Australian Immigration Daily News

Imagine that you have a client who is seeking a Temporary Partner visa. 

Imagine further the following scenario: 

Your client is lawfully married to a woman who is an Australian citizen. 

However, since the time that the application was lodged, the relationship has broken down due to family violence perpetrated by your client's sponsoring wife. Your client tells you that this domestic abuse has involved incidents where: the sponsor physically abused the applicant by pushing his head against a car window; grabbed him from behind, took his wallet and stole money; and punched him in the face. 

Under these circumstances, would your client be able to avail himself of subclause 820.211(3) of Schedule 2, which provides that at the time of decision the spousal relationship between the applicant and the sponsor need not be continuing provided that the applicant has suffered family violence committed by the sponsoring partner? 

And imagine further: the Minister's delegate had refused the Temporary Partner visa, but in doing so has not correctly identified the regulation that the delegate has determined has not been satisfied, but refers instead to a regulation relating to the grant of a Residence Partner visa? 

Suppose also that in reviewing the delegate's decision to refuse the visa, both the Tribunal and the Federal Circuit Court also refer to the wrong regulation? 

Would you be able to say “Yahoooo!!!”, we've got a great case! This is a sure winner! We can definitely salvage the client's situation!!! 

Guess what! This exact scenario played out in a case that was decided by the Full Court on 21 March, Pokharel v Minister for Immigration and Border Protection (2016) FCAFC 34. 

And guess what else! The decision of the Full Court went against the applicant, and his application seeking judicial review of the refusal of his visa was dismissed. 

So what went wrong? Why did the applicant lose this case? 

Wasn't the evidence sufficient to support a non-judicially determined claim of family violence? On the facts described above, wouldn't it be inevitable that family violence would have been found ot have occurred? 

Well, the problem for the applicant was that the Tribunal had determined that the applicant and the sponsor had never been in a “married relationship” within the meaning of the Migration Act (even though they were nonetheless “legally married”. So the applicant never passed the threshold test of Regulation 1.23(12). The applicant was not able to show that the domestic violence had occurred at a time when a spousal relationship (as defined in the Migration Act) existed, so the question of whether or not he had suffered family violence did not even arise. 

So this was another case where the aphorism: “Married in the eyes of the law is not the same thing as married in the eyes of the Department” was proven true, to the misfortune of the applicant. 

So why was it that the Department concluded that a married relationship had not existed? 

After all, the applicant produced evidence that he had a joint bank account with his wife, he provided photographs showing him together with his wife and his wife's family, and he had statutory declarations from witnesses attesting to their belief that the relationship was genuine. 

This was not sufficient to satisfy the Tribunal that a spousal relationship haw existed. Weighing against the applicant were the following: the applicant and his wife had not established a shared household, as the applicant had retained his own accomodation in Sydney and his wife lived in a town elsewhere (so the Tribuna was not satisfied that the applicant and his wife did not live separately and apart on a permanent basis); the wife had continued to see a former boyfriend; there was no evidence that the applicant and his wife shared joint responsibility for the care and support of her children; and although the applicant had claimed that the relationship was good at its initial stages and based on love, there was insufficient evidence concerning the degree of companionship and emotional support and whether they saw the relationship as a long-term one. 

So, since the Tribunal had found that a married relationship had never existed within the meaning of the Act, the applicant was not able to show that domestic violence had occurred while a married relationship was in existence, and was thus not able to rely on the exception to the requirement that the spousal relationship must be continuing at the time of decision. 

But wait a minute, wasn't the fact that the delegate, the Tribunal and the Federal Circuit Court had all made reference to the wrong regulations sufficient to establish jurisdictional error, and get the case sent back for re-determination? 

No. 

The Full Court held that not every species of jurisdictional error will warrant the issuance of “constitutional writs” that will result in a decision of the Tribunal's being quashed. 

In cases where the jurisdictional error makes no difference to the outcome, the “writs” will not, as a matter of the court's discretion, be issued. 

And here, the fact that the delegate, the Tribunal, and the Federal Circuit Court had made reference to the regulations governing the grant of Residence Partner visa (Part 800) rather than to those governing the grant of Temporary Partner visas (Part 820) made no difference to the outcome. The regulations for both of these kinds of visas require that an applicant be the spouse of the sponsoring partner. Since the Tribunal had made a factual determination that the applicant had never been in a spousal relationship with his sponsoring wife, he could not satisfy the criteria for the grant of either a Temporary or a Residence Partner visa. He was bound to be refused no matter what criteria his application was tested against. 

The morals of this tale? Being legally married is not by itself enough to support a successful application for a partner visa. And errors by the Department, the Tribunal, and even the Federal Circuit in their reference to the regulations at issue in a case are not enough to warrant the quashing of a Tribunal decision or the grant of an appeal from the Circuit if the errors ultimately make no difference to the outcome.

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