1807166 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant sought to establish that she had suffered family violence perpetrated by her sponsor, which would allow her to meet certain criteria for the visa even though her relationship with the sponsor had ceased. The Tribunal was required to determine whether the applicant and sponsor were in a genuine spouse relationship at the time of the visa application and whether the applicant had suffered relevant family violence.

The court was required to consider the definition of a "spouse relationship" under section 5F of the Migration Act 1958 (Cth) and regulation 1.15A of the Migration Regulations 1994 (Cth). This involved assessing whether the parties were validly married, had a mutual commitment to a shared life to the exclusion of others, whether the relationship was genuine and continuing, and whether they lived together or not separately and apart on a permanent basis. Additionally, the Tribunal had to determine if the applicant had suffered "relevant family violence" as defined in the Regulations, particularly in the context of a non-judicially determined claim, and whether such violence occurred during the relationship.

The Tribunal accepted the report of an independent expert who found that the applicant had suffered relevant family violence. However, the Tribunal noted that the applicant's evidence regarding the financial, household, and social aspects of her relationship with the sponsor, particularly during the period they lived with the sponsor's mother, was limited, vague, and inconsistent, likely due to the trauma she experienced. Despite these evidentiary challenges, the Tribunal was satisfied that the applicant and sponsor were in a genuine spouse relationship at the time of the visa application on 29 March 2017, and that the relationship ceased in August 2018. The Tribunal found that the family violence commenced in September 2017.

Consequently, the Tribunal remitted the application for reconsideration. The direction was that the applicant met the criteria for a Subclass 820 visa under clause 820.221(3) of Schedule 2 to the Regulations, which allows for the grant of a visa where the relationship has ceased but the applicant has suffered family violence committed by the sponsor.