TRAN (Migration)

This matter concerned an appeal by the applicant, a Vietnamese citizen, against the refusal of her Subclass 801 Partner (Residence) visa. The applicant had initially arrived in Australia on a student visa and subsequently married the sponsor. Her temporary partner visa was granted, but her permanent partner visa was refused on the grounds that the delegate was not satisfied the applicant and sponsor were in a genuine and continuing spousal relationship. The applicant later claimed to have suffered family violence, which was not raised during the initial application process. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant had suffered relevant family violence and, if so, whether this satisfied the criteria for the visa.

The primary legal issues before the Tribunal were whether the applicant had established a claim of family violence under the Migration Regulations 1994, specifically whether the claimed violence occurred during the existence of the married relationship, and whether the applicant met the criteria for the Subclass 801 visa, particularly in light of the cessation of the relationship and the family violence claim. The Tribunal had to consider the nature of the applicant's relationship with the sponsor, the evidence presented regarding the alleged family violence, and the requirements for a non-judicially determined claim of family violence as outlined in the Regulations.

The Tribunal considered the applicant's claim of family violence, which included allegations of verbal abuse and threats of a dog bite, and noted that an Independent Expert had provided an opinion that the applicant had suffered relevant family violence. The Tribunal applied the principles set out in the Migration Regulations, particularly those concerning non-judicially determined claims of family violence and the requirement that at least part of the violence must have occurred during the married or de facto relationship. Despite initial concerns about the genuineness of the relationship, the Tribunal found that the applicant had suffered relevant family violence committed by the sponsor and that the relationship had ceased.

Given these findings, the Tribunal remitted the application for a Partner (Residence) (Class BS) visa for reconsideration. The Tribunal directed that the applicant met the requirements of cl.801.221(6)(b) and (c) of Schedule 2 to the Regulations, allowing for the further consideration of the remaining visa criteria by the Minister.