Van (Migration)

This matter concerned an appeal by the applicant, Ms Van, against a decision of the Migration Review Tribunal. The dispute centred on whether Ms Van had suffered family violence, a factor relevant to her application for a Partner (Residence) (Class BS) visa, Subclass 801 (Partner) visa. The Tribunal had sought and received an independent expert's opinion which concluded that Ms Van had suffered family violence.

The primary legal issue before the court was whether the Migration Review Tribunal had correctly applied the provisions of the *Migration Regulations 1994* (Cth) concerning claims of family violence in the context of a partner visa application. Specifically, the court needed to determine if the Tribunal had properly considered the evidentiary requirements for a non-judicially determined claim of family violence, including the role and weight of an independent expert's opinion.

The court reasoned that Division 1.5 of the Regulations, particularly r.1.23 and r.1.24, outlined the evidentiary pathways for establishing family violence. In this instance, as there was no judicially determined claim, the Tribunal was required to consider a non-judicially determined claim. This involved a statutory declaration from the applicant and evidence specified by the Minister. Crucially, r.1.23(b)(ii) provided that a person is taken to have suffered family violence if an opinion of an independent expert has been given that the alleged victim has suffered relevant family violence. The Tribunal had followed this pathway, obtaining a new expert opinion from Ms Kerrilee Hollows, who concluded that Ms Van had suffered family violence. The Tribunal was therefore obliged to accept this expert opinion as correct for the purposes of the Regulations. The Tribunal also found that the family violence occurred during the relationship and that the sponsor was the sponsoring partner, and that the parties were validly married.