最近Judge Driver 给了肯定的答案。令移民局,Mrt都大跌眼镜

In the case before Judge Driver there was a significant age difference between the
56. Critically, and as noted in the applicant’s submissions, the Tribunal’s
negative conclusion rested upon its reasoning at [103][64] where the Tribunal
o The Tribunal is of the view that Mrs Angkawijaya and Mr
Limberiou are committed to an agreement that they have negotiated to
meet particular needs, rather than committed to a relationship with
each other. The Tribunal considers that they have agreed to exchange
services, and the Tribunal accepts that to this extent they see the
relationship as long term. Mrs Angkawijaya has agreed to stay with Mr
Limberiou for as long as he lives, and in return her expenses for her
and her children are provided for, and she secures permanent
residency for herself and her children. When the Tribunal raised this
issue stating that it appeared she was more a carer for Mr Limberiou,
than in a committed relationship with him, she stated that both were
mixed together. She loves all people. She had felt sorry for Mr
Limberiou. The Tribunal accepts that Mrs Angkawijaya has prepared
meals for Mr Limberiou, has assisted him with him medication and
treatment, and that she accompanies him at home. It accepts that their
relationship has been physically intimate. However it does not accept
that this represents or demonstrates commitment to him in a shared life
together as … partners.
57. The reality (on all of the material before the Tribunal), was that Ms
Angkawijaya and Mr Limberiou had entered into an agreement to remain
together until his death and to support each other in a personal relationship.
The elements of that relationship went well beyond a contractual agreement
to provide care services. It was unrealistic for the Tribunal, given the
circumstances of the relationship, and the age gap between the parties to it,
to expect a demonstration of romantic love and Ms Angkawijaya was honest
in not attempting falsely to assert any romantic love. What was or should have
been apparent to the Tribunal was that Ms Angkawijaya showed a genuine
commitment to a shared life with Mr Limberiou. He at least arguably had a
similar commitment to her.
58. The reasons for entering into that commitment were no doubt
calculated to obtain a personal advantage on both sides. She was to get
residency. He was to get care and support. Some may disapprove but that is
a value judgement. Mr Limberiou was honest when he told the Tribunal that if
Ms Angkawijaya were denied a visa he would find someone else. That is what
many people do when they are deprived of their partner by circumstances
beyond their control. It is neither for this Court, nor the Tribunal, to make a
value judgement on the motivation for the relationship.
59. In my opinion, the Tribunal imposed a value judgement in its
application of the criteria in regulation 1.09A for the purposes of s.5CB of the
Migration Act which led it into error. By applying a value judgement, the
Tribunal lost sight of what the Full Federal Court in Minister for Immigration v
Dhillon[65] emphatically stated was the true and only test in relation to a
partner visa: that is, whether at the time at which the matter has to be decided
it can be said that the parties have a mutual commitment to a shared life as a
husband and wife to the exclusion of all others. The reasons for entering into
that commitment are immaterial.



澳洲配偶签证是一套组合签证,比如境外的309/100 组合,境内的820/801组合。这种签证设计是为了杜绝虚假婚姻的情况,先给2年的观察期,在2年的观察期里,如果婚姻能保持下去,那么申请人就可以获得澳洲永久居住。但是为了防止这类签证被担保人滥用,使被担保人处于不平等的地位,签证又规定了例外条件,也就是家庭暴力条款,来保护澳洲配偶的利益,让申请人可以有另一条途径获得签证。比如Clause 100.221(4)(c)(i) 规定如果因为家庭暴力,婚姻破裂是符合申请永久居留要求的。Division 1.5 规定家庭暴力可以分为有裁定的judicially determine 和没有裁定的 non judicially determine 2 种情况,一般有裁定的家庭暴力会有警察和法律援助中心介入。但由于家庭暴力发生一般比较隐秘,证据比较难搜寻,移民法也提供一种人性化的解决方案,也就是non judically determine case 的解决方案。Regulation 1.23(1A)(b)(ii) 规定 这种情况必须提供个人的一个法定声明和2个专家的对这件事的意见。 must state that, in the competent person’s opinion,
relevant family violence (within the meaning of subregulation 1.21 (1)) has been suffered by a person;
Regulation 1.23(2)(b) 定义了家庭暴力为对于受害人的人身和财产的暴力导致受害人对个人安全和福利的担心。violence against the alleged victim or his or her property that causes the alleged victim to fear for, or to be apprehensive about, the alleged victim’s well-being or safety.
这个定义可以说是相当宽松,可以理解为任何暴力,导致对方害怕就是家庭暴力。也就是是禁止担保人使用暴力,申请人可以使用,但担保人不能还手,一还手就算家暴。而这个专家的列表又是相当的宽泛,包括医生,护士,心理医生,社工等。 以志杰移民的切身经验告诉大家,一个专家不行就换另一个专家,总能找到愿意帮忙的专家的,专家也要吃饭啊。所以澳洲配偶其实不用担心签证问题,移民法已经对澳洲配偶保护的相当好了。一般女客户只要和担保人有肢体冲突,都可以用这个条款找专家鉴定,拿到PR,有部分男客户 (会困难一点)也引用家庭暴力条款拿到PR。比如有个客户的专家报告里有 “he was subject to unusual treatments and his lack of language skills, social isolation and unfamiliarity with Australian society made him acutely vulnerable to his wife’s control.” 专家甚至都不需明确的表明意见, 可以隐含的表达 convey by implication ,Meroka v Minister for Immigration & Multicultural Affairs [2002] FCA 482 at [34] (“Meroka”), Ryan J stated that it was not necessary that the competent person state expressly that in his or her opinion relevant domestic violence has been suffered. Ryan J stated that the requisite statement of opinion may be conveyed by implication having regard to the way in which the standard form directs the attention of the competent person to the definition of domestic violence. 这就使专家不必担心证据不足,而使报告的取得更加的容易。

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