2003862 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, brought before the Tribunal by an applicant who alleged family violence by the sponsor. The core of the dispute revolved around whether the applicant's relationship with the sponsor had ceased due to family violence, thereby potentially satisfying specific criteria for the visa despite the relationship's termination. The Tribunal was tasked with determining if the applicant had indeed suffered family violence committed by the sponsor, as contemplated by the Migration Regulations 1994.

The legal issues before the Tribunal were whether the applicant met the primary criteria for the Subclass 820 visa, specifically clauses 820.211 and 820.221 of Schedule 2 to the Migration Regulations 1994. These clauses require the applicant to be the spouse or de facto partner of the sponsor at the time of application and decision, unless the relationship has ceased and the applicant, or a member of their family unit, has suffered family violence committed by the sponsor. The Tribunal needed to assess if the evidence presented, particularly the intervention orders, established that the applicant had suffered family violence from the sponsor during their married relationship.

The Tribunal's reasoning focused on the evidence of family violence, primarily the multiple intervention orders granted by a court against the sponsor for the applicant's protection. It found that these orders, particularly the final ones, satisfied clause 1.23(4)(a) of the Regulations, which deems family violence to have occurred if a court has made an order for protection against the alleged perpetrator. Furthermore, the Tribunal noted that the majority of these orders were made with the sponsor present, satisfying clause 1.23(4)(b) by indicating the sponsor had an opportunity to be heard. The Tribunal concluded that the applicant had experienced family violence committed by the sponsor during the marriage, and as the relationship had ceased, clause 820.221(3) of the Regulations was satisfied.

Consequently, the Tribunal remitted the visa application for reconsideration. The direction was that the applicant met the criteria specified in clause 820.211(2) and clause 820.221(3) of Schedule 2 to the Regulations, allowing for further assessment of the remaining visa requirements.