1904564 (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, subclass 801. The applicant alleged that family violence had been committed against them by their sponsor, and that this violence occurred during a genuine relationship. The applicant's relationship with the sponsor had ceased prior to the decision. The Administrative Appeals Tribunal was required to determine whether the applicant had established a non-judicially determined claim of family violence that occurred during the existence of their relationship, and whether the applicant met the criteria for the visa.

The Tribunal considered the evidence provided by the applicant, including a statutory declaration detailing the alleged family violence and two further statutory declarations from a psychologist and a social worker. These latter declarations were provided in accordance with Regulation 1.24 of the Migration Regulations 1994, which requires two distinct types of evidence from professionals to support a claim of non-judicially determined family violence. The Tribunal was satisfied that the declarations from the psychologist and social worker met the requirements of Regulation 1.24, confirming that the applicant had made a claim of family violence, that the claims were consistent with the applicant having been subjected to family violence in the professional opinions of the declarants, and that the sponsor was identified as the perpetrator. The Tribunal also considered the definition of a spouse under section 5F of the Migration Act 1958 and the requirements of clause 801.221(2)(c) of Schedule 2 to the Regulations, which stipulate that the applicant must be the spouse of the sponsoring partner at the time of the decision.

The Tribunal found that the evidence presented met the requirements for a non-judicially determined claim of family violence under Regulation 1.23, and that the alleged violence occurred while the parties were in a married relationship. The Tribunal was satisfied that the sponsor was the applicant's sponsoring partner at the relevant times. Consequently, the Tribunal remitted the application for the visa to the Minister for reconsideration, with a direction that the applicant met the criteria under clause 801.221 of Schedule 2 to the Regulations.