1836629 (Migration)

1836629 (Migration) [2023] AATA 795 (20 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1836629

MEMBER:Justine Clarke
DATE:20 March 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:
·cl 820.211(1) of Schedule 2 to the Regulations; and
·cl 820.221(3) of Schedule 2 to the Regulations.

Statement made on 20 March 2023 at 11:54am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – relationship ceased – genuine and continuing relationship before family violence – application for divorce – lengthy physical separation – extended cohabitation in Vietnam before visa application – joint travel and social activities – support from the sponsor’s family – abandonment by the sponsor – genuine spousal relationship at the time of application – family violence committed by the sponsor – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.15, 1.21-1.25
CASES
He v MIBP [2017] FCAFC 206
Li v Minister for Immigration [2007] FMCA 454
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139
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

This is an application for review of a decision made on 3 December 2018 by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 9 August 2016, the applicant, who is a national of Vietnam, applied for the visa based on her relationship with her sponsor, [Mr A]. At the time of application, the visa applicant was aged [age] years, and the sponsor was aged [age] years. At the time of this decision, the visa applicant is aged [age] years.
At the time that the applicant lodged the application for the visa, Class UK contained Subclass 820. The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Relevantly to this matter, the primary criteria include cl 820.211 and cl 820.221 which respectively require that, at the time of application and decision, the applicant is the spouse or de facto partner of the sponsor, unless the relationship has ceased and certain circumstances exist. These circumstances include that the applicant, or a member of the family unit, has suffered family violence committed by the sponsor: cl 820.211(8) or (9) and cl 820.221(3)(a) and (3)(b)(i). The applicant claims this occurred.
The applicant provided the Tribunal with a copy of the delegate’s refusal decision (the primary decision). The delegate acknowledged that, on 30 April 2018, the applicant had advised the Department that her relationship with the sponsor had broken down and he was seeking a divorce. The delegate assessed the application pursuant to cl 820.211(2), finding it to be the only subclause relevant to the applicant’s circumstances. The delegate acknowledged that the applicant claimed to be the victim of family violence. However, the delegate did not assess this claim. Rather, the delegate refused to grant the visa on the basis that the applicant did not meet cl 820.211(2)(a) because the delegate was not satisfied that, at the time of application on 9 August 2016, the applicant and the sponsor were spouses as defined in s 5F of the Act. Essentially, the delegate considered that there was insufficient evidence in support of the claimed relationship. The delegate made no findings in respect of the time of decision criterion in cl 820.221.
On 13 December 2018, the applicant applied to the Tribunal for the review of the primary decision. The applicant was represented in relation to the review by her current husband, [Mr B].[1] [Mr B] is not a registered migration agent.
[1] A copy of the marriage certificate was provided in this review.
On 2 December 2022, the applicant appeared, in person, before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence, in person, from [Mr B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The interpreter also attended the hearing in person.
At the hearing, the Tribunal discussed with the applicant that, to successfully establish a claim of non-judicially determined family violence, she needed to provide the evidence referred to in reg 1.24 and the Tribunal provided her with a hard copy print out of IMMI 12/116. The Tribunal explained that the psychological report prepared by [Ms C] on 7 September 2018, which was also before the delegate, does not meet the relevant requirements. Mindful of the difficulty in obtaining statutory declarations from registered psychologists and social workers over the Christmas and summer period, the Tribunal granted the review applicant until 3 February 2023 to file further evidence in support of her case.
On 23 and 27 January 2023, the applicant filed further evidence.
On 28 February 2023, the Tribunal wrote to the applicant to request that she provide a statutory declaration made be herself, as required by reg 1.24.
On 7 March 2023, the applicant submitted her statutory declaration made earlier that day.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The primary criteria to be satisfied at the time of application are that the applicant is not the holder of a Subclass 771 (Transit) visa and that she meets one of the alternate requirements set out in cl 820.211(2), (5), (6), (7), (8) or (9): cl 820.211(1).
The Tribunal has reviewed the applicant’s movement records which also detail her visa status at various times. The Tribunal is satisfied that, at the time of application on 9 August 2016, the applicant was not the holder of a Subclass 771 (Transit) visa. Therefore, the Tribunal finds that cl 820.211(1)(a) is met.
The subclause relevant to the applicant’s circumstances is cl 820.211(2). The key issue for determination is whether, at the time of application, the applicant was the spouse of the sponsor. As has been explained, the delegate was not so satisfied.
Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. In making findings about the status of the parties’ relationship at the time of application, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application.
In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl 820.221 as well.
TIME OF APPLICATION REQUIREMENTS
Whether the parties were in a spouse or de facto relationship
Clause 820.211(2)(a) requires that, at the time the visa application was made, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.
The applicant claims that, as at 9 August 2016, which is when she applied for the visa and up until the cessation of the relationship, she was the spouse of the sponsor who is an Australian citizen. The Department’s file contains a certified copy of the sponsor’s registered birth certificate and a copy of the bio-pages of the sponsor’s Australian passport. From the evidence before it, the Tribunal is satisfied that the sponsor is an Australian citizen by birth.
‘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).
In forming an opinion about these matters, regard must be had to all the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each specific matter contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.
Were the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. [In] April 2013 (which was around three and a half years before the applicant applied for the visa), the applicant and the sponsor married each other in [Town 1], New South Wales. A copy of their registered marriage certificate is on the Tribunal’s file. Based on this evidence, the Tribunal finds that the applicant and the sponsor were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).
Were the other requirements for a spouse relationship met?
In order to make the requisite findings about the reg 1.15(3) matters and the s 5F(2)(b)–(d) requirements, the Tribunal has had regard to all the documents on the Department’s file and on the Tribunal’s file and to the oral evidence given at the hearing.
This is not a case where the Tribunal has had the benefit of further documentary evidence in support of the relationship than what had been before the delegate. Rather, this is a case where the Tribunal has had the benefit of hearing the applicant give her oral evidence, in person, over a number of hours. The Tribunal found the applicant to be very credible in giving all her evidence. Accordingly, the Tribunal accepts her oral evidence that she is unable to provide further documentary in support of her relationship with [Mr A] because she was so distressed by [Mr A’s] actions that she burnt ‘everything’.
Regulation 1.15A(3) matters
The financial aspects of the relationship
Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant matters to consider when assessing the financial aspects of the relationship.
There is no clear evidence before the Tribunal that at any point in time in the relationship—namely, before the application for the visa was lodged, when the applicant and the sponsor were living in Vietnam, or after the application for the visa was lodged, when the applicant was living in Australia—the applicant and her sponsor jointly owned real estate or other major assets, that they had any joint liabilities, that one person in the relationship owned any legal obligation in respect of the other, that the parties shared their financial resources or that they shared their day-to-day household expenses.
It appears that, for most of the time after the applicant applied for the visa, the applicant and her sponsor were living in different countries, and that there was only one short period of physical contact (discussed later in these reasons). Accordingly, the Tribunal acknowledges that the parties’ physical separation means that they had limited opportunities to share their day-to-day household expenses.
At the hearing, the applicant told the Tribunal that, during the relationship, she shared her financial resources with the sponsor but that he did not share his money with her. She said that he had paid rent as well as electricity and water bills. The Tribunal presumes that the applicant gave this evidence in respect of the parties’ arrangements when they were living in Vietnam. The applicant said that she had no documentary evidence in support of her claims because she had destroyed them.
The Tribunal considers that there is no strong evidence of the financial aspects of the relationship. Accordingly, the Tribunal gives this matter no weight. In reaching this conclusion, the Tribunal is mindful that each of the matters in reg 1.15A(3)(a)–(d) are not ‘criteria’ which must be ‘met’. See Li v Minister for Immigration [2007] FMCA 454, Riley FM at [70]–[72]. The attribution of no weight with respect to the financial aspects of the relationship in no way precludes the Tribunal from finding that, at the time of application up until the cessation of the relationship, the parties were in a spousal relationship.
The nature of the household
Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters to be considered when assessing the nature of the household.
There is no evidence before the Tribunal that, at the time of application or thereafter until the cessation of the relationship, the applicant and the sponsor were jointly responsible for the care and support of any children.
In the primary decision, the delegate had been critical of the fact that the applicant had ‘not provided any evidence of a relationship be it negative or positive’ with the sponsor’s four children from his previous relationship/s. The Tribunal takes a different view. The Tribunal has noted the age of each of the four children (their names and dates of birth are given in the applicant’s completed Form 47SP which is on the Department’s file). At the time of application, each of the sponsor’s four children was an adult, being aged [specified ages] years respectively. Given that each person was an adult, it is not surprising that there was no joint responsibility for the care and support of these persons. Importantly, it is not a requirement that the applicant have any relationship with them, so the absence of evidence about her relationship or otherwise with them is not the reason or a part of the reason to affirm the decision under review.
At the hearing, the applicant gave very credible oral evidence that, before arriving in Australia and applying for the visa, she and the sponsor had lived together in Vietnam and that it had just been the two of them living together at the property. She told the Tribunal that, after arriving in Australia and applying for the visa, she and the sponsor had lived together for two days only. She also gave credible oral evidence about why this was so (detailed later in these reasons).
There is also no evidence before the Tribunal to suggest that, at any stage of the relationship, there was any sharing of the responsibility for housework. At the hearing, the applicant told the Tribunal that, when they had lived together (the Tribunal presumes that the applicant was talking about the lengthy period that they lived together in Vietnam), she had done everything.
While there is no photographic or third-party oral evidence to corroborate the applicant’s claims about the living arrangements of the persons and the responsibility for housework, the Tribunal found the applicant to be very credible and accepts her oral evidence in this regard.
The Tribunal gives a little weight only to the evidence of the nature of the household.
The social aspects of the relationship
Whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.
In the primary decision, the delegate acknowledged the photographs and travel bookings that had been submitted which evidence that, prior to applying for the visa, the parties had met each other’s families and friends, had travelled together and had undertaken some joint social activities. However, the delegate was critical that such evidence related to ‘the past’ and that there was no convincing evidence of a committed, ongoing spousal relationship.
At the hearing, the applicant gave very credible oral evidence that the relationship had been known and accepted by each of their families. She told the Tribunal about the marriage ceremonies in Australia and Vietnam with their respective families in attendance, and about a subsequent trip that they both took to Australia,[2] where they had stayed with the sponsor’s family for a few days before his alcoholism caused his family to ask him to leave. She also gave detailed oral evidence about a holiday they had taken to Vung Dau in Vietnam.
[2] From review of the applicant’s and the sponsor’s movement records, this appears to have been from [January] 2015 to [March] 2015.
The applicant said that she remained on good terms with the sponsor’s family members and noted that the ‘little sister-in-law’ had contacted her the day before the hearing to wish her well for the hearing.
The Tribunal also notes the applicant’s consistent evidence, at the hearing and in various written statements, that the sponsor’s niece [Niece A] had shown her kindness after she had arrived in Australia, providing accommodation and helping the applicant to find work.
From all the evidence before the Tribunal, the Tribunal is satisfied that, before applying for the visa, when the parties had been living in Vietnam, they had both represented themselves to other people as being married to each other.
The evidence is that, after the applicant arrived in Australia and applied for the visa, she continued to represent herself as being in a committed, ongoing spousal relationship with the sponsor. In this respect, the Tribunal notes the evidence that the sponsor’s niece [Niece A] assisted the applicant with her application for the visa, even paying for the visa application fee.[3] There is no clear evidence about how the sponsor represented the relationship.
[3] See the completed Form 47SP which is on the Department’s file.
There is no clear evidence about the opinion of the persons’ friends and acquaintances about the nature of the relationship at the time the applicant applied for the visa and thereafter. There is also no clear evidence about the persons having planned and undertaken any joint social activities during this later period.
In another case, the lack of evidence of the social aspects of the relationship may cause the Tribunal to question whether the parties were in a genuine, ongoing spousal relationship. The Tribunal does not have such concerns in this case. The Tribunal has reached this view, in part, because it found the applicant to be very credible.
The Tribunal gives a little weight only to the evidence of the social aspects of the relationship.
The nature of the persons’ commitment to each other
The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long-term are all matters to be considered in determining the nature of the persons’ commitment to each other.
In the primary decision, the delegate stated, ‘[y]ou claim to have been in a relationship with [Mr A] since May 2012 having met through mutual friends when you were visiting Australia. You have stated after your marriage [in] April 2013, [Mr A] moved to Vietnam to be with you’.
At the hearing, the applicant gave credible oral evidence about the inception of the relationship which was consistent with information provided earlier to the Department.

The Tribunal acknowledges and accepts the applicant’s claims about the duration of her relationship with the sponsor from their first meeting in Australia in 2012, the development of a friendship leading to marriage [in] April 2013, up until the clear cessation of the relationship following their last meeting in person in Australia.
With respect to the living arrangements of the persons, the Tribunal notes that the delegate had been very critical of the fact that, since the applicant lodged her application for the visa:
·the sponsor had not moved to Australia to live with the applicant like she claimed that he had said that he would do;
·the sponsor had visited Australia a few times but had not come to see the applicant;[4]
·the applicant had not returned to Vietnam to see or reconcile with the sponsor; and
·the parties had not spent more than two days together.
[4] The Tribunal notes that the sponsor’s movement records suggest that, after the applicant applied for the visa, the sponsor took one trip—not multiple trips—to Australia where he did not seek to meet up with her. This was his trip from [September] 2016 to [October] 2016.
At the hearing, the applicant gave very credible oral evidence about significant developments in the parties’ relationship, including how she had had a serious operation and resulting injury in Vietnam which had left her unable to have sex without incredible pain. She outlined incidents of family violence (discussed later) and explained how the pain she experienced resulted in a number of arguments between them and led to her suggesting that they move to Australia in the hope of rebuilding their relationship.
The applicant’s evidence is that she arrived in Australia on her own[5] and that the sponsor had promised her that he would come to Australia two weeks later but that he did not. She said that, at this point, she called the sponsor’s niece who lives near [Town 2] and the niece invited her to live in her home. (Before this, the applicant had been staying in Queensland). She said that she had had her own room in the niece’s house and that she had hoped that the sponsor would move in with her there, but that he never arrived. She said that, about a year later,[6] the sponsor flew from Victoria to [Town 2] and stayed with her for two nights. She said that he had no money and was not even able to purchase his ticket. She said that he had asked her if she still loved him, that she had replied that she did and had explained that her medical condition meant that she could not have sex without extreme pain. She said that, notwithstanding, the sponsor forced her to have sex with him.
[5] The applicant’s movement records, which are on the Tribunal’s file, evidence that she arrived in Australia [in] May 2016 as the holder of a Visitor visa due to expire [in] August 2016. As has been noted, the applicant filed her application for the visa on 9 August 2016. The sponsor’s movement records evidence that he was offshore at these times.
[6] The applicant told [Social Worker A] that this was in about mid-2017. The sponsor’s movement records, which are on the Tribunal’s file, evidence that this was likely in April 2017.
She said that, after one and a half years of her being in Australia, the sponsor told her that he wanted a divorce. She learned that he had posted on [social media] that he had a pregnant girlfriend. After this time, he called her frequently to request a divorce. She described her agony and suicide ideation at this time. She described interventions by her mother and her mother’s friend [Mr B] (the applicant’s now husband). She said that she decided to agree to the divorce because the woman who was pregnant needed her to do that. She said that, after that, she never saw the sponsor again.
The Tribunal notes that it has reviewed the sponsor’s movement records. From reviewing these records, the Tribunal finds that the sponsor did not return to Australia until [September] 2016, departing Australia [in] October 2016. There is no evidence that the sponsor met up with the applicant during this trip. Indeed, the applicant’s evidence is that he did not. In her signed letter of April 2018 which is on the Department’s file, she stated, ‘[Mr A] has returned to Australia a few times I think’. The records evidence that his next trip to Australia was for the period [March] 2017 to [April] 2017. This was the trip where the sponsor contacted the applicant and they spent two nights together.
The Tribunal notes that in the sponsor’s application for the divorce, a copy of which is on the Tribunal’s file, he stated that they separated on 10 May 2016. However, this conflicts with information he provided in his completed and signed Form 40SP.
Reflecting on all the information and evidence before the Tribunal, the Tribunal takes a different view to the delegate of the information that, after applying for the visa, the applicant and the sponsor lived together for two days only. The Tribunal considers that, in the circumstances of this case, this is not the reason or a part of the reason to affirm the decision under review. The applicant has described herself as having been ‘abandoned’ in Australia and ‘never provided any money’ for support.[7] The Tribunal also notes that the applicant told the registered psychologist [Psychologist A] that ‘she was fearful of him and it suited her to be living in different countries’. In the Tribunal’s view, the sponsor’s inactions and actions from the time the applicant arrived in Australia suggest an abusive relationship—not that there was no relationship.
[7] See her signed letter of 11 September 2018 which is on the Department’s file.
Again, the Tribunal notes that the matters in reg 1.15A(3)(a)–(d) are not ‘criteria’ which must be ‘met’. With respect to living arrangements, the criterion is in s 5F(2)(d): the persons must live together or not live separately and apart on a permanent basis. From the time the applicant applied for the visa until the cessation of the relationship, the parties lived together for two days only. The Tribunal prefers the applicant’s very credible oral evidence that the sponsor had told her that he would be moving to Australia to join her but never did to the sponsor’s general contradictory evidence.[8]
[8] In 2016, the sponsor sponsored the applicant’s application for the visa but later, in his divorce application, he said that they had separated earlier in 2016—before he sponsored the application for the visa.
With respect to the degree of companionship and emotional support that the persons draw from each other, the Tribunal accepts the applicant’s very credible oral evidence that, at the beginning of their relationship, the sponsor had provided her with care and support. However, the Tribunal has formed the view that, after this time, the applicant was the person providing care and support to the sponsor and that it was not reciprocated. Rather, the Tribunal considers that the sponsor’s actions towards the applicant —both in Vietnam and Australia—appear to have been neglectful and abusive.
With respect to whether the persons see their relationship as long-term, the Tribunal accepts the applicant’s oral evidence that she had viewed the relationship as being for the long term. There is no clear evidence about how the sponsor viewed the relationship but the Tribunal finds that his action in sponsoring the visa suggests that, at that time, he viewed the relationship as being for the long term.
The Tribunal has considered the parties’ respective ages, backgrounds and life experiences, and finds that, at the time of application, neither party was in a relationship with any third party.
The Tribunal places some weight on the evidence of the nature of the persons’ commitment to each other at the time of application. The Tribunal considers that this evidence is suggestive of the parties having been in a spousal relationship at that time.
Conclusion on time of application requirements
As stated above, the Tribunal is satisfied that, at the time of application on 9 August 2016, the parties were validly married, as required by s 5F(2)(a) of the Act.
After considering all the evidence before it and for the reasons given with respect to the reg 1.15A(3) matters, the Tribunal is satisfied that, at the time of application on 9 August 2016, the applicant and the sponsor:
·had a mutual commitment to a shared life as husband and wife to the exclusion of all others, as required by s 5F(2)(b) of the Act;
·had a genuine and continuing relationship, as required by s 5F(2)(c) of the Act; and
·did not live separately and apart on a permanent basis, as required by s 5F(2)(d)(ii) of the Act.
Given these findings, the Tribunal is satisfied that, at the time the visa application was made, the parties were in a spousal relationship.
However, the spouse requirement in cl 820.211(2)(a)(i) is not the only requirement in cl 820.211(2) which must be satisfied at the time of application. The sponsorship requirements in cl 820.211(2)(a)(ii) and cl 820.211(2)(c) must also be satisfied, and, if the applicant was not the holder of a substantive visa at the time of application, then the requirements in cl 820.211(2)(d) must also be satisfied.
The Tribunal has reviewed the completed Form 40SP–Sponsorship for a partner to migrate to Australia which is on the Department’s file. From the evidence before it, the Tribunal is satisfied that, at the time of application, the applicant was sponsored by the sponsor and that cl 820.211(2)(c)(i) was met. There is no information before the Tribunal to suggest that the circumstances outlined in cl 820.211(2B) applied so the Tribunal finds that the sponsor was not prohibited by that subclause from being a sponsoring partner. Accordingly, the Tribunal finds that, at the time of application, cl 820.211(2)(a)(ii) was met.
The applicant’s movement records (which are on the Tribunal’s file) evidence her as having been granted a Subclass 600 Visitor (Class FA) visa on 27 April 2016 which was due to cease [in] August 2016. She held this substantive visa upon applying for the Partner (Temporary) (Class UK) Subclass 820 visa on 9 August 2016. As she held a substantive visa at the time of application, the further requirements in cl 820.211(2)(d) need not be met.
The Tribunal finds that the applicant meets the time of application requirements in cl 820.211(2). As the applicant meets the requirements of cl 820.211(2), she also meets cl 820.211(1)(b). As both cl 820.211(1)(a) and (b) are met, cl 820.211(1) is met.
TIME OF DECISION REQUIREMENTS
Based on the evidence, the Tribunal is satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased.[9]
[9] The applicant provided the Tribunal with a copy of the Divorce Order stating that the order took effect [in] January 2019.
The next 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.
Relevant family violence is defined in reg 1.21.
Under reg 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.
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: reg 1.23(3), (5), (7), (12), (14).
In the present case, the applicant is seeking to establish family violence based on a non-judicially determined claim of family violence.
Has a claim of family violence been made under the regulations?
Under reg 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 reg 1.24 is provided.
In this case, the applicant is seeking to rely on evidence referred to in reg 1.24—namely, a statutory declaration under reg 1.25 and evidence of a type and number specified by the Minister for these purposes (see IMMI 12/116).
Consideration of the applicant’s statutory declaration of 7 March 2023
A statutory declaration under reg 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: reg 1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: reg 1.25(3).
The Tribunal finds that the applicant’s statutory declaration of 7 March 2023 meets the requirements of reg 1.25(1) and (2).
Consideration of evidence specified in the applicable legislative instrument
Legislative Instrument IMMI 12/116 specifies a minimum of two items of evidence from a list in the Schedule to the instrument and that not more than one of each type may be presented. Two of the items listed are:
·a statutory declaration made by a registered psychologist in a State or Territory who has treated the alleged victim while performing the duties of a psychologist; and
·a statutory declaration made by a member of the Australian Association of Social Workers or a person who is eligible to be a member of that Association, and in both cases, that declarant has provided counselling or assistance to the alleged victim while performing the duties of a social worker.
Consideration of [Psychologist A’s] statutory declaration of 22 December 2022
In [Psychologist A’s] confidential psychological report dated 22 December 2022, which is incorporated into her statutory declaration of 22 December 2022, she detailed her registration number with the Psychology Board of Australia. The Tribunal has reviewed the website for the Board and is satisfied that [Psychologist A] is a registered psychologist working in the state of Victoria. Based on the information on the website and the information in the statutory declaration, the Tribunal is satisfied that, at the time of making her statutory declaration, [Psychologist A] fulfilled the necessary requirements of IMM 12/116, including that she had treated the applicant (the alleged victim) while performing the duties of a psychologist
The legislative instrument requires that a registered psychologist’s statutory declaration state that, in their opinion, the alleged victim was subject to family violence; detail the reasons for that opinion; and identify the alleged perpetrator. The Tribunal finds that [Psychologist A’s] statutory declaration of 22 December 2022 fulfils the requirements.
Consideration of [Social Worker A’s] statutory declaration of 25 January 2023
In [Social Worker A’s] social work assessment report dated 21 January 2023, which is incorporated into her statutory declaration of 25 January 2023 she detailed her member number of the Australian Association of Social Workers. However, when the Tribunal reviewed the website for the Association, she was not listed. On 23 February 2023, the presiding Member telephoned the Association, who reviewed its records and advised the Tribunal that [Social Worker A] is a current member of the Association. Based on the evidence, the Tribunal is satisfied that [Social Worker A] is a member of the Association and that, at the time of making her statutory declaration, she fulfilled the necessary requirements of IMMI 12/116, including that she had provided counselling or assistance to the applicant (the alleged victim) while performing the duties of a social worker.
The legislative instrument also requires that a social worker’s statutory declaration state that, in their opinion, the alleged victim was subject to family violence; detail the reasons for that opinion; and identify the alleged perpetrator. While [Social Worker A] did not articulate her opinion and the reasons for holding that opinion as clearly as she could have done, nevertheless, the Tribunal finds that [Social Worker A’s] statutory declaration fulfils these requirements.
Conclusion
Therefore, the evidence presented meets the requirements of reg 1.24. As such, a non-judicially determined claim of family violence has been made under reg 1.23.
Has the applicant suffered family violence?
The applicant claims to have suffered verbal, emotional, psychological, financial and extensive sexual abuse committed by the sponsor. The applicant gave very credible oral evidence about all these matters. The Tribunal notes that the applicant requested that her evidence about the sexual abuse be given to the presiding Member (a woman) alone, and that both [Mr B] and the male interpreter leave the hearing room at this point. The Tribunal agreed to this request. The Tribunal accepts and gives weight to all the applicant’s very credible oral evidence about the family violence she claims to have suffered.
Having considered all the evidence before it, the Tribunal is satisfied, for the purposes of reg 1.23, that the applicant has suffered family violence committed by the sponsor that occurred whilst the parties were in the relationship. As such, the applicant is taken to have suffered family violence in the relevant sense: reg 1.22.
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 820.221(3).
CONCLUSION
Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
DECISION
The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:
·cl 820.211(1) of Schedule 2 to the Regulations; and
·cl 820.221(3) of Schedule 2 to the Regulations.
Justine Clarke
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.

[2023] AATA 795

20 March 2023

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