2120029 (Migration)

[2023] AATA 4647

2120029 (Migration) [2023] AATA 4647 (17 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Naidu

CASE NUMBER:  2120029

MEMBER:Margie Bourke

DATE:17 November 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.

Statement made on 17 November 2023 at 4:58pm

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 – relationship with sponsor ceased – no finding that applicant experienced family violence during the spousal relationship – granting of intervention order does not meet evidentiary requirements – psychologist report – non-judicially determined claim of family violence made – applicant provided incorrect information in relation to allegations of family violence – independent expert opinion that applicant had not suffered relevant family violence – assessment properly and validly made – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65, 359, 376
Migration Regulations 1994, rr 1.21, 1.22, 1.23,1.24, 1.25, 1.26, Schedule 2, cl 100.221

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 14 December 2021 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 18 December 2014 on the basis of his relationship with his sponsor. At that time, Class BC contained Subclass 100. The criteria for the grant of this visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.100.221 which requires 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.100.221(4)(b) and (c)(i) and, in relation to a decision to grant or not to grant the visa made on or after 20 August 2022, cl.100.221(4C)(b) and (c). The applicant claims this occurred in this case.

4. The delegate refused to grant the visa in a decision record dated 14 December 2021, on the basis that the applicant did not meet cl.100.221 because the delegate was not satisfied the applicant and the sponsor were in a spousal relationship within the meaning of s.5F(2) prior to the relationship ceasing.

5. Prior to the matter being constituted to a member, the Tribunal sent a letter to the applicant dated 31 August 2022 inviting him to provide information that indicated he was the spouse of the sponsor at the present time, or alternatively met the exceptions that existed if a relationship at ceased. In the letter that the Tribunal advise the applicant that if he did not provide the information within the period allowed or is extended, he would lose any entitlement he might otherwise have had under the Migration Act to appear before the Tribunal to give evidence of present arguments. The applicant did not provide any response.

6. After the matter was constituted, I considered the letter that had been sent to the applicant on 31 August 2022. I am satisfied that the applicant had previously advised the Department that the relationship between himself and his sponsor and partner had ceased, and he had provided a statutory declaration form 1410, a medical report and a psychological report as evidence that he had experienced relevant family violence. By letter dated 18 November 2022, the Tribunal advised the applicant that in the letter dated 31 August 2022, he had been invited to provide information that he had previously provided to the Department and which is available to the Tribunal. The Tribunal advised the applicant that the letter of 31 August 2022 was deemed invalid as it invited the applicant to provide information that he had already given. Therefore the consequences for not giving the information to the Tribunal did not apply, and the applicant had not lost his entitlement to hearing.

7. The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the circumstances of the applicant, and the nature of the review. The Tribunal was of the view that the conduct of the hearing by video would allow the applicant the opportunity to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing and to properly assess the evidence before it. The hearing did not involve a large quantity of documents to be put to the applicant. The Tribunal considered the circumstances of the review was such that any unnecessary delay should be avoided. The hearing was scheduled at a time when the availability of in-person hearings were restricted by the ongoing pandemic. For all these reasons, the Tribunal considered that this was an appropriate matter in which the hearing could be conducted by video.

8. The applicant was invited to attend a hearing on 19 December 2022. This hearing was postponed at the request of the applicant after the provision of a medical certificate.

9. The applicant was invited to attend a hearing on 12 January 2023. The applicant attended the hearing on 12 January 2023 by video with his representative. The applicant provided submissions to the Tribunal after the close of business on 10 January 2023. The submissions included detailed documents that were dated 22 August 2022 and 19 October 2022. The Tribunal discussed with the applicant and his representative the inappropriateness of providing late submissions, particularly when those submissions had been available to the applicant for many months, in circumstances where the submissions were relevant to the review, and the Tribunal needed appropriate time to read and properly consider the submissions prior to hearing. The hearing was adjourned by the Tribunal.

10. The applicant was invited to attend a hearing on 31 January 2023. The applicant appeared before the Tribunal on 31 January 2023 to give evidence and present arguments. The applicant was represented in relation to the review, and the applicant’s representative attended the hearing by video. The hearing was adjourned after 53 minutes at the request of the applicant, after submissions from his representative and discussion in relation to those submissions. The applicant’s representative submitted that the applicant had applied for an intervention order against the sponsor, the grounds of the application related to an incident which occurred in January 2022, and the application for the intervention order recorded that the applicant and sponsor have been separated for three years at that time. The applicant’s representative submitted that the sponsor had applied for a cross intervention order against the applicant. The applicant’s representative stated the sponsor’s application was listed for mention on 17 February 23, and the applicant’s application for the intervention order was listed for a contested hearing in the Magistrates’ Court on[date] May 2023. The applicant’s representative advised that the applicant had been required to file further and better particulars, and his statutory declaration provided as the further and better particulars included claims that he had been the victim of family violence during the existence of the relationship with the sponsor. The Tribunal accepted the submission that if there were findings by the magistrate after hearing evidence from both the applicant and the sponsor, that the applicant suffered relevant family violence during the existence of the relationship, that this was relevant to the review. The Tribunal was of the view that if the magistrate would hear evidence from the applicant and from the sponsor in relation to whether family violence occurred during the relationship, the Tribunal should postpone the hearing until after the Magistrates’ Court matter had been determined. The Tribunal agreed to adjourn the hearing, and decided to list a directions hearing after the sponsor’s application had been listed for mention in the Magistrates’ Court.

11. The applicant’s representative attended a directions hearing by telephone on 21 February 2023. The representative advised that the sponsor’s cross application for an intervention order had been struck out on 17 February 2023. The representative advised that the contested hearing in relation to the applicant’s application for an intervention order remains listed for [date] May 2023. The representative advised that a recording is made available after Magistrates’ Court hearings, and a magistrate usually gives verbal reasons if finding there was family violence and states the incident or incidents that form the basis for that finding. The Tribunal accepts that if an intervention order is made after a contested hearing, the representative will be able to provide the Tribunal with a transcript of the magistrate’s rulings and findings (if the magistrate finds there was family violence) in relation to whether the applicant experienced family violence during the spousal relationship, or whether the applicant experienced family violence only after the relationship ceased and when the applicant applied for the intervention order.

12. At the directions hearing on 21 February 2023, the resumed hearing was scheduled for 5 June 2023. The Tribunal advised it would require a transcript of the findings of the magistrate from the contested hearing in the Magistrates’ Court on [date] May 2023 in relation to whether family violence occurred during the relationship between the applicant and the sponsor, by 29 May 2023, or if that is not possible, by 1 June 2023.

13. The applicant appeared before the Tribunal by video with his representative on 5 June 2023 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Khmer and English languages. The interpreter attended the hearing by video

14. The applicant was represented in relation to the review. The representative attended the Tribunal hearing by video with the applicant.

15. During the hearing information was put to the applicant pursuant to s.359AA of the Act. A short adjournment was granted to allow the applicant to consult with his representative. The applicant required the assistance of the interpreter. The presiding member left the hearing, and the specific time of this consultation was subsequently redacted from the hearing audio.

16. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Preliminary matter: nondisclosure certificate

17. The Department provided the Tribunal with a nondisclosure certificate issued under s.376 of the Act dated 18 November 2022. A copy of this certificate was provided to the applicant prior to the hearing. The applicant’s representative advised on 2 February 2023, that the applicant had no submission to make in relation to the ability of the certificate. The Tribunal is satisfied that the certificate is valid, as it is signed, dated, records why disclosure of the information would be contrary to the public interest, and properly engages s.376 of the Act.

18. The certificate relates to a case note and records that this information should not be disclosed because it would reveal lawful methods for preventing, detecting and investigating breaches or evasions of the law, which would or be likely to prejudice the effectiveness of those methods. The information related to records provided to the Department by the sponsor and the applicant that in August 2017 they were residing at different addresses. The Tribunal put the gist of this information to the applicant during the hearing pursuant to s.359AA. The Tribunal provided the particulars of the information, the suburb the sponsor had recorded as her residential address in [Suburb 1], and the address the applicant provided as his residential address. The Tribunal did not disclose the precise nature of the records obtained by the Department. The applicant stated that he understood the particulars of the information, its relevance to the review and the consequences if the Tribunal relied on the information (which the Tribunal stated was limited to its findings in relation to the existence of the relationship in August 2017). The applicant had a consultation with his representative, and then indicated that the address provided by the sponsor would be the house she owned in [Suburb 1]. The applicant provided that the complete address of this property owned by the sponsor. The applicant stated he did not know why the sponsor would have provided the address of her owned property as her residential address. The Tribunal accepts this explanation from the applicant, and is satisfied that the sponsor owned the property in [Suburb 1].

19. The non-disclosure certificate also relates to two statements provided by the sponsor to the Department. The applicant had provided the Tribunal with a statutory declaration of the sponsor dated 5 October 2022, which he had provided in relation to the intervention order matters in the Magistrates’ Court. The Tribunal is satisfied that the matters contained in the information provided to the Department in the two letters from the sponsor, was also provided in the information in the statutory declaration signed by the sponsor and provided to the applicant in the Magistrates Court intervention order matters, and then provided by the applicant to the Tribunal. The Tribunal considered in the circumstances where the sponsor has provided the information to the applicant, and the applicant has provided information to the Tribunal, the anonymity of the sponsor in relation to her providing that information to the Department had reduced importance. The Tribunal considered that the probative value of the information therefore outweighed the prejudicial value of the protection of the identity of the source of the information. The Tribunal also considered that as the applicant had provided this information to the Tribunal, it was appropriate and reasonable that the applicant be aware that the information had also been provided to the Tribunal through the Department and from the same source, namely the sponsor. There was no advice given by the Department secretary in relation to the exercise of the Tribunal’s discretionary power to disclose any of the matter contained in the documents. For these reasons the Tribunal exercised its discretion pursuant to s.376(3)(b) to disclose the information that was contained in the documents as far as the information was relevant to the review. The Tribunal advised the applicant and his representative that it considered it appropriate to disclose verbally in the hearing the information contained in the two statements provided to the Department in confidence, as far as they were relevant to the review.

20. The Tribunal advised the applicant in the hearing that the relevant information in the two statements did not contain information of which the applicant was not aware. The Tribunal advised the applicant in the hearing that it would provide the applicant with the content, and not just the gist of the information contained in these statements, but would limit this content to what was relevant to the review. The Tribunal advised the applicant that the information provided to the Department, was provided by the sponsor, in two statements dated March 2019 and June 2019. The Tribunal advised the applicant that the relevant information in the two statements was consistent with the information provided by the sponsor in her statutory declaration provided to the Magistrates’ Court dated 5 October 2022. The Tribunal advised the applicant that in the statements the sponsor denies that she was in a relationship with anyone else, the sponsor states the applicant was seeing another woman, and that in March 2019 at the time the information was provided the applicant had a child with that other woman who was approximately [age] old. The Tribunal advised the applicant that the information provided to the Department in March 2019 was that the sponsor had moved out from the property shared with the applicant approximately five months ago (which the Tribunal noted was consistent with the applicant’s evidence given in the hearing that sponsor moved out in October 2018). The Tribunal advised that in the second statement provided to the Department, the sponsor named the person she states is the applicant’s current partner, which she also did in the statutory declaration filed in the Magistrates’ Court.

21. The information was not put pursuant to s.359AA of the Act, as it was information that had been provided to the Tribunal by the applicant in the form of the statutory declaration from the sponsor. The applicant was asked if he wanted to comment on this information. The applicant responded that what his ex-wife says is not true.

    Assessment of the spousal relationship

22. The Tribunal has considered the oral and written evidence before it. Based on the marriage certificate, I am satisfied the parties were married in Cambodia and the marriage was registered on [date] February 2013. I am satisfied the Department assessed the information provided by the applicant in support of the application for the visa, and the applicant was granted a subclass 309 visa on 18 December 2014. I have considered the documentary evidence provided to the Department in support of the application for the subclass 100 visa, and evidence that the relationship between the applicant and the sponsoring partner continued until it broke down in approximately October 2018. The applicant has provided copies of joint bank statements for the years 2015, 2016 and up to 3 March 2017. The applicant has provided invoices made out to the parties recording their residential address in [Suburb 2] for the sale of furniture in 2015 and 2016. The applicant is provided copies of joint invitations to the parties and photographs of the parties together and in social situations. The applicant has provided a copy of his superannuation documents in which he does not record a beneficiary, a copy of his tax return in 2015 in which he records the sponsor as his spouse, a copy of his car insurance dated 2016 in which the sponsor is recorded as a designated driver, payslips for himself and the sponsor, information about a bank loan and correspondence addressed to the applicant and the sponsor at the residential address in [Suburb 2]. The applicant provided a letter addressed to the sponsor from the electoral commission recording her address in [Suburb 2] dated December 2018 and correspondence to the sponsor from the Australian tax office dated 26 September 2018 and correspondence from EastLink dated 10 July 2019.

23. In addition to the original application form and sponsorship form, the applicant has also provided the statements from himself and the sponsor entitled ‘my love story’ dated 12 March 2014, and an additional statement from the sponsor about her previous relationship. After the grant of the subclass 309 visa the applicant provided his statutory declaration dated 22 May 2017, a statutory declaration from the sponsor dated 22 May 2017, together with two statutory declarations, one from his niece and one from a friend dated 2017. The applicant provided a document entitled ‘Relationship History Statement’ dated 7 November 2017. All these documents referred to the applicant living with the sponsor since 2 January 2015, describing the circumstances of the relationship as positive and supportive, and in the signed documents dated 22 May 2017 and 7 November 2017 the applicant describes that he would do anything to help his wife, he is very lucky to have found someone who is kind and selfless and supportive and who provides him with love and support.

1. The applicant has provided statements and statutory declarations made after the relationship is claimed to have ceased, including his statutory declaration dated 19 July 2019, and accompanying medical report and psychological report. In his statutory declaration the applicant records that he experienced verbal abuse once he arrived in Melbourne in 2015. The applicant has provided two statutory declarations from his niece [name], one dated 19 April 2017 and one dated 15 July 2019. In the 2017 statutory declaration the applicant’s niece declares that when she meets the applicant and sponsor they are always smiling and they always go together; in the 2019 statutory declaration the applicant’s niece states that the sponsor was not happy with her uncle. The applicant provided two other statutory declarations dated July 2019 from friends of his who stated they are aware of the marriage, and are aware that the relationship had ceased.

2. The applicant had provided the Tribunal also with his application for the intervention order, information in relation to the filing of intervention orders by both himself and the sponsor and the statutory declarations filed by the applicant and the sponsor in support of their applications for intervention orders. It is relevant to the Tribunal that both the sponsor and the applicant did not deny the existence of the relationship in their statutory declarations in relation to the intervention orders. The Tribunal has noted that the sponsor and the applicant accused each other of having relationships with other people, and both the sponsor and the applicant denied having any other relationship with other people.

3. The applicant claimed that he had provided the sponsor with a dowry in the amount of $55,000 AUD, which was a gift pursuant to Cambodian culture, but which he felt she should have retained as part of their joint marital funds and which he stated he discovered in 2016 was not in their joint bank account balance. The sponsor alleged the applicant had sought a property settlement from part of her investment property that she owned prior to the marriage to which she stated he has never contributed.

4. The applicant alleged the sponsor had financially controlled him throughout the marriage. The applicant claims in his report to his doctor and psychologist that he suffered financial abuse at the hands of the sponsor throughout the marriage. In answer to a question from the Tribunal the applicant stated that when he first arrived in Australia he did not know English, and was not familiar with the Australian way of doing things, and was content for his wife, the sponsor, to manage their financial affairs. The applicant stated to the tribunal that he did not consider that his wife had controlled him financially until he had discovered the dowry money was not in their joint account. The applicant stated he made this discovery in 2016 when discussing with his wife the possibility of purchasing property together. The applicant stated that when he asked the sponsor to give him copies of the financial documents, she provided him with the documents. The Tribunal notes that the applicant has provided the Department with copies of bank statements and other financial documents, which have been considered by the Tribunal.

5. The Tribunal has considered the claims of the applicant in relation to his wife’s extramarital relationships. The Tribunal notes that the sponsor made similar allegations. The Tribunal considers other allegations the applicant made during the hearing, including that the sponsor asked him to arrange for someone to kill her cousin in Cambodia, and that she had connections who were criminals. The Tribunal considered the applicant stated that although he became aware the sponsor had another partner, he told the tribunal that the statement in his statutory declaration dated 19 July 2019 where he claims that the sponsor wouldn’t come home until very late and sometimes brought a boyfriend home to sleep, was a false statement and was not correct. The Tribunal is satisfied that the applicant has provided false information about the relationship with the sponsor. The Tribunal considers that the applicant and sponsor have made extraordinary claims about the relationship and the behaviour of each other. The Tribunal does not find that this necessarily means the relationship between the applicant and the sponsor was not a spousal relationship. The Tribunal concludes that the relationship between the applicant and the sponsor became acrimonious, and the parties have made allegations against each other which may not be founded in fact and may not be reliable.

6. The Tribunal is satisfied based on the documents before it provided by the applicant, the statutory declarations of other persons, the oral evidence of the applicant, its assessment of the statutory declarations provided by the applicant and the sponsor in support of their applications for intervention orders, and the overall assessment of all the evidence before it, that the applicant was the spouse of the sponsoring partner within the meaning of s.5F(2) after the grant of the subclass 309 visa.

7. The Tribunal has also considered that the applicant has provided various dates for the breakdown of the relationship, in the various documents, including his statutory declarations and reports that he has provided to the Department. The Tribunal is satisfied based on the statement of the sponsor, and the evidence in the hearing of the applicant, that the sponsor left the residential home in October 2018, and that she would occasionally return during the day to the premises until January 2019 when the sponsor removed all her belongings and has not had contact with the applicant since that time. The Tribunal is satisfied that the relationship between the applicant and the sponsor ceased in October 2018.

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

9. 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. The issue that arises on the evidence in this case is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.

10. 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 judicially determined claim of family violence been made under the regulations?

11. The applicant first sought to establish family violence on the basis of a judicially determined claim of family violence. The applicant sought to establish that he had suffered family violence by the intervention order made by the Magistrates’ Court. Pursuant to 4eg 1.23 (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) the 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. Reg 1.23(5) requires that 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.

12. The applicant provided at the request of the Tribunal, a copy of the application for his intervention order. In the application for the intervention order the applicant records that the respondent is his wife and he has known her for nine years. The applicant records that he has been separated from his wife of three years. The applicant records that the respondent threatened him by pointing her finger at him aggressively on 14 January 2022. The applicant records that he took this to be a reference to an earlier threat to him about making a family law application which occurred at [a] shopping district at 5:55pm. The applicant states he wants to make a family law application for a property settlement and the respondent is obstructing him from doing so. The applicant alleges that he had met with the respondent on 31 December 2021, and he had asked her to split the property with him. The applicant stated that the respondent had threatened him, threatened sending home with broken legs and that she would arrange for someone to hurt him. The applicant stated the respondent’s boyfriend is a construction worker who has been in jail.

13. The Tribunal discussed with the applicant and his representative prior to adjourning the matter until after the contested intervention orders applications had been determined in the Magistrates’ Court, that the tribunal would require a transcript of the recording of the magistrate’s findings in relation to his reasons for making the final intervention order or the reasons for finding the family violence occurred before the claim spousal relationship ended. The Tribunal has found that the relationship between the applicant and sponsor ceased in October 2018.  The applicant applied for and intervention order on the basis of claimed threats made to him on 14 January 2022, and after he had met up with the sponsor on 31 December 2021, which are incidents that occurred over three years after the parties at separated. The incidents set out in the application for the intervention order, which is the basis for the mutual intervention orders, did not occur during the spousal relationship which ceased in October 2018.

14. The Tribunal accepts that on [date] May 2023 that the applicant and the sponsor consented to mutual intervention orders, and neither admitted the allegations in the application. The Tribunal finds that the allegations contained in the statutory declaration filed by the applicant, which included allegations that he had experienced family violence during the existence of the spousal relationship, was not part of his application for the intervention order, and there was no finding that he had experienced family violence during the existence of the spousal relationship in the making of the mutual consent orders on [date] May 2023. The magistrate did not make any finding on [date] May 2023 that the applicant had experienced family violence during the spousal relationship with the sponsor.

15. The Tribunal cannot rely on the mutual consent intervention orders made on [date] May 2023 that the family violence or part of the family violence that led to the granting of the intervention orders occurred while the marriage relationship existed between the applicant and the sponsor.

16. Therefore the Tribunal concludes that although there is an intervention order made in the Magistrates’ Court, against the alleged perpetrator, namely the sponsor, for the protection of the alleged victim, namely the applicant, from violence and that the order was made, when the sponsor attended court and had the opportunity to be heard or make submissions, the granting of the intervention order does not meet the evidentiary requirements of reg 1.23(5).

17. The Tribunal is not satisfied that the intervention order provided by the applicant to the Tribunal meets the evidentiary requirements for a judicially determined claim of family violence.

18. In the present case the applicant alternatively is seeking establish family violence on the basis of a non-judicially determined claim of family violence.

    Has a non-judicially determined claim of family violence been made under the regulations?

19. Under reg 1.23, a visa application is taken to include a non-judicially determined claim of family violence where either a joint undertaking to a court has been made by the alleged victim and alleged perpetrator or evidence in accordance with reg 1.24 is provided.

20. The applicant in this case is seeking to rely on evidence referred to in reg 1.24 – namely, a statutory declaration under reg 1.25 and evidence of a type and number specified by the Minister for these purposes. At the time the statutory declarations were provided the appropriate instrument was IMMI 12/116. At the time of this decision the relevant instrument is LIN 23/026. The new instrument LIN 23/026 repeals the previous instrument IMMI 12/116 from 31 March 2023, but specifies that any evidence provided under the previous instrument IMMI 12/116 continues to be in effect as if it had been done under the current instrument. Therefore the evidence provided by the applicant if it satisfies the previous instrument IMMI 12/116 will continue to be valid as an item of evidence under the new instrument LIN 23/026 provided it was in existence before the previous instrument was repealed on 31 March 2023.

21. A statutory declaration under reg 1.25 must be made by the spouse or partner of the alleged perpetrator. If the alleged victim is the spouse or partner, the statutory declaration must set out the allegation of family violence, name the person alleged to have committed the relevant family violence and if the conduct was not directed at the spouse or partner, name the person to whom it is directed and their relationship with the deponent: reg 1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: reg 1.25(3).

22. The applicant has made and provided a statutory declaration, form 1410, dated 19 July 2019, in which he sets out the allegations of family violence, and names the person to have committed the family violence. However it is of concern to the Tribunal that during the hearing the applicant stated that he did not experience verbal abuse once he arrived in Melbourne, and that in fact he was content that the sponsor managed their financial affairs because he did not speaking wish and was not familiar with the Australian way of doing things. The applicant told the tribunal that the statement that throughout their marriage she continued to take out their savings and use the money to buy things for a secret boyfriend was not true, as he suspected his wife had a secret boyfriend in 2018 after he had overheard her on the telephone and she became angry when he made enquiries about the conversations. The applicant also told the Tribunal that his statement in the statutory declaration that the sponsor would not come home until very late and sometimes brought her boyfriend home to sleep was not true. The Tribunal finds that the statutory declaration provided by the applicant meets the evidentiary requirements, but the Tribunal finds that the statutory declaration contains, on the applicant’s evidence, allegations that that are not true, and allegations that the Tribunal considers may not be credible or reliable.

23. The applicant provided the Department with a medical report dated 12 July 2019 from Dr [A]. The medical report identifies the alleged victim as the applicant and identifies his injuries, including depression and anxiety with tiredness, crying easily, insomnia, suicide ideation, no interest, impaired memory and concentration, hopelessness, fearfulness, nervousness, tension and restlessness, and treatment which was referral to a psychologist for psychological treatment. The Tribunal is satisfied that the medical report provided by the applicant identifies the alleged victim, the applicant, and details the physical injuries or treatment for mental health that is consistent with the claimed family violence, and the medical report and therefore meets the requirements for the type of evidence specified in Schedule 1 of the instrument IMMI 12/116. Further, the Tribunal is satisfied that the medical report provided by the applicant details the injuries or treatment of the alleged victim that may be consistent with family violence, and therefore this item of evidence also meets the requirements of medical evidence in Schedule 1 of the instrument LIN 23/026.

24. The applicant provided the Department with a psychological report dated 22 May 2019 from [a named person]. This report is not in the form of a statutory declaration and therefore does not meet the requirements for a statutory declaration made by a registered psychologist set out in the type of evidence in Schedule 1 in the instrument IMMI 12/116.

25. The requirements for evidence of a psychologist in the instrument LIN 23/026 include a report, letter or statutory declaration made by a psychologist who is acting in their professional capacity. The item of evidence must (a) state that the alleged victim has made a claim of family violence; and (b) state in their professional opinion whether the claims of the alleged victim are consistent with them having been subject to family violence; and (c) identify the alleged perpetrator or provide information from which the identity of the alleged perpetrator can reasonably be inferred.

26. The report of the psychologist records that the applicant reported that his wife took complete control of their money and began to live a very separate life and did not include him. The report of the psychologist recorded that the applicant felt like he was living in a small box and felt controlled and dismissed by the sponsor. The report of the psychologist records the information the applicant gave the psychologist, claiming that he had suffered family violence. The report of the psychologist concludes that the applicant presents with an adjustment disorder with mixed anxiety and depressed mood. The report of the psychologist concludes that the applicant found himself in a situation in which his trust has been abused, and he has been financially, verbally and emotionally abused, and as a consequence his psychological well-being has deteriorated and he lives with persistent anxiety and depression. The Tribunal is satisfied based on the psychological report provided, that the psychologist has stated in his professional opinion that the claims of the alleged victim are consistent with him having been subject to family violence, and that the psychologist identifies the alleged perpetrator is the sponsor (the wife of the applicant). The Tribunal is satisfied that the psychologist report meets the requirements of the type of evidence set out in Schedule 1 of the instrument LIN 23/026.

27. The Tribunal discussed in the hearing that the current instrument LIN 23/026 setting out the evidentiary requirements for the evidence to be provided for the purposes of meeting reg. 1.24 (b) was more favourable to the applicant and the evidence he had provided, then the previous instrument. The Tribunal indicated that the applicant met the evidentiary requirements for the purposes of the current instrument LIN 23/026.

28. For the above reasons the Tribunal is satisfied that the applicant has provided a statutory declaration that meets the requirements of reg 1.25, and other evidence submitted in support that meets the requirements specified in the instrument LIN 23/026.

29. Therefore, the evidence presented meets the requirements of reg 1.24 for a nonjudicially determined claim of family violence. As such, a non-judicially determined claim of family violence has been made under reg 1.23.

    Has the applicant suffered family violence?

30. The Tribunal has considered the documentary evidence submitted by the applicant, and the oral evidence of the applicant in the hearing. The Tribunal has given weight to the evidence of the applicant that statements made in his statutory declaration form 1410 setting out the description of the relevant family violence he claims to have experienced contain statements that were not true and did not occur. The Tribunal has considered the applicant gave evidence at the hearing that claims he made in the statutory declaration including that the sponsor sometimes brought her boyfriend home to sleep with the boyfriend and not the applicant during the relationship, was not a true statement. The Tribunal has considered the evidence of the applicant that the claim that he suffered financial abuse and financial control perpetrated by the sponsor from the beginning of his marital relationship in Australia was also not true. The Tribunal accepts that the applicant was willing for the sponsor to have control of their financial arrangements because he did not speak English and was not familiar with the Australian way of doing things. The Tribunal is satisfied that the applicant has provided financial documents of the applicant and the sponsor in support of the application for visa. The Tribunal has considered the evidence of the applicant that he had provided a dowry as a gift to the sponsor, and became aware in 2016 when he discussed with the sponsor the possibility of purchasing property that the dowry money was not in their joint account, and at this point in time the applicant alleges he considers the sponsor was controlling their finances. The Tribunal has considered the information contained in the applications for intervention orders documents, that the applicant wished to pursue a property settlement with the sponsor and this was the cause of the antagonism between the parties three years after they had separated. The Tribunal has considered the applicant and sponsor agreed to mutual intervention orders by consent in May 2023, which is a period of four years and seven months after they had separated (in October 2018). The Tribunal has considered that the parties separated in acrimonious circumstances. The Tribunal has considered all the evidence before it, including the evidence of the applicant that he has provided untrue and incorrect information in his statutory declarations in relation to the allegations of the family violence.

1. Having considered all of the evidence before it, the Tribunal was not satisfied for the purposes of reg 1.23 that the applicant has suffered relevant family violence. In accordance with that regulation, the Tribunal sought the opinion of an independent expert. The Tribunal referred the matter to the independent expert in accordance with the legislative requirements, and provided the relevant information the applicant had provided to the Department and to the Tribunal in support of the application, to the independent expert. The Tribunal asked the applicant whether there was any information the applicant wished the Tribunal to provide to the independent expert, and the applicant’s representative requested the Tribunal provide the independent expert with the documents including the statutory declarations from the applicant and the sponsor that the applicant had provided the Tribunal in relation to the contested intervention order matter in the Magistrates’ Court. The Tribunal provided this information to the independent expert as per the applicant’s request with the referral.

2. The Tribunal received a report from the independent expert dated 9 August 2023 in which the independent expert provided an opinion that the applicant had not suffered relevant family violence.

3. By letter dated 21 August 2023, the Tribunal advised the applicant pursuant to s.359A of the Act that the independent expert had conducted an assessment and provided a report advising that in her opinion the applicant did not experience relevant family violence within the meaning of the regulations. The Tribunal advised that the independent expert had assessed and concluded that the applicant did not experience actual or threatened psychological abuse (including criticism and verbal abuse), and that the applicant did not experience actual or threatened financial abuse or physical abuse.  The Tribunal advised that the independent expert assessment concluded that the applicant did not reasonably fear for, or will be reasonably apprehensive about, his own well-being or safety. The Tribunal provided a complete copy of the independent expert’s report, including the applicant’s signed acknowledgement form dated 22 July 2023. The Tribunal specified that the report was included in the particulars to which the Tribunal invited the applicant’s responses and comments. The Tribunal invited the applicant to provide his written comments or responses within 14 days.

4. The Tribunal advised the applicant in its letter dated 21 August 2023 that if it accepts the opinion of the independent expert that the report is validly made, the Tribunal is required to accept the opinion of the independent expert for the purposes of the review. The Tribunal advised that if the Tribunal accepts the independent expert report is validly made, and therefore accepts the opinion of the independent expert in the report that the applicant did not experience relevant family violence, the Tribunal would find that the applicant did not meet the requirements of cl.100.221(4), and this would be a reason or part of the reason for affirming the decision under review.

5. The applicant’s representative requested an extension of time in which to respond to the information in the independent expert’s report, and the Tribunal’s invitation to comment or respond in its letter dated 21 August 2023. The applicant’s representative made this request on the basis that the applicant’s representative had commitments for another client in a criminal trial. The Tribunal considered the request but advised it did not consider it reasonable that this review should be further delayed because the applicant’s representative had commitments with another client. The Tribunal advised that in reaching its conclusion the Tribunal had considered the period of time that the review had taken, and noted that the review applicant had first been invited to attend the hearing to be conducted on 19 December 2022 by correspondence dated 21 November 2022. The Tribunal advised that it did not consider it reasonable to grant an extension of time in relation to timeframes set in a Tribunal review because the applicant’s representative had other clients with other requirements.

6. The applicant provided two written responses from his representative on 4 September 2023. The applicant requested an audio recording of the hearings conducted by the Tribunal, and sought detailed information regarding the exact instructions provided by the Tribunal to the independent expert. The representative submitted the Tribunal may have provided ‘evidence’ to the independent expert beyond the intended scope of determining family violence. In the second letter dated 4 September 2023 the representative contended that the Tribunal’s referral of the question to the independent expert may have misdirected the independent expert relevant to the determination of family violence claims, raising concerns about the integrity of the entire process. The representative submitted that the hearing audio should not have been provided to the independent expert. The representative contended that the independent expert’s findings were invalid because the independent expert had failed to properly assess the applicant. The applicant’s representative requested that the Tribunal summon the independent expert to a hearing.

7. The Tribunal responded to the applicant’s representative submissions and advised that as the applicant has submitted that the report of the independent expert is not valid, the Tribunal would schedule an in-person hearing to discuss the validity of the independent expert report, and this hearing would include discussion of whether the independent expert had provided procedural fairness to the applicant and asked the correct questions of the applicant.

8. The Tribunal advised that it had considered the request to summons the independent expert, for the applicant to examine in relation to the report, but the Tribunal declined to do so. The Tribunal advised it would assess the applicant’s evidence as to whether there are, as claimed, defects in the independent expert’s findings. The Tribunal advised that it would hear evidence from the applicant and submissions from the representative in relation to whether the independent expert had provided procedural fairness to the applicant and asked the correct questions. The Tribunal notes that it is only required to consider the independent expert’s written report, and further that the applicant does not have the entitlement to examine a witness as submitted in the request for the Tribunal to summons the independent expert to be examined by the applicant. The Tribunal considered it is both appropriate and reasonable to refuse the request to summons the independent expert to the hearing in the circumstances of this review.

9. Prior to the hearing and in response to the request from the applicant’s representative, the Tribunal provided the applicant with a copy of the complete referral form Part A, and the Part B (which is completed by the independent expert) and which the Tribunal had provided to the independent expert. The referral form lists all the documents that were provided to the independent expert with the referral form. The Tribunal noted in the correspondence to the applicant prior to the hearing that the applicant was advised that the Tribunal provided information and evidence to the independent expert, and that the applicant was asked to advise which documents he wished the Tribunal to include in the collection of documents provided to the independent expert. The Tribunal confirmed that as per the applicant’s request the independent expert was provided with the statutory declarations provided by the applicant and the sponsor in relation to the intervention order applications. The Tribunal noted in its correspondence that the independent expert included in the report a list of the documents which she had received, and that list of documents did not include the statutory declaration of the applicant dated 22 May 2017, but the independent expert had referred to this statutory declaration in the body of the report. The Tribunal confirmed that the statutory declaration of the applicant dated 22 May 2017 was provided to the independent expert by the Tribunal.

10. The Tribunal also attached a copy of the Tribunal hearing audio recordings from 31 January 2023 and 5 June 2023 as per the applicant’s request. The Tribunal noted in the correspondence to the applicant that it objected to the unfounded allegations made by the applicant with the request for a copy of the information provided to the independent expert, but also recorded in the correspondence that the Tribunal did not object to providing a copy of the referral form. The Tribunal also stated that the applicant had made allegations in its correspondence which the Tribunal considered are derogatory to the integrity of the Tribunal, and the Tribunal would require the applicant to articulate and substantiate the allegations at the hearing.

11. The applicant was invited to attend a further hearing to discuss the validity of the independent expert report on 2 October 2023. The applicant’s representative stated he had not meant to allege, and did not maintain any allegations that the Tribunal had acted in any other way other than appropriately and fairly in its referral to the independent expert. The Tribunal confirmed that all evidence provided by the applicant, plus additional information requested to be provided by the applicant, had been provided by the Tribunal to the independent expert. The Tribunal advised that this was done as a matter of fairness to the applicant. The Tribunal discussed that this included the audio of the hearing because it included the oral evidence provided by the applicant, and it is part of the reasons why the Tribunal referred the matter to the independent expert.

12. The applicant stated that he participated in an interview with the psychologist and she asked him many questions. The applicant stated that the psychologist asked him too many questions. The applicant stated the interview with the psychologist went for about three hours. The applicant stated that he was feeling uncomfortable in the interview. The applicant stated that the interpreter assisted him over the phone and sometimes he could not hear what the interpreter said. I asked the applicant if the questions that he could not hear were repeated and he said the questions were repeated again when he hadn’t heard them.

13. The applicant stated the psychologist asked him to describe the situation with his family. The applicant stated he talked about his ex-wife. The applicant stated the questions were very similar to those at the last hearing with the Tribunal. I asked the applicant why he thought the report was not valid, and he stated because the interview went for too long, he did not have a break and he was feeling anxious.

14. I asked the applicant whether he agreed with what the independent expert had concluded in the report. The applicant stated that it was not that he did not accept the report, but just that he did not have a break and he felt uncomfortable and he felt scared of the body language of the psychologist. The applicant stated again that it was not that he did not accept the report. The applicant stated the report was okay. The applicant stated he was a bit nervous and could not recall what had happened. I asked the applicant if there was anything more that he wanted to tell me. The applicant stated there was that was all he wanted to say. The Tribunal is cognisant that answering questions in a Tribunal hearing, or in an interview with a psychologist can be a difficult experience, and the Tribunal accepts that the applicant may have felt uncomfortable with some of the questions and may have felt a bit nervous. The Tribunal accepts that the interview with the independent expert was thorough and long. Tribunal has considered the comments of the independent expert and is satisfied the applicant was provided procedural fairness and appropriate consideration by the independent expert throughout the interview. The Tribunal has considered that the applicant has not given evidence that the content of the report was not correct, or that his answers were not properly interpreted, or properly assessed by the independent expert.

15. The Tribunal has carefully considered the applicant’s evidence about his experience in the interview with independent expert. I have considered the applicant’s evidence, and I accept the interview with the independent expert was long, and that he may have felt uncomfortable answering some of the questions. However there is no evidence before me based on the applicant’s oral evidence at the hearing to October 2023 that the independent expert has not asked the applicant the correct questions, or provided the applicant with procedural fairness, in her assessment of whether the applicant experienced relevant family violence. I am satisfied that the interview by the independent expert was properly and appropriately conducted.

16. The representative submitted that the psychologist had not provided her qualifications in the report. The Tribunal is satisfied that the psychologist did record her qualifications as a forensic psychologist and her academic qualifications and medical titles on the back page in the report. I am satisfied that the independent expert’s qualifications are clearly recorded on the report.

17. The applicant’s representative submitted that the independent expert did not make the necessary declarations about her overriding duty in making the assessment. The representative submitted that the substance of the reported is credibility based and not based on her experience in that particular area.. The Tribunal is satisfied that the independent expert clearly articulated her role is to assess whether the applicant experienced relevant family violence in the report. The Tribunal is satisfied the independent expert is properly employed by the organisation authorised to conduct independent expert assessment of family violence for the purpose set out in the legislation and regulations. Further the Tribunal is satisfied the independent expert is properly qualified to make appropriate assessments based on evidence or credibility as an individual case requires. The Tribunal is satisfied that the independent expert can provide a valid report based on her expert assessment of the answers provided by the applicant in the interview. The Tribunal is satisfied based on the independent expert report was made by a suitably qualified independent expert engaged by the organisation established for the purpose to make a proper report in relation to whether the applicant experienced relevant family violence.

18. The representative stated that the applicant and he had agreed to a paraprofessional interpreter because they did not want to further delay the interview. I discussed this aspect with the representative, as during the lengthy process of this review, the representative had always sought delays, even for periods of months when he thought it was in the best interests of the applicant. I discussed with the representative and the applicant that there was no suggestion that the interpreting was unreliable, and that the indication from the report is that the applicant understood all the questions and when required questions were repeated. The representative did not offer any example from the report of unreliable interpreting during the interview. I discussed with the applicant and the representative that I accept the opinion of the independent expert that the interpreter was reliable, and that questions were repeated when appropriate. I note the applicant’s evidence is that he does not dispute the content of the report is correct. I accept that the applicant had signed the form after the completion of the interview in relation to the interpreting being satisfactory. I am satisfied that the interpreting at the interview was reliable, and I am not satisfied that there is any issue with the interpreter or the interpreting during the interview that has affected the validity of the report.

19. The representative stated he had written to the independent expert and was advised that the interview had not been recorded. The Tribunal does not find the issue of whether the interview between the independent expert and the applicant was recorded or not, affects the validity of the independent expert’s report.

20. The representative submitted the questions related to the relationship and issues of family violence had been discussed in the interview. The representative submitted that the independent expert also discussed other matters, including addresses, allegations about other partners and credibility issues that were not open to the independent expert to make findings upon. The Tribunal notes that these issues were factors that were raised by the applicant, and were issues connected to his relationship with the sponsor. The Tribunal is satisfied that the independent expert asked the correct questions in her assessment of whether the applicant experienced relevant family violence.

21. The applicant’s representative raised an issue of concern in relation to the independent expert’s report. On page 19, the penultimate page of the independent expert’s report, in the last paragraph, the independent expert recorded as follows “Following critical examination of [the applicant]’s claim, with consideration of the adverse/conflicting information, it is the IE’s opinion that the above-described conduct allegedly perpetrated by the SP does not constitute relevant family violence as defined by the Migration Regulations 1994. It is the IE’s opinion that the conduct described by [the applicant] is primarily representative of marital discord. Further, the related impacts, as described by [the applicant], did not suggest that the SP’s conduct in the incident/s caused him to reasonably fear for, or to be reasonably apprehensive about, his own well-being or safety. In providing this opinion, it is noted that according to the role of the Independent Expert, I have examined the issues of family violence with the applicant. However, in accordance with my role I am not able to determine whether family violence took place during the relationship. As I understand this, the Tribunal will make this determination.”

22. The Tribunal agreed with the submission of the applicant’s representative that this paragraph was not clear, in particular the second last sentence where the independent expert declared she was not able to determine whether family violence took place during the relationship. The Tribunal sought clarification from the independent expert after the hearing. (my italics).

23. The Tribunal received a further assessment report from the psychologist dated 28 October 2023. The psychologist recorded that the specific wording utilised in the report is consistent with advice previously provided, concerning the independent expert’s role being one of determining whether family violence occurred, but not one in which the independent expert is required to determine if family violence occurred during the period of the relationship. The independent expert stated that it is the Department’s, or the Tribunal’s role to determine at which point the relationship started and ended (that is the period during which the relationship is considered genuine and continuing). The independent expert advised that the sentence in the paragraph in page 19 of the report about which clarification was sought was intended to record the independent expert’s understanding was that her role was not to determine the genuineness of the relationship or the period in which the relationship occurred, or whether family violence occurred during the period of the relationship, as this is the role of the Tribunal. Rather the role of the independent expert is to provide an opinion on whether the applicant suffered relevant family violence as defined by the Migration Regulations 1994. The independent expert confirmed her opinion that with regard to all the information available to her the alleged victim (the applicant) has not suffered relevant family violence as defined in the Migration Regulations 1994.

1. The Tribunal accepts that this further report properly clarifies the IE’s report, the role of the IE in assessing whether the applicant experienced relevant family violence, and the findings in the report.

2. A copy of this further assessment report clarifying the information in the quoted paragraph in page 19 of the independent expert’s report was sent to the applicant pursuant to s.359A of the Act in a letter dated 1 November 2023. The applicant was invited to provide his written comments or responses by 15 November 2023.

3. In the letter dated 1 November 2023 the Tribunal specified that the applicant’s comments or responses should be received by 15 November 2023, and if the applicant could not provide his written comments or responses by 15 November 2023 he may ask for an extension of time in which to provide the comments or responses. The Tribunal specified that if the applicant makes such a request for an extension of time it must be received by 15 November 2023, and he must state the reason why the extension of time is required. In the letter to the applicant, the Tribunal advised that if it do 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 any further action to obtain your views on the information.

4. The Tribunal did not receive any written comments or responses from the applicant within the time frame specified, which was by 15 November 2023. The applicant was invited under s.359A to comment or respond to information, and the applicant did not give the comments or responses before the time for giving them had passed, and the applicant did not request an extension of time for giving the comments or responses before the time for making a request for an extension of time had passed. Pursuant to s.359C(2) of the Act the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.

5. On 17 November 2023 the Tribunal received an email from the applicant’s representative requesting an extension of time to 30 November 2023. No reason was given for the request for an extension of time. No reason was given for not providing the request for an extension of time, or the written comments or responses within the timeframe allowed by the Tribunal.

6. The request for an extension of time was received outside of the time allowed for either comments or responses to be provided, or for the request for an extension of time to be received. The request for an extension of time was not granted.

7. The Tribunal has considered the independent expert report dated 9 August 2023, and the further report dated 28 October 2023 clarifying the one paragraph on page 19 of the report dated 9 August 2023.

8. For all the above reasons the Tribunal is satisfied that the independent expert is suitably qualified to make the assessment, and the assessment was properly and validly made. The Tribunal is required therefore to take the opinion of the independent expert as correct.

9. The Tribunal is satisfied that the opinion is authorised by the Regulations, in that it is provided by an independent expert who is a person suitably qualified to make the assessment, is an employee of an organisation specified for this purpose, and was properly made. Under reg 1.23 the Tribunal is required to take as correct an independent expert’s opinion, properly made.

10. Accordingly, the Tribunal finds that the applicant is not taken to have suffered family violence committed by the sponsor for reg 1.22.

11. Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements of cl.100.221(4)(b) and (c) for the grant of the visa. There is no evidence before the Tribunal that the applicant meets any of the alternative sub criteria. As the applicant does not meet an essential criterion for the visa, the Tribunal must affirm the decision under review.

    DECISION

12. The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa

    Margie Bourke
    Member

    
    

    ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    1.21 Interpretation

    In this Division:

    independent expert means a person who:

    (a)is suitably qualified to make independent assessments of non-judicially determined claims of family violence; and

    (b)is employed by, or contracted to provide services to, an organisation that is specified, in a legislative instrument made by the Minister, for the purpose of making independent assessments of non-judicially determined claims of family violence.

    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.

    statutory declaration means a statutory declaration under the Statutory Declarations Act 1959.

    violence includes a threat of violence.

    …

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

    (1)For these Regulations, this regulation explains when:

    (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.