Australian Immigration Daily News

What does the term “domestic violence” mean in the context of the Migration Regulations 1994?

Does the term “domestic violence” necessarily involve physical violence? Or can the violence be of a “psychological” nature?

And, when there is a non-judicially determined claim of domestic violence, is the opinion of the Independent Expert who is called upon to determine whether domestic violence has occurred always to be accepted as correct, and therefore always unassailable and beyond challenge?

I have!

Just last week, in fact!

What would you make of this scenario:

Do the Tribunal’s decisions (or the Department’s) sometimes drive you up a wall?

Can they, on occasion, seem at odds with the plain, obvious evidence that has been submitted to the Tribunal?

It is for exactly these circumstances, dear readers, that judicial review proceedings exist: when it is clear that the Tribunal has “gotten it wrong” then the remedy is to take the case to the Federal Circuit Court, and if necessary, on to the Federal Court on appeal, to get the error corrected and to get the case sent back to the Tribunal for reconsideration.

It is incredibly (incredibly!) rare for a decision of a Department officer not to “waive” the infamous “no further stay” condition (Condition 8503) that it is Big News (even when the decision of the Court is a couple of months old, as it is in the case described in this article – Nguyen v Minister for Immigration (2019) FCCA 572 (8 March 2019).

The reason that this decision is Big News is that it provides guidance as to when a decision of a Department officer not to grant the waiver can be successfully challenged.

Recall importantly that such decisions are not “AAT-reviewable”: in order to challenge such a decision, it is necessary to seek judicial review in the Federal Circuit Court and to demonstrate that the delegate’s decision to refuse the waiver was affected by jurisdictional error – for example that the Department officer has “misconstrued” Regulation 2.05(4), which provides that a waiver may be granted if since the grant of the visa containing the 8503 condition, compelling and compassionate circumstances have developed  over which the visa holder had no control.

 Here is a really practical, common, down to earth and practical question:

If you are acting for an applicant who has had a combined subclass 820/801 partner visa application refused by the Department, how do you complete the electronic appeal form to seek merits review before the AAT?

Is it ok to list the name of the applicant’s sponsor in the part of the AAT application form that calls for the “Details of the person applying for review”?