Gumber (Migration)

Gumber (Migration) [2020] AATA 2550 (14 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Narinder Gumber
CASE NUMBER:  1810188
DIBP REFERENCES:  CLF2013/18537; CLF2018/39898
MEMBER:Rosa Gagliardi
DATE:14 May 2020
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 14 May 2020 at 12:40pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – genuine spousal relationship now ceased – general unhappiness and distress in relationship and non-judicially determined claim of family violence – statutory declaration – independent experts’ opinion – inconsistent evidence – escalating and new claims – adequacy of language interpretation and applicant’s level of English – claim of embarrassment at interview with woman independent expert – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 359A, 359AA, 376
Migration Regulations 1994 (Cth), rr 1.15A, 1.21, 1.22, 1.23, 1.24, 1.25, Schedule 2, cls 820.211, 820.221
CASES
Guven v MIMIA [2006] FMCA 311
He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 April 2018 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 29 January 2013 on the basis of his relationship with his sponsor, Ms Kolopa Jahnez Oriana Su’a Scanlan. 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 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 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.
The delegate refused to grant the visa on the basis that the applicant did not meet cl.820.221 because the applicant’s sponsor had withdrawn her sponsorship and an Independent Expert had determined that the applicant had not suffered relevant family violence. None of the other exceptions were applicable in this case.
The applicant appeared before the Tribunal on 8 January 2020 and 6 May 2020 to give evidence and present arguments. The Tribunal also received oral evidence the applicant’s friend, Shaz Khan at the initial hearing held on 8 January 2020.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case, the applicant claims the relationship with Ms Kolopa Jahnez Oriana Su’a Scanlan, the visa sponsor has ceased, and he has been the victim of family violence.
Was the relationship ever genuine and continuing?
The provisions of cl.801.221 indicate that a genuine partner relationship within the meaning of the Act must have existed before the relationship ceased and the applicant would have otherwise met the criteria in cl.820.211. This means that, while the claims of family violence do not have to cause the cessation of the relationship, the relationship which has ceased must have been one which would otherwise have met the requirements of the relevant legislation.
This approach was approved in the case of Guven v MIMIA [2006] FMCA 311 at [22]-[26] where Harnett FM found that when considering the grant of a Subclass 100 (Residence) visa, it was open to the Tribunal to consider whether at any point of time the relationship between the parties could properly be regarded as a spousal relationship within the meaning of the Regulations, and only where it found that such a spousal relationship existed, was it required to make a further finding in relation to claims of domestic violence (as it was then referred to).
Therefore, before assessing whether the applicant has suffered relevant family violence, the Tribunal must assess whether at any point of time the applicant and the sponsoring partner were in a spousal relationship within the meaning of the Regulations.
‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d).
In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3). Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
The parties were married on 1 December 2012 and it would be unreasonable, some 7 years after the marriage took place, for the Tribunal to conclude that the parties had never been in a genuine and continuing spousal relationship. Apart from allegations, the Tribunal does not have probative information before it, pointing to the relationship having been entered into for the sole purpose of the applicant gaining a migration outcome. As the Department did not raise issues about the bona fides of the relationship, the Tribunal can only infer that there were no such issues, even if the Department had refused to accept that there had been compelling and compassionate reasons for the applicant to lodge his application onshore under Schedule 3. At the time of this refusal the applicant applied to have the decision reviewed, and the Tribunal, as it is currently constituted, made a decision in the applicant’s favour, finding that he met cl.820.211(2)(d)(iii) of Schedule 2 to the Regulations.
The Tribunal considers, in light of the evidence submitted that both his and his sponsor’s mother had witnessed the relationship and had spent time with the couple, together with other evidence submitted at the time of application in favour of the relationship being a genuine and continuing spousal relationship, that the allegations submitted to the Department anonymously should be disregarded completely. Therefore the Tribunal places no weight on unreliable sources who do not provide probative evidence to support their allegations.
According to the applicant he first met Ms Scanlan at their mutual place of work. He then invited Ms Scanlan to his home for a coffee on 7 April 2012 and that soon after they commenced a relationship which developed quickly and he proposed marriage on 1 October 2012, marrying on 1 December 2012.
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.
Under r.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 r.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: r.1.23(3), (5), (7), (12), (14).
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?
Under r.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 r.1.24 is provided.
The applicant in this case is seeking to rely on evidence referred to in r.1.24 – namely, a statutory declaration under r.1.25 and evidence of a type and number specified by the Minister for these purposes.
A statutory declaration under r.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: r.1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: r.1.25(3).
At the time of application the applicant submitted:
·    his own statutory declaration (Form 1410), dated 25 January 2017.
·    a psychologist’s report dated 25 January 2017, as required under Schedule 1; and
·    A medical report by a general practitioner, dated 16 January 2017, identifying the alleged victim and detailing the treatment for mental health that is consistent with the claimed family violence.
Therefore, the evidence presented, at the time of application, met the requirements of r.1.24. As such, a non-judicially determined claim of family violence has been made under r.1.23.
Has the applicant suffered family violence?
The Department did not accept that the applicant had suffered relevant family violence for the purposes of r.1.23 and referred the matter to an Independent Expert on

15 December 2017, to determine whether the applicant had been the victim of family violence as defined. The Tribunal notes that the Department also wrote to the Independent Expert on

5 January 2018, in the following terms:
As discussed on the phone today, due to the unavailability of level 3 Punjabi interpreters, approval has been provided for a level 2 interpreter to be used for your report. However, can you please ensure that the form confirming that the PA understood the interpreter is completed and if there is any doubt that there may be a misunderstanding due to the language barrier or the PA is not understanding the interpreter then the interview is stopped.[1]
First Independent Expert opinion
[1] Folio 90, Departmental file: CLF2018/39898.
On 20 January 2018 the independent expert provided an opinion that the applicant had not suffered relevant family violence. The adverse opinion was put to the applicant by the Department in a natural justice letter.
In summary, the report stated:
Mr Gumbar provided an account of his marriage by which he interpreted that his wife had subjected him to social, financial, verbal, psychological and physical violence. However, it is the writer’s opinion that the complaints made by Mr Gumbar were more representative of his concerns about he couple’s unhappiness and unmet expectations in the marriage. Further, Mr Gumbar’s distress appeared to be more aligned with the stress related to infertility, a fear of the relationship deteriorating and the consequent shame that would bring. While Mr Gumber did report instances where the sponsor was rude, demanding, disrespectful, controlling the writer did not form the opinion that these instances elicited fear or apprehension for his safety or well-being. Mr Gumbar was unable to provide sufficient details of particular incidents of verbal, financial and social abuse that would determine his experience of family violence and failed to report any feelings of fear or apprehension relating to these experiences. Rather, it appears as though, Mr Gumber’s self-described distress occurred in response to him feeling worried about the relationship ending and in response to his wife’s infidelity. The writer formed the opinion that while Mr Gumbar did in fact interpret his experiences with his wife as abusive, this did not sufficiently describe behaviours characteristic of these forms of family violence.
Other comments involved that the applicant’s account appeared rehearsed.
The Department was satisfied that the opinion was authorised by the Regulations, in that it was 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 r.1.23 the Department took as correct an independent expert’s opinion and considered that it was properly made.
The Tribunal review
At the initial hearing the Tribunal raised the matter of the s.376 certificate which stated that disclosure of this material would be contrary to the public interest because certain folios contained allegations from an anonymous source and that the identity of the source could be revealed if the allegation were to be shared. The Tribunal showed the applicant and his migration agent a copy of the certificate. The Tribunal weighed the public interest against the need to provide the applicant with procedural fairness in the event the allegations were material to the findings of the review.
The essence of the allegations put to the applicant pursuant to s.359AA of the Act, involved that the applicant had entered a contrived relationship for the purposes of gaining a migration outcome. The applicant responded that he denied the allegations. He had already provided documentation showing that he had been in a genuine and continuing spousal relationship. Together they had sponsored his sponsor’s mother to Australia, and they had sponsored his mother as well. The sponsor had spent three months with his mother. He had also submitted photos reflecting this. His mother was also a witness to the relationship being genuine and continuing.
The applicant argued that the report focussed on incorrect inconsistencies in dates by the applicant. The Tribunal noted that the finding of the Independent’s Expert’s report was that his experiences did not amount to family violence and the issue of inconsistencies in dates was not a key factor in the findings of the report. The applicant claimed that the report was not fair as he had tried to explain the fear he experienced. He thought that his feelings were not interpreted properly. The Tribunal noted, however, that it appeared self-serving for him to make these allegations at this point as he was not in favour of the report’s findings.
The migration agent intervened to state that the psychologist had written that the applicant had expressed fear.
The applicant stated that all the events were true and the inconsistencies referred to consisted of dates of events. Unintentionally it seemed rehearsed because he had already explained all these things to psychologists etc.
The migration agent confirmed that the applicant was requesting to have his matter referred to another Independent Expert due to the possibility of misunderstanding in the interview, that led to the report dated 18 January 2018.
The Tribunal asked whether the migration agent spoke the applicant’s language and he stated that he did. The Tribunal suggested that if any further referrals were made to an Independent Expert he might wish to sit in to ensure the interview was conducted appropriately. The migration agent stated that he did not know whether he could attend.
The Tribunal stated that in the event the Tribunal did refer the matter to another Independent Expert the findings of that report would be binding on the Tribunal. The Tribunal was not prepared to enter into a process by which the applicant sought review after review until he gained an outcome that suited him. The migration agent stated that he understood.
Second Independent Expert opinion
The Tribunal considered the applicant’s claims that he felt he had not been given a fair interview by the initial Independent Expert and decided he should be given another opportunity to put forward his claims to another Independent Expert.
On 10 January 2020 the applicant wrote to the Tribunal via his migration agent stating, “I request the Tribunal to preclude any prejudicial information while submitting my request for review by an independent expert”. The Tribunal responded stating, “I refer to your email below, requesting that the Tribunal not make available to the Independent Expert any adverse information about this matter. The Tribunal advises that to do so would be akin to the Tribunal making an arbitrary decision to exclude any information that would be favourable to the applicant and indeed the Tribunal would never do this. In the interests of fairness and transparency the Tribunal is required to send the Independent Expert all relevant information – both adverse and positive. In the interests of natural justice, the applicant will also receive a copy of all the information that will be forwarded to the Independent Expert. If your client does not wish to proceed on the basis of the Tribunal’s standard practice and is not prepared to see an independent expert but wishes to withdraw the application, please advise the Tribunal as soon as possible”.
The Tribunal did not receive a request to withdraw from the review process and proceeded to refer the matter on 24 January 2020 to a separate (to the one who had previously provided an opinion) Independent Expert.
On 3 March 2020 the Independent Expert provided an opinion that relevant family violence that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own personal wellbeing or safety has not occurred.
Below is an excerpt of the second Independent Expert’s opinion:
Mr Gumer commenced the assessment by reporting new information of an alleged sexual assault and him leaving Ms Scanlan for two days in September 2015. He alleged Ms Scanlan forcefully tied him to their bed and orally raped him. When probed for further detail, Mr Gumber became vague and there were elements of his account that were odd or implausible. It was also concerning that Mr Gumber cited this assault as the precipitant to him leaving the home for two days but could not recall this without deferring to written notes. He was assured that he could refer to his notes but asked to first recall, no matter how general, what led to him leaving the home. Mr Gumber was unable to recall due to “bad memory” and feeling “a bit nervous” without referring to his notes. This, combined with Mr Gumber failing to disclose this incident in five prior engagements with professionals, including his treating psychologist, questions the veracity of his account. Furthermore, there were several inconsistencies in his reporting of other examples of family violence…
Mr Gumber was given an opportunity to explain these discrepancies, to which he attributed (to) a reluctance to recall the incidents…, professionals making errors in their reporting of his account and with regards to the previous IE, errors in the interpreting of his account. Mr Gumber also provided implausible rationales such as not knowing the purpose of the previous IE assessment and describing the assessment as a general discussion of the relationship that failed to ask detailed questions, such as those posed in the current assessment. This is inconsistent with the five hours spent conducting the previous assessment and detailed report that followed…
….With regards to the new alleged sexual assault, I question the veracity of this report…
Overall, Mr Gumber’s narrative was inconsistent and his rationale for the inconsistencies were often implausible or not compelling. Furthermore, the new information he reported in the current assessment, which comprised an escalation in his claim of having suffered family violence, particularly given he has had numerous opportunities to report his claim, questions his credibility and the veracity of his claim. It is also noteworthy that Mr Gumber chose to rely very little on the interpreter present during the assessment and that he had an excellent command of the English language. The overall impression of the relationship was that of mutual discord and Mr Gumber wanting to avoid becoming a divorcee. Based on the current assessment, Mr Gumber has not suffered relevant family violence as defined by regulation 1.21 of the Migration Regulations 1994.

On 11 March 2020 the Tribunal wrote to the applicant pursuant to s.359A of the Migration Act enclosing a copy of the latest Independent Expert’s opinion/report and seeking the applicant’s comments. Below is the Tribunal’s letter of 11 March 2020:
- You were previously referred by the Department of Home Affairs (DHA) to an
Independent Expert to provide an opinion in relation to the claims you made that
you had suffered relevant family violence under the provisions of the Migration
Regulations 1994 (the Regulations). The Independent Expert at that time
assessed your claims on 20 January 2018 as to whether you had suffered ‘relevant
family violence’ according to the definition in Regulation 1.21.

In the Independent Expert’s opinion relevant family violence that causes you, the
alleged victim to reasonably fear for, or to be reasonably apprehensive about, your
own wellbeing or safety “has not occurred”.

In response you raised various objections to the report, among which included
allegations that the interpreter had not fulfilled his/her obligations appropriately and
that the Independent Expert was biased. As an Independent Expert’s opinion is
binding unless legal flaws or additional evidence have been identified, DHA
proceeded to refuse the visa.

You asked the Tribunal to review the DHA decision and advised the Tribunal that
in your view you had not been given a fair hearing as well as highlighting issues
with the level of interpretation.

The Tribunal was prepared to ensure you had a fair hearing and again referred you
to a different Independent Expert to review your claims and we advised you
accordingly on 21 February 2020.
- On 4 March 2020 a further completed assessment report was provided to the
Tribunal. It is attached for your reference and is dated 3 March 2020. The
Tribunal notes that you signed an “End of Interview Acknowledgement”,
acknowledging:

…that the psychologist who interviewed me gave me a fair and reasonable
opportunity to present my case and be heard.

I acknowledge that I understood and was satisfied with the interpreter whose
services were utilised during this interview, including interpreting the contents
of this acknowledgement.

I understand that if, for any reason, I felt uncomfortable raising either of the
above matters during the interview, I can do so directly with my case officer or
my migration agent, if one is representing me, within five (5) days from the date
of the interview.

As you will see the Independent Expert returned an opinion that in their opinion,
relevant family violence that causes you to reasonably fear for, or to be reasonably
apprehensive about, your own personal well-being or safety “has not occurred”.

This information is relevant to the review because according to cl.1.23(10)(c)(ii), the
Tribunal must take the Independent Expert’s opinion on the matter to be correct for the purposes of deciding whether you have suffered relevant family violence under the Regulations.

If the Tribunal relies on this information in making its decision, it may find that you
have not established that you have suffered relevant family violence committed by
your sponsor and that the requirements of Division 1.5 are not satisfied. As such, the
Tribunal may find that you do not satisfy clause 820.221(3) of the Regulations, or any of the alternative subclauses within clause 820.221, and cannot meet the requirements of the grant of a subclass 820 visa.
On 16 April 2020 the Tribunal received a “statement” from the applicant stating that he wanted to again provide details “to prove that I am a recipient of family violence”. He also wrote that it was hurtful for him to read the Independent Expert’s report. He also wrote that as a man it had been difficult for him to raise sensitive matters that hurt his self-respect, particularly in relating his account to a woman – the Independent Expert. He also explained that when someone goes through any tragedy or trauma it affects them badly and “you cannot measure the hurt”.
The applicant then proceeded to set out the narrative of his relationship and to provide instances of alleged family violence again.
The Tribunal gave the applicant an opportunity to be heard at a hearing in relation to the second Independent Expert’s opinion, during which time the applicant stated that he respected the professionalism of the Independent Expert but was confused as to why she had written these things. The applicant reiterated that he wanted the Tribunal to make a fair decision.
The Tribunal is satisfied that the opinion was authorised by the Regulations, in that it was 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 r.1.23 the Tribunal takes as correct the second independent expert’s opinion and considers that it was properly made.
The Tribunal has considered the applicant’s response carefully both in writing and at the most recent hearing but is not persuaded that the Tribunal, contrary to cl.1.23(10)(c)(ii), must not take the most recent report to be correct. The applicant did not object at the time of the interview with the second Independent Expert as a woman. Indeed, he signed that he had been given a fair and reasonable opportunity to present his case and be heard. The Tribunal notes that the applicant had a migration agent to advocate on his behalf. It now appears disingenuous for the applicant to argue that he felt embarrassed raising the matters in front of a woman. The Tribunal notes that the applicant had no such concerns when raising issues with his female psychologist at the time of application.
Conclusion
The Tribunal appreciates that the applicant will be disappointed with this outcome, but the Tribunal is also satisfied that he has continuously been given a fair and reasonable opportunity to present his case. The Tribunal also finds that the latest Independent Expert’s opinion is binding on the Tribunal. Accordingly, the Tribunal finds that the applicant is not taken to have suffered family violence committed by the sponsor for r.1.22.
Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements 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
Rosa Gagliardi
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.

[2020] AATA 2550

14 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction