JEPKIRUI (Migration)

JEPKIRUI (Migration) [2020] AATA 6158 (20 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Caren JEPKIRUI
CASE NUMBER:  1823267
DIBP REFERENCE(S):  BCC2017/1034975
MEMBER:Ann Duffield
DATE:20 July 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa

Statement made on 20 July 2020 at 12.20pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Federal Circuit Court remittal – relationship ceased – allegations of domestic violence – ongoing and exclusive spousal relationship at the time of the alleged family violence – quick inception and development of the relationship – no joint savings, assets or expenses – criminal record – sponsor compelled her to marry – police order – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.21, 1.23, 1.24, 1.25; Schedule 2, cls 820.211, 820.221
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 26 July 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 15 March 2017 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).
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.820.211 or cl.820.221 because they were not satisfied that the applicant and the sponsor were in a spousal relationship at the time of the alleged domestic violence. The delegate did not consider whether domestic violence occurred in the relationship.
The applicant appeared before the Tribunal via teleconference on 18 June 2020 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent who also participated in the hearing.
For the following reasons, the Tribunal has concluded that decision under review should be affirmed.
BACKGROUND
The applicant provided the Tribunal with a copy of the delegate’s decision along with her application for review.
The applicant is a citizen of Kenya born on 10 April 1990 (30 years old). She has a child from a previous relationship who is an Australian citizen born on 20 January 2016.
The applicant first arrived in Australia on 20 June 2012 on a student visa. She departed on 22 November 2012 returning again on 4 December 2012, again on a student visa. She was granted further student visas until March 2017 when she was granted a bridging visa in relation to her spouse application. That application was refused on 28 July 2018. She remains on a bridging visa at this time.
The parties claim to have met and started dating in January 2017 and lived together on an off until they got married on 15 March 2017. By the end of August 2017 the relationship had ended but they claim to have remained in contact until around January 2018.
The department wrote to the applicant on 20 April 2018 seeking her response to information received by the department relating to the cessation of her relationship to the sponsor.
On 16 and 18 May 2018 the applicant provided a response submitting that the applicant had been a victim of family violence perpetrated by the sponsor. The applicant provided the following documentation:
a.A completed application and sponsorship form for her partner application
b.Evidence of her and her sponsor’s identity;
c.Completed Form 80
d.A birth certificate for her son
e.A letter from the ANZ bank dated 17 February 2017 confiming the opening of a joint account
f.An interim statement of account noting transactions from 20 April 2018 to 19 June 2018
g.A notice of deman from the Bank to the sponsor dated 14 August 2017
h.A notice of intention to enforce issued on 22 July 2017 to the sponsor
i.A letter addressed to the sponsor
j.Supporting witness statement from Lindiwe Moud Cumede;
k.Supporting witness statement from Roah Khair Alla
l.A statutory declaration dated 27 June 2018 from Marvin Kifchichir confirming knowledge of the applicant and sponsors joint cohabitation
m.A divorce order relating to the applicant’s previous marriage
n.A marriage certificate for the sponsor and the applicant dated 15 March 2017
o.An interim police order dated 4 April 2017 noting that the applicant is the protected person and the sponsor as the person bound by the order.
p.A copy of a traffic infringement notice dated 16 March 2017 for the sponsor
q.A personal statement from the applicant detailing incidents of family violence
r.Excerpts from phone chats between the applicant and the sponsor
s.Beneficiary details of the applicant’s superannuation account confirming the sponsor as her sole beneficiary
t.Photos of the applicant and the sponsor together.
The delegate refused the application on the basis that there was insufficient evidence supporting the financial and social aspects of their relationship; the nature of their household or the nature of their commitment to one another.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case, the applicant claims the relationship with the visa sponsor has ceased, and she has been the victim of family violence. The Act requires that the parties must have been in a genuine, ongoing and exclusive spousal relationship at the time of the alleged family violence.
The tribunal has considered the spousal relationship between the applicant and the sponsor and makes the following findings:
SPOUSE/DE FACTO (cl.820.211(2)(a), (3)(e), (4)(e), (5)(e), (6)(d), cl.820.221)
Whether the parties are in a spouse or de facto relationship
Clause 820.2111(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claimed to have been the wife of an Australian citizen. There is a copy of the parties marriage certificate on the Department’s file On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).
The Tribunal put to the applicant at the hearing its concerns in relation to the genuiness of her relationship with the applicant, in particular the quick inception and development of the relationship, the fact that she allowed him to look after her two year old son despite his extensive criminal record, the inconsistent and implausible explanations relating to her work and study arrangements and the recent psychologists report. The applicant sought an adjournment which was granted and then allowed an additional two weeks for her to prepare a written submission. That time frame was extended upon their request and the final submissions were received by the Tribunal on 15 July 2020. The information in those submissions is included where relevant in the discussion of the claims and evidence below.
Are the other requirements for a spouse relationship met
The Tribunal has considered the financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.
The evidence before the Tribunal in relation to these matters is sparse. The parties were only living together for around 7 months before the marriage broke down.
The parties held a joint bank account which shows no transactions. The applicant’s bank account statements that she has provided do not indicate any shared expenses.
The parties have no joint savings or assets and no joint liabilities.
The evidence before the Tribunal does not suggest, for the limited time they claim to have lived together, that they shared resources. In the tribunal’s mind reflect the arrangements that would be common amongst housemates. In the totality of the parties’ circumstances, the Tribunal is not satisfied that the financial aspects of the parties relationship supports a finding that they have a mutual commitment to a shared life together to the exclusion of all others.
The Tribunal has considered the nature of the household – including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework.
The Tribunal notes the statutory declarations from friends and family attesting to the genuine nature of the parties’ relationship. In her statutory declaration to the Tribunal the applicant’s friend .
The Tribunal accepts that the parties may have lived in shared accommodation for a short period of time and may even have remained in contact after the breakdown of their marriage. However in the Tribunal’s mind this does not amount to evidence to support a claim that they lived together in a mutually exclusive, ongoing spousal relationship for the several months that they were married under law.
Of some concern to the Tribunal is the applicant’s admission that she opened mail belonging to the sponsor which allegedly contained extensive details of his criminal record over some six pages some time in August. She revealed this when asked by the Tribunal what the catalyst for the breakdown of the relationship was. The Tribunal asked her what the nature of his convictions and she were said they related to drugs. The Tribunal put to the applicant that it found it extraordinary that she would relegate the care of her two-year-old son to a man who had such a lengthy criminal record that allegedly included drugs. She said that she didn’t know what all the charges were because she didn’t have time to look at it all before he found her and started to shout at her.
The applicant states in her post hearing submission that she is young, naïve and inexperienced mother in a new country who could not understand the implications of her actions. She was in love and did not suspect her partner could harem her child. This was a big mistake but young people make such mistakes.
The Tribunal is not satisfied that that the nature of the parties’ household supports a finding that they are in a genuine, ongoing and exclusive spousal relationship envisaged by the Migration Act.
The Tribunal has considered the social aspects of the relationship – including whether parties represent themselves to other people as being in a de facto relationship with each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.
There is little evidence to support a claim that the parties present themselves to others as a couple. The Tribunal acknowledges statements from friends stating that the parties were a couple and there are photos of themselves together and with others, but these are few and in any case do not, in themselves indicate that they present themselves as a married couple or provide relevant details of the parties lives together. Given the brevity of their relationship the Tribunal accepts that it may be difficult to support this aspect of their relationship and therefore gives the statements of friends and family some positive weight.
The Tribunal has considered the nature of persons’ commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.
The Tribunal notes that the parties met and married within two months from January 2017 to March 2017 and were separated in August 2017. Noting that the applicant claims that the marriage ended as a result of family violence the Tribunal nevertheless is concerned about the rapid development of their relationship and subsequent marriage, particularly as the applicant had a young son whom she was taking to live with who can only be described as a relative stranger.
In her written response post-hearing the applicant states that she wanted the marriage to last for ever but it was not entirely dependent on her. She states that it was obvious the sponsor had issues which prematurely terminated their relationship.
The applicant further states that she married quickly because the sponsor was lovely and gave her a lot of attention which she hadn’t had in Australia. She states that he was not working so he had time to spend with her. She states that the sponsor compelled her to marry him because he wanted her to quit studying so she could concentrate on work and family. In this context the Tribunal notes that despite this alleged compulsion to marry so that she could spend more time with the sponsor, she nevertheless told the Tribunal that she worked two jobs in order to make ends meet as the sponsor was on Centrelink payments.
The Tribunal notes with concern the use of the word “compelled” in the circumstances of a marriage. It denotes a degree of reluctance on the part of the applicant to enter into the marriage, and given the brevity of the entire relationship does not lend weight to her claims that she wanted it to last forever.
The Tribunal is not satisfied that the parties had a mutual commitment to a shared life together to the exclusion of all others. The Tribunal is not satisfied that they ever saw their relationship as a spousal relationship or as long term.
On the basis of the above the Tribunal is not satisfied that the requirements of s.5CB(2) are met at the time the visa application was made or at the time of this decision.
Therefore the applicant does not meet cl.820.211(2)(a) or cl.820.221.
FAMILY VIOLENCE CLAIMS
On the basis of the evidence, the Tribunal is not satisfied the applicant and the sponsor were in a genuine, continuing and exclusive spousal relationship at the time of the alleged violence. Nevertheless, for abundant precaution the Tribunal has assessed the documentation provided by the applicant.
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).
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).
On 17 April 2020 the Tribunal wrote to the applicant inviting her to comment upon information that her relationship with the sponsor had ceased and to provide information to support her claim of family violence. The Tribunal provided the applicant with a copy of the Schedule 1 requirements to assist her in the collection of the relevant evidence.
The applicant provided the Tribunal with the following documents prior to the scheduled hearing:
a.A submission from her agent dated 30 April 2020 which was superseded at the agents request by another submission dated 15 June 2020.
b.Some bank statements of the applicant’s joint bank account with the sponsor covering the period February 2017 to August 2017 – these statements show zero transactions.
c.Some bank statements of the applicant’s own account from June 2017 to December 2017
d.A copy of her son’s passport, birth certificate and citizenship certificate.
e.Some screenshots of communications with family members
f.A statutory declaration from Dr Indira Pattiri who is a competent person to assess family violence. This statement is dated 11 June 2020 and was produced after one consultation with the applicant. Dr Pattiri names the applicant and the perpetrator of the alleged violence and states it is her opinion that the applicant has been subject to family violence.
g.A statutory declaration from a friend of the applicant, Ms Faith Mosbel who states her occupation as a “carer”, stating that she witnessed some domestic violence incidents between the applicant and the sponsor
The applicant has also provided the Department with a number of documents prior to the delegate’s decision being made, including the following:
a.A police order dated 9 April 2017 made by the applicant against the sponsor. The sponsor was prevented by this order to enter or remain upon a property whether the applicant lived or works; approach with 100 metres of the person or cause or allow any other person to engage in conduct of the type referred to above.
The Tribunal has considered whether the police order dated 9 April 2017 meets the evidentiary requirements and finds that it does not for the following reasons. Regulation 1.23 (4) states:
4) The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
i.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
ii.The order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make sumbissions 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.
The police order is not a court order. The evidence was never put before a court and the perpetrator was not given an opportunity to make submissions to a court.

During the hearing the Tribunal put to the applicant that the documentation she had provided did not meet the evidentiary requirements. The tribunal put to the applicant that she was required to provide a statutory declaration from herself setting out the details of her alleged abuse, naming the perpetrator, along with two other kinds of evidence specified in the Regulations. The Tribunal put to the applicant the kinds of documents required and the types of competent persons who would need to provide the evidence (set out in schedule 1 below). The Tribunal put to the applicant that both the department and the Tribunal had asked her for this evidence and that she had not, to date, provided the necessary documentation.
The Tribunal reminded the applicant that the Tribunal had provided her with a copy of the Schedule 1 requirements and asked if she had received this. She said she had.
Schedule 1

Type of Evidence

includes the following detail

Medical report, hospital report, discharge summary or statutory declaration that is made by either a person who is:

· registered as a medical practitioner and is performing the duties of a medical practitioner, or

· registered as a nurse within the meaning of section 3 of the Health Insurance Act 1973 and is performing the duties of a registered nurse.

· Identifies the alleged victim, and

· Details the physical injuries or treatment for mental health that is consistent with the claimed family violence.

Either a report, record of assault, witness statement or statutory declaration that is made by:

· a police officer of a State or Territory

· a police officer of the Australian Federal Police

OR
A witness statement that is made by someone other than the alleged victim to a police officer during the course of a police investigation.

· Identifies the alleged victim, and

· Identifies the alleged perpetrator, and

· Details an incident/s of family violence.

Report or statutory declaration made by an officer of:

· a child welfare authority, or

· a child protection authority of a State or Territory.

· Details fears for the dependent childs’ safety due to family violence within the household, and

· Identifies the alleged perpetrator.

Letter or assessment report made by:

· a women’s refuge, or

· family/domestic violence crisis centre

on the organisation’s letterhead.

· States that the alleged victim has made a claim of family violence, and

· States whether the alleged victim was subject to family violence, and

· Identifies the alleged perpetrator, and details any evidence used to form the opinion.

Statutory declaration made by:

· a member of the Australian Association of Social Workers, or

· a person who is eligible to be a member of that Association

who has provided counselling or assistance to the alleged victim while performing the duties of a social worker.

· States in their opinion the alleged victim was subject to family violence, and

· Details the reasons for the opinion, and

· Identifies the alleged perpetrator.

Statutory declaration made by a registered psychologist in a State or Territory who has treated the alleged victim while performing the duties of a psychologist.

· States in their opinion the alleged victim was subject to family violence, and

· Details the reasons for the opinion, and

· Identifies the alleged perpetrator.

Statutory declaration made by a family consultant appointed under the Family Law Act 1975 or a family relationship counsellor who works at a Family Relationship Centre listed on the Australian Government Family Relationships website.

· States that the alleged victim has been treated or counselled, by the family consultant or family relationship counsellor, and

· States that in their opinion the alleged victim was subject to family violence, and

· Details the reasons for the opinion, and

· Identifies the alleged perpetrator.

Statutory declaration or a letter on the school’s letterhead made by a school counsellor or school principal in their professional capacity.

· States that they have made, or been made aware of, observations that are consistent with the alleged victim’s claims that they were subject to family violence, and

· Identifies the alleged perpetrator, and

· Provides details of those observations.

After the tribunal hearing the applicant provided the following documents:
a.Copy of an appointments list from King Edward Memorial Hospital indicating that the applicant had 6 appointments with a psychiatrist and a psychologist between 4 February 2016 and 5 May 2016 – this is a year prior to her meeting the sponsor and does not indicate the reasons why the applicant was treated. In any case, it clearly did not relate to her relationship with the sponsor or the alleged family violence. This document does not meet the evidentiary requirements.
b.A statutory declaration from Pastor James Magut in Kenya stating that he was the applicant’s pastor and advised her to seek professional support with her husband. This document does not meet the evidentiary requirements and is, in any case, not made by a prescribed person.
Therefore, the evidence presented does not meet the requirements of r.1.24. As such, a non-judicially determined claim of family violence has not been made under r.1.23.
CONCLUSION
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) or cl.820.211(2) 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
Ann Duffield
Senior 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 6158

20 July 2020

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

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