1907093 (Migration) - [2022] AATA 5072

1907093 (Migration) [2022] AATA 5072 (9 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ahmad Vahedian Ghaffari (MARN: 1462882)
CASE NUMBER:  1907093
MEMBER:David Barker
DATE:9 December 2022
PLACE OF DECISION:  Sydney
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 09 December 2022 at 9:46am
CATCHWORDS
MIGRATION – relationship ceased and non-judicially determined claim of family violence –genuineness of relationship before reported cessation – no supporting documentation provided to department – consistent oral evidence and supporting statements – concession of inaccurate information provided in previous protection visa application – financial, household and social aspects of relationship and nature of commitment – unhealthy dynamics and difficulties in adjusting to different cultural context – reported history of trauma within traditional, male-dominated family – claims of financial control and emotional and physical abuse – statutory declarations by specified persons – findings of independent expert taken as correct – psychological and physical abuse, but not financial control or sexual abuse – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), (3), 65
Migration Regulations 1994 (Cth), rr 1.15A(3), 1.21(1), 1.23, 1.24(1)(b), 1.25(2), 1.26, Schedule 2, cl 801.221(6)(b), (c)(i)
CASE
MICMSMA v Gupta [2022] FCAFC 51
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 5 March 2019 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 10 April 2016 on the basis of her relationship with [her sponsor]. 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 Migration Regulations 1994 (Cth) (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 they were not satisfied that the applicant was the spouse or de facto partner of the sponsor prior to the cessation of the relationship.
The applicant appeared before the Tribunal by video on 18 October 2022 to give evidence and present arguments.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The applicant is a national of Iran and is [Age 1] years of age.
[The sponsor] was born in Iran and is an Australian citizen by grant in February 2013. He is [Age 2] years of age. He was previously married from March 2011 to July 2012, with that marriage ending by divorce.
Information provided by the applicant indicates that she and [the sponsor] first met in Tehran, Iran in October 2006 and subsequently committed to a shared life together in October 2014. The applicant came to Australia [in] September 2015 on a Subclass 300 Prospective Marriage visa, sponsored by [the sponsor].
On 4 April 2018, by way of email, the applicant advised the Department, that her relationship with [the sponsor] had broken down. This was confirmed by an email sent to the Department by [the sponsor] on 20 October 2018.
In explaining why they refused the Subclass 801 Residential Partner visa (the 801 visa), the delegate acknowledged the claim of family violence, but did not give this factor consideration as despite repeated requests sent to the migration agent then assisting the applicant, no supporting documentary evidence was provided to demonstrate the applicant and [the sponsor] were in a spousal or de facto relationship at the time of the reported cessation of the relationship.
The Tribunal has taken the cessation of the relationship to have occurred at the point the applicant informed the Department that the relationship had ceased and that she had moved out from the apartment she was sharing with [the sponsor] in [Suburb 1], NSW, in April 2018.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case, the applicant claims the relationship with [the visa sponsor] has ceased, and she has been the victim of family violence.
The applicant provided her evidence at hearing in a manner which was emotionally congruent with the issues under discussion. She responded to every question from the Tribunal without hesitation and with no attempts to deflect or distract from the issue under discussion. The applicant’s oral evidence at hearing is consistent with that contained in statements and declarations prepared by her and other declarants, as well as the documentary evidence provided in association with the review application. The Tribunal formed the view that the applicant is a reliable source of information about her circumstances. The Tribunal makes this finding in knowledge of the applicant’s concession that all information provided by her in relation to a previous unsuccessful protection visa application was not accurate. The Tribunal also notes that the applicant has engaged a different representative and that there is substantially more evidence before the Tribunal regarding aspects of the applicant’s relationship with [the sponsor], prior to the cessation of that relationship, then was available to the delegate at the time of their decision.
The Tribunal is aware of cases in the Federal Circuit Court of Australia (FCCA) and Federal Court of Australia (FCA) which dealt with applications for residential Partner visas, where the relationship with the sponsoring partner had ceased. In MICMSMA v Gupta [2022] FCAFC 51 the Court dealt with a matter pertaining to an application for a Subclass 100 Residential Partner visa, where the relationship had ceased and there was a claim that relevant family violence had occurred. The Tribunal is of the view that the principles established in MICMSMA v Gupta are relevant to the current matter, which involves an application for a Subclass 801 visa.
In MICMSMA v Gupta the Court held that:
·when considering the family violence exception, cl 100.221(4)(a), (b) and (c)(i) respectively require that, at the time of decision, the decision-maker must be satisfied that the applicant holds a subclass 309 visa; the married or de facto relationship within the meaning of ss 5F or 5CB of the Migration Act 1958 (Cth) between the applicant and the sponsor has “ceased”; and, since the applicant arrived in Australia, the sponsor committed family violence;
·for the decision-maker to be able to determine if the relationship has “ceased” they must first be satisfied that it existed, and this requires consideration of the evidence of the relationship to determine its genuineness prior to its cessation;
·the requirement that the applicant must hold a subclass 309 visa does not create any presumption that a married or de facto relationship existed such that the Tribunal need only consider whether it had ceased for the purposes of cl 100.221(4)(b).
Consistent with these principles, the Tribunal first considered whether the available evidence supports the applicant’s claim that she was in a genuine spousal relationship with [the sponsor] prior to the cessation of the relationship in April 2018.
‘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 husband and wife 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 as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and sponsor’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.
Financial aspects of the relationship
The applicant’s evidence is that before she started working, she was mostly responsible for cooking, grocery shopping and household chores. The applicant states that [the sponsor] shared access to his credit card and account with her, but that he did not want her to use the credit card unless necessary, and he would put a set amount of money in the account for everyday expenses.
The applicant contends that her employment income was deposited into the account held jointly with [the sponsor] in [Bank]. She indicated this joint account was set up after she started working and that [the sponsor]’s earnings, which went into his existing bank account, went towards accumulating some savings. The applicant has provided transaction statements for this account covering a period from October 2016 to December 2017. The Tribunal’s review of these account statements supports the applicant’s claims that regular household expenses such as rent, groceries, petrol, take away food, internet and utility expenses were at different times paid from this account.
The applicant contends that [the sponsor] assumed increased control over how money in the joint account was spent as the difficulties in their relationship increased. She describes a situation where he cut off her access to a credit card linked to the joint account at a point he was accusing her of disobedience.
In considering the financial aspects of the relationship, the Tribunal has viewed it in the context of the applicant possessing few, if any, financial assets when she came to Australia and [the sponsor] also having the history of arriving in Australia on a humanitarian visa in 2013. In this context, the Tribunal has found nothing untoward in there being no major shared assets or liabilities between the applicant and [the sponsor]. The applicant’ claims as to how her employment income was used to meet regular household expenses is supported by the account statements she has provided to the Tribunal.
The situation where the applicant was at one stage working three different casual jobs and putting up with [the sponsor] having primary control over her employment income is unfortunately, not unique in couple relationships and the Tribunal does not consider it to be an indicator that the relationship had ceased prior to the date on which the applicant notified the department that she had left the relationship. The Tribunal is satisfied the financial aspects of the relationship are consistent with two people in a spousal relationship, albeit with certain unhealthy dynamics.
The Tribunal perceives nothing in the financial aspects of the relationship between the applicant and [the sponsor] to be a factor upon which it would put adverse weight when assessing whether, before it ceased, there was a commitment to a shared life together between the applicant and [the sponsor], up until the relationship ceased.
Household aspects of the relationship
In relation to the nature of the parties’ household arrangements, until the reported cessation of the relationship, the Tribunal is satisfied that the applicant moved in with and established a shared household with [the sponsor], from the time of her arrival in Australia [in] August 2015 until she moved out of that shared household on 29 January 2017. There is nothing in the evidence before the Tribunal, with respect to the household arrangements of the applicant and [the sponsor] during the period it is claimed they shared a household together, which would cause the Tribunal to doubt this claim.
Documents provided to the Tribunal in association with the review include correspondence, over a period from June 2016 to February 2017, from real estate managers to the applicant and [the sponsor] regarding the apartment where they resided in [Suburb 2]; and, the March 2017 period with regard to another property they rented in [Suburb 1], after the owners of the [Suburb 2] property wished to resume living in that apartment.
The Tribunal has also been provided with an electricity account in the name of both the applicant and [the sponsor], for the [Suburb 2] property, from early 2017 and copies of a joint [Bank] account, providing the [Suburb 1] property address, covering the period from July 2017 to December 2017 and account statements for the same account addressed to the parties at the [Suburb 2] property address covering a period from March 2016 to April 2017.
A discharge summary from [Hospital], dated 6 September 2017, makes reference to the applicant and her husband being located at the [Suburb 1] property address when attended by ambulance officers.
The Tribunal is satisfied the available evidence supports a finding that the applicant shared households with [the sponsor] in rental properties in [Suburb 2] and [Suburb 1] from the time of the applicant’s arrival in Australia in September 2015 until she moved out of the [Suburb 1] property in February 2018. The Tribunal is satisfied that the nature of the parties’ household arrangements, up until the cessation of the relationship in February 2018, were indicative of a married couple in a shared household.
Social aspects of the relationship
In relation to the social aspects of the applicant and [the sponsor]’s relationship, the Tribunal is satisfied that they represented themselves as a married couple to friends in social situations throughout the time they were living together from 2015 to 2018. The Tribunal has reviewed the statements and declarations provided in association with the visa application and the claim of family violence and is satisfied that this supports the applicant’s claim that in the public domain, the applicant and [the sponsor] presented as a married couple in a committed relationship. The Tribunal also notes that the applicant and [the sponsor] travelled together with friends to Queensland at a time they are reported to have been in private experiencing relationship difficulties. The Tribunal does not consider this to be unusual in the context of the history provided by the applicant, where there is a distinction between the private and public domains in a couple relationship.
The Tribunal has reviewed witness support letters, provided in association with the review and notes:
·A letter from [Ms A], dated 8 October 2022, the applicant’s employer between July 2017 and 2019, who attests to the applicant informing her around six months after she started working in [Ms A]’s [Workplace 1] that there were difficulties in her marriage to [the sponsor] and that this was affecting her, as she had been in love with him since she was 22 years old;
·A letter from a friend of the applicant, [Ms B], dated 8 October 2022, explains she has known the applicant since early 2016, through a [Workplace 2], where the applicant was working. [Ms B] attests to both the genuine nature of the applicant’s relationship with [the sponsor] and of the difficulties encountered by the applicant in the relationship until she left the relationship in 2018. [Ms B] indicated she can offer these opinions on the basis of frequent contact she has had with the applicant since 2016;
·A letter from a friend of the applicant, [Ms C], dated 4 October 2022, explains she knew both the applicant and [the sponsor] from the time her husband started working in [the sponsor]’s [business] in 2017. Ms [C] indicates she and her husband had social contact with the applicant and [the sponsor] and that she formed the opinion they were a decent couple in a genuine ongoing relationship;
·A letter from an acquaintance of the applicant, [Ms D], dated 6 October 2022, explains she has known the applicant since early 2016, through a [Workplace 2], where the applicant was working. [Ms D] states that she did not have contact with the applicant and [the sponsor] at times they were presenting as a couple, but that her son had observed them together. [Ms D] reports that she is an Iranian – Australian woman and attested to the male dominated nature of Iranian society and the difficulties that can occur for Iranian women;
·A letter from a colleague and friend of the applicant, [Ms E], dated 6 October 2022, explains she met the applicant in [a Workplace 3] where they both worked in 2019. [Ms E] states that the applicant shared personal details of her past difficulties whilst in the relationship with [the sponsor];
- A letter from [Mr F], manager of the [Workplace 4], dated 30 September 2022, states the applicant commenced work as [an Occupation] at the [workplace] in 2019 and that she has proven herself to be extremely reliable, trustworthy, hardworking and a person held in high regard. [Mr F] explains that his wife has provided the applicant with emotional support and that the applicant provided a narrative of her marital difficulties which the Tribunal notes is consistent with what is outlined in other evidence before the Tribunal.
·A letter from [Ms G], a person who knew [the sponsor] when he lived in [Country], prior to his coming to Australia. [Ms G] indicates [the sponsor] introduced her to the applicant after the applicant and [the sponsor] were married and that they communicated over Skype. [Ms G] indicates she and her husband also visited the applicant and [the sponsor], when they came to Australia for a holiday in 2017 and spent Christmas day with the applicant and [the sponsor] in their home near [Suburb 1]. [Ms G] states they then were accompanied by the applicant and [the sponsor] on a trip to Queensland and that she can attest to their relationship being genuine during the period she and her husband and child were in Australia on that trip.
The Tribunal is satisfied positive weight can be attributed to the witness statements and in particular that of [Ms G]. This is because her statement, and to an extent all of the statements, provided clear and convincing explanations for the views expressed that the applicant and [the sponsor] were in agenuine marriage, albeit with abusive dynamics.
The Tribunal considers the social aspects of the relationship during the period of the marriage provides a strong indication of a genuine relationship.
Commitment aspects of the relationship
The applicant gave persuasive evidence that she was committed to her relationship with [the sponsor] until the point her deteriorating mental health and other unhealthy dynamics in the relationship caused her to separate from him. She describes a situation where adjusting to the different cultural contexts of Iran and Australia by different genders within a marriage created a climate within the marriage that was unhealthy and ultimately abusive.
The Tribunal does not have the benefit of evidence from [the sponsor], with regard to this or other aspects of the marital relationship. However, it is apparent, and the Tribunal accepts, that [the sponsor] sponsored the applicant to come to Australia on a Prospective Marriage visa and subsequently married her and sponsored her for a Provisional Partner visa. [The sponsor] shared a household with the applicant in Australia between September 2015 and February 2018. The Tribunal perceives no indicators in these facts to suggest there was not at that time, a commitment from [the sponsor] to the marriage.
Assessment of the spousal relationship

The Tribunal considers that the totality of the evidence before it indicates that the applicant and [the sponsor] were in a spousal relationship up until that relationship ceased in February 2018. The Tribunal considers plausible and reasonable the applicant’s oral evidence at hearing that she was genuine and committed in her intention to remain in the spousal relationship, notwithstanding the abusive behaviour she was subjected to, until the escalation in that abusive behaviour after her return from a trip to Iran made this increasingly difficult and harmful to her physical and mental health.
Having had regard to all of the circumstances of the relationship, including the evidence of the financial and social aspects and the nature of the applicant’s and [the sponsor]’s household and their commitment to each other as set out in r.1.15A(3), the Tribunal is satisfied that the applicant and [the sponsor] were in a spousal relationship. Furthermore, the Tribunal is satisfied that this relationship has ceased, on 8 March 2017, being the date [the sponsor] notified the Department that the relationship with the applicant had broken down and that he wished to withdraw sponsorship in relation to her partner visa application.
A further 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 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 applicant in this case is seeking to rely on evidence referred to in reg 1.24(1)(b) – namely, a statutory declaration under reg 1.25 together with two statutory declarations under reg 1.26 by competent persons who hold different qualifications.
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).
A statutory declaration by a competent person under reg 1.26 must: be made by a competent person (as defined in reg 1.21(1)); set out the basis of the person’s claim to be a competent person for the purposes of the Regulations; state that in the competent person’s opinion, relevant family violence has been suffered by a person; name the person who in the opinion of the competent person has suffered that relevant family violence; name the person who in the opinion of the competent person committed that relevant family violence; name the person to whom the conduct was directed and their relationship to the alleged victim (if the conduct was not towards the alleged victim) and set out the evidence on which the competent person’s opinion is based.
The applicant provided the Department with statutory declarations declared on 11 October 2022. The Tribunal is satisfied that the applicant’s statutory declarations set out the allegation of relevant family violence and named the person alleged to have committed the relevant family violence against the applicant. The Tribunal is satisfied that the applicant’s statutory declaration meets the requirements of r.1.25(2).
The applicant provided to the Tribunal a discharge summary from [Hospital], prepared by [Dr H], Medical Officer, dated 10 April 2018, which identifies the applicant and details treatment for mental health that is consistent with the claimed family violence. The Tribunal is satisfied that the discharge summary was made by a medical practitioner who was performing the duties of a medical practitioner. The Tribunal is satisfied that the discharge summary meets the requirements of r.1.24
The applicant provided to the Tribunal a statutory declaration declared by [Ms I], registered psychologist, dated 10 October 2022. The Tribunal is satisfied that the statutory declaration was made by a psychologist registered to practise, who has treated the alleged victim while performing the duties of a psychologist. The Tribunal is satisfied that the statutory declaration of [Ms I] meets the requirements of r.1.24.
The applicant provided to the Tribunal a statutory declaration declared by [Dr J], registered general practitioner, dated 1 November 2022, which identifies the applicant and details treatment for mental health that is consistent with the claimed family violence. The Tribunal is satisfied that the statutory declaration was made by a medical practitioner who was performing the duties of a medical practitioner. The Tribunal is satisfied that the statutory declaration of [Dr J] meets the requirements of r.1.24.
The Tribunal is satisfied that the information provided by the applicant meets the required evidentiary requirements to make a claim that she has suffered relevant family violence. She has provided statutory declarations meeting the requirements of reg 1.25(2) and 1.26. 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 oral evidence at hearing provided by the applicant is consistent with that contained in documentary evidence provided to the Department and Tribunal in relation to the family violence claim. The applicant gave evidence at hearing that [the sponsor] expected her to quickly make a transition from her formative experiences growing up as a woman from a traditional family in Iran to the more liberal western society in Australia. When she experienced difficulty adjusting to her new life in Australia, [the sponsor] grew increasingly frustrated and unsatisfied in the marriage. The applicant gave evidence that [the sponsor] pressured her to do things which women who had grown up in Australia may take for granted, such as going out alone and using public transport alone.
The applicant gave evidence that [the sponsor] became increasingly controlling and emotionally abusive towards her. She indicated this was very confusing to her, due to her expectation they would be happy in the marriage and forge a life together in Australia. She indicated that the behaviour of [the sponsor] became abusive in a variety of ways, including physically. The applicant indicated that in the face of this behaviour and [the sponsor]’s threats to divorce her she became increasingly depressed and worried. She said that she sought work, as she thought this would please [the sponsor] and the employment she gained as [an Occupation] was one of the few positive elements in her situation.
The applicant gave evidence that [the sponsor] expected to control her employment income and expected her to pay for their rent and grocery expenses and also assist in meeting expenses associated with the [business] he was trying to build. She indicated that she experienced particular difficulty when [the sponsor] pressured her to travel back to Iran in 2017, despite him being aware of difficulties she experienced in her family of origin. The applicant gave evidence that the despair and anxiety she was experiencing led to her making an attempt on her life in September 2017. She said she made the trip to Iran after this attempt, in an effort to please [the sponsor], but that things were not improved when she returned to Australia a month later.
She said this all contributed to her decision to move out of the martial home in February 2018. She said she was confused, anxious and depressed and that this influenced poor decision making on her part, which resulted in her taking advice to lodge a protection visa application in which she enhanced some aspects of the traumatic elements of her experiences in her family of origin in Iran.
Having considered all of the evidence before it, including the applicant’s concession she had in past visa applications enhanced claims, and remaining mindful that elements of the applicant’s evidence seemed to describe a situation where underlying mental health conditions were triggered by her difficulty adjusting to life in Australia and the failure of the marriage upon which she had invested many expectations, the Tribunal’s own assessment was that it was not clear, for the purposes of reg 1.23, that the applicant has suffered relevant family violence. In accordance with that regulation, the Tribunal sought the opinion of an independent expert.
On 30 November 2022, the independent expert provided an opinion that the applicant had suffered relevant family violence. The independent expert was not satisfied the applicant was subjected to financial or sexual abuse. The independent expert did, however, find that [the sponsor] subjected the applicant to psychological and physical abuse.
With respect to the psychological abuse, the independent expert indicated that this included [the sponsor] being verbally abusive, critical, blaming, intimidating, threatening and harassing. The independent expert noted that the identified psychological abuse perpetrated by [the sponsor] caused the applicant to experience a significant deterioration in her mental health that eventually culminated in her attempting to commit suicide in September 2017. The independent expert opined that the psychological abuse perpetrated by [the sponsor] gave cause for the applicant to have reasonably feared for, or was reasonably apprehensive about, her own wellbeing or safety as a result of that behaviour by [the sponsor].
With respect to the physical abuse, the independent expert indicated that this included slaps and pushing, which contributed to the deterioration in the applicant’s mental health. The independent expert opined that the physical abuse perpetrated by [the sponsor] gave cause for the applicant to have reasonably feared for, or was reasonably apprehensive about, her own wellbeing or safety as a result of that behaviour by [the sponsor].
The independent expert stated that in their opinion, the applicant’s claim of psychological and physical abuse constitutes relevant family violence as defined by the Regulations. The independent expert states that based on the available evidence at the time of their assessment, the applicant’s claim meets the criteria of family violence defined by the Regulations.
In relation to the applicant’s reported history of trauma within her family of origin in her home country, the independent expert opined that this played a role in her experiences within her relationship with [the sponsor], including it having an influence on her perception and reactions and that has influenced how she has interpreted some behaviours by [the sponsor], including those that were likely benign, at least initially. The independent expert opined that [the sponsor], in not being willing or because he was ill-equipped, or both, to appropriately support the applicant in managing these challenges, rather than handle the situation appropriately, became another person to contribute to her experience of family violence. The independent expert opined that notwithstanding the applicant’s heightened psychological reactions due to the experience of trauma, this did not negate the inappropriateness of the abuses perpetrated against her by [the sponsor], nor diminish the significance of that abusive conduct, and there are no grounds on which the treatment she experienced is considered acceptable.
In relation to the applicant’s concession that she had made less than fully honest claims in a previous protection visa application, the independent expert opined that the applicant said that she did so at a time when she was not cognitively able and with the encouragement of [the sponsor]. The independent expert did not accept that the applicant’s cognitive functioning was so impaired as to grossly limit her decision making and reasoning processes, but did accept that she was anxious about potential negative outcomes should her partner visa be revoked after the separation and that there were distortions and faults in her thinking that contributed to this poor decision making.
The independent expert opined that whilst this deceit raised concerns for the current application found that these concerns were addressed to satisfaction and while it is evident that the applicant has not been frank at times, that did not imply that the entirety of her claim under consideration is fraudulent and, indeed, did not accept that is the case. The independent expert found that the applicant was able to provide a consistent, coherent and plausible account of her family violence experiences and appropriately addressed relevant concerns about her account.
Conclusion on opinion provided by the independent expert
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, who is an employee of an organisation specified for this purpose, and was therefore 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. Based on its assessment of the available information, the Tribunal is satisfied that the psychological and sexual abuse that the applicant was subjected to by [the sponsor] occurred during the period they shared a household together between September 2015 and February 2018. For this reason, the Tribunal is satisfied that the relevant family violence occurred during the period in which the applicant and [the sponsor] were in a spousal relationship.
Accordingly, the Tribunal finds that the applicant is taken to have suffered family violence committed by the sponsor for reg 1.22.
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.
David Barker
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
1.21 Interpretation
(1)In this Division:
competent person means:
(a)in relation to family violence committed against an adult:
(i)       a person registered as a medical practitioner under a law of a State or Territory providing for the registration of medical practitioners; or
(ii)      a person registered as a psychologist under a law of a State or Territory providing for the registration of psychologists; or
(iii)     a person who:
(A)is a registered nurse within the meaning of section 3 of the Health Insurance Act 1973; and
(B)is performing the duties of a registered nurse; or
(iv)    a person who:
(A)is a member of the Australian Association of Social Workers or is recognised by that Association as a person who is eligible to be a member of that Association; and
(B)is performing the duties of a social worker; or
(v) a person who is a family consultant under the Family Law Act 1975; or
(vi)    a person holding a position of a kind described in subregulation (2); or
(b)in relation to family violence committed against a child:
(i)       a person referred to in paragraph (a); or
(ii)      an officer of the child welfare or child protection authorities of a State or Territory.
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.
(2)The positions referred to in subparagraph (a)(vi) of the definition of competent person in subregulation (1) are:
(a)manager or coordinator of:
(i)       a women's refuge; or
(ii)      a crisis and counselling service that specialises in family violence; or
(b)a position with:
(i)       decision-making responsibility for:
(A)a women's refuge; or
(B)a crisis and counselling service that specialises in family violence;
that has a collective decision-making structure; and
(ii)      responsibility for matters concerning family violence within the operations of that refuge or crisis and counselling service.
…
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)unless the alleged victim had, before 1 January 1998, claimed to Immigration to have suffered domestic violence committed by the alleged perpetrator — that 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.