2307542 (Migration)

[2024] AATA 746

2307542 (Migration) [2024] AATA 746 (13 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Catherine Farrell

CASE NUMBER:  2307542

MEMBER:Margie Bourke

DATE:13 February 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a subclass 820 visa:

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

The Tribunal remits the applications for Partner (Temporary) (Class UK) visas for reconsideration, with the direction that the second and third named visa applicants meet the following criteria for a subclass 820 visa:

·cl.820.311 of Schedule 2 to the Regulations.

Statement made on 13 February 2024 at 2:24pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – relationship had ceased –  review applicant experienced family violence – relationship between the review applicant and the sponsor was a genuine and continuing relationship at the time the application – applicant doesn’t meet the evidentiary requirements of a nonjudicial claim of family violence – medical report meets the specifications of evidentiary requirements – applicant has suffered family violence committed by the sponsor that occurred whilst the parties were in the relationship – secondary visa applicants were a child of the primary review applicant – decision under review remitted         

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, rr 1.21, 1.24, 1.25, Schedule 2, cls 820.221, 820.311

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 Immigration and Border Protection on 11 November 2015 to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (the primary visa applicant) applied for the visa on 6 March 2014 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 cl.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). The applicant claims this occurred in this case.

4. The Department refused the application for the visa in a decision dated 11 November 2015. The review applicant applyied for review of the Department’s decision, and the Tribunal (differently constituted) affirmed the decision of the Department in a decision record dated 2 August 2017.

5. The applicant appealed the decision of the Tribunal, and the Federal Circuit and Family Court of Australia (Division 2) in a decision dated 14 April 2022 upheld the decision of the Tribunal.

6. The applicant appealed to the Federal Court of Australia, and the judgement of the Federal Court of Australia dated [date] May 2023 sets aside the orders of the Federal Circuit and Family Court of Australia, and quashed the decision of the Tribunal dated 2 August 2017, on the basis that there had been a jurisdictional error in the decision of the Tribunal. The judgement of the Federal Court of Australia found the Tribunal had breached an obligation under s.360(1) of the Act and had failed to put the review applicant on notice of relevant issues to be determined in the review and significant to the decision of the Tribunal.

7. The matter was remitted back to this Tribunal for review.

8. The delegate refused to grant the visas in the decision dated 11 November 2015 on the basis that the primary visa applicant did not meet cl.820.211 because the delegate was not satisfied the review applicant had provided sufficient evidence to demonstrate she was the spouse of the sponsoring partner.

9. On 30 November 2023 the review applicant’s representative advised the Tribunal that the relationship between the review applicant and her sponsoring partner had ceased, and that they had separated in 2017 and divorced in 2019. All subsequent evidence before the Tribunal was that the parties had separated in 2018. The review applicant claims she meets the alternative criteria at time of decision that the primary review applicant experienced family violence.

10. The primary review applicant appeared before the Tribunal on 15 January 2024 to give evidence and present arguments. The older of the secondary visa applicants also attended the hearing. The Tribunal also received oral evidence from three witnesses, [name], the review applicant’s sister, [name], the review applicant’s uncle and [name], a friend of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in English and Vietnamese languages.

11. The applicants were represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

14. It is important for this Tribunal recognise that the issue of whether the review applicant and the sponsor were in a genuine spousal relationship at the time of application, was the issue that was determined in the Department’s decision record dated 11 November 2015, and the previous Tribunal’s decision dated 2 August 2017.

15. The Tribunal has considered the information provided in the Department’s file, the information available to the previous Tribunal and the information provided to Tribunal in this review relevant to its assessment of the spousal relationship. The Tribunal has also considered the matters in the Department’s decision record which is the subject of this review.

16. The Tribunal received further written and oral evidence from the witnesses who attended the hearing including a statutory declaration from the review applicant sister dated 11 December 2023, a statutory declaration from the review applicant uncle dated 22 December 2023, and a statutory declaration from the review applicant friend dated 22 December 2023.  The Tribunal also received a statutory declaration from the primary review applicant dated 9 January 2024, a statement from the older secondary visa applicant dated 10 January 2024, a statement from a friend of the review applicant dated 19 December 2023, medical records including a psychosocial assessment report, court extracts, a collection of photos and submissions from the review applicant’s representative.

17. The Tribunal is satisfied based on the marriage certificate that the parties were married at [a suburb] on 21 December 2013. The Tribunal is satisfied based on the evidence including utility bills, receipts, correspondence, statements and statutory declarations, joint bills and joint bank statements addressed to the primary review applicant and the sponsor that the parties resided at the same address.

18. The Tribunal accepts the evidence before it that the sponsor initially moved into the residential address as a boarder and friend, and that both the review applicant and the sponsor had experienced the breakdown of previous relationships. The Tribunal accepts the evidence before it that a more personal relationship developed between the review applicant and the sponsor.

19. The Tribunal accepts that while the relationship between the review applicant and the sponsor was developing, the review applicant had a sexual encounter with her previous husband, during which time her second child was conceived. The Tribunal accepts the review applicant advised both her previous husband and the sponsor of the situation, and that the review applicant experienced shame and embarrassment. The Tribunal accepts that the sponsor accepted the explanation from the review applicant, their relationship continued, and the sponsor agreed to raise the child as his own, and the review applicant and the sponsor continued with their plans to marry.

20. The Tribunal accepts that the relationship between the review applicant and the sponsor deteriorated over time and did not survive the scrutiny of judicial investigation into the paternity of the review applicant’s second child. The Tribunal is cognisant that the development and existence of partner relationships do not always follow a similar pattern, and face difficulties and challenges.

21. The Tribunal accepts the evidence of the review applicant, and the written and oral evidence of the review applicant’s sister, uncle and friends and older child that the spousal relationship between the review applicant and the sponsor was a genuine and continuing relationship at the time the application. The Tribunal accepts the evidence before it that the review applicant and the sponsor were in a marital relationship that was recognised and accepted by family and friends. The Tribunal also accepts the evidence in the reports of the social worker, psychologist and treating doctor in relation to the review applicant, that they have formed the opinion that the review applicant was in a genuine and committed marital relationship with the sponsor.

22. The Tribunal satisfied that the relationship between the applicant sponsor began to deteriorate near the end of 2017, and the relationship ceased and the parties separated in April 2018.

23. The Tribunal has noted that the review applicant refers to being made aware in April 2018 the sponsor may be in a relationship with another person. The Tribunal does not find that this impacts its assessment of the genuineness of the relationship, or the mutual commitment between the parties prior to the breakdown of the relationship.

24. 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.

25. 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).

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

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

    (1) Judicial claim of family violence

27. Under reg 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.

28. The review applicant made an application for an intervention order in the Magistrates Court on [date] June 2019. In the application for the intervention order, provided to the Tribunal by the review applicant, the review applicant records that the respondent is her husband and they have been separated for approximately 14 months. The review applicant records in the application that there was a history of family violence during 2017 prior to the sponsor (the respondent in the application for the intervention order), leaving the family home.

29. On 12 October 2021 a court extract confirms that the application for intervention order was withdrawn and the respondent signed an undertaking not to commit family violence. The signed undertaking recorded that the respondent did not admit any of the allegations in the application for the intervention order.

30. The Tribunal accepts that an interim intervention order was made, when the sponsor was not present at court. The application for a final intervention order was adjourned for a hearing date, which involved the interim intervention order being listed for mention and adjourned at the court. The Tribunal is not satisfied that on dates when the interim intervention order was mentioned, and the review applicant and the sponsor were present at court, and an adjournment of the proceedings was ordered by the magistrates Court, that the review applicant has demonstrated that the court had given the sponsor an opportunity to be heard in relation to the intervention order and family violence allegations. Further when the matter was resolved, and the sponsor signed undertaking, the undertaking records that the sponsor did not make any admissions in relation to the allegations contained in the application for the intervention order.

31. The undertaking is not a court order confirming that the court made any findings that family violence has been perpetrated by the sponsor against the primary review applicant. The court makes no such findings. The application for intervention order is withdrawn on the basis of an undertaking made by the sponsor with no admission of the allegations. There is no evidence provided to the Tribunal that the sponsor at any time was given the opportunity by the Court to be heard or to otherwise make submissions in relation to the issue of allegations of family violence.

32. The Tribunal concludes that the application for the intervention order, and the undertaking signed by the sponsor does not meet the requirements of a court order for the purposes of reg.1.23(4).

33. The Tribunal is not satisfied that the applicant meets the evidentiary requirements for a judicial claim of family violence.

    (2) Non-judicial claim family violence

34. 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.

35. The review applicant’s representative submitted that alternatively the signed undertaking met the requirements of reg. 1.23(8) in relation to a joint undertaking to a court.  Reg 1.23(8) states that for these Regulations, an application for a visa is taken to include a nonjudicially 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 had 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.

36. The Tribunal is not satisfied that the undertaking signed by the sponsor on 12 October 2021, an undertaking that he will not commit family violence against the primary review applicant and her two children, amounts to a joint undertaking in relation to proceedings in which an allegation is before the court that the perpetrator has committed an act of violence against the alleged victim. The Tribunal notes that the sponsor gave the undertaking without admitting the allegations in the application for intervention order. The Tribunal notes that the undertaking was signed by both the review applicant and the sponsor, but there was no undertaking by the review applicant; her signature indicated she accepted the respondent’s (the sponsor’s) undertaking. The Tribunal does not accept that this document is a joint undertaking to a court. The Tribunal does not accept that this document is a joint undertaking in relation to proceedings that the alleged perpetrator has committed an act of violence against the alleged victim.

37. The Tribunal is not satisfied that the applicant meets the evidentiary requirements of a nonjudicial claim of family violence for the purposes of reg 1.23(8).

38. The Tribunal discussed with the review applicant and her representative in the hearing, that it had considered the review applicant’s statutory declaration and the social worker’s report, which indicated there was some validity to the review applicant’s claims that she was the victim of family violence in the relationship with the sponsor. The Tribunal indicated it would allow time after the hearing for the review applicant to provide further evidence in relation to meeting the evidentiary requirements for a nonjudicial claim of family violence.

39. On 12 February 2020 the Tribunal received a submission from the applicant’s representative, with attached documents including a psychological report from [Dr A] dated 9 February 2024 and a medical report from Dr [B] dated 26 January 2024.

40. 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 (see LIN 23/026).

41. 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).

42. The applicant provided a statutory declaration dated 9 January 2024, in which, amongst other things, the applicant alleges that she is the victim of relevant family violence, sets out the allegations, and names the person alleged to have committed the relevant family violence. The review applicant identifies her spousal relationship with the sponsor and sets out details of incidents of violence that occurred during the spousal relationship.

43. The statutory declaration provided by the review applicant meets the evidentiary requirements of reg 1.25.

44. The applicant provided a psychological report dated 9 February 2024 from [Dr A] acting her professional capacity, who confirmed she consulted with the review applicant on four occasions in 2020 and in 2024. In the report the psychologist’s confirms that the review applicant is claiming family violence from her ex-husband, and requested the report regarding the current mental state. The psychologist confirms that based on her professional opinion the review applicant experienced family violence including verbal, emotional, psychological, physical, financial and sexual abuse perpetrated by the sponsor during the course of their relationship. The psychologist identifies the alleged perpetrator as the sponsor. The psychological report provided by the review applicant meets the specification of evidentiary requirements set out in the instrument LIN 23/026.

1. The applicant provided the Tribunal with a medical report from her doctor dated 26 January 2024. The medical report confirms the review applicant is a patient of the doctor, identifies her conditions, the dates that she has presented for consultations, the treatments provided, medication prescribed or referrals undertaken, and the doctor confirms that the review applicant presented with issues consistent with her claims to have suffered family violence from her ex-husband and was treated accordingly. The evidence of the medical report identifies the review applicant as the alleged victim and details the treatment of the review applicant as the alleged victim that are consistent with family violence. The medical report provided by the review applicant meets the specifications of evidentiary requirements set out in the instrument LIN 23/026.

2. The Tribunal is satisfied that the type and number of items of evidence specified by the Minister by instrument has been provided by the review applicant, and the review applicant meets the evidentiary requirements of reg. 1.24(b).

3. Therefore, the evidence presented by the review applicant needs the requirements of reg 1.24. As such, a non-judicially determined claim of family violence has been made under reg 1.23.

   Has the applicant suffered family violence?

4. The Tribunal has considered the oral and written evidence before it, and is satisfied that the review applicant experienced relevant family violence during the course of the relationship as claimed. Having considered all of the evidence before it, the Tribunal is satisfied, for the purposes of reg 1.23, that the applicant has suffered family violence committed by the sponsor that occurred whilst the parties were in the relationship. As such, the applicant is taken to have suffered family violence in the relevant sense: reg 1.22.

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

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

   Secondary visa applicants

7. Clause 820.311 requires at the time of application that the secondary visa applicant is (a) either (i) a dependent child of a person who has applied for a Partner (Residents) (Class BS) visa, or (ii)  a member of the family unit of a person who (A) is the holder of, or has been a hold of, a Subclass 300 (Prospective Marriage) visa; and (B) has applied for a Partner (Residence) (Class BS) visa; and (b) the sponsorship (if any) in respect of that person includes the applicant; and (c) the Minister has not decided to grant or refuse to grant a visa to the person.

8. Based on the identity documents including birth certificates in relation to both secondary visa applicants, the Tribunal is satisfied that they are born in [year] and [year] respectively. At the time of application, namely 6 March 2014, the two secondary visa applicants were aged [age] years, and [age] respectively. The Tribunal is satisfied, based on the birth certificates, that both secondary visa applicants are the biological children of the primary review applicant. The Tribunal is satisfied that at the time of application, based on their age, that neither of the secondary visa applicants were engaged to be married, or married or partnered. The Tribunal is satisfied that at the time of application, the two secondary visa applicants were a child of the primary review applicant who had not turned 18, and the dependent child of the primary review applicant within the meaning of reg 1.03(a). Therefore the Tribunal is satisfied that the two secondary visa applicants meet the requirements of cl.820.311(a)(i).

9. The sponsorship form dated 20 November 2013 was signed before the birth of the third named visa applicant, and names the second named visa applicant as part of the sponsorship. For this reason, at the time of application, the sponsorship form included only be older secondary visa applicant. The information provided by the primary review applicant and the sponsor has consistently included both secondary visa applicants as part of the application for the visa, including the birth certificate of the younger secondary visa applicant and information about her paternity. The Tribunal is satisfied that the sponsorship of the primary review applicant includes the two secondary visa applicants. The Tribunal is therefore satisfied that the two secondary visa applicants meet the requirements of cl.820.311(b).

10. There is no evidence before the Tribunal that the Minister had not decided to grant or refuse to grant a visa to the secondary visa applicants or the primary review applicant at the time of application. Therefore the Tribunal is satisfied that the two secondary visa applicants meet the requirements of cl.820.311(c).

11. As the Tribunal is satisfied that the two secondary visa applicants meet the requirements of cl.820.311(a), (b) and (c), the Tribunal finds that the two secondary visa applicants meet the requirements of cl.820.311.

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

    DECISION

13. The Tribunal remits the applications for Partner (Temporary) (Class UK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a subclass 820 visa:

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

    The Tribunal remits the applications for Partner (Temporary) (Class UK) visas for reconsideration, with the direction that the second and third named applicants meet the following criteria for a subclass 820 visa:

    cl.820.311 of Schedule 2 to the Regulations.

    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.