Family violence proof gets that much tougher

More cases are emerging in the AAT where the tribunal finds that there never was a partner relationship in the beginning so that it then was able to affirm the refusal of a partner visa without considering any question of family violence.

This is occurring not just at the first stage of a partner visa but at the final stage, ie for the subclasses 100 & 801 partner visas and in such cases the person has held the respective temporary visas, the subclasses 309 (Partner (Provisional) and 820 Partner visas (which are the 2 year temporary visas, of course). Latest in the series of cases on this point  is the Full Federal Court decision of Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Gupta [2022] FCAFC 51 (31 March 2022). Gupta overturned the reasoning in El Jejieh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1103 (El Jejieh), where in the latter, a single justice of the Federal Court found that once the subclass 309 was granted, the AAT could not then say there was never a spousal relationship at time of visa application (noting that the application for a partner visa is an application for both the 309 & 100 visas).

The Court in Gupta said:

“44.we agree with the finding of Jagot J in Hanna at [23] that where the Tribunal found that no marital or de facto relationship as defined in s 5F (and s 5CB) existed at any time, the consequence was that the question of family violence did not arise for consideration.”

“46. With respect, we do not agree with the reasoning in El Jejieh at [204]-[206].”

“48.in our view the interpretation of cl 100.221(4) proposed by Ms Gupta and accepted by Wigney J for the reasons set out in El Jejieh at [204]-[206] gives no weight to the express words of cl 100.221(4)(b).”  That clause states:

(4)  The applicant meets the requirements of this subclause if: 

(b)  the applicant would meet the requirements of subclause (2) or (2A) except thatthe relationship between the applicant and the sponsoring partner has ceased;

In Gupta the Court added:

“51. The decision-maker on the permanent partner visa application has a duty to make a decision by reference to his or her own assessment of the merits of the application based on the materials then before the decision-maker and on a proper construction of the criteria for the grant of the permanent partner visa.  That decision-maker does not conduct a review of the decision to grant the provisional visa and that decision is neither affirmed nor set aside by the decision to grant or refuse the permanent partner visa.  We do note that cl 309.511 provides that the provisional visa terminates upon the decision with respect to the permanent partner visa being made.  Having regard to the existence of cl 309.511, we do not agree that if the decision-maker comes to the view that the required married or de facto relationship has never existed then the necessary course is to cancel the subclass 309 visa, rather than refuse the permanent partner visa.  It appears to us that either course is open to the decision-maker.”

What all of the above means is that at the permanent visa stage, even though the case may seem to be about the family violence question, it is also about whether the partner relationship existed as at the date of visa application.

Often advocates and applicants lose sight of that requirement. In some ways it may appear contradictory but in terms of the psychology of a relationship, a relationship may have been very good at the beginning but later went bad.  Hence it is essential for the applicant in a family violence to give evidence of how good the relationship was at the beginning essentially going through all the matters referred to in Reg 1.09A & 1.15A in a positive light. There must always be a reference to a sexual relationship which existed at time of visa application. Many migration advisers are squeamish about ensuring, (with decorum and sensitivity) that there is evidence before the member of a regular and active sexual relationship at time of visa application.

The second issue which is often overlooked is that the later existence of family violence allows the relationship at time of visa application to be seen in a different light. What may be perceived by a decision-maker as inadequate or negative evidence of the existence of a relationship may in fact be evidence of the seeds of family violence, particularly of psychological abuse.

Therefore, the family violence provisions are part of the prism through which a partner relationship may be viewed even at time of visa application.  It must not be forgotten what the whole purpose of the family violence provisions are. The Australian Law Reform Commission Issues paper (ISSUES PAPER 37 (IP 37) MARCH 2011 Family Violence and Commonwealth Laws) stated:


“The family violence exception

22. The family violence exception was introduced to address ‘community concerns that some migrants might remain in an abusive relationship because they believe they may be forced to leave Australia if they end the relationship’.

Learned author Ana Borges Jelinic, in an article published in Flinders Law Journal (2020) 21 FLJ 259 was more direct, at 269:

Just after the passage of the Migration Regulations 1994 (Cth), the law was amended to include provisions (the FV provisions) to stop women from remaining in an abusive relationship due to fears of deportation.

It is a delicate balancing act, but it must be done, to prove the existence of a partner relationship at the visa application stage and then map how in time  the relationship deteriorated into family violence.


Allegra Boccabella