Tsang (Migration)

This matter concerned an appeal by the applicant against the Tribunal's decision to affirm the delegate's refusal to grant her a Partner (Residence) (Class BS) visa, subclass 801. The applicant, who is from Hong Kong, claimed to have been in a de facto relationship with an Australian permanent resident, also from Hong Kong. The applicant alleged that the relationship, which commenced in 2012 and ended in January 2019, involved verbal, emotional, and financial abuse by the sponsor, particularly after they began living together in 2016. The department had received information that the relationship had ceased in 2016.

The court was required to determine two primary issues: firstly, whether the applicant and the sponsor were in a de facto relationship for the purposes of the Migration Regulations 1994, and secondly, whether the applicant had made a non-judicially determined claim of family violence in accordance with the regulations. The applicant's eligibility for the visa hinged on satisfying the criteria for a genuine and continuing de facto relationship, which could be waived if the relationship breakdown was due to family violence.

In its reasoning, the court found that the applicant presented as a credible witness and that her oral evidence was supported by some corroborating evidence, despite some gaps. The court was satisfied, on the balance of probabilities, that the applicant and the sponsor were in a de facto relationship until its cessation in January 2019. However, the court noted that for a non-judicially determined claim of family violence to be considered under regulation 1.23(9)(c), the applicant was required to present evidence in accordance with regulation 1.24. The court found that the applicant had not provided a statutory declaration, which is a requirement under the Statutory Declarations Act 1959 and is implicitly required for the evidence to be considered "in accordance with regulation 1.24" in this context.

Consequently, the court affirmed the Tribunal's decision, concluding that the applicant did not meet the requirements for the grant of the visa, specifically cl 801.221(6), as she had not satisfied the criteria for a non-judicially determined claim of family violence due to the absence of the required statutory declaration.