1825283 (Migration)

This matter concerned an application for a Partner (Migrant) (Class BC) visa, Subclass 100 (Spouse). The applicant claimed that their relationship with the visa sponsor had ceased and that they had been a victim of family violence. The Tribunal was satisfied that the applicant and sponsor had been in a genuine partner relationship after the applicant arrived in Australia on a Subclass 309 visa, and that this relationship had since ceased. The central issue before the Tribunal was whether the applicant had suffered family violence committed by the sponsor, as defined by the Migration Regulations 1994.

The Tribunal was required to determine whether the applicant's claim of family violence met the criteria set out in the Migration Regulations 1994, specifically regulation 1.23, which outlines the circumstances under which a person is taken to have suffered or committed family violence. This included considering whether the claim was judicially determined or a non-judicially determined claim, and if the latter, whether the evidence presented satisfied the requirements, including the potential need for an independent expert's opinion. The Tribunal also had regard to the judgement in *El Jejieh v MICMSMA* [2020] FCA 1103, which affirmed that a Subclass 309 visa serves as evidence of a spousal relationship.

The Tribunal found that while the applicant had provided evidence supporting their claim of family violence, including statutory declarations and medical and psychological reports, this evidence was inconsistent and unreliable. The Tribunal noted that for a non-judicially determined claim of family violence, if the Minister or Tribunal is not satisfied with the presented evidence, the opinion of an independent expert must be sought and taken as correct. Given the inconsistencies in the evidence, the Tribunal concluded that it could not be satisfied that the applicant had suffered relevant family violence based on the material before it.

Consequently, the Tribunal remitted the application for reconsideration. The direction for reconsideration was that the applicant meets the criteria specified in clauses 100.221(4)(b) and (c) of Schedule 2 to the Regulations, implying that the issue of family violence would need to be further assessed in accordance with the Regulations.