1919314 (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa by a German national. The applicant had previously been granted a Subclass 820 Provisional Partner visa, but his relationship with his sponsor had ceased. The applicant sought to establish that he had suffered domestic violence committed by his sponsor, a claim that was not judicially determined. The core dispute revolved around whether the applicant had satisfied the requirements of the relevant regulations concerning claims of domestic violence, particularly in relation to the assessment of an independent expert's opinion.

The primary legal issues before the Tribunal were whether the applicant had suffered domestic violence committed by the sponsor, as defined by the Regulations, and whether the opinion of the independent expert (IE) regarding the applicant's claims was properly made. Specifically, the Tribunal had to consider whether the IE had correctly applied the definition of "relevant domestic violence" and whether the IE's assessment was reasonable and procedurally fair. The Tribunal was required to determine if the applicant met the criteria for the visa grant under cl.801.221 of the Regulations, which hinged on the establishment of domestic violence.

The Tribunal reasoned that under r.1.23 of the Regulations, a non-judicially determined claim of domestic violence could be satisfied if the Minister or Tribunal was satisfied of the alleged victim's suffering, or if an independent expert's opinion was obtained. The Tribunal noted that "relevant domestic violence" included violence causing fear for personal well-being or safety. While acknowledging that the applicant and sponsor's relationship had ceased and they were divorced, the Tribunal focused on the domestic violence claim. The Tribunal considered the IE's report and the applicant's submissions challenging its validity. It found that the IE's assessment, based on clinical judgment and available evidence, was properly made, and that minor discrepancies in dates did not invalidate the report. The Tribunal also found that procedural fairness had been provided by the IE. Crucially, the Tribunal applied the principle that an IE's opinion, if properly made, must be taken as correct under r.1.23(1C).

Consequently, the Tribunal concluded that the applicant had not been taken to have suffered domestic violence committed by the sponsor under r.1.22. As the applicant did not meet this essential criterion for the visa, nor any alternative sub-criteria, the Tribunal affirmed the decision under review. The Tribunal therefore affirmed the decision not to grant the applicant a Partner (Residence) (Class BS) visa.