statutory declaration by the applicant. The representative submits that the applicant disagrees with the conclusion of the independent expert that “it appears that the conflict with the sponsor during their relationship was centred around financial strain”.

8. The representative submitted that the independent expert did not consider the evidence of the continued abuse by the perpetrator of the family violence. The Tribunal provided the applicant with the independent expert’s report dated 9 January 2017. The applicant stated he had not received this when the Tribunal sent the applicant a copy of this report pursuant to s.359A by letter dated 12 January 2017. The Tribunal again sent to the applicant a copy of the independent expert’s assessment and report pursuant to s.359A by letter dated 24 April 2018 and invited the applicant to comment or respond to the information in writing. The Tribunal considered it was in the interests of procedural fairness to allow the applicant the second opportunity to comment or respond to the independent expert’s report that had been provided to the Tribunal.

9. The independent expert’s report dated 9 January 2017 was made based on the evidence provided to the independent expert available at that time. The evidence before the Tribunal in April 2018 was consistent in relation to when the relationship ceased and whether there had been family violence that occurred prior to that relationship ceasing.  Evidence in relation to claimed ongoing family violence only becomes relevant if there is new evidence that family violence actually occurred during the course of the relationship. There was no new or different evidence before the Tribunal in relation to when the relationship ceased or the circumstances of the relationship prior to the cessation of the relationship.

10. The Tribunal acknowledges that the applicant provided documents claiming to represent evidence of continuing abuse suffered by the applicant after the cessation of the relationship. In circumstances where the Tribunal was not satisfied that there was any new or different evidence in relation to whether the applicant suffered family violence during the course of the relationship, the Tribunal did not consider it was necessary or appropriate to request a further report from the independent expert.

11. The Tribunal has considered the submissions from the applicant’s representative and attached documents in support of those submissions. I have considered the extensive analysis by the independent expert in the report. I am satisfied that the independent expert has covered the breadth of the allegations claimed by the applicant. I am satisfied that the independent expert has assessed the claims of verbal, emotional and financial abuse that the applicant has claimed.  I am satisfied that the independent expert has properly assessed any claims by the applicant in relation to fear for his well-being, diverse abuse from the sponsor’s family, tensions in the relationship and the overall circumstances of the claimed family violence. The Tribunal is satisfied that the assessment of the independent expert is properly made. The Tribunal accepts that the applicant does not agree with the opinion of the independent expert. The Tribunal is satisfied that the independent expert acted in an independent and proper manner in reaching the conclusion as made in the report dated 9 January 2017.

12. 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 r.1.23 the Tribunal is required to take as correct an independent expert’s opinion, properly made.

13. 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. In this case the independent expert has not found that the applicant suffered relevant family violence at any time.

14. Any assessment of whether the applicant suffered relevant family violence during the relationship must be an assessment of whether the applicant suffered relevant family violence in the relationship, at least partially occurring prior to February 2011.  I note the Independent Expert report refers to the relationship ceasing in February 2010; I assume the relevant date is February 2011, and I have read the report accordingly.

15. The independent expert concluded “[The applicant] reported that he commenced the relationship with the sponsor in July 2007 and that the relationship ended on 26^th of April 2011, however there is a question regarding the accuracy of this date as the couple did not have a mutually exclusive commitment to one another since February 2010. [The applicant]’s self-reports differed across time and within the interview with the writer, however it appears that conflict with the sponsor during their relationship was centred around financial strain. [The applicant] previously reported that the sponsor had hit him and threw objects at him on one occasion in 2007, however when asked about this stated that [the sponsor] had only raised her hand in an attempt to hit him. [The applicant] had also previously reported that [the sponsor] had emotionally abused him by threatening his visa status, however it appears as though this only occurred post the relationship ending while he was residing in Nigeria. [The applicant] was unable to provide sufficient details of particular incidents of verbal abuse that would determine his experience of family violence and failed to report any feelings of fear and apprehension relating to these experiences. Rather, it appears as though, [the applicant]’s self-described fear and distress occurred in response to his visa status being jeopardised as a result of the relationship ending. For these reasons it is the writer’s opinion that [the applicant] was not a victim of Family Violence as defined by regulation 1.21 of the Migration Regulations 1994.”

16. The Tribunal accepts the independent expert report that the applicant has not suffered relevant family violence. Accordingly, the Tribunal finds that the applicant is not taken to have suffered family violence committed by the sponsor for r.1.22.

17. Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements of cl.100.221(4)(b) and (c) for the grant of the visa. There is no evidence before the Tribunal that the applicant meets any of the alternative sub criteria. As the applicant does not meet an essential criterion for the visa, the Tribunal must affirm the decision under review.

    DECISION

18. The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa

    Margie Bourke
    Member

    
    

    ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    1.21 Interpretation

    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.