Jibal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1926

Jibal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1926

The appeal failed because the material before the Tribunal, including the psychologist's report, Ms Hinnaoui's evidence and the fact of psychological treatment, did not meet the evidentiary requirements of reg 1.24 for a family violence claim. Without such evidence, the appellant could not meet cl 801.221(6), reg 1.23(10) had no operation, and neither the Tribunal nor the FCCA judge was required to find or consider that he had suffered family violence.

Jurisdiction
Australia
Judgment Date
22 November 2019
Procedural Posture
Migration Appeal From a Decision of the Federal Circuit Court of Australia Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Partner (residence) (class Bs) (subclass 801) Visa / Appeal to the Federal Court of Australia
Outcome
Appeal dismissed.
Legal Topics
['partner Visa' 'family Violence Exception' 'judicial Review' 'tribunal Duty to Inquire' 'migration Regulations 1994 (cth) Cl 801.221(6)']
['migration Law' 'administrative Law'] ['partner Visa' 'family Violence Exception' 'judicial Review' 'tribunal Duty to Inquire' 'migration Regulations 1994 (cth) Cl 801.221(6)']

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Procedural Posture

Migration Appeal From a Decision of the Federal Circuit Court of Australia Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Partner (residence) (class Bs) (subclass 801) Visa / Appeal to the Federal Court of Australia

Legal Issues

  1. 1 ['Whether the FCCA judge erred by failing to accept that the appellant was a victim of domestic violence or family violence.' 'Whether the Tribunal was required to consider whether the appellant met the family violence exception in cl 801.221(6) of Sch 2 to the Migration Regulations 1994 (Cth).' 'Whether the Tribunal was required to refer the appellant to an independent expert or explain the meaning and evidentiary requirements of family violence.']

Ratio Decidendi

The appeal failed because the material before the Tribunal, including the psychologist's report, Ms Hinnaoui's evidence and the fact of psychological treatment, did not meet the evidentiary requirements of reg 1.24 for a family violence claim. Without such evidence, the appellant could not meet cl 801.221(6), reg 1.23(10) had no operation, and neither the Tribunal nor the FCCA judge was required to find or consider that he had suffered family violence.

Court Disposition

Appeal dismissed.

Orders

  • ['The name of the first respondent be changed to "Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs".' 'The appeal be dismissed.' "The appellant pay the first respondent's costs of the appeal."]