Australian Immigration Daily News

Suppose you have a Partner visa case involving an allegation of “non-judicially determined” family violence.

Suppose further that after the Partner visa application is refused by the Department in the first instance, the Tribunal refers the matter to an independent expert for a determination as to whether family violence has occurred. 

Suppose further that the independent expert excluded from consideration claims of threats and verbal abuse communicated to the applicant after the relationship ceased, and a claim of physical violence said to have occurred on a date when it was uncertain whether the relationship had ceased, or not.

Is t jurisdictional error for the Tribunal to exclude from consideration claims of family violence that have occurred after the relationship has ended?

This question was considered by the Full Court in a case that was decided late last week, Perez v Minister for Immigration and Border Protection (2017) FCAFC 180 (24 November 2017).

And the answer unanimously given by the Court, constituted of Judges Besanko, McKerracher and Jagot, was a resounding “Yes!”

Even though clause 1.23(13) of the Migration Regulations provides that the Minister (that is, the Department or the Tribunal) is required to take as correct an opinion of an independent expert as to whether an alleged victim has suffered relevant family violence as “correct”, jurisdictional error occurs when the independent expert fails to form her or his opinion “in accordance with law”.

The problem, and the jurisdictional error in this case, was that the independent expert formed her opinion based on the incorrect belief that the only relevant family violence was family violence that occurred during the relationship, and did not consider family violence that had allegedly taken place after the relationship.

The reason that it was error for the independent expert to exclude incidents of alleged violence occurring after the relationship traces back to the wording of the relevant regulation, clause 1.23(14).

This regulation provides that “the violence, or part of the violence, that led to the independent expert having the opinion that the alleged victim has suffered relevant family violence must have occurred while the married relationship or de facto relationship existed”.

So, in the view of the Full Court, it is not a proper approach for an independent expert to limit her or his consideration to claims of family violence that occurred only when the relationship existed.  Rather, the Full Court held that the correct question for the expert is whether family violence had occurred, and whether the whole or parthad occurred during the relationship.

In other words, in order for a claim of non-judicially determined family violence to succeed, it must be shown that at least some family violence has occurred while the relationship ; however, the independent expert must not exclude from consideration incidents of family violence that are alleged to have occurred after the relationship has come to an end.

There is no requirement that the entirety of the family violence must have occurred during the relationship, only that some part of the violence must have occurred during that time.

What had happened in the Perez case was that the applicant had alleged four separate incidents of physical violence, but in her report the independent expert had identified 4 alleged incidents. The expert excluded the fourth alleged incident from consideration on the basis that it was considered to have occurred after the relationship had ended.   Also, in a “summary table” that was included in the expert’s report, the expert referred only to 3 incidents that were claimed to have occurred prior to the date that the relationship ceased, and did not include in the table an incident that took place after the relationship had ceased.

Also in the report, the expert had referred to evidence put by the applicant that she felt afraid of her husband after the relationship had ended, on the basis of threats and abuse that had been communicated to her after that date, and then said “these examples fall outside the scope of “family violence” within the migration regulations as such examples need to have occurred whilst in the relationship”.

The Full Court found that this statement in the report was reflective of jurisdictional error, in that the expert had proceeded on the basis that family violence, as defined under the regulations, can only occur while a relationship is in existence. 

The correct reading of the regulations, under the Full Court’s decision, is that family violence as defined can occur at any time; what is critical for the purpose of determining whether there has been relevant family violence is that at least some part of the family violence must have taken place during the relationship.

So if you have a case where an independent expert has failed to consider incidents of family violence that have taken place after a relationship has come to an end, then there is a very strong likelihood that jurisdictional error has occurred, and that a judicial review proceeding would succeed.

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