ISSUE / RELEVANT AUTHORITIES, IF ANY
Has the Tribunal erred with respect to its consideration of the genuineness of the relationship?
Note that this ordinarily takes place prior to assessment of claimed family violence. / Boyce v Minister for Immigration & Anor [2017] FCCA 16: Judge Cameron found jurisdictional error in a decision of the Tribunal which had held that it did not need to consider claimed family violence by reference to a finding that there was no genuine spousal relationship at the time of decision.
See, generally, Kaur v Minister for Immigration and Border Protection [2014] FCA 1251 [43]-[44]; El Rifai v Minister for Immigration and Citizenship [2011] FMCA 9 at [43]-[47]
Are the evidentiary requirements for a family violence claim satisfied?
Consider, potential requirement for a 'treating' relationship for certain occupational categories, as opposed to the provision of a report for the purposes of the evidentiary requirements.
Consider, if the evidentiary requirements are not met (noting this is a question of jurisdictional fact for the Court) but the Tribunal nevertheless obtains the report of an independent expert, would the Court refuse to grant relief on discretionary grounds?
Or would a forward looking futility test be applied such that on any remittal the applicant could remedy the evidentiary deficiency? / See IMMI 12/116; Migration Legislation Amendment Regulation 2012 (No. 5) (SLI 2012, 256), Schedule 6.
For discussion of the evidentiary requirements (prior to the above amendments) see, for example, Minister for Immigration and Citizenship v Ejueyitsi (2007) 159 FCR 94 at [33]; Du v Minister for Immigration and Multicultural Affairs [2000] FCA 1115 at [18]-[19]; Alam v Minister for Immigration and Border Protection [2015] FCCA 702.
Has the Tribunal provided the independent expert with all relevant material? / See, Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 as to when jurisdictional error for failure to consider relevant evidence will be demonstrated.
Note that where the applicant is invited to comment on an independent expert's report under section 359A, and provides a response raising entirely new factual material, or raising matters that cast doubt upon the validity of the report, the Tribunal may be obliged to refer that response back to the independent expert/ an independent expert: Al-Momani v Minister for Immigration and Citizenship [2011] FMCA 453 at [50]-[52]; [57]..
Is the independent expert's report legally valid?
Relevant questions might include:
Has the independent expert applied the Migration Regulations correctly?
Has the independent expert complied with his/her duty of procedural fairness at common law? / Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115 at [65]-[69]: if an independent expert commits an error of law such that the legal questions asked by him/her did not relate to the Regulations, then an error in the expert's decision will infect a decision of the Tribunal if it proceeds to rely on the expert's erroneous decision.
Minister for Immigration and Citizenship v Maman (2012) 200 FCR 30: an independent expert owes procedural fairness to an applicant who claims to have suffered domestic violence for the purposes of Division 1.5 of the Regulations and whose claims are referred to the independent expert under the Regulations.
Consider, did the independent expert have before him/her credible, relevant and significant material adverse to the applicant's claims? Was any procedural fairness obligation discharged, for example, at interview?
Who decides the 'timing' requirement?
The family violence, or part of the family violence, must have occurred while the married or de facto relationship existed. Is it for the delegate/Tribunal or the independent expert to determine whether relevant family violence occurred while the relationship existed?
Note that the task of the independent expert is only to give an opinion as to whether the visa applicant has suffered the relevant family violence claimed. The definition of relevant family violence does not incorporate the timing requirement. / See Migration Amendment Regulations 2009 (No. 12) SLI 2009 No. 273, Schedule 4.
Parvin v Minister for Immigration & Anor [2015] FCCA 302, at [27]: '[t]he Tribunal was correct to proceed on the basis that it was a factual question for it to decide whether relevant family violence, if accepted, occurred during the course of the spousal relationship.'
When can third party harm satisfy the criteria for the grant of the visa? And, who decides this question (is it the delegate/Tribunal, or the independent expert)?
Is the identity of the alleged perpetrator of relevant family violence a matter material to the independent expert's opinion at all?
Note that the definition of relevant family violence does not turn on, or contain any requirements in relation to, the identity of the alleged perpetrator. The independent expert's task is to provide an opinion on whether the alleged victim has suffered relevant family violence. / See Bhalla v Minister for Immigration and Border Protection [2016] FCA 395, from [45]. Mere passivity is not sufficient: at [47]. Note however that, in that case, it was the independent expert who had addressed the issue.
Has the Tribunal complied with its obligations pursuant to Division 5 of Part 5 of the Migration Act?
Has there been compliance with sections 359A and 360 of the Act? / Is a further section 360 hearing required on receipt of an independent expert's report, on the basis that there is a new dispositive issue, being the legal validity of the report?
And, if the Court finds a breach of section 360 has occurred, but also finds as a jurisdictional fact that the report is valid, would it refuse to grant relief on the basis that the statutory regime compelled the adverse outcome?
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.