1903842 (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to refuse to grant the applicant, Mr A, a Partner (Residence) (Class BS) visa, Subclass 801. Mr A, a national of Chile, had applied for the visa on the basis of his de facto relationship with the sponsor, Ms B, an Australian permanent resident. The delegate refused the visa because Mr A had not provided sufficient evidence to support his claim of having suffered family violence committed by Ms B, following the breakdown of their relationship.

The primary legal issue before the Tribunal was whether Mr A met the criteria for the Subclass 801 visa, specifically clause 801.221 of Schedule 2 to the Migration Regulations 1994. This clause requires the applicant to be the spouse or de facto partner of the sponsor, unless the relationship has ceased and certain circumstances exist, including that the applicant has suffered family violence committed by the sponsor. The Tribunal was required to determine if the evidence presented by Mr A sufficiently supported his claim of family violence, which would allow the visa to be granted despite the relationship breakdown.

The Tribunal found that the extensive evidence provided by Mr A regarding his de facto relationship with Ms B, including joint financial documents, shared accommodation, social interactions, and declarations from friends and family, established that they were in a genuine de facto relationship for over two and a half years. While the delegate refused the visa due to insufficient evidence of family violence, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that Mr A met the criteria under clauses 801.221(6)(b) and (c) of Schedule 2 to the Regulations, indicating that the claim of family violence, in the context of a ceased relationship, was sufficiently established for the purpose of reconsideration.