1811666 (Migration)

[2021] AATA 3257

1811666 (Migration) [2021] AATA 3257 (7 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1811666

MEMBER:Meredith Jackson

DATE:7 June 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 visa:

·cl.801.221(6)(b) and (c) of Schedule 2 to the Regulations.

Statement made on 07 June 2021 at 11:42 am

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – subclass 801 – suffered family violence committed by the sponsor – no contemporaneous supporting evidence – cultural reluctance to disclose information – more evidence provided at second IE assessment – use of interstate service providers due to language requirements – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5F, 65

Migration Regulations 1994, Schedule 2, cls 1.23(10)(c)(i), 801.221(6)(b), (c)(i), rr 1.21, 1.22, 1.23, 1.24, 1.25

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 5 April 2018 to refuse to grant the [applicant], a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 4 February 2014 on the basis of her relationship with her [sponsor]. At that time, Class BS contained Subclass 801. The criteria for the grant of this visa are set out in Part 801 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.801.221 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.801.221(6)(b), (c)(i). The applicant claims this occurred in this case.

4.    The applicant appeared before the Tribunal in a video hearing on 15 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from witnesses [Friend A], a friend of the applicant; and [the] applicant’s sister. The applicant was represented in relation to the review by her registered migration [agent]. The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5.    For the following reasons, the Tribunal has concluded that the decision under review should be remitted for further consideration.

BACKGROUND TO THE REVIEW

6.    The applicant provided the delegate’s decision to the Tribunal. It records that the delegate refused to grant the visa on the basis that the applicant did not meet cl.801.221 because the applicant had not established that she had suffered family violence committed by her sponsor; and could not satisfy subclauses 801.221(4) and (6).

7.    The delegate stated that Division 1.5 of the Regulations makes detailed and specific provisions for deeming when family violence is taken to have occurred. The decision records that the Regulations provide that a person is taken to have suffered family violence if specified evidence were provided, that is, (i) court records of an injunction, order, conviction indicating that there has been family violence against the alleged victim by the alleged perpetrator (judicial evidence); or (ii) a minimum of two items of evidence as specified by the Minister in legislative instrument IMMI 12/116 or a joint undertaking to a court that the alleged victim has suffered family violence from the alleged perpetrator (non-judicial evidence). The delegate was satisfied that the applicant was the spouse of her sponsor prior to the relationship breakdown and claims of family violence. The decision records that on 4 May 2017 and 15 May 2018, [the applicant] submitted to the Department via her migration agent, documentary evidence to support her claim that she had suffered family violence committed by the sponsor.

8.    The decision states that having considered the non-judicial evidence provided, the delegate did not consider that the applicant had suffered relevant family violence. On 5 January 2018, the delegate referred the matter to an independent expert (IE) as required by clause 1.23(10)(c)(i).

9.    The IE opinion dated 19 February 2018 found the applicant had not suffered relevant family violence as defined in cl 1.21 of the Regulations. The opinion was provided to the Department and subsequently referred to the applicant for comment. On 3 April 2018, the applicant responded to the opinion, stating that she did not believe that the IE could form a view on family violence on the basis of one appointment. She also stated that she was of the belief that the IE only considers physical violence and not emotional and psychological violence. The applicant was duly invited by the Department to provide new evidence relevant to her family violence claim. The decision records that she did not provide such evidence and as a result, her case was not referred back to the IE for reassessment.

ISSUES AND LAW

Were the parties in a spousal or de facto relationship?

1. In the present case, the applicant claims the relationship with [the] visa sponsor, has ceased and she has been the victim of family violence.

2. ‘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 a married couple 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).

3. An applicant must, at time of decision, satisfy clause 801.221 of the Regulations. Clause 801.221 (2) requires that an applicant is sponsored by an eligible person and is the spouse (as defined under section 5F of the Act) or de facto partner (as defined under section 5CB of the Act) of that sponsor. The Tribunal is satisfied a spouse relationship existed in this case.

4. The applicant does not dispute that the relationship has broken down and that she is no longer in the relationship with the sponsor. She is therefore unable to satisfy a central requirement of subclause (2) of clause 801.221. An applicant may also satisfy clause 801.221 by meeting the requirements of at least one of subclauses (2A), (3), (4), (5), (6), or (8).

5. Subclauses (4) and (6) require that the relationship has ceased and that either the applicant or a dependent child has suffered family violence committed by the sponsoring partner; or there is a child to whom both the applicant and sponsoring partner have obligations in the nature of custody and/or contact/access. There is no evidence before the Tribunal that there is a child of the relationship.

6. The delegate’s decision states that on 20 March 2017, the applicant advised the Department, via her migration agent, that the relationship had broken down. On 4 May 2017, the applicant advised the Department in writing that she was a victim of family violence perpetrated by her sponsor. The evidence included a Statutory Declaration by the applicant dated 12 April 2017; a Family Violence Assessment Report by [a] caseworker at [service provider], dated 4 May 2017; and a Statutory Declaration by [a] psychologist, dated 24 April 2017.

7. On the basis of the evidence, the Tribunal is satisfied the applicant and the sponsor were in a spousal relationship and that this relationship has ceased. The issue that arises on the evidence in this case, therefore, is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.

8. 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).

9. In the present case the applicant is seeking 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?

1. 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.

2. 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 (IMMI12/116).

3. 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 declarant: r.1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: r.1.25(3).

4. Prior to the hearing, the applicant provided to the Tribunal a Statutory Declaration for Family Violence Claim dated 9 April 2021, naming [the sponsor] as the perpetrator and outlining her circumstances prior to and during the marriage to [the sponsor], and the factors that led to its breakdown. It describes events extending from the day the parties met, on 15 January 2013 to the day the applicant moved out of the family home on 15 February 2017. It also describes the applicant’s circumstances after she moved out of the family home and at the time of review.

5. Prior to the hearing, the applicant provided a statutory declaration and Social Work Assessment Report dated  from [Ms B] of [name deleted] Counselling, based in New South Wales. The applicant also provided a statutory declaration and a Confidential Psychological Report dated 30 January 2019 prepared by [Dr C], a clinical psychologist and counselling psychologist based in Victoria.

6. All three documents post-date the delegate’s decision. During the hearing, the Tribunal raised that it noted the applicant lives in Queensland, but it appeared she was receiving treatment or support from health practitioners in other states. The Tribunal questioned why the applicant had not undertaken treatment closer to home. The applicant stated, with a helpful clarification from her representative, that this was because of the specialist cultural expertise of the providers and the lack of availability of similar facilities in Queensland. [Dr C] conducted sessions in the applicant’s Vietnamese language; and [Ms B] used the same Vietnamese interpreter for all sessions.

7. In order that the applicant may further address the Tribunal’s question about receiving treatment or support only from interstate providers, the Tribunal granted the applicant seven days from the date of the hearing to provide additional evidence in support of her case. On 21 April 2021, the applicant, through her migration agent, provided a newly-issued letter from [Dr C] (now) of [named business]. It states the dates on which she treated the applicant extend from 5 October 2018 to 25 March 2021. The letter states the counselling sessions “were conducted in Vietnamese and she continues to attend the clinic for regular psychological counselling in relation to her experiences of family violence from her [ex-husband].” A newly issued statement from [Ms B] stated that she had been providing sessions with the assistance of a Vietnamese interpreter since 15 August 2019. The applicant’s migration agent also provided a further submission on the case, advising the Tribunal that after the hearing, the applicant “felt emotionally depressed” and sought out [Ms B] for help. The submission noted that the Australian Government had issued a brochure stating that the government “has zero tolerance for family and domestic violence against anyone in the Australian community, including permanent and temporary visa holders”.

8. Pursuant to the requirements of r.1.25(2), the Statutory Declaration for Family Violence Claim provided on 9 April 2021 by the applicant sets out an allegation that [the sponsor] committed family violence against her from the time that the couple began cohabiting on their own in January 2015. In broad summary, this claims: that the sponsor’s behaviour began to change once they lived alone; he became dominating and critical of the way she dressed, how she ate and how she appeared; he restricted her movements by refusing to allow her to drive a car because she would crash it and have to go to jail if she could not pay; he would not confide his work situation to her; and he would force himself on her sexually while she was asleep; he threatened her with immigration consequences if she did not comply with his demands and demanded she pay half the rent. On 14 November 2016 after a dinner out, he demanded sex and when she rejected him, he “got aggressive and kicked me on my leg”, and implied that she should “get the [expletive] out of my house before I do something to you”, and referred to an ex-girlfriend who had “paid the consequences”. On 9 February 2017 she sought help from her friend and the Vietnamese community, who advised her to move out for her own safety and referred her to a social worker and a psychologist, who began seeing her and she agreed with the advice to leave him. After she left, with the help of her [friend], she resisted his frequent calls to return to him because he was “too controlling and too scary”. She now fears the sight of people who resemble him as she is worried one day it will be him.

9. The applicant also stated that at the time she had difficulty confiding in her family, and to the expert the Department required her to see. She said she was “fearful, nervous and extremely uncomfortable” retelling the IE what had happened to her, as she was not in her right mind at the time. She also felt the IE did not understand her cultural perspective, as the IE was Caucasian. She states: “I believe that I am a victim of family violence, because my husband had been physically, verbally and sexually abusing me on a daily basis during the time that we both were living [together]. The amount of time that I have been abused by [the sponsor] have made me feel distressed and emotionally depressed. Up until today, I am still shocked and emotionally depressed because of what my husband [did] to me. I am still fearful and paranoid that [the sponsor] would find out where I live and work. I am even scared to pick up a private number.”

10. The Tribunal notes the information described above was not provided to the Department prior to the delegate’s decision. The Tribunal is satisfied it is evidence of a type and number specified by the Minister in the relevant instrument (IMMI12/116).

Other evidence provided in support of the family violence claim

1. The applicant provided prior to the hearing additional written declarations in support of her claim. She provided a statement from her mother[of] Vietnam, dated 7 April 2021. The statement summarises the development of the relationship from her perspective, including that her daughter began reporting changes in the sponsor’s temperament a year after the marriage. She states that when her daughter returned to see her at the end of 2016, she was distressed and crying, but she advised her daughter to persist with the marriage. She heard that her daughter moved out in February 2017 and she was very guilty about the breakdown, and regrets “giving her daughter to a husband who was so abusive”.

2. The applicant provided additional statutory declarations from her friends [Friend A] and [a second friend], who aided the applicant when she was moving out of the home. The Tribunal has considered the statements and affords them some weight.

Oral evidence provided at hearing

1. At the hearing the applicant gave evidence that the visa, in her view, was refused because during the interview with the psychologist she was not open enough to express her emotions and concerns, therefore some information was missing. She was at the time in shock and anxiety and worried and could not express herself to complete effect.

2. Her circumstances, she stated, were that she came to Australia as a student to do English, but did not continue, because in 2010 she began studying a diploma course at [a] university. She was still studying at the time of the marriage; after getting married she ceased. “At that time I was a married woman and I had the traditional conservative mindset that married women should not bother with education, so I thought I would look for a fulltime job and then plan children.”

3. She said her husband had engaged in “mental violence” against her: he put constant pressure on her about doing physical activity seven days a week and if she did not follow requests he would scream, get upset and tell her she was disobedient; he would do that until she agreed; even though it was against her will; she only wanted to go to the gym three or four days a week. He belittled her about being fat and told her to follow his example. He also said she should dress more like an Australian, by being more revealing and sexier. She felt ashamed and did not feel confident about her appearance but followed his demands because her family told her she needed to obey her husband and behave obediently. He often tried to control her diet and food; he would only allow two spoons of rice and told her to eat meat and vegetables for her appearance. That diet was not enough for her, she said, and she felt hungry but because of his character, she just quietly followed his orders.

4. The applicant stated there was also physical violence, in that he would pin her down, hold both her hands, and force sexual activity on her and she suffered bruises to both hands as a result. She did not report to police, or see a doctor, because that would be very embarrassing. At that time she also thought it was her duty to satisfy her husband.

5. After forced sexual activity, the applicant stated, on 25 December 2016 she flew to Vietnam, after becoming concerned by his statement that if he was denied sex, he would treat her the same way as he treated his ex-girlfriend. She had asked him what he did to her, and he said it was not my [expletive] business and to just follow his orders. She returned to him briefly in January 2017 because her parents told her to make concessions; that these are things that arise between husband and wife. He had not changed, however, she claims; when she returned to him, he had said “just look at you, you are fatter than before”. He threatened her again with the ex-girlfriend claim. She moved out in February 2017.

6. Witness [Friend A] and [the applicant’s sister] gave evidence in support of the applicant’s claims. The Tribunal notes that the applicant’s sister [also] stated that she had seen bruises in early 2016. [The applicant’s sister] stated: “In 2016 I had a holiday trip to Australia and I stayed with them, I witnessed several things I did not expect. I found out that [the sponsor] was a dictator, he got upset and did not listen to his wife’s emotions and desires. He often made insulting remarks and complained about many things, about her English, appearance, physical appearance and sexual relations. Regarding the sex, my sister told me about that, but I witnessed the other examples.  In 2016 when I saw these problems, I told my sister to go to the Police; I said Australia is a civilised country with women’s protection, but she was terrified her husband would assault her and punish her physically. The Tribunal asked if she had ever seen bruising on her sister’s arms, and she stated that she had, recalling, albeit with some vagueness despite prompting by the Tribunal for specifics, that this was in early 2016. The Tribunal said to the applicant that it was concerned that she had not raised two instances of bruising, only one, in late 2016. The applicant contributed at this point that there had been two instances of bruising, but she had only mentioned one to the Tribunal. She had not told her sister about it; her sister worked it out for herself.

1. The Tribunal has considered the applicant’s account of the circumstances in her marriage and whether she became a victim of family violence. Speaking with the aid of the interpreter, the applicant was a clear and concise witness, who provided an account consistent with her claims to the Department. There was also consistency in the evidence of the applicant, the health professionals, the providers of statutory declarations and friend and witness, in oral or written evidence. The Tribunal noted one particular inconsistency, which it raised with the applicant, in the evidence given by [the] applicant’s sister, which was sufficiently ambiguous about a bruising incident to be entirely credible. It bears emphasis that, after it was given, the applicant’s own account changed after she heard her sister’s evidence, to accommodate her sister’s remarks about when she had witnessed bruising. In addition, her sister stated that the applicant was in Vietnam in January 2017 for a holiday, whereas the applicant had indicated in her oral evidence, given separately, that she went to Vietnam to get away from her husband. The applicant stated she was bruised in the late 2016 sexual incident and that is why she went to Vietnam. Her sister, however, stated she saw wrist bruising when she visited her in 2016.

Has the applicant suffered family violence?

1. After the applicant had submitted all supporting evidence, the Tribunal carefully considered all the evidence before it. Taking into account the entirety of the evidence provided, the ambiguous statements about bruising and when it occurred notwithstanding, on balance, the Tribunal reached a conclusion that the applicant was likely to have been subjected to considerable physical and psychological violence and intimidation in her relationship. The Tribunal noted, however, that the applicant’s claim is not supported by a Police or medical report of contemporaneous value. The Tribunal also noted that the applicant did not seek, on her evidence, the support of Police or other authorities at any stage of the relationship and not at the time of the breakdown. She claims to have relied instead on what she terms the Vietnamese community, and two providers in external states, while she might logically have sought professional or other formal and in-person support locally, for example from a medical doctor, Police or other health and well-being professionals. While it is open to any applicant to seek expertise wherever she chooses, particularly if the issues are culturally sensitive, it remains puzzling that the applicant did not seek out support in her own locality. On balance, however, the Tribunal, having carefully considered all the evidence before it in both oral and written submissions and in Tribunal and Department files, concluded that the evidence was sufficient to raise a concern that family violence had occurred and that the applicant, in her interview with the IE to whom she was initially referred by the Department, had exercised restraint in providing details about her unsuccessful personal relationship and this was due to her personal embarrassment and related, cultural reasons about marital obedience. The Tribunal notes that the applicant was given an opportunity by the Department to provide new evidence relevant to her family violence claim and it was open to her to do so, but she did not provide such evidence and as a result, her case was not referred back to the IE for reassessment. The Tribunal concludes, on balance, that the applicant has now overcome her reluctance to provide new evidence and it is clearly of higher quality than that she provided to the referring IE.

2. Regulation 1.23(10)(c)(ii) provides that the Minister (or the Tribunal on review) must take an independent expert’s opinion on whether the alleged victim has suffered relevant family violence as 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. Once the Tribunal has determined that the expert’s opinion was properly made it is bound to accept it and find in accordance with it.

3. The Tribunal in forming a view in the matter, duly considered the findings of the initial IE report provided to the Department and was satisfied that there was sufficient new evidence before the Tribunal to warrant a further IE report. On 12 May 2021, in accordance with the Tribunal’s referral processes, the Tribunal referred the matter to an independent expert (IE) and sought an opinion.

Independent Expert Opinion

1. Where an independent expert opinion sought concludes that the applicant has suffered relevant family violence, and the Tribunal is satisfied that part of the violence occurred while the claimed partner relationship existed, the alleged victim is taken to have suffered relevant family violence.

2. On 4 June 2021 the Tribunal received the report of the IE to whom it referred the matter. The Tribunal records that the report includes a reference to an issue which occurred at the start of the interview conducted with [the applicant], which is that initially, an employee from [the applicant]’s legal representative’s office was noticed to be sitting with [the applicant] out of sight. According to [the applicant]’s statement to the IE, this individual was in the room to assist with any technical issues. This matter was resolved, and the assessment proceeded with [the applicant] privately. The IE report noted that [the applicant] engaged willingly throughout the interview and responded to all questions asked, and that she appeared to provide an honest account.

3. The IE assessed the applicant’s claims and found that relevant family violence, such that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own personal wellbeing or safety, has occurred in the applicant’s case. The IE was satisfied that the alleged perpetrator’s conduct was both actual and threatened and was “directed towards the alleged victim”. The IE took into account the initial IE assessment but considered the additional information before it warranted those conclusions. The IE provided reasons for its conclusions and acknowledged the applicant’s argument that she was reticent in her initial IE interview because she did not want “outside people” knowing her personal issues, or to “hang out her dirty linen in public”. The IE accepted that since she has had the help of her psychologist, she was more forthcoming, to the extent that the IE found her argument about reluctance to be plausible. The IE had no major concerns about the applicant’s credibility and referred the matter to the Tribunal to determine whether family violence took place during the relationship.

4. The Tribunal has considered the June 2021 IE report in the context of the entirety of the evidence. The Tribunal accepts both IE opinions were properly made and also that the second IE opinion took account of new evidence provided at interview by the applicant. The Tribunal notes that the second IE found the new evidence to be credible and that family violence was evident within the relationship. The Tribunal notes that the IE’s report concerning the credibility of the applicant’s account is consistent with the level of credibility that the Tribunal found the applicant demonstrated in the hearing. The Tribunal has considered its one reservation, that the applicant appears to be advised by persons, including but not limited to her [sister] whose evidence was distinctly at odds with the applicant’s account on at least one occasion and this created some doubt about the validity of both persons’ evidence. However the Tribunal notes that the IE found the applicant’s own evidence to be plausible and credible overall, and that this is consistent with the Tribunal’s own observation at the hearing that she was a dignified and shy witness who was inhibited by her profound embarrassment. The Tribunal finds this aspect outweighs any remaining concern the Tribunal has about the credibility of statements made by others.

5. The Tribunal accepts the IE’s conclusion that the applicant suffered relevant family violence and that the violence occurred while the claimed partner relationship existed.

6. Having considered all the evidence before it, the Tribunal is satisfied that the applicant has suffered relevant family violence within the relationship.

7. Accordingly, the Tribunal finds for the purposes of r.1.22, that the applicant is taken to have suffered family violence committed by the sponsor.

8. As the relationship between the applicant and sponsor has ceased, and the applicant has suffered relevant family violence committed by the sponsor, the applicant meets the requirements of cl.801.221(6)(b) and (c). Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

DECISION

1. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 visa:

   · cl.801.221(6)(b) and (c) of Schedule 2 to the Regulations.

Meredith Jackson

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

1. 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.

2. 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

1. 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.

2. 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

1. 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.

2. 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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.