Family violence: can applicant & sponsor be neither spouses nor de facto partners?

Federal Court: Appellant was granted a subclass 820 visa and then claimed to have suffered family violence committed by the sponsor. Appellant sought to rely on family violence (FV) provisions for subclass 801 visa. Could the FV provisions be satisfied if there never was a relationship between the sponsor and the Appellant? If not, could they be satisfied if the relationship was not spousal or de facto in nature? Was AAT bound to accept that the relationship existed at the time of application, given that the delegate had been satisfied that the relationship existed at that point in time?

The Appellant made a combined application for visa subclasses 820 and 801 (partner).

The Department granted the Appellant visa 820 (temporary), after which her relationship with the sponsor broke down and she claimed to have suffered family violence committed by him.

Schedule 2 to the Migration Regulations 1994 (Cth) provided as follows for subclass 801 (permanent):

801.221

(1)    The applicant meets the requirements of subclause (2) [or] (6) …

(2)    An applicant meets the requirements of this subclause if:

(a)    the applicant is the holder of a Subclass 820 visa; and

(b)    the applicant continues to be sponsored for the grant of the Subclass 820 (Partner) visa by:

(i)    the sponsoring partner; or

(ii)    the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored the applicant for that visa; and

(c)    the applicant is the spouse or de facto partner of the sponsoring partner; and

(d)    subject to subclauses (6A) and (7), at least 2 years have passed since the application was made.

(6)    An applicant meets the requirements of this subclause if:

(a)    the applicant is the holder of a Subclass 820 visa; and

(b)    the applicant would meet the requirements of subclause (2) … except that the relationship between the applicant and the sponsoring partner has ceased; and

(c)    either or both of the following circumstances applies:

(i)    either or both of the following:

(A)    the applicant;

(B)    a dependent child of the sponsoring partner or of the applicant or of both of them;

has suffered family violence committed by the sponsoring partner;

The Appellant sough to rely on cl 801.221(6), but a delegate refused her a subclass 801 visa based on PIC 4020 (false or misleading information).

The Appellant then applied to the Tribunal (AAT) for merits review of the delegate's decision.

The Tribunal found that the sponsor and the Appellant had never been in a relationship to begin with, with the result that cl 801.221(6)(b) was necessarily not satisfied, whether or not family violence in fact occurred.

Consequently, the Tribunal affirmed the Delegate's decision on the basis that cl 801.221(6) was not satisfied, but not on the basis of PIC 4020.

The Appellant subsequently applied to the Federal Circuit Court (FCCA) for judicial review of the Tribunal's decision.

The FCCA dismissed that application and the Appellant eventually appealed the FCCA's decision to the Federal Court (FCA), the questions to which were as follows:

Question 1: Could cl 801.211(6) be satisfied if there never was a relationship between the sponsor and the Appellant?

Question 2: If the answer to Question 1 is "no", could cl 801.221(6)(b) be satisfied if the relationship between the sponsor and the Appellant was not a spousal or de facto relationship?

Question 3: Was the Tribunal bound to accept that the relationship existed at the time of application, given that the Minister's delegate had been satisfied that the relationship existed at that point in time?

The FCA answered those questions as follows:

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