1727810 (Migration)

This matter concerned an appeal by an applicant for a Partner (Residence) (Class BS) visa, Subclass 801, following a delegate's decision to refuse the visa. The delegate found that the applicant did not meet criterion 801.221 because there was insufficient evidence of family violence to explain the cessation of the applicant's relationship with the sponsor. The applicant alleged that the relationship ended due to family violence, including assaults, harassment, and threats from the sponsor. The Tribunal was required to determine whether the applicant had suffered family violence within the meaning of the Migration Regulations 1994, specifically in the context of a non-judicially determined claim.

The Tribunal considered the applicant's claims of family violence, which were supported by statutory declarations, a psychological report, and a police record of interview detailing alleged assaults and harassment. The Tribunal also referred the matter to an independent expert, whose opinion was obtained. The central legal issue was whether the evidence presented satisfied the requirements for a non-judicially determined claim of family violence under the Regulations, particularly Regulation 1.23, which outlines the circumstances under which family violence is deemed to have occurred. This included assessing whether the alleged violence occurred during the relationship and whether the evidence met the standards for a non-judicially determined claim, such as the opinion of an independent expert.

The Tribunal found that the applicant and sponsor were in a partner relationship that had ceased. Crucially, the Tribunal was satisfied that the applicant had presented sufficient evidence to establish a non-judicially determined claim of family violence, including the opinion of an independent expert. The Tribunal noted that the violence, or part of it, occurred during the relationship. Consequently, the Tribunal concluded that the applicant met the criteria for the visa in relation to family violence. The Tribunal remitted the application for reconsideration by the Minister, directing that the applicant met criteria 801.221, including subclauses 801.221(6)(b) and 801.221(6)(c).