Federal Court (Full Court). Is consideration of a person's health for the purposes of paragraph 9.2(1)(a) of Direction 90 limited to diagnosed conditions? In the absence of express reference to the definition of "family violence" in Direction 90, is it enough to determine that a person is someone else's intimate partner? Was it only for the admin decision-maker to consider whether someone was a member of the Appellant’s family?
Paragraph 9.2 of Direction 90 provided as follows for the purpose of s 501CA(4) of the Migration Act 1958 (Cth) (emphasis added):
9.2 Extent of impediments if removed
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
Paragraph 8(b) of Direction 90 listed the following as one of the primary considerations: "whether the conduct engaged in constituted family violence".
Paragraph 4 of Direction 90 defined "family violence" as follows: "family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful..."
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Is consideration of a person's health for the purposes of paragraph 9.2(1)(a) of Direction 90 limited to diagnosed conditions?
Question 2: In determining who is "a member of the person's family" within Direction 90, is some assistance provided by ss 5CB and 5G of the Migration Act 1958 (Cth)?
Question 3: Do ss 5CB and 5G of the Migration Act 1958 (Cth) contain an exhaustive definition of a member of a person’s family?
Question 4: Is the expression “member of the person’s family”, as used in the definition of “family violence” in paragraph 4(1) of Direction 90, to be construed having regard to its text, context and purpose?
Question 5: If the answer to Question 4 is 'yes', does that context include paragraph 8.2 of the Direction?
Question 6: Should the expression "a member of the person's family" be narrowly construed?
Question 7: Could the expression "a member of the person's family" extend (depending on the circumstances) to a person who is in an intimate relationship with the person?
Question 8: Was the Appellant’s sister a member of his family within the Direction?
Question 9: The FCAFC said: "[T]he Tribunal appears to have proceeded on the basis that, because Ms S was the appellant’s intimate partner, she was therefore a member of his family for the purposes of the definition of “family violence” in paragraph 4(1) of Direction 90, with the consequence that the appellant’s violence against her was “family violence” for the purposes of the Direction... [T]he Tribunal did not expressly refer to the definition of “family violence” in paragraph 4(1) of the Direction and did not expressly consider whether or not Ms S was a “member of [the appellant’s] family” for the purposes of that definition". Did the Tribunal fail to carry out the statutory task?
Question 10: Can it be said that, "while the existence of an intimate relationship is relevant, it is not determinative of whether a person is a member of the person’s family for the purposes of the definition of “family violence”"?
Question 11: Was it only for the Tribunal to consider whether or not Ms S was a member of the appellant’s family for the purposes of Direction 90?
Question 12: Can it be said that, "in circumstances where the Tribunal did not refer to the definition of “family violence” or address whether or not Ms S was a member of the appellant’s family for the purposes of the definition, it is not possible to know whether the Tribunal used the expression “intimate partner” in that way"?
The FCAFC answered those questions as follows:
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