Under what circumstances can the Tribunal decline to consider a claim of family violence?

Ever or never?

That’s a timely question and an important one for RMAs who work with partner visa applications.

And even though it has been hotter than hell in Sydney the last 2 days, hot enough to proverbially fry an egg on the sidewalk (that’s” footpath” for those who only speak “Australian” and have not been foolish enough to go to New York in summertime!!), I’m happy to share the results of a decision on this question that came out of the Federal Circuit Court last week: Boyce v Minister for Immigration & Anor  (2017) FCCA 16 (1 February 2017).

And I won’t even ask you for a King’s Ransom for the following discussion of the case.

Unless you want to pay! In that case, how could I say no? I couldn’t!

These were the facts:

The visa applicant had originally come to Australia from the UK on a “tourist” visa in 2009. Then, in June 2011, he applied for a combined 820/801 partner visa. He was granted the 820 visa on the basis of a de facto relationship with a woman who was a permanent resident of Australia.  However, in July 22013 he had a telephone conversation with an officer of the Department during which he stated that his relationship with his sponsor had broken down. He was given a further opportunities  to comment further on whether he was still in  a genuine and continuing relationship with the sponsor, he did not respond. Accordingly, a delegate of the Minister proceeded to refuse the applicant’s application for a subclass 801 partner visa.  The applicant then sought merits review at the Tribunal.

At the Tribunal stage, the applicant attempted to contend that he had suffered domestic violence in the form of financial abuse at the hands of his former partner. His account was that he had come to Australia in 2009 at the invitation of a daughter, who had planned to sponsor him for a contributory parent visa. He claimed that he had lost most of his savings in the Global Financial Crisis; that he had transferred what was left of his money to his partner; and he asserted that after his partner had used the bulk of his money, he had “ceased to be of use to her” and the relationship had come to an end.

In its decision, the Tribunal had regard to the history of the applicant’s relationship with his sponsor, and made a number of factual findings through which it questioned whether a genuine de facto relationship had ever existed between the applicant and the sponsor.

Critically though, the Tribunal decided not to consider the applicant’s claims that he was the victim of financial abuse that amounted to family violence because the relationship between the applicant and the sponsor had ceased to be in existence at the time of the Tribunal hearing.  The Tribunal’s decision not to consider the family violence claim was not premised on a finding that there had never been a genuine de facto relationship in the first place. And it was on this distinction that the case turned!

What the Court (Judge Cameron) held was that even though it is open to the Tribunal to consider whether a genuine spousal or de facto relationship has ever existed between an applicant and her/his sponsor (even where the Department has already granted a subclass 820 partner visa), and even though it is open to the Tribunal to refuse to consider a claim of family violence  if there has been no genuine spousal or de facto relationship at any time, it is not open to the Tribunal to refuse to consider a claim of family violence just because the relationship has ended by the time that a decision is made on the 801 visa application.

Quite to the contrary, as the Court accurately noted, under clause 801.221(6)(c) of Schedule 2, a claim of family violence cannot be considered unless the relationship has ceased to exist.

Or, as the Court put it, “the lack of a relevant relationship at the time of decision is a precondition to the operation of clause 801.221(6)(c) not an exclusion of its operation”.

In complete fairness, it does appear that there was a possible reading of the Tribunal’s decision where it could be  concluded that what the Tribunal said, or at least meant to say, was that it had determined that there never had been a de facto relationship, and on that basis the Tribunal was refusing to consider the family violence claims.

But the Court concluded that the correct reading and interpretation of the Tribunal’s decision was that the Tribunal had concluded that it could not consider the family violence claim not because there never had been a relationship, but rather because the relationship had ceased to subsist at the time of the decision on the application for the 801 partner visa application.

And that, in the view of the Court, was simply not the right interpretation of the law.

Yep. If there never has been a relevant relationship, the Tribunal can freely decline to consider a claim of family violence.  And so much has been decided in a couple of cases that have been discussed on this blog, namely Pokharel v Minister for Immigration and Border Protection (2016) FCAFC 34 and Sharma v Minister for Immigration & Border Protection (2016) FCCA 1011.

But nope, the Tribunal cannot reject a family violence claim just because the relationship has ended by the time of decision. In fact, it is only when the relationship has ended can a family violence claim be advanced.

There is one other piece of this decision that is worth noting.

The Court found that the Tribunal strayed into jurisdictional error not just because of its finding that it could not consider a family violence claim because the relationship had ceased, but for the further and additional reason that the Tribunal had not alerted the applicant to the possibility that his case could be determined on the basis of whether the applicant had ever been in a genuine relationship with the sponsor.

The Court thus held that by failing to place the applicant on notice of an issue that could have been determinative of his case, the Tribunal had effectively denied him of procedural fairness, and had thus committed error.

 

Courtesy of Migration Alliance
Posted by Michael Arch