1902809 (Migration)

This matter concerned an application for review of a decision to refuse a Partner (Residence) (Class BS) visa. The applicant, a citizen of Thailand, had been granted a subclass 820 visa based on her spousal relationship with an Australian citizen. The relationship subsequently broke down, with the sponsor withdrawing his sponsorship multiple times. The parties divorced in April 2018. The applicant had made claims of emotional and psychological abuse during the relationship, but these were not formally established as family violence. The Administrative Appeals Tribunal considered the applicant's claims and the evidence presented.

The primary legal issues before the Tribunal were whether the applicant remained in a spousal relationship with the sponsoring partner at the time of the decision, and if not, whether the relationship had ended due to the applicant being a victim of domestic violence. The Tribunal was required to assess the evidence in light of the criteria for a Partner (Residence) (Class BS) visa, including the definition of family violence under the Migration Regulations 1994 and the broader considerations for assessing the nature of a spousal relationship.

The Tribunal reasoned that the applicant had not established that she remained in a spousal relationship with the sponsor, particularly given their divorce and the absence of any claim of remarriage or cohabitation. Furthermore, the Tribunal found that the applicant had not met the requirements to establish that she had suffered family violence, as defined by the regulations, which typically requires evidence tested before a court or a satisfactory opinion from an independent expert. While the applicant had provided statements alleging abuse, these did not satisfy the evidentiary thresholds for a finding of family violence. The Tribunal also considered the various factors outlined in Regulation 1.15A, which govern the assessment of spousal relationships, including financial, household, social, and commitment aspects, and found that the evidence did not support a continuing spousal relationship.

Consequently, the Tribunal affirmed the delegate's decision to refuse the visa application.