On 1 December 2020, we had a win for our client Ms S in the Federal Circuit Court of Australia in the matter of S v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor. Ms S was appealing (seeking judicial review of) a decision of the Administrative Appeals Tribunal to affirm the decision of the Minister to refuse to grant her a permanent Partner (Subclass 100) visa.

Ms S came to Australia from India on a temporary Partner (Subclass 309) visa. Ms S had married her sponsor in an arranged marriage about 1 year beforehand. Unfortunately, Ms S’s husband was a cruel man and subjected her to family violence while they were living together in Australia. Ms S eventually escaped to a women’s refuge.

By the time of her escape, Ms S had not yet been granted the permanent Partner (Subclass 100) visa. Some of the workers at the women’s refuge helped her inform the Department of Immigration of her change in circumstances. The Department wrote to Ms S and she put forward a claim to be eligible for the grant of the permanent partner visa on the basis she had suffered family violence.

The Department of Immigration ultimately considered that it did not have to consider Ms S’s claims of family violence. The Department instead found that she was never in a spousal relationship with her husband to begin with. This impermissible, and frankly capricious, arbitrary and mean-spirited, reasoning was based on the Department’s misconstruction of cl 100.221(4)(b) of Sch 2 of the Migration Regulations. The Department wrongly considered that Ms S had to demonstrate a genuine spousal relationship was in existence at the time she suffered family violence which is not a requirement of that clause.

The Department refused to grant Ms S a permanent partner visa. Ms S applied to the Administrative Appeals Tribunal for review of this decision. Ms S was unfortunately unrepresented before the AAT and missed out on an opportunity to put her best case forward. Applying much the same reasoning as the Department, the AAT affirmed the decision to refuse to grant Ms S a permanent Partner (Subclass 100) visa.

Ms S then applied to the Federal Circuit Court for judicial review, this is when we became involved in the matter. We amended Ms S’s application to argue that the AAT had misconstrued the relevant clause. The primary judge ruled in our favour, giving oral reasons for judgment on the spot.

Subject to any appeal by the Minister for Immigration, Ms S will now have another opportunity to stay in Australia and be granted a permanent partner visa. This time she will be represented before the AAT and will have a much better chance of success.