2003271 (Migration)

[2024] AATA 4140

2003271 (Migration) [2024] AATA 4140 (2 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Nigel James Dobbie

CASE NUMBER:  2003271

MEMBER:Meena Sripathy

DATE:2 October 2024

PLACE OF DECISION:  Sydney

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 of Schedule 2 to the Regulations; and

·cl 820.221(3) of Schedule 2 to the Regulations

Statement made on 02 October 2024 at 11:11am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – application made more than 28 days after last substantive visa held – genuine and continuing relationship at time of application accepted – relationship ceased and claim of family violence – controlling and abusive behaviour – ADVO and letters from practitioners – long residence, study, work, social network and new partnership – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5F, 65, 360(2)(a)
Migration Regulations 1994 (Cth), rr 1.21, 1.22, 1.23(1), Schedule 2, cls 820.211(2)(a), (d), (8), (9), 820.221(3)(a), (b)(i), Schedule 3, criteria 3001, 3003, 3004

CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Plaintiff M64/2015 v MIBP [2015] HCA 50
Waensila v MIBP [2016] FCAFC 32

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 February 2020 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 13 November 2017 on the basis of her relationship with her sponsor. At that time, 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).

3. 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 820.221 which require that at the time of application and decision, 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 820.211(8) or (9) and 820.221(3)(a) and (3)(b)(i). Tthe applicant claims this occurred in this case.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl 820.211 because the delegate was not satisfied that the applicant met the definition of spouse or de facto partner as defined in s5F and s5 CB of the Act.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In the present case, the applicant claims the relationship with the visa sponsor has ceased, and she has been the victim of family violence.

8. The delegate however, refused the application on the basis of not being satisfied the applicant and sponsor were in a genuine spouse relationship prior to the cessation of the relationship.  Therefore, the Tribunal will first consider as a threshold issue whether the parties were in a spouse or de facto relationship prior to its cessation.

   Background

9. The applicant is a [Age]-year-old Thai national.  In her application she states she has no children or living parents.  She lists [living siblings].  She is sponsored for the application by [the sponsor], a [Age]-year-old Australian citizen. He declares [sisters] in Australia and one brother in [Country], and no children. The parties claim to have met in Sydney on 25 December 2014 and married on [Date] in [Town], NSW. The applicant and sponsor each declared one previous marriage. The applicant was married to [Mr A] from [Year] to [Year] and the sponsor was married to [Ms B] from [Year] to [Year]. Both marriages ended in divorce. 

10. Various documents and supporting evidence were lodged with the application, as set out in the delegate’s decision record.  These include the parties’ marriage certificate, their respective divorce certificates; Statutory Declarations dated 12 October 2017 by the applicant and sponsor; Statutory Declaration Form 888s by [Ms C] (25 October 2017), [Ms D] (14 November 2017), [Ms E] (19 August 2017), [Ms F] (28 June 2017) and [Mr G] (14 November 2017); bank correspondence addressed to the parties individually at the same address and a letter confirming a joint [Bank] account; joint tenancy agreement for [Address]; car insurance and utility bills in joint names; various other correspondence addressed to the applicant at that address; an assortment of cards, photos and club membership.

11. Department records indicate that the applicant first arrived in Australia [in] September 2011 on a Subclass 573 student visa, was subsequently granted a Subclass 572 student visa valid until 9 November 2016 and then applied for a Subclass 500 visa was which refused. She applied for a review of that refusal to the Administrative Appeals Tribunal on 27 February 2017.  After lodging the present Combined Partner (subclass 820/801) applications in November 2017, in February 2018 she withdrew the review application for the student visa.

12. On 14 February 2019 the applicant was invited to provide information and submissions to address the Schedule 3 criteria or compelling reasons for why they should not apply, and further evidence in support of the relationship.

13. On 12 March 2019 the applicant emailed the Department describing verbal, physical and sexual abuse perpetrated by the sponsor and that the sponsor was now in a psychiatric ward.

14. On 29 September 2019 the Department received the following evidence relating to the breakdown of the relationship and claim of family violence:

    ·Form 1410 dated 26 August 2019 setting out the allegation of family violence

    ·Final Apprehended Domestic Violence Order in respect of the sponsor to protect the applicant, made on 30 May 2019 and valid to 29 May 2021

    ·Letter dated 6 March 2019 from [Ms H], Women’s Domestic Violence Court Advocacy Service [City]

    ·Letter dated 4 March 2019 from [Ms I], Counsellor

    ·Letter dated 12 March 2019 from [Dr J], GP

    ·Letter dated 5 March 2019 from [Town] Crisis Accommodation Centre

    ·Letter dated 3 May 2019 from [Ms K], Psychologist

15. On 3 February 2020 the application was refused on the basis of insufficient evidence to demonstrate that the applicant was the spouse of the sponsor. The family violence claims were not considered as the delegate was not satisfied that cl. 820.211(2) was met.

    Evidence before the Tribunal

16. The applicant applied for review of the decision on 20 February 2020.  On 7 August 2024, following constitution of the matter to the presiding Tribunal, the applicant was invited to provide any further evidence and submission addressing the issues arising in the review, specifically whether the applicant meets the criteria in cl.820.211 at time of application and cl.820.221 at time of decision.

17. On 19 August 2024 the Tribunal received two bundles of supporting documentation and a submission from the applicant’s representative.

18. The submissions identify three issues arising in the review:

    ·Whether the applicant and sponsor were in a spouse relationship;

    ·Whether the applicant experienced family violence during that relationship; and

    ·Whether there are compelling reasons for not applying Schedule 3 criteria 2001, 2003, and 3004

    and address each of these issues with reference to supporting evidence.

19. The supporting evidence includes the evidence relating to the family violence claim, previously provided to the Department (referred to in paragraph 14 above); evidence relating to financial, household, social and nature of the commitment aspects of the relationship in the period 2017 to end of 2018 including bank statements, correspondence addressed to each of them from a range of sources; joint car insurance; photos; statutory declarations from a range of people.  The Tribunal observes much of this evidence was before the Department.

20. On 27 September 2024, in response to a request from the Tribunal for current information about the applicant’s circumstances relevant to the Schedule 3 compelling reasons issue, the Tribunal received the following:

    ·A submission from the representative dated 27 September 2024

    ·Letter of support from [Ms L], [Company 1], dated 10 September 2024.

    ·Letter of support from [M and N] (undated).

    ·Letter of support from [O] (undated).

    ·Letter of support from [Mr P] (undated).

    ·Letter of support from [Mr Q] (undated).

    ·Letter of support from [Mr R], [Company 1], dated 23 September 2024.

    ·Letter of support from [Ms S], dated 24 September 2024.

    ·Letter of support from [Ms T] (undated).

    ·Letter of support from [U], Director, [Company 2], dated 9 September 2024.

    ·Statutory declaration of [Mr V], dated 23 September 2024.

21. On 1 October 2024 the Tribunal received

    ·Statutory Declaration by the applicant dated 30 September 2024 and a

    ·Support letter from [Mr W], current partner of the applicant, dated 30 September 2024.

22. The Tribunal has carefully considered the evidence provided to the Department and Tribunal, and the submissions on behalf of the applicant. It is satisfied that the applicant meets the criteria in cl.820.211 and cl. 820.221 for reasons set out below.

    Were the parties in a spouse relationship at time of application

23. At the outset, the Tribunal accepts the submission of the representative that there are challenges faced by an applicant who has experienced family violence in providing evidence of the relationship. It acknowledges that assessment of a relationship after it has broken down due to family violence is difficult for reasons of limited evidence from the sponsor and the circumstances of alleged abuse and violence between the parties potentially colouring the evidence of the relationship during that period.

24. The Tribunal notes that the applicant’s description of the increasingly abusive, controlling and violent behaviour of the sponsor from the time of their marriage that she provided to the Department in her statement of 26 August 2019 gave a rather different picture of the relationship to that which she gave in the Statutory Declaration she and the sponsor submitted with the application dated 12 October 2017.  However, on the basis of  established research on family violence, the Tribunal recognises that a myriad of barriers can keep victims of family violence from leaving an abusive relationship[1] and the fact that the applicant stayed in an abusive relationship does not of itself detract from the credibility of her claims of being in a relationship with the sponsor. The Tribunal also accepts that a distinguishing characteristic of domestic and family violence is that it can involve a complex pattern of controlling behaviour and violence over a period of time, more commonly now recognised as ‘coercive control.’[2] Accepting or recognising that there was controlling and abusive behaviour in the relationship clearly cannot and should not preclude recognition of the relationship as a spouse relationship within the meaning of that term in s5F having regard to all relevant matters.

    [1] Myths and misunderstandings - National Domestic and Family Violence Bench Book (aija.org.au)

    [2] Factors affecting risk - National Domestic and Family Violence Bench Book (aija.org.au)

25. With this in mind and taking into account the context of the circumstances of domestic violence and evidentiary limitations, the Tribunal is satisfied that the applicant and the sponsor were in a spouse relationship which ceased on 25 January 2019 for reasons of family violence.  In reaching this conclusion, it has considered, and accepts, that the applicant and sponsor were living together from March 2017 until 25 January 2019.  A substantial amount of correspondence addressed to each of them separately places them at this address, including her bank statements, Amaysim accounts, utility bills in joint names, receipts for medical bills among other documents.

26. Regarding financial aspects of the relationship, the Tribunal notes that the documentation provided does not indicate that the parties had or used a joint bank account, although they appeared to both have debit cards.  Various receipts and utility bills in joint names indicate that the applicant was paying for general living expenses and given that the Tribunal has accepted above that they were living together in this period, it accepts that their expenses were therefore pooled. In her Statutory Declaration detailing the abuse in the relationship, she refers to the sponsor ceasing work and taking her income to gamble. The letter from [Dr J] dated 12 March 2019 also details the financial arrangements between them, characterising it as financial control.  While not a fair sharing of expenses or pooling of resources, but rather indicative of financial abuse taking place, this is not inconsistent with the existence of a spouse relationship.

27. With respect of social aspects of the relationship, the evidence of support statements submitted from a range of people including friends, colleagues and acquaintances of the sponsor, demonstrates that the parties presented as a couple publicly. Documentation submitted from NSW Health relating to impending surgery for the sponsor indicates he declared her as his ‘person for notification’ describing her as his wife on numerous occasions (October 2017, and January 2018). Various photographs were also submitted showing the couple socialising together and with others.

28. Regarding the nature of the commitment, the Tribunal has considered the evidence of  statutory declarations submitted by the applicant and sponsor with the application, although it is somewhat difficult to read these in the context of the subsequent characterisation of the relationship by the applicant in her later Statutory Declaration and disclosures to health professionals of the circumstances of family violence occurring since the marriage began.  As indicated above however, the fact that there was family violence in the relationship does not of itself contradict nor is inconsistent with the existence of a genuine spouse relationship.

29. On the basis of the evidence and taking into account the inherent limitations due to the circumstances of family violence, the Tribunal is satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased.

30. The Tribunal is therefore satisfied the applicant meets cl.820.211(2)(a).

31. On the evidence of the sponsorship form lodged with the application, the Tribunal is satisfied that the applicant meets cl.820.211(2)(c).

    Does the applicant meet Schedule 3 criteria, or are there compelling reasons for not applying those criteria?

32. An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl 820.211(2)(d).

33. It is not in contention in this case that the applicant did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in the present case is whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria.

34. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. In this case the relevant day, being the last day, the applicant held a substantive visa, was 30 June 2014.   As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

    Compelling reasons

35. As the Tribunal has found that the applicant does not meet the relevant Schedule 3 criteria, it is required to consider whether there are compelling reasons for not applying the criteria.

36. The expression ‘compelling reasons’ is not defined for these purposes. However, reasons that are compelling should ‘force or drive the decision-maker’ ‘irresistibly’ to some end: Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31]. The reasons or circumstances should be sufficiently powerful to lead a decision-maker to find that the criteria should not be applied: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.

37. The applicant’s representative submits that the circumstances of the applicant having experienced family violence perpetrated by the sponsor, together with her long-term connection to Australia being here for over 13 years, with an established employment history and support network, are compelling reasons for not applying the Schedule 3 criteria.  Support letters from a range of people who know and/or have employed the applicant over the years and attest to her good character and contributions were submitted in support.

38. In her own Statutory Declaration dated 30 September 2024, the applicant refers to her history of 13 years residency in Australia, during which time she has been gainfully employed and has completed various educational and vocational qualifications. She refers also to the strong support network she has made in her local area that has helped her to recover from the trauma of past experiences.  She is currently in a long-term partner relationship with [Mr W], with whom she lives. They rely on and support each other, including running his farm together and she has become close to, and integrated with, his extended family of children and grandchildren. A support letter from [Mr W] confirms the relationship, supports her application to remain in Australia and refers to the adverse impact on him if she were not granted the visa.

39. The Tribunal has carefully considered the evidence and circumstances up to the current time. It accepts that the applicant has lived continuously in Australia for over 13 years, and as demonstrated by the support letters, has built support networks, obtained relevant qualifications and established an employment history, which helped in her recovery  following an experience of family violence at the hands of her sponsor. She is now in a relationship with a new partner since 2019, and on the basis of her Statutory Declaration and the support letter from her partner, is well-integrated into his life and family.  The Tribunal accepts that requiring the applicant to depart Australia to re-apply for a Partner visa would cause unnecessary and undue hardship to both her and her current partner. In these circumstances, the Tribunal is satisfied that there are compelling reasons for not applying the Schedule 3 criteria in this case.

1. Accordingly, the applicant meets cl 820.211(2)(d)(ii).

   Family violence claim

2. The remaining issue for consideration in this review is the claim of family violence.

3. 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).

4. In the present case the applicant is seeking establish family violence on the basis of a court order.

   Has a claim of family violence been made under the regulations?

5. In the present case the applicant is seeking to establish family violence on the basis of evidence tested before a court. Acceptable forms of court tested evidence as set out in reg 1.23, are: a court injunction under the Family Law Act 1975; an Australian Court order for the protection of the alleged victim; or a conviction or finding of guilt against the alleged perpetrator in respect of an offence of violence against the alleged victim. Where such evidence is provided, the alleged victim is taken to have suffered family violence and the alleged perpetrator is taken to have committed family violence: reg 1.23(1).

6. The applicant in this case relies on a court order. The applicant has provided to the Tribunal evidence of a Final Apprehended Domestic Violence order made on 30 May 2019 against     [the sponsor] for the protection of the applicant. The Tribunal has also considered the accompanying evidence of the applicant’s Statutory Declaration and support letters from the WDVCAS and [Local Health District] Counsellor, among other documents, which describe the context in which the applicant was referred to their respective services and supports her claims of the family violence having been experienced during the relationship.

7. Having regard to the evidence of the applicant, supporting letters, and copy of the AVO order, the Tribunal is satisfied that a court order was made against the sponsor for the protection of the applicant in relation to violence that occurred whilst the parties were in the relationship, and being a Final order, after the sponsor had an opportunity to be heard or otherwise make submissions to the court. Therefore, family violence is taken to have occurred under reg 1.23 of the Regulations.

8. Accordingly, the Tribunal finds that the applicant is taken to have experienced family violence committed by the sponsor for reg 1.22.

9. As the relationship between the applicant and sponsor has ceased, and the applicant has experienced relevant family violence committed by the sponsor, the applicant meets the requirements of cl 820.221(3).

10. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

11. 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 of Schedule 2 to the Regulations; and

    ·cl 820.221(3) of Schedule 2 to the Regulations.

    M Sripathy
    Senior Member

    
    

    ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    1.21 Interpretation

    …

    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.

    …

    violence includes a threat of violence.

    …

    1.23     When is a person taken to have suffered or committed family violence?

    (1)For the purposes of these Regulations:

    (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.