1731219 (Migration)

This matter concerned an application for review of a decision to refuse a Partner (Temporary) (Class UK) visa (subclass 820). The applicant sought to establish family violence as a basis for meeting the visa criteria. The Tribunal considered evidence regarding the applicant's de facto relationship with the sponsor, including the absence of joint assets or liabilities and a claimed relationship breakdown. The Tribunal also addressed allegations that the relationship was contrived for visa purposes.

The primary legal issue before the Tribunal was whether the applicant had established that she had suffered family violence, as defined by the Migration Regulations 1994, to satisfy criterion cl.820.221. This involved determining if the applicant's non-judicially determined claim of family violence met the requirements of the regulations, particularly in the absence of a court order or conviction related to family violence. The Tribunal also considered the definition of a de facto relationship under section 5CB of the Act and the evidentiary requirements for such claims.

The Tribunal reasoned that for a non-judicially determined claim of family violence to be established under regulation 1.23(9), the alleged victim must present evidence that they have suffered relevant family violence and that the alleged perpetrator committed it. In this case, the applicant relied on oral evidence and third-party statutory declarations, but crucially, did not provide a statutory declaration from herself to support her claims, nor did she obtain an opinion from an independent expert as contemplated by regulation 1.23(10)(c)(i). The Tribunal found that the evidence presented did not satisfy the requirements for establishing family violence under the regulations.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Partner (Temporary) (Class UK) visa, as the applicant failed to meet the essential criterion cl.820.221(3) due to the unsubstantiated claim of family violence.