Marriage Visa Kean Legal Barristers and Solicitors

Migration Law Blogs Series (MLBS) 18-Migration visas- Partner / Marriage Visa – Family violence issues  

By Mr Anthony J Aristei

This is the eighteenth in a series of blogs that are focusing on Migration Law Marriage Visa

If you have a migration issue and you are not sure what stage it is at or if it should be taken to the Court or Tribunal please contact our office for legal advice. It is best to seek this advice early, than to wait until it may be 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 form Kean Legal Barristers & Solicitors is ready to help.

The primary set of visas for the sponsorship of a visa applicant by an intending marriage or de facto partner are subclasses 309 and 100.

  1. The first visa, subclass 309, is a provisional visa.
  1. The second visa, subclass 100, is a permanent visa. However, they are both effectively applied for at the same time.

How do subclass 309 and subclass 100 work?

The two visas act in a complementary way. The provisional visa (subclass 100) allows the applicant to initially enter Australia. It is a temporary visa, which allows the applicant to live with his or her partner while the application for a permanent visa is being processed.

The first of these visas is practically necessary as the final application process may take 2 or 3 years. The time period will depend upon such factors as the length of the relationship and whether there are children of the relationship.

Even if the relationship with the sponsoring spouse has ceased before the grant of a permanent visa, the visa may still be granted in particular circumstances.

Those circumstances apply where:

  • The applicant has suffered ‘family violence’ after entering Australia; and
  • That family violence has been committed to him or her by the sponsoring spouse.

The Australian Government Department of Migration can conclude such violence has, in fact, been committed if there is direct evidence of either:

  1. a Court order to protect the applicant against violence by the sponsoring spouse (e.g. a restraining order); or
  1. a conviction (by a Court) against the sponsoring spouse in relation to such violence towards the applicant.

However, if there is no evidence of that kind, then the Australian Government Department of Migration must itself determine whether or not family violence has occurred. If so, it must apply the definition and procedures set out under the Migration Act 1958 (Cth) when making that decision.

If the Australian Government Department of Migration makes an error of law in the course of its decision, then an application for review can be made to the Administrative Appeals Tribunal (‘AAT’). The application is generally required to be lodged within a limited time-frame.

If the Administrative Appeals Tribunal (‘AAT’) itself makes an error of law, an applicant can seek a judicial review from the Federal Circuit Court (i.e. within a limited time period).

There are also other avenues of appeal available within the Federal Court system.

(Discussion of the judicial review and appeal procedures are contained in a number of related blogs).

Family Violence in Partner Visas

Determining whether or not there is sufficient evidence of family violence has been the subject of a considerable amount of case-law.

In summary, the following points arise from several of the noteworthy Court cases which have reviewed this type of visa:

  1. For the purposes of the definition of Family Violence under the Migration Act, actual physical violence or harm to the applicant need not be shown;
  1. Family violence is established by 2 key elements-
  1. a reasonably based fear or apprehension about his or her well-being or safety; and
  1. that fear has been caused by the sponsoring spouse’s conduct – see Migration Regulation 1.21;
  1. The offending conduct or behaviour of the sponsoring spouse may consist of his or her menacing actions, or any threatening words or statements, communicated to the applicant;
  1. Even if the offending action or conduct is primarily committed by a third person (ie not the sponsoring spouse), family violence may still be committed in some circumstances. For instance, it might occur if the sponsoring spouse had encouraged or incited the offending behaviour.

In the case of Bhalla v MIBP (2015) FCCA 2381, the Federal Court accepted the last stated proposition of law. However, the Court dismissed the claim of family violence because there was no evidence of incitement or encouragement by the spouse personally. (In that particular case, the offending conduct was not committed by the sponsoring spouse, but by his brother).

  1. The applicant must provide special evidence from a qualified health practitioner (usually a doctor or a psychologist) to satisfy the Australian Government Department of Migration that family violence has occurred;
  1. If the Australian Government Department of Migration is not satisfied that family violence has occurred after considering the applicant’s evidence, it must nevertheless obtain an ‘Independent expert’ report on this question;
  1. The Australian Government Department of Migration must accept the outcome of the independent report on the particular question of whether or not family violence has occurred;
  1. If an application is later made to the Administrative Appeals Tribunal (‘AAT’), a fresh independent expert report can be obtained by the Administrative Appeals Tribunal (‘AAT’) in the same manner;
  1. Like the Australian Government Department of Migration, the Administrative Appeals Tribunal (‘AAT’) is also obliged to accept the outcome of the expert report it has received on this issue – Sie Sok v MIBP (2000) 238 CLR 251.

The migration lawyers in our firm are also experienced in Family Law and Restraining Orders. They have previously appeared in Magistrates Court and Family Court jurisdictions on behalf of clients in disputes involving family violence and helping clients making family violence restraining orders. 

If you require professional assistance by a migration lawyer to assist with your matter, we can be contacted on: +61 8 6323 8697

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