Le (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, subclass 801, by the applicant, who claimed her relationship with the sponsor had ceased and that she had been a victim of family violence. The Tribunal was required to consider evidence previously presented to the Federal Circuit and Family Court of Australia on two prior remittals, as well as new supporting documents and declarations. The applicant had been granted a Partner (Temporary) (Class UK) (Subclass 820) visa in 2013 based on the relationship, which she stated had ceased in early 2019, with a divorce finalised in 2020.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the Partner (Residence) visa, specifically in relation to the cessation of her relationship and the claim of family violence. The Tribunal also considered the validity and impact of a certificate issued under s376 of the Act, which prevented the disclosure of certain information on public interest grounds, and whether the applicant had been adequately notified of this information and its relevance. The Tribunal noted that the applicant had not provided a specified statutory declaration in support of her family violence claim, despite being put on notice of this requirement.

The Tribunal found that while there was considerable evidence supporting the existence of a genuine spousal relationship at some point, and that this relationship had ceased, the applicant had not satisfied the requirements for substantiating a non-judicially determined claim of family violence. Specifically, the Tribunal noted the absence of a required statutory declaration and that supporting reports and statements did not alleviate this deficiency. The Tribunal also addressed the s376 certificate, stating it had provided the applicant with the "gist" of the protected information and placed no adverse weight on it, having been satisfied that the applicant had been aware of its existence and had no comment on its validity.

Ultimately, the Tribunal affirmed the decision not to grant the applicant the Partner (Residence) (Class BS) visa, concluding that the applicant did not meet the criteria under cl 801.221 of the Migration Regulations 1994.