This is the tenth in a series of blogs that are focusing on Migration Law focused on Spousal Visa Applications.
If you have a migration issue and you are not sure if you should file or what documents to file, do not delay, please seek legal advice straight away. Do not wait until it is too late.
Nothing here should be taken as legal advice or a substitute for speaking to a lawyer from our office if you have any questions on 08 63238613. Unsure of what stage your matter is at, or what to do next? A solicitor from Kean Legal Barristers & Solicitors is ready to help.
By Mr. Anthony J Aristei
The visas granted to spouses are one of the major types of substantive visas. A number of our blogs discuss this type of visa.
In order to be eligible for the grant of such a visa, the applicant must be in a ‘married relationship’ with an Australian citizen who is the nominating spouse. That requirement must be satisfied, both at the time the application is lodged and at the time when the decision is made.
What happens if the applicant is experiencing domestic violence?
There are some exceptions to that requirement. In particular, the requirement will not be strictly applied if the applicant can show that ‘domestic violence’ has been committed by the nominating spouse.
Sufficient proof of domestic violence has become a complicated legal issue – as shown in a number of migration law cases.
How an Applicant provides evidence of domestic violence
Procedurally there are different ways in which a visa applicant can give the Department of Home Affairs Immigration and Citizenship (“Migration Department”), Administrative Tribunal, or Federal Courts. This will also depend on what evidence they are trying give or if it is a document they are trying to file. There is no one-size fits all for these types of issues.
An example of a document to show domestic violence may be a transcript of a Final Order Hearing for a Family Violence Restraining Order where a Magistrate has made a finding that the applicant’s partner has committed ‘family violence’.
Case Example
The issue of domestic violence and the evidentiary rules was the issue in the case of Ejueyitsi v MIMA [2007] FCAFC 89. In that case the applicant had filed statutory declarations about domestic violence given by her two different doctors.
Unfortunately for the visa applicant, she was not successful. The Federal Court rejected the statutory declarations about domestic violence given by her two different doctors because neither of them complied with the Federal Court Rules.
One of the key forms of proof is the lodgement of a statutory declaration by a qualified practitioner. The declaration must state his or her opinion that the applicant was a victim of domestic violence committed by the applicant’s spouse.
It is now generally accepted that the stated ‘opinion’ need not be actually expressed, it can be implied or inferred. However, it must otherwise satisfy the requirements of the particular migration regulation:
Therefore, the basis and conclusion for the opinion must be adequately communicated.
It is not sufficient if the declaration merely states that:
- The evidence is consistent with acts of domestic violence; or
- The applicant’s evidence is that she has suffered domestic violence; or
- The applicant has most likely suffered domestic violence.
Such statements are assertions. They do not constitute legally admissible evidence.
When preparing a statutory declaration, the underlying facts must clearly be set out before a conclusion can properly be stated.
The Takeaway
As we have discussed in our previous blogs, it is important to follow any procedure or rules of evidence that have been prescribed. Otherwise, there is a risk that the evidence you are trying to get the Migration Department, Administrative Tribunal or Federal Court to consider can be rejected.
If you have a problem or difficulty relating to your visa or application, we highly recommend that you speak to us to obtain legal advice and representation. We can be contacted on our 24/7 office number on +61 8 6323 8697