Man (Migration) - [2018] AATA 5798

Man (Migration) [2018] AATA 5798 (8 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Kin Wa Man
Ms Mei Yee Sun
CASE NUMBER:  1614109
DIBP REFERENCE(S):  BCC2016/2707321 OSF2013/028324
MEMBER:David Barker
DATE:8 November 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Partner (Migrant) (Class BC) visas.
Statement made on 08 November 2018 at 10:56am

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – family violence claim – genuine spousal relationship prior to cessation of relationship – credibility issues – adverse relationship information – sponsor commenced a relationship with another woman in May 2014 – started residing with that other woman in April 2015 – infidelity – mutual commitment to a shared life together with the applicant – adverse general information – contrived relationship to achieve migration outcome – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 100.221
CASES
Cao v Minister for Immigration and Citizenship [2007] FMCA 225
Guven v MIMA [2006] FMCA 311
Minister for Immigration and External Affairs v Tagle (1983) 67 FLR 164
Re Minister for Immigration & Multicultural Affairs and Ors; Ex Pane Holland (2001) ALR 504
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 August 2016 to refuse to grant the applicants Partner (Migrant) (Class BC) visas under s.65 of the Migration Act 1958 (the Act).
The first named applicant (the applicant) applied for the visa on 1 February 2013 on the basis of her relationship with her sponsor, Mr David Watteau. 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).
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. 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), cl.100.221(4)(c)(i). The applicant claims this occurred in this case.
The delegate refused to grant the visas on the basis that the applicant did not meet cl.100.221, because the delegate was not satisfied that the applicant and the sponsor were in a spousal relationship prior to the relationship ceasing.
The applicants appeared before the Tribunal on 16 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor’s stepmother, Ms Georgina Watteau.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant is a citizen of China and is 41 years old. The second named visa applicant is her daughter from her first marriage. She is 19 years old and also a citizen of China.
Information provided by the applicant indicates:
·she and the sponsor first met in Rockingham, WA in July 2011, at which time they were both still married to other people;
·she and the sponsor moved in with each other in October 2011, and remained in contact with each other after she was required to depart from Australia as a consequence of her unlawful visa status being discovered;
·she and the sponsor married in Hong Kong in October 2012 and she travelled to Australia on a visitor visa in February 2013;
The delegate’s decision record, a copy of which was provided with the review application, provides a summary of the applicant’s immigration history and states:
- on 9 September 2013, the applicant was granted a Subclass 309 (Partner (Provisional)) visa and she returned to Australia on 20 September 2013;
- in December 2014, a document request letter for consideration of her Subclass 100 (Partner (Migrant)) visa was sent to the applicant’s migration agent;
- in December 2015, the applicant lodged online information in support of her application for the Subclass 100 visa;
- on 15 January 2016, the Department received information that the relationship between the applicant and her sponsor had broken down;
- on 22 January 2016, a document request letter, in response to the relationship breakdown, was sent to the applicant’s migration agent;
- on 4 February 2016, the applicant contacted the Department and stated that she was not aware the relationship between her and the sponsor had broken down until told by the migration agent and that she had not been able to contact her sponsor;
- on 5 February 2016, the applicant’s migration agent forwarded a 956 form to the Department ending their appointment;
- on 16 February 2016, the applicant’s new migration agent provided a response to the letter sent to her on 22 January 2016, which included family violence claims;
- on the 22 February 2016, the Department contacted and interviewed the sponsor’s stepmother and mother;
- on 2 March 2016, a natural justice letter was sent to the applicant’s migration agent concerning adverse information held by the Department. Amongst other things, the adverse information included claims that the applicant’s sponsor had been in a relationship with another woman since May 2014, that the sponsor and his current partner had cohabited since April 2015, and were engaged to be married from in or around August 2015.
The delegate noted that before assessing the applicant’s family violence claim it was necessary to consider whether the applicant would have satisfied the requirement that she was the spouse or de facto partner of the sponsor prior to the cessation of the relationship. The delegate noted that Departmental records show that the sponsor’s current partner indicated on a visa application that she had been the sponsor’s girlfriend since May 2014, that they had lived together since April 2015 and that they were engaged to marry. The delegate further noted that on 11 August 2015, the sponsor supported this other woman’s visa application by stating he was her fiancée. The delegate noted that the applicant had conceded the sponsor had moved out of her household in May 2015, stating he was going to live with his daughter and had not from that time lived in a shared household with the applicant. The delegate noted the applicant claimed the sponsor told her he had travelled to Darwin and Singapore, when in fact he had travelled overseas to visit the woman he had subsequently brought to Australia and who he now claimed was his fiancée.
The delegate noted that the sponsor's mother had supported the Subclass 100 visa application and claimed she had met the applicant and sponsor together socially in December 2015. The delegate noted that the applicant’s online application for the Subclass 100 visa application, which was lodged in December 2015, included a statutory declaration from the sponsor attesting to the genuine and ongoing nature of the parties’ relationship. The delegate noted that the applicant had subsequently conceded that she and the sponsor had separated in May 2015. The delegate noted the applicant had not regarded the separation as permanent until January 2016, when the sponsor’s mother told her the sponsor had another partner, who was pregnant with his child. The delegate noted the applicant’s claim it was not until January 2016 that she realised the sponsor had been lying to her for some time.
The delegate consequently made a finding that the applicant’s relationship with the sponsor was not mutually exclusive and that they did not have a mutual commitment to a shared life as husband and wife to the exclusion of all others as required under s.5F of the Act, and therefore cl.100.221(2) of Schedule 2 of the Regulations was not satisfied. The delegate found the applicant was not the spouse or de facto partner of the sponsor, prior to the relationship ceasing and as a consequence, the criteria in cl.100.221(4)(b) of Schedule 2 of the Regulations was not met, resulting in the requirements under cl.100.221 of Schedule 2 of the Regulations not being met.
Prior to the hearing, the applicant provided information to the Tribunal including, but not limited to, the following:
·a written submission from her representative;
·statutory declarations;
·copies of email correspondence between the applicant and sponsor;
·rental tenancy agreement, utility bills;
·photographs;
·medical evidence, statutory declarations, [and other documents] pertaining to the family violence claims.
TRIBUNAL HEARING
Evidence of the applicant
The applicant gave evidence that she met the sponsor in or around July 2011 in Rockingham, WA. She confirmed she came to Australia in March 2011 on a visitor visa, which ceased in September 2011. As to why she remained in Australia unlawfully after her visitor visa had ceased, the applicant said she stayed because the sponsor needed her so much and loved her so much and asked her not to go back to China. She said at that time the sponsor was sad about his divorce from his previous wife.
The applicant confirmed that she remained in Australia as an unlawful non-citizen, until her unlawful status was discovered as a result of a drink driving test carried out on the sponsor whilst she was in his car. She said this resulted in her departure from Australia in or around July 2012.
In response to a question from the Tribunal as to how she financially supported herself in Australia from March 2011 until July 2012, the applicant said she bought some money with her to Australia so that she could survive here. She said after July the sponsor took care of her and that she had no other source of income in Australia from March 2011 to July 2012. She said the sponsor would take her grocery shopping every Sunday, from around July 2011 and spend between $150 and $200 on groceries and other things she needed. She said if she needed anything else she would ask the sponsor and he would give her $50 cash to go and get what she needed. (this is relevance of adverse info about extent of money the applicant remitted offshore whilst she was in Australia at this time and casts doubt on her reliability as a witness)
The Tribunal invited the applicant to comment on the delegate’s finding that information available to them indicated the sponsor had commenced a relationship with another woman in May 2014, whom he intended to marry and with whom he started residing with in April 2015. The applicant said the sponsor maintained his marriage with her during that time and that she did not know he was in a relationship with another woman. She said that from her point of view the sponsor was a very nice and honest person and that it appeared he loved her very much. In response to a question as to whether the sponsor had at any time acted in any way to make her doubt he was a very nice, honest and loving person, the applicant said he sometimes became aggressive when he demanded money from her and she could not provide him the money.
The Tribunal noted that in submissions and statements provided to the Department and Tribunal, the applicant declared that the sponsor is a liar and that this gave rise to concern as to the reliability of any evidence the sponsor has provided about the parties’ relationship. In response to this comment the applicant said she is telling the truth and that she had believed what the sponsor told her until she realised he was a liar
The Tribunal noted the sponsor provided a statutory declaration in support of her Subclass 100 visa application in December 2015, but at that time he had been living with a different woman since April 2015 and that this other woman was at that time pregnant with his child. The Tribunal told the applicant this raised concerns as to whether the sponsor is a truthful witness and whether any evidence he has provided about his relationship with her could be relied upon. In response to this the applicant made the following comments:
·Around May 2014 her mother in China suffered from cancer, so she needed to return to China to visit her. The applicant said that before she departed the sponsor was very nice to her. When she came back to Australia she found that he had removed all of the furniture from their place and taken it to other places. The sponsor told her his daughter suffered from a psychological disease and therefore needed the furniture. The applicant accepted the sponsor’s removal of their household furniture because she could, because of her mother’s illness, understand the sponsor’s wish to support his ill daughter.
·The sponsor moved out of their household and explained the reason he had done this was because he needed to look after his daughter.
·From the time she returned to Australia from a further trip to spend time with her mother in China in June 2015, the sponsor visited her in her home once or twice a month and she had no idea that he had formed a relationship with another woman.
·About a week after he moved out the applicant went to the sponsor’s workshop to take him some dumplings which she had cooked. At that time, she wanted to go into the workshop, but she noticed another Asian lady was there and she asked the sponsor who the lady was. The sponsor told her that she was his daughter’s friend who was looking after his daughter because of her mental illness. The sponsor then refused her request to let her go inside his workshop to visit his daughter.
- The sponsor provided the statutory declaration in December 2015 willingly. The applicant conceded that the sponsor gave false information and false evidence about their relationship in his statutory declaration, but the applicant did not know at that time that he was having an affair.
The Tribunal noted the sponsor’s mother and stepmother provided statutory declarations in December 2015 in support of her Subclass 100 visa application, whereas the applicant has elsewhere indicated that when she spoke with the sponsor’s mother in January 2016 she was told the sponsor was in a relationship with another woman who was pregnant with his child. The Tribunal invited the applicant to comment on the concern this gave rise to that the statutory declarations provided by the sponsor’s mother and stepmother in December 2015 were not truthful, and if so, this raised concern as to the reliability of any evidence they may provide to the Tribunal. In response to this invitation the applicant said no one, including the sponsor’s mother and stepmother, knew that the sponsor had another woman and that was why they wrote the statutory declarations in December 2015.
The Tribunal invited the applicant to comment on the apparent inconsistency between her evidence that she was unaware that the sponsor was in a relationship with another woman, until she received a letter from the Department in January 2016, and information she has elsewhere provided that she thought the sponsor had a girlfriend from the time she received a threatening email from another woman in December 2015. In response to this information the applicant said there is no inconsistency with regard to this issue, as when she received the letter from the Departmental delegate in January 2016 she could not believe it, as the sponsor would not admit he was having an affair with another woman and she wanted to save the marriage. She then said that when she got the email from the other woman in December 2015 she knew the sponsor was involved with another woman. In response to the Tribunal pointing out to the applicant that the oral evidence she had just provided appeared contradictory, she said when the other woman sent her an email in December 2015 the sponsor didn’t explain anything to her. The applicant told the Tribunal that when the Department sent an email to her migration agent in January 2016, she then understood what had happened and understood the whole situation.
The Tribunal noted that in the copies of emails and other electronic communication between the applicant and sponsor, which she had provided to the Tribunal and the Department, there was an indication the relationship between her and the sponsor had broken down in or around July 2015, and that this was not consistent with her evidence elsewhere that she was unaware the relationship had ceased until the Department informed her of this in January 2016. The Tribunal told the applicant that this gave rise to concern as to whether evidence she had provided about the circumstances of her relationship with the sponsor could be regarded as truthful and reliable. In response, the applicant said the sponsor told her he needed to take care of his daughter and that was the reason he could not come back to her home. She said he did come back from time to time to visit her and her daughter, so she didn’t think too much about things. The applicant said during that period her mother was suffering a serious medical condition and from her point of view it was reasonable for someone to help someone who may be seriously sick.
The Tribunal noted the applicant had provided copies of a rental tenancy lease covering the period from February 2015 to August 2015, and asked her why the Tribunal should accept this as evidence demonstrating she and the sponsor had maintained a household together, given it appears the sponsor was during that time residing somewhere else with his new partner. In response to this, the applicant said the tenancy lease should be accepted because the sponsor was the one who paid utility bills and he would visit her every month. The applicant said the sponsor told her he lived in his workshop and that it was his daughter who needed to rent another place.
The Tribunal noted the applicant had provided rent receipts and a rental payment ledger for a rental property in Rockingham, WA, covering the period from August 2014 to October 2015, but had not provided any evidence to establish who made the rental payments. The applicant said she and the sponsor paid the rent together but most of the time she paid the rent. She conceded that she had no documentary evidence, such as bank account statements, to show who had paid the rent.
The Tribunal noted the applicant had provided electricity accounts, for July 2015 and November 2015, pertaining to an account held in the name of the sponsor for the Rockingham Beach address, but had not provided any evidence to show who paid these electricity bills. The applicant said most the time she paid both the rent and electricity expenses associated with the Rockingham Beach address, but that in May 2015 and July 2015 the sponsor paid the electricity bills because she was at that time in China. She said the reason she usually paid these expenses was because the sponsor would tell her that he had no money when the bills came in, and that as he was her husband she considered her money to be their money, and so she paid the bills. She conceded she had no documentary evidence to support her claims as to the sponsor at times paying electricity bills.
In relation to the financial aspects of the parties’ relationship, the applicant said she and the sponsor had at no stage jointly owned any real estate or other major assets. Further to this she said she and the sponsor at no stage had any joint liabilities. She explained she has a beauty shop from which she draws an income and that she would keep money that she had saved from this business in her home. She said she would tell the sponsor not to worry about money or their future, because of this developing cash asset. She said they didn’t pool their money together, because the sponsor had a bad drug habit and she could not trust him with access to her money. The applicant said she did on occasion provide the sponsor with access to her credit card to use for transactions involving computers and the internet, as she does not have a good grasp of the English language and is not good at using computers.

In relation to the basis of any sharing of day-to-day household expenses, the applicant said sometimes she and the sponsor gathered at his mother’s home and she would give his parents money, as she regarded his parents as her parents. She said after she was granted the Subclass 309 visa she said she shared every cent she earned with her sponsor.
In relation to the nature of the parties’ household, during the time the applicant claims they were in a relationship together, the applicant said at the start of their relationship they did not have much money, so they lived in the sponsor’s workshop, but when her daughter came to study in Australia she decided the workshop was not suitable for her daughter and that is why they rented the property at Rockingham Beach. She said her daughter always respected the sponsor, but later on became a bit frightened of him.
The applicant said she and the sponsor lived together from July 2011 until she returned to China in June 2012. She said the sponsor visited her four times while she was in China and then, from the time she returned to Australia after she got the Subclass 309 visa in 2013, they lived together until May 2015. She said after May 2015 he didn’t come around to see her that often. She said when they did live together they did the house work together, but the sponsor did most of the yard work and she did the cooking and cleaning inside their home.
With regard to the social aspects of the parties’ relationship, the applicant explained that the photographs provided with the visa and review application included photographs taken at Christmas time when they visited the sponsor’s parents and other members of his family. The applicant said she and the sponsor had common interests, and that they would go fishing together and also ride bicycles together. She said he also used to attend church with her, including on special occasions.
With regard to the nature of the parties’ commitment to each other, the applicant said it was difficult to comment on the extent to which they were a source of companionship and support to each other, as she was committed to him and to their relationship, but his commitment to her and the relationship is less clear. She said she was committed to caring for the sponsor and to love him forever. She said she was committed to waiting at home until he would visit and cook meals for him. She said his commitment to her was there during periods that he was in a good mood and at those times he would chat with her and they would plan a future life together. She said they would discuss how he did not like the cold and their plan to spend their summers in Australia and their winters in China.
The applicant said when she and the sponsor were together he would often say he did not have any money and so she would pay their bills, but she has no evidence to support this. She said when the lease for their rental property finished he even took the bond back. She said at that time she still thought he was her husband, even though she knew he had other women outside of the marriage, but she thought she could save the marriage.
Evidence of the sponsor’s stepmother
The sponsor’s stepmother confirmed she signed a statutory declaration in December 2015 which supported the applicant’s visa application, and that in that document she declared the relationship between the applicant and her stepson was a loving relationship. The sponsor’s stepmother acknowledged that she conveyed the view in her statutory declaration that the parties were in a genuine and continuing relationship in December 2015.
The sponsor’s stepmother said she did not know, at the time she prepared and signed the statutory declaration in December 2015 that her stepson was in a relationship with another woman who was at that time pregnant with his child. She confirmed that she told the applicant in January 2016 about her stepson’s relationship and the pregnancy of the woman he was in a relationship with. She explained that she did not find out about her stepson’s relationship with the other woman until his sister told her in January 2016. In response to the Tribunal asking why she was not aware of this development in her stepson’s circumstances before that time, she said she had not at any stage spoken to her stepson during 2015.
In response to a question from the Tribunal as to how she was in a position to provide a view about whether the relationship between the applicant and her stepson was loving, continuing and genuine in December 2015, given her lack of contact with her stepson throughout 2015, the sponsor’s stepmother said she would at times be with the applicant when she would receive a phone call from her stepson and this gave her the view the parties’ relationship was genuine and continuing.
The sponsor’s stepmother expressed a view that from when the applicant and her stepson first married until 2015 their relationship was genuine and that her stepson seemed very sad when the applicant had to go back to China in 2015. She said she would at times talk to her stepson’s mother, who would report her stepson was missing the applicant. She said her stepson’s mother believed the relationship was happy and genuine and that the applicant was very good to her stepson. She said the applicant was heartbroken when all this came about in December 2015 and January 2016. She said the applicant was in a very bad way for a period after that but that she did not appear to have had any emotional difficulties before that time. The sponsor’s stepmother said the applicant didn’t report any difficulties in her relationship with her stepson before then, and expressed the view that if the applicant had any hurt feelings she kept them inside herself.
Applicant’s response to the evidence of the sponsor’s stepmother
The applicant said she visited the sponsor’s father when he was unwell in the period leading up to his death. She said that she also spent time with the family on a number of occasions, including birthdays and other special days. She said in January 2015 the sponsor’s family celebrated his sister’s birthday in the parties’ home.
Evidence of the applicant’s daughter (the second named visa applicant)
The applicant’s daughter told the Tribunal she lived with her mother and the sponsor from September 2014 until December 2015 and witnessed their genuine relationship. She said the sponsor lived with them throughout 2014, but in certain periods in 2015 he was not there. She said he would come back from time to time. The applicant’s daughter said she would go out socialising with her mother and the sponsor, especially on weekends when they would visit members of his family. She said sometimes the sponsor would take her and his biological daughter out fishing.
The applicant’s daughter said the sponsor visited her mother in China and stayed in their home and that they travelled together in China. She said this was before her mother moved back to Australia. She said after she came to study in Australia the sponsor took her around to different schools and helped her decide what secondary school to attend so that she could finish her secondary education. She said she is now studying pharmacology at the University of Western Australia and that she resides in Perth with her mother and her mother’s current husband. She said her mother remarried in September 2017.
The applicant’s daughter said from her understanding the relationship between her mother and the sponsor was genuine, but that he lied to them and lived with them even though he was having an affair. She said the sponsor didn’t tell her, or her mother, the truth, and if because of this her mother is not regarded as having been in a genuine relationship, she does not think that is fair for her mother.
Request for access to documents under s.362A and Certificates issued under s.376 and s.375A
On 12 October 2016, the Tribunal received a request for access to documents under the provisions of s.362A of the Act. On 30 October 2016, the Tribunal provided the applicant with partial access to documents relating to her applications for the review of the decision to refuse to grant her the Subclass 100 Partner visa. Certain documents were fully or partially excluded from disclosure under Australian privacy Principle (APP 6) set out in Schedule 1 of the Privacy Act 1988 as they contain personal information about another person and disclosure was not permitted under APP 6.
Prior to the hearing, the Tribunal noted that a 376 Certificate and 375A Certificate had been issued by the Department restricting access to further documents on the Departmental file. Given the applicants were to appear before the Tribunal by videoconference, the Tribunal sent the applicant’s representative copies of these certificates prior to the hearing, inviting any comments or submissions that the representative or the applicant would care to make as to the validity of the certificates. The Tribunal received no comments or submissions from either the applicant or her representative in relation to this issue prior to the hearing.
At the start of the hearing the Tribunal noted the applicant’s representative was not present with her at the Tribunal’s location in Perth, WA and asked the applicant if she wished to proceed with the hearing in the absence of her representative. The applicant said she had elected to not be represented at the hearing, as she had not wanted to spend the extra money that would have been required to arrange for a representative. The applicant initially told the Tribunal she was unaware of the certificates. The Tribunal explained the basis on which the Department had issued the 376 Certificate and 375A Certificate and asked the applicant if she wished to make any comments as to the validity of these certificates. In doing so the Tribunal explained to the applicant that she could indicate if she thought she needed to seek advice from a representative in relation to this issue and that the Tribunal would in that event reschedule the hearing in order to enable her to do so. The applicant told the Tribunal she wished to proceed with the hearing and get the review over and done with, and that she did not have concerns as to the validity of the certificates the Department had issued.
The Tribunal considered the applicant’s comments. In relation to the 376 Certificate, the Tribunal informed the applicant that it considers the certificate to be valid as it accepts release of documents covered by this certificate would be contrary to the public interest, as this would reveal confidential investigative methods used by the Department to prevent, detect and investigate breaches of the law and would likely prejudice the effectiveness of those methods. The Tribunal informed the applicant that it considers it appropriate to exercise its authority and not release the actual documents. However, the Tribunal considered it appropriate to provide the applicant with the gist of the content of the documents and indicated they pertain to the Department’s investigation of whether the sponsor was in a relationship with another woman during the period the applicant claims the sponsor continued to be in a committed and genuine relationship with her.
In relation to the 375A Certificate, the Tribunal provided a provisional view that the certificate appeared to be valid. The Tribunal noted that a significant amount of the information in documents restricted by the s.375A Certificate was included in the natural justice letter sent to the applicant by the Department in March 2016 and to which she provided a written response in April 2016. The Tribunal also informed the applicant that it would provide her with the gist of the information contained in these documents at an appropriate point in the hearing so as to give her the opportunity to respond to this information.
Particulars of information put to the applicant pursuant to s.359AA of the Act
The Department and Tribunal files contained information which gave concern as to the weight that could be given to evidence provided by the applicant, sponsor and other witnesses about the applicant’s migration history, the nature of the parties’ household arrangements and other aspects of their relationship. This information also gave rise to concern about whether the applicant, sponsor and witnesses could be regarded as truthful and reliable witnesses. The particulars of this information were put to the applicant pursuant to s.359AA of the Act, explaining the reasons why that information was relevant and what the implications were if the Tribunal relied on that information. The Tribunal also advised the applicant she could seek time to consider what comment or response she would like to make to the information.
The Tribunal told the applicant that most of the information it would be putting to her was the gist of the information from documents that were restricted through the action of the 375A Certificate, which was subsequently revoked by the Department after the hearing. The particulars of the information put to the applicant pursuant to s.359AA of the Act was:
·during the period that the applicant was an unlawful non-citizen in Australia in 2012 she made financial transactions involving large amounts of [money];
·[Information deleted];
- the applicant has used a false therapist qualification and false driver’s license;
- the sponsor commenced a relationship with a different woman in May 2014;
- the sponsor started residing with this different woman in April 2015;
- the applicant submitted documents associated with the Subclass 100 permanent partner visa after her relationship with the sponsor had ceased;
- the sponsor signed papers associated with the Subclass 100 permanent partner visa application, despite being in a relationship with a different woman who was at the time pregnant with his child;
- the applicant was paying the sponsor money so that he would support her visa application, including after the time where the applicant’s relationship with the sponsor had ceased;
- the sponsor provided information to the Department indicating his new partner and he had contact with his parents in or around April 2015, and which attested to his financial support of and cohabitation with his new partner;
- bank records of the sponsor, from April to July 2015, provide no indication of the pooling of finances or the sharing of day-to-day expenses between the applicant and the sponsor;
- the sponsor provided a statutory declaration, dated 7 September 2017, stating that the applicant is dishonest and fabricated the allegations of mistreatment and family violence committed by the sponsor in order to obtain the visas, and that the applicant was not honest and faithful during the period the parties were in a relationship.
The Tribunal told the applicant that this information is relevant because it cast doubts on the credibility of her evidence about the circumstances of her relationship with the sponsor, and that it gives rise to the concern she provided information to the Department and the Tribunal which was not true and that she is not a truthful and reliable witness.
The Tribunal told the applicant that if the Tribunal relies on some, or all of this information in makings its decision, it may not be satisfied she would have met the requirement of being the spouse or de facto partner of the sponsor, except that the relationship had ceased or that she has suffered family violence committed by the sponsor. The Tribunal told the applicant that this may lead the Tribunal to find that she does not meet the criterion in cl.100.221 of Schedule 2 to the Regulations. Further to this, the Tribunal told the applicant that this may lead the Tribunal to find that the second named visa applicant does not satisfy the criteria in the Regulations which requires she is a member of the family unit of another person who has been granted a Subclass 100 visa.
The applicant did not seek additional time to respond to the issues raised by the Tribunal. She provided the following comments in relation to the information put to her pursuant to s. 359AA of the Act:
·for the first part, regarding the large amount of money. So, I need to send money back to China, so I sent money twice. I couldn’t remember, roughly two or three times and roughly $20,000 in total;
- [Information deleted];
·around January 2015 and in April 2015 the sponsor told me he needed to travel, but he didn’t tell me he went to the Philippines. Around January 2015 he said he needed to travel to visit his older brother in Darwin who had family difficulties. The second time he travelled, which was around April 2015, he said he needed to go to Singapore;
·after he came back from Singapore he sent one of his friends to my shop, but I did not know that person was his friend. I only found out the person was his friend after January 2016 when my relationship broke down and I checked the sponsor’s Facebook page. The friend of the sponsor who came to my shop did something inappropriate. I thought the sponsor had sent his friend because he wanted money from me, but I didn’t think too much about it. He sent the friend to me to set me up because he had a plan to sponsor someone else. I thought he cared for me and loved me and was jealous;
·after Christmas 2014, in or around January 2015, the sponsor and his daughter blackmailed me and demanded $10,000 from me. They said at the time that he had borrowed $7,000 from his daughter, but I did not believe she would have had that amount of money for him to borrow. However, he was my husband so I gave him the money, but I did not know he used this money to sponsor the other woman;
·about the fake driver’s license, that is a lie. The license I had was a Chinese issued license which I could use in Australia. I only used the Chinese driver’s license for one year because I needed to transport my daughter to and from school;
·I didn’t know English and can’t speak or write in English, but the marriage was genuine. The sponsor is a liar, not me. The reason I gave him money was not for the visa, it was because he was my husband;
·the sponsor provided the statutory declaration in support of my application voluntarily, I did not force him to write it;
·the sponsor sent me lots of emails asking for money, as he said there was no income coming into his shop and that his daughter wanted to commit suicide. He may not have said directly send me money, but he expressed that feeling and even put his account number in the emails.
·He sometimes said he would come to visit and sometimes he would visit. Sometimes he said he would sign papers and sometimes he said he would not sign papers. This continued to happen until December 2015 and the marriage lasted until December 2015. He gave up on me as the other woman got pregnant. He signed the statutory declaration in December 2015. My agent asked him to provide his bank account and more paperwork and he still did that to help me get that the visa.
The Tribunal’s release of certain documents after the hearing subsequent to the Department’s revocation of the s.375A Certificate
Subsequent to the Tribunal seeking further comment from the Department, following the hearing, as to the validity of the 375A certificate following the hearing the Department revoked the 375A certificate. In light of the request for documents which was made in accordance with s.362A in October 2016, the Tribunal provided the applicant and her current representative with certain documents which were previously restricted, with the exception of documents, the release of which would be in breach of national privacy provisions (APP 6).
The Tribunal invited further comment or submissions about these documents and on 13 September 2018 received written submissions from the applicant’s representative, which stated:
REPLY TO REQUEST FOR FURTHER INFORMATION — CONTENT OF DOCUMENTS DISCLOSED PURSUANT TO SECTION 362A ("DISCLOSED DOCUMENTS")
We refer to your letter dated 30 August 2018, inviting our clients' further comment and submissions on adverse information ("Request for Further Information") contained in documents recently released from the Department of Home Affairs ("the Department"), to the Administrative Appeals Tribunal ("the Tribunal").
1.RELEVANT BACKGROUND
1.1     Ms Kin Wa Man ("the Applicant") was the primary applicant for a Partner (Subclass 100) Visa ("the Visa") lodged on 11 December 2015 ("the Application"), which names her daughter, Ms Mei Yee Sun as a secondary applicant ("the Secondary Applicant") and Mr David Sean Watteau as sponsor ("the Sponsor").
1.2 The Applicant claimed to meet the primary criteria for the Visa listed in Clause 100.221(2) of Schedule 2 of the Migration Regulations 1994 (Cth) ("the Regulations"), on the basis that that the domestic violence provisions described in Clause 100.221(4) of Schedule 2 of the Regulations applied to her individual circumstances.
1.3The above was claimed on the basis of ongoing domestic violence perpetrated by the Sponsor against the [Applicant].
1.4We note that to date, the following documents have been provided to the Tribunal in support of the Applicant's claims of eligibility pursuant to Clause 100.221(4):
(a)Correspondence between the Applicant and Sponsor before and after his engagement in an extramarital affair;
(b)Statutory declarations from the following witnesses, attesting to the genuine nature of the relationship, as well as the claims of domestic violence:
(i)    Ms Sok Ngoh dated 12 February 2016;
(ii)   Ms Dorothy Dyall, dated 13 February 2016;
(iii)     Ms Tracey Davis, dated 15 February 2016;
(c)Copies of the following documents going towards the Applicant and Sponsor's spousal relationship within the meaning of Section 5F of the Migration Act 1.958 (Cth) ("the Act") and Regulation 1.15A of the Regulations:
(i)    Utility bills; and
(ii)   Tenancy agreements.
(d)The following evidence going to the legitimacy of the Applicant's claims relating to the perpetration of domestic violence by the Sponsor:
(i)    Photographic evidence;
(ii)   Psychiatric report from Dr Raymond Wu, dated 2 February 2016;
(iii)     Letter from Dr Ivan Lee of Cockburn Medical Centre, dated 8 February 2016;
(iv)     The Applicant's signed witness [statement];
(v)   [Information deleted].
(e)Outline of Submissions in Support of the Application for Appeal of the Decision to Refuse the Visa, dated 1 September 2018 ("the Outline of Submissions");
(f)          Statutory Declaration of Ms Kin Wa Man, dated 29 August 2017; and
(g)         Statutory Declaration of Ms Mel Yee Sun, dated 25 August 2017.
2.         CONTENT OF THE DISCLOSED DOCUMENTS
2.1 We note that the Disclosed Documents were not previously released by reason of
restriction under a certificate issued by the Department pursuant to Section 375A of the Act.
2.2          By reason of the above, the Disclosed Documents were not released as part of the Tribunal Member's request pursuant to Section 362A of the Act.
2.3 Following the revocation of the certificate, the Department has since released the
Disclosed Documents to the Tribunal in the following tranches:
(a)   Released Documents from BCC2016/707321 ("Permanent Partner Visa Application"); and
(b)    Released Documents from 05F2013/028324 ("Temporary Partner Visa Application"). (together, "the Disclosed Documents")
2.4 The Disclosed Documents relating to the Permanent Partner Visa Application considers, and is largely concerned with, apparently anonymous contact with an unknown individual ("the Anonymous Call"):
Particulars of the Anonymous Call:
(a)   That the relationship between the Applicant and Sponsor had concluded;
(b)   The Sponsor is currently in a relationship with another female, who is pregnant with his child;
(c)   The Applicant and Sponsor ended their relationship in April 2015;
(d)   The Sponsor had been in another relationship with another female since April 2014; (together, "Adverse Relationship Information")
(e)   [Information deleted];
(f) It was alleged that their relationship had been contrived for the purposes of obtaining a migration outcome;
(g)   The Applicant's qualifications, identification and driver's license were not genuine documents; and
(h)    Accused the Applicant of enticing the Sponsor through bribery to assist her to maintain a lawful visa status in Australia. (together, "the Adverse General Information")
2.5Prior to the refusal of her Partner (Subclass 100) Visa ("Permanent Partner Visa Application"), the Applicant received an invitation to comment on the adverse
information contained in the Anonymous Call, issued by the Department on 2 March 2016, pursuant to Section 57 of the Migration Act 1958 (Cth).
2.6The Applicant provided her reply to the invitation to comment on 24 March 2016 ("Reply to the Invitation to Comment").
2.7The Disclosed Documents relating to the Temporary Partner Visa Application largely relates to the following matters:
(a)   The existence of the Applicant's child in Hong Kong and associated correspondence in relation to the child's health check;
(b)   Correspondence between the Sponsor and the Department, providing further documents in support of the Applicant's application for a Temporary Partner Visa;
2.8We note that the relevant information, pertaining to the Disclosed Documents as part of the Applicant's Temporary Partner Visa Application, which requiring further comment is more abstract and less discernable.
2.9On the basis of the above documents, it is presumed that further comment is required in relation to the absence of the Applicant's child's mention on the Disclosed Documents.
3.      RELEVANT LAW
3.1For ease of reference, Clause 100.221, subclause (2) of the Regulations reads as at the time of the Application:
The Applicant meets the requirements of this subclause if:
(a)   The Applicant is the holder of a Subclass 309 (Partner (Provisional) Visa; and
(b)     The applicant is the spouse or de facto partner of the sponsoring partner.
3.2Subclause (4), in providing an exception for visa applicants who have relevantly suffered domestic violence, reads as follows as at the time of the Application:
The Applicant meets the requirements of this subclause if:
(a)   The applicant first entered Australia as the holder of a Subclass 309 (Partner (Provisional) Visa) and continues to be the holder of that visa; and
(b)   The applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased; and
(c)   After the applicant first entered Australia as the holder the visa mentioned in paragraph (a) — either of the following circumstances applies:
(i)    Either of the following:
(A)   The Applicant;
(B)   A member of the family unit of the sponsoring partner or of the applicant or both of them;
Has suffered family violence committed by the sponsoring partner
3.3 Regulation 1.23 of Schedule 1 of the Regulations defines the circumstances in which a person is taken to have suffered domestic violence. Subregulation (9) applies most relevantly to the Applicant's matter, being a non-judicially determined claim of family violence, stating relevantly:
(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 a de facto partner of the alleged perpetrator
(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 suffered relevant family violence.
3.4 Relevant family violence is defined in Regulation 1.21 to include conduct towards:
(a) The alleged victim;
(b) Member of the family unit of the alleged victim;
(c) Member of the family unit of the alleged perpetrator;
(d) Property of the alleged victim;
(e) Property of a member of a family unit of the alleged victim;
(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
4.    SUMMARY OF COMMENT
4.1We have taken instructions from the Applicant in relation to the Disclosed Documents and now provide comment on her behalf as follows:
(a) Comment on the Disclosed Documents relating to the Applicant's Permanent Partner Visa Application, including:
(i)    Comment on the Adverse Relationship Information; and
(ii)   Comment on the Adverse General Information.
(b)    Comment on the Disclosed Document relating to the Applicant's Temporary Partner Visa.
5.COMMENT ON DISCLOSED DOCUMENTS RELATING TO THE APPLICANT'S PERMANENT PARTNER VISA APPLICATION
5.1We note that the Adverse Information contains many discrete allegations and supposed intelligence. We have grouped them, and will consider them as follows:
(a)    The allegations contained in Paragraph 2.4(a) — 2.4(d) of this Letter (the Adverse Relationship Information); and
(b)    The allegations contained in Paragraph 2.4(e) to 2.4(h) of this Letter (the Adverse General Information)
Adverse Relationship Information:

Previous Submissions:
5.2The Applicant takes this opportunity to reiterate and refer to Paragraphs 19 to 21 of the Outline of Submissions tendered on her behalf in support of her application for appeal.
5.3By reason of the above evidence, it is respectfully submitted that the Applicant had commenced a spousal relationship with the Sponsor prior to the occurrence of any family violence.
5.4In relation to the allegations that the relationship between the Applicant and Sponsor had concluded a not insubstantial period of time prior to the application for a Permanent Partner Visa, we have been instructed as follows:
(a)    The Sponsor intimated to the Applicant that in order to adequately care for his biological daughter in light of her developing mental illness, he needed to live with her on a full time basis;
(b)    Over the relevant time in question, the Applicant had travelled to China to attend to her mother who was suffering from terminal illness;
(c)     The Sponsor claimed that his daughter was in the throes of a serious psychiatric illness, which had caused her to attempt to take her own life, necessitating his permanent presence;
(d)    Throughout the relevant time, the Sponsor in no way communicated by words or action to the Applicant that he intended for their relationship to be of permanent completion.
5.5In relation to the operative date, which the relationship was taken by the Applicant and Sponsor to have concluded, Applicant takes this opportunity to reiterate the following submissions, provided in the Outline of Submissions, prepared in relation to the Applicant's hearing before the Tribunal:
(a)   In the case of Re Minister for Immigration & Multicultural Affairs and Ors; Ex Pane Holland (2001) ALR 504 ("Holland"), at [16], Kirby I commented that the Tribunal may be required to approach an assessment of a relationship in a more flexible manner to accommodate for idiosyncrasies, which exist in many modern day relationships;
(b)   The Department's Procedures Advice Manual 3 ("PAM3") further recognize the significant degree in variance of the structure and nature of relationships existing in contemporary Australia, stating that a degree of flexibility should be adopted when assessing when relationship breakdown occurred, explaining and that it is not always reasonable or possible to pinpoint such a time with mathematical accuracy;
(c)   The PAM3 further provides that an approach with even greater flexibility should be utilized when assessing relationships marred by the presence of family violence; and
(d) It is also accepted that the presence of an extramarital affair within the relationship between applicant and sponsor does not, for that reason alone, mean that the Applicant would fail to meet the criterion and definition of a spouse within the meaning of the Act and Regulations: Cao v Minister for Immigration and Citizenship [2007] FMCA 225 ("Cao"), [36].
5.6By reason of the above, the following is respectfully submitted on behalf of the Applicant:
(a)    There is nothing to suggest that the spousal requirement need be present immediately as the relationship concludes, rather, this requirement imposes a relative assessment as opposed to a strict requirement;
(b)    Accordingly, it is respectfully submitted that an interpretation, which requires there to be a spousal relationship immediately prior to the relationship's termination, should not be favoured;
(c)     Applying the cases of Coo and Holland, it is also respectfully submitted that the presence of family violence throughout the relationship between the Applicant and Sponsor does not make the relationship conducive to the same assessment method as used in relation to other relationships;
(d)    Accordingly, applying the PAM3, a more flexible assessment is required to give full effect to the Applicant's claims and application;
5.7   By reason of the above, and given the presence of egregious family violence in the
relationship between the Applicant and Sponsor, a more flexible approach should be adopted in determining the point at which the relationship broke down for the purposes of the Application.
5.8   Accordingly, weight should predominantly be given to the Applicant and Sponsor's
relationship prior to May 2014, when the extramarital affair began to occur.
Further Submissions:
5.9   It is respectfully submitted now, in connection with the above, that decision makers
exercising power under statute must give proper regard to all the circumstances of the case at hand, and must refrain from blindly applying departmental policy to decisions: Minister for Immigration and External Affairs v Tagle (1983) 67 FLR 164.
5.10 By reason of the above, it is respectfully submitted that significant weight should be given to the following factors present over the time of the relationship between the Applicant and the Sponsor, in assessing whether she can be considered to be in a spouse to the Sponsor:
(a)    The duplicity and fabrications perpetuated by the Sponsor involving his supposed need to care for his daughter on a full time basis in light of her mental illness, which highlights the dysfunctional nature of their relationship; and
(b)    The Applicant's behavior over the course of the relationship and her genuine belief that she and the Sponsor remained in a loving relationship characterized by mutual commitment.
5.11 It is further submitted now, that failing to give proper weight to the above factors may result in the Department ignoring, or failing to take into account relevant material, potentially constituting a jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.
5.12 By reason of the above, it is respectfully submitted on behalf of the Applicant, that this information should be given weight in considering whether the Applicant was in a spousal relationship with the Sponsor, as well as her claims of family violence.
Policy of Family Violence Provisions:
5.13 As determined in the PAM3, the family violence exceptions exist in the Regulations to ensure that women and spouses in general are not forced to be extorted and manipulated into suffering longstanding abuse and neglect out of fear or incurring the ire of their sponsors, or living under threat of potential visa refusal, cancellation and subsequent deportation.
5.14 It is finally submitted therefore, that the Applicant circumstances fall squarely within
those circumstances indicated by the PAM3, accordingly, her claims should be given weight in her application for appeal.
Adverse General Information:
[Information deleted]
Allegations as to the Genuine Nature of the Applicant's Qualifications:
5.17 In relation to the allegations impugning the validity and genuineness of the Applicant's
drivers' license and Therapist Certificate, the following is respectfully submitted:
(a)   These allegations, insofar as they refer to the above documents, are also malicious falsities, intended to diminish the integrity of the Applicant's business;
(b)   The Applicant, who has long since obtained a genuine certificate and drivers' license in China, obtained these documents properly and by her own merit;
(c)   The Applicant's certificate was considered of conclusive sufficiency by the Rockingham City Council to permit the Applicant to commence her business;
(d)   The Applicant's driver's license was granted to her in China by the proper authority, and has not yet successfully obtained an Australian license.
5.18          5.18 By reason of the above, it is respectfully submitted that the Tribunal should give this
matter no weight in its deliberations of the matters on appeal.
Allegation of the Applicant Paying the Sponsor to achieve a Migration Outcome:
5.19          5.19 In relation to the above allegation, that the Applicant engaged in bribery to achieve a
migration outcome, with respect to the grant of her Permanent Residency, the following is respectfully submitted:
(a)   This too is a malicious falsity;
(b)   The Applicant vehemently denies that she made any such offer of payment of cash or otherwise, in exchange for the Sponsor's consent to act in that capacity in respect of her Application;
(c)   Any money that was offered and given to the Sponsor, was given freely out of love and affection, as a spouse and partner, in response to the Sponsor's suggestions and statements that:
(i)His business was failing;
(ii)His costs were mounting in response to the treatment of his daughter's mental health issues (which were later determined to be a deception on behalf of the Sponsor); and
(iii)That he was unhappy or struggling.
5.20Further to, and as evidence of the above, we attach correspondence between the
Applicant and Sponsor, demonstrating a conversation to the effect of:
(a)     The Applicant professing her unyielding love and affection for the Sponsor; and
(b)    The Applicant expressing her indifference towards the visa process so long as she could maintain her relationship with the Sponsor.
5.21 By reason of the above, it is respectfully submitted that the Tribunal should give this
matter no weight in its deliberation of the remaining issues on appeal.
Allegations that the Sponsor only signed the Application for a Permanent Partner Visa by reason of importunity on the part of the Applicant:
5.22 In relation to the above allegation, that the Applicant was only able to obtain the
Sponsor's signature through insistent harassment, the following is respectfully submitted:
(a)     The above allegation contains false accusations, the Sponsor at all times communicated to the Applicant that we was happy to act as her sponsor;
(b)    The Sponsor at all times communicated to the Applicant that he was happy to sign the necessary documents in connection with her application for a Permanent Partner Visa; and
(c)     The Applicant concedes that the Sponsor asked the Applicant to refrain from discussing the issue with his mother so insistently, but otherwise made no other admonitions in relation to this matter.
5.23 By reason of the above, it is respectfully submitted that the Tribunal should give this
matter no weight in its deliberations of the outstanding issues on appeal.
6.COMMENT ON DISCLOSED DOCUMENTS RELATING TO THE APPLICANT'S TEMPORARY PARTNER VISA APPLICATION
6.1   We have been instructed as follows in relation to the apparent oversight of the Secondary Applicant on the Form 40SP —Sponsorship for a Partner to Migrate to Australia.
6.2   At the relevant time of drafting of the above form, the Applicant and Secondary Applicant were consulting the services of a migration consultant in Hong Kong.
It was understood between the Applicant and Sponsor that the Secondary Applicant
would not be migrating with the Applicant in connection with her Temporary Partner Visa Application.
6.4 This was due to the fact that the Secondary Applicant intended to complete her secondary schooling in Hong Kong before migrating to Australia.
6.5 The above is attributed to a mere oversight by the Applicant's previous migration agent in connection with the Applicant's Applications.
6.6 By reason of the above, it is respectfully submitted that this matter is not strictly relevant to the matters presently on appeal, and accordingly, the Tribunal should allocate them no weight in its further deliberations.
7.   CONCLUDING REMARKS
7.1 It is therefore respectfully submitted that the Adverse Relationship Information and the Adverse General Information should be given little weight in determining the Applicant's claims of eligibility under the family violence provisions of the Regulations.
7.2 It is also concluded, on the basis of the above submissions, that the information disclosed in relation to the Temporary Partner Visa Application is not relevant or material to the Tribunals deliberations on the above matters.
7.3 If the Tribunal have any further enquiries, or would like to discuss these, or any other matters further, please do not hesitate to contact our office.
7.4   We look forward to hearing from you at your earliest convenience

The Tribunal proceeded to consider the applicant’s responses to the information put to her pursuant to s.359AA of the Act.
In her response, the applicant conceded sending money from Australia to China. She did not indicate when these financial transfers took place, however she did not dispute the suggestion they occurred during the period of time she was in Australia unlawfully. She estimated the amount she had remitted back to China to be around $20,000. [Information deleted]. The Tribunal has reviewed the available information, including the declarations, representative’s post hearing submissions and witness support referred to by the applicant, and is not satisfied with this aspect of the applicant's response to the information put to her pursuant to s.359AA of the Act.
[Information deleted]. What is of concern to the Tribunal and what calls into question the reliability of the applicant’s evidence is her estimation of funds remitted to China, during the time she was unlawfully in [Australia]. The applicant’s estimation of funds is considerably less than the amount identified in documents the Tribunal has access to, but has not released under the authority invested to it through the s.376 Certificate issued over this document. The Tribunal is not persuaded the applicant has provided truthful evidence about the extent of funds she remitted offshore in the period from March 2011 to July 2012, especially in light of her initial oral evidence during the hearing that prior to meeting the sponsor in July 2011 she was reliant on funds she brought to Australia with her and after that after meeting him and until she was required to depart from Australia in July 2012, she was fully reliant of financial support from the sponsor as she had no other source of income whilst she was in Australia at that time.
The Tribunal finds the applicant’s response to this aspect of the information put to her pursuant to s.359AA to be misleading and inconsistent with evidence she has provided elsewhere during the review process and finds this gives rise to concern as to her reliability as a witness.
The Tribunal notes the applicant’s claim she held a Chinese driver’s license and that this provides a reasonable explanation for her understanding she could drive vehicles in Australia. The Tribunal accepts this allegation and the allegation as to the genuine nature of the applicant’s qualifications are not directly relevant to the matters under consideration in this review, except in so far as they may reflect her character. The Tribunal has made no findings with regard to any such connection and has not placed weight on the claim the applicant knowingly drove illegally in Australia, or that she displayed false therapist qualifications in her place of business.
The Tribunal and the Department have been provided with multiple pieces of evidence, significantly of email communication between the applicant and her sponsor dating back to July 2015, which provides clear evidence the relationship between the parties had broken down at that time. The Tribunal notes at this point that the evidence provided by the applicant herself for the purposes of this review directly contradicts previous statements she made to the Department that she was only aware of the breakdown of the relationship when they informed her in January 2016. After examining the emails provided the Tribunal is in no doubt the relationship had broken down by at least early to mid-2015.
The Tribunal is not persuaded by the applicant’s claim she has provided truthful information to the Department, which did not misrepresent her relationship circumstances. In support of this claim she contends the sponsor voluntarily provided a statutory declaration in December 2015 in support of her Subclass 100 visa application and that she is not responsible for any untruthful and misleading information in this document. The applicant has elsewhere conceded she accepted the sponsor was in a relationship with another woman, from the time she received a threatening email from the sponsor’s current partner in December 2015.
The applicant’s response to the information put to her pursuant to s.359AA indicates the sponsor frequently asked her for money. She concedes these requests frequently came by email, which would appear to suggest they did not often communicate directly face-to-face. In the view of the Tribunal this supports a conclusion they were not residing together in a shared household or maintaining a level of direct communication in a manner which would usually be found between two people in a committed relationship. The applicant claimed that she provided money to the sponsor because they were a married couple, and not so that he would continue to support her visa application. The Tribunal was not persuaded by this claim due to the lack of objective documentary evidence, such as bank account statements and receipts demonstrating what funds were paid to the sponsor, and how any such funds were used. The Tribunal does however consider it significant that the applicant has suggested the sponsor and his daughter attempted to extort $10,000 from her in the late 2014, early 2015 period, which the applicant now assumes was to pay for a visa application by the sponsor’s current partner. The Tribunal considers this to be an indicator the sponsor had established a committed relationship with his current partner some time before December 2014.
Taken at face value, it would seem the sponsor was dishonest in his relationship with the applicant from at least the time he is reported to have first travelled overseas in January 2015 to spend time with his current partner, and on any plausible view, from some months prior to that time, when he commenced communicating with his current partner in May 2014.
The Tribunal has reviewed the post hearing submissions received from the applicant’s representative, which in paragraphs 5.5 through 5.8 submit weight should be predominately given to the applicant’s and sponsor’s relationship prior to the sponsor’s extramarital affair commencing in May 2014. The Tribunal is aware of the Department’s policies, as outlined in PAM 3 and equally aware, as is pointed out by the representative[1] that these policy guidelines are not binding on the Tribunal. The Tribunal acknowledges the flexibility required to assess modern day relationships and relationships where family violence may be present, as discussed in the cases identified by the representative[2] . The Tribunal is not persuaded as to why the period prior to May 2014 should be accorded particular significance when determining the operative date on which a committed relationship between the applicant and sponsor ceased, except if it is deemed this date is the period from which the duplicity and dishonesty of the sponsor in his interactions with the applicant marks a clear point from which there was a lack of the requisite mutual commitment to a shared life together which is a necessary hallmark of a committed and ongoing genuine relationship.
[1] Minister for Immigration and External Affairs v Tagle (1983) 67 FLR 164
[2] Re Minister for Immigration & Multicultural Affairs and Ors; Ex Pane Holland (2001) ALR 504; Cao v Minister for Immigration and Citizenship [2007] FMCA 225
The Tribunal acknowledges that infidelity in a relationship is not in and of itself an indicator of relationship breakdown, however the Tribunal is not persuaded the sponsor’s relationship with his current partner, to whom he has displayed an intention to marry and who was pregnant with his child and whom he has sponsored for a visa to come to Australia, is appropriately described as ‘an affair’ rather than as a new relationship he commenced in May 2014 and which became a committed relationship before the end of that year.
The representative’s submissions with respect to consideration of when the parties’ relationship should be viewed as having concluded do not resolve the concerns the Tribunal has regarding the inconsistencies that have been discussed about the applicant’s evidence regarding the circumstances of her relationship with sponsor and the Tribunal has placed significant weight upon the concern this gives in relation to the reliability of the applicant’s evidence.
It is apparent the sponsor and the applicant ceased cohabiting in or around the time the applicant travelled to China in May 2015, to visit her ill mother and in all likelihood from some time before that date, given the sponsor’s explicit support for his current partner’s visitor visa application, in which he attested to their having lived together since April 2015. Notwithstanding these circumstances, the sponsor provided the applicant a statutory declaration in December 2015, attesting to the genuine nature of their relationship, at a time he was cohabiting with his current partner, who was pregnant with his child. The Tribunal is satisfied the sponsor’s statutory declaration contained information that was false and misleading and has no confidence that evidence allegedly provided by the sponsor about the parties’ relationship can be relied upon.
The Tribunal considers the evidence from the applicant to be at times contradictory and inconsistent and on an overall basis unreliable. The Tribunal has formed a clear view that evidence provided to the Department for the purposes of obtaining the Subclass 100 visa, in the form of statutory declarations by both the applicant and the sponsor, has been fabricated purely for the purpose of obtaining a permanent visa. The conduct of both the applicant and the sponsor in this application, and also of the sponsor's support for his new partner's visa application, displays a disregard for Australian immigration law. Their apparent willingness to swear statutory declarations in support of what they are seeking without regard to the truth of their situation causes the Tribunal to have serious doubts as to their credibility and honesty.
The Tribunal is not satisfied weight can be accorded to declarations or oral evidence from the sponsor’s stepmother as to the relationship between the applicant and sponsor. This is because during the hearing it became apparent the sponsor’s stepmother had no direct contact with the sponsor throughout 2015 and had based her opinion about the parties’ relationship upon information provided to her by the applicant and of her observations of the applicant during phone calls, which she understood to be between the applicant and sponsor. If the lack of contact between the sponsor’s stepmother and the sponsor is taken at face value, the Tribunal is not persuaded the sponsor’s stepmother is in a position to have a well-informed opinion about the parties’ relationship circumstances during the 2015 period and has some concern as why she would have sworn the statutory declaration in December 2015 attesting to the parties maintaining a happy marriage.
The Tribunal is also not satisfied weight can be accorded to declarations or oral evidence from the second named visa applicant that her mother and the sponsor remained in a genuine and ongoing relationship until December 2015, as this claim is not supported by the available credible evidence.
The consistency of the claims by the applicant, second named visa applicant and other witnesses with regard to a genuine relationship between the applicant and sponsor continuing until December 2015 is, in the view of the Tribunal, designed to fit with misleading claims in evidence supporting the applicant’s Subclass 100 visa application and her subsequently family violence claims. In this matter, the Tribunal formed the view the applicant and sponsor are unreliable witnesses, and claims by them or other witnesses should only be given weight where they are supported by credible third-party documentary evidence.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case, the applicant claims the relationship with David Watteau, the visa sponsor, has ceased, and she has been the victim of family violence. She claims the family violence started in February 2014 and has provided evidence supporting the family violence claims.
The Tribunal is required to consider whether the required partner relationship existed prior to the claimed family violence. This is because the provisions of cl.100.221(4) require that the applicant would meet the requirements of subclause (2) or (2A), except that the relationship between the applicant and the sponsoring spouse has ceased. Subclauses (2) and (2A) in cl.100.221 each include the requirement that the applicant ‘is the spouse or de facto partner of the sponsoring partner’. Therefore, when read as a whole, the requirement is that the applicant would have met the requirement of being the partner of the sponsor, except that the relationship has ceased because the applicant or relevant person has suffered family violence.
This approach was approved in the matter of Guven v MIMA [2006] FMCA 311 (Hartnett FM, 24 March 2006) at [22]-[26]. In that case Harnett FM found that when considering the grant of a Subclause 100 Spouse (Residence) visa it was open for the Tribunal to consider whether at any point of time the relationship between the parties could properly be regarded as a spousal relationship within the meaning of the Regulations, and only where it found that such a spousal relationship existed was it required to make a further finding in relation to claims of domestic violence (as it was then described). Accordingly, before assessing whether the applicant has suffered relevant family violence, the Tribunal must assess whether at any point of time the applicant and his sponsor were in a spousal or de facto relationship within the meaning given to it in the Regulations.
In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files. The Tribunal has also considered the oral evidence provided by the applicant and witnesses during the hearing, and submissions received from the applicant ’s representatives following the hearing.
Whether the parties are in a spouse or de facto relationship
Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cl.100.221(2) and (2A) which require, among other things, that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring partner’ is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor, a ‘sponsoring partner’ within the meaning of that term.
‘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) of the Regulations, which is extracted in the attachment to this decision.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship.
The Departmental file contains a copy of a Certificate of Marriage, issued by the Tsim Sha Tsui Marriage registry in Hong Kong, which states the applicant and visa sponsor were married on 31 October 2012. There is no evidence before the Tribunal that calls into dispute the validity of this document.
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 spousal relationship met?
The financial aspects of the relationship
There is no evidence to contradict the applicant’s oral evidence that she and the sponsor at any stage of their relationship had joint ownership of real estate or other major assets, nor joint liabilities, nor any legal obligations owed to each other. There is no credible evidence the parties’ have at any stage pooled financial resources, especially in relation to major financial commitments. As to the basis on which there has been any sharing of day-to-day household expenses, the Tribunal is not satisfied the applicant’s claim that the sponsor contributed to some of the cost of her household is supported by any credible documentary evidence.
The Tribunal finds the parties were not maintaining a shared household from early to mid-2015 and that there is no objective documentary evidence to support the claim that the sponsor made a financial contribution to the applicant’s household from that or any earlier time. The Tribunal has reviewed the electricity bills and rental tenancy lease agreements and related financial documents provided with the visa and review applications. As to the parties' joint residential tenancy agreements for the periods from February 2015. As evidenced by information provided to the Department by the sponsor in relation to his current partner’s visa application, which was put to the applicant pursuant to s.359AA of the Act, the sponsor was clearly in another relationship by February 2015 and residing with her from in or around May 2015. The Tribunal is not satisfied the emails in which the sponsor indicates he paid some of the rent for the Rockingham property demonstrates this actually occurred, as there are no rent receipts or bank records to support this claim. The Tribunal finds there is no credible evidence to support the applicant’s claim that the sponsor sometimes contributed to the payment of expenses related to the rental accommodation at Rockingham, WA. Whilst the parties may have had a joint responsibility for the payment of the rent on this property, it does not necessarily establish they both contributed to costs associated with this property, nor does a rental lease in joint names indicate a genuine spousal relationship.
The applicant gave evidence she has accumulated significant amounts of money from her massage business, which she keeps at home and she has conceded she has remitted significant amounts of money back to China in the past. The Tribunal is not satisfied funds accumulated by the applicant through her massage business can be regarded as a financial asset jointly owned by the applicant and sponsor. The oral evidence from the applicant regarding her attitude towards giving the sponsor access to her personal savings was contradictory, she initially claimed she did not give him access to her savings, because of his drug habit and she could not trust he would not misuse her savings. Shortly after this she claimed she had shared every cent of her earnings with the sponsor from the when she was granted the Subclass 309 visa.
Evidence provided, particularly as shown by their email communication in 2015, is that the applicant periodically transferred significant sums of money to the sponsor. Whilst there are no clear bank records which show all of these transactions, the Tribunal accepts the sponsor periodically transferred funds to the sponsor. It is claimed in these emails that the sponsor was periodically claiming he had financial problems with his business. However, a review of the emails also gives rise to concern that the applicant was paying the sponsor sums of money in order to secure his support for her permanent visa. The applicant gave oral evidence during the hearing that the sponsor and his daughter extorted $10,000 from her in or around January 2015, which she paid as she was his wife, but which she now thinks was used to pay for the sponsor’s current partner’s visa application. The Tribunal is not in a position to know the specific reasons why the applicant was periodically giving the sponsor money. However, it is apparent and the Tribunal finds that funds paid from the applicant to the sponsor were not for the payment of day-to-day household expenses.

After considering the available evidence regarding the financial aspects of the parties’ relationship, the Tribunal finds they do not support the contention that the applicant and sponsor have at any time shared a commitment to a life together in a genuine and continuing relationship.
The nature of the household
The Tribunal has had regard to the nature of the parties' household including the parties' living arrangements, the caring of any children and any sharing of housework.
The Tribunal accepts the sponsor is known to the daughter of the sponsor, who is the second named visa applicant in this matter. The Tribunal accepts the sponsor and second named visa applicant may have spent time together and shared some activities, such as fishing or crabbing. However, there is no credible evidence that the sponsor and applicant shared responsibility for the care and support of either the applicant’s daughter, or the sponsor’s daughter.
As to the living arrangements of the parties, the applicant claims that when she first moved to Australia she was living with the sponsor at his business workshop. The applicant said her daughter came back to Perth in August 2014 and she didn't want her living in a workshop. She claims they then moved to a house in Rockingham. In May 2015, the applicant says the sponsor moved out supposedly to live with his daughter who needed some care at the time. The parties have not lived at the same property since that time and there is no persuasive evidence the sponsor established a shared household with the applicant at the Rockingham address. There is discussion of the parties sharing a household together at various times in the medical reports and declarations provided in support of the family violence claim, which the Tribunal has considered, however, the Tribunal is not satisfied the evidence demonstrates in a convincing way that there was any shared responsibility for housework in households since she moved out of the sponsor’s workshop in or around August 2014.
The social aspects of the relationship
The Tribunal has had regard to the social aspects of the parties' relationship including whether the parties represent themselves to other people as being married to each other, the opinion of the parties' friends and acquaintances about the nature of the relationship and any basis on which the parties plan and undertake joint social activities. This issue is discussed the medical reports and declarations provided in support of the family violence claim, which the Tribunal has considered.
In the original visa application, the parties provided evidence of their social relationship. This included photos of the parties together with the sponsor's family. The sponsor's mother and stepmother also provided statutory declarations attesting to their belief in the relationship. As outlined above the sponsor supported his new partner's visitor visa application in mid- 2015. She came to Australia in April 2015 and according to their statements they were living together and were expecting a baby. The sponsor's mother and stepmother provided sworn statutory declaration evidence in December 2015 that the applicant and the sponsor were still happily married. As is previously discussed in this decision, the Tribunal has placed no weight on the declarations and oral evidence provided by the sponsor’s stepmother, due to her making declarations in support of the genuine nature of the parties’ relationship, despite having no contact with the sponsor throughout 2015.
Given the sponsor was living with his current partner throughout most of 2015 and she was pregnant with his child, this knowledge would have been available to his mother. The only other plausible alternative explanation is that, as was the case with his stepmother, the sponsor had no contact with his mother or other witnesses who have provided support declarations in December 2015 with the applicant’s Subclass 100 visa application, and that the sponsor’s mother and stepmother have provided statutory declarations in a manner which the Tribunal finds gives rise to some concern as to the integrity of evidence provided by the sponsor’s mother, stepmother and other family members who provided declarations in support of the genuine nature of the parties’ relationship. The Department spoke with both women in 2016 after it became apparent the relationship had broken down. They both expressed their disgust at their son's behaviour and their support for the applicant. The Tribunal accepts that some members of the sponsor’s family are supportive of the applicant and her daughter, but is not satisfied this establishes that the relationship between the applicant and sponsor was at any time genuine, or that they had a shared commitment to a life with each other.
The Tribunal has formed the view that the evidence provided by the applicant, sponsor and members of their family about the nature of their relationship is unreliable. The Tribunal is not satisfied the applicant has provided credible evidence to demonstrate they represented themselves to other people as being in a genuine and continuing relationship with each other. The applicant has also failed to demonstrate that she and the sponsor planned and undertook joint social activities together, with the exception of a limited range of situations in which they were photographed with other family members.
After considering the available evidence regarding the social aspects of the parties’ relationship, the Tribunal finds they do not support the contention that the applicant and sponsor have at any time shared a commitment to a life together in a genuine and continuing relationship.
The nature of the persons’ commitment to each other
If the parties' evidence about the beginning of their relationship is to be accepted they met in July 2011 whilst jogging in the same area and moved in with each other in October 2011. The applicant became an unlawful non-citizen when her visa expired in September 2011 and remained so until she was required to depart from Australia in June 2012. She returned to Australia on a visitor visa in February 2013. The parties married on 30 October 2012 in Hong Kong. The sponsor visited the applicant once before they married and then returned to Hong Kong for approximately one month from December 2012 until January 2013.
In the view of this Tribunal, there is no credible evidence that the parties have provided emotional support to each other, or that they have at any stage genuinely regarded their relationship as long term. Whilst there is discussion of the emotional and commitment aspects of the parties’ relationship the reports and declarations provided in support of the family violence claim, which the Tribunal has considered, in the view of the Tribunal there is insufficient probative evidence upon which to have confidence they have lived together in an emotionally supportive, committed relationship for any significant length of time.
Further to this, the Tribunal has significant concerns regarding not only the applicant and the sponsor in their dealings with the Department and the Tribunal but also of their supporting witnesses. The fact that they all swore statutory declarations attesting to the ongoing nature of the parties' relationship in December 2015, when it was clear the parties had not even been living together since April 2015 and that the sponsor was expecting a child with another party at that time, causes the Tribunal to conclude their evidence is not credible and to a large extent is manufactured. Family members of the sponsor have now sworn statutory declarations expressing their support for the applicant. As has been discussed elsewhere in this decision, the Tribunal has determined the evidence provided by the applicant, sponsor, second named applicant and other family members is not credible and as such does not rely on it where it is not supported by objective third party evidence. The way the parties' relationship has progressed and the evidence provided by the applicant to bolster her claims of family violence has only led the Tribunal to conclude the relationship between her and her sponsor was never genuine.
Whilst there was limited documentary evidence supporting the initial decision to grant the Subclass 309 visa, the delegate appeared to rely on other evidence provided such as the statutory declarations of the parties, family members and some evidence of a shared household. For reasons outlined, the Tribunal has determined the parties and their supporting witnesses are not credible. Both the applicant and particularly the sponsor have shown a blatant disregard and level of disrespect for Australian immigration law. For the sponsor to support a new partner on her visitor visa application at the same time as declaring he is in an ongoing relationship with the applicant is self-evidently dishonest. The Tribunal has some difficulty comprehending why he would do so with the same government Department and not expect to be discovered.
The available credible evidence does not demonstrate that the financial aspects of the parties’ relationship were at any time indicative of a couple with a commitment to sharing their lives together in a genuine relationship. There is limited reliable evidence to suggest the nature of the parties’ household arrangements, or that the social aspects of their relationship were at any stage indicative of a couple in a genuine relationship.
The Tribunal has considered the submissions and case law references[3] received from the applicant’s representative in September 2018. The Tribunal accepts that the Regulations do not specify that a genuine spousal relationship must be present immediately before the cessation of the relationship. However, the Tribunal is not persuaded by the contention that a mutual commitment to the relationship to the exclusion of all others need not be present right until the precise moment the relationship breaks down and ceases. As is discussed elsewhere in this decision, whilst accepting that infidelity by one or more parties is not inherently indicative of a non-genuine relationship, the Tribunal is of the view that the legislative criterion for a partner visa emphasis the mutuality of the commitment to a shared life together to the exclusion of others. The Tribunal accepts the evidence that the sponsor formed a relationship with his current partner in or around May 2014 and that they established a household together in or around May 2015, at which time he was describing the nature of their relationship to be that they were engaged to marry. The Tribunal accepts the sponsor’s partner was pregnant with his child in or around December 2015, and that there is no evidence to suggest the sponsor does not remain in a relationship with his current partner.
[3] Re Minister for Immigration & Multicultural Affairs and Ors; Ex parte Holland (2001) 185 ALR 504 at 1161; Cao v Minister for Immigration and Citizenship [2007] FMCA 225 considered Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 44.
Notwithstanding the fact that the sponsor appears to have described his current partner as his fiancée while he was still legally married to the applicant, the Tribunal does not accept the contention his relationship with his current partner was not destructive, from in or around May 2014, to the claim he had a mutual commitment to a shared life with the applicant to the exclusion of others. The case law referred to by the representative discusses how, in the context of modern relationships, infidelity may exist and not put at risk the strength of the marital relationship. The Tribunal does not accept this applies to the circumstances of this case, where it is quite apparent the sponsor has made a strong commitment to his current relationship and there is little to no indication of a similar commitment to a shared life together with the applicant.

100. The Tribunal is not persuaded by the contention that funds were not paid to the sponsor t facilitate the applicant’s pathway to permanent residency in Australia, as the Tribunal is not satisfied the applicant’s claims in relation to this issue can be relied upon. The Tribunal has not made a formal finding as to whether the sponsor’s statutory declaration, which he signed in December 2015 was influenced by harassment from the applicant, as it is satisfied the information contained in this document is false and unreliable and it is not a determinative issue whether it was prepared under the inducement of a financial payment or due to harassment.
101. The Tribunal has noted the representative’s submission regarding the lack of reference to the second named visa applicant intending to migrate to Australia on Form 40SP in the applicant’s initial partner visa application. The Tribunal is satisfied this matter is not strictly relevant to the issues under consideration in this review and has allocated no weight to it.
102. Due to the overall level of dishonesty in the applicant's dealings with the Department and the Tribunal, the Tribunal finds that there is insufficient credible evidence to determine that the parties have ever been in a genuine and continuing spousal relationship. The evidence provided to the Tribunal for the purposes of this application and the claims of family violence is self-serving and, in many instances, directly contradicts that provided earlier when the application was made for the Subclass 100 visa.
103. As noted above, the applicant is now making a claim for family violence as an exception to the requirement of an ongoing relationship. The Tribunal is not in any way seeking to minimize the effects of family violence to parties in a relationship should they occur. However, due to the findings in the preceding paragraphs it is not necessary to determine her claim in that regard. The Tribunal has however review the declarations and reports provided in relation to the family violence claim, in so far as they are relevant to the aspects of the parties’ relationship and consideration of whether they had a mutual commitment to a shared life together to the exclusion of others.
104. The Tribunal is not satisfied that the applicant and her sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others as required under s.5F of the Act, and therefore the applicant does not meet cl.100.221(2). Accordingly, the Tribunal is not satisfied the applicant was the spouse of the sponsor prior to the relationship ceasing and therefore the applicant does not satisfy cl.100.221(4)(b) of the regulations.
Member of family unit – second named visa applicant
105. The primary criteria must be satisfied by at least one member of the family unit. Other members of the family unit who are applicants for a visa need satisfy only the secondary criteria. Member of the family unit is defined in r.1.12 of the Regulations and includes spouse or de facto partner, dependent child and relatives of the family head or spouse of the family head, who does not have a spouse or de facto partner and is usually resident in the family head’s household and is dependent on the family head.
106. As the Tribunal does not accept that the first named visa applicant satisfies the primary criteria, the second named visa applicant is unable to meet the criteria because they are not a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in cl.100.221.
107. For the reasons above, the applicants do not satisfy the criteria for the grant of the visa.
DECISION
108. The Tribunal affirms the decision not to grant the applicants Partner (Migrant) (Class BC) visas.
David Barker
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.