Perez v Minister for Immigration and Border Protection [2017] FCAFC 180

Perez v Minister for Immigration and Border Protection [2017] FCAFC 180

The independent expert asked the wrong statutory question by considering only whether the appellant had suffered family violence during the relationship, rather than whether she had suffered family violence the whole or part of which occurred during the relationship. This caused the expert to exclude alleged post-relationship threats and verbal abuse and the alleged 5 July 2012 physical violence, so the opinion was not formed in accordance with law. Because the Tribunal's decision was founded on that opinion and the error could not be treated as immaterial, the Tribunal decision and the Federal Circuit Court orders could not stand.

Jurisdiction
Australia
Judgment Date
24 November 2017
Procedural Posture
Migration Appeal Concerning Refusal of a Partner Visa and Non Judicially Determined Family Violence Claims / Appeal From Federal Circuit Court of Australia Orders Dismissing the Appellant's Application to Quash the Administrative Appeals Tribunal Decision
Outcome
Appeal allowed; Federal Circuit Court orders set aside in part; Administrative Appeals Tribunal decision set aside; matter remitted to the Tribunal; costs awarded to the appellant.
Legal Topics
['partner Visa' 'family Violence' 'independent Expert Opinion' 'jurisdictional Error' 'administrative Appeals Tribunal Review']
['migration Law' 'administrative Law'] ['partner Visa' 'family Violence' 'independent Expert Opinion' 'jurisdictional Error' 'administrative Appeals Tribunal Review']

Case Brief

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Procedural Posture

Migration Appeal Concerning Refusal of a Partner Visa and Non Judicially Determined Family Violence Claims / Appeal From Federal Circuit Court of Australia Orders Dismissing the Appellant's Application to Quash the Administrative Appeals Tribunal Decision

Legal Issues

  1. 1 ['Whether the independent expert misconceived the statutory question by treating only violence occurring during the relationship as relevant family violence.' 'Whether the independent expert wrongly excluded alleged incidents occurring on or after 5 July 2012 after the relationship had ended.' "Whether the Tribunal's decision affirming refusal of the partner visa was vitiated by jurisdictional error." 'Whether the independent expert failed to consider the cumulative effect of the material or imposed an erroneous causation requirement.']

Ratio Decidendi

The independent expert asked the wrong statutory question by considering only whether the appellant had suffered family violence during the relationship, rather than whether she had suffered family violence the whole or part of which occurred during the relationship. This caused the expert to exclude alleged post-relationship threats and verbal abuse and the alleged 5 July 2012 physical violence, so the opinion was not formed in accordance with law. Because the Tribunal's decision was founded on that opinion and the error could not be treated as immaterial, the Tribunal decision and the Federal Circuit Court orders could not stand.

Court Disposition

Appeal allowed; Federal Circuit Court orders set aside in part; Administrative Appeals Tribunal decision set aside; matter remitted to the Tribunal; costs awarded to the appellant.

Orders

  • ['The appeal be allowed.' 'Orders 3 and 4 made by the Federal Circuit Court of Australia on 20 July 2017 be set aside.' 'The decision of the Administrative Appeals Tribunal affirming the decision under review dated 11 December 2015 be set aside.' 'The application for review received by the Administrative Appeals...