1905961 (Migration)

1905961 (Migration) [2023] AATA 3238 (3 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Nicholas Koenig
CASE NUMBER: 1905961

MEMBER:Justine Clarke
DATE:3 August 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
·cl 820.221(3) of Schedule 2 to the Regulations

Statement made on 03 August 2023 at 3:01pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine relationship before separation – pooled financial resources – shared household expenses – joint utility accounts – warm relationships with each other’s children and parents – residential tenancy agreement – joint travel and holidays – relationship ceased – non-judicially determined claim of family violence – 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
El Jejieh v Minister for Home Affairs (No 2) [2019] FCCA 840
He v MIBP [2017] FCAFC 206
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 28 February 2019 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).
The applicant is a national of Vietnam. At the time of application for the visa, she was aged [age] years and at the time of this decision, she is [age] years of age.
On 3 June 2016, the applicant applied for the visa based on her relationship with her sponsor, [name] (formerly known as [Alias A]). At the time of application for the visa, he was aged [age] years. In these reasons, the Tribunal refers to [the sponsor’s name] as ‘the sponsor’ for ease of reference, even though [he] withdrew his sponsorship.
At the time the applicant applied 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 820.221 which 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 820.221(3)(a) and (3)(b)(i). The applicant claims this occurred in this case.
The applicant provided the Tribunal with a copy of the delegate’s refusal decision (the primary decision). The delegate refused to grant the visa on the basis that the applicant did not meet cl 820.211(2). 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 it had received information indicating that the relationship between the parties had ceased and 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 3 June 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 March 2019, the applicant applied to the Tribunal for review of the refusal decision. The applicant was represented in relation to the review.
During the course of this review, the applicant submitted a number of documents in support of her case, including written submissions (one document titled ‘Answers to the Allegations 23rd June 2021’ and another document dated 14 July 2021).
On 20 June 2023, the applicant appeared, in person, before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence, in person, from [Daughter A] (the applicant’s daughter), [Neighbour A] (a friend and neighbour) and [Housemate A] (a former housemate). The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The representative also attended the hearing.
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 3 June 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 3 June 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 a document titled ‘Evidence of Australian Citizenship’. The document certifies that ‘[Alias A]’ is an Australian citizen by grant. The Department’s file also contains a certified copy of a Victorian Change of Name Certificate. This document certifies that ‘[Alias A]’ legally changed his name to ‘[the sponsor’s name]’. From the evidence before it, the Tribunal is satisfied that the sponsor is an Australian citizen.
‘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] May 2016, the applicant and the sponsor married each other in [Suburb 1], Victoria. Copies of their registered marriage certificate and the ‘decorative’ Certificate of Marriage are on the Department’s file. Based on this evidence, the Tribunal finds that, at the time of application on 3 June 2016, 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.
The non-disclosure certificate
The Department’s file contains a non-disclosure certificate, said to be made pursuant to s 376 of the Act. The certificate relevantly states:
Public Interest folios
I notify the Administrative Appeals Tribunal that s 376 applies to the document(s)/information contained in file [number], and certify that disclosure of this material would be contrary to the public interest because:
· Folios(s) 220–221: may prejudice a current or pending investigation of a possible breach of the law or enforcement of the law in a particular instance and/or disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law that would or be likely to prejudice the effectiveness of those methods.
The case of El Jejieh v Minister for Home Affairs (No 2) [2019] FCCA 840 is authority for the proposition that, for a non-disclosure certificate to be validly made, it must contain both the delegate’s signature and be dated. In this case, the certificate contains the delegate’s signature, but the certificate is not dated. Accordingly, the Tribunal finds that the certificate was not validly made. Notwithstanding, the Tribunal considers that the information referred to in the certificate is not relevant to the determination of this case and is not the reason, or part of the reason, for affirming the decision under review. In the circumstances, the Tribunal did not take any action in respect of the certificate.
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 owed 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 claimed relationship, the applicant and her sponsor jointly owned real estate or other major assets, that they had any joint liabilities or that one person in the relationship owned any legal obligation in respect of the other.
At the hearing, the applicant gave credible oral evidence aligning with previous claims that had been made that, during the relationship, the applicant and the sponsor had pooled their financial resources in their joint bank account and shared their day-to-day household expenses. The applicant told the Tribunal that the sponsor had worked as [an occupation 1] and his salary had been deposited into the joint bank account. She said that, at the time, she had been learning to be [an occupation 2], so her earnings were not high, but she had put her earnings into the joint account. She said that she had rental income from a property in Vietnam and that the sponsor had said that she should keep that personal income. She said, with respect to the purchase of new, expensive items such as furniture, they had made the decision together. She said that they had used money from their joint account to pay for rent, groceries and bills. She confirmed that all household bills for utilities such as gas, electricity and phones were shared. She said that, when the couple had gone out for dinner, the sponsor had covered their expenses. She also noted that the sponsor had bought presents for her children.
Having reviewed the documentary evidence that had been submitted in respect of the claimed financial aspects of the relationship, the Tribunal accepts the written submissions that there had been consistent deposits into the parties’ joint bank account and repeated withdrawals from the account for a number of day-to-day household expenses. The Tribunal also accepts the submissions in respect of the handwritten receipts and does not take issue with the handwritten receipts in the way that the delegate had.
Based on the evidence, the Tribunal finds that, prior to the cessation of the claimed relationship, the applicant and the sponsor pooled their finances in their joint bank account (which was their main joint asset) and shared their day-to-day household expenses.
In the circumstances, the Tribunal gives some weight to the evidence of the financial aspects of the relationship as suggesting that, prior to the cessation of the claimed 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.
With respect to any joint responsibility for the care and support of children, the Tribunal notes the evidence that the applicant has a daughter born in [year] and a son born in [year]. At the time of application on 3 June 2016, the applicant’s daughter was [age] years of age and the applicant’s son was [age] years of age. Notwithstanding that, at the time of application, each child was an adult, the Tribunal accepts and gives some weight to the applicant’s credible oral evidence that, during the relationship, her children had called the sponsor ‘Daddy’ and that he had shown some affection towards them.
At the hearing, the applicant told the Tribunal the names and ages of the sponsor’s two sons, explaining that they were both ‘grown up’. She said that she was very close to the sponsor’s two sons, saying that they call her ‘Aunty’. She said that ‘many times’, she had cooked a meal and invited his sons to join them to provide them with an opportunity to be closer to their father. She said that, even now, his sons have good memories of their time with her. She said that if she sees them in the street, they stop to hug her and ask her how she is. The Tribunal accepts the applicant’s oral evidence in this regard.
The applicant’s daughter [Daughter A] also told the Tribunal that the sponsor’s sons had thought well of the applicant. The Tribunal found [Daughter A] to be credible and accepts this evidence.
Notwithstanding the evidence that, at the time of application and thereafter, the four children were adults, the Tribunal accepts the applicant’s credible oral evidence that the sponsor provided some care towards her two children and that she had shown care towards the sponsor’s two children. This evidence suggests that, prior to the cessation of the claimed relationship, the parties were in a spousal relationship.
With respect to the living arrangements of the persons, the applicant gave credible oral evidence that they had lived at one property together, the house in a named north-western suburb of Melbourne. The applicant also gave details of other people who had lived in the house, including explaining that, after she and the sponsor had married, her children had joined them to live at the property.
The Tribunal notes [Housemate A’s] credible oral evidence that he had been living in this house and that he was aware that the applicant and the sponsor shared a bedroom. The Tribunal accepts this evidence.
[Daughter A] told the Tribunal that her bedroom was next to the one used by the applicant and the sponsor. In her own words, when the sponsor was shouting at the applicant, ‘it was very easy to hear’. The Tribunal found [Daughter A] to be credible and accepts this evidence.
The Tribunal notes the various items of documentary evidence that support the applicant’s, [Daughter A’s] and [Housemate A’s] credible oral evidence that the applicant and the sponsor had lived together in the property as claimed. For example, further documentary evidence was submitted in this review, including a copy of the residential tenancy agreement. All the evidence strongly suggests that the applicant and the sponsor lived together as spouses as claimed.
With respect to any sharing of the responsibility for housework, the applicant gave credible oral evidence that she and the sponsor had gone shopping for groceries together. She told the Tribunal that the sponsor would always hold her hand when they went out. She also told the Tribunal that the two of them had shared the house chores. She said that she had cooked and that he had cleaned. She described the sponsor as a meticulous and clean person. The Tribunal accepts the applicant’s credible oral evidence about the shared responsibility for housework prior to the cessation of the relationship.
The Tribunal gives great weight to the evidence of the nature of the household in the period prior to the cessation of the claimed relationship. In the Tribunal’s view, this evidence is suggestive of the parties having been in a spousal relationship at the relevant times.
The social aspects of the relationship
Whether the persons represented 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 planned and undertook joint social activities are relevant matters to be considered in determining the social aspects of the relationship.
With respect to whether the persons represented themselves to other people as being married to each other, the applicant told the Tribunal that the relationship had been supported by parents on both sides. She said that she had been a happy person amongst his family members. She said that she had visited the sponsor’s mother’s house as well as that of all the sponsor’s siblings. She noted that the sponsor’s mother had wanted them to move closer to her home. She also told the Tribunal that the sponsor had sent diabetes medicine to her mother in Vietnam. She said that her mother had passed recently and that her mother had held the view that the sponsor was a good son-in-law. The Tribunal notes the many photographs that were submitted (in a photo album complete with written descriptions) showing the parties together in various settings and socialising with others, including in Vietnam. The Tribunal accepts the applicant’s evidence.
Based on all the evidence before the Tribunal, the Tribunal finds that the applicant’s and the sponsor’s family members and friends were aware of the marital relationship, knew that the parties were living together and were supportive of their relationship.
With respect to the opinion of the persons’ friends and acquaintances about the nature of the relationship, the Tribunal notes the various declarations and statements that are before the Tribunal. The Tribunal also notes and gives weight to [Daughter A’s] and [Housemate A’s] credible oral evidence. In addition, the Tribunal notes [Neighbour A’s] credible oral evidence that he was of the opinion that the marriage between the applicant and the sponsor had been genuine. He said, ‘from my point of view, they did love each other’. He said, ‘I can guarantee that they were one hundred per cent a genuine couple’. He noted that the parties had wedding celebrations in Australia and Vietnam. He said that he had been invited to the wedding but that he had not attended because he had been busy. He said that he had socialised with them frequently, attending many ‘get togethers’ on weekends. He said that he had come to know them as a ‘happy couple’ and that it seemed like ‘home sweet home’ at their place, including because the house was always full of people. The Tribunal considers that the reasons given by the various declarants and witnesses for considering the parties’ partner relationship to be genuine and continuing are well considered and detailed. The Tribunal gives great weight to all this evidence.

With respect to any basis on which the persons planned and undertook joint social activities, the applicant gave credible oral evidence that the sponsor had loved hosting ‘get togethers’ and inviting other couples to their home. She said that they had also attended other friends’ homes. She also mentioned a number of holidays that they had taken together. She told the Tribunal about their trip to Vietnam in 2017 in order to hold a wedding there and to meet each other’s families living there. She also told the Tribunal that the sponsor loved fishing and had taken her with him. She told the Tribunal about camping together and catching seafood. The Tribunal notes the evidence corroborating such claims—various photographs as well as statements and/or oral evidence by friends and family. The Tribunal finds that, prior to the cessation of the claimed relationship, the applicant and the sponsor planned and undertook joint social activities.
The Tribunal gives great weight to the evidence of the social and public recognition of the relationship, prior to its end. The Tribunal considers that it strongly points to the parties having been in a spousal relationship prior to the cessation of that 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 drew from each other, and whether the persons saw their relationship as long-term are all matters to be considered in determining the nature of the persons’ commitment to each other.
The Tribunal accepts the applicant’s credible oral evidence that she moved in to live with the sponsor on 10 April 2016 and that she and the sponsor had been separated since September 2017. Accordingly, the Tribunal gives some weight to the duration of the relationship and the length of time during which the persons have lived together—around 18 months.
With respect to the degree of companionship and emotional support that the persons drew from each other, the Tribunal notes that the applicant described the sponsor as having been romantic in the early stages of their relationship, including by taking her for drives in his car to see the city. The applicant gave oral evidence that, when the relationship had been a good one, the sponsor had taken care of her, including by filling in Medicare forms for her because of her limited English language. The applicant also told the Tribunal that she had been touched by the sponsor’s care towards her son, explaining that when he had considered that her son was a ‘bit skinny’, he had said that they needed to buy a special formula for him so that he could gain weight. The Tribunal accepts the applicant’s oral evidence and from all the evidence before the Tribunal, the Tribunal finds that prior to the breakdown of the relationship, the applicant and the sponsor had drawn companionship and emotional support from each other to some degree.
With respect to whether the persons saw their relationship as long-term, the applicant told the Tribunal that she had believed that her relationship with the sponsor would be for the long term. She said that she had believed that his love for her was ‘true love’ and that she had ‘truly’ loved him, including because she had witnessed him show care towards her children and because his children had accepted her as a family member. She said that, when things had gone well in the relationship, she had been ‘truly happy’. She said that, at that time, the sponsor was ‘very special to me’. When asked about their plans for the future, she said that they had planned to live very frugally by not using the sponsor’s salary and saving that money. She said that they had hoped that, by taking such measures, they could buy their own property within one to three years. The Tribunal accepts the applicant’s oral evidence and from all the evidence before the Tribunal, the Tribunal finds that prior to the breakdown of the relationship, the applicant and the sponsor each saw their relationship as long-term.
The Tribunal gives some weight to the evidence of the nature of the persons’ commitment to each other until the relationship ceased. The Tribunal considers that this evidence is suggestive of the parties having been in a spousal relationship at the relevant times.
Conclusion on time of application requirements
As stated above, the Tribunal is satisfied that, at the time of application on 3 June 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 3 June 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
·were living together or were not living separately and apart, as required by s 5F(2)(d) 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 documents on the Department’s file but notes that the sponsorship for a partner to migrate to Australia form (Form 40SP) is not included. Nevertheless, the Tribunal notes that the delegate referred to [the sponsor’s name] as ‘the sponsor’ in the refusal decision and stated that [the sponsor] ‘lodged a sponsorship in support of the application’. There is no information before the Tribunal to suggest that, at the time of application, the applicant was not sponsored by [the sponsor] or that the circumstances outlined in cl 820.211(2B) apply. Accordingly, the Tribunal is satisfied that the applicant was sponsored by [the sponsor] and that cl 820.211(2)(c)(i) is met and that [the sponsor] was not prohibited by cl 820.211(2B) from being a sponsoring partner. Accordingly, the Tribunal also finds that cl 820.211(2)(a)(ii) is met.
The applicant’s movement records (which are on the Tribunal’s file) evidence that, at the time the applicant applied for the Partner visa on 3 June 2016, she held a [Visitor] (Class FA) visa which was due to cease on 8 June 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.
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.
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—this new instrument commenced on 30 March 2023 and replaces IMMI 12/116).
In this case, the applicant submitted the following evidence from professionals in support of her claim:
·statutory declaration of [a named] clinical counsellor, made on 27 July 2018;
·statutory declaration of [a named] psychiatrist, made on 31 July 2018;
·evidence of medical treatment by [a named doctor] (various prescriptions);
·statutory declaration of [Psychologist A], registered psychologist, made on 12 August 2021; and
·letter from [Agency 1] dated 15 June 2023.
The Tribunal has assessed the two most recent pieces of evidence against the provisions of LIN 23/026.
Consideration of the applicant’s Form 1410 statutory declaration of 27 July 2018
The Tribunal notes that the applicant submitted this statutory declaration to the Department.
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 Form 1410 statutory declaration meets the requirements of reg 1.25(1) and (2).
Consideration of evidence specified in LIN 23/026
Legislative Instrument LIN 23/026 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:
·any of the following made by a family violence support service provider who is acting in their professional capacity: report; letter; risk assessment; statutory declaration; and
·any of the following made by a psychologist who is acting in their professional capacity: report; letter; statutory declaration.
Letter from [Agency 1] dated 15 June 2023
Amongst other things, the legislative instrument requires that evidence from a family violence support service provider:
(a) state that the alleged victim has made a claim of family violence; and
(b) state in their professional opinion whether the claims of the alleged victim are consistent with them having been subject to family violence; and
(c) identify the alleged perpetrator or provide information from which the identity of the alleged perpetrator can reasonably be inferred.
The Tribunal finds that the letter from [Agency 1] fulfils the requirements.
Statutory declaration of [Psychologist A] made on 12 August 2021
Amongst other things, the legislative instrument requires that a psychologist’s evidence:
(a) state that the alleged victim has made a claim of family violence; and
(b) state in their professional opinion whether the claims of the alleged victim are consistent with them having been subject to family violence; and
(c) identify the alleged perpetrator or provide information from which the identity of the alleged perpetrator can reasonably be inferred.
The Tribunal finds that [Psychologist A’s] statutory declaration fulfils the 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 that, during her relationship with the sponsor, she experienced verbal, emotional and physical abuse perpetrated by the sponsor. She detailed her claims in her statutory declaration. The Tribunal elected not to question the applicant about these matters in detail at the hearing as there are many other pieces of credible evidence—both on the Department’s file and the Tribunal’s file—that support her claims and it was clear that she found speaking about the sponsor’s abuse to be distressing. The Tribunal found the applicant to be credible and accepts her evidence.
At the hearing, [Neighbour A] gave credible oral evidence that he was aware that the sponsor had lost his job, was gambling and had accrued debts. He said that, from his knowledge, the applicant had been the victim of family violence perpetrated by the sponsor ‘truly, one hundred per cent’. He said that he held this view because of both reports he had heard and having seen for himself bruises on the applicant’s face. [Neighbour A] also told the Tribunal that the sponsor had threatened and acted violently towards the applicant’s children. [Neighbour A] gave detailed evidence about a number of aspects of the family violence claim. The Tribunal found [Neighbour A] to be credible and accepts and gives weight to his evidence. The Tribunal also gives weight to [Neighbour A’s] statutory declaration of 27 July 2018 which is on the Department’s file.
The Tribunal also gives great weight to [Daughter A’s] and [Housemate A’s] oral and declaratory evidence about their knowledge of the family violence.
The evidence from the various professionals that the applicant has sought out for treatment also corroborate the applicant’s claims.
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.
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 820.221(3).
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
·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 3238

3 August 2023

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