1907093 (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, specifically a Subclass 801 visa. The applicant, a national of Iran, claimed that her relationship with the sponsor, an Australian citizen, had ceased and that she had been a victim of family violence. The delegate had refused the visa, acknowledging the family violence claim but finding insufficient documentary evidence to support the genuineness of the relationship at the time of its reported cessation. The Tribunal considered the applicant's oral evidence, which was found to be consistent with supporting statements and declarations, and noted that while the applicant had previously provided inaccurate information on a protection visa application, she was now represented by a different agent and had provided substantially more evidence.

The primary legal issues before the Tribunal were whether the applicant's relationship with the sponsor had genuinely ceased and whether the applicant had suffered family violence committed by the sponsor. The Tribunal was required to determine the genuineness of the relationship prior to its cessation and to assess the claims of family violence, particularly in the context of a non-judicially determined claim. The Tribunal also had regard to the principles established in *MICMSMA v Gupta* [2022] FCAFC 51, which addressed similar issues in the context of a Subclass 100 Residential Partner visa application where the relationship had ceased and family violence was alleged.

The Tribunal reasoned that the applicant's oral evidence was reliable and consistent with other provided documentation, despite a concession regarding prior inaccurate information. It found that the relationship had ceased in April 2018 when the applicant informed the Department of its breakdown and moved out. The Tribunal also considered evidence relating to psychological and physical abuse, accepting findings of an independent expert as correct, though it did not find evidence of financial control or sexual abuse. Applying the principles from *MICMSMA v Gupta*, the Tribunal concluded that the applicant met the criteria for the visa concerning the cessation of the relationship and the occurrence of family violence.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the applicant met the criteria specified in cl 801.221(6)(b) and (c) of Schedule 2 to the Migration Regulations 1994. This direction was based on the findings that the relationship had ceased and that the applicant had suffered relevant family violence committed by the sponsor.