Maolee (Migration)

This matter concerned an application for review of a decision to refuse a Partner (Residence) (Class BS) visa, subclass 801. The applicant, a citizen of Thailand, had initially arrived in Australia on a subclass 300 visa based on a relationship with Mr Arthur Stefanopoulos. That relationship failed, and she subsequently met and married Mr Darren, the sponsor for the visa under review. The sponsor later informed the Department that his relationship with the applicant had broken down. The applicant then claimed to be a victim of family violence. The review was heard by Senior Member Ann Duffield of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had suffered family violence committed by the sponsor, within the meaning of the Migration Regulations 1994. This was crucial because the applicant's relationship with the sponsor had ceased, and the family violence provisions provided an alternative pathway to meeting the visa requirements. The Tribunal was required to determine if the evidence provided by the applicant met the specific evidentiary requirements for establishing a non-judicially determined claim of family violence under the Regulations.

The Tribunal accepted that the applicant and sponsor had been in a partner relationship which had since ceased. However, the applicant's claim of family violence was based on a non-judicially determined claim. Regulation 1.23 outlines the circumstances in which family violence is taken to have been suffered or committed, including provisions for non-judicially determined claims where evidence in accordance with regulation 1.24 is provided. The applicant submitted a statutory declaration from herself, stating she felt scared, threatened, confused, and disrespected, and had been used emotionally, physically, and financially, but did not claim physical abuse and believed she needed "hard evidence" to make a complaint. She also submitted a statutory declaration from Mr Bryce Madejewski, who stated he believed her account of abuse and explained her lack of formal complaint due to being in a strange country. The Tribunal found that Mr Madejewski was not a competent person as defined by the Regulations and that he did not name the alleged perpetrator. Crucially, the applicant had been repeatedly requested by the Department and the Tribunal to provide evidence supporting her family violence claims, including specific types of acceptable evidence, but failed to do so.

Given the applicant's failure to establish a claim of family violence in accordance with the Regulations, the Tribunal concluded that she did not meet the requirements of clause 801.221(6)(b) and (c) for the grant of the visa. As an essential criterion for the visa was not met, the Tribunal affirmed the decision under review.