Family and Spousal Visas: Domestic Violence Evidence

Matter: Relationship between evidence of domestic violence and existence of genuine marital relationship. In Liang v Minister for Immigration & Anor [2008] FMCA 9 Justice Riley FM affirmed the tribunal decision.

Refusal of spouse visa - evidence from applicant of ‘domestic violence/ from sponsor - this is not a matter our firm handled – reference was made by the applicant to Pham v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FMCA 827 which noted at [140] that “theoretically … domestic violence may show the state of the relationship earlier” and it was put otherwise said that the Tribunal was required to take into account relevant evidence.

In El Mohamad v Minister for Immigration and Citizenship [2007] FMCA 345 at [30] cited by the respondent – also put that Tang v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 60 at [14] held that the “Tribunal was not required to consider domestic violence under 820.211(8)(d) (Migration Regulations) unless it was satisfied of the existence of the necessary relationship at one point in time” – note also Mehmedoski v Minister for Immigration and Citizenship [2007] FMCA 226 at [44] where it was held that, “the Tribunal can consider whether or not there ever was a spousal relationship before being required to consider whether domestic violence has occurred”.

It was held per Riley FM that regulation 1.15A(3) requires the Tribunal to have regard to all the circumstances of the relationship and domestic violence is one such circumstance. It was held that in considering an application for a partner visa where there is a claim of domestic violence, it is entirely proper for the Tribunal to undertake a two-stage process - the first stage involves determining whether there has ever been a genuine spousal relationship - if so, the Tribunal should undertake the second stage, which involves determining whether the domestic violence provisions have been satisfied.

Her Honour held however, the two-stage process does not mean that evidence of domestic violence is necessarily irrelevant to the question of whether the applicant and sponsor have ever been in a genuine spousal relationship; for example, the evidence relating to domestic violence might include evidence that supports a claim of cohabitation, or a claim that the applicant and sponsor were known to friends, family or the authorities as a couple - clearly, domestic violence occurs in the context of a relationship of some sort - sometimes, the Tribunal will determine that the relationship was a genuine and exclusive spousal relationship and sometimes it will conclude that it was some other sort of relationship, or alternatively there was no domestic violence at all.

In this present matter, the Tribunal accepted that the relationship between the applicant and the sponsor “endured for about 4 years” however, it was “not persuaded that there was ever a mutual commitment to a spousal relationship” because the Tribunal concluded that it was “far more likely” that the sponsor and his ex-wife “were still engaged in a marital relationship, despite their divorce.” While there was strong evidence in this case that the sponsor was not in an exclusive relationship with the applicant, there was also some evidence that he cohabited with her.

It was held that the Tribunal was not entitled to ignore evidence which went to the question of cohabitation, where that question was central to the Tribunal’s decision especially so, given reg 1.15A(5). Nonetheless, the Tribunal in this case does appear to have had a separate reason for affirming the decision under review - that reason was that the relationship between the applicant and the sponsor was not to the exclusion of all others, in that the sponsor was found to have been in a continuing marital relationship with his ex-wife.

The Tribunal accepted that the applicant and the sponsor had a significant and substantial relationship – it elsewhere expressly accepted that the applicant and sponsor had a relationship which lasted for four years. In these circumstances, the domestic violence evidence could not have gone further than establish matters that the Tribunal expressly or impliedly accepted in connection with its conclusion that the relationship between the applicant and the sponsor was not to the exclusion of all others.

Accordingly, a more express consideration of the domestic violence evidence could not, on any view, have made a difference to that separate conclusion or the Tribunal’s ultimate decision.

If the Tribunal had not given a separate reason for affirming the decision under review, the court would have been inclined to allow the application because the Tribunal was under the misapprehension that it could ignore evidence concerning domestic violence in determining the genuineness of the relationship, even where that evidence was relevant to the genuineness issue. While the Tribunal referred to the evidence relating to domestic violence in the “Claims and Evidence” segment of its reasons, it did not refer to any of that evidence in the “Findings” segment of its reasons.
It did not specifically reject or say it was giving no weight to any of the domestic violence evidence - these matters support the conclusion that the Tribunal considered, wrongly, that it could quarantine the domestic violence evidence from its consideration of whether the relationship between the applicant and the sponsor was a genuine spousal relationship. There had been no jurisdictional error because of separate reason for the decision.