Australian Immigration Daily News

Does an applicant for a partner visa have a right to have a lawyer present when she/he is being interviewed by an independent expert to determine whether she/he has been the victim of family violence? 

This question was recently addressed by Judge Street of the Federal Circuit Court in the case of Bhalla v Minister for Immigration & Anor, (2015) FCCA 2381 (1 September 2015). As will be discussed below, Judge Street answered this question “in the negative”. His Honour held that it is not inconsistent with principles of “procedural fairness” – and therefore it does not amount to “jurisdictional error” – if an applicant’s lawyer is not permitted to accompany the applicant to an interview with an independent expert who is making an assessment as to whether “family violence” has occurred.  So the short answer: the applicant does not have a right to have a lawyer present.    

Readers of this blog will recall that late last week, a news article appeared on the ABC News Website that reported that Judge Street had ruled against visa applicant in 252 out of 254 cases that he had decided during the period between January 2015 and June 2015. That news article from the ABC, “Federal Circuit Court judge Alexander Street accused of bias after rejecting hundreds of migration cases” can be accessed by clicking through on the link.  

Of course, I must emphasise clearly and categorically that I make no suggestion whatsoever that there was any form of “bias” that may have influenced the outcome in the Bhalla case, or that the case was not correctly decided by Judge Street, or, for that matter, that there has been any such suggestion by the applicant in Bhalla or by her legal representatives. I make reference to this news article only for the purpose of indicating that these allegations of possible bias have been raised by others in the context of other proceedings, and to suggest that decisions that have been made by Judge Street may be worthy of careful monitoring to see whether appeals against those decisions will be taken to the Federal Court or to the Full Federal Court. 

As RMAs will be aware, there are provisions in the Migration Regulations which enable an applicant who has held a provisional partner visa to obtain a permanent residency visa if the relationship breaks down due to family violence committed by the sponsoring partner during the two year period after the provisional visa has been granted. See for example subclause 100.221(4)(c) , which applies in the case of persons who have previously been granted provisional Subclass 309 partner visas and then wish to secure a Subclass 100 partner visa. 

There is a specific regulation – Regulation 1.23 – that specifies the circumstances when a person will be taken to have suffered family violence.  Under this Regulation, a finding of family violence can be made when the claims alleging family violence have been “judicially determined” – for example, where an injunction has been made against the alleged perpetrator under the Family Law Act (see subregulation 1.23(2)) or if an order has been made for the protection of the alleged victim against the alleged perpetrator under the laws of a state or territory (see subregulation 1.23(4).   

Regulation 1.23 also makes provision for dealing with claims of family violence that have not been “judicially determined”.  Under subregulation 1.23(10), where the Minister (read “the Department” (or in cases where an application for merits review has been lodged and the Administrative Appeals Tribunal is “standing in the shoes of the Department”)) is not satisfied that the alleged victim has suffered family violence, the Minister/Department/AAT must seek the opinion of an independent expert. Also, subregulation 1.23(10) provides that the Minister/Department/AAT must accept the opinion of the independent expert on the question of whether the alleged victim has suffered from family violence to be a correct opinion. 

Regulation 1.23 came into play in the Bhalla case as the Tribunal referred the issue of whether the applicant had suffered family violence to an independent expert. The expert reached a conclusion that the applicant had not suffered from family violence, and the Tribunal determined that it was bound to accept this conclusion. Consequently, the Tribunal affirmed the Department’s refusal of the application for a permanent partner visa. 

On appeal to the Federal Circuit Court, the applicant contended that she had been denied procedural fairness because her lawyer had not been allowed to accompany her to the interview with the independent expert, and she had also not been permitted to record the interview.  

However, Judge Street ruled that the applicant had not been denied procedural fairness. His Honour reasoned that the applicant had been given the opportunity to present her claims and arguments as to whether she had suffered family violence before the Tribunal itself, and that she had also been given the opportunity after the independent expert had issued his report to make further arguments about the report. 

It is apparent that where claims of family violence have been advanced, but have not been accepted by the Minister/Department/AAT, that the interview with the independent expert is a critical stage of the process. Under subregulation 1.23(10), if the independent expert reaches a conclusion that the applicant has not suffered from family violence, then that conclusion is binding on the Minister/Department/AAT and certainly has every potential to be “fatal” to an application. So, given how important this interview can be, should an application be able to have a lawyer/RMA present to make sure that the interview is conducted in a fair and impartial way, and that all aspects of the applicant’s claim to have suffered from family violence are fully explored? 

What do you think? Do you agree with the conclusion that was reached by Judge Street in this case, or do you think His Honour should have decided the case differently?

 Concordia Pacific Migration Lawyers, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837