KIM (Migration)

This matter concerned an appeal by an applicant, a national of the USA, against the decision to affirm the refusal of a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant and the sponsor, who was an Australian citizen, had married but the sponsor later withdrew her sponsorship. The applicant then alleged family violence, specifically economic abuse, by the sponsor. The delegate of the Minister had not considered the family violence claims, finding insufficient evidence that the relationship was genuine and committed prior to its cessation. The case was heard by Russell Matheson, a Member of the Tribunal.

The primary legal issues before the Tribunal were whether the applicant had suffered family violence committed by the sponsor, within the meaning of the Migration Regulations 1994, and whether the applicant had satisfied the criteria for the Partner visa in circumstances where the relationship had ceased due to alleged family violence. Specifically, the Tribunal had to determine if the applicant's claim of economic abuse constituted "relevant family violence" as defined by the Regulations and if the evidence provided met the requirements for a "non-judicially determined claim of family violence."

The Tribunal's reasoning centred on the interpretation of Regulation 1.23 of the Migration Regulations 1994, which outlines the circumstances under which a person is taken to have suffered or committed family violence. The Tribunal noted that for a non-judicially determined claim of family violence to be considered, evidence must be presented in accordance with Regulation 1.24, demonstrating that the alleged victim has suffered relevant family violence and that the alleged perpetrator committed it. In this case, the applicant had provided a statutory declaration alleging economic abuse but had not presented specified supporting evidence as required by Regulation 1.24. The Tribunal found that the applicant had not satisfied the evidentiary requirements for a non-judicially determined claim of family violence, and therefore, the delegate's decision not to consider the claims of family violence was affirmed.

Consequently, the Tribunal affirmed the decision under review, meaning the Partner (Temporary) (Class UK) visa was not granted to the applicant.