1807306 (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, subclass 801 (Spouse). The applicant claimed that her relationship with the sponsor had ceased and that she had been a victim of family violence. The decision under review was affirmed by the Tribunal.

The legal issues before the Tribunal were whether the applicant met the requirements of the Migration Regulations 1994 concerning the cessation of a relationship and the occurrence of family violence, as an exception to the general requirement that the applicant must be in a relationship with the sponsor at the time of the decision. Specifically, the Tribunal considered whether the applicant satisfied clause 801.221(6)(b) by continuing to hold a Subclass 820 visa, and whether she had suffered family violence as defined by the Regulations, which would satisfy clause 801.221(6)(c)(i).

The Tribunal applied the principles from *El Jejieh v MICMSMA* [2020] FCA 1103, which it found to be binding, to determine that the applicant satisfied the requirement of continuing to hold a Subclass 820 visa. However, the Tribunal found that the applicant had not provided sufficient evidence to establish that she had suffered family violence within the meaning of the Regulations. While the applicant provided statements from two qualified declarants, these did not constitute evidence tested before a court, nor did they involve psychological treatments or counselling, and appropriate referrals were not taken up. The Tribunal noted that for a non-judicially determined claim of family violence, the evidence must satisfy specific criteria, including that the violence occurred during the relationship and that the applicant has suffered relevant family violence, which was not sufficiently demonstrated in this case.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Partner (Residence) (Class BS) visa. The Tribunal also noted that it would not be referring the matter to the Minister, but reminded the applicant that she was at liberty to make her own request for ministerial intervention.