1903842 (Migration) - [2023] AATA 2220

1903842 (Migration) [2023] AATA 2220 (1 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Maurice Elias Navarrete, MN Lawyers & Associates
CASE NUMBER:  1903842
MEMBER:Michael Ison
DATE:1 June 2023
PLACE OF DECISION:  Melbourne
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 01 June 2023 at 5:06pm
CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – relationship ceased – family violence – non-judicially determined claim – evidentiary requirements – IMMI 12/116 – LIN 23/026 – genuine de facto relationship prior to relationship breakdown – opinion of an independent expert – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.21, 1.23, 1.24, 1.25; Schedule 2, cl 801.221
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 by a delegate of the Minister for Home Affairs on 29 January 2019 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is [Mr A] who is [age] years old and is a national of Chile. [Mr A] is referred to as the applicant in these reasons for decision.
The applicant first arrived in Australia [in] April 2010 as the holder of a Visitor (Class TR) (Subclass 676) visa that was valid [to] July 2010.
On 9 July 2010 the applicant was granted a Student (Class TU) (Subclass 570) visa that was valid to 21 February 2011.
On 18 March 2011 the applicant was granted his second Student Subclass 570 visa that was valid to 22 August 2011.
On 16 September 2011 the applicant was granted his third Student Subclass 570 visa that was valid to 13 May 2012.
On 13 July 2012 the applicant was granted his fourth Student Subclass 572 visa that was valid to 5 March 2014.
On 5 March 2014 the applicant was granted a Work and Holiday (Class US) (Subclass 462) visa that was valid to 18 March 2015.
On 24 March 2015 the applicant was granted his fifth Student Subclass 572 visa that was valid to 27 December 2015.
On 15 February 2016 the applicant was granted his sixth Student Subclass 572 visa that was valid to 26 July 2016.
On 22 July 2016 the applicant applied onshore for combined Partner (Class UK) (Subclass 820) and (Class BS) (Subclass 801) visas on the basis of his de facto partner relationship with the sponsor, [Ms B]. At the time of that application [Ms B], who is referred to as the sponsor in these reasons for decision, was an Australian permanent resident as the holder of an Employer Nomination Scheme (Subclass 186) visa. The sponsor, who is a [Country 1] national, is [age] years of age at the time of this decision and was [age] years old at the time of application for the Partner visas.
The applicant was granted a Bridging A (Subclass 010) visa at the time of his application for the Partner visas. The applicant’s Bridging A visa did not have any conditions from Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations) attached.
On 13 December 2016 the applicant was granted a Bridging B (Subclass 020) visa, which meant that his Bridging A visa ceased at that time. The applicant’s Bridging B visa also did not have any conditions from Schedule 8 to the Regulations attached.
The applicant and the sponsor claim to have first met [in] March 2015 [at location] in Sydney and had a mutual commitment to a shared life as de facto partners to the exclusion of all others from 2 May 2015.
On 17 March 2017 the applicant was granted a provisional Partner Subclass 820 visa, which ceased on 29 January 2019 when a delegate of the Minister refused the applicant’s application for the permanent Partner Subclass 801 visa.
On 24 and 26 February 2018 the Department received information from the sponsor that she wished to withdraw her sponsorship of the applicant’s application for a permanent Partner visa on the basis their de facto relationship had broken down. In the Notification of Change in Circumstance form that the sponsor submitted to the Department, she stated that she moved out of their shared premises on 6 January 2018 and from that date permanently did not live with the applicant.
On 1 May 2018 the Department sent the applicant an email advising that the sponsor’s sponsorship had been withdrawn. The Department invited the applicant to comment on this information and to provide additional information if the applicant wished to continue his Partner visa application. The Department also provided the applicant with the option of withdrawing his Partner visa application.
On 29 May 2018 and 28 June 2018, the applicant’s then (now former) migration agent emailed the Department that the applicant had suffered family violence perpetrated by the sponsor during their de facto relationship.
In the 28 June 2018 submission to the Department, the applicant’s migration agent also provided the Department with a letter from [Mr C], registered psychologist, dated 27 June 2018 and four support letters from friends of the applicant in support of the applicant’s claim to have suffered relevant family violence.
On 11 July 2018 the Department emailed the applicant via his migration agent to request further information to demonstrate that the applicant’s relationship with the sponsor was genuine prior to their relationship breaking down.
On 8 August 2018 the applicant’s migration agent provided documents in support of the applicant’s claim that the applicant and sponsor were in a genuine de facto relationship prior to their relationship ending due to the family violence allegedly perpetrated by the sponsor against the applicant.
On 28 August 2018 the Department wrote to the applicant via his migration agent and informed the applicant the Department could not accept the letter from the applicant’s psychologist as evidence of the applicant’s family violence claim because it did not meet any of the requirements of Schedule 1 of a legislative instrument known as IMMI 12/116. In that correspondence the Department provided the applicant with relevant information in relation to what types of evidence were acceptable to demonstrate the applicant had suffered relevant family violence. The Department gave the applicant a further 28 days to provide that evidence and subsequently extended the time for the applicant to do so.
On 19 October 2018 the applicant’s migration agent provided the Department with a statutory declaration and report from [Mr C] and also requested an extension of time to provide further evidence of the applicant’s claim of having suffered relevant family violence.
The Department agreed to that request and two further requests for extensions of time from the applicant to provide evidence. On 20 December 2018, the Department wrote to the applicant via his migration agent informing the applicant that a final extension of 28 days was granted from that date for the applicant to provide evidence in the form required by a statutory instrument known as IMMI 12/116, which then applied, of having suffered relevant family violence.
The primary decision records that the applicant did not provide further evidence of having suffered relevant family violence prior to the delegate of the Minister refusing his application for the Partner Subclass 801 visa on 29 January 2019.
It is the refusal to grant the applicant a Subclass 801 visa that is the subject of this review.
At the time of this decision the applicant continues to hold the Bridging B visa granted to him on 13 December 2016.
The primary decision of a delegate of the Minister
The applicant provided the Tribunal with a copy of the primary decision.
The applicant applied for the visa on 22 July 2016 on the basis of his relationship with his sponsor, [Ms B]. 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 Regulations.
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.
The delegate refused to grant the visa on the basis that the applicant did not meet cl 801.221 because the applicant had not submitted the minimum required evidence to support the applicant’s claim of having suffered relevant family violence.
Cancellation of the Tribunal hearing scheduled for 21 November 2022
On 21 October 2022 the Tribunal sent a letter inviting the applicant to attend a hearing on 21 November 2022 by video to give evidence and present arguments relating to the issues arising in the applicant’s case. The hearing was unable to proceed on that date as the applicant stated he was not aware of the hearing and had not had any contact with his former representative Mr Ahluwalia. The Tribunal agreed to reschedule the hearing.
Postponement of the Tribunal hearing scheduled for 5 December 2022
On 21 November 2022 a further hearing invitation was sent to the applicant inviting him to appear by video before the Tribunal on 5 December 2022 to give evidence and present arguments after the applicant agreed to a shortened period to be notified of a new hearing.
On 29 November 2022 the Tribunal received a request that the hearing be postponed from Mr Navarrete Hernandez, migration lawyer on behalf of the applicant, as the applicant could not contact his former representative and his former representative had not returned his files. The applicant also requested copies of the Department and Tribunal files for his visa application from the Tribunal and required further time to prepare his review application. In addition, the applicant wanted Mr Navarrete Hernandez to represent him at the hearing but Mr Navarrete Hernandez was not available on 5 December 2022. The Tribunal agreed to reschedule the hearing.
The Tribunal hearing 8 March 2023
The applicant appeared before the Tribunal on 8 March 2023 to give evidence and present arguments, by video.
The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages, who also participated in the hearing by video.
The applicant was represented in relation to the review by a migration lawyer, Mr Maurice Elias Navarrete Hernandez of MN Lawyers & Associates. Mr Navarrete Hernandez is referred to in these reasons as the applicant’s representative or the representative. The representative participated in the Tribunal hearing by video also.
Pre-hearing submissions
The Tribunal received a submission on 1 March 2023 from the applicant’s representative on behalf of the applicant with the following documents attached:
·a cover email cover from the representative date stamped 1 March 2023 3:08 PM;
·email chain between the representative and [Mr C], from 2 February 2023 to 14 February 2023, explaining the absence of a statutory declaration declared by the applicant that was mentioned in [Mr C]’s report;
·a six-page statutory declaration declared by the applicant on 9 February 2023;
·an eight-page Patient Subpoena Export from [a named] Medical Centre, printed on 10 February 2023, including the applicant’s medical history report, GP Mental Health Care Plan, a completed New Patient Registration – GP form and a referral letter to [Mr C] from the applicant’s general practitioner, [Dr D];
·a one-page statutory declaration declared by [Mr C] on 12 October 2018; and
·a referral letter to [Mr C] from [Dr D], dated 21 July 2018.
The Tribunal confirmed with the applicant’s representative at the commencement of the Tribunal hearing that these were all of the documents provided to the Tribunal.
The Tribunal also engaged in other correspondence with the applicant and the representative in relation to administrative matters associated with this review.
Post-hearing submissions
The applicant did not provide any post-hearing submissions.
Tribunal decision
The Tribunal has had regard to the oral evidence of the applicant, all of the information in the oral and written submissions provided to the Tribunal on the applicant’s behalf and to the information in the Tribunal’s file and the Department’s file provided to the Tribunal. The information on the Tribunal’s file included a post-hearing report received from an independent expert. The Department’s file included a copy of the applicant’s application for the Partner visas, the documents provided to the Department in support of those applications and copies of communication between the Department and the applicant.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case, the applicant claims the relationship with [Ms B] the visa sponsor has ceased, and he has been the victim of family violence.
Were the applicant and sponsor in a genuine de facto relationship?
The evidence of the applicant, including in the application for the Partner visa is that he met the sponsor [in] March 2015 at [location] in Sydney, after which they communicated by text, began dating and on 2 May 2015 entered into a committed and exclusive de facto relationship.
The applicant and sponsor introduced each other to their families in Chile and [Country 1] respectively by telephone on 10 May 2015, the sponsor moved in to live with the applicant on 1 September 2015 and on 11 December 2015 they registered their de facto relationship under the Births Deaths and Marriages Registration Act 1995 (NSW), providing a certified copy of the registration certificate.
There is extensive evidence on the Department file about the relationship of the applicant and sponsor including:
·the Partner visa application with detailed statements about the formation of their relationship, the financial aspects of their relationship, the nature of their household, the social aspects of their relationship and the nature of the commitment they have to each other;
·separate and detailed relationship statements in statutory declaration form declared by the applicant and sponsor on 21 July 2016;
·statutory declarations using the Department’s Form 888 in support of the relationship of the applicant and sponsor from [Ms E] declared on 6 June 2016, [Ms F] declared on 9 June 2016, [Ms G] declared on 24 June 2016, [Ms H] declared on 1 July 2016 and [Mr I] declared on 20 July 2016;
·lease agreements signed by the applicant and sponsor;
·evidence of a joint bank account and statements for that account, with an explanation of how the applicant and sponsor used that account and their individual bank accounts with notated copies of bank statements from the sponsor’s individual account;
·extensive social media records and photos annotated to confirm who is in each photo, the location and date;
·screen captures of text messages between the applicant and sponsor when they were apart;
·evidence of visits from overseas to Australia of friends and family of both the applicant and the sponsor;
·evidence of joint social activities including photos, ticket receipts, an invitation to an engagement party and travel receipts; and
·other documents including a utility account for the internet in the sponsor’s name, insurance documents, gym membership and a receipt for payment of the visa application fee by the sponsor.
The applicant told the Tribunal his relationship with the sponsor ended on 6 January 2018 when the sponsor moved out of their shared premises.
These documents and the applicant’s oral evidence reveal the following about the applicant and sponsor’s de facto relationship between May 2015 to January 2018:
·They had pooled their finances to a limited extent, ensuring they were contributing equally to their shared expenses whilst maintaining their individual bank accounts;
·They lived together from 1 September 2015 providing a variety of documents in one or both of their names that also recorded their address at the time the document was sent or created;
·Set out in detail their lifestyle including their work, sharing of housework, social lives and hopes and plans for the future;
·Provided significant and compelling evidence of the social aspects of their relationship including regular social interaction with their respective and mutual friends and also their respective families overseas;
·Were clearly recognised and accepted by their families and friends as a committed couple in a genuinely exclusive and ongoing relationship;
·Were a de facto couple for just over two and a half years, having known each other for less than two months prior to committing to each other and lived together for 28 months. The written evidence provided revealed that the applicant and sponsor were in a committed long-term relationship with common plans for the future and drew a degree of companionship and emotional support from each other consistent with being in a genuine de facto relationship.
On the basis of the evidence, the Tribunal is satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased. The 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.
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. Relevant family violence is defined in reg 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: reg 1.23(3), (5), (7), (12), (14).
In the present case the applicant is seeking to establish he suffered 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?
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.
The sponsor emailed the Department on 26 February 2018 in relation to her withdrawal of her sponsorship of the applicant’s Partner visa application. In that email the sponsor wrote that she was no longer in a relationship with the applicant, had moved out of their shared premises on 6 January 2018 and that “[Mr A] has an AVO against me in the meantime”.
The Tribunal asked the applicant whether he had obtained an Apprehended Violence Order or any other family violence related order in relation to the sponsor from a court. The applicant told the Tribunal that he did not go to court and did not obtain a court order against the sponsor. The applicant’s representative also indicated he did not know anything about a court order being made against the sponsor. The Tribunal accepts the applicant’s evidence.

The applicant in this case 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 LIN 23/026).
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: 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 applicant declared a statutory declaration in the required form on 9 February 2023. In that statutory declaration the applicant set out the allegations of family violence he claims to have suffered and named the sponsor as the perpetrator of that family violence. The Tribunal finds the statutory declaration of the applicant declared on 9 February 2023 meets the requirements of reg 1.25.
The applicant provided the Tribunal with a statutory declaration declared by [Mr C], psychologist, on 12 October 2018 and accompanying seven-page psychological report of the same date and a referral letter and GP Mental Health Care Plan completed by [Dr D] both dated 21 July 2018.
[Mr C]’s statutory declaration and accompanying report expresses his opinion that the applicant was subjected to family violence, details the reasons for that opinion and identifies the sponsor as the alleged perpetrator of that family violence. The Tribunal finds the statutory declaration of [Mr C] meets the requirements of LIN 23/026.
[Dr D]’s referral letter and GP Mental Health Care Plan identify the applicant as the alleged victim of family violence and details the treatment of the applicant as the alleged victim that is consistent with family violence. The Tribunal finds that the referral letter and GP Mental Health Care Plan of [Dr D] meet the requirements of LIN 23/026.
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 that he suffered family violence during his relationship with the sponsor as follows:
·The sponsor began to show signs of jealousy toward the applicant from early 2017;
·The sponsor would call every half hour to check on the applicant whenever he was out without the sponsor;
·The sponsor would challenge the applicant when he got home and call him derogatory and demeaning names and yell at the applicant;
·Over time the sponsor’s verbal abuse toward the applicant escalated;
·The sponsor began checking the applicant’s mobile phone, was suspicious the applicant was communicating with other women and would question the applicant’s friends and contacts on social media about this;
·The sponsor would frequently send the applicant abusive text messages;
·The sponsor was critical of and insulted the applicant about his level of pay;
·The sponsor once confronted the applicant in a public bar by breaking a glass and yelling at the applicant in front of his friends, with the applicant’s friends expressing concern to him for his safety;
·The sponsor’s behaviour escalated further still to incorporate physical assaults on the applicant by slapping his face during arguments and by throwing coins, glasses, books “and anything that was close to her” at the applicant. These assaults caused the applicant pain and fear;
·The sponsor would force the applicant to sleep on the couch and in her reasons for doing so would abuse and demean the applicant and refuse to be intimate with him;
·The sponsor experienced a loss of self-esteem and became anxious and depressed as a result of the sponsor’s behaviour causing him over time to become socially withdrawn, to stop playing football, lose his appetite, lose interest in sex and to have difficulty sleeping;
·One of the applicant’s friends described in a written statement being yelled at by the sponsor and the sponsor the next day acting as though nothing had happened whilst trying to find out from the friend where the applicant was;
·In July 2018 the applicant went to see [Dr D] who referred the applicant to [Mr C] under a GP Mental Health Care Plan; and
·The applicant had five psychological counselling sessions in 2018 with [Mr C] to assist the applicant to manage his depression and anxiety brought on by the family violence the sponsor perpetrated against him.
Having considered all of the evidence before it, including the applicant’s oral evidence during the Tribunal hearing, the Tribunal was not satisfied for the purposes of reg 1.23 that it could make a positive finding that the applicant had suffered relevant family violence. In accordance with that regulation, the Tribunal sought the opinion of an independent expert. On 22 May 2023 the independent expert provided an opinion that the applicant had suffered relevant family violence.
The independent expert concluded in their report that (errors in the original):
[Mr A] was assessed as being a credible historian. He provided a spontaneous, sufficiently detailed and consistent account of his family violence claims over time and sources. Where it appeared there had been some minor inconsistencies, he was able to resolve these potential issues when they were raised with him at interview. He spoke about and evidenced observable distress that appeared genuine and congruent to the topics being discussed at interview in exploring the family violence claims. This observable distress appeared consistent with his account of still experiencing some impacts of the family violence upon different areas of his functioning. Overall, [Mr A] gave credible evidence that the sponsor’s behaviour caused him to reasonably fear for, or to be reasonably apprehensive about his wellbeing or safety, and is therefore consistent with the Migration Regulations (1994).
The Tribunal is satisfied that the opinion is authorised by the Regulations, in that it is provided by an independent expert who is a person suitably qualified to make the assessment, is an employee of an organisation specified for this purpose, and was properly made. Under reg 1.23 the Tribunal is required to take as correct an independent expert’s opinion, properly made.
Where the independent expert’s opinion is that a person has suffered relevant family violence, at least part of the violence that led to that opinion must have occurred while the married or de facto relationship existed. The applicant’s evidence to the Tribunal and claims to the independent expert are that his de facto relationship with the sponsor commenced in May 2015 and he experienced family violence perpetrated against him by the sponsor from early 2017 until the end of his relationship with the sponsor in January 2018.
As the Tribunal has found that the applicant and sponsor were in a genuine and ongoing de facto relationship between May 2015 and January 2018 the Tribunal finds that the family violence perpetrated against the applicant by the sponsor occurred while their genuine de facto relationship existed.
Accordingly, the Tribunal finds that the applicant is taken to have suffered family violence committed by the sponsor for reg 1.22.
Conclusion
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
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.
Michael Ison
Senior 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.