PHAM (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, subclass 801, by an applicant who claimed the relationship with the sponsor had ceased due to family violence. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant had established a claim of family violence in accordance with the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant had satisfied the criteria for establishing family violence under regulation 1.23 of the Migration Regulations 1994, specifically in the context of a non-judicially determined claim. This involved assessing the validity and sufficiency of the evidence presented, including a statutory declaration made by the applicant.

The Tribunal reasoned that for a non-judicially determined claim of family violence to be established under regulation 1.23(9), the applicant must present evidence in accordance with regulation 1.24. The applicant sought to rely on a statutory declaration, but the Tribunal found this declaration to be invalid because it was completed by the applicant herself with assistance from her representative, rather than being a declaration made by the alleged victim (the applicant) setting out the allegations and naming the perpetrator as required by regulation 1.25(2). Furthermore, the applicant had departed Australia before the claimed statutory declaration was made. As the applicant did not meet the requirements for establishing family violence, she did not satisfy the criteria for the visa grant.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Partner (Residence) (Class BS) visa.