Australian Immigration Daily News

Does it matter when “family violence” has occurred? 

Is it open to the Department, or the Tribunal, to consider whether a “genuine” spousal or partner relationship existed at the time that the incident(s) of family violence occurred?  

Is it the case that if a person has been granted a provisional partner visa (Subclass 309 or Subclass 820) that they should be “conclusively presumed” to be in a genuine spousal or partner relationship? 

Or can the Department or the Tribunal effectively “look behind” the fact that a provisional partner visa has been granted, and re-examine the factors specified in Regulation 1.15A, to determine whether a spousal or partner relationship was still in existence at the time of the claimed family violence? 

These very important questions were all considered in a decision that was handed down  late last week by Judge Emmett of the Federal Circuit Court in the case of Yan v Minister for Immigration & Anor (2016) FCCA 237 (23 February 2016). 

The background of the case was as follows: 

The applicant was granted a Provisional Partner visa (Subclass 309) in June 2011. She entered Australia later that month. However, at some point thereafter, the Department received information from the Australian Federal Police indicating that the applicant was no longer living with her sponsor.  Accordingly, in November 2011, the Department sent an email to the applicant which informed her that the Department was in possession of information that the relationship on which her application for a “migrant” partner visa (Subclass 100) was not continuing. 

The email from the Department gave the applicant 28 days to provide information in support of her application for the Subclass 100 visa.  However, the applicant did not reply to this email.  The Department thus proceeded to refuse the visa. 

The applicant then appealed against this refusal to the Tribunal (the MRT, as it then was known).  The Tribunal affirmed the Department’s refusal of the application. 

In the proceedings before the MRT, the visa applicant advanced a claim that she had been the victim of family violence that had been carried out against her by her sponsor.  In support of the claim that family violence had taken place, the applicant produced a Protection Order that had been made in a Magistrates Court in Queensland. 

The MRT determined that the outcome of the merits review application depended on whether the claimed family violence had occurred at a time when a spousal relationship existed between the applicant and her sponsor. 

Consequently, the MRT considered that it was appropriate to consider whether the applicant and her sponsor had been in a “married relationship” within the meaning of section 5F of the Migration Act: whether they had a mutual commitment to a shared life as husband and wife to the exclusion of all others; whether the relationship between them was genuine and continuing; and whether they were living together, or at least, not living separately and apart on a permanent basis.   

The MRT examined the factors listed in Regulation 1.15A to assess whether a spousal relationship was in existence at the time of the claimed family violence. Its conclusion, on the evidence, was that the applicant and the sponsor had not been in a married relationship within the meaning of section 5F since the time she arrived in Australia. The matters that led the MRT to that conclusion included its findings concerning “the financial aspects of the relationship” (that the applicant and her sponsor did not have joint assets and liabilities other than a joint bank account); and the “nature of the household” (that the applicant and the sponsor had not lived together until after the Department had refused her application for a Subclass 100 visa, and that the applicant did not have any responsibility for the care of the sponsor’s children from a previous relationship). 

The MRT therefore concluded that the claimed family violence had not occurred at a time when a married relationship existed between the applicant and her sponsor. 

On appeal to the Federal Circuit Court, the applicant claimed that the MRT had committed jurisdictional error in two ways: 

1. By requiring the applicant to show that the family violence had occurred at a time when there was a subsisting spousal relationship; and 

2. By concluding that the applicant and the sponsor were not in a genuine, ongoing spousal relationship at the time that the Protection Order had been made by the Queensland Magistrates Court, because the question of whether such a relationship existed had already been conclusively determined when the Subclass 309 provisional partner visa had been granted. 

With respect to the first claim of jurisdictional error, the applicant relied on a 2010 decision of the Full Court, Muliyana v Minister for Immigration & Citizenship (2010) FCAFC 24.  

In that case, the Full Court, reviewing the version of Schedule 2 that was relevantly in force, ruled that it did not matter whether family violence had occurred either during the existence of a spousal relationship, or after the relationship had ended. It was the Court’s view that the Regulations reflected a policy determination not to force a person to stay in an abusive relationship, or to go back into an abusive relationship, to avoid compromising her or his immigration status.  

Therefore, it was the Full Court’s conclusion in Muliyana that the fact that the family violence may have occurred after a spousal relationship ends would not preclude the grant of a Subclass 100 migrant partner visa. 

The difficulty, however, in the Yan case, was that the regulations relating to Subclass 100 visas have been amended, and the version of the regulations that was interpreted in Muliyana  is no longer in force. 

These amendments were introduced in 2009. They are now found at Regulation 1.23(5). This clause now specifically says that: “the violence, or part of the violence…must have occurred while the married relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator”. 

In short, to the extent that the Muliyana case holds that a Subclass 100 visa may be granted in circumstances where the family violence has occurred after the spousal or de facto relationship has ended, it is no longer “good law”.  Regulation 1.23(5) now expressly requires that the family violence must have taken place while the relationship is still in existence, and not after it ends. 

Since the MRT had found that no genuine married relationship had ever existed  between the applicant and her sponsor, it was simply not possible for her to show that the family violence had occurred while a family relationship was in existence.  Therefore, on this ground, the applicant’s case “crashed and burned”. 

Judge Emmett also rejected the applicant’s argument that the grant of a Subclass 309 visa is sufficient to establish conclusively that a genuine spousal or partner relationship exists after  that visa has been granted.   It was His Honor’s view that the migration regulations clearly contemplate that the question of whether a relationship exists for the purposes of a Subclass 100 visa is a matter that has to be determined separately from the question of whether a genuine relationship exists for the purposes of the grant of a Subclass 309 visa. In other words, it was Judge Emmett’s ruling that the simple fact that a Subclass 309 visa has been granted does not necessarily mean that a genuine married relationship must be considered to be continuing at all times after that visa has been granted. 

What do we learn from this case? That under the Regulations as now in force,  the claimed family violence must have occurred at a time when a genuine spousal or de facto relationship continued to exist, and not after the relationship ends.  And that the mere fact that someone has been granted a provisional partner visa does not amount to conclusive proof that the underlying relationship continues to exist after that visa has been granted.

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