Federal Court (Full Court). Where the Tribunal finds that no marital or de facto relationship as defined in ss 5F and 5CB of the Migration Act 1958 (Cth) existed at any time, is the consequence that the question of family violence for the purpose of cl 100.221(4) of Schedule 2 to the Migration Regulations 1994 (Cth) does not arise for consideration, contrary to El Jejieh?
In El Jejieh, a single judge of the Federal Court (FCA) held that the Tribunal made a jurisdictional error in finding that, as it had found that there had never been a genuine spousal relationship between the sponsor and the visa applicant, the family violence requirements under cl 100.221(4) of Schedule 2 to the Migration Regulations 1994 (Cth) did not need to be considered. In El Jejieh, it was held that "the relevant requirement in cl 100.221(4) is that the applicant held and continued to hold a Subclass 309 visa, not that there was a relationship".
Some of the questions to the Full Court of the FCA (FCAFC) were as follows:
Question 1: Is the Federal Circuit Court permitted to disregard a decision from a higher court on the basis that the judgment was per incuriam?
Question 2: Where the Tribunal finds that no marital or de facto relationship as defined in s 5F (and s 5CB) existed at any time, is the consequence that the question of family violence does not arise for consideration, contrary to El Jejieh?
Question 3: If the answer to Question 2 is 'yes' and the "the decision-maker comes to the view that the required married or de facto relationship has never existed", can the decision-maker either cancel the subclass 309 visa or refuse to grant the subclass 100 visa?
Question 4: Is the interpretation of cl 100.221(4) aided by the "practical issue that, in some cases, it may be easier for a widow to establish that a genuine married or de facto relationship existed than it is for a victim of family violence"?
Question 5: Can it be said that "the introduction of cl 100.221(4) materially in its current form on 11 December 1996 was designed to protect applicants for permanent partner visas from having to remain in a married or de facto relationship with a sponsor who, after that applicant arrived in Australia on a subclass 309 visa, committed family violence against that applicant or a member of the family unit of the sponsor or the applicant or both"?
Question 6: Where the Tribunal finds that no marital or de facto relationship as defined in s 5F (and s 5CB) existed at any time, is the consequence that the question of whether the visa holder has custody, residence or contact orders in relation to children of the sponsor does not arise for consideration?
Question 7: Is the apparent purpose of cl 100.221(2)(c) that, at the time of decision, "at least 2 years have passed since the application was made", to allow the decision-maker to "see what happens after the visa applicant arrives in Australia, a matter which may well go to whether or not the relevant committed and genuine relationship ever existed"?
Question 8: Is the exemption under cl 100.221(7) of the 2-year rule "plainly designed to allow the Minister to waive the requirement where a sponsoring partner has died or there has been family violence"?
Question 9: If the answer to Question 8 is 'yes', is the Minister required to waive the 2-year requirement?
Question 10: Is the requirement under cl 100.221(3)(c) that the applicant "satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died" forward looking?
Question 11: If the answer to Question 2 is 'yes' and the Minister failed to appeal from a separate decision of the Federal Circuit Court (FCCA) which disagreed with El Jejieh but followed it as it was bound to, was the non-citizen Respondent here "entitled to consider that her application to the FCCA had good prospects of success", with the consequence that there should be no order as to costs on the appeal?
The FCAFC answered those questions as follows: