Federal Court. Was the applicant's girlfriend, with whom he had been in a relationship for 1.5 years but only living together for 2-3 weeks and who was neither his spouse nor de facto partner, nevertheless his family member for the purpose of cl 8.2 of Direction 90?
A delegate decided under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the mandatory cancellation of the applicant's visa. On review, the Tribunal applied Direction 90 to the question of whether there was "another reason" to revoke the cancellation and affirmed the delegate's decision.
Before the Federal Court (FCA), the applicant argued that the Tribunal misunderstood Direction 90 by treating the applicant's girlfriend as a member of his family and therefore finding under cl 8.2 of the Direction that he had committed family violence against her. The FCA summarised the applicant's argument as follows:
121 First, there was no evidence that Ms S was a “family member” for the purposes of Direction 90, and the evidence did not rise higher than Ms S was the applicant’s “girlfriend for a time”.
122 Second, s 5G(2) of the Act provides that a person’s family includes a de facto partner and that the literal dictionary definition of family in the Cambridge and Collins Dictionaries is “a group of people who are related to each other, such as a mother, a father, and their children”. On neither approach, the applicant submitted, is a non-citizen’s girlfriend a member of the person’s family because the status of a girlfriend, in and of itself, is not co-extensive with a de facto partner.
123 Third, the protection order application made by Queensland Police on 28 July 2013 (Protection Order Application) recorded that the applicant and Ms S (referred to throughout as the “aggrieved”) were not in a de facto relationship, the applicant and Ms S were a couple and in an intimate “boyfriend/girlfriend relationship”, the applicant had been living with Ms S and her mother for two to three weeks before the alleged incident, and Ms S referred to the applicant as her boyfriend.
124 Fourth, in its consideration of an alleged assault by the applicant on 14 September 2014 and an assault occasioning bodily harm on 7 January 2015, the Tribunal did not make any finding that the applicant and Ms S were in a de facto relationship.
125 Fifth, the Tribunal did not expressly consider the definition of family violence in cl 4(1) of Direction 90 and simply assumed, without any actual consideration, that the applicant met the description of “family member” in cl 4(1). It erroneously concluded that,because the applicant and Ms S were “intimate”, that this met the description of a family member of a non-citizen for the purposes of cl 4(1) of Direction 90.
126 Sixth, the Tribunal’s misconstruction of the expression “family violence” also infected its analysis of the primary consideration of the protection of the Australian community under cl 8.4 of Direction 90, as the criteria of “family violence” is included in cl 8.4(2)(a).
127 Seventh, the Tribunal’s misapprehension of the law could have realistically resulted in a different outcome. The error infected the Tribunal’s reasoning with respect to the primary considerations of the protection of the Australian community, family violence and expectations of the Australian community. But for the impugned errors, the Tribunal could realistically have offset or moderated the “adverse ascription of weight to the impugned primary considerations” and the Tribunal could realistically have come to a different result when it ultimately conducted its balancing exercise.
One of the questions to the FCA was whether the Tribunal misinterpreted cl 8.2 of Direction 90.
The FCA answered that question as follows:
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