Did you know that one way to get your permanent partner visa (Subclass 801 or Subclass 100) is by demonstrating family violence? You may know that family violence was one of the ways to continue to get your partner visa without sponsorship but it is not easy. You also still need to show that you were in a genuine and continuing de facto partner or spousal relationship up until you separated, and that the family violence was suffered during the relationship.
We have seen many live cases and court cases that generally fail at the Departmental level for not providing sufficient evidence to demonstrate the 4 aspects of the relationship. A lot of the applicants focus on providing evidence of the family violence and neglect that the hardest part is to still satisfy the 4 aspects of the partner relationship up until the relationship breakdown.
Recently, there was a court case decided at Federal Court of Australia involving family violence: Gunatillake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 387
- The Sponsor complained that the partner visa applicant did not earn enough money during their marriage.
- The Sponsor controlled the partner visa applicant’s finances and humiliated him in front of friends causing him to feel suicidal during the relationship, loss of self-esteem and self-confidence. He claims that he was in severe depression during the relationship. He had obtained psychologist’s reports etc. to support this.
- The partner visa applicant did 90% of the cooking and cleaning whilst they lived together.
- In essence, the permanent partner visa was rejected not on the basis that he could not show family violence but because he could not demonstrate that he was still in a genuine marital relationship with his wife before it broke down.
This family violence case was successful on appeal to the Federal Court of Australia on the basis that the Tribunal had failed to consider relevant evidence in the sense of giving active intellectual consideration to it (footnote1). The Court held at [74]:
In my view engaging in an active intellectual process directed to relevant evidence involves real consideration of it, not merely a recitation of parts of it without consideration of its significance or weight. Lawful decision-making by an administrative decision-maker must be based on the evidence and it requires genuine consideration of the evidence. Care must, however, be taken to ensure that the Court does not stray into merits review.
Nevertheless, it is anticipated that when remitted to the Tribunal who will reconsider it on its merits may fail the application again on the basis of not being satisfied based on the materials that they were in a genuine spousal relationship.
Do not fall into the same mistake. Family violence claims for partner visa applications may not be as straightforward as you think it is. It is best to find a legal professional to present your claims to ensure all legal requirements are strongly represented and fulfilled.
You can contact one of our lawyers to enquire further.
footnote1
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [46] (Griffiths, White and Bromwich JJ); Tickner v Chapman [1995] FCA 987; (1995) 57 FCR 451 at 462 and 495 (Black CJ, Burchett and Kiefel (as her Honour then was) JJ); Minister for Immigration v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111]-[112] (Robertson J).
