Family violence provisions: issues of legality Presented by Katherine Hooper 24 February 2017

What are the typical issues that arise? Remember: issues of legality are not relevant simply for advocates before the Federal courts Questions you might ask yourself include: Has the Tribunal erred with respect to its consideration of the genuineness of the relationship? Are the evidentiary requirements for a family violence claim satisfied? Has the Tribunal provided the independent expert with all relevant material? Is the independent expert's report legally valid? Who decides the 'timing' requirement? When can third party harm satisfy the criteria for grant of the visa? And, who decides this question (is it the delegate/Tribunal, or the independent expert)? Has the Tribunal complied with its obligations pursuant to Division 5 of Part 5 of the Migration Act 1958 (Cth)?

Who decides whether third party harm can satisfy the criteria for the grant of the visa?

Who decides whether third party harm can satisfy the criteria for grant of the visa? Definition of family violence reg. 1.21: "relevant family violence " means conduct, whether actual or threatened, towards: (a)  the alleged victim; or (b)  a member of the family unit of the alleged victim; or (c)  a member of the family unit of the alleged perpetrator; or (d)  the property of the alleged victim; or (e)  the property of a member of the family unit of the alleged victim; or (f)  the property of a member of the family unit of the alleged perpetrator; that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety. Identity of the alleged perpetrator of relevant family violence is not a matter material to the independent expert's opinion. Independent expert’s sole task is to provide an opinion on whether the alleged victim has suffered family violence.

Who decides whether third party harm can satisfy the criteria for grant of the visa? Where does third party harm need to be decided/become relevant? When determining whether a non-judicially determined claim has been raised, see for example Migration Regulations 1994 (Cth) reg. 1.23(9), (12) (my emphasis underlined): (9) For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if: (a) the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and (b) the alleged victim is: (i) a spouse or de facto partner of the alleged perpetrator; or … (12) For subregulation (11), the Minister must be satisfied that the relevant family violence, or part of the relevant family violence, occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator. … See, similarly, reg. 1.23(14). When deciding satisfaction of the time of decision criteria, see for example cl. 801.221(6)(c)(i) (my emphasis underlined): (i)  either or both of the following: (A)  the applicant; (B)  a dependent child of the sponsoring partner or of the applicant or of both of them; has suffered family violence committed by the sponsoring partner;

When can third party harm satisfy the criteria for the grant of the visa? Delegate or Tribunal assessment of fact as to whether the conduct of the third party can be said to be committed by the sponsoring partner. Relevant considerations might include: level of power/control by sponsor over third party; evidence of requests/directions by sponsor; evidence of sponsor condoning, encouraging, rewarding, infliction of harm. See, generally, Bhalla v Minister for Immigration and Border Protection [2016] FCA 395.

Has the Tribunal erred with respect to consideration of genuineness? Generally, a finding that there was never a genuine spousal relationship will be dispositive: see, eg Kaur v Minister for Immigration and Border Protection [2014] FCA 1251. Compare Boyce v Minister for Immigration & Anor [2017] FCCA 16: Tribunal fell into jurisdictional error by holding it did not need to assess family violence claims because it found no genuine relationship at the time of its decision. Can the Tribunal invert the ‘natural’ order of its consideration? That is, refer first to an independent expert and then find that, in any event, there was never a genuine relationship? Important disclaimer: the material contained in this publication is of a general nature only and is based on the law as at 24 February 2017. It is not, nor is intended to be, legal advice.