2403766 (MIGRATION) - [2025] ARTA 368

2403766 (MIGRATION) [2025] ARTA 368 (17 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2403766

Tribunal:Senior Member M Bourke
Place:Melbourne
Date: 17 February 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Residence) (Class BS) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 801 visa:
- Cl.801.221(6)(b) and (c) of Schedule 2 to the Regulations.

Statement made on 17 February 2025 at 2:52pm
CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – relationship with the sponsor has ceased – victim of family violence – satisfied that the applicant and the sponsor were in a spousal relationship – reports from the psychologist is evidence that meets the requirements of reg. 1.24 – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.21, 1.22, 1.23,1.24, Schedule 2, cl 801.221
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 18 August 2017 to refuse to grant the visa applicant a Partner (Residence) (Class BS) Subclass 801 visa under s.65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 2 December 2015 on the basis of her relationship with her sponsor. At that time, Class BS contained the Subclass 801 visa. The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant was the spouse or de facto partner of the sponsor prior to the relationship ceasing.
The applicant applied for review of the Department decision. The Tribunal (differently constituted) in a decision dated 13 February 2019 affirmed the decision of the Department on the basis that the documents submitted by the applicant to establish a claim of family violence did not meet the evidentiary requirements set out in reg 1.24 and the instrument IMMI 12/116.
The applicant appealed the decision of the Tribunal. The Federal Circuit and Family Court of Australia (Division 2), in a judgement dated [date] February 2024, found the decision of the Tribunal was affected by a jurisdictional error, as the applicant was not put on notice in relation to issues relevant to the review, and was not given the opportunity to respond to adverse information, and was not given the opportunity to provide further information or given a meaningful opportunity to present her case.
The Tribunal has considered the information provided by the applicant to the Department, and to the Tribunal (differently constituted) and the recent information and submissions provided to the current Tribunal. The parties to the review include the applicant, and the Minister who is a nonparticipating party. The applicant’s representative, in a submission dated 12 February 2025 requested the Tribunal consider finalising the matter without conducting a hearing. The Tribunal is satisfied that it can make a decision wholly favourable to the applicant based on the information available to it and without holding a hearing, and further that the issues for determination in the proceeding can be adequately determined in the absence of the parties. The Tribunal is therefore satisfied that the provisions of s.106(3) apply, in this review, and the Tribunal has decided to make a decision without holding a hearing.
The applicant was represented in relation to the review.
The following are the written reasons the Tribunal has concluded that the decision under review is set aside and the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case, the applicant claims the relationship with the sponsor has ceased, and that she has been the victim of family violence. The Tribunal notes that the decision of the Department dated 18 August 2017, was based on the conclusion that there was insufficient evidence of a relationship between the applicant and the sponsor. The Tribunal notes that the applicant was granted a subclass 300 (Prospective Marriage) visa in 2014, and was subsequently granted a subclass 820 Partner (Temporary) visa on 26 April 2016, according to the information recorded in the Department’s decision record.
Assessment of the evidence of the spousal relationship
Information provided to the Department in support of the application for the subclass 801 visa included a statutory declaration from the applicant, a statement from the applicant, statutory declaration from the applicant’s aunt, a statutory declaration from the applicant’s uncle, statutory declaration from the applicant’s cousin, the copy of the sponsor’s bank statements, collection of photographs, collection of communication records, a report of a psychologist, [Dr A], and a social worker report dated 7 July 2017 from [Mr B].
The Tribunal has subsequently been provided with information that were not available to the Department or to the previously constituted Tribunal, which included a psychological report from [Dr C] dated 23 January 2025 which provides significant detailed information about the applicant’s relationship with the sponsor, an updated report from social worker [Mr B] dated 4 February 2025, a statutory declaration from a friend of the sponsor about the relationship between the applicant and the sponsor dated 1 February 2025, a statutory declaration from a friend of the applicant about the relationship between the applicant and the sponsor dated 1 February 2025, a statutory declaration from a cousin of the applicant about the relationship between the applicant and the sponsor dated 5 February 2025.
Other information provided to the Tribunal included receipts for the marriage ceremony, jewellery and hotels dated 2014, travel documents in the name of the sponsor and collection of communication records, which may not have been available to previous decision-makers.
The Tribunal has also considered the registered Victorian marriage certificate, and extensive photos including wedding photos and the applicant and sponsor together in many social settings. The Tribunal is satisfied that the parties resided together, were married and had committed to and initially thought the relationship was long-term.
The Tribunal accepts the content of the written statements of the social worker and of the psychologist and of the applicant that she was financially controlled by the sponsor, and therefore is unable to provide much evidence of the financial aspects of the relationship. The Tribunal accepts that the marriage certificate records the parties resided at the same address in [City 1]. The Tribunal accepts that documents including the applicant’s national police certificate, and her incoming passenger card record the applicant’s postal and residential address respectively as the sponsor’s residential address in [City 1]. The Tribunal is satisfied that this evidence, read in conjunction with the statutory declarations from third parties, is sufficient evidence that the applicant and sponsor resided at the same address.
The Tribunal is satisfied that the statutory declarations and statements indicate that the applicant and sponsor represented themselves is married to each other and that friends and relatives considered their relationship to be genuine. The Tribunal is satisfied based on the written evidence that the parties had worked together in the sponsor’s cigarette business, and the sponsor had bought two pets for the applicant.
Based on the written and photographic evidence before it, the Tribunal is satisfied that the applicant and the sponsor were in a spousal relationship within the meaning of s.5F(2)(a),(b), (c) and (d) of the Act.
On the basis of the evidence, the Tribunal is satisfied the applicant and the sponsor were in a spouse relationship and this relationship has ceased.
The issue that arises on the evidence in this case is whether the applicant has experienced family violence committed by the sponsor, within the meaning of the regulations.
Assessment of the evidence of family violence
Under reg 1.23 of the Regulations, a person is taken to have experienced or committed family violence, if there is evidence tested before a court; or the visa application includes a nonjudicially determined claim of family violence, and either the Minister (or the Tribunal on review) is satisfied that the alleged victim has experienced relevant family violence or an opinion of an independent expert has been given that the alleged victim has experienced relevant family violence. Relevant family violence as defined in reg. 1.21. The violence, or part of the violence must have occurred during the relationship as required by reg. 1.23(3), (5), (7), (12), or (14).
In the present case, the applicant is seeking to establish family violence on the basis of a nonjudicially determined claim of family violence.
Under reg. 1.23, a visa application is taken to include a nonjudicially determined claim of family violence, as in this review, if evidence is provided in accordance with reg. 1.24. This includes a statutory declaration under reg.1.25 made by the spouse or partner of the alleged perpetrator. If the alleged victim is the spouse or de facto 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 de facto partner, name the person to whom it is directed and their relation with the deponent: reg. 1.25(2).
The evidence referred to in reg. 1.24, also includes evidence of a type and number specified by the Minister in the Migration Instrument LIN 23/026. This is a different instrument than the one considered by the Tribunal (differently constituted) in its decision dated 13 February 2019. This is because a new instrument was made in relation to paragraph 1.24(b) of the Migration Regulations dated 30 March 2023.
The Tribunal has considered the statutory declaration of the applicant on form 1410 dated 9 May 2017 with the accompanying statement, and the statutory declaration of the applicant dated 3 February 2025. The Tribunal is satisfied that the applicant is the spouse of the alleged perpetrator, and that the applicant has made two statutory declarations, has alleged that she is the victim of relevant family violence, setting out the allegations, and naming the person alleged to have committed the relevant family violence. The Tribunal is satisfied that the applicant has provided a statutory declaration by the alleged victim (herself) within the meaning of reg 1.25.
The Tribunal has considered the reports of [Mr B], the social worker dated 7 July 2017 and 4 February 2025. The Tribunal is satisfied that the reports were made by a social worker acting in his professional capacity. The Tribunal is satisfied that the reports confirm that the applicant, the alleged victim, has made a claim of family violence, that the reports give the professional opinion of the social worker that the claims of the alleged victim are consistent with her having being subject to family violence, and the social worker identifies the sponsor (the husband of the applicant) as the alleged perpetrator of the family violence. The social worker states that he forms the opinion that the applicant’s experienced family violence perpetrated by the sponsor, and that the family violence encompassed multiple forms, including emotional and psychological abuse, social abuse, financial abuse and sexual abuse. The social worker also noted that the sponsor effectively enslaved the applicant, isolated her socially and financially and perpetrated sexual and other forms of family violence upon her. The Tribunal is satisfied that the reports from the social worker are evidence that meets the requirements of reg. 1.24(b).
The Tribunal has considered the psychological report of [Dr C] which is dated 23 January 2025. This report was provided at a much later date than that report of [Dr A], but the Tribunal prefers the detail in this report about the relationship and the assessment of family violence to the earlier report of [Dr A]. The Tribunal is satisfied that the report of [Dr C] also confirms that the applicant, the alleged victim, has made a claim of family violence, that the report gives the professional opinion of the psychologist that the claims of the alleged victim are consistent with the applicant having been subject to family violence, and identifies the alleged perpetrator as the sponsor. The Tribunal notes that [Dr C] concludes that the reports from the applicant indicate she experienced rape and brutal sexual assault, and experienced coercive control, threats and significant emotional abuse. The report concludes that the psychologist is of the opinion that the applicant was subjected to family violence, which is consistent with her diagnosis of post traumatic stress disorder and her need for concerted treatment. The Tribunal is satisfied that the reports from the psychologist, [Dr C], is evidence that meets the requirements of reg. 1.24(b).
The Tribunal is satisfied that the applicant has provided a statutory declaration that meets the requirements of reg 1.25(2), and has provided evidence that meets the requirements specified in the instrument LIN 23/026 and meets the requirements of reg. 1.24(b). Therefore, the evidence presented by the applicant meets the requirements of reg. 1.24. The Tribunal is satisfied that the applicant has made a nonjudicially determined claim of family violence under reg. 1.23.
Conclusions
The Tribunal has considered the detailed and consistent information provided by the applicant, in her statutory declarations and statements, and in the information provided in the reports of the social worker and the psychologist [Dr C]. The information of the claimed family violence is consistent with the information provided in the form of statutory declarations and statements from family and friends. The Tribunal notes the severity of the family violence experienced by the applicant, and the severity and longevity of the impact on her psychological health. The Tribunal is satisfied that the applicant experienced family violence as claimed. Having considered all the evidence before it, the Tribunal is satisfied that the applicant has experienced family violence committed by the sponsor that occurred whilst the applicant and sponsor were in the relationship. The Tribunal is satisfied that the applicant experienced relevant family violence within the meaning of reg. 1.22 and reg. 1.23.
As the relationship between the applicant and the sponsor has ceased, and the applicant has experienced relevant family violence committed by the sponsor, the applicant meets the requirements of cl.801.221(6)(b) and (c).
Given these findings, the appropriate course is to set the decision under review aside and remit the visa application to the Minister to consider the remaining criteria for the visa.
DECISION
The Tribunal sets aside the decision under review and remits the application for a Partner (Residence) (Class BS) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 801 visa:
– cl.801.221(6)(b) and (c).
Date(s) of hearing: N/A
Representative for the Applicant: Ms Karyn ANDERSON