2003271 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by a Thai national sponsored by an Australian citizen. The applicant's application was made more than 28 days after her last substantive visa expired. The core of the dispute revolved around the applicant's claim that her relationship with the sponsor had ceased due to family violence, which she alleged she had suffered. The delegate had refused the application, not being satisfied that the parties were in a genuine spouse relationship prior to the cessation of their relationship. The Administrative Appeals Tribunal considered the matter.

The Tribunal was required to determine whether the parties were in a genuine spouse or de facto relationship prior to its cessation, and whether the applicant had suffered family violence. The applicant provided evidence including an apprehended domestic violence order and letters from practitioners to support her claim of abuse. The Tribunal also had to consider the applicant's long residence in Australia, her study, work, social network, and a new partnership, in the context of the Schedule 3 criteria.

The Tribunal reasoned that the delegate's decision had been made without a hearing, which was necessary given the serious allegations of family violence. The Tribunal found that the applicant met the criteria for a Subclass 820 visa under clauses 820.211 and 820.221(3) of Schedule 2 to the Migration Regulations 1994, particularly in relation to the family violence provisions. The Tribunal noted that the definition of "non-judicially determined claim of family violence" under subregulations 1.23(8) and (9) allowed for consideration of such claims based on presented evidence, even without a court determination.

Consequently, the Tribunal remitted the application for reconsideration by the Minister. The remittal was made with the direction that the applicant met the specified criteria for the Subclass 820 visa, allowing for further assessment of the remaining requirements.