Best interests of a child
By Lorenzo Boccabella, Barrister-at-law, specialist in migration law (5 Jan 2024)
By Lorenzo Boccabella, Barrister-at-law Specialist in migration law
Best interests of a child are material to determining if there are compassionate or compelling circumstances for the grant of a partner visa where the de facto relationship was not in existence for 12 months as at the date of visa application
It is refreshing as we start 2024 that the Courts once again recognised that the Bests interest of a child are material even in partner relationships of short duration. This emerged from the Federal Court decision of Kolora v Minister for Immigration [2023] FCA 1583.
Generally, with exceptions a de facto relationship must be in existence for 12 months before a partner visa is lodged, Reg 2.03A, as relevant states:
2.03A Criteria applicable to de facto partners
(1) In addition to the criteria prescribed by regulations 2.03 and 2.03AA, if a person claims to be in a de facto relationship for the purposes of a visa application, the criteria in sub-regulations (2) and (3) are prescribed.
…
(3) Subject to subregulations (4) and (5), if:
(a) a person mentioned in subregulation (1) applies for:
…
(iv) a Partner (Provisional) (Class UF) visa; or
(v) a Partner (Temporary) (Class UK) visa; or
…; and
(b) the applicant cannot establish compelling and compassionate circumstances for the grant of the visa;
the Minister must be satisfied that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application.
Of course, what is sometimes misunderstood is that the ‘compelling and compassionate circumstances’ assessment takes place at time of visa decision NOT at the time of visa application. Time of visa decision, of course, is the date when the AAT makes a decision, (if the applicant had applied for review).
In Kolora the child to the relationship was born after the partner visa application was lodged. In essence the AAT dismissed the existence of that child as a ‘compelling and compassionate circumstances for the grant of the visa’.
The self-represented sponsoring husband, told the AAT:
[MR A]: … I don’t want to send my daughter back to Fiji. Very poor place there they live in a village with no water there. Hardly electricity there and how my daughter going to suffer there mosquitoes and things there and having to live without my daughter and my wife …
The Court concluded:
“138.The consideration of “compelling and compassionate circumstances for the grant of a visa” is not dependent of the factors which must be taken into account when considering whether the de facto relationship has existed. Examples of those factors appear in reg 1.09A.
139.When considering “compelling and compassionate circumstances”, the Tribunal should have engaged in an intellectual balancing of the best interests of the daughter. No such balancing, nor even identification of best interests, took place.”
It was unfortunate that this matter had to go all the way to an appeal to the Federal court to determine that an assessment of the ‘best interests of a child’ was part of the process of determining if question of ‘compelling and compassionate circumstances for the grant of the visa’.
One practice point that emerges in this case is the absence of an AAT transcript before the lower court, the Federal Circuit Court. In all circumstances the audio file of the AAT hearing should be obtained and a transcript one. This need not be done by professional transcript companies, I often have law students available to do this work (paid of course) which is sufficient.
Attached is the decision of Kolora
Note our next 10-point CPD session is on Sunday 27 January 2024 at the Gold Coast (the Australia Day long weekend, where we have an in-depth Masterclass on conducting reviews to the AAT.