1808051 (Migration)

[2019] AATA 4062

1808051 (Migration) [2019] AATA 4062 (14 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1808051

MEMBER:Rosa Gagliardi

DATE:14 August 2019

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 August 2019 at 1:39pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – relationship ceased – family violence – existence of genuine spousal relationship – credibility concerns – delay in making family violence claims – non-judicially determined claim – evidential requirements – medical report – psychologist’s report – not in the required form – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.21, 1.23, 1.24, 1.25; Schedule 2, cls 100.211, 100.221

CASES
Guven v MIMIA [2006] FMCA 311

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 12 March 2018 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 10 August 2016 on the basis of his relationship with his sponsor, [Ms A]. 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 sponsor had advised that the relationship had ceased and it did not appear that he met any of the alternative criteria for the grant of the visa.

5. The applicant appeared before the Tribunal on 31 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister, [Ms B].

6. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In the present case, the applicant claims the relationship with [Ms A] the visa sponsor has ceased, and he has been the victim of family violence.

9. The provisions of cl.100.221 indicate that a genuine partner relationship within the meaning of the Act must have existed before the relationship ceased and the applicant would have otherwise met the criteria in cl.100.211.  This means that, while the claims of family violence do not have to cause the cessation of the relationship, the relationship which has ceased must have been one which would otherwise have met the requirements of the relevant legislation.

10. This approach was approved in the case of Guven v MIMIA [2006] FMCA 311 at [22]-[26] where Harnett FM found that when considering the grant of a Subclass 100 (Residence) visa, it was open to the Tribunal to consider whether at any point of time the relationship between the parties could properly be regarded as a spousal relationship within the meaning of the Regulations and only where it found that such a spousal relationship existed, was it required to make a further finding in relation to claims of domestic violence (as it was then referred to).

11. Therefore before assessing whether the applicant has suffered relevant family violence, the Tribunal must assess whether at any point of time the applicant and the sponsoring partner were in a spousal relationship within the meaning of the Regulations, regardless of whether the applicant had previously been granted a subclass 820 visa.

12. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship.  Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d).

13. While the Tribunal has some reservations about the credibility of the applicant, for reasons explained below, however, the Tribunal is prepared to accept that he and his sponsor were living together as spouses and that at one point they had conceived a child.  While the marriage was beset with difficulties because of the sponsor’s depression and her inability to engage with the rest of the household (the couple was living at that time with the applicant’s sister and her family), this does not detract from the marriage having been entered into in good faith by both parties.

14. While an allegation had been made that the relationship was not a genuine one, and the Tribunal put this information to the applicant under s.359A, the Tribunal is satisfied on the basis of the information before it that such allegations are without foundation and that the marriage had not been entered into for the sole purpose of the visa applicant achieving a migration outcome.

15. As such the Tribunal accepts that the relationship was genuine and continuing until the sponsor left the marital home on 12 May 2017, prior to seeking an intervention order against the applicant which was granted to her on 17 May 2017 and was valid until 16 May 2019.

16. The applicant stated that until he received a notice of divorce from his sponsor on 16 May 2018 he had not considered the relationship over as he was trying mediation. 

17. On the basis of the evidence, the Tribunal is satisfied the applicant and the sponsor were in a partner relationship prior to 12 May 2017 and that this relationship has ceased. 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.

18. The Tribunal put to the applicant pursuant to s.359AA of the Migration Act the sponsor’s report to the NSW police provided on 12 May 2017, which stated among other things, “Since the marriage and since we have lived together, [the applicant] has been controlling of me where everything has to be done his way.  This makes me feel emotionally and socially distressed.  I am currently [number] weeks pregnant and am dealing with emotion as well affected by morning sickness.  On 11 May 2016, I wasn’t feeling well and throwing up.  I caught a train to [a specified] Railway Station by myself…I finished seeing the doctor and [Ms B] (applicant’s sister) had come inside and saw my doctor.  [Ms B] left whilst I spoke with my doctor and left a few minutes after where I met [Ms B] outside and we started walking to [Ms B]’s [vehicle].  Around 6:30 to 7pm we were driving back home.  [Ms B] was driving.  I was in the front passenger seat and [the applicant] was in the back passenger seat behind me and [Ms B]’s two children, who are [age] and [age] years old, who were in the middle and on the right passenger seat in their child seats.  [The applicant] was angry.  [Ms B] and [the applicant] were talking to me at the same time in Tamil at me.  I can’t remember who said what but I heard, “Why did you go there?  Why didn’t you go to the one at [Suburb 1], why didn’t you call me”.  I then felt a slap, an open hand hit forcefully against my left ear.  I knew it was [the applicant] as it was an adult hand I felt.  Immediately I felt a buzzing sound in my ear.  He only hit me once but I felt pain and scared that it might happen again. I heard his sister say, “This is not right, you can’t be doing that”.  I was scared to the point where I started a voice recording on my phone.  [The applicant] then said, “Come, you’ll get it from me at home, I’m going to beat you with the belt till the belt frays, Oh you wait till I get my PR and I’ll just kick you out like a dog, I’m not going to let you talk to any of your family, especially your bitch of a mother, she’s the cause of all of these problem’s, you think you can do all this without my permission.  After we arrived home, [the applicant] continued yelling at me with a belt in his hand.  He attempt to hit but his sister was guarding me.  She stood in front of me.  [The applicant] had the belt in his left hand and he moved his left hand outwards and I felt the belt hit my right leg.  It was not overly painful because I was wearing clothes.  He tried hitting me again and again.  He kept talking to me whilst holding the belt and his sister between us.  Things eventually settled down however I am scarred (sic).  I did not give my husband permission to hit me.  He makes me feel scarred (sic) emotionally and physically.  I am not comfortable living with him as I fear it will get worse”. 

19. The Tribunal is not making a finding about whether the sponsor actually suffered family violence at the hands of the applicant, and the Tribunal notes that at hearing the applicant denied he had ever hurt the sponsor.  Nonetheless, the Tribunal considered it relevant to put the information to the applicant because he claimed that even after such accusations by his sponsor, he entertained the idea that they could resolve their problems.  These matters are only relevant so far as the applicant’s refusal to advise the Department that the relationship was over sometime in May 2017, as a result of the AVO, leaving the Tribunal to query the motives of the applicant in filing his claims of having been the victim of family violence to the Tribunal at such a late stage, when it was evident to him that his options for remaining in Australia were narrowing.

20. Rather than telling the Department that the relationship was over and that he was the subject of family violence by the sponsor, the applicant told the Department on 19 July 2017, when the relationship was well and truly over, “I hereby confirm the spousal relationship between me and my wife [Ms A] has not ended yet.  It is temporary a misunderstanding and the elders in the family are trying to mediate to save the marriage.  We are attempting to resolve the minor issue as teething problems arise in any family.  We are also trying to organise family dispute resolution process to be in place.  My current circumstances are: a) I am in the process of amicably resolving to resume the marriage life, and b) my family is trying to sort out the issues and save the marriage.  I believe that there is no irretrievable breakdown of the marriage.  Therefore, I need more time before the department make any adverse decision”. 

21. The Tribunal put to the applicant under section 359A of the Act that his refusal to declare to the Department that his relationship was in serious trouble on 19 July 2017, would undermine his credibility about whether his claims to have suffered relevant family violence were genuine.  It was incumbent further, on the visa applicant to advise the Department when his circumstances had changed.  If the applicant had genuine claims of family violence it is unclear why he needed more time to put these to the Department.

22. At hearing the applicant stated that he was ashamed about what were the instances of family violence he had suffered which according to him were but not limited to:

    ·Being forced to get up to provide food for the sponsor in the middle of the night;

    ·Having his penis pulled in a painful way and demanding to be sexually satisfied when the visa applicant was exhausted from working;

    ·Concealing from him that she was on anti-depressants; and

    ·Concealing from him that she had aborted their child on 16 May 2017.

23. The applicant also stated that he did not have a lawyer at the time and was not aware of the Regulations.  As put to the applicant at hearing, however, the Tribunal is unable to see how his feelings of being ashamed would have diminished with time and why he thought he would be able to be open with the Department later about the claimed family violence, rather than earlier.  The Tribunal also has questions as to why the visa applicant needed a lawyer to advise the Department that his relationship had ceased.  Even if the Tribunal accepts that the visa applicant was attempting mediation (and the Tribunal is prepared to do so) it was clear that the issues in respect of the AVO were not “temporary misunderstandings” or that they were trying to resolve minor issues.  If the sponsor had made serious false allegations as set out above, then the Tribunal cannot see how these matters could be considered trifling, especially as put to the applicant under natural justice procedures, the evidence was that the sponsor categorically did not want to continue with the relationship. 

24. These matters are by way of background and are in no way determinative of the review, but they do raise in the mind of the Tribunal questions about the delay in making family violence claims when the applicant did so.

25. There was information also on the Departmental file that was covered by non-disclosure certificates on the basis that it would reveal the identity of other parties and on the basis that departmental investigative procedures might be revealed.  The Tribunal had regard to the certificates but considered that the interests of natural justice in this case were overriding considerations for the Tribunal, as it was important for the applicant to properly be able to make out his case and respond to material on file.  The Tribunal put the information therefore to the applicant under s.359AA but only in very general terms so as not to identify any person or reveal Departmental investigations.

26. What is determinative of the review, however, is whether the visa applicant has, under the Regulations made out a non-judicially determined claim of family violence.  The Tribunal notes that the visa applicant was represented and had assistance in preparing documentation as required, specifically under Schedule 1. 

27. 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).

28. In the present case the applicant is seeking to 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?

29. 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.

30. 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. 

31. 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).

32. The applicant has submitted a statutory declaration signed by himself dated 21 December 2018, stating his lawyers had asked him to go to counselling. He declares that on the basis of the advice of his lawyer he agreed to the terms of the AVO as he understood it was easier to agree to the conditions of the AVO rather than contesting the facts presented by the sponsor.

33. The applicant also sets out the instances of family violence he suffered by the sponsor, including, but not limited to:

    ·The sponsor staying in her room when they were living with the sponsor’s sister and he would say “Go and help my sister”;

    ·Non-disclosure that the sponsor had been on medication for depression;

    ·Waking him to get her food at night;

    ·Unreasonable demands for sexual intercourse;

    ·Non-disclosure of pregnancy;

    ·Cancelling a pregnancy test without the applicant’s knowledge;

    ·The sponsor had taken out an AVO against him and went to the home with a female police officer and took all her things; and

    ·Owing to depression he could not work and had to leave his job.

34. The Tribunal is satisfied therefore that the visa applicant has submitted a statutory declaration and that it conforms to the requirements of r.1.25

35. A non-judicially determined claim of family violence also requires that in addition to his own statutory declaration, the applicant is required to provide two types of evidence by competent persons as set out under Schedule 1, providing prescribed information.  The current instrument, IMMI12/116 specifies that a minimum of two different types of the following be given:

    
    
    

    ·a medical report, hospital reports, discharge summary or statutory declaration made by a registered medical practitioner or nurse, acting in that capacity;

    ·a report, record of assault, witness statement or statutory declaration made by a police officer;

    ·a witness statement made by someone other than the alleged victim or a police officer during the course of a police investigation;

    ·a report or a statutory declaration by a child welfare authority officer or a child protection authority officer;

    ·a letter or assessment report (on letterhead) from a women’s refuge or a family violence crisis centre;

    ·a statutory declaration made by a member, or person eligible to be a member of the Australian Association of Social Workers who has provided counselling in that role to alleged victim;

    ·a statutory declaration made by the alleged victim’s treating registered psychologist;

    ·a statutory declaration made by a family consultant appointed under the Family Law Act 1975 or a family relationship counsellor who works at a Family Relationship Centre listed on the Australian Government Family Relationships website;

    ·a statutory declaration or letter (on letterhead) made by a school counsellor or principal acting in that capacity.

36. In this case the applicant is relying on a medical report made by the applicant’s general practitioner as well as a psychologist’s report.

37. The Tribunal has had regard to the [GP’s] report dated 13 December 2018, which states that the practitioner has been seeing the visa applicant since June 2018 for management of adjustment disorder with depressed/anxious mood and that he was referred to a psychologist for further therapy.  [Dr C] wrote, among other things, “Still he is symptomatic due to the past marriage relation psychological trauma”. 

1. Under Schedule 1 of the Regulations the medical report is required to identify the alleged victim; and detail the physical injuries or treatment for mental health that is consistent with family violence.  The Tribunal is therefore satisfied that this evidence from the general practitioner is valid, even if the Tribunal has reservations about the motivation by the applicant for seeking the report in June 2018, well after the Department made its decision on 12 March 2018, and given the applicant did not reveal to the Department the extent of his difficulties with the sponsor, and given that the relationship had actually ceased in May 2017.

2. In terms of the second type of evidence submitted by the applicant it is from a registered psychologist, [Ms D], dated 26 November 2018.  This is by way of a report.  It states that she had seen the applicant between 2 July 2018 and 22 October 2018 for ten sessions regarding the issues relating to adjustment disorder, which were shock, traumatic grief, “heart-broken”, sleep disturbance, over-thinking, shame, social withdrawal and domestic violence concerns.  [Ms D] concludes:

   Based on the information provided to me during the ten psychology consultations, coupled with [the applicant]’s clearly distressed the (sic) emotional state, it is my clinical judgement that this is a man that has been through considerable emotional, psychological and physical/sexual abuse, in both during the course of, and in the sudden conclusion of this marriage.

3. Schedule 1 stipulates that if a competent person by way of a registered psychologist is providing evidence, it must be in the form of a “Statutory Declaration”.  It also needs to set out:

   ·In their opinion the alleged victim was subject to family violence, and

   ·Details the reasons for the opinion, and

   ·Identifies the alleged perpetrator.

4. The report provided by [Ms D] is not in the form of a statutory declaration as required.  The Tribunal notes that the applicant has had a good deal of time since the Department’s decision in March 2018 to make out his case according to the requirements of the regulations, this is particularly so as he is being represented by a migration agent.  As the report does not meet the requirements for r.1.24, the application for review fails.

5. There are other concerns the Tribunal has with the report submitted.  Clearly,

   
   

   [Ms D] has not undertaken any psychometric testing to reach her conclusions, relying instead on the applicant’s account and his “distressed emotional state”.   While this does not render the report invalid, it does raise questions about the methodology of arriving at her reasons for her opinion. 

6. The report also does not strictly identify the alleged perpetrator, referring to the applicant’s “wife” only.

7. Therefore, the evidence presented does not meet the requirements of r.1.24. As such, a non-judicially determined claim of family violence has not been made under r.1.23.

8. 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

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

   Rosa Gagliardi
   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.