Mahakumbura Herath Mudiy (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, subclass 801 (Spouse). The applicant had been granted a Partner (Temporary) subclass 820 visa based on his spousal relationship with his sponsor. However, the sponsor later withdrew her sponsorship, stating the relationship had broken down, a fact the applicant did not dispute. The applicant then claimed that the relationship had ceased and that he had been a victim of family violence perpetrated by his sponsor. The Administrative Appeals Tribunal was required to determine whether the applicant could satisfy the criteria for the visa in these circumstances.

The central legal issue before the Tribunal was whether the applicant had made a valid claim for family violence under the relevant regulations, given that his relationship with the sponsor had ceased. To satisfy the requirements of subclause (6) of clause 801.221, which applies when a relationship has ended, the applicant needed to demonstrate that he or a dependent child had suffered family violence committed by the sponsoring partner. The Tribunal had to assess whether the evidence provided by the applicant met the specific evidentiary requirements for a family violence claim as set out in Division 1.5 of the Migration Regulations.

The Tribunal reasoned that while the applicant had provided a statutory declaration and other documents, these did not satisfy the legislative requirements for establishing a valid family violence claim. Specifically, the Tribunal noted that a registered psychologist's letter was not in the form of a statutory declaration as required, and two medical letters from Dr. Roshan Mendis did not identify the alleged victim or detail injuries or treatment consistent with claimed family violence, nor did they refer to family violence at all. Consequently, the Tribunal found that the applicant had not made a valid non-judicially determined family violence claim.

For these reasons, the Tribunal affirmed the decision not to grant the applicant the Partner (Residence) (Class BS) visa, as he failed to satisfy the criteria for its grant.