Wadhwa (Migration)

This matter concerned an application for a Partner (Migrant) (Class BC) visa, subclass 100. The dispute arose from a breakdown in the relationship between the applicant and their sponsor, which the applicant alleged was a result of family violence perpetrated by the sponsor. The applicant contended that despite the relationship breakdown, they had maintained a genuine and continuing relationship prior to this event. The decision was made by Edward Howard, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had experienced family violence, as defined by the relevant regulations, and how this impacted the assessment of their eligibility for the subclass 100 visa, particularly in light of the relationship breakdown. The Tribunal was required to determine if the applicant met the criteria for the visa, considering the circumstances of the relationship and the impact of the alleged family violence.

The Tribunal's reasoning focused on its satisfaction that the applicant had indeed experienced the relevant family violence. Applying the principles governing partner visa applications, which require consideration of all circumstances of the relationship, the Tribunal found that the applicant met criterion cl 100.221(2) of Schedule 2 to the Migration Regulations 1994. This criterion, in the context of family violence, allows for the assessment of the applicant's eligibility even if the relationship has broken down due to such violence, provided the relationship was genuine and continuing prior to the breakdown.

Consequently, the Tribunal remitted the application for the Partner (Migrant) (Class BC) visa, subclass 100, to the Minister for reconsideration. The direction was that the applicant be considered to meet criterion cl 100.221(2) of Schedule 2 to the Regulations, allowing for the assessment of the remaining criteria for the visa.