Phosit (Migration)

This matter concerned an application for a Partner (Migrant) (Class BC) visa, Subclass 100, brought by an applicant who alleged that her relationship with the sponsor had ceased and that she had suffered family violence committed by the sponsor. The Tribunal was required to determine whether the applicant had met the criteria for the visa, specifically in relation to the cessation of the relationship and the occurrence of family violence.

The primary legal issue before the Tribunal was whether the applicant had established that she had suffered family violence committed by the sponsor, within the meaning of the Migration Regulations 1994. This involved considering the definition of "relevant family violence" and the evidentiary requirements for establishing a non-judicially determined claim of family violence under the Regulations, including the role of statutory declarations and independent expert opinions. The Tribunal also had to be satisfied that the violence, or part of it, occurred during the existence of the de facto relationship.

The Tribunal found that the applicant and sponsor were in a genuine de facto relationship which had since ceased. Crucially, the Tribunal was satisfied that the applicant had suffered relevant family violence committed by the sponsor, and that this violence, or part of it, occurred during the de facto relationship. The Tribunal applied the provisions of the Migration Regulations, particularly r.1.23, which outlines the circumstances under which a person is taken to have suffered or committed family violence, including through non-judicially determined claims supported by appropriate evidence.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria specified in cl.100.221(4)(b) and (c) of Schedule 2 to the Regulations. This meant the Minister was to proceed to consider the remaining criteria for the grant of the Subclass 100 visa.