1931969 (Migration)

1931969 (Migration) [2023] AATA 2201 (21 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Uday Mishra (MARN: 0215810)
CASE NUMBER:  1931969
MEMBER:Rachel Westaway
DATE:21 June 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211(2) of Schedule 2 to the Regulations
·cl 820.221(3) of Schedule 2 to the Regulations

Statement made on 21 June 2023 at 2:14pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine relationship before relationship ceased – validly married – financial, household and social aspects of relationship and nature of commitment – evidence from sponsor’s ex-partner and applicant’s current partner – short but genuine relationship – evidence outweighs dob-in allegation of contrived relationship – judicially determined claim of family violence – police reports and intervention order – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5F(2), 65, 359(2), 359A, 376
Migration Regulations 1994 (Cth), rr 1.15A(3), 1.21, 1.22, 1.23, Schedule 2, cl 820.211(2), (8), (9), 820.221(3)(a), (b)(i)
CASE
He v MIBP [2017] FCAFC 206
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 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 applied for the visa on 9 March 2018 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 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 820.211 and cl 820.221 which require at the time of application and decision, the applicant to be the spouse or de facto partner of the sponsoring partner, 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 sponsoring partner: cl 820.211(8) or (9) and 820.221(3)(a) and (3)(b)(i). The applicant claims this occurred in his case.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl. 820.221 because the delegate was not satisfied at the time of the decision that the applicant was the spouse or de facto partner of the sponsor.
The applicant appeared before the Tribunal on 21 June 2023 at 9:30am to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A] who is the current partner and [Mr B] who is the sponsor’s ex-partner.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant was the spouse or de facto partner of the sponsor prior to the relationship ceasing. If this is so determined, the Tribunal can then proceed to determine whether the applicant has suffered family violence perpetrated by the sponsor.
Background
[The applicant] is an Indian citizen who was born in India and who is [Age] years old.
[The sponsor] is an Australian citizen who was born in Australia and who is [Age] years old. The sponsor listed that she was in a previous relationship between [January] 2006 until [February] 2017 and that she had three children from the relationship.
The applicant and sponsor met in person for the first time on 8 October 2017 in [Town], Victoria, Australia. They committed to a shared life together to the exclusion of all others on 10 October 2017, and married in Melbourne, Victoria, on [in] December 2017.
The Department application
The applicant lodged a valid application for a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801) visa on 9 March 2018 on the grounds of being in a spousal relationship with an Australian citizen, the sponsor.
The applicant provided the following evidence in support of their visa application:
·Photos of the applicant and sponsor together and with family and friends
·Bank statement from 20 December 2017 till 20 February 2018.
·Bank statement from 21 February 2018 till 20 April 2018.
·Bank statement from 20 April 2018 till 20 June 2018.
·A statement from the applicant explaining fourteen of the transactions on his bank statement.
·Notice of hearing for a family violence matter between applicant and sponsor listed for [October] 2018, dated 3 September 2018.
·An interim intervention order with the applicant listed as the protected person and the sponsor as the respondent dated [September] 2018.
·A full intervention order with the applicant listed as the protected person and the sponsor as the respondent dated [October] 2018.
·Police statement made by applicant at [City] Police station signed and dated 13 August 2018
·Police statement made by applicant’s current partner [Ms A] at [City] Police station signed and dated 14 September 2018
·Letters from [Barristers] addressed to sponsors ex-partner dated 1 June 2018.
·Letters from [Barristers] addressed to sponsors solicitors dated 12 June 2018.
·Photos of alleged family violence suffered by the applicant.
·Interim statement of bank account dated 20 February 2018 till 7 March 2018.
·Bank statement from 20 October 2017 till 19 December 2017.
·Certificate of marriage between sponsor and applicant dated [December] 2017.
·Form 888, Statutory declaration by a supporting witness in relation to a partner visa application by [Mr C] dated 6 March 2018.
·Form 888, Statutory declaration by a supporting witness in relation to a partner visa application by [Mr D] dated 6 March 2018.
On 17 July 2018, the Department received information that relationship had ceased between the applicant and sponsor.
On 24 August 2018 the Department emailed the applicant inviting them to comment on information received by the Department. This was in regard to the change in relationship status (cessation). The Department provided the applicant with 28 days to respond.
On 13 September 2018, the applicant emailed the Department claiming family violence had been committed against them by the sponsor.
On 13 September 2018 the applicant submitted a detailed email about the alleged family violence committed by the sponsor.
On 19 September 2018 the applicant submitted a detailed email about the alleged family violence committed by the sponsor.
On 9 August 2019 the Department emailed the applicant inviting them to comment on information received by the Department. This was in regard to the change in relationship status (cessation). The Department provided the applicant with 28 days to respond.
On 12 September 2019, the department sent a letter to the applicant containing information concerning the criteria that needed to be met to continue with the visa application. The applicant was asked to provide certain documentation if they wished to proceed with the visa application despite the relationship breakdown. The applicant was asked to contact the Department if the relationship resumed. The applicant was also given the opportunity to withdraw their application.
The Department made a decision to refuse to grant the visas on 25 October 2019, on the basis that the applicant was not able to sufficiently to demonstrate that they were the spouse or de facto partner of the sponsor prior to the cessation of the relationship, as defined under sections 5F and 5CB respectively of the Act. The applicant therefore did not meet subclause 820.221(2)(a). As the applicant failed to meet the criteria in subclause 820.221, the delegate did not proceed to consider whether the applicant met the family violence provisions. As the applicant was not the holder of a subclass 820 visa, the applicant did not meet the requirements of subclause 801.221.
The Tribunal application
The applicant applied for review of the Department’s decision with the Tribunal on 11 November 2019.
The applicant was represented in their review application.
The applicant provided a copy of the Department’s notification letter alongside their review application. The applicant also provided his current Indian passport and an appointment of authorised representative form.
Invitation to provide further information under s.359(2) of the Act
On 11 May 2023, the Tribunal wrote to the applicant under s.359(2) of the Act inviting the applicant to provide further information to support his claims that he was in a spouse or de facto relationship with the sponsor prior to the relationship ceasing. The letter stated that before the Tribunal could consider the family violence provisions in the Act, the Tribunal must be satisfied that the applicant was in a genuine spousal relationship with the sponsor prior to the relationship ceasing.
The letter provided the applicant with 14 days to provide the requested information or request an extension of time to respond. The letter also stated that if the information was not received within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information, and that the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
On the 24 May 2023 and 7 June 2023, the applicant provided submissions in response to the Tribunal’s request for further information:
·A Microsoft word document dated 16 May 2023 detailing the applicant’s timeline in Australia with the sponsor, also documenting the start of the relationship and the allegations of family violence suffered.
·A Microsoft word document which contains a bank statement in the applicant’s name.
·Photos of the applicant and sponsor together along with the sponsor’s ex-partner and children.
·Screenshots of messages between applicant and sponsor, and applicant and sponsor’s uncle.
·Photos of alleged family violence suffered by the applicant.
·[Barristers]’ letter addressed to sponsor’s ex-partner addressing interim order by consent in regard to sponsors visitations rights with her children.
·A PDF file with a collection of letters from [Barristers] addressed to sponsors ex-partner dated 1 June 2018.
·Letter from [barristers] with a summary of incidents that allegedly occurred between applicant and sponsor, as well as sponsor and her niece dated 15 June 2018.
·Child Inclusive Conference memorandum to court address to sponsor and sponsor’s ex-partner in regard to their children and whether agreements have been reached, issues in dispute and risk factors relating to family violence dated 15 August 2018.
·Subpoena from Victoria Police detailing family violence report between applicant and sponsor dated [October] 2018.
·Letter from [Family lawyers] discussing the sponsor, her ex-partner and their children.
·Letter from [barristers] addressed to sponsor’s ex partner dated 24 October 2018.
·Letter from [barristers] addressed to sponsor’s solicitor dated 24 October 2018.
·Letter from psychology [Suburb] about the sponsor dated 28 March 2019.
·A VicRoads vehicle registration advice dated 12 April 2018.
·A family violence video of the applicant dated 22 February 2018.
On 11 May 2023, the Tribunal wrote to the applicant under s.359A of the Act inviting them to comment or respond to certain information before the Tribunal which it considered would, subject to the applicant’s comments or response, be the reason or part of the reason, for affirming the decision under review. This information related to a dob-in received by the Department which alleged that the relationship between the applicant and the sponsor was contrived but had subsequently ceased.
The applicant was provided with 14 days to respond to or comment on the adverse information or request an extension to provide their comment or response. The letter stated that if the Tribunal did not receive the applicant’s comments or response within the period allowed or as extended, the Tribunal may make a decision on the review without taking further action to obtain the applicant’s views on the information, and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
On the 24 May 2023 and 7 June 2023, the applicant provided submissions in response to the Tribunal’s request for further information:
·A Microsoft word document dated 16 May 2023 detailing the applicant’s timeline in Australia with the sponsor, also documenting the start of the relationship and the allegations of family violence suffered.
·A Microsoft word document which contains a bank statement in the applicant’s name
·Photos of the applicant and sponsor together along with the sponsor’s ex-partner and children.
·Screenshots of messages between applicant and sponsor, and applicant and sponsor’s uncle.
·Photos and description of alleged family violence suffered by the applicant.
·[Barristers]’ letter addressed to sponsor’s ex-partner addressing interim order by consent in regard to sponsors visitations rights with her children.
·A PDF file with a collection of letters from [Barristers] addressed to sponsors ex-partner dated 1 June 2018.
·Letter from [barristers] with a summary of incidents that allegedly occurred between applicant and sponsor, as well as sponsor and her niece dated 15 June 2018.
·Child Inclusive Conference memorandum to court addressed to sponsor and sponsor’s ex-partner in regard to their children and whether agreements have been reached, issues in dispute and risk factors relating to family violence dated 15 August 2018.
·Subpoena from Victoria Police detailing family violence report between applicant and sponsor dated 15 October 2018.
·Letter from [Family lawyers] discussing the sponsor, her ex-partner and their children.
·Letter from [barristers] addressed to sponsor’s ex-partner dated 24 October 2018.
·Letter from [barristers] addressed to sponsor’s solicitor dated 24 October 2018.
·Letter from psychology [Suburb] about the sponsor dated 28 March 2019.
·A VicRoads vehicle registration advice dated 12 April 2018.
·A family violence video of the applicant dated 22 February 2018.
Invitation to comment on validity of non-disclosure certificate
On 11 May 2023, the Tribunal wrote to the applicant advising that the Department had issued a non-disclosure certificate under s.376 of the Act seeking to prevent the disclosure of certain folios on the Department’s file on the basis that it would be contrary to the public interest to disclose the contents of those folios. A copy of the non-disclosure certificate was attached to the Tribunal’s letter. The letter went on to explain that the Tribunal had reviewed the information sought to be protected by the certificate and found it related to a dob-in received by the Department which alleged that the relationship between the applicant and the sponsor was contrived and for the purposes of obtaining an Australian Visa.
The letter stated that subject to the applicant’s comments, the Tribunal proposed to find that the certificate was valid and invited the applicant to comment on the validity of the certificate. The letter provided the applicant with 14 days to make any comments or submissions they may wish to make regarding the validity of the certificate.
The Tribunal discussed the non-disclosure certificate at hearing with the applicant and the gist of the information and he stated he understood the relevance of the material but outlined that the relationship was not contrived and detailed elements of the relationship including the claim that the sponsor paid for the visa application and his car and he later repaid her. He also stated that when the relationship ended he left the car for her and did not seek a property settlement relating to her home which she owned prior to the relationship. He claims he loved her and it was not contrived. He suspected that [Mr E] a friend of the sponsor may have tried to cause trouble and do something such as this.
The Tribunal has considered the evidence before it in its entirety regarding the applicant and sponsor’s spousal relationship. It notes that whilst the relationship was for a relatively short duration it does not detract from the evidence at hand which supports that the relationship was not contrived.
Whether the parties are in a spouse or de facto relationship
Clauses 820.221(1)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who 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 of 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 of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are 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. The Tribunal is in receipt of a marriage certificate dated [December] 2017. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).
Are the other requirements for a spouse relationship met?
Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.
The applicant has provided copies of bank statements detailing joint purchases for daily living expenses with the sponsor during their relationship. He outlined to the Tribunal how the sponsor paid for his visa application and his car and stated he later paid her back but there was a sharing of finances and a trust between them. The applicant’s witness, [Mr B] stated that the applicant would often pay for gifts and incur expenses associated with his children with his former wife (the sponsor) which he appreciated.

The applicant worked and stated he shared general living costs with the sponsor.
Based on the evidence before the Tribunal, the applicant and sponsor pooled their financial resources and supported each other financially when required. The Tribunal is satisfied that the financial aspects of the relationship demonstrated shared responsibility to the degree expected of a couple in a spousal relationship.
Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.
Social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.
·Photos of the applicant and sponsor together along with the sponsor’s ex-partner and children.
·Screenshots of messages between applicant and sponsor, and applicant and sponsor’s uncle.
·Witness evidence by [Mr B], the sponsor’s former husband and father of her children detailing how the applicant was very involved in the children’s lives even after the separation and that the children and [Mr B] recognised the applicant as the sponsor’s husband.
·Witness evidence by [Ms A], the sponsor’s new partner who explained that she knew the applicant through friends who all recognised the applicant as the spouse of the sponsor and that she too recognised this.
·At hearing the applicant stated that his parents had passed away and he was not close to his siblings due to an estate division after his mother died and the fact that his family are Muslim and he was not a practising Muslim. He explained that his maternal Aunt was aware of his marriage and supportive but did not meet the sponsor and has not met his current partner.
The Tribunal is satisfied on the evidence before it that the sponsor and applicant presented themselves as husband and wife to their family and friends and undertook joint social activities. The Tribunal accepts the applicant’s explanation as to why his own family were not involved in their life.
Nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.
- A Microsoft word document dated 16 May 2023 detailing the applicant’s timeline in Australia with the sponsor
- Evidence at hearing from the witness [Mr B] who confirmed that the applicant was committed to the sponsor’s children and he appreciated the care and love the applicant provided them and his thoughtfulness when taking the children out with the sponsor and arranging Christmas gifts when the sponsor was not attentive to her own children.
- The applicant stated that when he met the sponsor and they decided to marry she was happy to support him financially for his visa application and she offered to apply for the visa herself and undertook research. The sponsor also paid for a car for the applicant. He stated this is indicative of their support and trust in each other prior to the family violence occurring.
- The applicant stated at hearing that he loved the sponsor and that in spite of the violence and her deterioration due to drugs and alcohol he went back to her three times before he could no longer tolerate the abuse.
- The applicant stated that the sponsor was pregnant in the early part of the relationship but decided to terminate the pregnancy. He explained he attended the hospital with her and it was a joint decision. He explained that she had lost custody of her children to her former husband and could only see them with supervised access which the applicant provided. He explained that the decision was made jointly as the sponsor was worried about how her other two children would feel and that the timing was not right given the custody issues she was facing.
The Tribunal places significant weight on the witness testimony from [Mr B] who outlined in detail the involvement the applicant had in their lives and how his former wife was in a much better mental health state in the early part of the relationship with the applicant. The evidence before the Tribunal indicates that the applicant was committed to the sponsor in her access to her two son’s and the care of them and that the sponsor was committed to the applicant in her support for him and assistance whenever he needed it. The Tribunal notes that the couple discussed and shared the responsibility for the timing of starting a family. The Tribunal is satisfied that the level of commitment demonstrated is what is expected between a couple in a spousal relationship.
Any other circumstances of the relationship.
The applicant confirmed that the relationship with the sponsor ended [in] June 2018. He stated that it ended due to family violence and that he believed the sponsor was a good person but mixed with the wrong people and abused drugs and alcohol.
He claims he has not seen her since then although she would message him day and night until he blocked her on his phone.
The applicant provided police reports regarding the applicant and her abusive history. The witness [Mr B] stated his former wife has served time in prison and whilst he acknowledged that the relationship between the applicant and sponsor was genuine in his mind, he believed that the sponsor was not a good person and was not surprised by the alleged family violence as he too had experienced it.
The applicant provided a copy of LEAP reports from Victoria Police outlining the numerous times the police were called to the applicant and sponsor’s home. The applicant provided a copy of an interim intervention order and a final intervention order to protect him from the sponsor.
The applicant submitted a considerable amount of documentary, written and photographic evidence to the Tribunal about the financial and social aspects of their relationship, the nature of their household and the nature of persons' commitment to each other. Further the witness evidence at hearing was compelling. In the Tribunal’s opinion the information and evidence the applicant provided strongly indicates that at the time of application the parties had a mutual commitment to a shared life as a married couple to the exclusion of others, they were in a genuine and continuing relationship, and they were living together. The additional evidence provided on review, such as the witness evidence and details about the sponsors children and the care provided by the applicant during their relationship, reinforces such a conclusion. In the opinion of the Tribunal the totality of the evidence outweighs the allegation made to the Department regarding the relationship being contrived. On the evidence before it and having regard to all the matters specified in reg 1.15A(3), the Tribunal finds that at the time the visa application was made the applicant and sponsoring partner had a mutual commitment to shared life as a married couple to the exclusion of others, were in a genuine and continuing relationship, and were living together.
On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2) are met at the time the visa application was made however the relationship ended [in] June 2018 so at the time of this decision, the applicant and sponsor were no longer in a spousal relationship.
Finding on cl 820.211(2)
According to an Australian citizenship certificate included in the visa application, the sponsoring partner is an Australia citizenship. As the spouse of an Australian citizen at the time of application the applicant satisfies cl 820.211(2)(a)(i). Further, as the sponsoring partner was not a prohibited sponsor at the time of application (she was not a woman who was granted a Subclass 204 (Woman at Risk) visa within the 5 years immediately preceding the application) cl 820.211(2)(a)(ii) is met. The applicant thus meets the requirements of cl 820.211(2)(a).
The Tribunal is satisfied on the basis of the sponsorship form included in the visa application that the applicant was sponsored by the sponsoring partner. The Tribunal is satisfied on the documentary evidence before it that both the applicant and sponsoring partner had turned 18 at the time of application. Therefore, the requirement in cl 820.211(2)(c) is met.
As the applicant was the holder of a substantive visa, namely a visitor visa, at the time of application the additional requirements in cl 820.211(2)(d) do not apply to him.
On the basis of the above findings, the applicant meets the requirements of cl 820.211(2).
Family Violence Provisions
In the present case, the applicant claims the relationship with the visa sponsor has ceased, and he has been the victim of family violence. He is seeking establish family violence on the basis of a judicially determined claim of family violence.
On the basis of the evidence, the Tribunal is satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased.
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).
Has a claim of family violence been made under the regulations?
Under reg 1.23, a visa application is taken to include a judicially determined claim of family violence where there is a court order under a State or Territory law against the alleged perpetrator for the protection of the alleged victim from violence, made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise make submissions in accordance with reg 1.24 is provided.
The applicant in this case is seeking to rely on evidence referred to in reg 1.23(4), namely, a final intervention order dated [October] 2018 naming the respondent as [the sponsor] and the affected family member as [the applicant] and noting that the respondent was served a copy of the application and summons and was present at the hearing and agreed to the order being made.
The applicant presented as a credible witness and provided independent witness accounts supporting his claims of being the victim of family violence at the hands of his sponsoring partner. He also provided photographs of the injuries he sustained and a copy of his sponsoring partner’s police record and a LEAP report from Victoria Police detailing the incidents when the police were called to the home he shared with his sponsoring partner.
The Tribunal finds that the presented evidence meets the requirements of reg 1.23. As such, a judicially determined claim of family violence has been made under reg 1.23.
Has the applicant suffered family violence?
On the basis of the applicant’s submission and the final intervention order dated [October] 2018 naming the respondent as [the sponsor] and the affected family member as [the applicant] and noting that the respondent was served a copy of the application and summons and was present at the hearing and agreed to the order being made as well as other supporting evidence submitted on review, the Tribunal is satisfied that [in] February 2018 the sponsoring partner assaulted the applicant and prevented the applicant from leaving their shared home. Further, that [in] June 2018 the sponsoring partner punched the applicant in the face and asked a friend to get a stick and bash the applicant then he was chased by the sponsoring partner and her friend to a station until a station master called the police. These two incidents towards the applicant caused him to reasonably fear for his safety and to end the parties’ relationship. 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 sponsoring partner 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.
Having considered all of 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.
Accordingly, the Tribunal finds that the applicant is taken to have suffered family violence committed by the sponsor for reg 1.22.
Conclusion
The Tribunal has found that the applicant satisfied cl 820.211(2). The Tribunal has found that parties’ relationship has ceased and that the applicant suffered family violence committed by the sponsoring partner during their relationship. The Tribunal thus finds that the applicant would continue to meet the requirements of cl 820.211(2) except that the relationship between the applicant and sponsoring partner has ceased and the applicant has suffered relevant family violence committed by the sponsoring partner. The applicant therefore meets the requirements of cl 820.221(3). Hence, 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, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
· cl 820.211(2) of Schedule 2 to the Regulations
· cl 820.221(3) of Schedule 2 to the Regulations
Rachel Westaway
Senior Member

ATTACHMENT - Extract from Migration Regulations 1994
1.15A     Spouse
(1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.
(2)If the Minister is considering an application for:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3)The matters for subregulation (2) are:
(a)the financial aspects of the relationship, including:
(i)       any joint ownership of real estate or other major assets; and
(ii)      any joint liabilities; and
(iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)    whether one person in the relationship owes any legal obligation in respect of the other; and
(v)     the basis of any sharing of day to day household expenses; and
(b)the nature of the household, including:
(i)       any joint responsibility for the care and support of children; and
(ii)      the living arrangements of the persons; and
(iii)     any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i)       whether the persons represent themselves to other people as being married to each other; and
(ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)     any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i)       the duration of the relationship; and
(ii)      the length of time during which the persons have lived together; and
(iii)     the degree of companionship and emotional support that the persons draw from each other; and
(iv)    whether the persons see the relationship as a long term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

[2023] AATA 2201

21 June 2023

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