Singh (Migration)

[2022] AATA 2866

Singh (Migration) [2022] AATA 2866 (31 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nishan Singh

REPRESENTATIVE:  David Kenneth Brooks (MARN: 1789548)

CASE NUMBER:  2110184

HOME AFFAIRS REFERENCE(S):          CLF2013/277315

MEMBER:Deputy President J.L Redfern PSM

DATE:31 August 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

·             cl 820.211(2)(d)(ii);

·             cl 820.211(1); and

·             cl 820.221(3)

of Schedule 2 to the Regulations.

Statement made on 31 August 2022 at 11:18am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Federal Court remittal – schedule 3 criteria – compelling reasons for not applying criteria – relationship ceased – genuine spousal relationship prior to cessation of relationship – non-judicially determined claim of family violence – credibility of applicant’s claims – independent expert’s opinion – relevant family violence occurred during the relationship – adverse relationship information – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.15A, 1.21, 1.22, 1.23, 1.24, 1.25, Schedule 2 – cls 820.211(1), 820.211(2), 820.211(2)(ii), 820.211(2)(d), 820.211(2)(d)(ii), 820.221(1), 820.221(3), Schedule 3, criterion 3001, 3003, 3004

CASES
Babicci v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 285
He v Minister for Immigration and Border Protection [2017] FCAFC 206
MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50
Singh v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs [2021] FCA 755
Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32

STATEMENT OF DECISION AND REASONS

INTRODUCTION

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 November 2013 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, Mr Nishan Singh, applied for the visa on 12 June 2012 on the basis of his relationship with his sponsor, [Ms A] (the sponsor). 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).

3. The visa was refused because the delegate was not satisfied that the applicant and the sponsor were in a married relationship and that the applicant was the spouse or de facto partner of the sponsor, as required for the purposes of the Act, even though they were legally married on 5 April 2012.

4. The review came before the Tribunal for hearing on 29 May 2015 and on 2 July 2015, the Tribunal affirmed the decision under review. The applicant sought judicial review of this decision and on [Date] the matter was remitted for re-consideration by consent. The Tribunal, differently constituted on each occasion, reconsidered the matter on two further occasions, after having affirmed the decision under review and being remitted for reconsideration following judicial review by the applicant. On the last occasion, the Federal Court of Australia set aside the decision on the basis that the Tribunal did not deal with four witnesses who gave evidence about the social aspects of the relationship and was critical of the errors and delay by the Tribunal in dealing with the review.[1]

   [1] [Citation redacted]

5. In the circumstances of this case, the matter was prioritised for reconsideration. After conducting a directions hearing of the matter on 21 December 2021, obtaining the transcript of the previous hearings and making this available to the applicant’s lawyers, the applicant appeared before me on 15 March 2022 to give evidence and present arguments. Further information was requested, and a second hearing took place on 14 April 2022. The first hearing was in person and the second hearing proceeded by MS Teams. The applicant had the assistance of his lawyers, who provided detailed, cogent and well-organised evidence and submissions. By the time of the hearing, the applicant had divorced the sponsor and had married Ms Amanpreet Kaur Pawar. He now has two children of that marriage. Further evidence was provided by the applicant after the hearings in relation to his divorce proceedings. The Tribunal also received oral evidence from eight witnesses, including the applicant.

6. After the resumed hearing, I referred the matter to an independent expert for consideration about the family violence claims because I was satisfied that the applicant was in a spousal relationship with the sponsor at the time of the application but could not form a concluded view about whether family violence had occurred while the relationship existed. The independent expert conducted a review and on 7 July 2022 found it its opinion that the applicant had suffered relevant family violence.

7. For the following reasons, I have concluded that the matter should be remitted for reconsideration.

   LEGISLATIVE FRAMEWORK

8. Section 29 of the Act provides that the Minister may grant a non-citizen permission, known as a visa, to travel to and enter Australia, or remain in Australia, or both. Section 31(1) of the Act provides that there are to be prescribed classes of visas and subs (3) provides that the Regulations may prescribe the criteria for visas of a specified class.

9. The prescribed classes of visas are set out in Schedule 1 to the Regulations and include a Temporary and Residence Partner visa, the latter being a permanent visa. Schedule 2 to the Regulations sets out the prescribed criteria relating to the relevant class of visa, including the primary criteria and any secondary criteria. If the Minister is satisfied that the criteria prescribed by the Act or the Regulations have been satisfied, s.65 of the Act provides that the Minister is to grant the visa, or, if not so satisfied, to refuse to grant the visa.

10. There is a two-stage process before a permanent partner visa is granted, with the applicant applying for the provisional or temporary visa and permanent visa at the same time. If the criteria for the temporary visa are met, the visa is granted to allow the applicant to remain in Australia until a decision on the permanent visa is made, which will not be considered until after two years.

11. Part 820 of Schedule 2 to the Regulations prescribes the criteria for a Partner Visa. This is a temporary visa. Clause 820.21 sets out the primary criteria that must be satisfied at the time of the application and cl 820.22 sets out the criteria that must be satisfied at the time of decision.

12. Relevant to the facts in this case, subclause 820.211(2) provides that an applicant will meet the requirements for the subclause if the applicant is the spouse or de facto partner of the sponsoring partner, who is an Australian citizen, has turned 18 years old and is not prohibited from being a sponsoring partner and if the applicant holds a substantive visa at the time of the application.[2]

    [2] Refer subclause 820.211(2)(a), (c) and (d).

13. As observed by the Full Court in He v MIBP, the ‘central criterion’ for a Partner visa is that the visa applicant must be the spouse of the sponsor.[3]

    [3] [2017] FCAFC 206 at [28].

14. Section 5F of the Act defines the word "spouse" as follows:

    5F Spouse

    (1) For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.

    (2)      For the purposes of subsection (1), persons are in a married relationship if:

    (a) they are married to each other under a marriage that is valid for the purposes of this Act; and

    (b) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

    (c)      the relationship between them is genuine and continuing; and

    (d)      they:

    (i) live together; or

    (ii) do not live separately and apart on a permanent basis.

    (3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

15. Relevantly, r. 1.15A of the Regulations provides as follows:

    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 sub regulation (3).

    (3)The matters for sub regulation (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.

16. According to the Full Court in He v MIBP, r 1.15A is prescriptive and the Tribunal must give “proper, genuine and realistic consideration” to each of the prescribed circumstances, which comprise four principal matters and, thereafter, a series of specific matters relevant to the principal matters. The Full Court found that the Tribunal is required to make findings on each of the prescribed matters, even if the Tribunal’s answer may be that there is no material, or insufficient material, to form a conclusion on a prescribed matter. This not only includes the specific matters numbered with Roman numerals but requires findings in respect of the principal matters under the broad headings.[4]

    [4] He v MIBP at [73] to [77].

17. Subclause 820.211(2)(ii) provides that an applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl 820.211(2)(d).

18. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, an issue that arises in the present case is whether the applicant satisfies the Schedule 3 criteria. It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. Nor is it in dispute that the applicant does not satisfy the criteria in 3001,[5] 3003[6] or 3004.[7] as such, the issue that arises in this case is whether there are compelling reasons for not applying those criteria.

    [5] In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day which it was not in this case.

    [6] Criterion 3003 only applies to applicants who have not, on or after 1 September 1994, been the holder of a substantive visa, and on 31 August 1994 was either an illegal entrant or the holder of an entry permit that was not valid beyond that date.

    [7] Criterion 3004 of Schedule 3 requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with the conditions applicable to the last of any substantive visas and any subsequent bridging visa held by the applicant.

19. Subclause 820.221(1) provides that an applicant must continue to meet the criteria in subclause 820.211(2) at the time of the decision. Relevant to this matter, the Tribunal must be satisfied that the applicant is the spouse or de facto partner of the sponsor, 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.[8]

    [8] Refer to subclauses 820.211(8) or (9) and 820.221(3)(a) and (3)(b)(i) of Schedule 2 to the Regulations.

20. By the time this application for review was first listed for hearing before the Tribunal, the applicant claimed that the spousal relationship between he and the sponsor had broken down due to family violence. The previous Tribunals were not satisfied that the relationship between the applicant and the sponsor was genuine and therefore did not accept or consider the family violence claim. 

21. 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.[9]

    [9] Regulation 1.23(3), (5), (7), (12), (14).

22. In the present case the applicant is seeking establish family violence on the basis of a non-judicially determined claim of family violence.

23. Having regard to the decision of the delegate and the evidence and submissions made by the applicant in this matter, the questions for determination are:

    (1)Whether there are compelling reasons for not applying the Schedule 3 criteria;

    (2)Were the applicant and the sponsor in a spousal relationship at the relevant time, and

    (3)If so, when did the relationship cease and did the applicant suffered ‘family violence’ committed by the sponsor, within the meaning of the Regulations.

    BACKGROUND AND OUTLINE OF EVIDENCE

24. The applicant arrived in Australia on a Student visa in 2008. He met the sponsor in July 2011 in Sydney at a party organised by his brother, Mr Davinder Singh Bhullar, and his brother’s wife. The sponsor was a friend of his brother’s wife. At this time the applicant lived in Brisbane but travelled to Sydney to attend the party. He and the sponsor started communicating regularly with each other by telephone and text messages. The applicant also travelled to Sydney on a number of occasions to spend time with his brother and with the sponsor. He visited her in her home in January 2012 and met her daughter, who was about three years old at that time. The applicant asked the sponsor to marry him in March 2012 and they married [in] April 2012 in [Suburb 1]. It was a small wedding with the only guests being the applicant’s brother and his wife, who were also the witnesses.

25. The applicant and the sponsor moved in together and initially lived with the applicant’s brother and his wife. However, there was a falling out between them and in August 2012 the sponsor and the applicant moved into a unit in [Suburb 2]. They entered into the lease together. They also opened joint bank accounts and socialised with the applicant’s friends from time to time. The applicant’s mother came to visit from India and stayed with her son and the sponsor for about three months from April to July 2013. The applicant supported the family financially as the sponsor did not have a job. The sponsor’s daughter continued to live with the sponsor’s mother and stepfather but stayed at their house on occasion.

26. The applicant stated that he first discovered the sponsor was using drugs in early December 2012 when he came home from work to find her with two friends using drugs. She was arrested by police and charged with drug possession in 2013 and he went with her to Court to support her and supported her with her drug rehabilitation. According to the applicant, after an initial period of stability, the sponsor reverted to drugs and his relationship with her started to break down as she became violent and aggressive towards him.

27. An officer of the Department interviewed the applicant and the sponsor in October 2013 and details of the interview were included in the decision record of the delegate dated 28 November 2013.

28. The delegate refused the visa on the basis of facts he/she was not satisfied that the applicant and the sponsor were in a genuine relationship. The delegate noted the assertion that the joint bank statements showed money being deposited and withdrawn every couple of days but was not satisfied that there was ‘substantial evidence’ to support the claims that joint liabilities were paid from the accounts. As such, the delegate was not satisfied that there was evidence that the applicant and the sponsor had pooled their financial resources. While it was accepted that there were joint tenancy agreements, the delegate was concerned about inconsistencies in the interview between the applicant and the sponsor about the sponsor’s daughter. Relevantly, the sponsor had stated that while her daughter was currently staying with her mother from October 2013, she normally resided with her and the applicant in their apartment in [Suburb 2]. This was inconsistent with the statement made by the applicant that the sponsor’s daughter usually lived with the sponsor’s mother in Asquith. The delegate was concerned about the fact that the sponsor had given her mailing address as the address of her mother’s home and was not satisfied that the applicant and the sponsor were living together. The delegate noted that the applicant and the sponsor provided photographs of themselves with each other and with family and friends on holidays, together with statements from a family member and friend about their relationship. However, the delegate also noted that the applicant did not know the sponsor’s friends. The delegate considered it relevant that there were no photographs of the applicant on the sponsor’s Facebook page. As such, the delegate gave little weight to the documents submitted and was not satisfied that the applicant and the sponsor presented themselves as a married couple to family or to the wider community.

29. Notwithstanding that the applicant and the sponsor were lawfully married, the delegate formed the view that there was a number of inconsistent responses provided during the interview with the Department officer. The delegate was particularly concerned that the applicant did not know anything about the sponsor’s health issues and her interaction with the police and the judicial system. In summary, the delegate was not satisfied that the applicant and the sponsor were in a married relationship.

1. In a statutory declaration made on 7 March 2015, the applicant outlined the details of the alleged family violence. The incidents commenced in December 2012. Further incidents were alleged to have taken place in March and June 2013. It is claimed that the sponsor entered into a community-based program to assist her with her drug taking in June 2013 and after this their relationship improved. However, according to the applicant the relationship deteriorated during 2014 and in September 2014 there was a further incident, which the applicant alleges was motivated by the sponsor’s drug taking. On 11 January 2015 they argued. The applicant stated that the sponsor threatened him and said she was going to have him kicked out of Australia. He locked her out of the apartment, but she returned the following day with other people. He went to the police station to inform them of the incident but did not seek to press charges. According to the applicant, he started to see a psychologist in about June 2014 because of the stress and anxiety he was feeling about the relationship. He stated that they separated on 12 January 2015. In his statement, he provided detailed information about the alleged family violence incidents that allegedly took place in December 2012, March and June 2013, September 2014 and January 2015. The particulars of these claims are also set out in information provided to a social worker who the applicant consulted in 2015 and whose evidence was provided to the Tribunal just prior to the first Tribunal hearing in 2015. Details of this evidence is set out below.

2. The applicant gave oral evidence at the hearing about his relationship with the sponsor.

3. His evidence was consistent with the evidence contained in the statements and statutory declarations previously filed with the Tribunal and with the interview to the Department officer in October 2013. He was asked about the inconsistent statements about the sponsor’s daughter and confirmed that her daughter remained living with the sponsor’s mother although they saw her frequently. He said that he does not know or understand why the sponsor said that her daughter lived with them. He said that he did not refer to the sponsor’s drug taking and her court appearance in the interview with the Department officer in October 2013 because he was embarrassed about this. He attended the court hearing and provided evidence recording this. He said that while their relationship started to break down in 2013, after he went to court with her and she started to attend a rehabilitation program, the relationship improved. Further problems arose in 2014 but he did not want to leave the relationship at that stage and continued to persevere. Things came to a head in January 2015 when they argued, and she and her friends threatened him. He said that after they separated, they did not see each other again although he did try to contact her after they separated to ask about the sponsor’s daughter. They divorced in 2015 and, the applicant said he could not remember the precise details of the divorce because it happened such a long time ago.

4. The applicant said that he was very depressed after their marriage broke down. His marriage to his second wife, Amanpreet Kaur Pawar, was arranged through his mother. Their families had known each other for a number of years. He started to talk with her on the telephone in July 2016. By this stage, Amanpreet was living and studying in Perth. He went to visit her in Perth in August 2007 where he met her for the first time. They fell in love and decided to marry in a civil ceremony on 23 September 2016. They have been together ever since. Their first child, a son, was born in Blacktown Hospital on 28 August 2017. He suffers from intermittent exotropia and needs specialist treatment.

5. At my request, the applicant provided documents relating to the divorce. According to the file obtained from the Federal Circuit and Family Court of Australia, it appears that the sponsor filed an application for divorce on 29 January 2015, claiming that she and the applicant had separated on 10 May 2013. On 10 March 2015, the applicant filed a response to the divorce in which he claimed that they had in fact separated on 12 January 2015. He provided a detailed affidavit annexing evidence about their relationship, including details of the sponsor’s struggle with drug addiction. On 17 May 2015, the sponsor sent an email to the Court advising that she was living with her new partner in Queensland and provided a medical certificate to see to the effect that she would be 36 weeks pregnant by 28 July 2015. On 28 July 2015, the Federal Circuit Family Court of Australia ordered that the marriage would be terminated from 29 August 2015. It is submitted that this evidence corroborates the applicant’s evidence because at no stage did the sponsor state that she was not in a genuine spousal relationship with the applicant. Even though she stated that her relationship had ended on 10 May 2013 this was in direct conflict with the interview that she gave to the department on 28 October 2013 to the effect that they were in a relationship. It is further submitted that the sponsor filed her divorce application within weeks of the date on which the applicant states they separated and this is relevant to and tends to support the applicant’s claim. Even though the sponsor would have fallen pregnant before they officially separated there is no dispute that the applicant is not the father.

6. The applicant provided documents in support of his claims, including bank statements and other financial documents. The bank statements revealed monies deposited into the accounts on a regular basis with the payment of utilities, rental and other joint expenses from the accounts. The applicant also provided copies of joint utility bills, copies of other payments relating to both he and the sponsor in relation to payments alleged to have been made for appliances and holidays they shared. The applicant provided copies of residential leases, showing the applicant and the sponsor as joint tenants.

7. In addition, the applicant provided photographs of him with the sponsor at various settings, including with family and friends, and statements from numerous witnesses, including his brother, his mother and friends who the applicant had known for many years and who had socialised or lived with the applicant and the sponsor at the relevant time. A number of these witnesses gave evidence at the hearing, namely the applicant’s brother, four of his friends, his mother and his current wife.

8. The applicant’s brother, Mr Davinder Singh Bhuller, provided a statutory declaration and gave evidence at the hearing. According to Mr Bhullar, he and his ex-wife introduced the applicant to the sponsor in July 2011 when he came down to Sydney from Brisbane to visit. The sponsor was a very good friend of his ex-wife. Mr Bhullar stated that he became aware that his brother and the sponsor continue to communicate after this first meeting and his brother told him that he wanted to marry the sponsor. They married [in] April 2012 and he and his ex-wife were the only guests. Their mother was unable to attend because she was being treated in India for illness at the time. The applicant and the sponsor moved into their house after the wedding, and they lived together for a period of time. In late 2012, his ex-wife told him that she had a big argument with his brother, and she wanted the applicant and the sponsor to move out. Because of the acrimony between them, there was little contact between the two brothers for about two years. During that period, Mr Bhullar said that he and his ex-wife experienced difficulties because she was on drugs. They broke up and it was not until after this that he and his brother re-established close contact. Mr Bhullar’s evidence was consistent with the statement previously provided. He said that his brother did not tell him about the difficulties he was experiencing with the sponsor until after they reconnected. He said that at the time they were all living together, he observed that the applicant and the sponsor appeared to be happily married.

9. Mr Ranjit Singh provided a statutory declaration dated 25 February 2022 and gave evidence at the hearing. According to Mr Ranjit Singh he has known the applicant since 2000. They went to the same high school and came to Australia at about the same time. They kept in touch and he visited the applicant and the sponsor in their home on two or three occasions. He observed that they appeared to be living together and were happy. They talked about planning to buy a house and having a child. He noticed that in about 2014, the applicant did not seem as happy but he did not tell him until later in 2014 or 2015 that the sponsor had been using illegal drugs and he had been trying to get her to seek medical help. The applicant later told him that he and the sponsor had separated because she had attacked him with a syringe.

10. Mr Jatinder Pal Singh provided a statutory declaration dated 25 February 2022. He also gave evidence at the hearing. According to Mr Jatinder Pal Singh, he has known the applicant since 2009. He met him when he was studying a Diploma in Cookery at Holmes College. In 2011, the applicant told him he had met an Australian woman while visiting Sydney and that they had started to date. The applicant moved to Sydney in 2012 to marry the sponsor and about the same time, Mr Jatinder Pal Singh moved to Canberra. The applicant and the sponsor came to Canberra to visit him on a number of occasions. They stayed in a hotel and he observed that they seemed to be sharing a bedroom. He also visited the applicant in the unit at [Suburb 2] and it was his impression that they were living together and that they were happily married. Mr Jatinder Pal Singh said that he had noticed that the sponsor behaved strangely when he first met her and that she was jumpy and hyperactive, but he did not discuss this with the applicant at that time. He and the applicant talked over the phone on a regular basis but it was not until about 2014 that the applicant told him the sponsor had problems with using illegal drugs. He told Mr Jatinder Pal Singh in 2015 that they had separated. Mr Jatinder Pal Singh stated that the applicant was not in a good situation emotionally after his relationship with the sponsor ended.

11. Mr Majinder Singh provided a statutory declaration, also dated 25 February 2022. He gave evidence at the hearing. According to Mr Majinder Singh, he met the applicant in 2000 when they were in high school. They stayed in touch after they both came to Australia in 2008. The applicant told Mr Majinder Singh that he had started dating the sponsor and that he was going to move to Sydney so they could marry. According to Mr Majinder Singh, the applicant was very excited about this. Mr Majinder Singh moved to Sydney in December 2012 and stayed with the applicant and the sponsor in their [Suburb 2] apartment for about a week. He observed that they shared a bedroom together and looked to be living like a married couple. He knew that the sponsor had a daughter who was not living with them. When he was living with them, he noticed that the sponsor had friends who came over to visit. He believed they were on drugs. He tried to tell the applicant about this. In about mid 2013 the applicant told him that the sponsor was addicted to drugs and that he believed her behaviour was changing. Mr Majinder Singh left Sydney and moved to Victoria for work in 2013 but he continued to talk over the telephone with the applicant. In about 2014 the applicant complained to him about how much the sponsor’s drug addiction was affecting their lives and told him that they had ended their relationship in 2015 because he felt unsafe.

12. Mr Kulwinder Singh provided a statutory declaration and gave evidence at the hearing. He said that he first met the applicant in India in about 1997 or 1998. When he came to Australia in 2010, he initially lived with the applicant and the applicant’s brother and then lived with just the applicant until the applicant moved to Sydney in 2012. After this, he and the applicant spoke on the telephone almost every day. The applicant told him that he was happy living with the sponsor. The applicant and the sponsor came to Brisbane to visit and they went to the Gold Coast together. Mr Kulwinder Singh and the applicant talked less frequently during 2013 and by about mid-2014, the applicant told him that the sponsor was using illegal drugs and she had become aggressive and violent towards him. At the hearing, Mr Kulwinder Singh said he had been surprised that the applicant and the sponsor had married so quickly but  he did not question this. The applicant was very private and did not talk that much about his private affairs. He observed that they appeared to have a good relationship and he believed they were a genuine couple. They appeared to share a bedroom as far as he was aware. He did not know that the sponsor had a daughter because she did not talk about her daughter in front of him.

13. The applicant’s mother, Amarjit Kaur, gave evidence by telephone. She said that the applicant told her in early 2012 that he was going to marry the sponsor. She did not oppose the marriage. She said she was not able to come to Australia to attend the marriage at that time. She came to Australia and stayed with the applicant and the sponsor for about three months from late April 2013. This was the first time she met the sponsor. She said that the sponsor seemed to be very loving and she believed that the applicant and the sponsor had a good relationship at that time and that the marriage was genuine. She also said that she met the sponsor’s daughter. The daughter was living at their house while she was there. She said that she did not know at the time that the sponsor was taking illegal drugs. She also said that after her son’s marriage broke down, she assisted him in marrying his second wife. It was an arranged marriage. She had also arranged Mr Bhullar’s marriage to his second wife. Mr Bhullar and the applicant married sisters.

14. Amanpreet Kaur Pawar provided statements and gave evidence at the hearing. She said that she and the applicant married in September 2016. They had a son who needed medical treatment. She was holding a subclass 485 Temporary Graduate visa and had applied for a subclass 491 Skilled Work Regional (Provisional) visa. She was an Accountant. Ms Kaur said that it would be very difficult for her to continue living and working in Australia if the applicant had to leave because there would be no one to help her look after her son or to provide financially for them. Their son was born on 28 August 2017 and is very close to the applicant. She was pregnant with her second child and prior to finalising this decision, the Tribunal was advised that this child was born on 20 August 2022.

15. In October 2021, the Department provided to the Tribunal records of an allegation it received on 27 April 2012 to the effect that the applicant’s relationship with the sponsor was contrived for the purpose of obtaining a visa and that the applicant agreed to pay the sponsor money for sponsoring him. The substance of this record, appropriately redacted, was provided to the applicant’s lawyers on 27 January 2022. The applicant’s lawyers made submissions to the effect that it was apparent that the substance of this allegation was put to the sponsor during the interview with Department offices in October 2013 and that the sponsor had rejected the allegation. This was not raised with the applicant during the interview, nor was it put to either party during the review process undertaken by the delegate. It is submitted that this material should be given little weight because it is clear that the Department did not give the matter any weight when it initially refused the visa in November 2013 ─ it did not raise the allegations with the applicant in the interview conducted with him in October 2012, this information was not identified as a relevant matter by the delegate in the decision and this information was only provided to the Tribunal in October 2021. The applicant denied that his relationship with the sponsor was contrived in his evidence to the Tribunal and maintained it was a genuine relationship motivated by love and that the relationship subsequently soured and became abusive due to the sponsor’s drug usage. In other words, the applicant's evidence was consistent and credible and should be given more weight than an unsubstantiated allegation.

16. The applicant provided to the previous Tribunal with a statutory declaration by Robert Marcel Gachon (Mr Gachon), registered psychologist, dated 8 April 2015. According to Mr Gachon he consulted with the applicant and provided treatment on nine occasions between 24 June 2014 and 25 March 2015. The applicant was referred for an assessment and treatment by his general practitioner because he was reporting symptoms of anxiety and depression. The consultations were regular. According to Mr Gachon, the applicant reported that he had experienced domestic violence perpetrated by his then wife who had been abusing illicit drugs and was said to be emotionally unstable. The applicant reported that he was unable to make a decision about his future with his wife at this time because he was finding it difficult to tolerate her habit and her abusive and threatening behaviour. Mr Gachon reported he was told by the applicant that towards the end of the relationship, he actually feared his wife or her associates would injure him. He did not realise the extent of her problem until she was charged in 2013. The applicant reported to Mr Gachon that the sponsor asked him to forgive her and promised she would not use again but when she did continue to use drugs, she then displayed abusive behaviour towards him when he showed his disapproval. The applicant reported that he had been physically and verbally assaulted in December 2012, March and June 2013, September 2014 and January 2015. Mr Gachon reported that he was left in ‘no doubt’ that the applicant was a credible historian, and he was experiencing severe symptoms of anxiety and depression. Mr Gachon believed the applicant was subjected to domestic violence and genuinely feared for his safety. In contrast, the applicant was reportedly calm at their last meeting because he had cut contact with his wife.

17. The applicant also provided a statutory declaration from Nonie Hodgson (now Hedges) (Ms Hodgson), registered social worker, dated 15 April 2015, which was updated on 1 April 2022. Ms Hodgson stated that she interviewed the applicant on 16 and 25 March 2015 and asked him questions regarding family violence incidents which he said had occurred. The first family violence incident was in early December 2012 when the applicant came home and discovered his ex-wife smoking marijuana with some of her friends. She became verbally abusive and when the applicant asked her friends to leave, the sponsor became physically abusive. She allegedly pushed him a few times and made a threat. The applicant stated that he was very disturbed by this incident.

18. A further incident was said to have occurred in March 2013 when the sponsor reportedly asked the applicant for money. She verbally abused him when he did not provide the money and then threw a protein shake bottle at him. The applicant was reportedly very disturbed by this behaviour and was scared because he could see that the sponsor’s misbehaviour was changing. A further incident occurred in June 2013 when he found cash was missing. He looked through the sponsor’s bag and there was an altercation where she abused him and hit him with the bag. Ms Hodgson reported that the applicant stated there were further incidents of verbal abuse in September 2014, including an attempted physical abuse and a threat on his life. The last incident was on 11 January 2015 when the applicant discovered the sponsor injecting herself in the bathroom. There was an argument and the sponsor reportedly threw the used syringe at him and it hit him on the shoulder. It was this stage that the applicant decided he could no longer live with the sponsor. He permanently separated from the sponsor the following day and she made threatening telephone calls and visited the apartment with other people and started banging on the door. He was afraid. Ms Hodgson stated that she provided counselling to the applicant on 21 March and assessed his mental state on 25 March 2015 as moderately depressed. She encouraged him to continue to see his general practitioner. Ms Hodgson concluded that the incidents related by the applicant have had a significant impact on him emotionally and caused him to be apprehensive about his personal well-being. She noted that the applicant’s state of mind was such that he feared for his safety and a potential attack by way of reprisal in some way from either his estranged wife or her friends.

1. As already noted, the applicant’s family violence claims were referred to an independent expert for assessment. The independent expert was provided with all statements, submissions from the applicant’s lawyers, Tribunal hearing recordings, photographs, department records, including site visits and interview report, and copies of documents, including the divorce file. The independent expert, Ms Sarah Brann from LSC Psychology, reviewed the material and conducted an interview with the applicant on 6 July 2022. Ms Brann prepared a report dated 7 July 2022 which was submitted to the Tribunal on 26 July 2022. The report was also provided to the applicant and his lawyers.

2. Ms Brann reported that she questioned the applicant about inconsistencies or concerns she had in relation to his account. According to Ms Brann, the applicant’s claims ‘withstood the rigour of testing’ at interview. One such example was where the applicant was questioned as to why he could not remember who initiated the divorce at the Tribunal hearing in April 2022. Ms Brann considered this to be at odds with the applicant’s ability to recall specific details of incidents of family violence. The applicant stated that he did not want to provide incorrect evidence to the Tribunal so he spent some time after the Tribunal hearing researching the matter by reference to the divorce files. The applicant was also questioned about information from the Department to the effect that the sponsor had moved to Queensland with a new partner in March 2014 and that she fell pregnant in November 2014. He told Ms Brann that the sponsor was not truthful about this. He did not know that the sponsor was pregnant prior to their separation but said that the deterioration in their relationship meant that they had ceased being intimate in the months before their separation. The applicant was also invited to comment on why he had not told the Department in his 2013 interview about his wife’s drug habits. He stated that he did not do so because he was ashamed and had hoped she would stop using substances.

3. Mr Brann reported that the applicant’s presentation style was ‘calm, open and non-defensive’. He responded with relevant, concise information that responded to her answers where appropriate. In summary, Ms Brann accepted the applicant’s claims of family violence. She found his account of the family violence to be detailed, consistent and credible when tested across various sources. According to Ms Brann, the applicant provided a spontaneous, detailed and coherent account of various forms of family violence and relevant impacts. His responses to adverse information also appeared reasonable and his clarifying statements were accepted. She concluded that the claims of relevant family violence described by the applicant had occurred.

   FINDINGS

4. There are a number of inconsistencies and implausible details in the applicant’s narrative about his relationship with the sponsor. However, it is relevant to note that this relationship commenced over 10 years ago and it is alleged that the relationship broke down over seven years ago. It is difficult in such circumstances to adequately test or verify allegations made when there has been significant lapse of time in relation to the events which are the subject of consideration and potential dispute.

5. Issues that raise concern are the fact that the applicant and the sponsor met and married quickly after only knowing each other for about 10 months. There are inconsistencies in relation to the evidence about the sponsor’s daughter, whether she lived with them or not, and not many of the applicant’s friends knew about the sponsor’s daughter. This would have been a significant issue and it would be expected that this relationship is a matter that the applicant would mention to his friends. The applicant did not discuss the sponsor’s drug use at the Department interview, even though he had allegedly recently attended court with her. He alleges family violence incidents that occurred in June 2013, yet his mother does not refer to those in incidents even though she was reportedly staying with them during this period. Furthermore, there are remarkable similarities between the applicant’s relationship with the sponsor and in the relationship between his brother and his brother’s former wife. Both the sponsor and Mr Bhullar’s wife reportedly allegedly had drug issues and became abusive because of those issues. In Mr  Bhullar’s case, he actually obtained a formal intervention order against her, as evidenced by the court documents provided to the Tribunal by Mr Bhullar.

6. Despite these concerns, the applicant’s evidence at the hearing before me and the other Tribunal has been consistent. It is consistent with his statements and with information provided to the independent expert, Ms Brann. The applicant explained why he could not recall who initiated the divorce, he explained why he did not tell the Department about the sponsor’s drug usage and he consistently asserted during the hearing and in his statements that the sponsor’s daughter did not live with them, but she visited them frequently. This is not otherwise inconsistent with the evidence given by other witnesses, including his mother, who did spend time with her and knew her when she visited in mid-2013, and his friends, some of whom met her or knew of her and some who did not.

7. Notably, the applicant’s evidence is supported by independent witnesses. These witnesses are his friends and his brother. While Mr Bhullar may have an interest in supporting the claims of his brother, his evidence was credible and consistent. The evidence of the applicant’s friends, a number of whom have known him for years and had either lived or visited him and the sponsor for extended periods, was also consistent and credible. Their evidence was frank, with some conceding concerns or surprise about issues that had arisen, and was sufficiently detailed about key events or issues that had occurred.

8. The evidence about the relationship is also supported by available financial documents, including leases. It is possible that the sponsor was recorded on the lease but was never intended to live with the applicant as a tenant but without cogent evidence to the contrary, it is difficult to make such an inference or form such a conclusion.

9. The information provided by the Department in October 2021 carries little weight in circumstances where it was not raised with the applicant at the time the allegation was made or at the time of the interview or when the delegate made the assessment of the relationship between the applicant and the sponsor. The allegation was made over 10 years ago and cannot now be tested. There is considerable force in the submission made by the applicant’s lawyers in this regard.

10. Information contained in the divorce file from the sponsor suggests the relationship with the applicant may have ended earlier than January 2015. This is denied by the applicant. The only way such an issue could be further examined would be to locate and summons the sponsor to give evidence. There are two difficulties with this. The applicant does not know the whereabouts of the sponsor and has not been in contact with her since their separation. Secondly, in a case where there are allegations of family violence, there would be great difficulties in involving the alleged perpetrator in a hearing to test these issues which are alleged to have occurred between 10 and seven years ago, particularly in circumstances where there is evidence that the alleged family violence caused harm and has the potential to cause harm to one of the parties. Even if the relationship, at least in the sponsor’s mind, came to an end earlier than January 2015, this does not materially impact the allegations made by the applicant and his claim for family violence. The issue for consideration is whether I am satisfied that there was a genuine relationship between the applicant and the sponsor at the time of the application and that if there is no longer such a genuine spousal relationship, did this relationship come to an end because of family violence. The balance of evidence suggests that there was a genuine relationship which some point of time which came to an end as a result of family violence. My reasoning in relation to these claims is detailed later in my reasons.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Are there compelling reasons not to apply the Schedule 3 criterion?

11. The expression ‘compelling reasons’ is not defined for these purposes. However, reasons that are compelling should ‘force or drive the decision-maker’ ‘irresistibly’ to some end: Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31]. The reasons or circumstances should be sufficiently powerful to lead a decision-maker to find that the criteria should not be applied: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.

12. It was submitted on the applicant’s behalf that compelling reasons have been established. Firstly, even though the applicant did not have a substantive visa at the time his partner visa application was lodged, he was in the process of seeking a review of a Student visa, which was subsequently granted following a successful review to the former Migration Review Tribunal. As such, the applicant held a substantive visa shortly after his application was lodged. It was also submitted that the applicant had been intending to pursue Australian permanent residency through another pathway and that this would have been available to him but for the fact that the sponsor persuaded him to make his application for the partner visa. It is submitted that the applicant was in a genuine relationship at the time of the application, there is evidence of family violence by an Australian citizen and he has a very close relationship with his current wife and children, both of whom have been born in Australia. There would be significant disadvantage and prejudice to the applicant, his wife and his children if he was unable to pursue this existing application for the spousal visa.

13. I accept these submissions. I am therefore satisfied that there are compelling reasons for not applying the Schedule 3 criterion.  As such, the criterion in subclause 820.211(2)(d)(ii) is met.

    Was the applicant in a spousal relationship with his sponsor?

14. The applicant claims that he was in a spousal relationship at the time of the application and remained in such relationship until the relationship ceased, as a result of family violence, on 12 January 2015. Accordingly, the issue for consideration is whether the applicant was, at the relevant time, the spouse of the sponsor. This turns on the question of whether they are, and were at the relevant time, in a married relationship.

15. The applicant and the sponsor were married [in] April 2012 and provided evidence of this to the delegate and to the Tribunal. The validity of their marriage is uncontentious. The delegate made a positive finding to this effect. In the absence of evidence to the contrary, I accept the validity of their marriage and find accordingly. However, a lawful marriage is not enough to establish a married relationship for the purposes of the Act.

16. As noted, s 5F of the Act provides that for persons to be in a married relationship there must also 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. In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship, which includes evidence of the financial and social aspects of the relationship, the nature of the household and commitment of the visa applicant and sponsor to each other.

17. In making this assessment I must consider each of the matters referred to in reg 1.15A. The evidence relevant to the consideration of those matters and my findings follow.

    Financial aspects of the relationship

18. Based on the evidence provided, I am satisfied that the applicant and the sponsor jointly operated joint bank accounts. I am also satisfied that various expenses, some of which would appear to be joint household expenses including rental, are paid from this account. Neither own real estate but they have a joint liability for rent, evidenced by the joint rental agreement provided dated 31 July 2012.

19. In summary, the documentary evidence provided about the financial affairs of the applicant and the sponsor corroborates the applicant’s statutory declarations and statements and his oral evidence given during the hearing.

20. I find, based on the available evidence, that the applicant and the sponsor jointly operated bank accounts, had a joint liability for rent and appeared to pool their financial resources and share, to the extent possible, day-to-day household expenses. Overall, I find that the financial aspects of the relationship between the applicant and the sponsor are consistent with being in a married relationship.

    Nature of the household

21. I am satisfied that there is cogent and persuasive evidence the applicant and the sponsor lived together from 5 April 2012 until January 2015. There is evidence that they lived with the applicant’s brother and they moved out and lived on their own in [Suburb 2] for a few years. The evidence provided in support of this was the tenancy agreement for 31 July 2012 which was in their joint names and the rental ledger dated 31 August 2012, which was also in their joint names. There is also evidence from witnesses in support of this claim being evidence from the applicant’s brother, the applicant's mother and four of his friends.

22. The applicant and the sponsor do not have children as a result of their relationship and, as such, they do not have joint responsibility for care and support of children. This matter is therefore neutral, particularly given the circumstances of this case. I accept the evidence of the applicant that the sponsor’s daughter did visit them from time to time and that he took on the care of the sponsor’s daughter on these occasions. I also accept the applicant’s evidence that they shared household chores and that they shared a bedroom while they lived together.

23. I accept the evidence of the applicant that he and the sponsor lived together as a couple from April 2012 to January 2015. These matters are indicative of a married relationship.

    Social aspects of the relationship

24. The applicant provided photographs of his and the sponsor’s various holidays and social events. He also provided statements from friends and family about the social aspects of their relationship, six of whom also gave oral evidence at the hearing. I found the evidence of these witnesses to be credible.

25. While the applicant and the sponsor spent less than three years together and there were difficulties in their relationship for extended periods, I am satisfied, based on the available evidence, that the social aspects of the relationship between them was consistent with them being in a married relationship.

    Nature of persons' commitment to each other

26. I am satisfied that the applicant and the sponsor were together as a couple from at least April 2012. The evidence of the applicant about how he met the sponsor and how their relationship developed until their marriage in April 2012 is consistent and credible. While there is clearly evidence that their relationship was troubled because of the sponsor’s substance abuse, there is evidence, on the applicant’s account, that he provided support for her when she was directed to undertake rehabilitation. This evidence is consistent with the information that he told others, including his treating psychologist as early as June 2014.

27. Based on the available evidence, I am satisfied that the applicant and the sponsor were in a genuine relationship at the time that they married and appeared to have had a genuine commitment to each other for a number of years and, at least from the applicant’s point of view, until January 2015. It is possible that the sponsor changed her feelings towards the applicant during 2014 such that by at least November 2014, she was in another relationship. The applicant said that he was not aware of this, although he also said he accepted that the relationship had deteriorated a few months prior to the formal separation in January 2015. The applicant alleges that the reason the relationship broke down was because of the sponsor’s family violence. In the absence of evidence from the sponsor, about these matters, I accept the evidence of the applicant, which is generally consistent with other evidence which corroborates his claims.

    Conclusion

28. Having regard to my findings set out above, I am satisfied that the applicant and the sponsor were in a partner relationship and that this relationship has ceased.

29. The issue that now arises on the evidence in this case is whether I am satisfied the applicant’s claim of family violence is established.

    Has a claim of family violence been made under the regulations?

30. Under reg 1.23 of the Regulations, 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.

31. In this case, the applicant 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 instrument made by the Minister, IMMI 12/116, which commenced on 24 November 2012).

32. 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).

33. The applicant has provided a statutory declaration setting out the various allegations of family violence. He has also provided two items of evidence from the list in Schedule 1 of IMMI 12/116 as required for the purposes of paragraph 1.24(b) of the Regulations. Relevantly, he provided a statutory declaration made by member of the Australian Association of Social Workers, being Ms Noni Hodgson made on 13 April 2015, which was updated on 1 April 2022, who stated that she had provided counselling or assistance to the applicant while performing the duties of a social worker. Ms Hodgson stated that in her opinion that the applicant was the subject of family violence, she set out the reasons for her opinion and identified the alleged perpetrator as the sponsor. The second item of evidence provided by the applicant is the statutory declaration from registered psychologist, Mr Gachon, dated 8 April 2015. As already noted, Mr Gachon treated the applicant while performing the duties of a psychologist. Schedule 1 of IMMI 12/116 provides that the registered psychologist must state their opinion that the allege victim was subject to family violence, set out the reasons for the opinion and must identify the alleged perpetrator. The statutory declaration provided by Mr Gachon satisfies these requirements.

34. The evidence presented by the applicant therefore 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?

35. Having considered all of the evidence before me, I was not satisfied for the purposes of reg 1.23 that the applicant has suffered relevant family violence. While the applicant gave detailed evidence about this, which was supported in part by evidence given by friends and family, much of this evidence was based on information that was told to the witnesses by the applicant. Because I could not form a concluded view about this, I sought the opinion of an independent expert in accordance with that reg 1.23. On 7 July 2022 the independent expert, Ms Brann, provided an opinion that the applicant had suffered relevant family violence. Further details of that opinion are set out above.

1. I am satisfied that the opinion 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 was properly made. Under reg 1.23 I am required to take as correct an independent expert’s opinion, properly made.

2. Where the independent expert’s opinion is that a person has suffered relevant family violence, at least part of the violence that led to that opinion must have occurred while the married or de facto relationship existed. In this case, Ms Brann has provided an opinion that the applicant has suffered relevant family violence and that the violence occurred while the applicant and the sponsor were in a married relationship. The relationship is alleged to have ended on 15 January 2015 and the incidents described by the applicant, and accepted by Ms Brann as family violence, took place in December 2012, June 2013, September 2014 and January 2015. Even if it is accepted that the relationship broke down prior to January 2015, this does not materially impact on the findings because Ms Brann found repeated incidents of family violence from at least December 2012. 

3. Accordingly, I find that the applicant is taken to have suffered family violence committed by the sponsor for reg 1.22.

4. As the relationship between the applicant and sponsor has ceased, and the applicant has suffered relevant family violence committed by the sponsor, he meets the requirements of subclause 820.221(3). Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

   DECISION

5. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

   ·cl 820.211(2)(d)(ii) of Schedule 2 to the Regulations;

   ·cl 820.211(1) of Schedule 2 to the Regulations; and

   ·cl 820.221(3) of Schedule 2 to the Regulations.

   J.L Redfern PSM
   Deputy President

   
   

   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.