2101248 (Migration)

The matter before the Tribunal concerned an application for a Partner (Migrant) (Class BC) visa, Subclass 100. The applicant, who had arrived in Australia on a Subclass 309 Partner (Provisional) visa, claimed that her relationship with the sponsor had ceased due to family violence perpetrated by the sponsor. The Tribunal was required to determine whether the applicant had suffered family violence committed by the sponsor, as contemplated by the Migration Regulations 1994.

The central legal issue was whether the evidence presented by the applicant satisfied the requirements of the Migration Regulations 1994 for establishing family violence in the context of a ceased relationship. Specifically, the Tribunal had to consider clause 100.221(4) of Schedule 2 to the Regulations, which provides an exception to the requirement that the applicant be in a continuing relationship with the sponsor if the relationship has ceased and the applicant has suffered family violence committed by the sponsor. This required an examination of regulation 1.23, which outlines the circumstances under which a person is taken to have suffered or committed family violence, including through non-judicially determined claims supported by expert opinion.

The Tribunal found that the applicant had provided a statutory declaration meeting the requirements of regulation 1.25(2), detailing her allegations of family violence by her husband. Furthermore, the Tribunal was satisfied that a statutory declaration from a clinical psychologist, dated 8 March 2018, constituted acceptable evidence under IMMI 12/116, as it provided an expert opinion that family violence most likely existed in the relationship and identified the sponsor as the perpetrator. Letters from an association providing support services were also considered acceptable evidence under IMMI 12/116, outlining the applicant's claims of family violence and the disclosures made. Based on this evidence, the Tribunal concluded that the applicant had met the criteria under clause 100.221(4)(b) and (c) of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for a Partner (Migrant) (Class BC) visa, Subclass 100, for reconsideration. The direction was that the applicant met the criteria specified in clause 100.221(4)(b) and (c) of Schedule 2 to the Regulations, leaving the remaining criteria for the visa to be considered by the Minister.