Singappuli Arachchige (Migration)

Singappuli Arachchige (Migration) [2023] AATA 3261 (8 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Prageeth Jayantha Singappuli Arachchige
REPRESENTATIVE:  Mr Milinda Sanjeewa Balasuriya (MARN: 1801296)
CASE NUMBER:  1925532
HOME AFFAIRS REFERENCE(S):          BCC2016/1586036
MEMBER:Donna Petrovich
DATE:8 September 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) (Subclass 100) visa

Statement made on 08 September 2023 at 9:28am
CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – traditional marriage ceremony in home country and living together in Australia – relationship ceased and non-judicially determined claim of family violence – initial claim of financial issues and later claim of sexualised violence – conflicting statutory declarations by applicant and initial consultation with counsellor/psychotherapist – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.21, 1.23(3), (5), (7), (12), (14), 1.24, 1.25, Schedule 2, cl 100.221(2), (4)(b), (c)(i)
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 Home Affairs on 10 September 2019 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 29 April 2016 on the basis of his relationship with his sponsor. 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 (Cth) (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) and (c)(i) and, in relation to a decision to grant or not to grant the visa made on or after 20 August 2022, cl 100.221(4C)(b) and (c). Cl 100.221(4C) requires the applicant to have been granted their Subclass 309 visa onshore under the COVID-19 concessional arrangements in cl 309.412(2). The applicant claims his relationship ended in circumstances involving domestic violence. But he was granted his subclass 309 visa whilst offshore on 19 October 2016.
Background
The applicant is a forty-seven year old Sri Lankan male. He met the sponsor, Ramaya Malkanthis Perera, whilst visiting the Anuradhapura temple when she was holidaying in Sri Lanka. They exchanged telephone numbers. They talked together via telephone, Viber and facetime.
The sponsor has been married and divorced on two previous occasions. She has two children from her prior relationships.
The applicant is from a rural village in Sri Lanka. At the time of marrying the sponsor, the applicant was divorced from his previous spouse, with a child from that prior marriage.
When the sponsor returned home to Australia, the couple remained in contact, talking via telephone for 8 months. The sponsor visited the applicant twice and they spent holidays together.
On a subsequent visit to Sri Lanka, the applicant proposed to the sponsor at the Anuradhapura temple where they first met. The sponsor accepted the marriage proposal and they were married in a small traditional ceremony with close family in attendance on 9 August 2015.
The sponsor prepared and submitted the applicant’s provisional Partner (subclass 309) visa application which was granted on 19 October 2016. Department of Home Affairs (the Department) records show that the applicant arrived in Australia on 8 February 2017. He commenced living with the sponsor and her two children, in a home owned by the sponsor.
However, on 5 June 2019 the sponsor notified the Department that the couple’s relationship had ceased.
In a letter dated 10 September 2019 the Department advised of its decision to refuse the applicant’s permanent Partner (subclass 100) visa application.
The delegate refused to grant the visa on the basis that the applicant did not meet cl 100.221(2) of the Regulations. This is because the delegate was not satisfied that the applicant, at the time of decision, was the spouse or de facto of the sponsor.
Further, the delegate found that cl. 100.221(4) of the Regulations was not met by the applicant as he did not make claims or supply evidence of domestic violence. The delegate also found that cl. 100.221(4) of the Regulations was not met by the applicant as he did not provide evidence of custody or joint custody of, or access to, or have a residence order or contact order made under the Family Law Act1975 in respect to a child with the sponsor.
The applicant appeared before the Tribunal on 28 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Nabin Dhakal via telephone. Anne Serry did not appear at the hearing.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
The hearing was conducted with an interpreter in the Sinhala language.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case, the applicant claims the relationship with the visa sponsor has ceased and that he has been the victim of alleged family violence.
The applicant submits he has suffered alleged family violence as a result of his former wife’s sexual demands and “unusual sexual desires”. He alleges that the sponsor used sex to invalidate his masculinity.
The Tribunal is satisfied that the couple were in a spousal relationship and that they married in Sri Lanka in a small traditional ceremony, with family and friends in attendance. Although there is little to substantiate the wedding ceremony on 9 August 2015, the couple did live together as husband and wife in the sponsor’s home for a period of two years after the applicant relocated to Australia on 8 February 2017.
The applicant claims to have noticed “a gradual shift in the behaviour of the sponsor, in particular her attitudes to sex and intimacy”. He stated that he initially believed that this was because of unequal sex drives, with the sponsor initiating sex more often, and becoming outwardly frustrated and condescending when he refused to participate due to tiredness.
The applicant told the Tribunal that the sponsor increased pressure around unfamiliar sexual practices, including BDSM, group sex, and swinging. This increased the applicant’s anxiety because of his lack of knowledge of these practices in this context.
This caused the applicant anxiety in relation to his own performance and self-perception.
The applicant claims that he had hoped for a happy and lifelong marriage. He says that he was challenged by the sponsor’s claims that her sexual demands were acceptable practice in Western culture.
The applicant was concerned that his wife was engaged in sex with other partners and found this to be a culturally unconventional marriage (according to established Sri Lankan customs, particularly in rural area where he was from).
The Tribunal has considered the evidence and is satisfied that the couple were married in a traditional ceremony. A translated copy of the Marriage Certificate evidencing their marriage on 29 August 2015 (notarised at the local courthouse by a registered attorney and dated 31 August 2015) appears in the Department file at pages 430 - 432. Photographic evidence of the wedding ceremony, as well as other photographs taken in the two weeks following the wedding, in Sri Lanka, have been provided to the Tribunal.
Based on the evidence the Tribunal is satisfied that the couple were in a partner relationship and that this relationship has ceased.
The issue that arises on the evidence in this case is whether the applicant has suffered family violence committed by the sponsor within the meaning of the Regulations.
Under reg 1.23 of the Regulations, a person is taken to have suffered or committed family violence if there is evidence tested before a court; or the visa application includes a non-judicially determined claim of family violence, and either the Minister (or the Tribunal on review) is satisfied that the alleged victim has suffered relevant family violence or an opinion of an independent expert has been given that the alleged victim has suffered relevant family violence. Relevant family violence is defined in reg 1.21. These regulations, as relevant to this decision, are extracted in the attachment to this decision. The Tribunal notes that the violence, or part of the violence must have occurred during the relationship: reg 1.23(3), (5), (7), (12), (14).
In the present case the applicant is seeking establish family violence on the basis of a non-judicially determined claim of family violence.
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 the Migration (Specification of evidentiary requirements—family violence) Instrument (LIN 23/026) 2023 dated 30 March 2023).
Whilst the applicant has provided a statutory declaration detailing his family violence claims, the Tribunal has not been supplied with other supporting material such as reports or submissions from a treating counsellor, psychologist or other medical practitioner as prescribed by the Regulations.
The Tribunal notes that the applicant did seek assistance from Anne Serry, a counsellor and psychotherapist. Whilst her letter to the Tribunal dated 11 July 2023 confirms that the applicant attended a single session in May 2020, ongoing counselling was not feasible due to language barriers. Consequently, Anne Serry did not make any determination or continue the applicant’s treatment.
Other than the brief letter from Anne Serry, the representative has not provided the Tribunal with other material to substantiate a non -judicial claim of family violence such as police or medical reports, as stipulated by the Regulations.
Nor has evidence of an intervention order been supplied to the Tribunal to evidence the applicant’s family violence claims.
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).
The applicant provided a statutory declaration outlining the couple’s meeting, their courtship via telephone and other social media, and later their marriage in a traditional ceremony in Aranthapura, Sri Lanka, with close friends and family in attendance.
The applicant detailed in the statutory declaration dated 29 April 2020, that the sponsor had placed unusual sexual demands on him. He claims that he became anxious and lost confidence as a result of her demands. He also became increasingly suspicious that his wife was involved with other men, including her ex-husband and another male friend who visited the family home while he was at work.
The applicant told the Tribunal that when he raised his concerns with his wife/sponsor, she became angry and began to treat him differently. The sponsor asked him to leave the house around April/May and he left the house on 30 June 2019. Initially, the applicant thought his wife/sponsor was taking some time for herself, which he believed was customary in Western culture. One of the sponsor’s male friends helped him find some temporary accommodation, and after a short time he found more suitable accommodation through a work friend.
He later became aware that his wife had advised the Department on the 5 June 2019 that she had withdrawn the sponsorship and that their relationship had broken down. At this time the applicant was still in the family home.
However, this evidence varies from a previous statutory declaration sent to the Department in response to correspondence on 24 June 2019. In a prior statutory declaration to the Department, the applicant claimed that he had to borrow funds prior to the lodgement of the application, enabling him to pay off debts. He claimed that both he and the sponsor had money issues. He stated that “there were Several Secrets in Ramya’s life that she had not told [him]…”, that she had “Money Matters bothering her that she had not mentioned to him”, and that he thought this was because of lack of financial planning and ignorance. He also stated that he had financial issues in Sri Lanka as well.
He stated his initial statutory declaration to the Department, “that because of the issues over finances she decided the relationship was over”. He also stated in the previous statutory declaration that the Department allowed for some time for reconciliation with his wife/sponsor.
The applicant also told the Tribunal during the hearing that he had sold his property and assets in Sri Lanka and took out a loan in Australia. The money was used to pay off his wife’s (sponsor’s) substantial credit card debt and also purchase himself a car.
The Tribunal remains unsatisfied that there is sufficient evidence of the applicant’s claims of family or sexual violence perpetrated by the sponsor. The Tribunal takes claims of matters of this nature extremely seriously. However, in this case there is little supporting evidence of this claim. Further, the sponsorship withdrawal on 5 June 2019 (according the applicant’s own initial claim) was as a result of a financial dispute with his wife.
The applicant’s agent wrote to the Tribunal and requested on 20 April 2020 additional time to enable the couple to seek counselling to reconcile their relationship. This seems to be inconsistent with the sponsor’s sponsorship withdrawal and claim that the relationship had ended on the 5 June 2019. Her lack of direct communication with the applicant suggests that it was not the sponsor’s intent to reunite with the applicant and that the relationship had reached its conclusion.
The treating practitioner was Ms Anne Serry from Melbourne Counselling Centre. In documents provided to the Tribunal after the hearing there was a submission from Anne Serry stating that she had only seen the applicant on one occasion. This was an initial consultation and that there was no report or subsequent appointments because of communication difficulties resulting from a language barrier. This was at the instigation of the applicant, who did not seek additional appointments with another Counsellor.
There was no evidence provided of “marital counselling between the applicant and sponsor”. The Tribunal was provided no further evidence that this counselling in fact took place.
The request from the applicant’s representative stated that “there had been certain misunderstandings and that he and his wife were seeking extra time and that they were working to resolve their differences”. It was stated that marriage counselling was due to commence on 6 May 2020.
Subsequently, no further documents or evidence have been provided to the Tribunal that the marriage counselling had taken place. The Tribunal does not believe that the planned marriage counselling took place. The dates provided indicate that the applicant was seen by the counsellor, but due to language and communication issues, no report or follow up treatment resulted from the appointment. Referrals to another practitioner or subsequent psychologist reports have not been provided in evidence to the Tribunal. The Tribunal is of the view that the extension of time requested by the representative (to enable the applicant to seek counselling) may have simply been a delay tactic, not based on any reality of the couple’s possible reconciliation.
The Tribunal was provided evidence at the hearing, that from the time of the couple’s separation, they have not lived together and have not reconciled their marriage.
The applicant at the hearing told the Tribunal that he had gently asked his wife if she was sleeping with her ex-husband and/or another friend (Manoj John) who were often at the house when he came home. He told the Tribunal that he had initially thought that one of the men who was often at the home, was performing home maintenance. But the applicant had become suspicious of the relationship between him and his wife.
The applicant told the Tribunal at the hearing that he questioned his wife about her alleged infidelity. Consequently, she became distant, asked him to leave, and repeatedly asked him to leave during April/May 2019. He initially left the property thinking that this was the best way to give his wife some space and time to think. He thought that this was the way that matters were resolved in Western culture. The male who was often at the property found the applicant temporary accommodation. The applicant has since found more suitable accommodation but has not moved back to the family home. He told the Tribunal that he remained in contact with his ex-wife. But she does not call him very often. Rather, it was the applicant who would call her to check on her well- being. Since their separation, the applicant has visited his wife on five separate occasions.
The Tribunal remains unsatisfied that the evidence provided substantiates the claims of family violence in this case. The applicant has provided conflicting statutory declarations which dated 26 June 2023 and 17 July 2019. The initial document implies that the reason for the relationship breakdown was money related. This was verified at the Tribunal hearing when the applicant provided testimony that he had taken out a loan for $30,000. He used $14,000 to pay off the sponsor’s credit card debt. The remainder of the money was used to pay for a vehicle for himself. The applicant made reference to them both being under financial pressure which was a contributing factor to the relationship breaking down.
In his second statutory declaration the applicant refers to his lack of comfort around his wife’s sexual demands, as well as her possible infidelity with her ex-husband and another man.
The Tribunal is not satisfied that the evidence provided substantiates the claim of family/sexual violence. Also, a claim of financial abuse has not been made in relation to the money used to pay off his then wife’s debt. Nor has documentary evidence been supplied to the Tribunal to substantiate this payment or the borrowing of money.
Whilst sympathetic to the claims of any sexualised family violence, the Tribunal is not satisfied by the evidence provided to support this claim. The Tribunal is not satisfied as the applicant initially claimed that the relationship deteriorated as the couple argued over finances before the sponsor told him that the marriage was over. The applicant in his first statutory declaration claimed that these were “heated arguments” and that his wife had made a “hasty decision”. There is no claim of financial abuse, and no suggestion by the applicant that there has been family violence in the relationship at this point. The Tribunal places little weight in favour of the applicant.

Regardless of this, the sponsor withdrew her sponsorship of the applicant claiming that the relationship had ended. She asked him to leave the family home. The sponsor provided the Department with her withdrawal prior to the applicant leaving the family home. The Tribunal in considering this, finds that in the sponsor’s mind, the relationship was in fact finished prior to him leaving. However, the applicant had at this stage not accepted that this was the case. The Tribunal places little weight in favour of the applicant.
The applicant requested an extension of time to enable him to undertake marriage guidance with his wife, but this did not happen. The applicant appears to have attended an appointment with counsellor, Anne Serry, by himself. But he did not continue with other appointments for himself or with his former wife (the sponsor). The Tribunal places little weight in favour of the applicant.
The Tribunal received submissions from the applicant and his representative, claiming that the applicant experienced sexualised violence because of the sponsor’s higher libido and sexual appetites. This was viewed as unusual and culturally challenging to the applicant. The applicant explained that he did not understand his wife’s demands. He felt humiliated when he came home from work but was too tired to comply with her demands. He was left feeling inadequate and demasculated because of the sponsor’s frustration at his lack of understanding and willingness to participate.
The applicant explained that where he was from was culturally very different to Australia. As a result, he found his wife’s behaviour confronting.
The applicant explained at the hearing that he did not consider her behaviour was family or sexual violence until he discussed this with some friends at work.
The Tribunal in considering the evidence finds that the applicant had initially thought when he first left the family home at his wife’s insistence, that they would reconcile. But his wife had already made up her mind prior to the applicant leaving the family home and had withdrawn her sponsorship.
The Tribunal remains unsatisfied by the evidence presented that the applicant’s perception of his wife’s sexual requests may have been a case of poor communication, cultural differences, misunderstanding and incompatible libido. The Tribunal also finds that the evidence presented highlights financial pressures contributing to the relationship breakdown, but that this was not readily accepted by the applicant. This was evidenced by the time extension request to attend marriage counselling, which his wife did not participate in.
The applicant’s initial claim that they had argued and broken up over finances is accepted by the Tribunal as being probable. The Tribunal also notes that the applicant did not make a claim at this time of family or sexual violence, but only raised this issue much later as a result of discussions with friends.
The applicant seems to have recognised that his relationship with his wife (the sponsor) did not function in a way which was compatible with his traditional or cultural values, particularly in relation to his wife’s attitude to their sexual relationship. Her libido was not compatible with his. The applicant’s later claim that this constituted sexual abuse has not been substantiated by health professionals. Nor has there been any ongoing treatment that has been identified for any ongoing health or mental health issues experienced by the applicant. The issue before the Tribunal is that the applicant had been affected by sexualised violence at the hands of his wife, as suggested by work colleagues. But this has not been confirmed by any treating practitioner.
The Tribunal in no way trivialises the effects of family or sexual violence. But in this case sufficient evidence has not been provided to satisfy the Tribunal that the applicant has in fact been the victim of family or sexual violence.
The applicant provided a statutory declaration on 26 June 2023 outlining his claim of family/sexual violence. This statutory declaration does not correlate with a previous statutory declaration dated 17 July 2017 which referred to issues of financial issues as the causation of the decline of the relationship between the applicant and sponsor. The applicant’s initial statutory declaration does not support his subsequent claim. There has not been a consistency in the evidence provided and the Tribunal also has concerns that the applicant’s claim has changed significantly since his initial submission. Therefore, the Tribunal places little weight in favour of the applicant’s claims in this case.
The Tribunal also received a statement from the representative outlining the basis of the applicants claim. But, the Tribunal places little weight in favour of the applicant due to the lack of objective, corroborative evidence substantiating the family and sexual violence claims.
There was no other relevant evidence in support of the applicant’s claims.
Therefore, the evidence presented does not meet the requirements of reg 1.24. As such, a non-judicially determined claim of family violence has not been made under reg 1.23.
Has the applicant suffered family violence?
Given the above the Tribunal is of the view that the applicant has not established the claim of family violence.
As the applicant’s relationship has not ended in circumstances involving family/domestic violence that occurred during the relationship, the Tribunal finds that at the time of decision, cl. 100.221(4) (c) is not met for the grant of the visa.
The Tribunal also finds that the applicant does not satisfy cl.100.221(4C)(c) of the regulations for the grant of the visa.
There is no evidence before the Tribunal that the applicant meets any of the alternative sub criteria.
As the applicant does not meet an essential criterion for the visa the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) (Subclass 100) visa.
Donna Petrovich
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.

[2023] AATA 3261

8 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice