Australian Immigration Daily News

What does the term “domestic violence” mean in the context of the Migration Regulations 1994?

Does the term “domestic violence” necessarily involve physical violence? Or can the violence be of a “psychological” nature?

And, when there is a non-judicially determined claim of domestic violence, is the opinion of the Independent Expert who is called upon to determine whether domestic violence has occurred always to be accepted as correct, and therefore always unassailable and beyond challenge?

These interesting and important questions were addressed in a recent decision of the Federal Circuit Court in the case of Karsten v Minister for Immigration and Border Protection (2019) FCCA 1560 (13 June 2013).

The background of this case was that the applicant, a citizen of Germany, had been granted a Subclass 820 “provisional”  partner visa in April 2002. In September 2003, Australia received an extradition request from Germany in relation to a warrant for the applicant’s arrest in connection with events that had occurred in Germany in 1997. The applicant was taken into custody by the Australian Federal Police in 2006, returned to Germany, and then convicted of an offence and sentenced to 3 ½ years imprisonment.

However, following the applicant’s return to Australia in 2010, a delegate of the Minister decided not to cancel the applicant’s Subclass 820 visa on “compassionate and compelling grounds” that are not described in the decision of the Federal Circuit Court.

The applicant’s relationship with his Australian wife ceased at some point, but he nonetheless sought a Subclass 801 partner visa on the basis that he had been the victim of domestic violence that had allegedly been perpetrated against him by his former wife.

His claims of having suffered domestic violence included  a claim that his wife had threatened to have him deported from Australia.

Was this threat sufficient to amount to domestic violence?

The Independent Expert who was appointed by the Tribunal to evaluate the case did not think so.

It was the Expert’s view that threats of being deported from Australia were not, in and of themselves, sufficient to establish a claim of domestic violence.

Judge Manousaridis, who presided over this case, reviewed the relevant authorities and came to the conclusion that domestic violence is not limited only to physical violence; it can also include “belittling, intimidating, frightening” or other similar conduct, or “an abuse of power within a domestic relationship such that the less powerful partner in the relationship experiences fear of psychological or physical harm”.

Well, what about Regulation 1.23(1)(c), which provides that the Minister (and thus the Tribunal) must accept the opinion of the Independent Expert who has been appointed to evaluate claims of domestic violence to be correct?

Doesn’t that regulation completely preclude or prevent a challenge to the opinion of the Independent Expert?

No, as it was held in Karstens, it does not.

When an Independent Expert’s opinion is formed on the basis of an incorrect understanding of the term “domestic violence”, then the opinion is one that is not one that is arrived at according to law, and therefore, is an opinion that the Tribunal is not  bound to accept.

In Karstens, Judge Manousaridis concluded that the expert’s opinion that threats of deportation cannot by themselves be sufficient evidence of domestic violence but can, when considered in combination with other matters, be relevant to determining whether domestic violence has occurred, was reflective of a misunderstanding of the term “domestic violence”.

It was Judge Manousaridis’s view that where a sponsor makes a threat to have the holder of a Subclass 820 provisional partner visa deported to his or her home country in circumstances where the visa holder is afraid or otherwise unwilling to return to his or her home country, and the sponsor is aware of this, then such a threat (to bring about deportation by terminating the relationship) is something that is capable of being “domestic violence”.  Judge Manousaridis considered that a threat of ending a relationship in order to bring about the deportation of the holder of a provisional partner visa is a form of taking advantage of a power imbalance in a relationship to intimidate, belittle or frighten a partner.

Further, Judge Manousaridis took the view that the Independent Expert’s statement that “threats of being deported from Australia are not sufficient evidence of domestic violence in their own right” was an implicit way of saying that a person’s fear of returning to her or his home country is not relevant to determining whether the person has suffered domestic violence, and was an incorrect statement of the law.

So, the takeaways from this case is that threats of ending a relationship in order to secure the deportation of a person holding a provisional partner visa can amount to domestic violence; and that when an Independent Expert incorrectly proceeds on the basis that such threats are not relevant to the issue of whether the visa holder has suffered domestic violence, then the expert’s opinion does not need to be accepted as correct by the Tribunal. 

Such an opinion, based on an incorrect understanding of the law, can be impugned.

If you found this article useful, stay tuned: more is coming on the MA Website, and more too will be available when the Migration Messenger launches, on or about 1 July!