Australian Immigration Daily News

There are times when you read some of the migration cases that are reported in the judgments of the Federal courts, you can feel nothing but the most profound and heartfelt sympathy for the visa applicant. 

Take the case of Bhalla v Minister for Immigration and Border Protection (2016) FCA 395 that was handed down this past Friday, 22 April, for example: 

The applicant in this case was an Indian woman who had married her husband, an Australian citizen, through an arranged marriage, in 2009. She claimed that following the marriage, she was kept in virtual servitude in her in-laws home, mistreated, made to cook and clean and was not permitted to see her parents unaccompanied. 

But it gets even worse (!!).

The applicant entered Australia on a Provisional Partner visa (subclass 309) in 2010. After her arrival in Australia, she lived with her husband and his brother. She claimed (apparently without dispute) that the brother “controlled their lives, was physically abusive, took inappropriate videos of her and her husband in their bedroom, and intimated that he could have sex with her”. 

There was then an incident in December 2011 when the police were called, and the applicant was charged with assault and was served with a Provisional Domestic Apprehended Violence Order. However, after a hearing in the NSW Local Court, the assault charge was dismissed, and the Provisional AVO was revoked. 

Before the hearing in the Local Court, the applicant's husband wrote to the Department and withdrew his sponsorship of the applicant. The Department then wrote to the applicant inviting her to respond to the information that the sponsorship had been withdrawn. In their reply on her behalf, the applicant's migration agents advised the Department that she had been the victim of family violence and was seeking to have her application for a permanent partner visa assessed under the family violence provisions of the Regulations. 

Although the applicant had submitted evidence in the form of statutory declarations from a medical practitioner and a psychologist that stated that the applicant had been the victim of family violence, the delegate was not persuaded that family violence had occurred. Consequently, following the requirements of sub-regulation 123.1010(c)(i), the delegate sought the opinion of an independent expert concerning whether the applicant had suffered family violence (within the meaning of Regulation 1.21). This expert gave an opinion that she did not believe that the applicant had experienced persistent fear, and thus concluded that family violence as defined had not occurred. And under sub-regulation 123.10(c)(ii), the delegate was bound to take the opinion of the independent expert to be correct. 

So, the visa application was refused at the Departmental level. 

Did the applicant have any better success with a merits review application to the AAT? 

Unfortunately for her, she did not. The Tribunal member was also not satisfied that the applicant had suffered family violence, so the Tribunal again referred the claim for assessment to an independent expert. And this second independent expert, a clinical psychologist, also concluded that family violence within the meaning of Regulation 1.21 had not occurred. 

Like the delegate, the Tribunal considered that it was bound under sub-regulation 123.10(c)(ii) to accept the opinion of the independent expert to be correct. So the Tribunal affirmed the refusal of the application. 

So what about in the Federal courts – did the applicant fare any better there? 

No. 

For one thing, the applicant was forced to concede before the Federal Circuit Court that she could not sustain a claim that the Tribunal had fallen into jurisdictional error by determining that it was bound to accept the opinion of the independent expert (as a result of comments made by Judge Katzmann in the case of Minister for Immigration and Citizenship v Maman (2012) FCAFC 13. 

Secondly, both the Federal Circuit Court and the Federal Court rejected the applicant's submission that the passivity of the applicant's husband in the face of abusive behaviour by the applicant's brother-in-law amounted to complicity in the abusive behaviour and thus amounted to family violence within the definition of Regulation 1.21. 

Both the Federal Circuit Court and the Federal Court reviewed whether the expert had considered whether the passive conduct of the applicant's husband had amounted to family violence. 

In the event, the expert had in fact given consideration to this matter. The expert had stated, in his opinion, that while it was “unfortunate” (undoubtedly an understatement!!!) that the husband had been passive, “his failure to act protectively was not the same as encouraging his brother to be abusive or enlisting him to be abusive” towards the applicant. 

The ultimate conclusion of the Federal Court was that mere passivity on the part of the sponsoring partner, without more, in the presence of a third party who commits violence against the applicant is not enough to support a finding that the sponsoring partner also (as a result of his passivity) perpetrated the family violence. 

So the principle do be taken from the Bhalla case is that it is not enough to show that the sponsor was merely a “bystander” to abusive behaviour carried out against the visa applicant by a third party. In order to sustain a claim of family violence in these circumstances, it will be necessary to show that the sponsor must have actively encouraged the third party to engage in the abusive conduct. 

A subsidiary issue was also raised in the Bhalla case which is also worthy of note. 

Before the Federal Court, the applicant claimed that although the Tribunal was empowered to seek the opinion of an independent expert, it was not, unlike the delegate, required to accept that opinion to be correct. 

The Federal Court noted that this same question has been determined by the High Court in the case of Sie Sok v Minister for Immigration and Border Protection (2008) HCA 50. In that case, remarks were made by the members of the High Court to the effect that under section 349(1) of the Act, the Tribunal is empowered to exercise all the powers and discretions” that are conferred by the Act on the Minister and his/her delegates. 

Section 349(1) thus basically says that the Tribunal essentially “stands in the shoes” of the Minister and departmental officers when carrying out its merit review function. 

Accordingly, Federal Court found that under the Sie Sok decision, the Tribunal does have authority to refer a matter to an independent expert when it is not satisfied that relevant family violence has occurred, and that the Tribunal, just like a delegate, is required to accept that expert's opinion as correct. And, the Court held in Bhalla, that is the case whether the claim of family violence is raised for the first time before the Tribunal (as was the case in Sie Sok), or whether the claim had previously been raised at the Departmental level.

Do you think that the outcome in this case was really correct? Isn’t the underlying  policy of the family violence provisions that a person should not feel compelled to remain in a situation where they are subject to domestic violence or abuse in order to preserve their visa status? And isn’t it in the end a very fine line between standing by passively and not doing anything to protect your wife from abusive behaviour by a another family member and actively encouraging or enlisting the person to engage in the abusive conduct? Isn't "passive acquiescence" the same thing as allowing the abusive behaviour to continue?

The chance to voice your opinions, and be a “judge for a day” (!!!) is open to you in the comments section!

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.