A recent case at the Federal Court shows us just how important it is for victims of domestic violence to seek legal representation. 

Within this particular case, the visa holder wished to assert that they were a victim of domestic violence. In 2014, he had been granted a Partner (Temporary) (subclass 820) visa, however in 2017 his sponsor for the Partner visa reported to the Department that she had broken up and wished to withdraw her sponsorship.

The visa holder acknowledged to the Department that the relationship had ended but asked the Department to permit him to remain in Australia on a permanent basis ‘knowing that our relationship has lasted over two years and resulted in unfairness from my side’.

The applicant also claimed that he would face hardship if he were required to leave Australia. This evidence was not accepted by the delegate, as they found that he did not satisfy the relevant provisions of the Migration Regulations 1994. The delegate subsequently refused to grant the applicant a permanent partner visa.  

After receiving notice of the delegate’s decision, the applicant then applied to the Tribunal for merits review.  

By letter the Tribunal wrote to the applicant, stating that:  

“If the Tribunal is not satisfied that you are the spouse or de facto partner of the sponsor, and if you do not meet any of the alternative criteria for the grant of the visa, the Tribunal may conclude that you do not meet the requirements for the grant of the visa for which you have applied. The Tribunal may then affirm the decision under review.”

The applicant wrote back to the tribunal with a report from his psychologist, which described the applicant’s background information, the results of a psychological test as well as a recommendation made by the psychologist in support of the applicant obtaining a permanent resident visa.  

A court hearing was attended by the applicant and a friend, which was conducted with the assistance of an Arabic interpreter. Unfortunately for the applicant, the tribunal affirmed the delegate’s decision to refuse to grant the applicant a permanent visa.  

The tribunal considered the following relevant findings in the final decision:  

  • The visa holder did not claim to meet any of the ‘exceptions’ in the alternative criteria in cl 801.221.  
  • The visa holder did not wish to make a formal claim of family violence from the sponsor.  
  • The visa holder stated that the story he submitted, in relation to the evidence given by his psychologist, explained what had occurred in his relationship with the sponsor. 
  • The applicant did not claim that he had experienced family violence from the sponsor. 

The applicant then appealed the Tribunal’s decision, stating that it did not understand his case, in that he was a victim of domestic violence. In this submission the visa holder referred to the FCCA judge’s reasons for refusal, which stated that:  

“The psychologist report is not evidence of a claim for family violence. The applicants written claims and his evidence to the Tribunal do not and could not be taken to be making a claim of family violence at the hands of the Sponsor.”  

He also stated that when he was asked about ‘family violence’ he did not understand exactly what it was and claimed that the interpreter did not explain to him the meaning of this expression.  

In addition to this evidence, he also stated that the deterioration of his mental health, as evidenced by the psychologist, got in the way of proving that he was in fact a victim of domestic violence.  

 Unfortunately, he was unrepresented and did not receive the right advice on the correct pathway to giving evidence for incidents of family violence.  

Once again, the available evidence provided did not meet the requirements and accordingly the Honour found that the FCCA judge had been correct in their findings that the psychologist report was not evidence of a claim of family violence for the purpose of the Regulations.  

In an evidentiary sense, the claim was non-compliant and was therefore dismissed by the Administrative Appeals Tribunal (AAT) and later dismissed by the Federal Circuit Court (FCC).  

If the applicant had the right advice on day one, he would have saved both time, money and may have been successful in obtaining a permanent resident visa. If you need assistance or advice with your visa application, Results Migration are the best in the field, with a team of experienced Immigration Lawyers and Registered Migration Agents that are available to guide you through this complex area of law. Call Results Migration on 1800 808 717 or email us on [email protected] and book your free consultation today!