1822149 (Migration)

This matter concerned an appeal by an applicant for a Partner (Temporary) (Class UK) visa, Subclass 820, against a decision of the Department of Home Affairs to refuse her application. The applicant, an Indian national, had applied for the visa while in Australia, sponsored by an Australian citizen. The parties married in Australia and subsequently in India, and commenced living together in Australia. The applicant later advised the Department that the relationship had broken down due to domestic violence, providing a Final Apprehended Domestic Violence Order (AVO) issued by a court. The Department refused the application, not being satisfied that the applicant was the spouse of the sponsor at the time of application and therefore not considering her family violence claims.

The Tribunal was required to determine whether the applicant met the criteria for the Subclass 820 visa, specifically whether she was the spouse or de facto partner of the sponsor prior to the cessation of their relationship, and whether her claims of family violence were sufficiently substantiated. The Tribunal also had to consider the implications of the applicant's current location outside Australia, given that a requirement for the visa grant is that the applicant be in Australia.

The Tribunal reasoned that the evidence presented, including statutory declarations, tenancy agreements, travel documents, and wedding photographs, supported the existence of a genuine relationship between the applicant and the sponsor prior to its cessation. The existence of a Final AVO was considered significant in substantiating the claim of family violence. The Tribunal concluded that the short duration of the relationship and the occurrence of violence did not preclude the relationship from being genuine. Furthermore, the Tribunal noted that the Department's decision was made without a full hearing of the family violence claims. Consequently, the Tribunal remitted the application for reconsideration, directing that the applicant be considered to meet the criteria for the Subclass 820 visa, specifically cl.820.211 and cl.820.221(3) of Schedule 2 to the Migration Regulations 1994. The Tribunal also indicated that consideration should be given to allowing the applicant an opportunity to return to Australia before a final decision is made, unless she could progress directly to the permanent Subclass 801 visa.