Topcubasi (Migration)

[2021] AATA 806

Topcubasi (Migration) [2021] AATA 806 (4 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Necmettin Topcubasi

CASE NUMBER:  1715583

DIBP REFERENCE(S):  CLF2012/54342

MEMBER:Rachel Westaway

DATE:4 March 2021

PLACE OF DECISION:  Melbourne

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.820.221(3) of Schedule 2 to the Regulations

Statement made on 04 March 2021 at 10:40am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Federal Circuit Court remittal – relationship ceased – non-judicially determined claim of family violence – statutory declarations – insufficient evidence of physical violence during relationship – financial abuse – wife’s family took salary, forced him to use loan from employer for car as deposit on more expensive car and pressured him to source funds to pay off balance – threats of physical harm and deportation – subsequent marriage to Australian citizen – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), rr 1.21, 1.23, 1.24, 1.25, Schedule 2, cl 820.221(3)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 25 September 2014 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 March 2014 on the basis of his relationship with his sponsor, Ms Kubra Banu Kuru. 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 primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the primary criteria include cl.820.211 and 820.221 which require that at the time of application and decision, the applicant to be the spouse or de facto partner of the sponsor, unless the relationship has ceased, and certain circumstances exist. These include that the applicant, or a member of the family unit, has suffered family violence committed by the sponsor: cl.820.211(8) or (9) and 820.221(3)(a) and (3)(b)(i). The applicant claims this occurred in this case.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl.820.221(3) because he was no longer in a spousal or de facto relationship with the sponsor and he did not satisfy any of the alternative provisions within cl. 820.221. As the first tribunal also noted, the delegate had erroneously stated cl 801.211 however the applicant had not held a subclass 801 and the appropriate subclass in which to assess him against is a Subclass 820 being the temporary onshore partner visa.

5. This matter is before the Tribunal because of a Court order dated 18 July 2017. The matter was remitted for reconsideration as the first Tribunal had not disclosed to the applicant a certificate made pursuant to s. 375A of the Migration Act 1958 (Cth) nor had this information been put to the applicant under s. 359A or 359AA of the Migration Act 1958 (Cth).

6. The applicant appeared before the Tribunal on 16 May 2019 to give evidence and present arguments. The applicant did not have witnesses at his second hearing however the Tribunal has considered all evidence available to it from the first Tribunal hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.

7. The applicant was represented in relation to the review by his registered migration agent.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. In the present case, the applicant claims the relationship with Ms Kubra Banu Kuru the visa sponsor has ceased, and he has been the victim of family violence.

10. Based on the evidence, the Tribunal is satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased. The issue that arises on the evidence in this case is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.

11. Under r.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 r.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: r.1.23(3), (5), (7), (12), (14).

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

13. The delegate was not satisfied that the applicant had suffered relevant family violence based on the evidence provided. A non-judicially determined claim of family violence was never established or accepted by the delegate or the first Tribunal. Notwithstanding this, on 18 July 2014 the applicant was referred by the delegate to an independent expert (IE), who found that the applicant had suffered relevant family violence. The IE concluded that the incident that caused the applicant to have fear for his safety and wellbeing was an assault that took place on 31 January 2014, which had prompted the applicant to take the matter to the police. Whilst other incidents were referred to and accepted, this was the only incident of family violence which was identified by the IE and accepted that the applicant had a reasonable fear for his safety.

14. As such, the accepted family violence occurred after the relationship between the applicant and the sponsor had ceased. It therefore did not satisfy the requirements of r.1.23(14), which meant that the applicant did not meet the relevant clauses.

15. At the hearing with the second tribunal, the applicant and his representative requested the tribunal to review this material again stating the claimed family violence occurred during the relationship and that the applicant did fear for his wellbeing and safety during this period. The Tribunal was directed towards updated evidence to support the claim of non-judicially determined family violence.

16. At the hearing with the second tribunal, the applicant outlined the development of his relationship. He said he was originally from Turkey and is 29 years old. He has subsequently remarried and is expecting his second child. His first child is three years of age. His current wife is an Australian citizen. The matter under review relates to his first marriage.  

17. The applicant confirmed that his last relationship ended towards the end of 2013 and this is the subject of the review. The relationship lasted for two years. He stated that the relationship ended due to violence towards him allegedly by his then wife.

18. The applicant stated that the violence first started 5-6 months into the marriage, in approximately September 2011.

19. The applicant said the violence initially commenced when he was threatened by her family and this became an ongoing issue. She threatened that he would be sent away from Australia if he didn’t do what she said. He was working and at the end of the week he claims that her family would take the money that he earned. He said they had one car and they would drive him to work and pick him up but they would never be on time so they would make him wait in the cold of winter or heat of summer for hours on end. At home, when she was upset, if there was something in her hand or close to her she would throw it at him. He explained that one day at approximately 1.30am when he was in bed following an argument, she attacked him physically. He claims she argued with him constantly. He woke up and left the room, she was out of control and she hit the television and it fell to the ground and she punched the plaster and made a hole in the wall. He said he could not seek help because she was a black belt in Karate, and she has a wide extended family in Australia and there are lots of argumentative people in her family. He said if he reported this or sought help he was concerned they would find out and cause him further harm.

20. He did not tell his own family because she would not allow him to contact his family. If he contacted his family, she would create problems. The tribunal noted that the applicant still had contact with his brothers and that his claim she did not allow him to see his family was not consistent with what did happen. The applicant has explained this in the context that he avoided having his family around because she made it difficult for them and he consequently felt alienated and alone and without a support system.

21. The applicant stated he was working at a butcher’s shop. He confirmed his highest level of education is high school. He originally came to Australia and attended an English course at Australian Catholic University. He was planning to study accounting but when he applied, they said his English was not adequate, so they wanted him to attend further English classes within their institution. He said he could not continue with his studies because of his marriage and commitments.

22. The applicant’s family live in Australia and he has two older brothers. His parents were not alive when he was married. His former wife is Turkish.

23. Since the relationship ended, he has continued to feel threatened. He stated that his former wife went to his employer and asked the employer to terminate his employment. The applicant stated that his employer is a distant relative of his sponsor. His employer told him and asked him what he wanted him to do. He said he felt afraid and he thought they were dangerous. He clarified that “they” he meant his former wife, mother-in-law and their relatives

24. He claims that he was physically assaulted in front of his house by her family. He claims that in his mind the relationship was still in existence and they were living as husband and wife however sometimes his wife would stay at her mother’s house. He claims that it became apparent to him that his former wife was unbalanced and unpredictable. She would come home and not talk and then leave and go and come back. However, their assets remained shared at this time and he considered that they were still together.

25. The Tribunal discussed the issues at hand with the applicant. It explained that the delegate’s decision accepted he was the spouse of the sponsor had the relationship not ended. The first Tribunal also accepted this claim. The second Tribunal is also satisfied that the applicant was the spouse as required by the Act prior to the relationship ending.

26. The delegate noted family violence was identified in the Independent Expert’s report however the incident referred to occurred on 31 January 2014 and this was after 14 September 2013 when the relationship ceased. Consequently, the delegate was not satisfied that family violence had occurred during the period when the married relationship existed.

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

27. Under r.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 r.1.24 is provided.

    The applicant in this case is seeking to rely on evidence referred to in r.1.24 – namely, a statutory declaration under r.1.25 and evidence of a type and number specified by the Minister for these purposes IMMI12/116, specifies that a minimum of 2 different types of the following evidence be given:

    ·a medical report, hospital reports, discharge summary or statutory declaration made by a registered medical practitioner or nurse, acting in that capacity;

    ·a report, record of assault, witness statement or statutory declaration made by a police officer;

    ·a witness statement made by someone other than the alleged victim or a police officer during the course of a police investigation;

    ·a report or a statutory declaration by a child welfare authority officer or a child protection authority officer;

    ·a letter or assessment report (on letterhead) from a women’s refuge or a family/domestic violence crisis centre;

    ·a statutory declaration made by a member, or person eligible to be a member, of the Australian Association of Social Workers who has provided counselling in that role to the alleged victim;

    ·a statutory declaration made by the alleged victim’s treating registered psychologist;

    ·a statutory declaration made by a family consultant by a family consultant appointed under the Family Law Act 1975 or a family relationship counsellor who works at a Family Relationship Centre listed on the Australian Government Family Relationships website;

    ·a statutory declaration or letter (on letterhead) made by a school counsellor or principal acting in that capacity.

28. A statutory declaration under r.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: r.1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: r.1.25(3).

29. The applicant submitted to the Department:

    ·A statutory declaration by him, dated 6 March 2014, alleging family violence had been perpetrated against him by the sponsor;

    ·A witness statement by the applicant, dated 1 February 2014, following the assault on him by a stranger on 31 January 2014;

    ·A medical report from Greenvale Medical Centre, dated 1 February 2014, regarding medical treatment of the applicant following the assault on him by a stranger on 31 January 2014;

    ·A letter by the applicant’s medical practitioner, Dr M Erciyas, dated 17 January 2014, which states that he was seen at the surgery on 7 December 2013 with symptoms of generalized anxiety state, sleep distortions and tension headaches. The report states that the applicant was devastated after the break-up of his marriage and his symptoms had been deteriorating in the last 4 months. He was given counselling and referred to registered psychologist, Ms Hatice Kurtoglu;

    ·A statutory declaration dated 11 June 2014, by the applicant’s treating registered psychologist, Ms Hatice Kurtoglu.

30. The  first Tribunal considers that the witness statement and medical report relating to the assault on the applicant by a stranger on 31 January 2014 cannot be relied on to establish a claim of family violence as the assault occurred 4 to 5 months after the end of the applicant’s marriage.

31. Similarly, it found Dr Erciyas’ letter relates to a consultation with the applicant that occurred several months after the end of his marriage. Whilst the letter canvasses the applicant’s reported reaction to the end of his marriage and his presenting medical symptoms, there is no mention or suggestion in the report that this in any way relates to the claimed family violence, as required by IMMI 12/116, which states, in relation to medical reports by registered medical practitioners, that such evidence must Identify the alleged victim and detail the physical injuries or treatment for mental health that is consistent with the claimed family violence.

32. The first Tribunal discussed the various deficiencies with his documentary evidence, and he was granted an extension of time for him to obtain a further medical report from Dr Erciyas.

33. On 23 November 2016 the representative submitted a report from Dr Erciyas, dated 21 November 2016, which summarises the applicant’s various attendances at the doctor’s surgery since March 2011. The report refers, inter alia, to the applicant complaining on 17 December 2012 of headaches that he claimed were being caused by “intra-marital discords”.

34. The Tribunal considers that the witness statement and medical report relating to the assault on the applicant by a stranger on 31 January 2014 cannot be relied on to establish a claim of family violence as the assault occurred 4 to 5 months after the end of the applicant’s marriage.

35. Similarly, Dr Erciyas’ letter relates to a consultation with the applicant that occurred several months after the end of his marriage. Whilst the letter canvasses the applicant’s reported reaction to the end of his marriage and his presenting medical symptoms, there is no mention or suggestion in the report that this in any way relates to the claimed family violence, as required by IMMI 12/116, which states, in relation to medical reports by registered medical practitioners, that such evidence must:

    ·Identify the alleged victim and detail the physical injuries or treatment for mental health that is consistent with the claimed family violence.

36. On 13 May 2019 following the hearing with the second tribunal, the applicant submitted a report from Dr Erciyas, dated 1 May 2019. It lists the dates of consultation with the applicant being 31 March 2011, 11 December 2011, 17 December 2012 and 17 January 2014. It outlines that the applicant was experiencing Lumbago and insomnia having experienced intra-familial marital discord. He states that he believes this was family violence suffered by the applicant by his wife. The two later consultations outlined that the doctor observed anxiety and headaches and insomnia and attributed these to family violence Tribunal file 1715583 ff:38).

37. The second Tribunal also reviewed the psychologist report referred to by the Independent Expert, dated 11 March 2014 and converted to a statutory declaration dated 11 June 2014. This identified the applicant and the alleged perpetrator, namely his former wife and described domestic violence being perpetrated against the applicant by his wife. It identified amongst other issues the $10,000 demanded by the applicant’s former wife and discussed the controlling mechanisms she used against the applicant.

38. The applicant also submitted a statutory declaration dated 6 March 2014 by him alleging family violence had been perpetrated against him by the sponsor.

39. The Tribunal has considered the evidence before it. The statutory declaration from the applicant meets the requirements of r.1.25(2); and the doctors report and the statutory declaration by the psychologist matches that specified in the instrument.

40. Therefore, the evidence presented meets the requirements of r.1.24. As such, the tribunal finds that a non-judicially determined claim of family violence has been made under r.1.23

    Has the applicant suffered family violence?

41. However, the second Tribunal was not satisfied that the non-judicially determined evidence submitted contained sufficient detail to satisfy it that family violence occurred during the relationship and it also considered that the matter had been remitted back to the Tribunal with an Independent Expert report. As such, the second tribunal referred the matter to a second Independent Expert.  

42. The second Independent Expert report confirmed that family violence had occurred. It detailed two types of relevant family violence. Namely physical violence and also financial violence.

1. The first incident to have been identified and accepted was related to a physical altercation which occurred after the relationship had ceased and the applicant and sponsor were not living together. The applicant acknowledged this at hearing.

2. The applicant consistently stated that demands were made of him regarding money which made him fearful of his wellbeing, he believed it was financial abuse. The second Independent Expert accepted that financial abuse had occurred and referred to the incident whereby the sponsor demanded $10,000 from the applicant. The Tribunal has relied upon the Independent Expert’s conclusions namely financial abuse caused the applicant to be reasonable fearful or apprehensive about their wellbeing and/or safety. The incidents which were reported and accepted by the IE relate to the sponsor threatening deportation and physical harm. The IE accepted that the applicant was targeted by his former partner and mother-in-law when they attempted to extort AUD$10,000 from him to pay off her car loan in exchange for his permanent residency. This incident did not have a specific date. It was the culmination of a range of incidents which appear to have been built up over time.

3. Not withstanding the IE report, the Tribunal whilst satisfied that the financial abuse did exist, felt there was still insufficient information to satisfy it that this abuse occurred during the relationship. As such, it sent a copy of the IE report to the applicant identifying the examples used to confirm financial abuse however stating that this occurred after the end of the relationship. As this information was considered adverse to the applicant because it was not clear that the financial abuse occurred during the relationship, it was sent to the applicant under s359(A) of the Act and the applicant was told why the information was relevant and would be the reason or part of the reason for affirming the decision and it provided the applicant with the opportunity to respond.

4. On 23 February 2021, the applicant provided a response to the Tribunal. The salient points taken from the submission are below:

   We note that Mr Topcubasi applied for and was subsequently granted an Intervention Order dated 25 March 2014.  Part of the violence that led to the granting of the Order occurred while the married relationship existed between Mr Topcubasi and the Sponsor. In this regard, it is noted in the application the following:

   “I believe that Kubra organised this as she has previously said ‘ill get you another way’”

   “Kubra holds a blackbelt in karate”

   “Kubra has harassed me and blackmailed me for money previously”

   “there have been goods taken from my home”

   “Kubra’s mother is out of control”

   We note that we have provided additional information with regards to the harassment and money matters below. Furthermore, the issues that the applicant faced with goods being taken from the home and Kubra’s mother being out of control are also matters that occurred during the relationship. For example, his gold ring and other gold wedding presents had been taken by the Sponsor which Mr Topcubasi asked for the return of which was told to shut up or suffer the consequences.

   We submit that it is open for the Tribunal to accept that family violence has occurred on the basis of a court order as is contemplated by Regulation 1.23 (4) given the intervention order that has been submitted. We have sought clarity from Mr Topcubasi about $10,000 that is mentioned in the independent experts report together with other statements. Mr Topcubasi instructs that initially, the couple spoke about buying a second car. This was because Mr Topcubasi was left at the workplace and often left for hours when his shift finished as the Sponsor would not come and pick him up. He was left in the rain and also in the hot sun for hours on a regular basis which led his old employer suggesting that he would loan him $1,500 to buy a runabout car to get him to work and back.

   The Sponsor immediately told Mr Topcubasi to borrow funds and that she would buy a car. In the end, they purchased a much more expensive car using the $1,500 as a deposit and leaving a balloon.

   In order to buy the second car which occurred during the relationship, he was forced to hand over the loan from his employer to be used as a deposit and was told that he would be responsible for the repayments of the finance of the car despite it being decided by the Sponsor that the car would not be in his name. We submit that this was family violence in the form of financial violence given that money was taken by the Sponsor and yet he was still required to source the funds for the repayments for his mother in law’s car. The manipulation techniques used by the Sponsor further fall into the category of family violence. Whilst still in a relationship with the sponsor, he received continual demands from the Sponsor to source $10,000 which was the amount owed on the new car so as to pay it out on full. This was despite the Sponsor controlling his income. There were threats made that if he did not comply, he would suffer the consequences.

   Mr Topcubasi instructs that shortly after the purchase of the car, the Sponsor would regularly threaten him face to face, send him messages at work and pressure him in order to source the funds required to pay the car out (being $10,000). This is despite the Sponsor also controlling his wage as mentioned above. The types of threats included being told that he would be kicked out of the house and sent where he came from. He instructs that he was again left after shifts for many hours despite the purchase of the car.

   There was also an incident in August 2013 in which he was contemplating buying a van to set up a business in the hope of making additional income and spending more time at home given what was happening in the relationship. However, he instructs that the relationship was still ongoing at this point in time and it caused an incident where he was belittled and subjected to family violence.

   We enclose a trail of sms messages in November 2013 between the Sponsor and Mr Topcubasi which he provided to the police at the time that he was beaten. They start on 27 November 2013. He instructs that there were many other similar messages, but he was only able to locate these messages given that they had been provided to the police. He believes that the police had told him that this was all they required given they were closest in proximity to the assault that was inflicted on him and did not need to go back further. However, he believes that other messages were also provided to Immigration as evidence of the threats by his previous migration agents but does not have copies of these. There is some mention of messages in the first independent expert report.

   In this regard, he instructs whilst still in a relationship, the Sponsor suggested he get the funds from multiple people or split the amount required if he was unable to get the $10,000 in a lump sum. Evidently, Mr Topcubasi had been alienated from his family in Australia and was struggling to cope with the pressure of trying to source the balloon amount to pay out the car as well as making the financial payments themselves. This theme of splitting the $10,000 into two is also supported by the messages which speak about getting half and then sourcing the other half at a later date. The messages also confirm that she had control of the finances and further cancelled his insurance to put the savings on the payout.

   We submit that these should all be given weight particularly because it supports the history of family violence throughout the marriage that Mr Topcubasi has suffered. It is our submission that it also confirms that the relationship ended closer to the end of 2013.

5. The Tribunal has considered the response from the applicant. The Tribunal is left in no doubt that family violence has occurred perpetrated by the applicant’s former wife and targeting the applicant. From the two types of family violence accepted and named by the IE, physical and financial, the Tribunal is not satisfied that there is sufficient evidence to confirm that physical family violence occurred during the relationship.

6. However, the IE referred to the financial abuse which the tribunal accepts did occur. The applicnat’s response pertaining to the dates this occurred explains with logic and documentary evidence that the many attempts to threaten the applicant with deportation if he did not pay for  what his partner requested were highlighted in applications for an intervention order and also in reports by his doctor and psychologist. These reports discuss events over a long period of time when the applicant was still in the relationship with his wife.

7. Under r.1.23 the Tribunal is required to take as correct an independent expert’s opinion, properly made. The Tribunal is 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.

8. 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. Accordingly, the Tribunal finds that the applicant is taken to have suffered family violence committed by the sponsor for r.1.22.

9. As the relationship between the applicant and sponsor has ceased, and the applicant has suffered relevant family violence committed by the sponsor, the applicant meets the requirements of cl.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

10. 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.820.221(3) of Schedule 2 to the Regulations

    Rachel Westaway
    Senior Member

    
    

    ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    1.21 Interpretation

    In this Division:

    independent expert means a person who:

    (a)is suitably qualified to make independent assessments of non-judicially determined claims of family violence; and

    (b)is employed by, or contracted to provide services to, an organisation that is specified, in a legislative instrument made by the Minister, for the purpose of making independent assessments of non-judicially determined claims of family violence.

    non-judicially determined claim of family violence has the meaning given by subregulations  1.23(8) and (9).

    relevant family violence means conduct, whether actual or threatened, towards:

    (a)the alleged victim; or

    (b)a member of the family unit of the alleged victim; or

    (c)a member of the family unit of the alleged perpetrator; or

    (d)the property of the alleged victim; or

    (e)the property of a member of the family unit of the alleged victim; or

    (f)the property of a member of the family unit of the alleged perpetrator;

    that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.

    statutory declaration means a statutory declaration under the Statutory Declarations Act 1959.

    violence includes a threat of violence.

    …

    1.23     When is a person taken to have suffered or committed family violence?

    (1)For these Regulations, this regulation explains when:

    (a)a person (the alleged victim) is taken to have suffered family violence; and

    (b)another person (the alleged perpetrator) is taken to have committed family violence in relation to the alleged victim.

    Note Schedule 2 sets out which visas may be granted on the basis of a person having suffered family violence. The criteria to be satisfied for the visa to be granted set out which persons may be taken to have suffered family violence, and how those persons are related to the spouse or de facto partner of the alleged perpetrator mentioned in this regulation.

    Circumstances in which family violence is suffered and committed — injunction under Family Law Act 1975

    (2)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if, on the application of the alleged victim, a court has granted an injunction under paragraph 114(1)(a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator.

    (3)For subregulation (2), the violence, or part of the violence, that led to the granting of the injunction must have occurred while the married relationship between the alleged perpetrator and the spouse of the alleged perpetrator existed.

    Circumstances in which family violence is suffered and committed — court order

    (4)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

    (a)a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence; and

    (b)[…] order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter.

    (5)For subregulation (4), the violence, or part of the violence, that led to the granting of the order must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

    Circumstances in which family violence is suffered and committed — conviction

    (6)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if a court has:

    (a)convicted the alleged perpetrator of an offence of violence against the alleged victim; or

    (b)recorded a finding of guilt against the alleged perpetrator in respect of an offence of violence against the alleged victim.

    (7)For subregulation (6), the violence, or part of the violence, that led to the conviction or recording of a finding of guilt must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

    Circumstances in which family violence is suffered and committed — non-judicially determined claim of family violence

    (8)For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:

    (a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and

    (b)the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim.

    (9)For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:

    (a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and

    (b)the alleged victim is:

    (i)       a spouse or de facto partner of the alleged perpetrator; or

    (ii)      a dependent child of:

    (A)the alleged perpetrator; or

    (B)the spouse or de facto partner of the alleged perpetrator; or

    (C)both the alleged perpetrator and his or her spouse or de facto partner; or

    (iii)     a member of the family unit of a spouse or de facto partner of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse or de facto partner); and

    (c)the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:

    (i)       the alleged victim has suffered relevant family violence; and

    (ii)      the alleged perpetrator committed that relevant family violence.

    (10)If an application for a visa includes a non-judicially determined claim of family violence:

    (a)the Minister must consider whether the alleged victim has suffered relevant family violence; and

    (b)if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis; and

    (c)if the Minister is not satisfied that the alleged victim has suffered the relevant family violence:

    (i)       the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence; and

    (ii)      the Minister must take an independent expert’s opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.

    (11)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

    (a)an application for a visa includes a non-judicially determined claim of family violence; and

    (b)the Minister is satisfied under paragraph (10)(b) that the alleged victim has suffered relevant family violence.

    (12)For subregulation (11), the Minister must be satisfied that the relevant family violence, or part of the relevant family violence, occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

    (13)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

    (a)an application for a visa includes a non-judicially determined claim of family violence; and

    (b)the Minister is required by subparagraph (10)(c)(ii) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence.

    (14)For subregulation (13), the violence, or part of the violence, that led to the independent expert having the opinion that the alleged victim has suffered relevant family violence must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.