Kapoor (Migration)

[2018] AATA 5088

Kapoor (Migration) [2018] AATA 5088 (3 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Chinky Kapoor

CASE NUMBER:  1701554

DIBP REFERENCE(S):  BCC2014/3552969

MEMBER:P. Maishman

DATE:3 December 2018

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa

Statement made on 03 December 2018 at 2:47pm

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 – spouse or de facto partner of sponsor – alleged victim of family violence – genuine spousal relationship prior to separation – service providers’ statutory declaration does not meet the statutory requirements – claim of family violence not established – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5F, 65
Migration Regulations 1994, Schedule 2, cl 100.221, rr 1.15A(3), 1.21, 1.23(3), (5), (7), (12), (14), 1.24, 1.25(2)

CASES
He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 January 2017 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, Ms Chinky Kapoor, applied for the visa on 24 December 2014 on the basis of her relationship with her sponsor, Nishant Kapoor. At that time, Class BC contained Subclass 100. The criteria for the grant of this visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The primary criteria must be satisfied by at least one applicant. Relevantly to this matter the primary criteria include cl.100.221 which requires 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.100.221(4)(b) and cl.100.221(4)(c)(i). The applicant claims this occurred in this case.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl.100.221 because the delegate was not satisfied that the applicant was the spouse or de facto partner of the sponsor, as defined under section 5F or 5CB of the Act, prior to the relationship ceasing.

5. The applicant appeared before the Tribunal on 30 October 2018 to give evidence and present arguments.

6. The applicant was represented in relation to the review by her registered migration agent.  

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal had a copy of the Department’s file containing the visa application form, the sponsors form, and the evidence and correspondence relevant to the Department’s decision.

9. The applicant gave the Tribunal a copy of the delegate’s decision with her application for review. The applicant provided additional evidence to the Tribunal including:

   a.photographs and social media screen shots;

   b.an information invoice for a stay in a hotel room in June 2015;

   c.transaction statement for ANZ bank joint account number *6698 from 4 December 2015 to 30 June 2016;

   d.residential tenancy agreement for the period 8 February 2016 to 8 February 2017;

   e.letter from TigerAir confirming flight cancellation for medical reason on 11 April 2016;

   f.Dr Tuncer Cimenbicer confirmation of applicant attendance at Macquarie Street Clinic on 12 April 2016, dated 23 February 2017;

   g.letter from Legal Aid New South Wales Domestic Violence Unit confirming applicant contact on 29 April 2016;

   h.referral from Dr Chandra Panicker dated 20 February 2017;

   i.psychological assessment and treatment plan from Mr CJ Singh dated 7 March 2017;

   j.affidavit/declaration/undertaking from Satish Kumar Wadhwa dated 11 October 2017;

   k.statutory declaration form 888 from Sushant Wadhwa dated 20 May 2018;

   l.statutory declaration form 888 from Guarav Sharma dated 13 June 2018;

   m.statutory declaration form 888 from Amit Narang dated 25 May 2017 and 19 July 2018;

   n.statutory declaration from Sandeep Chawla dated 24 July 2018;

   o.form 888/statutory declaration from Kashish Ghandi dated 11 April 2017 and 27 July 2018;

   p.statutory declaration form 888 from Gurjinder Singh dated 9 April 2017 and a supplementary statement dated 27 July 2018;

   q.statutory declaration (unsworn) from Karan Attri dated 30 July 2018;

   r.applicant’s statutory declaration dated 22 July 2018;

   s.representative’s submissions dated 25 July 2018; and

   t.statutory declaration from Charan Jit Singh dated 31 October 2018.

10. Following the hearing, the Tribunal wrote to the applicant inviting her to address adverse information that, without explanation, would be the reason or part of the reason for affirming the decision.  The applicant provided a sworn statement from Taranjit Singh dated 26 November 2018, a statutory declaration dated 27 November 2018, a copy of a certificate of sickness dated 11 April 2016 and a number of emails from Tigerair.      

11. The Tribunal found the applicant to be a candid and credible witness and accepts her evidence on the basis. The Tribunal has considered the oral evidence, statements of supporting witnesses and the additional documentary evidence submitted at the review stage in reaching its findings.

12. In the present case, the applicant claims she was the spouse of the sponsor, the relationship with the sponsor has ceased, and she has been the victim of family violence.

    Whether the parties are in a spousal relationship

13. ‘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 a married couple 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), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

14. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Department’s file contains a certified copy of a Marriage Registration Certificate signed by the Registrar of Marriages, Municipal Corporation, Panchkula, Haryana (India). The certificate certifies that the sponsor and the applicant were married and the marriage was registered on 20 October 2014. There is no evidence before the tribunal that the marriage is not valid. 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).

    Are the other requirements for a spouse relationship met?

15. The applicant provided evidence about her financial arrangements. There is no evidence that the applicant and sponsor jointly own any real estate or other major assets or have any joint liabilities. There is no evidence that either the applicant or the sponsor over any legal obligation in respect of the other person. The applicant says that she was totally dependent on the sponsor for her finances. The applicant and the sponsor open a joint bank account which the applicant could access via her own plastic card. The sponsor retained his own bank accounts into which his wages would be paid. The applicant did not work and the sponsor would put small amounts of money for groceries and day-to-day expenses. The applicant rarely went out of the house without the sponsor and so had no need for her own money. When they were out together the sponsor paid for things and large bills and rent were all paid from his personal account.

16. The applicant had only limited access to documentary evidence about the couple’s financial circumstances. The Tribunal accepts the applicant’s evidence as to the nature of the financial arrangements. The Tribunal finds the applicant and sponsor’s financial arrangements were consistent with a spousal relationship prior to the relationship ceasing.

17. Tribunal considered the evidence about the nature of the applicant and sponsor’s household. The applicant and sponsor did not have responsibility for the care and support of any children. The applicant’s wedding ceremony was 29 September 2014 and from that day she lived with the sponsor as his wife at the sponsor’s parent’s house. The sponsor returned to Australia in October 2014, a month after their marriage, and the applicant remained living with his parents until she was granted a visitor visa and came to Australia in February 2015. She lived with the sponsor and shared a bedroom with him. She did most of the housework and cooking as the sponsor was working most days. In August 2015 she left Australia, because of her Visa conditions, and return to live with her husband’s parents. She was granted a partner visa and came to Australia in November 2015 with her husband. They lived together as a couple sharing a room until April 2016 when their relationship broke down. Mr Gaurav Sharma has provided a statutory declaration confirming that he shared accommodation with them and that he had one room and that the applicant and sponsor stayed in the other bedroom. He confirmed friends used to visit them and they went together to visit their friends.

18. The Tribunal finds that the applicant and sponsors household arrangements were consistent with a spousal relationship prior to their relationship ceasing.

19. The Tribunal considered the evidence about the social aspects of the applicant and sponsors relationship. Kashish Ghandi provided a statement confirming that she knew the applicant from childhood. She has a very close relationship with the applicant often speaking daily on the telephone. Her family went to the applicant and sponsor’s wedding in India. The applicant and sponsor were together and visited her and her partner in Melbourne. Amit Narang provided a statement saying he was the second cousin of the applicant. He confirms that the applicant and sponsor were married and arranged wedding and always presented themselves as a married couple. He observed that the applicant wore “Chuda” - bangles worn by newly wedded women. He said he discussed with the sponsor plans about moving to Melbourne and buying a business because Sydney was too expensive. Gaurav Sharma also provided a statement that he shared accommodation with the couple and that they mixed with others who recognise them as a couple. The applicant’s father, Satish Wadhwa, provided a statement confirming the applicant and sponsor were married to each other in a ceremony attended by about 270 guests. That Tribunal further gives weight to the statements of Karan Attri, Sandeep Chawla and Sushant Wadhwa.      

20. The Tribunal finds that the social aspects of the applicant and sponsors relationship were consistent with a spousal relationship prior to their relationship ceasing.

21. The applicant gave evidence that she first met the sponsor through a matrimonial website in April 2014. They met in person in June 2014 and were engaged on 27 June 2014. The applicants and sponsors families met each other and were happy for them to get engaged and set their wedding date to be 29 September 2014. The applicant and sponsor had a pre-wedding function attended by 100 guests. They had another pre-wedding function on 28 September 2014 at which 200 guests attended. Their main wedding function was hosted by the applicant’s parents and celebrated on 29 September 2014. That function was attended by 250 guests from both sides of the family. The applicant gave oral evidence that relationship difficulties arose during February 2015 and August 2015. She said the attitude of her parents-in-law towards her changed when she returned to live with them in August 2015 pending the approval of her partner visa. She hoped the difficulties could be sorted out when she returned to Australia to be with her husband.

22. The Tribunal was concerned with the commitment of the parties given the rapid deterioration of the relationship. The Tribunal was also concerned the applicant was not aware the sponsor had a previous relationship. The applicant said it was her belief that the sponsor was genuinely committed to the relationship when they first got married. She does not know why he did not tell her about the previous relationship. Culturally there is a level of shame attached to divorce. She had hoped that her relationship with the sponsor would improve on her return to Australia. They were not separated while she was back in India. She says they had a committed relationship, she supported him by looking after the house while he worked, and he brought income into the house to support both of them. She believes they both married for the long-term.

23. The Tribunal finds that the nature of the applicant and sponsors commitment to each other was consistent with a spousal relationship prior to their relationship ceasing.

24. Having regard to the totality of the evidence and the findings above, the Tribunal is satisfied that prior to their relationship ceasing the applicant and sponsor had a mutual commitment to a shared life as a married couple to the exclusion of all others. It is satisfied the relationship between them was genuine and continuing and that they lived together.

25. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) were met prior to their relationship ceasing.

26. On 26 April 2016 the sponsor emailed the department to advise that he had withdrawn his sponsorship as the spouse of the applicant because his relationship with the applicant had broken down and he had separated from her. He alleged that she entered into the relationship only for the sake of attaining permanent residency in Australia. He alleges he found a Facebook message from the applicant’s ex-boyfriend stating she abandoned him for the sake of getting her dream to settle down in Australia. He claims the applicant refused to leave Australia at all to go to India. He alleges that she threatened him with making false allegations against him if he failed to get her permanent residency. He said he had filed a police complaint against her regarding her continuous threats and tortures and he could forward evidence such as the letter from the ex-boyfriend and a copy of the police report if the department required. On 4 May 2016 the department emailed the sponsor providing an email address to which he could provide further evidence referred to in his withdrawal email. The department received no further evidence from the sponsor.

27. At hearing the applicant agreed that she and the sponsor separated in late April 2016. The applicant refuted the sponsor’s allegation that she had entered into the relationship only for the sake of attaining permanent residency in Australia. The applicant agreed that an ex-boyfriend did comment on Facebook about her breakup with him, but denied that any comment was made that the breakup was for the sake of her getting her dream to settle down in Australia. She said she has spoken to that ex-boyfriend since the posting of those comments and he apologised that he was drunk when he made those comments. The applicant said that she had refused to go to India without her husband. She said she was happy to go back to India if her husband went with her but he refused but would follow her later. She did not think he would follow her. The applicant says she did speak to the police at the end of April 2016 because the police rang her to check that she was okay.

28. Following the hearing the Tribunal wrote to the applicant giving particulars of the email received by the Department on 26 April 2016. The Tribunal’s letter explained why the information contained in that email was relevant to the review and the consequence of the Tribunal relying on the information is that it would be the reason, or part of the reason, for the Tribunal to affirm the decision under review. The applicant was invited to respond to the information in writing.

29. The applicant’s written response was consistent with her evidence at hearing. Her evidence was supported by the sworn statement of Mr Taranjit Singh.

30. The Tribunal notes the sponsor was given the opportunity to provide to the Department the evidence to which he referred in his email but did not do so.

31. The Tribunal accepts the applicant’s oral evidence given under oath and her statutory declaration dated 27 November 2018 in relation to the allegations made by the sponsor.

32. The Tribunal finds the relationship between the applicant and the sponsor ceased on 26 April 2016 and the sponsor withdrew his sponsorship on that day.

33. 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.

34. 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).

35. 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?

36. 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 the alleged perpetrator or evidence in accordance with r.1.24 is provided.

37. The applicant’s representative’s written submissions stated the applicant is willing to provide 2 different types of evidence specified in IMMI 12/116. The submission identifies the medical report of CJ Singh and the medical report and letter from Dr Cimenbicer.

38. The Tribunal explained to the applicant that the evidence required to establish a claim for family violence was contained in a list which her representative had and was aware of.

39. 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 (see IMMI 12/116).

    Statutory Declaration under r.1.25

40. 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).

1. The Tribunal considered the applicant’s statutory declaration sworn before Vickram Raja, a pharmacist, on 22 July 2018. The applicant alleges that on 3 February 2016 the sponsor physically assaulted her. The sponsor threatened that she would see a worse side of him if she took any action such as going to the police. He apologised the next morning but she now felt powerless and scared about what else he could do to her. She alleges a month later in April 2016 he again physically assaulted her and she felt afraid.

2. The Tribunal is satisfied that the applicant has made a statutory declaration that meets the requirements of r.1.25(2).

   Report from CJ Singh

3. The applicant gave oral evidence that she received counselling from CJ Singh, a registered psychologist, over the telephone 2 to 3 times per fortnight between April 2016 and February 2017. She first saw CJ Singh in person 21 February 2017 after being referred by her GP Dr Panicker on 20 February 2017. She said her telephone attendances with CJ Singh were not booked but she could ring him whenever she felt stressed. Each telephone attendance took about 20 to 25 minutes and CJ Singh did not charge a fee.

4. The Tribunal considered the report dated 7 March 2017 from CJ Singh, a registered psychologist. The report details the history as reported by the applicant, a diagnosis/assessment, presenting issues and problems, efficacy of medications, client goals, treatment plan and recommendation.

5. The Tribunal acknowledges the attempts of the representative to obtain evidence from CJ Singh that complies with the evidence requirements in IMMI 12/116. Email correspondence between CJ Singh and the applicant’s representative indicates that he would not give any report in the form of a statutory declaration but would consider doing so at the Tribunal’s request if approval was obtained from his supervisor, the Australian Psychological Society Advisory Service, and his public liability insurance.

6. The Tribunal is under no duty to obtain information on behalf of the applicant. It is for the applicant to put her evidence before the Tribunal and for the Tribunal to decide whether her claim has been made out. The Tribunal has considered the response from CJ Singh and does not consider that there is a statutory declaration prepared by CJ Singh that is readily available.  The evidentiary requirements are described by statute and readily available for the applicant’s psychologist and his approvers to review.

7. The Tribunal finds that CJ Singh’s report this does not meet the statutory requirements because it is a report and not a statutory declaration and does not include the detail required by IMMI 12/116.  

   Statutory Declaration from CJ Singh

8. After the hearing the Tribunal received a copy of a statutory declaration signed by Charan Jit Singh on 31 October 2018. Mr Singh declares the applicant was referred by her GP Dr Panicker. Mr Singh treated her in his professional capacity as a registered psychologist on 21 February 2017. The applicant looked on the internet before coming to Perth to find a psychologist who can speak her language and she consulted ‘us’ over the phone a few times in 2016.

9. The Tribunal finds that CJ Singh’s statutory declaration does not meet the statutory requirements because it does not state an opinion the applicant was the subject of family violence; it does not provide reasons for the opinion; and it does not identify the perpetrator as required by IMMI 12/116.

   Medical report and letter from Dr Tuncer Cimenbicer

10. The applicant provided the Tribunal a generic medical report from Dr Cimenbicer addressed to Dear Doctor confirming a termination of pregnancy was performed on 12 April 2016 for socio economic/medical/mental health reasons. A later letter dated 23 February 2017 confirms the attendance on 12 April 2016 and that the applicant was accompanied by her husband for her visit on that day.

11. The applicant submits that she was forced by her husband to have the termination and those documents demonstrate treatment that is consistent with her claimed family violence. In oral evidence the applicant agreed she received individual counselling prior to the procedure. The counselling was very rushed and she told the counsellor that her husband did not want the baby. The counsellor then bought her husband into the room. The applicant said she agreed that if her husband was not feeling stable in the relationship then the termination should proceed and they could plan their family later.

12. The Tribunal finds that the report and letter of Dr Cimenbicer do not meet the statutory requirements because they do not detail physical injuries or treatment for mental health consistent with the family violence claimed by the applicant.

    Report from Dr Chandra Panicker

13. The Tribunal considered if the referral letter dated 20 February 2017 from Dr Panicker to C Singh met the evidentiary requirements of IMMI 12/116. In the letter Dr Panicker says the applicant attended his surgery feeling very distressed because of a breakdown in her relationship with her husband. The letter does not refer to family violence or detail the physical injuries of treatment for mental health that is consistent with the applicant’s claimed family violence. The Tribunal finds that the referral letter from Dr Panicker is not of a type of evidence required by IMMI 12/116 and therefore does not meet the statutory requirements.

    Letter from NSW Legal Aid

14. The Tribunal considered if the letter from NSW Legal Aid dated 12 April 2017. The letter confirms the applicant received services from its Domestic Violence Unit on 29 April 2016 and disclosed that she was a victim of domestic violence. The letter provides no further detail. The Tribunal finds that the letter from NSW Legal Aid is not of a type of evidence required by IMMI 12/116 and therefore does not meet the statutory requirements.

15. 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.

16. Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements of cl.100.221(4)(b) and (c) 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

17. The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa

    P. Maishman
    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.