Singh (Migration)

Singh (Migration) [2023] AATA 2967 (30 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sujendra Singh
REPRESENTATIVE:  Dr Etienne de Villiers Hugo
CASE NUMBER:  1812766
HOME AFFAIRS REFERENCE(S):          BCC2016/4237406
MEMBER:Mila Foster
DATE:30 August 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa

Statement made on 30 August 2023 at 4:42pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – relationship ceased and non-judicially determined claim of family violence – validly married in home country – short relationship – minimal and mixed evidence of financial, household and social aspects of relationship and nature of commitment – controlling and coercive behaviour – statutory declarations and psychiatrist’s report – opinion of independent expert – representative’s claim of bias by expert – opinion taken as correct – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 362A
Migration Regulations 1994 (Cth), rr 1.15A, 1.21, 1.23, 1.24, 1.25(2), Schedule 2, cl 820.211, 820.221(3)
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 2 May 2018 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 15 December 2016 on the basis that he was in a spouse relationship with Zeallian Diane Prasad who sponsored him for the visa (the sponsoring partner). At that time, Class UK contained Subclass 820. The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this matter, the primary criteria include cl 820.211 and 820.221 which require that at the time of application and at the time of decision, the applicant is the spouse or de facto partner of the sponsoring partner, unless the relationship has ceased and certain circumstances exist. These circumstances include that the applicant (or a member of the family unit) has suffered family violence committed by the sponsor: cl 820.211(8) or (9) and 820.221(3)(a) and (3)(b)(i). The applicant claims this occurred in his case.
The delegate refused to grant the visa on the basis that the applicant did not meet cl 820.211 because the information and evidence presented was insufficient to demonstrate that the applicant and sponsoring partner (the parties) were ‘spouses’ as defined in the Act.
For the following reasons, the Tribunal has concluded that decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The evidence before the Tribunal includes the Department of Home Affairs file relating to the visa application,[1] Department movement records for the applicant and sponsoring partner, documentary and photographic evidence submitted on review, written submissions made on review by the applicant’s representative, oral evidence and submissions presented at two Tribunal hearings, and an assessment of the applicant’s claims of family violence by an independent expert.
[1] Department file number BCC2016/4237406 (DF).
In the present case, the applicant claims the relationship with the sponsoring partner has ceased, and he was subjected to family violence by the sponsoring partner during their relationship.
Background and Procedural History
The applicant is a 45-year-old Fijian national. The sponsoring partner is a 44-year-old Australian citizen by birth.
The applicant arrived in Australia on a multiple entry visitor visa in May 2016. It is claimed that the parties met in person in Australia on 9 July 2016 and committed to a shared life together by the end of the month. The evidence indicates that the applicant returned to Fiji on 21 August 2016 where the parties married on 6 October 2016. The parties returned to Australia together on 11 October 2016 and the applicant claims they lived together in a spouse relationship until the relationship ended on 13 August 2017 when the sponsoring partner kicked him out of their home.
On 14 August 2017 the sponsoring partner withdrew her sponsorship and subsequently sent the Department a number of emails in which, amongst other things, she claimed that the applicant had not entered their marriage for genuine reasons, had a conviction in Fiji (the applicant had declared no convictions in the visa application form) and had harassed her since leaving the relationship.
On 7 December 2017 the applicant submitted to the Department claims and evidence that he had been subjected to family violence by the sponsoring partner during their relationship.
On 14 February 2018 the Department invited the applicant to provide evidence that the parties had been in a spouse relationship before their relationship ceased. The applicant provided further evidence however, as noted, the application was refused on 2 May 2018.
On 18 July 2018 the applicant submitted various documents in support of his review application many of which had already been provided to the Department in connection with the visa application.
On 15 June 2022 the applicant was informed that his matter had been constituted to a member to conduct the review. He was invited to provide additional evidence or submissions on the issues in the review, namely, whether the parties had been in a genuine spouse relationship and whether he had suffered family violence during the relationship. A request from the applicant’s former representative for more time to provide additional evidence and submissions was granted but none were received by the due date.
On 10 August 2022 the applicant was invited to attend a hearing on 14 October 2022 to give evidence and present arguments about the issues in the review. On 26 September 2022 the applicant appointed his current representative who requested copies of the Department and Tribunal files pursuant to s 362A of the Act. Copies of those files were provided.[2]
[2] The Department file included a non-disclosure certificate and notification purportedly issued under s 376 of the Act on 14 May 2018. The certificate and notification stated that certain folios on the file contained information that should be considered confidential because it was sensitive information given to the Minister or an officer of the Department. That information which is ‘sensitive’ is given to the Minister or an officer of the Department does not impose an obligation of confidence. Hence the certificate and notification is not valid. In any event, the Tribunal may disclose material covered by s 376 to the applicant (or another person) if the Tribunal thinks it is appropriate to do so.
The hearing was subsequently rescheduled to 3 November 2022 to afford the representative more time to present pre-hearing submissions and evidence. Further evidence and a written submission dated 26 October 2022 were received on 27 October 2022.
At the hearing on 3 November 2022 the applicant gave evidence about his relationship with the sponsoring partner and his claims of family violence. The applicant’s sister-in-law, Skye Singh, and mother, Sakuntala Kumari Kharka, also gave evidence at the hearing and the representative made oral submissions.
As will be elaborated upon below the Tribunal was satisfied on the evidence before it that the parties had been in a spouse relationship which ceased on 13 August 2017, and that the applicant had made a non-judicially determined claim of family violence. However, the Tribunal was not satisfied that the applicant had suffered family violence and hence, on 10 March 2023, referred the claim to an independent expert.
The Independent Expert’s assessment and opinion was received on 26 April 2023. The Independent Expert was of the opinion that family violence had not occurred. On 28 April 2023 the applicant was invited to comment upon or respond to the assessment and opinion. In response the Tribunal received additional evidence, written submissions from the representative dated 11 May 2023 and 16 June 2023, and a report from consultant psychologist Tim Watson-Munro dated 13 June 2023. Mr Watson-Munro had interviewed the applicant on 1 and 6 June 2023 and been provided with evidence relating to the applicant’s claim of family violence. He was of the opinion that the applicant had suffered relevant family violence caused by the sponsoring partner. The representative submitted that the Independent Expert opinion was invalid for reasons which included that the Independent Expert had misunderstood the law and had regard to irrelevant information such as the applicant’s criminal conviction in Fiji which resulted in bias. The representative submitted that Mr Watson-Munro’s report supported the contention of bias as Mr Watson-Munro had not been provided information about the applicant’s conviction.
The applicant was invited to and attended a second hearing on 21 July 2023 to give further evidence and present arguments about the validity of the Independent Expert opinion. The representative expanded upon the written submissions he had made about the validity of the Independent Expert’s opinion.
The Tribunal can provide additional information to an independent expert and ask whether it changes their opinion.[3] Mr Watson-Munro’s report states that it cannot be disclosed without his permission. The representative did not consent to Mr Watson-Munro’s report or his submissions of 11 May 2023 and 16 June 2023 to be provided to the Independent Expert for consideration.
[3] Part C, Family Violence Referral Form.
Was there a spouse relationship which ceased?
For the purposes of the Act and Regulations, s 5F provides that a person is a ‘spouse’ of another if the two people are married to each other in a marriage that is recognised as valid under the Act, have a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship is genuine and continuing, and the parties live together or do not live separately and apart on a permanent basis. When considering whether these requirements are satisfied for Partner visa applications, reg 1.15A (which is extracted in the attachment to this decision) requires consideration of all the circumstances of the relationship including the matters specified in that regulation concerning the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons’ commitment to each other.
Were the parties in a valid marriage?
The Tribunal has before it a marriage certificate relating to the parties’ marriage[4] issued by the Government of Fiji and certificates of divorce and dissolution of marriage issued by courts in Australia and Fiji in relation to the parties’ previous marriages.[5] On the basis of this evidence the Tribunal finds that the parties were free to marry when they married each other on 6 October 2016 and that their marriage was valid under the Act.
Financial aspects of the parties’ relationship
[4] DF, f.20.
[5] DF, ff.75,77.
The applicant stated in a statutory declaration he made on 19 March 2018 that he contributed little to household expenditure at the time of application because he did not have work rights and hence was not working. He stated that the parties’ expenses were very small as they lived in a granny flat owned by the sponsoring partner’s parents and their goal was to keep their expenses to a minimum until his visa issues were resolved. This goes some way to explaining the financial aspects of the parties’ relationship at the time of application but there is a lack of credible evidence to support other claims about the financial aspects of the parties’ relationship.
The applicant claimed the sponsoring partner made deposits into his bank account. A statement for a bank account the applicant opened on 1 June 2017 shows one deposit by the sponsoring partner. This is not evidence of the pooling of financial resources in any significant respect. Further, evidence about the parties’ household expenses is not consistent. The sponsoring partner’s parents stated in a letter dated 9 December 2016 that the parties were living in a granny flat on their property and were not being charged rent. The sponsoring partner stated in an affidavit made on 21 November 2017 that she covered the applicant’s rent, food and clothing. At the first hearing the applicant claimed this was not accurate. He said that (once he began working) he contributed $600 towards rent every two weeks, paid for the sponsoring partner’s fuel and sometimes for groceries. He said the sponsoring partner contributed towards the cost of food and sometimes clothes. There is a lack of documentary evidence to support either party’s version of how their household expenses were shared.
On the evidence before the Tribunal the parties did not have joint ownership of real estate or major assets nor any joint liabilities during their relationship. While receipts for various purchases have been presented the documentation does not indicate the parties pooled their financial resources to any noteworthy extent. There is no evidence that the applicant or sponsoring partner owed any legal obligation in respect of the other.
Overall, the Tribunal does not believe it has before it an accurate account of the financial aspects of the parties’ relationship and does not consider the financial aspects of the parties’ relationship, as presented, to be a strong indicator of a spouse relationship.
Nature of the parties’ household
It is not claimed that the parties had joint responsibility for the care and support of any children. It has been consistently claimed that after the parties returned to Australia following their marriage, they lived together in a granny flat on the sponsoring partner’s parents’ property until the relationship ended. This claim is supported by the written evidence from the sponsoring partner’s parents. While the applicant claims the parties’ cohabitation ended when the sponsoring partner kicked him out of their residence, the sponsoring partner has stated that the applicant left. While they differ about how their cohabitation ended, they are consistent about their cohabitation (and their relationship) ending on 13 August 2017. The applicant claims of family violence include that he was forced to undertake all or most of the housework during the parties’ relationship. The Tribunal is not satisfied as to the accuracy of that claim. However, on the basis of the consistent evidence of the parties’ cohabitation, the Tribunal accepts that the parties lived together after they married. This lends some weight to the claim that theirs was a genuine spouse relationship.
Social aspects of the parties’ relationship
The Tribunal has before it a number of statutory declarations from family members of the applicant and the sponsoring partner as well as a close family friend of the sponsoring partner. The statutory declarations indicate that the parties represented themselves to those close to them as being a married couple and that those people were of the opinion that the parties’ relationship was genuine. According to the declarants the parties had engaged in social activities with their families such as dinners and attending parties. However, the applicant subsequently claimed the family violence included the sponsoring partner preventing him from seeing his family. There is little other evidence about the social aspects of the parties’ relationship. There are a few unannotated photographs of the parties and the sponsoring partner referred in her affidavit to the parties vacationing. Submitted on review was a receipt dated 11 August 2017 for a cruise the parties were to have undertaken together from 5 to 9 October 2017.
While the evidence of the social aspects of the parties’ relationship is not compelling the Tribunal is satisfied that close family members of both parties were involved in and/or aware of the early stages of the relationship and there was a degree of recognition of the relationship by close family members of both the applicant and the sponsoring partner which indicates it was a genuine relationship.
The nature of the parties’ commitment
The parties’ relationship was short. It ended about a year after it is claimed they committed to a shared life together and about 10 months after they married. The Tribunal notes that the cruise the parties had planned to go on together would have fallen on their first wedding anniversary which suggests their relationship was genuine and they were committed to each other. It is claimed and the Tribunal has accepted that the parties lived together for the duration of their marriage. There is little evidence of the companionship and emotional support the parties drew from each other. In statutory declarations provided in support of the visa application the parties stated that they were setting up their lives together and were living with the sponsoring partner’s parents until they could afford a place of their own.[6] This indicates that the parties viewed their relationship as a long term one although there is no documentary evidence to indicate that the parties had begun saving towards a place of their own or taken any other steps towards doing so. On review, documentary evidence was provided that the parties had commenced IVF treatment together in June 2017. This is a significant indicator that the parties viewed their relationship as a long term one. The Tribunal is satisfied that the parties had viewed their relationship as a long term one.
Other circumstances
[6] Dated 5 December 2016.
On review the applicant claimed that the parties had not accurately disclosed in the visa application how they had met, that they had in fact met after he placed an ad in a local Fijian newspaper and not as a result of a chance meeting at a shopping centre. Having heard the account of the meeting the applicant gave at hearing the Tribunal accepts that the parties met as a result of an ad the applicant placed in a newspaper. The fact they met in this way does not undermine the claim that their relationship was genuine.
Conclusions
Having regard to the above matters collectively, the Tribunal is satisfied that at the time of application the parties had a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship between them was genuine and continuing, and they were living together. The Tribunal is thus satisfied that a spousal relationship existed at the time of the visa application. Further the Tribunal is satisfied that the parties’ spouse relationship ceased on 13 August 2017 when the parties stopped living together.
Has a claim of family violence been made under 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.[7]
[7] Submission made to Department dated 7 December 2017.
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. At the time the applicant made his claim of family violence the instrument was IMMI12/116 but is now LIN23/026. The instrument specifies that a minimum of two items of evidence must be given and each item of evidence must be a different type of evidence.
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).
On 7 December 2017 the applicant submitted to the Department a statutory declaration he made on 16 November 2016; a statutory declaration made by Steven McDavitt, a clinical psychologist, on 19 September 2017; and a medical report dated 7 September 2018 from Dr Tanveer Ahmed, a consultant psychiatrist.
In his statutory declaration the applicant alleged he was subjected to family violence by his former partner who he named as Zeallian Prasad.[8] The applicant set out the psychologically abusive, coercive and controlling behaviour he claimed he was subjected to by the sponsoring partner which he said led him to fear for his safety and well-being. The Tribunal finds that the statutory declaration is made by the spouse of the alleged perpetrator, namely, the applicant; the statutory declaration sets out the allegation of family violence, and names the person alleged to have committed the family violence. The Tribunal thus finds that statutory declaration from the applicant meets the requirements of reg 1.25(2).
[8] DF, f.112.
The Tribunal finds that Dr Ahmed’s report is evidence of the type referred to in Schedule 1 of LIN23/026 as ‘Medical’ and the statutory declaration of Mr McDavitt is evidence of the type referred to in Schedule 1 of LIN23/026 as ‘Psychologist’.
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.
Has the applicant suffered family violence?
Having considered all of the evidence before it, the Tribunal was not satisfied for the purposes of reg 1.23 that the applicant has suffered relevant family violence. In accordance with that regulation, the Tribunal sought the opinion of an independent expert. As stated above, the Independent Expert provided an opinion on 26 April 2023 that the applicant had not suffered relevant family violence.
The Independent Expert did not accept that the conduct of the sponsoring partner towards the applicant which he said included physical harm, verbal and emotional abuse, and financial control caused the applicant to reasonably fear for or be reasonably apprehensive about his wellbeing or safety.
The representative submits that statements made by the Independent Expert reveal that he had considered the genuineness of the parties’ relationship which was the Tribunal’s task to determine, the Independent Expert failed to understand that threats by the sponsoring partner to end the relationship which would result in the applicant having to return to Fiji could amount to family violence, and the Independent Expert had regard to irrelevant matters such as the applicant’s conviction in Fiji. The Tribunal does not agree with the representative’s contentions. It is the Tribunal’s view that having regard to the Independent Expert’s statements in the context of the entire assessment and opinion they do not disclose a misunderstanding of the definition of relevant family violence or misapplication of the law, that the Independent Expert had regard to irrelevant considerations, was biased or misunderstood his task. The Independent Expert had before him the representative’s submission of 26 October 2022 in which it was submitted that the family violence included threats to end the parties’ relationship and have his visa ‘cancelled’. The Independent Expert did not indicate that such threats could not constitute family violence. The opinion indicates the Independent Expert considered the claim and the applicant’s desire for residency in Australia but ultimately did not accept that the threats caused the applicant to reasonably fear for or be reasonably apprehensive about his wellbeing or safety. The opinion further reveals that the matters which the representative considers irrelevant were considered by the Independent Expert in the context of understanding the development and nature of the parties’ relationship and the reliability of the applicant’s evidence and hence are not, in the Tribunal’s view, irrelevant in assessing the applicant’s claims of family violence. The Tribunal notes that the applicant’s conviction was raised in the representative submission of 26 October 2022 which included submissions and evidence about the applicant’s character. That Mr Watson-Munro formed a different opinion to the Independent Expert without the documentation about the applicant’s conviction does not in the Tribunal’s view indicate that the Independent Expert was biased. The Tribunal is satisfied that the opinion of the Independent Expert is valid.
In conclusion, the Tribunal is satisfied that the opinion of the Independent Expert is authorised by the Regulations, in that it is provided by an independent expert who is a person suitably qualified to make the assessment, is an employee of an organisation specified for this purpose, and that it was properly made. Under reg 1.23 the Tribunal is required to take as correct an independent expert’s opinion, properly made. Accordingly, the Tribunal finds that the applicant is not taken to have suffered family violence committed by the sponsor for reg 1.22.
As the claim of family violence has not been established, the applicant does not meet the requirements of cl 820.221(3) 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 (Temporary) (Class UK) visa.
Mila Foster
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
1.15ASpouse
(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).
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 2967

30 August 2023

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