Heng (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered the case of a Cambodian citizen, the primary applicant, and his two children, the secondary applicants, who sought Partner (Migrant) (Class BC) visas. The dispute arose after the sponsor, the primary applicant's Australian citizen wife, withdrew her sponsorship due to the breakdown of their relationship. The primary applicant claimed to have been a victim of family violence by his sponsor.

The legal issues before the Tribunal were whether the primary applicant had established that he had suffered family violence, as defined by the Migration Regulations 1994 (the Regulations), and consequently, whether he met the criteria for the grant of the visa. Specifically, the Tribunal had to determine if the evidence presented by the applicant satisfied the requirements for a non-judicially determined claim of family violence under regulation 1.23 of the Regulations.

The Tribunal reasoned that for a non-judicially determined claim of family violence to be established under regulation 1.23(9), the applicant needed to present evidence in accordance with regulation 1.24. This regulation requires, among other things, a statutory declaration from the alleged victim or another person on their behalf, which must name the alleged perpetrator and detail the family violence. The Tribunal found that the evidence provided by the applicant, including a report from a psychologist, statutory declarations from friends, and a letter from a doctor, did not meet these requirements. Crucially, none of these documents identified the perpetrator of the alleged family violence or provided sufficient detail about the alleged conduct. Therefore, the Tribunal concluded that a non-judicially determined claim of family violence had not been made out under the Regulations.

As the applicant failed to establish the essential criterion of having suffered family violence, he did not meet the requirements of clause 100.221(4)(b) and (c) for the grant of the visa. Consequently, the Tribunal affirmed the delegate's decision not to grant the Partner (Migrant) (Class BC) visas to the applicants.