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Pham's Case, Comply with the instrument or crash and burn

The case of Pham at the Federal Court on an appeal from the FCC, has cleared some of the weeds away from the Legislative instrument which, in my opinion, unnecessarily complicated the already complex "family Violence" exception.

See: Pham V Minister for Immigration and Border Protection [2018] FCA 1946.

http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2018/2018fca1946

Briefly stated, Pham sought to rely on the provisions in the regs for the 820/801, specifically criterion 801.221(6) which in effect permitted the Applicant for the Visa to continue to the 801 visa notwithstanding the breakdown of the relationship.

The allegation of family violence was made and the Applicant, absent an AVO or other final orders of the Court sought to go down the "competent persons" pathway and was able to obtain a report from a registered nurse and a psychologist.

So quite apart from the factual matrix and the claims of family violence which were corroborated by the "competent persons", the form of the report made by the competent person, specifically in this case, the Registered Nurse was found to not comply with the Legislative instrument Immi 12/116.

https://www.legislation.gov.au/Details/F2012L02237

The failure to comply with the Legislative Instrument to the extent that the registered Nurse did not comply with the Legislative instrument because it did not detail a course of treatment...

The Legislative Instrument requires the following: 

  • Identifies the alleged victim, and
  • Details the physical injuries or treatment for mental health that is consistent with the claimed family violence.

What is interesting here is that the the decision in Dang v Minister for Immigration [2016] FCCA 1426 ( I could not find a published copy of that decision...hence no hyperlink) which apparently is authority for the proposition that the legislative instrument requires a report  to detail treatment when made by a medical practitioner or a registered Nurse. If it did then it is incorrectly decided and can be distinguished.

Look to the words of the instrument...

  • Details the physical injuries or treatment for mental health that is consistent with the claimed family violence.

I see the word "OR" not "AND"

So whilst it is fair to say that the requirements are prescriptive the issue at first instance at the AAT caused the Application to crash and burn:

(The Judge referred to the FCC decision)

 "In particular, the report from Mr Le did not include the “detail” required by the relevant description in IMMI 12/116. The report does not “detail the physical injuries or treatment for mental health that is consistent with the claimed family violence”. The primary judge was correct to so hold ([25]-[34])."

So what is the take home message on this?

1. Do your homework

2. Give the competent persons the requirements as set out in the instrument.

3. Check and re check the reports.

4.  If engaged at the AAT anticipate problems and don't be panicked into agreeing to anything.

5.  Don't guess and think that you know, check the fine detail.

 

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