Pham (Migration)
[2025] ARTA 912
•23 May 2025
Pham (Migration) [2025] ARTA 912 (23 May 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Thu Yen Pham
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2112986
Tribunal:Senior Member M Ison
Place:Melbourne
Date: 23 May 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211(2) of Schedule 2 to the Regulations; and
·cl 820.221(3) of Schedule 2 to the Regulations.
Statement made on 23 May 2025 at 3:31pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine relationship when application made – valid civil ceremony then ‘celebration/function’ with family and friends some months later – date of start of cohabitation and addresses lived at – errors and inconsistencies in applications, statements and utilities accounts – adverse information – allegations of other relationships and contrived marriage – lie detector test supportive but not conclusive – court declaration of parentage of child – relationship ceased and claim of family violence – physical and non-physical abuse – interim intervention order made without sponsor having opportunity to be heard – statutory declaration and statements from specified persons – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), 5F(2), 65, 359A, 376
Family Law Act 1975 (Cth), s 69VA
Administrative Review Tribunal Act 2024 (Cth), s 106(3)
Migration Regulations 1994 (Cth), rr 1.03, 1.15A(3), 1.22, 1.23(4), (5), (12), 1.24(b), 1.25(2), Schedule 2, cls 820.211(1), (2)(a), 820.221(1)(b), (3)(a)(1)(A)CASE
He v MIBP [2017] FCAFC 206Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister on 6 September 2021 to refuse to grant Ms Thu Yen Pham a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Ms Pham applied to the Administrative Appeals Tribunal (AAT) on 25 September 2021 to review the delegate’s decision.
The AAT was abolished, effective on 13 October 2024, by the repeal of the Administrative Appeals Tribunal Act 1975 (Cth) by the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (Transitional Act). On 14 October 2024 the Administrative Review Tribunal (the Tribunal) was established by the Administrative Review Tribunal Act 2024 (Cth) (ART Act).
Under the transitional provisions in the Transitional Act, applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Applicant’s migration history in Australia
Ms Pham is the visa applicant in this review. Ms Pham is a 33-year-old national of Vietnam. Ms Pham is referred to as the applicant in these reasons for decision.
On 19 July 2013 the applicant first arrived in Australia as the holder of a Student (Subclass 573) visa. The applicant’s Student visa had conditions 8105 (work limitation), 8202 (maintain enrolment), 8501 (maintain health insurance), 8516 (continue to satisfy the primary criteria for the visa), 8517 (educate children) and 8533 (address when arrive in Australia) attached from Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations).
On 20 December 2015 the applicant met Mr Minh Huy Luong, who was then 25 years old. Mr Luong was born in Vietnam and at the time of meeting the applicant was an Australian permanent resident. Mr Luong was granted Australian citizenship on 6 July 2023.
On 13 January 2016 the applicant’s Student visa was cancelled for breaching condition 8516 (continue to satisfy the primary criteria for the grant of the visa) by failing to maintain enrolment in a registered course.
On 25 January 2016 the applicant was granted a Bridging E (Subclass 050) visa which had conditions 8101 (no work), 8201 (study and training limitation) and 8506 (change of address) attached from Schedule 8 to the Regulations.
The applicant applied to the AAT to review the decision to cancel her Student visa.
On 4 October 2016 the AAT, differently constituted, set aside the cancellation of the applicant’s Student visa.
On 16 January 2017 the applicant and Mr Luong were married in a marriage the Tribunal accepts as lawful for migration purposes.
On 3 June 2017 the applicant and Mr Luong celebrated their marriage with family and friends in Australia.
On 19 June 2017 the applicant applied for the Partner visa that is the subject of this review. Mr Luong sponsored the applicant’s application for the Partner visa and is referred to in the balance of these reasons for decision as the sponsor. In the Partner visa application, the applicant did not declare any previous relationships but declared that the sponsor had been married once previously, to Ms Hanh My Hong from 4 June 2009 to 22 June 2015. This information was supported by a certified copy of a Federal Circuit Court of Australia (as it then was) divorce order made on 21 May 2015 terminating the marriage on 22 June 2015. The sponsor’s marriage to Ms Hong did not produce any children.
On 20 June 2017 the applicant was granted a Bridging A (Subclass 010) visa associated with her Partner visa application. The applicant’s Bridging A visa did not have any conditions attached from Schedule 8 to the Regulations.
On 30 August 2019 the applicant was granted a Bridging B (Subclass 020) visa. The applicant’s Bridging B visa did not have any conditions attached from Schedule 8 to the Regulations.
On 23 September 2019 the applicant departed Australia, returning on 14 October 2019. The applicant has not departed Australia since.
The applicant continues to hold the Bridging B visa at the time of this decision.
Outcome of this review
For the following reasons, the Tribunal has concluded that the decision to refuse the applicant’s visa application should be set aside.
The primary decision
The applicant provided the Tribunal with a copy of the primary decision.
The applicant applied for the visa on 19 June 2017 on the basis of her relationship with the sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Regulations. The applicant must satisfy the primary criteria for the grant of the visa. There are no secondary applicants in this review.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 because the delegate found that the applicant was not the spouse, as that term is defined in s 5F of the Act, of the sponsor at the time of application for the visa. Put another way, the delegate found that the applicant’s marriage to the sponsor was not genuine.
Tribunal hearing
On 27 May 2024 the Tribunal invited the applicant to appear before it on 24 August 2024 when this review was constituted to a different member. This hearing was cancelled by that member.
The Tribunal as presently constituted invited the applicant to appear before it on 7 October 2024. This hearing was cancelled by the Tribunal following the Department providing additional documents to the Tribunal in relation to this review and issuing a third non-disclosure certificate under s 376 of the Act, details of which are set out in paragraphs 28 to 31 of these reasons for decision.
The applicant appeared before the Tribunal in-person on 2 April 2025 to present her case including by giving evidence and making submissions.
The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review by Ms Daniela Stojanovic of Stojanovic & Associates, who also attended the Tribunal hearing in person. Ms Stojanovic is a registered migration agent. Ms Stojanovic provided a series of pre-hearing submissions that were of assistance to the Tribunal in the conduct of this review. Ms Stojanovic is referred to as the representative in these reasons for decision.
Procedural matters
Non-disclosure certificates issued under s 376 of the Act
The Department file provided to the Tribunal included three certificates issued under s 376 of the Act. The first certificate dated 12 October 2021 was unsigned and the Tribunal does not consider it to have been validly issued or the Tribunal to be bound by it.
Further valid s 376 certificates were issued on 28 May 2024 and 30 August 2024.
On 18 September 2024 the Tribunal wrote the applicant about the three non-disclosure certificates, including providing copies of each certificate, explaining the Tribunal’s preliminary view of their validity or invalidity, explaining the documents in the Department file each certificate applies to and the reasons given for each certificate being issued and inviting the applicant to comment on the two valid certificates.
The Tribunal’s letter explained that the Tribunal did not consider the information in the documents the certificate issued on 28 May 2024 applies to, to be adverse to the applicant’s application. However, the Tribunal’s letter also explained that the Tribunal did consider the information in the documents the certificate issued on 30 August 2024 applies to, to be adverse to the applicant’s application. These documents were three online reports or ‘dob-ins’ made to the Department on 20 June 2019, 27 September 2019 and 15 February 2020.
The Tribunal’s letter stated the Tribunal would write separately to the applicant about the adverse information in the documents the certificate issued on 30 August 2024 applies to. The Tribunal’s letter provided copies of each of the dob-ins with personal identifying information redacted.
359A letter sent to the applicant
On 19 September 2024 the Tribunal sent the applicant a letter to the applicant in accordance with the procedure in s 359A of the Act. The Tribunal’s letter particularised each of the allegations in the three dob-ins emailed to the Department on 20 June 2019, 27 September 2019 and 15 February 2020, explained the relevance of those allegations to the applicant’s review and the consequences for the applicant’s review if the Tribunal relied on the information in each or any of the dob-ins. The Tribunal’s letter again provided copies of each of the dob-ins with personal identifying information redacted.
Applicant’s response
The applicant responded to the Tribunal’s letters dated 18 and 19 September 2024 on 1 October 2024 by providing a statutory declaration declared by the applicant on 19 September 2024. The applicant did not seek copies of the documents the certificate dated 28 May 2024 applies to.
The applicant’s statutory declaration only refers to the Tribunal’s letter dated 18 September 2024 but the Tribunal considers the declarations made by the applicant respond to the particulars of information in both letters.
Pre-hearing information provided to the Tribunal
The representative provided submissions to the Tribunal on behalf of the applicant including on 25 September 2021, 18 September 2024 and 31 September 2024.
After reviewing all of the information provided, the Tribunal was not satisfied it had sufficient information before it to adequately determine the issues in the review in the absence of the applicant pursuant to s 106(3) of the ART Act.
On 12 March 2025 the Tribunal sent the applicant a detailed request for additional information. The Tribunal’s letter also acknowledged that some matters were not issues in the review as follows:
In relation to the discussion of the evidence of having experienced family violence that you will need to provide to the Tribunal set out in the Tribunal’s hearing invitation sent to you on 30 August 2024, the Tribunal now accepts that you have provided evidence of having experienced relevant family violence in accordance with the requirements of the Regulations, including providing two separate items of evidence from Schedule 1 to LIN 23/026.
The Tribunal also accepts, based on the orders of the Federal Circuit and Family Court of Australia made on 24 November 2021, that your ex-husband and sponsor for the Partner visa, Mr Luong, is the father of your daughter born on [date deleted ] 2020.
Amongst many other matters, the Tribunal’s letter asked the applicant to comment on what appeared to the Tribunal to be errors in the documentation provided to the Department and the Tribunal in support of the applicant’s visa application, as follows:
a. Your undated joint statement with your sponsor states that you and the sponsor “legally became husband and wife in January 2017” (at para 10) and that you moved in with your sponsor (and his mother and brother) “after we legally became husband and wife” (at para 11). The Tribunal reads this as stating you moved in after you were married not after your “wedding reception” as you have subsequently clarified. The Tribunal’s interpretation of the joint statement is reinforced by the fact the next paragraph of that statement, paragraph 12, refers to your wedding reception without reference to you moving in after that reception.
b. Your visa application submitted on 19 June 2017 states you had lived at [first shared address] since 19 July 2013, which is the date you arrived in Australia, not the date you moved into that address;
c. Your sponsor in the sponsorship form 40SP stated he had lived at [first shared address] since November 2007;
d. You have clarified the correct date you first met the sponsor which was Tuesday 15 December 2016, not Sunday 20 December 2016 as stated in your visa application and also in the sponsorship form;
e. Your marriage certificate issued on 3 May 2017 incorrectly states your sponsor’s address to be [applicant’s prior address];
f. The letter from InTouch dated 20 May 2020 first referred to your husband as Ms/Mr WONG which on 29 July 2020 was updated to the correct name for your sponsor;
g. The form 1022 Notification of changes in circumstances that you signed on 13 May 2020 includes the statement “I separated from my husband Alech DENG due to Family Violence” and on 29 July 2020 was updated to refer to the sponsor; and
h. The Family Violence Risk Assessment form referred to the perpetrator as Huy Minh Luu and on 29 July 2020 was updated to refer to the sponsor.
The applicant, in a statutory declaration declared on 25 March 2025, responded to these issues as follows (errors in the original):
A) In the Vietnamese culture we do not move in until after the wedding function. In our culture the wedding function is more important than the day you register your marriage which is the same for other cultures also.
B) This statement is not correct.
C) I met my ex husband 13 December 2016 and at this time he was at [first shared address]. I am unaware of the exact period that he was living at this address prior to meeting me. I also don't believe there is relevance to me given I did not know him at that point.
D) This statement is correct.
E) This statement is correct.
F) This statement is correct
G) This was an error by the representative from in touch.
H) This was typo error on part of representative from In touch It should be Huy Minh Luong not Huy Minh Luu
I) I slowly started changing address over to my husbands I preparation for moving in to ensure no mail was going to be sent to the where I was staying after I had left.
The applicant’s response was provided to the Tribunal on 26 March 2025 and attached a number of documents. The Tribunal was not satisfied the applicant’s response enabled the Tribunal to adequately determine the issues in the review in the absence of the applicant. For this reason, the Tribunal hearing on 2 April 2025 proceeded as scheduled.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case, the applicant acknowledges her relationship with the sponsor has ceased and claims she has experienced relevant family violence perpetrated by the sponsor during her married relationship with him. At the time of the primary decision, the delegate only considered whether the applicant was in a genuine married relationship. The delegate did not proceed to assess the applicant’s claims of experiencing relevant family violence because the delegate found the applicant was not in a married relationship, as that term is defined in s 5F of the Act, with the sponsor.
Clauses 820.211 (time of application) and 820.221 (time of decision) of Schedule 2 to the Regulations provide:
820.211
(1) The applicant:
(a) …
(b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9).(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i)is an Australian citizen, an Australian permanent resident or eligible New Zealand citizen…
820.221
(1)In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:
(a) continues to meet the requirements of the applicable subclause; or
(b) meets the requirements of subclause (2) or (3).
…(3) An applicant meets the requirements of this subclause if:
(a) the applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and
(b) either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B) a dependent child of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner; …
Regulation 1.23 sets out when a person is taken to have experienced family violence and when a person is taken to have perpetrated family violence against the first person.
Regulations 1.23(2), (3), (4), (5), (6) and (7) relate to circumstances where there has been a judicial determination of family violence through the granting of an injunction, a protection order or a criminal conviction has been recorded.
The applicant provided the Tribunal with a copy of a Family Violence Interim Intervention Order (FVIIO) issued by the Magistrates’ Court of Victoria at Sunshine on 22 May 2020. The FVIIO names the sponsor as the respondent and the applicant as the protected person. The FVIIO notes the applicant was not served with a copy of the application and summons for the FVIIO, was not at court and did not agree to the Order being made. In short, the Order was made without the sponsor being afforded the opportunity to respond to the allegations made against him.
The Tribunal discussed the FVIIO with the applicant. The applicant could not recall a final order being made but could recall Victoria Police advising her they would be taking the sponsor to court, although the applicant was unaware of whether that had happened or any outcomes if it did happen. The applicant could also not explain the delay between the applicant experiencing the family violence and the FVIIO being made. The Tribunal accepts that the timing of the application for and making of the FVIIO were not matters within the applicant’s control.
Regulations 1.23(4) and (5) provide:
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) the 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.
In the applicant’s circumstances, the Tribunal is not satisfied based on the terms of the FVIIO that it was made after the court had given the sponsor as the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter. For these reasons the FVIIO does not fulfill the requirements of reg 1.23(4).
Regulations 1.23(8), (9), (10), (11), (12), (13) and (14) set out when non-judicially determined family violence has been experienced and perpetrated.
The applicant claims to meet the requirements of reg 1.23(9) which for present purposes requires that the relevant family violence experienced by the applicant must have been perpetrated by the sponsor and the applicant has presented evidence of this in accordance with reg 1.24.
Regulation 1.24 provides:
The evidence mentioned in paragraph 1.23(9)(c) is:
(a) a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims); and
(b) the type and number of items of evidence specified by the Minister by instrument in writing for this paragraph.
The Minister has specified the relevant instrument for the purposes of reg 1.24(b) is LIN 23/026, which requires two items of evidence from the eight types of evidence set out in Schedule 1 to the instrument, noting that each item must be of a different type of evidence: see cl 5 of LIN 23/026
Regulation 1.25 requires that the applicant’s statutory declaration must set out the allegations of family violence, name the perpetrator and confirm who the family violence was directed to if it was not directed toward the applicant.
Regulation 1.23(12) provides that the relevant family violence, or a part of the relevant family violence, must have occurred while the married relationship existed between the applicant as the person who experienced the family violence and the sponsor who perpetrated the family violence.
These regulations relevant to this decision, are extracted in the attachment to this decision.
Was the applicant in a spouse relationship with the sponsor prior to the cessation of their relationship?
As reg 1.23(12) requires that the relevant family violence or part of it must have occurred when the applicant and sponsor were in a married relationship, the first assessment that needs to be undertaken is whether the parties were in a married relationship.
Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse (or de facto partner) of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims she was the spouse of the sponsor who was an Australian permanent resident at the time of their marriage.
‘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 reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided a copy to the Department of a marriage certificate issued by the Registry of Births Deaths and Marriages in Victoria on 3 May 2017 that states the applicant married the sponsor on 16 January 2017. 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 spouse relationship met?
Background
The narrative presented to the Department in support of the visa application and to the Tribunal by the applicant may be summarised as follows:
·The applicant and sponsor met at a party hosted by the applicant’s cousin in December 2015. The party was to celebrate the first birthday of the cousin’s daughter;
·The applicant and sponsor grew up in the same city in Vietnam, had much in common, exchanged contact details at the party and then at the sponsor’s initial initiative stayed in touch after the party;
·The applicant and sponsor first dated on 14 February 2016, being Valentine’s Day;
·On [date deleted] April 2016 the parties celebrated the sponsor’s birthday by the applicant cooking a meal for them. [Detail deleted];
·The sponsor lived with his mother, [Ms A], and younger brother [Mr B]. Shortly after the birthday celebration the sponsor invited the applicant to dinner to meet his family;
·Since then, the sponsor would stay at the applicant’s place sometimes for a night and the applicant would regularly speak to the sponsor’s mother and brother;
·On 1 December 2016 the sponsor gave the applicant a ring and stated it was the first anniversary of their meeting each other and asked the applicant to marry him, to which the applicant replied positively;
·The applicant and sponsor then told their families and were married in a civil ceremony in Melbourne on 16 January 2017;
·The parties opened a joint bank account on 15 February 2017;
·The applicant subsequently moved into the house the sponsor shared with his mother and brother;
·The parties then had a wedding celebration in Melbourne on 3 June 2017 attended by approximately 100 family and friends with the 2 June 2017 reception centre booking confirming payment based on 85 guests attending;
·On 31 October 2019 the applicant suffered a miscarriage;
·On 22 January 2020 the applicant’s relationship with the sponsor ended due to the sponsor allegedly perpetrating family violence against the applicant. The Tribunal’s reference to ‘alleged’ in these circumstances reflects only that the Tribunal did not have the opportunity to take evidence from the sponsor or hear the sponsor’s perspective of the narrative presented to the Tribunal. The use of ‘alleged’ is not an indication of whether the Tribunal does or does not believe the applicant.
·On 22 May 2020 the FVIIO was made, although there is no evidence before the Tribunal that a Family Violence Final Intervention Order was ever made;
·On [date deleted] 2020 the applicant gave birth to a daughter. The applicant declares that the sponsor is the biological father of her daughter; and
·On 24 November 2021 the Federal Circuit and Family Court of Australia declared that the sponsor is the father of the applicant’s daughter.
The delegate of the Minister raised many of the issues raised by the Tribunal listed in paragraph 39 of these reasons for decision in the primary decision. The delegate also had the following additional, what the Tribunal considers material, concerns with the information provided by the applicant in support of her visa application and the dob-in information the Department received:
·The parties 2017 marriage certificate stated the sponsor’s address as the applicant’s rental property when the sponsor did not live with the applicant at the time causing the delegate concern the claim was made to embellish the visa application;
·The parties in the visa application (Form 47SP) and sponsorship form (Form 40SP) both stated they “commenced residing together on 16 January 2017” when the applicant subsequently clarified they did not reside together until after their wedding celebration in Melbourne on 3 June 2017;
·There are electricity and gas bills both addressed to the applicant and sponsor at two different addresses for periods of time that overlap causing the delegate concern that the applicant and sponsor lived separately and not together;
·When the Department raised concerns with the applicant about the three dob-ins the applicant did not respond to the allegation that the sponsor lives with another woman with whom he has a child, causing the delegate concern the applicant and sponsor lived separately prior to the claimed breakdown of their relationship;
·The applicant’s parents in their joint statement stated they were informed in March 2018 that the sponsor’s mother would be visiting Vietnam to discuss the marriage of the sponsor and applicant as the parents had not met face to face. The dob-in information included an allegation, which turned out to be correct, that the real reason for the sponsor’s mother travelling to Vietnam was to make arrangements for the wedding of the sponsor’s younger brother in April 2018, with the Department having information confirming the sponsor’s younger brother travelled to Vietnam in April 2018 with their mother. The delegate considered that the applicant and her parents concealed from the Department the real reason the sponsor’s mother visited Vietnam at the time;
·The dob-ins included allegations the applicant paid for the sponsor and applicant to travel to Vietnam in September – October 2019, the sponsor stayed in a hotel rather than the applicant’s family home and the sponsor returned to Australia 13 days prior to the applicant. Checks of Departmental systems confirmed the last allegation was correct raising concerns for the delegate all of the allegations may be correct;
·The applicant alleged her mother-in-law would call her parents and criticise them for raising a daughter like the applicant, which the delegate found implausible;
·The applicant stated in a response to the Department that she had a debt to her mother-in-law because she demanded money and stated, according to the applicant, that “others would need to pay a lot of money for a sponsorship” indicating to the delegate the marriage of the applicant and sponsor was contrived and involved the payment of money by the applicant to the sponsor;
·The applicant had not provided a birth certificate for her daughter or any deoxyribonucleic acid (DNA) evidence causing the delegate concern that one of the allegations in the dob-ins that the sponsor was not the father the applicant’s daughter, may be true; and
·The delegate’s concerns were added to by the fact the applicant provided no evidence of the sponsor supporting her through her pregnancy and birth prior to their relationship breaking down on 22 October 2020.
The delegate also raised other concerns in the primary decision with the evidence and information before the delegate, but these include concerns the Tribunal does not consider material for present purposes.
The Tribunal discussed some of these concerns with the applicant during the Tribunal hearing and others the Tribunal assessed differently to the delegate based on the applicant’s responses to the Department’s requests for information viewed in the context of all of the information before the Tribunal.
The applicant attributes the error in their marriage certificate of the sponsor living at the applicant’s then address, to being an error by the civil celebrant who completed their paperwork. The Tribunal understands why the delegate did not accept this explanation given the number of errors in documentation provided by the applicant, but the Tribunal finds that explanation more plausible than the delegate’s view the applicant was trying to embellish her visa application.
The applicant did not state in the visa application and the sponsor did not state in the sponsorship form that they “commenced residing together on 16 January 2017”. This is not a question asked in either form at that time.
The visa application asks (at question 57) when the parties first met in person to which the applicant answered (incorrectly) 20 December 2015 and (at question 58) when they committed to a shared life together to the exclusion of all others. It was in response to question 58 that the applicant wrote 16 January 2017, which is the date of their civil wedding. This seems a reasonable response to the Tribunal, although the answer equally could have been 1 December 2016 when the sponsor proposed to the applicant.
The sponsorship form asks the same questions as the visa application form at questions 23 and 24 respectively and the sponsor gave identical answers to the visa applicant.
The Tribunal makes no adverse findings and draws no adverse inferences against the applicant in relation to this concern of the delegate about their date of first living together.
The Tribunal is also not concerned about the overlap of the electricity and gas bills at two addresses. It took the Tribunal a significant amount of time to understand and reconcile what happened with these accounts, but the conclusions the Tribunal came to were:
·The applicant and the sponsor lived at one address with the sponsor’s mother and brother from June 2017 after their wedding celebration in Melbourne;
·The parties had obtained migration advice about obtaining a Partner visa and that advice included a checklist of documents and evidence they should start collecting and collating to provide to the Department in support of the eventual application. The applicant provided the Tribunal with a copy of this checklist provided to the parties in 2017. As a result, the bills were changed into the sponsor and applicant’s names;
·The parties and the sponsor’s mother and brother moved to another address in approximately November 2019 and the electricity and gas bills at that address were also in the parties’ joint names;
·The parties’ obtained their gas and electricity at the first shared address from Dodo;
·The applicant provided correspondence from Dodo, which the Tribunal accepts, that Dodo updated the address for the parties’ electricity and gas accounts differently through an error on Dodo’s part. In summary, when the parties moved from their first shared address to their second shared address, they informed Dodo of their new address to make sure they received the final accounts. Dodo updated the account information for the electricity accounts so that all electricity accounts appear to have been sent to the second address, even though the parties were not living there at the time those accounts were dated. That did not occur with the parties’ gas accounts for the first property. The gas accounts from September 2016 to November 2017 are all addressed to the parties first property. In short, they show the address for the property where the gas was delivered/used at the time. When the applicant subsequently asked for copies of all gas and electricity accounts from Dodo to provide to the Department all the electricity accounts were addressed to the second address. A close reading of those accounts by the Tribunal revealed that they do state the electricity was delivered to the first address the parties were living at, even though the address the accounts were addressed to shows as the second shared address.
The applicant confirmed during the Tribunal hearing that the Tribunal’s understanding of the circumstances of the gas and electricity accounts was correct. As a result, the Tribunal makes no adverse findings and draws no adverse inferences against the applicant in relation to the concern of the delegate those accounts showed the parties were living at separate addresses.
In relation to the delegate’s concern the applicant did not respond directly to the allegations in the dob-ins that the sponsor was living with another woman and had fathered a child with that other woman, the applicant responded directly to those allegations in her statutory declaration declared on 14 August 2024:
17. I also understand that there have been multiple allegations in 2019 and 2020 that I lived with a "supposed boyfriend" at 1 Bank Street Braybrook and that my husband was in a relationship with someone other than me and that he has a child with this person. To the best of my knowledge my ex-husband does not have a child with anyone other than myself and also wish to inform that at all times since meeting my husband we were exclusive to one another and were committed.
18. I have never lived at Bank Street and when googled it appears to be a business address however we note that even though proving that you have been provided with incorrect details the case officer still seems to appear to believe that I had a boyfriend and that my husband had a child with someone else.
19. I believe that you have no evidence before you that my ex-husband has a child with someone else. My first miscarriage was to his child and I was 11 weeks pregnant when he had separated again with his child. I am insulted that the case officer had believed an allegation posed not taking into consideration somebody could genuinely not like me and has made such allegations or may not have like my ex-husband at the time.
The applicant also responded further in her statutory declaration declared on 19 September 2024:
To the best of my knowledge my ex husband only has my daughter and no other child prior to this. If he had a child, I would have known through the Vietnamese community nor is this something you could hide. To the best of my knowledge I was the only person in my ex husbands life.
In support of these submissions on 25 June 2024 the applicant sat and passed a ‘lie detector test’ titled an EyeDetect Lie Detection Examination. In a report of the same date, the administrator of the test, Mr Steven Van Aperen from Australian Polygraph Services International Pty Ltd, explained how the test is conducted, what it monitors and measures and the limitations of the test.
The applicant declared a statutory declaration at the start of the test stating:
I have never been involved in any plan or scheme matching people for money to obtain a partner or any other type of Australian visa; and
I, or anyone else I know, has ever paid my sponsor money or promised money to my sponsor for a fake marriage or to obtain permanent residency for myself or anyone else.
The results the applicant achieved were (emphasis in the original):
EyeDetect Result: Is the information in your signed declaration truthful? (R1): 99 of 100 (Truthful)
The Tribunal asked for submissions from the representative about the probative value of the test. In a two page submission dated 26 March 2025 the representative helpfully explained the factors that the Tribunal should consider to determine the probative value of a report. However, the representative did not make any submissions about the specific probative value of the lie detection test the applicant participated in.
In the statutory declaration declared on 25 March 2025, the applicant declared (errors in the original):
Please also note the test was undertaken to prove to your I am an honest and credible person. I am a single mother and for me every cent counts however it appears to be my word against some anonymous person word and proving to you that my relationship was genuine. As I am being honest of course my results would show that I was telling the truth. This report cost me approximately $1900 and I have nothing to hide so did it to prove I am telling the truth.
In her oral submissions to the Tribunal during the Tribunal hearing, the representative submitted that she does not accept as clients visa applicants who she believes may not be genuine. The representative submitted that when she first met with the applicant she asked the applicant that if she took a lie detector test would it show she was telling the truth and the applicant replied in the affirmative. The representative submitted the applicant is a single mother who is not in a strong financial position and her commitment to proving she is telling the truth, including by taking the lie detector test, convinced the representative that the applicant is genuine. The representative submitted she was also impressed that each time she asked the applicant for documents the applicant would go and find or obtain them.
The Tribunal finds there is considerable force to the claims of the applicant and the submissions of the representative in this regard.
The report states:
In screening tests, EyeDetect has an accuracy of 88-91% in correctly classifying examinees as deceptive or credible. In diagnostic tests, the accuracy is 87-89%. As discussed in scientific literature, all lie detection solutions have accuracy rates of less than 100%. If you believe these test results are incorrect, Converus recommends using a secondary method to assess the credibility of the examinee. Other methods such as a polygraph exam, an interview or a drug test, where applicable, can be used to corroborate the results of the EyeDetect test. Depending on the rate of accuracy of the secondary method, the confidence in the outcome of the test results could be as high as 97-99%.
The Tribunal does not consider the lie detection report provides or constitutes conclusive evidence that the applicant is telling the truth that she has not been involved in any payment for visa scheme, although the Tribunal finds the report result supports this conclusion. The Tribunal gives the report significant weight.
Of greater value in the particular circumstances of this review, consistent with the submissions of the representative, was the commitment of the applicant to respond meaningfully to the allegations made against her. The applicant is a single mother who paid a reduced application for review fee to the Tribunal based on her financial circumstances. The Tribunal accepts the applicant has experienced financial hardship but despite this has managed to pay for both the representative’s services and then the not insignificant cost of the lie detection examination and report.
In the applicant’s circumstances the Tribunal accepts the evidence before it that the applicant has not paid or been involved in the payment of any money to the sponsor in return for the applicant obtaining permanent residence in Australia by being granted a Partner visa. The Tribunal gives this finding great weight.
The Department only became aware of the primary purpose of the visit of the sponsor’s mother to Vietnam in April 2018 and related allegations through the dob-ins. The Tribunal accepts that a person can have multiple purposes for a trip and those purposes can have different importance the person. The Tribunal did not find the applicant’s explanations about the non-disclosure of the sponsor’s brother’s wedding in Vietnam, the applicant and sponsor not staying at her family home in Vietnam in 2019, the applicant’s father paying for the parties’ 2019 trip to Vietnam and the sponsor returning to Australia two weeks into the applicant’s four week stay in Vietnam to be the applicant’s most convincing evidence to the Tribunal. However, the Tribunal did not find the applicant’s explanations to be implausible or to lack credibility. The Tribunal does not attach the significance to these matters that the delegate did and in fact the Tribunal makes no adverse findings and draws no adverse inferences against the applicant in relation to these concerns of the delegate.
In relation to the delegate’s concerns about a lack of DNA evidence to determine if the sponsor is the biological father of the applicant’s daughter, the Tribunal notes that the Federal Circuit and Family Court of Australia ordered on 24 November 2021:
IT IS DECLARED pursuant to s.69VA of the Family Law Act 1975 that HUY MINH LUONG born [date deleted] 1990 is the father of the child [name deleted] born [date deleted] 2020 for the purposes of all laws of the Commonwealth.
The Family Law Act 1975 (Cth) provides at s 69VA:
Declarations of parentage
As well as deciding, after receiving evidence, the issue of the parentage of a child for the purposes of proceedings, the court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.
This causes the Tribunal to accept that the sponsor is the father of the applicant’s daughter. The order goes on to make orders that the applicant will have sole parental responsibility for her daughter and the sponsor can communicate with and spend time with his daughter as the applicant agrees. The order notes that the sponsor did not appear before the Court.
In relation to the delegate’s concern that there was no evidence of the sponsor supporting the applicant through her pregnancy and birth, this concern was based on the delegate’s view the applicant’s marriage to the sponsor ended on 22 October 2020. The Tribunal accepts the applicant’s evidence that this is an error by the delegate and her relationship with the sponsor ended on 22 January 2020 after the applicant was allegedly assaulted by the sponsor on that date.
In relation to considering the matters in reg 1.15A(3), which are not criteria for the grant of a Partner visa, the Tribunal has been provided with considerably more evidence about the parties’ relationship than was before the delegate.
The Tribunal has been provided with a complete set of bank account statements for the bank account in the parties’ joint names. After discussing the work history of the applicant and sponsor with the applicant, the Tribunal is satisfied that the bank account in joint names was used by the parties during their relationship to genuinely pool their financial resources and share day-to-day household expenses. The applicant’s salary, when she was working, was paid directly into the joint account. The sponsor, whose work history was far less stable than the applicant’s and who, on the applicant’s evidence was paid cash for the work he did undertake, made regular cash deposits into the account. The Tribunal was able to see and track the consistent payment of utilities and other household expenditure from this account.
Similarly, the Tribunal was provided with more evidence of the nature of the household of the parties, including a full shared address history. The applicant was able to explain to the Tribunal’s satisfaction why there was less documentation available in relation to the accommodation the applicant and sponsor moved into separate (for the first time) from the sponsor’s family in Australia in November 2019.
In addition to the comprehensive utility accounts and bank statements for the bank account in the parties’ joint names, the applicant provided the following documents as evidence of the parties’ joint address information from July 2018:
·The statutory declaration of Acting Sergeant Dhindsa of Victoria Police declared on 10 September 2024 states the officer attended the parties third shared address on 22 January 2020;
·A Brimbank City Council Penalty Reminder Notice dated 9 May 2019 addressed to the sponsor at the parties’ second shared address;
·An invoice from Mattress Factory Direct in parties’ names dated 4 May 2019 addressed to the parties at their second shared address;
·A letter from SunSuper dated 12 April 2019 addressed to the sponsor at the parties’ second shared address;
·A dental receipt dated 6 April 2019 in the applicant’s name is addressed to the parties’ second shared address;
·A letter from Tam Hanh Hoang, landlord, dated 1 August 2018 confirms the parties’ second shared address; and
·An Optus bill in the applicant’s name dated 18 July 2018 is addressed to the parties’ second shared address.
The applicant’s statutory declaration declared on 25 March 2025 declared that the applicant and sponsor wanted to use Dodo as their electricity and gas provider, which did not make sense to the Tribunal because the letter from the landlord stated all utility bills were in the landlord’s name. The applicant told the Tribunal the landlord would not allow them to arrange their own utilities so that must have been an error in her statutory declaration. The representative submitted after checking her notes that she had made an error in that part of the applicant’s statutory declaration and explained how the error occurred. The Tribunal accepts this explanation.
There was also an error in the commencement date and the term of the lease for the second shared address and the sponsor’s mother and brother were not listed as tenants despite living there with the applicant and sponsor. The applicant could not explain the first error but stated their landlord was Vietnamese and only required the applicant and sponsor to sign the lease. The Tribunal did not find these explanations convincing.
On the evidence before the Tribunal the Tribunal finds that the parties established a household together on or shortly after their wedding celebration on 3 June 2017. Thereafter, the parties lived together as spouses with the sponsor’s mother and younger brother at two addresses until November 2019. The parties established a household without the sponsor’s mother and brother at a third address in November 2019 and the sponsor left that address on 22 January 2020. Even then the parties rented a room together and shared that house with the landlord’s family and did not ever live together just on their own.
As the representative acknowledged in her closing submissions the evidence of the social aspects of the parties’ relationship is not strong. The Tribunal accepts that the parties travelled together to Vietnam in September – October 2019 as there are many photos of this trip with the applicant’s family and friends. This included a fully annotated set of the photos resubmitted to the Tribunal. The fact that the sponsor only spent half the planned trip in Vietnam before returning to Australia lessens the weight the Tribunal gives this evidence, particularly as the Tribunal did not find the applicant’s explanation for this circumstance – that the sponsor returned to appease the demands of his mother who did not want him to meet with his father in Vietnam – to be convincing.
The Tribunal was provided the following photographic evidence of the parties’ three year relationship:
·A set of 30 photos of the parties’ 3 June 2017 wedding reception and of some social occasions;
·A set of 10 photos or screen captures of the parties’ social media and also some of their friend’s social media which include photos of the parties’ 3 June 2017 wedding reception;
·A set of 34 photos submitted to the Department on 5 June 2017;
·A set of 15 photos of the applicant captioned as prayers for the applicant’s deceased uncle with one photo including a woman who looks like the applicant’s mother and two other photos include two other people, one of whom looks like a monk;
·A single photo of the applicant and sponsor’s mothers together in Vietnam in April 2018; and
·A set of 13 photos of the parties’ September to October 2019 trip to Vietnam.
100. These photos gave the Tribunal greater insight into the parties’ relationship than the information the delegate had and causes the Tribunal to find the parties relationship was accepted by their families and friends and the parties represented themselves to others as being married.
101. The Tribunal found the applicant’s explanations about the following circumstances of the social aspects of the parties’ relationship to be unconvincing:
·The applicant and sponsor not attending the wedding of the sponsor’s brother in Vietnam in April 2018;
·The applicant and sponsor not having a wedding celebration in Vietnam despite the applicant’s parents stating they would be doing so in the parents’ joint statutory declaration declared in Vietnam on 16 August 2019;
·The lack of photos of the parties’ relationship after 2017, apart from photos of their 2019 trip to Vietnam.
102. It is often notoriously difficult for one party to a relationship that has broken down due to family violence being perpetrated to be able to demonstrate the nature of their commitment to one another. In the present case, the parties were married for three years from January 2017 to their separation in January 2020, lived together for two and a half years from June 2017 although only approximately two months of their cohabitation was without the sponsor’s mother and brother but as noted above, even then they shared their accommodation with the landlord’s family.
103. The three-year marriage of the parties means they were in a ‘long-term partner relationship’ as that term is defined in reg 1.03.
104. The applicant provided a letter from Dr Tin Aung of the Maidstone Family Clinic dated 19 June 2024 stating:
Ms Thu Yen Pham has been a patient of this clinic from 01/2019.
Her husband Minh Huy Luong was listed as her emergency contact from 01/2019 to 01/2020.
As per our record, we confirm that Ms Pham had a miscarriage on 31/10/2019.
105. The Tribunal accepts this evidence. The Tribunal discussed with the applicant the circumstances of her miscarriage, which the applicant attributes in part to the pressures the sponsor’s mother placed on their relationship and the applicant in particular, and how the sponsor supported the applicant at this time, given it was so close to the eventual breakdown of their marriage.
106. The Tribunal also discussed with the applicant the circumstances of the applicant becoming pregnant with her daughter only weeks after her miscarriage and the sponsor’s reaction to this news. The applicant demonstrated considerable insight into the dynamics of her relationship with her husband and the difficult position his mother placed the sponsor in by trying, according to the applicant, to make him choose between prioritising the wishes of her (his mother) over those of the applicant on a frequent basis.
107. This causes the Tribunal to accept that the applicant and sponsor were committed to each other as spouses during their marriage until they separated on 22 January 2020.
Conclusion on whether the parties were in a married relationship at the time of application for the visa
108. Based on all of the evidence before the Tribunal, the Tribunal finds that from the date of the applicant’s marriage to the sponsor on 16 January 2017 to their separation on 22 January 2020 the applicant and sponsor were:
·Married to each other under a marriage that is valid for the purpose of the Act as required by s 5F(2)(a) of the Act;
·Mutually committed to a shared life as a married couple to the exclusion of all others as required by s 5F(2)(b) of the Act;
·In a relationship that was genuine and continuing as required by s 5F(2)(c) of the Act; and
·They lived together as required by s 5F(2)(d) of the Act.
109. On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2) are met at the time the visa application was made.
Has a claim of family violence been made under the regulations?
Under reg 1.23, a visa application is taken to include a non-judicially determined claim of family violence where either a joint undertaking to a court has been made by the alleged victim and alleged perpetrator or evidence in accordance with reg 1.24 is provided.
The applicant in this case is seeking to rely on evidence referred to in reg 1.24 – namely, a statutory declaration under reg 1.25 and evidence of a type and number specified by the Minister for these purposes (see LIN 23/026).
112. A statutory declaration under reg 1.25 must be made by the spouse or partner of the alleged perpetrator. If the alleged victim is the spouse or partner, the statutory declaration must set out the allegation of family violence, name the person alleged to have committed the relevant family violence and if the conduct was not directed at the spouse or partner, name the person to whom it is directed and their relationship with the deponent: reg 1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: reg 1.25(3).
113. The applicant wrote a detailed hand-written statement on Victoria Police stationery titled ‘Victoria Police Initial Action Pad VP Form 502’. This handwritten statement was not a statutory declaration in either form or substance. It was not signed or dated by the applicant or any Victoria Police officer.
114. The applicant declared a statutory declaration on 19 September 2024. In that statutory declaration the applicant declares she has experienced family violence and names the sponsor as the person who perpetrated that family violence. The applicant refers to the police involvement in her allegation of experiencing family violence, which includes the statement the applicant made at the time setting out in detail her allegations of the family violence the applicant alleges the sponsor perpetrated against her. The Tribunal is satisfied the information the applicant provided to Victoria Police is incorporated by reference into her statutory declaration. The Tribunal finds that the statutory declaration of the applicant declared on 19 September 2024 meets the requirements of reg 1.25.
115. The applicant provided the following documents in support of her claim of having experienced relevant family violence:
·Letter from Ms Huong Dinh Nguyen, Domestic Violence Cultural and Support and Advocacy Worker at In Touch Multicultural Centre Against Family Violence dated 13 September 2021; and
·Statutory declaration from Acting Sergeant Navdeep Dhindsa, Victoria Police, declared on 10 September 2024.
116. The Tribunal is satisfied Ms Nguyen’s letter states the applicant has made a claim of family violence, expresses Ms Nguyen’s opinion that the applicant’s claims are consistent with her having experienced family violence and identifies the sponsor as the perpetrator of that family violence. The Tribunal is satisfied from reading the letter of Ms Nguyen that she was acting in her professional capacity when she wrote the letter and her letter includes the details required by clause 4 of LIN 23/026 and reg 1.24(b).
117. The Tribunal finds the report of Ms Nguyen meets the requirements of LIN 23/026 as evidence of non-judicially determined family violence.
118. The applicant also provided a statutory declaration declared by Acting Sergeant Dhindsa of Victoria Police. Acting Sergeant Dhindsa’s declaration states the applicant has made a report of having experienced family violence, expresses his opinion that the applicant’s claims are consistent with her having experienced family violence and identifies the sponsor as the alleged perpetrator of that family violence. Acting Sergeant Dhindsa’s statutory declaration did not include an address or telephone number but did include the police station Acting Sergeant Dhindsa is attached to, for which the Tribunal is satisfied a relevant address and telephone number is publicly known and available information.
119. The Tribunal finds that Acting Sergeant Dhindsa’s declaration include the details required by clause 4 of LIN 23/026 and reg 1.24(b). The Tribunal finds the declaration of Acting Sergeant Dhindsa meets the requirements of LIN 23/026 as evidence of non-judicially determined family violence.
Therefore, the evidence presented meets the requirements of reg 1.24. As such, a non-judicially determined claim of family violence has been made under reg 1.23.
121. Has the applicant suffered family violence?
122. The applicant claims that she experienced family violence perpetrated by the sponsor from early 2019 until their separation on 22 January 2020.
123. The applicant’s experiences of family violence are revealed in her detailed witness statement provided to Victoria Police on 22 January 2020, the photos of the applicant and her injuries at the time they attended the shared premises of the applicant and sponsor on 22 January 2020, the letter of a Domestic Violence Cultural Support and Advocacy Worker after a referral of the applicant from Sunshine hospital and most importantly in the Tribunal’s view, the statutory declaration of a serving senior officer of Victoria Police.
124. The Tribunal attaches great significance to the statutory declaration of Acting Sergeant Dhindsa because the officer went to the trouble of declaring that statutory declaration for the applicant more than four and half years after attending upon her in January 2020. Acting Sergeant Dhindsa’s statutory declaration was supported by photos of the applicant taken on 22 January 2020, which add considerable weight to Acting Sergeant Dhindsa’s recollections in his statutory declaration.
125. The Tribunal has chosen not to reproduce in these reasons the details of the allegations made by the applicant and the witnesses on the applicant’s behalf about the family violence the sponsor perpetrated against the applicant other than to record that it included physical and non-physical forms of abuse and violence.
Conclusions on whether the applicant experienced relevant family violence
126. Having considered all of the evidence before it, the Tribunal is satisfied, for the purposes of reg 1.23, that the applicant has experienced family violence perpetrated by the sponsor that occurred whilst the parties were in a married relationship.
127. Accordingly, the Tribunal finds that the applicant is taken to have experienced relevant family violence perpetrated by the sponsor for the purposes of reg 1.22.
Overall conclusion
128. Given the findings above, the appropriate course is to set aside the decision under review and remit the application for the visa to the Minister to consider the remaining criteria for the grant of a Subclass 820 (Partner) visa.
DECISION
129. The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211(2) of Schedule 2 to the Regulations; and
·cl 820.221(3) of Schedule 2 to the Regulations.
Dates of hearing: 2 April 2025
Representative for the Applicant: Ms Danijela Stojanovic, Stojanovic & Associates
ATTACHMENT - Extracts from the Migration Regulations 1994
1.15A Spouse
(1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.
(2)If the Minister is considering an application for:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3)The matters for subregulation (2) are:
(a)the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day to day household expenses; and
(b)the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married to each other; and
(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
Family violence provisions
1.21Interpretation
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.
… violence includes a threat of violence. …
1.23When is a person taken to have suffered or committed family violence?
(1)For the purposes of these Regulations:
(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.
NoteSchedule 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.
0