KHAZEN (Migration)

[2023] AATA 3331

KHAZEN (Migration) [2023] AATA 3331 (23 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Christelle KHAZEN

CASE NUMBER:  1817097

HOME AFFAIRS REFERENCE(S):          OSF2016/014972, BCC2017/124324

MEMBER:Deputy President Justin Owen

DATE:23 August 2023

PLACE OF DECISION:  Sydney

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

Statement made on 23 August 2023 at 4:52pm

CATCHWORDS
MIGRATION –Partner (Migrant) (Class BC) visa – Subclass 100 – applicant and the sponsor were in a partner relationship – relationship ceased – family violence claims – information is not a type of evidence that meets the requirements of LIN23/026 for the making of a non-judicial claim of family violence – claim of family violence has not been established – decision under review affirmed   

LEGISLATION
Migration Act 1958, ss 5, 65, 359, 375
Migration Regulations 1994, rr 1.21, 1.23, 1.24, 1.25, Schedule 2, cl 100.221

CASES
MIAC v Pham [2008] FCA 320
Doan v MICMSMA [2022] FedCFamC2G 405

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 Home Affairs on 23 May 2018 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 15 September 2016 on the basis of her relationship with her sponsor. 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 (Cth) (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.

3. The applicant was granted her Partner (Provisional) (Class UF) (Subclass 309) visa on 5 January 2017 on the basis of being in a genuine and continuing relationship with her Australian citizen former sponsor. 

4. On 8 March 2017, the Department received information that the relationship between the applicant and the sponsor had broken down. On 27 March 2017, the applicant was contacted by the Department inviting her to comment on the information it had received that her relationship with her sponsor had broken down. The applicant responded on 18 April 2017. On 2 June 2017, the Department wrote to the applicant seeking evidence of her relationship with the sponsor prior to the relationship break down. The applicant responded on 27 June 2017. On 30 October 2017, the Department invited the applicant to comment on unfavourable information concerning the claimed relationship. This was returned to sender.  On 28 February 2018, the Department again invited the applicant to comment on unfavourable information concerning the claimed relationship. The applicant responded on 22 March 2018. 

5. The delegate was not satisfied that a genuine spouse relationship existed between the applicant and her former sponsor prior to the relationship ceasing. The delegate was not satisfied a genuine spouse or de facto relationship ever existed between the applicant and her former sponsor and refused the application. As the delegate was not satisfied a spouse or de facto relationship ever existed between the applicant and her former sponsor, the delegate was not required to consider the applicant’s family violence claims. The delegate subsequently refused the applicant’s visa application on 23 May 2018 as she did not meet cl 100.221(4)(b). On 12 June 2018, the applicant applied to the Tribunal for review.

6. The applicant appeared before the Tribunal on 2 August 2023 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. The applicant discussed her previous relationship with her former sponsor. She discussed a relationship that commenced online in June 2016. The applicant at the time was a successful medical laboratory scientist, having graduated from Haigazian University in 2015 and at the time working at the American University Medical Centre in Beirut. When the applicant met the sponsor, she was applying for a Fulbright scholarship in the United States and was distracted between doing her master’s degree or starting a new life with the sponsor in Sydney. The applicant explained at the hearing that she and the family of the sponsor were from the same district in northern Lebanon. The applicant met the sponsor in late June 2016 where she introduced him to her parents. The applicant and sponsor decided to become engaged in July 2016. A wedding was held at the Al Tajali Church several weeks later on 30 July 2016. The sponsor’s father, mother and sibling all travelled to Lebanon for the wedding. The Tribunal asked the applicant why she agreed to marry the sponsor so quickly. The applicant explained that the sponsor was her first boyfriend, she developed feelings for him, and the relationship was supported by their families. 

10. The sponsor returned to Australia whilst the applicant’s 309 Partner visa was processed. She states that she and the sponsor talked each day through WhatsApp and she was very happy. The 309 Partner visa was granted in early 2017 and the applicant arrived in Australia in February 2017. The applicant stated that the relationship changed immediately after her arrival, with the sponsor stating they would live with his parents in Quakers Hill rather than at their own property which was her expectation and what she states they had agreed on. 

11. The applicant stated that a poor relationship between herself and her mother-in-law quickly developed at their home. The applicant stated that her sponsor was also experiencing sexual dysfunction, diagnosed as due to low testosterone when they visited a medical professional, which he essentially blamed on the applicant. The applicant estimated just 14 or 15 days (the number in fact was 20) after her arrival in Australia, she was sent home by the applicant to Lebanon.  She stated the sponsor bought her a ticket. The applicant stated that she was young, confused, scared and hurt by what was occurring, and she had wanted the relationship to work.

12. The applicant stated that she arrived back in Lebanon but could not stay. She stated that she was from a conservative community and was rejected by many people as a ‘divorcee’.  The applicant, who holds university qualifications, said that she could not get a job and her family was suffering due to her presence in Lebanon given the circumstances. With the support of her father, the applicant states she returned to Australia on 31 March 2017.  Through a family friend she was able to find accommodation in Toongabbie and found a job in a small pharmacy. The applicant stated she has never seen or heard from the sponsor again since a phone call she received from him whist she was on the plane awaiting to depart to Lebanon in March 2017.

13. The applicant stated that there were essentially no financial aspects of the relationship beyond the sponsor sending her monies via Western Union whilst they were waiting for the 309 Partner visa to be processed. There was no joint ownership of real estate or other major assets; no joint liabilities; no pooling of financial resources (beyond the Western Union payments); no sharing of day-to-day household expenses and neither party owed any legal obligation to the other. The Tribunal accepts the explanation that this was because the actual period of cohabitation was so brief, a matter of weeks, and the applicant was living with the sponsor and his family who provided all of what was needed. 

14. In relation to the nature of their household, the applicant stated she lived with the sponsor and his family for around three weeks. All living costs were looked after by the sponsor’s family, whilst the applicant stated she helped out with some housework.   She explained that she had previously stated she was shocked that she was going to live with her parents in law when she had expected she would be living solely with the sponsor.  This was because she thought it was only going to be for an initial week or so, however when she arrived she discovered it would be more long term as the sponsor had tenants in his investment properties.     

15. In relation to social aspects of the relationship, the applicant stated that she and the sponsor did present themselves as being in a spousal relationship, which included her changing her surname to that of the sponsor’s on social media. She stated that 100 to 120 people, family and friends, attended the wedding so their spousal relationship was well known in their circles. The applicant stated that in Australia however the sponsor quickly distanced himself from her, stating he would go to parties with his friends and leave her at home. She stated that she didn’t really know anyone in Australia, and the sponsor did not get to know her own friends. 

16. In relation to the parties’ commitment to each other, the applicant noted the relationship occurred over a relatively short time, from June 2016 until February/March 2017, and they lived together for just three weeks. 

17. The Tribunal put to the applicant information under s 359AA concerning the allegations in the Departmental file, from the applicant’s sponsor, that the applicant had been cheating on him, and she had remained in contact with a male friend in Lebanon after entering a relationship with the sponsor. The applicant determined to respond to the s 359AA invitation at the Tribunal’s hearing and denied the allegation. She stated the gentleman was a cousin she had grown up with in Lebanon and was a long-time friend. She stated that after the sponsor had found out they had exchanged messages and become furious, she had deleted her cousin’s contact details from her telephone. She stated that she had never had a boyfriend before the sponsor and had never cheated on him. The Tribunal accepts the applicant’s submissions and is satisfied the applicant was not being unfaithful to the sponsor, but rather she was in fact committed to the relationship. The Tribunal gives the allegations of the sponsor no weight.                

18. The Tribunal has considered the applicant’s oral testimony at the hearing. There is negligible corroborative evidence before the Tribunal as to the relationship for the reasons discussed earlier in this decision record. The parties had a brief courtship, married rapidly (with the support of their families), and after almost six months the applicant travelled to Australia to be with her husband.  After the applicant arrived in Australia, the parties were barely together for three weeks. This, combined with the fact they were living at the sponsor’s parents’ home, provides some realistic explanation for the lack of corroborative evidence. 

19. In this case the Tribunal ultimately has to assess the claims based upon the oral testimony of the applicant. Ultimately, based upon her testimony that the Tribunal considered was reliable, detailed, spontaneous and considered, the Tribunal accepts she and the sponsor were in a genuine spousal relationship despite the very brief period of claimed cohabitation and the lack of documentary evidence. The Tribunal notes the relationship was well-recognised by her own parents and those of the sponsor, who travelled to Lebanon for the marriage. The sponsor supported the applicant financially from Australia in the period whilst the 309 Partner visa was being assessed. This was to all intents and purposes a marriage arranged with limited due diligence, but the Tribunal accepts there was, for a limited period between the marriage and early days of the applicant’s time in Australia, a genuine spousal relationship between the parties.  The Tribunal acknowledges that this relationship has ceased, and it ceased only several weeks after the applicant arrived in Australia on the provisional visa. The Tribunal nevertheless is satisfied, on balance, that the parties were in a genuine spousal relationship as the applicant has claimed. The Tribunal considers the applicant to be a reliable, consistent and coherent witness of truth.  

20. 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.

21. At the Tribunal’s hearing, the applicant was asked to recall incidents of family violence. The applicant characterised the family violence as emotional or psychological violence. The applicant stated her sponsor immediately began body shaming her and demanding she dress a certain way and dye her hair. Her sister-in-law accompanied her whilst she shopped and attempted to meet the sponsor’s expectations. The applicant stated her self-esteem failed due to the sponsor’s behaviour. The applicant stated, as an example, that the applicant’s family were thinking of acquiring a new wedding dress for new photos in Sydney as they were critical of the photographs of her from the wedding. The applicant as evidence said her sponsor also attempted to control her access to her telephone so she could not contact her family in Lebanon which affected her as she was new in Australia and homesick. The applicant stated there was no physical violence.      

22. Under reg 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 reg 1.21. These regulations, as relevant to this decision, are extracted in the attachment to this decision. The Tribunal notes that the violence, or part of the violence must have occurred during the relationship: regs 1.23(3), (5), (7), (12), (14).

23. In the present case, the applicant is seeking to establish family violence on the basis of a non-judicially determined claim of family violence.

    Section 375A certificate

24. At the hearing, the Tribunal informed the applicant that a certificate had been issued by the delegate under s 375A of the Act in relation to certain folios on the Departmental file on the basis that disclosure of the material would be contrary to the public interest because it shows internal pages of departmental systems. The Tribunal provided a copy of the certificate to the applicant. The Tribunal informed the applicant that it considered the certificate to be invalid.  The Tribunal subsequently released the documentation purportedly covered by the certificate to the applicant, the information was a client search of the applicant and some information concerning the applicant’s passport, date of birth and biometrics that was purely the applicant’s personal information and not a subject of any contention.   

    Exceptions

25. Clause 100.221(1) of the Regulations requires that the applicant must, at the time of decision, satisfy subcls (2), (2A), (3), (4), (4A) (4B) or (4C) of cl 100.221. Relevantly in this case, cl 100.221(2) requires that the applicant remains the spouse (as defined under s 5F of the Act), or de facto partner (as defined by s 5CB of the Act) of their sponsoring partner at that time. 

26. As the applicant’s relationship with her former sponsor has ended, as evidenced by the applicant’s own evidence to the Tribunal, the applicant in this case no longer continues to be sponsored for the grant of the visa by her former sponsoring partner, who in this case is an Australian citizen. Accordingly, the applicant does not continue to satisfy the criteria in cl 100.221(2).

27. The applicant may satisfy cl 100.221 by meeting the requirements of at least one of subcls (3), (4) (4A) (4B) and (4C).  These prescribe certain circumstances in which an applicant may continue to be considered for the grant of permanent residence where the relationship with the sponsor has ceased.  These include: the death of the sponsoring partner; family violence; and certain court orders or responsibilities in relation to children. 

28. At the hearing, the Tribunal invited the applicant to make a claim and provide any information she believed may be relevant to these exceptions. There is no evidence or claim that her former sponsor is deceased. The Tribunal questioned the applicant if there were any children of the relationship. The applicant stated she and her former sponsor did not have any children together. There is no evidence or claim of any court orders or legal responsibilities in relation to children. The applicant does not meet the requirement for this exception.

29. In the present case, the applicant claims the relationship with her former sponsor has ceased and she is seeking to establish family violence on the basis of a non-judicially determined claim of family violence. On the basis of the evidence, the Tribunal is satisfied the applicant and her former 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 her former sponsor, within the meaning of the Regulations.

30. At the Tribunal’s hearing, the applicant stated that the first instance of non-judicial family violence occurred after her arrival in Australia where the sponsor body shamed her. She stated the sponsor made her hate her physical self and made her feel worthless. She states his criticisms of her clothing and hairstyle affected her self-esteem. 

31. Under reg 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 reg 1.21. The Tribunal notes that the violence, or part of the violence, must have occurred during the relationship: regs 1.23(3), (5), (7), (12), (14).

32. Division 1.5 of the Regulations contains the substantive provisions relating to family violence and sets out the evidentiary requirements for a claim of this nature. Under reg 1.22, a reference to a person having suffered or committed family violence is a reference to a person being taken under reg 1.23 to have suffered family violence. The applicant is required to provide the necessary evidence in order to establish a valid claim of family violence under reg 1.24(b). 

33. At the hearing, the Tribunal discussed the making of a formal claim of family violence. The Tribunal stated that for it to consider a formal claim of family violence, the claim must be presented and submitted in the required form. The Tribunal noted that a valid claim of non-judicially determined family violence would be made when the Tribunal was provided with a number of documents as set out in the Act and Regulations which contain specific information. 

34. To make a valid claim of non-judicially determined family violence, the applicant is required to provide to the Tribunal on review a statutory declaration under reg 1.25 and the type and number of items specified in the relevant instrument. At the time of the Tribunal’s decision, the relevant instrument is LIN 23/026.

1. The statutory declaration the applicant provides must be a statutory declaration under the Statutory Declarations Act 1959 (Cth). No statutory declaration signed by the applicant however has been provided to the Tribunal. The Tribunal is not satisfied on this basis the applicant meets the requirements for the making of a valid non-judicially determined claim of family violence.

2. The current specified legislative instrument, LIN 23/026, furthermore specifies that a minimum of two different types of the following evidence be given:

   1Table: Types of Evidence

   Type of evidence

   Items of evidence                Information that must be included

Medical	Any of the following made by a medical practitioner, registered nurse or midwife who is acting in their professional capacity: (a)    medical report; (b)    hospital report; (c)     discharge summary; (d)    letter; (e)    statutory declaration.	The item of evidence must: (a)    identify the alleged victim; and (b)    detail the injuries or treatment of the alleged victim that may be consistent with family violence.
Police	Any of the following made by a police officer who is acting in their professional capacity: (a)    report; (b)    record of assault or family violence; (c)     risk assessment; (d)    witness statement; (e)    statutory declaration.	The item of evidence must: (a)    identify the alleged victim; and (b)    identify the alleged perpetrator or provide information from which the identity of the alleged perpetrator can reasonably be inferred; and (c)     detail the incident(s) of family violence.
	A witness statement made by a person, other than the alleged victim, to a police officer during the course of a police investigation.
Child welfare officer	Any of the following made by a child welfare officer who is acting in their professional capacity: (a)    report; (b)    letter; (c)     statutory declaration.	The item of evidence must: (a)    detail fears for the dependent child’s safety due to family violence within the household; and (b)    identify the alleged perpetrator or provide information from which the identity of the alleged perpetrator can reasonably be inferred.
Family violence support service provider	Any of the following made by a family violence support service provider who is acting in their professional capacity:	The item of evidence must: (a)    state that the alleged victim has made a claim of family violence; and (b)    state in their professional opinion whether the claims of the alleged victim are consistent with them having been subject to family violence; and (c)     identify the alleged perpetrator or provide information from which the identity of the alleged perpetrator can reasonably be inferred.
(a)    report;
(b) letter;
(c) risk assessment;
(d) statutory declaration.
Social worker	Any of the following made by a social worker who is acting	The item of evidence must: (a) state that the alleged victim has made

in their professional capacity: (a)    report; (b)    letter; (c)     statutory declaration.	a claim of family violence; and (b)  state in their professional opinion whether the claims of the alleged victim are consistent with them having been subject to family violence; and (c)    identify the alleged perpetrator or provide information from which the identity of the alleged perpetrator can reasonably be inferred.
Psychologist	Any of the following made by a psychologist who is acting in their professional capacity: (a)    report; (b)    letter; (c)     statutory declaration.	The item of evidence must: (a)    state that the alleged victim has made a claim of family violence; and (b)    state in their professional opinion whether the claims of the alleged victim are consistent with them having been subject to family violence; and (c)     identify the alleged perpetrator or provide information from which the identity of the alleged perpetrator can reasonably be inferred.
Family consultant / family relationship counsellor	Any of the following made by a family consultant or a family relationship counsellor who is acting in their professional capacity: (a)    report; (b)    letter; (c)     statutory declaration.	The item of evidence must: (a)    state that the alleged victim has been treated or counselled by the family consultant or family relationship counsellor; and (b)    state in their professional opinion whether the claims of the alleged victim are consistent with them having been subject to family violence; and (c)     identify the alleged perpetrator or provide information from which the identity of the alleged perpetrator can reasonably be inferred.
Education professional	Any of the following made by an education professional who is acting in their professional capacity: (a)    report; (b)    letter; (c)     statutory declaration.	The item of evidence must: (a)    state that they have made, or been made aware of, observations that are consistent with the alleged victim’s claims of being subject to family violence; and (b)    provide details of those observations; and (c)     identify the alleged perpetrator or provide information from which the identity of the perpetrator can reasonably be inferred.

1. The applicant has only provided invoices from Open Sky Psychology dated 15 June 2022 and 27 July 2022 that confirm the applicant attended a clinical psychologist consultation on those days with Dr Ho Yin (Jacky) Wan. The applicant also wrote to the Tribunal on 22 August 2022 saying “I am currently seeing my psychologist, Dr Ho Yin (Jacky) Wan, who works at Open Sky Psychology at Ryde NSW 2112, to discuss this problem with him.” The email did not mention family violence specifically.  These documents are not, as required by the instrument LIN 23/026, either a report, a letter or a statutory declaration made by a psychologist who is acting in their professional capacity that states that the applicant (as the alleged victim) has made a claim of family violence; states in their professional opinion whether the claims of the alleged victim are consistent with them having been subject to family violence; and identifies the alleged perpetrator or provides information from which the identity of the alleged perpetrator can reasonably be inferred. Given this documentation from the psychologist is not in the correct form, the Tribunal is not satisfied that the correspondence meets the requirements of LIN 23/026.

2. The Tribunal is subsequently not satisfied that this information is a type of evidence that meets the requirements of LIN23/026 for the making of a non-judicial claim of family violence. 

3. The Tribunal has reviewed its own file as well as the Departmental files. The Tribunal has noted the applicant’s correspondence to the Department of 18 April 2017 and 22 March 2018, as well as her correspondence to the Tribunal of 22 August 2022 where she discussed her relationship and its breakdown.

4. The correspondence is more a summary of the relationship; a recitation of what she gave up in terms of her career to come to Australia to be with the sponsor, and the breakdown of the relationship, rather than a valid claim of non-judicial family violence, notwithstanding the applicant states the relationship “ended badly because of the mistreatment and abuse I received” from the sponsor and his parents. The Tribunal does not consider any of these particular pieces of correspondence constitutes a type of evidence relevant to a valid claim of non-judicially determined family violence. The correspondence furthermore is not in the form of a statutory declaration under reg 1.25

   Has a claim of family violence been made under the regulations?

5. Under reg 1.23, a visa application is taken to include a non-judicially determined claim of family violence where either a joint undertaking to a court has been made by the alleged victim and alleged perpetrator, or evidence in accordance with reg 1.24 is provided.

6. The applicant in this case is seeking to rely on evidence referred to in reg 1.24 – namely, a statutory declaration under reg 1.25 and evidence of a type and number specified by the Minister for these purposes (see LIN 23/026).

7. A statutory declaration under reg 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: reg 1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: reg 1.25(3).

8. The applicant has not provided evidence in the nature and form required to make a valid claim of non-judicially determined family violence.

9. The applicant has not provided a statutory declaration under reg 1.25. 

10. The applicant has not provided two pieces of the type of evidence specified by the Minister in Schedule 1 of LIN 23/026.   The applicant in fact has not provided a single satisfactory type of evidence as specified by the Minister by instrument in writing for the purposes of reg 1.24(b) of the Regulations, which requires a minimum of two items of evidence from the list in Schedule 1, and no more than one of each type of evidence listed.     

11. Therefore, the evidence presented does not meet the requirements of reg 1.24. As such, a non-judicially determined claim of family violence has not been made under reg 1.23. The applicant has not made a valid claim for family violence as per the Regulations.

12. Accordingly, the Tribunal finds that the applicant is not taken to have suffered family violence committed by the sponsor for the purposes of reg 1.22.

13. The Tribunal would note that it is not necessary for the Tribunal to point out the deficiencies in the evidence an applicant provides for the purposes of the relevant instrument: MIAC v Pham [2008] FCA 320; Doan v MICMSMA [2022] FedCFamC2G 405. In this case however, the Tribunal at the hearing explained to the applicant the process of making a valid claim of family violence and items that may be relevant in such a claim. The Tribunal noted the documents the applicant had provided and stated that if the applicant did not provide the documentation required to make a valid claim, then the Tribunal would have no alternative but to affirm the decision under review. The Tribunal stated at the hearing it had concerns that no valid claim had been made in relation to the documentation that was required to make a valid claim. The Tribunal considers the applicant was on notice of the evidence requirements in making a valid claim and has had adequate opportunity to provide documents, including post-hearing, that meet the requirements of LIN 23/026. No further documents have been received. It is now three weeks since the Tribunal’s hearing.

14. Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements of cls 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.

15. The Tribunal has sympathy for the applicant. The Tribunal accepts she was committed to the relationship and left a life of considerable academic achievement and potential to come to Australia to be with the sponsor. Since the end of her relationship, she has been a valued employee in the pharmacy sector, working today as a pharmacy retail manager for a major retail business. Her employer, Mr Azzam Elasmar wrote to the Tribunal to state that the applicant “is an honest, law abiding citizen that has made nothing but positive contributions to our beautiful country’s culture and society”.  The applicant now has a new partner and in a happy and  positive relationship.  The Tribunal accepts the applicant has made, and continues to make, a positive contribution to Australia. The fact however remains that this is a Partner visa application. The spousal relationship the applicant had with her sponsor ceased. She has not made a valid claim as to one of the exceptions that would allow her to still be granted the visa given the relationship with her sponsor has ceased. The Tribunal in such circumstances must affirm the decision under review.      

    DECISION

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

    Justin Owen
    Deputy President

    
    

    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.