Ahmed (Migration) - [2025] ARTA 140

AHMED (MIGRATION) [2025] ARTA 140 (5 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Taimur Ahmed
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2103829

Tribunal:General Member Downes
Place:Brisbane
Date: 5 February 2025
Decision:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa

Statement made on 05 February 2025 at 3:24pm
CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – relationship ceased – withdrew their sponsorship – applicant is no longer in a spousal relationship with his sponsoring partner – independent expert provided an opinion that the applicant had not experienced relevant family violence – claim of family violence has not been established – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.22, 1.23, 1.24, 1.25, Schedule 2, cl 820.221
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 March 2021 to refuse to grant the visa applicant (the applicant) a Partner (Temporary) (Class UK) Subclass 820 visa under section 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 5 April 2017 based on his relationship with the visa 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).
The delegate refused to grant the visa on the basis that the applicant did not meet cl 820.221(3) of Schedule 2 to the Regulations because the relationship between the applicant and the sponsor had ended and the delegate was not satisfied that the applicant experienced family violence committed by the sponsor.
The applicant appeared before the Tribunal (differently constituted) via Microsoft Teams on

6 February 2024 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
ISSUE AND LAW
In the present case, the applicant claims the relationship with the visa sponsor has ended, and that he experienced family violence during the relationship. The applicant has made a claim of non-judicially determined family violence.
Under reg 1.23 of the Regulations, a person is taken to have experienced or committed family violence if, among other things, 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 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 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).
CONSIDERATION OF EVIDENCE AND CLAIMS
The applicant is a 36-year-old man from Pakistan. He applied for a Prospective Marriage visa on 4 August 2014, which was granted on 18 August 2016. He married the sponsor on 14 November 2016 and then applied for the visa that is the subject of this review application. In the application, the applicant declared that his parents reside in Pakistan. He also declared five siblings, three in Australia and two in Pakistan.
The Prospective Marriage visa and the visa that is the subject of this review application were sponsored by a now 40-year old Australian citizen, who was born in Pakistan. In August 2018, the sponsor notified the department that she wished to withdraw her sponsorship because the applicant had left her and was living with his friends.
In January 2019, in response to a letter from the department inviting the applicant to comment on adverse information relating to the breakdown in his relationship with the sponsor, the applicant claimed that he had experienced family violence perpetrated by the sponsor during their relationship.
The department referred the applicant to an independent expert for assessment of his family violence claim. Relevantly:
a.The applicant was interviewed by the independent expert on 11 March 2020.
b.The independent expert delivered an opinion dated 10 April 2020 to the effect that the applicant had not experienced relevant family violence.
c.The applicant was given an opportunity to comment on the independent expert’s opinion by letter dated 16 April 2020.
d.The applicant provided a response and additional evidence on 14 May 2020.
e.The applicant’s response and additional evidence was provided to the independent expert for review. The independent expert delivered a second opinion dated 27 July 2020 to the effect that the applicant had not suffered relevant family violence.
f.The applicant was given an opportunity to comment on the independent expert’s second opinion by letter dated 31 July 2020.
g.The applicant provided a response and additional evidence on 21 September 2020.
h.The department made its decision on 21 March 2021 based on the second opinion. Relevantly, the decision record states ‘You were notified of the IE’s opinion on 31 July 2020. Your new migration agent, Mr Chaudhry responded on 21 September 2020 and provided additional documents to support your family violence claim. However I find that you have not submitted any new evidence in your response to the Department which would require further re-assessment and referral to a new IE’.
The applicant appeared before the Tribunal (differently constituted) on 6 February 2024. The then Presiding Member was not satisfied that the applicant had experienced relevant family violence. Accordingly, on 15 February 2024, he referred the matter to an independent expert for their opinion.
From then, the application for review did not proceed in the usual manner. The developments are summarised in a letter from the Tribunal to the applicant dated 18 October 2024 as follows:
On 15 February 2024, you were referred by the Tribunal to an independent expert for their opinion on whether you experienced relevant family violence during the course of your relationship with the Partner visa sponsor. The Independent Expert is working for LSC Psychology.
We were advised by LSC Psychology that despite numerous attempts to make contact with you between February and April 2024, you did not engage with them to make an appointment to have an interview with the independent expert.
On 3 May 2024, you appointed your brother as your representative. Your brother informed the independent expert on or about 23 May 2024 that you were not able to participate in an interview with the independent expert at that time because of your mental health. Your brother requested ‘a few months’ for your mental health to improve. Your brother also previously provided medical evidence to the Tribunal to the effect that you have previously been hospitalised for treatment for schizophrenia.
On 13 September 2024, the Tribunal sent a letter to your brother requesting an update about your ability to participate in the review process. The letter specifically requested: information about your diagnosis and your present condition, including any medical evidence; whether you are now willing and able to participate in an interview with the independent expert; if the answer to this question is no, when you will likely be willing and able to participate in an interview with the independent expert; and any accommodations that you would like the Tribunal or the independent expert to consider to help you participate in the remainder of the review process, including any interview with the independent expert.
On 25 September 2024, your brother informed the Tribunal: that you are currently in Pakistan; that you recently attended a psychiatrist in Pakistan; that he is unaware if you are taking your medication and treatment as prescribed; and that he is unsure when you will be able to participate in a video interview with the independent expert (noting that your bridging visa has expired).
Tribunal’s obligations
The material before the Tribunal suggests that you are not currently willing and able to participate in the review process, and that this will continue for the foreseeable future. If this is incorrect, please let us know as soon as possible.
The Tribunal is required by section 9 of the Administrative Review Tribunal Act 2024 (Cth) to, among other things, pursue the objective of providing an independent mechanism of review that ensures applications are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits. This means that the Tribunal is unable to postpone the progression of your review application indefinitely, pending your ability to participate in the review process.
On 3 October 2024, you notified the Tribunal to the effect that you were no longer interested in pursuing your review application. However, to date, you have not responded to the Tribunal’s email of 4 October 2024 regarding the process to withdraw your application. Accordingly, the Tribunal is continuing to progress your review application in accordance with its statutory objects.
Next steps
The next step in the review process is for the independent expert to deliver their opinion about whether you experienced relevant family violence. The Tribunal must take the independent expert’s opinion on the matter to be correct.
On the information presently available to the Tribunal, it is likely that the independent expert would deliver an opinion that you did not experience relevant family violence. This would result in the decision under review being affirmed.
The independent expert has informed the Tribunal that the consummate approach to ensure that you are afforded procedural fairness would be for the independent expert to interview you (once you are able to participate in an interview) before they deliver their opinion.
However, given the matters referred to in this letter, the independent expert proposes to provide you with procedural fairness by giving you the opportunity to provide them with, by any other means, any additional information that you would like them to consider before they make their opinion. This may include you providing the independent expert with additional documentation or another person being interviewed by the independent expert.
You are requested to contact LSC Psychology by not later than 31 October 2024 to discuss this proposal. If you do not contact LSC Psychology by this date, the Independent Expert may make their opinion on the information presently available to them.
The Tribunal strongly encourages you to make contact with LSC Psychology…
Finally, if there are any reasonable adjustments to procedure that you would like the Tribunal to consider making to enable you to participate effectively in your review application, please notify the Tribunal as soon as possible.
On 5 November 2024, the Tribunal requested an update from the independent expert, who informed the Tribunal that she had not received any contact from the applicant or his brother and that she would proceed to delivering her opinion.
Were the applicant and the sponsor in a spouse relationship?
Having regard to the material before me, I am satisfied that the applicant and the sponsor were in a partner relationship and that this relationship has ceased.
Has a claim of family violence been made under the regulations?
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.
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.
I am satisfied based on the material before me that the evidence presented meets 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?
Having considered all the evidence before it, the Tribunal was not satisfied for the purposes of reg 1.23 that the applicant had experienced relevant family violence. In accordance with that regulation, the Tribunal sought the opinion of an independent expert.
On 24 December 2024, the independent expert provided an opinion that the applicant had not experienced relevant family violence. 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.
The applicant was giving the opportunity pursuant to s 359A of the Act to provide information in response to the independent expert’s opinion. The applicant’s brother responded to the Tribunal’s letter stating, among other things, ‘Taimur has moved to Pakistan in June 2024… according to him he has provided everything what immigration asked and now he is not mentally capable to provide more evidence’.
I do not consider that the applicant’s brother’s response warrants referral back to the independent expert as no new information or evidence has been submitted. Based on the independent expert’s opinion, I find that the applicant is not taken to have suffered family violence committed by the sponsor for reg 1.22.
Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements of cl 820.221(3) 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
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa
Date(s) of hearing:  6 February 2024
Representative for the Applicant:           Mr Danish Ahmed
ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
1.21 Interpretation
(1)In this Division:
competent person means:
(a)in relation to family violence committed against an adult:
(i)       a person registered as a medical practitioner under a law of a State or Territory providing for the registration of medical practitioners; or
(ii)      a person registered as a psychologist under a law of a State or Territory providing for the registration of psychologists; or
(iii)     a person who:
(A)is a registered nurse within the meaning of section 3 of the Health Insurance Act 1973; and
(B)is performing the duties of a registered nurse; or
(iv)    a person who:
(A)is a member of the Australian Association of Social Workers or is recognised by that Association as a person who is eligible to be a member of that Association; and
(B)is performing the duties of a social worker; or
(v) a person who is a family consultant under the Family Law Act 1975; or
(vi)    a person holding a position of a kind described in subregulation (2); or
(b)in relation to family violence committed against a child:
(i)       a person referred to in paragraph (a); or
(ii)      an officer of the child welfare or child protection authorities of a State or Territory.
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.
(2)The positions referred to in subparagraph (a)(vi) of the definition of competent person in subregulation (1) are:
(a)manager or coordinator of:
(i)       a women's refuge; or
(ii)      a crisis and counselling service that specialises in family violence; or
(b)a position with:
(i)       decision-making responsibility for:
(A)a women's refuge; or
(B)a crisis and counselling service that specialises in family violence;
that has a collective decision-making structure; and
(ii)      responsibility for matters concerning family violence within the operations of that refuge or crisis and counselling service.
…
1.23     When is a person taken to have experienced or committed family violence?
(1)For the purposes of these Regulations:
(a)a person (the alleged victim) is taken to have experienced 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 experienced family violence. The criteria to be satisfied for the visa to be granted set out which persons may be taken to have experienced family violence, and how those persons are related to the spouse or de facto partner of, or the prospective spouse of, the alleged perpetrator mentioned in this regulation.
Circumstances in which family violence is experienced and committed — injunction under Family Law Act 1975
(2)The alleged victim is taken to have experienced 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 experienced and committed — court order
(4)The alleged victim is taken to have experienced 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.
(5)For subregulation (4), the violence, or part of the violence, that led to the granting of the order must have occurred while:
(a) the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator; or
(b) the relationship existed between the alleged perpetrator and the prospective spouse of the alleged perpetrator.
Circumstances in which family violence is experienced and committed — conviction
(6)The alleged victim is taken to have experienced 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:
(a) the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator; or
(b) the relationship existed between the alleged perpetrator and the prospective spouse of the alleged perpetrator.
Circumstances in which family violence is experienced 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 experienced 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 experienced family violence; and
(b)the alleged victim is:
(i)       a spouse or de facto partner, or the prospective spouse of, 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 the spouse or de facto partner of, or the prospective spouse of, the alleged perpetrator; or
(iii) a member of the family unit of a spouse or de facto partner of, or a prospective spouse of, the alleged perpetrator who has made a combined application for a visa with the spouse, de facto partner or prospective spouse (as the case may be); 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 experienced 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 experienced relevant family violence; and
(b)if the Minister is satisfied that the alleged victim has experienced 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 experienced the relevant family violence:
(i)       the Minister must seek the opinion of an independent expert about whether the alleged victim has experienced 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 experienced family violence.
(11)The alleged victim is taken to have experienced 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 experienced 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:
(a) the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator; or
(b) the relationship existed between the alleged perpetrator and the prospective spouse of the alleged perpetrator.
(13)The alleged victim is taken to have experienced 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 experienced 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 experienced relevant family violence must have occurred while:
(a) the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator; or
(b) the relationship existed between the alleged perpetrator and the prospective spouse of the alleged perpetrator.