Mudalige v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2025] FedCFamC2G 1657
•13 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mudalige v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 1657
File number(s): MLG 2603 of 2020 Judgment of: JUDGE BLAKE Date of judgment: 13 October 2025 Catchwords: MIGRATION – application for judicial review - Partner (Temporary) (Class UK) (Subclass 820) and Partner (Residence) (Class BS) (Subclass 801) – whether Tribunal failed to engage with and properly consider evidence relating to family violence – whether Tribunal failed to afford procedural fairness - application dismissed Legislation: Family Law Act 1975 (Cth)
Migration Act 1958 (Cth) ss 357A, 363(1)(b), 359
Migration Regulations 1994 (Cth) regs 1.24(a), 1.25, 1.23(9), 1.23(9)(c), 1.24(b), 1.25(1), 1.25(2), 1.21, 1.23, 1.25(2)(a)
Cases cited: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263
Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1
Pickford & Pickford (2024) 70 Fam LR 85; [2024] FedCFamC1A 249
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
Division: Division 2 General Federal Law Number of paragraphs: 67 Date of last submission/s: 20 August 2025 Date of hearing: 20 August 2025 Place: Melbourne Counsel for the Applicant: Mr A Krohn Solicitor for the Applicant: Mano Associates Solicitor Advocate for the First Respondent: Ms T Weir Solicitor for the First Respondent: HWL Ebsworth Lawyers Second Respondent: Submitting appearance ORDERS
MLG 2603 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SAMPATH JAYASEKARA JAYASEKARA MUDALIGE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
13 OCTOBER 2025
THE COURT ORDERS THAT:
1.The Application filed on 21 July 2020 as amended on 21 July 2025 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
This is an application to review a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 25 June 2020 (Court Book (‘CB’) 327). In that decision, the Tribunal affirmed a decision of a delegate of the Minister (‘delegate’) to refuse to grant the Applicant a Partner (Temporary) (Class UK) (Subclass 820) and Partner (Residence) (Class BS) (Subclass 801) (‘visa’).
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The Applicant is a Sri Lankan citizen. The Applicant arrived in Australia on 6 February 2014 as the holder of a Student (Subclass 573) visa. He applied for the visa on 16 June 2016. The Applicant’s former partner was the sponsor for the Applicant’s visa (‘sponsor’).
On around 14 March 2017, the sponsor notified the Department of Immigration and Border Protection (‘Department’) that her relationship with the Applicant had ended. The sponsor indicated that she sought to withdraw her sponsorship of the Applicant.
On 29 March 2017, the Department wrote to the Applicant. The Department invited the Applicant to comment on information as to the breakdown of the relationship. He was invited to provide any additional information as to why the visa should be granted, notwithstanding the breakdown of the relationship.
On 1 June 2018, a delegate of the Minister refused to grant the Applicant the visa on the basis that the Applicant was no longer the de facto partner of his sponsor.
On 19 June 2018, the Applicant was notified of the decision to refuse him a visa. On that same day, the Department informed the Applicant that an error had been made in the decision to refuse him a visa. The Department asked for permission to make the decision again. The Applicant consented to the Department revisiting the decision.
On each of 3 October 2018, 13 November 2018 and 14 December 2018, the Department wrote to the Applicant and requested that he submit evidence in relation to his claims that he had been subjected to family violence during his relationship with the sponsor. The Applicant never replied to these requests.
On 14 January 2019, the Department wrote to the Applicant again requesting evidence of family violence he allegedly suffered. The Applicant did not respond to this request.
On 13 February 2019, a delegate of the Minister refused to grant the visa to the Applicant.
On 24 February 2019, the Applicant applied to the Tribunal to review the delegate’s decision.
On 17 April 2020, the Tribunal invited the Applicant to comment on or respond to information regarding the breakdown of the Applicant’s relationship with the sponsor, and on his ability to meet the alternative criteria set out in cl 820.221(2) and (3) of Schedule 2 to the Migration Regulations1994 (Cth) (‘Regulations’) by 1 May 2020.
On 30 April 2020, the Applicant wrote to the Tribunal in response to the Tribunal’s request for information on 17 April 2020. In that letter, the Applicant stated that he was ‘threatened, blackmailed, humiliated and abused’ during his former relationship with the sponsor. The Applicant requested a further four weeks to provide evidence of the alleged family violence on the basis that he had difficulties obtaining this information due to COVID-19 pandemic restrictions.
On 1 May 2020, the Tribunal wrote to the Applicant. In the letter, the Tribunal agreed to grant the Applicant a further week to provide material.
On 8 May 2020, the Applicant wrote to the Tribunal and provided a letter from a psychologist, a letter from his general medical practitioner and a copy of his statutory declaration dated 1 April 2017 (‘Statutory Declaration’).
On 19 May 2020, the Tribunal wrote to the Applicant. The Applicant was invited to attend a hearing on 25 June 2020 to give evidence and present arguments in relation to the issues in his application.
On 25 June 2020, the Applicant appeared at the hearing along with his brother who was a witness. On that same day, the Tribunal affirmed the delegate’s decision not to grant the Applicant the visa.
On 29 June 2020, the Tribunal notified the Applicant of its decision in writing.
Before me, the Applicant relied on his Amended Application filed 21 July 2025, his outline of submissions and the transcript of the hearing before the Tribunal (‘Transcript’). The Minister relied on the affidavit of Helen Sassine filed 4 August 2025 and his outline of submissions. The Minister also filed a Court Book.
THE PROCEEDINGS BEFORE THE TRIBUNAL
Counsel for the Applicant spent some time at the outset of the hearing taking me to various aspects of the Transcript which he indicated would enlighten the way in which the grounds of review were put. Given the nature of the submissions that were made, it is appropriate to set out some of what occurred before the Tribunal.
At the outset, the Tribunal engaged in an exchange with the Applicant about the material he had submitted in support of his claim:
SENIOR MEMBER: So we are here today to have a look at that matter and to establish whether or not that is the case. So after the Department had been notified by your sponsor and you that the relationship had ceased, you were given several opportunities to provide them with the relevant evidence, but you didn't do that. Is there a reason why you didn't do that?
INTERPRETER (MR S MUDALIGE): The migration agent did not inform me about this inviting by email or otherwise, and sometimes my emails were not responded, although I have paid the money, they were a bit unkind in handling the matter.
SENIOR MEMBER: And we have - and I've written to you on 17 April asking you to provide some information and you have provided me with three things.
INTERPRETER (MR S MUDALIGE): I asked him to stop there and so I wouldn't forget everything. So, yes, I have submitted the statutory declaration, and I have contacted my GP or the doctor in regards to this, but they have not been helpful, they have not given me (indistinct) documentation without money. And I didn't, at that time, have a Medicare card as well, so I couldn't afford. And on 1 April, I did report to the police, Ringwood Police, that's where he stopped talking. I did go and see a psychologist and ask for advice and treatment, because I could not afford their fee, I was not given assistance. Yes, that's it.
The Tribunal questioned the Applicant, among other matters, about his attempts to obtain documents to support his case, the psychological report he had submitted and why the psychologist’s report and doctor’s report he had submitted did not satisfy the minimum evidentiary requirements. The Applicant referenced his poor mental health and lack of money as contributing factors. The exchange from the Transcript is recorded below:
SENIOR MEMBER: And is that the only psychologist report that I have?
INTERPRETER (MR S MUDALIGE): Yes. Because in 2017, I only saw him once, he was not - he did not treat me because I couldn't pay his fees after that.
SENIOR MEMBER: And I also have here, there's a letter from Dr Danushi Ganegoda it's basically just a character reference.
INTERPRETER (MR S MUDALIGE): Yes. I spoke to her, and she did prepare this testimonial.
SENIOR MEMBER: Are those the only documents that you've sent to me?
INTERPRETER (MR S MUDALIGE): Yes.
SENIOR MEMBER: All right. So when I wrote to you on 17 April, I included in that letter a list of the prescribed - evidentiary requirements, the sorts of documents that you would need to be able to provide in order to support a non-judicial claim of family violence. Do you remember seeing that? It's called a schedule 1.
INTERPRETER (MR S MUDALIGE): Yes, I saw (indistinct) list, the schedule. I was suffering from depression at that state, but still I went and saw a migration agent and asked what I could - what I should do. And I did (indistinct) then the documents I could to you. Right. My previous migration agent told me that he would file an application to the courts about this family violence matter, but he did not do that until the refusal from the Department arrived. And he did not file it because I couldn't - I didn't - (indistinct) didn't pay him his fee.
SENIOR MEMBER: Is there any reason why you didn't pay a fee? Is there anything- any reason why you didn't do that?
INTERPRETER (MR S MUDALIGE): Yes, I didn't pay that agent because that agent refused to file the appeal to the Department or the courts. And also, he was not communicating, he was not responding to my appeals, so I sort of terminated his service his service and went to another one.
SENIOR MEMBER: And has your current agent (indistinct) communicated with you?
INTERPRETER (MR S MUDALIGE): That agent is communicating with me and that agent is the person who will supply the AAT application, and he has been communicative and responsive.
SENIOR MEMBER: All right. Well, if you received the schedule l requirements, you will know, for example, that the evidence that you've provided don't meet the statutory requirements. Let me tell you why, the psychologist states quite explicitly, 'I am unable to provide any further detail or evidence that domestic violence occurred, other than to take the applicant at his word.' And you went to a psychologist specifically for the purposes of obtaining the psychological report to support your application. Okay. You did not go and see her in a therapeutic capacity, she hasn't stated that in her opinion, you've suffered domestic violence. It therefore does not meet the statutory requirements and I can't accept it.
INTERPRETER (MR S MUDALIGE): I said that psychologist was not caring for me and my (indistinct) for the degree of depression I suffered though was (indistinct), only I know as a sufferer. And my brother could support or give evidence on how bad it was.
SENIOR MEMBER: And, I'm sorry, but is your brother one of the following people?
INTERPRETER (MR S MUDALIGE): Sorry.
SENIOR MEMBER: Is your brother one of the following people? I'll give you a list.
INTERPRETER (MR S MUDALIGE): Yes.
SENIOR MEMBER: Is he a registered medical practitioner, a registered nurse, a police officer who witnessed the violence? Did he make a witness statement at the time of the alleged violence to a police officer in the course of a police investigation? Is he an officer of the Child Welfare Authority or a Child Protection Authority? Does he work for or is he the head of the Women's Refuge or a family domestic violence crisis centre? Is he a member of the Australian Association of Social Workers or eligible to be a member of those associations? Is he a registered psychologist who has been treating you while performing the duties of a psychologist? Was he a family health (indistinct) and appointed under the Family Law Act or a Family Relationship Counsellor who worked with (indistinct)?
INTERPRETER (MR S MUDALIGE): I understand - I understand the basis of your questions, but I was helpless, and I was suffering from severe depression at this time, and there was no one to help me except my brother. And that person who was the sponsor is the one who caused all this (indistinct domestic harm to me?).
SENIOR MEMBER: Sorry, if you were helpless and suffering from severe depression, why didn't you go and see psychologist or get some help?
INTERPRETER (MR S MUDALIGE): When I did go and see the psychologist on the 16th, she asked for $3000-some as the fee, and I was unable to pay her that, and I didn't have a Medicare card at that stage. And all my money, my bank account, it was a joint account, was cleaned out by my partner. And the only person who was able to help me and understood me in my language was my brother.
SENIOR MEMBER: So did you go a domestic violence crisis - at all? You went nowhere except to your brother?
INTERPRETER (MR S MUDALIGE): I did call the 1300 number and ask for help, but they wanted me to come and get treatment or talk to them. I have no transport or any way of going in and I was evicted from - me and my brother were evicted from my accommodation, so we became even further helpless.
SENIOR MEMBER: So over the last three and a half years, apart from a visit last week, that's the only record I have that you've made any attempts to seek help for your alleged violence. Is that about a fair summation?
INTERPRETER (MR S MUDALIGE): I was under severe stress and depression, and I would sometimes see with the doctor who was joking and would not accept the degree of depression and stress I was under, and they were joking, they say there's nothing wrong with you. So I tried to take my life a number of times, and my hair has gone grey because of the stress and depression, I can show it to you on video. And my brother was the only one who did help me.
The Tribunal then proceeded to ask the Applicant about the content of his Statutory Declaration. The Tribunal sought particulars from the Applicant as to the family violence he had suffered (including whether his life had ever been threatened) as follows:
SENIOR MEMBER: Okay. Thank you. And then your own statement talked about generalised violence- she was aggressive and violent, and engaged in domestic violence, and was an alcoholic and psychologically abusive. She spent all your money (indistinct) frequently. And that you moved out in February 2017 because you were extremely of the sponsor as she is capable of extreme violence. Is that your statement?
INTERPRETER (MR S MUDALIGE): Yes. That's correct.
SENIOR MEMBER: And is there a reason why you didn't think to update that? 2017, you didn't think that an updated or, you know, a new one to me, for example, would be helpful, or would you have said exactly the same thing?
INTERPRETER (MR S MUDALIGE): In 2017, we left, I and my brother, left he accommodation we were sharing with her, and afterwards we didn't have anything to do with her, so I didn't have anything to do with her because I as fearful of my life. She dangered my life with all her drinking and all her smoking marijuana, (indistinct) also people come and threaten me, (indistinct). Like what can I do? I am a good person (indistinct). I am really ruining my life, I have only (indistinct).
SENIOR MEMBER: Would you like to - did she ever threaten your life? Was she ever violent towards you, did she hit you, throw things at you? Why were you fearful of your life? You haven't said anything in this statement about why you would be fearful of your life.
INTERPRETER (MR S MUDALIGE): I don't know why. She loved me. When she is sober, there's no problem, but when she is drunk - when she is drunk, she was a completely different person, she cannot stand me when she's under the influence.
SENIOR MEMBER: That didn't answer my question. Has she ever threatened violence with you? I am trying to understand why you are fearful for your life. There must be some reasons for that or (indistinct).
INTERPRETER (MR S MUDALIGE): Yes, I don't drink, and I don't smoke, but sometimes she would give me stuff to drink, and I suspected they are laced with something dangerous, so I refused to drink the drinks that she offered. And she didn't like it, and she would the glass or the drink containers on those occasions.
The Tribunal then asked the Applicant whether his brother had anything to say. His brother spoke to the Applicant’s poor mental health, and their financial situation:
SENIOR MEMBER: Okay. Was there anything that your brother wanted to say to you before I get back to you?
INTERPRETER (MR A MUDALIGE): Since he left her, her accommodation, we have been living separately. Sorry, I have correction. Since he left her, we have been living in one room, or in the single room on a bunk bed - in a bunkbed. And also during that time, he would yell or – yell at night in his sleep saying that he wants to take his life, commit suicide, so I would wake him up and give him a cup of tea and sort of pacify him. So I say that he was under severe depression, and he was talking in his sleep, and he was scared and said he wanted to commit suicide. I came to Australia to study English and during their relation was amicable, it was okay. Afterwards, I got - I was fearful too. I helped my brother as much I could. It was I who took him to the Ringwood Psychologist, and because of our financial situation we couldn't continue with the treatment, psychological treatment.
Near the conclusion of the proceedings, the following exchange occurred:
SENIOR MEMBER: Okay. What else would you like to say?
INTERPRETER (MR A MUDALIGE): Yes, I can explain if you want any questions. But that's what I have all to say is that the situation was as I described during those days.
SENIOR MEMBER: Okay. All right. Well, look, I don't have any more questions for you, Sampath. Is there anything that you would like to talk to me about that, perhaps, I haven't asked you about? Or anything at all that you would like to say.
INTERPRETER (MR A MUDALIGE): I think my brother forgot to mention this, and the partner - the partner, former partner, had a child who was disabled, who is disabled, and it was my brother who looked after the disabled child. And when the relationship ended and my brother my couldn't help him either. Yes, when the relationship was amicable, that was very good, that's when I came to Australia to study English. And when the relationship ended, my brother was upset also because he was close to that disabled child and he wasn't able to look after him any further.
SENIOR MEMBER: Okay. Anything else?
INTERPRETER (MR A MUDALIGE): That's it, yes.
THE RELEVANT REGULATIONS
Grounds 6 and 7 of the Amended Application take issue with, inter alia, whether the Statutory Declaration meets the requirements of regulation 1.24(a) and regulation 1.25 of the Regulations. In order to understand these grounds, it is necessary to understand the Regulations.
The Tribunal was dealing with a ‘non-judicially determined claim of family violence’. That term is given meaning by regulation 1.23(9) as follows:
(9)For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:
(a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and
(b) the alleged victim is:
(i) a spouse or de facto partner of the alleged perpetrator; or
(ii) a dependent child of:
(A) the alleged perpetrator; or
(B)the spouse or de facto partner of the alleged perpetrator; or
(C)both the alleged perpetrator and his or her spouse or de facto partner; or
(iii)a member of the family unit of a spouse or de facto partner of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse or de facto partner); and
(c)the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:
(i) the alleged victim has suffered relevant family violence; and
(ii)the alleged perpetrator committed that relevant family violence.
Regulation 1.24 deals with the evidentiary requirements in regulation 1.23(9)(c). Regulation 1.24 provides as follows:
The evidence mentioned in paragraph 1.23(9)(c) is:
(a)a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims); and
(b)the type and number of items of evidence specified by the Minister by instrument in writing for this paragraph.
I was not taken by either party to an instrument of the type contemplated by regulation 1.24(b). Regulation 1.25(1) and (2) then relevantly provides as follows:
(1)A statutory declaration under this regulation must be made by the spouse or de facto partner of the alleged perpetrator.
(2)A statutory declaration under this regulation that is made by a person mentioned in subregulation 1.25(1) who alleges that he or she is the victim of relevant family violence (within the meaning of regulation 1.21) must:
(a) set out the allegation; and
(b)name the person alleged to have committed the relevant family violence; and
(c)if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim:
(i)name the person whom the conduct of the alleged perpetrator was towards; and
(ii)identify the relationship between the maker of the statutory declaration and the person whom the conduct was towards.
Finally, regulation 1.21 defines ‘relevant family violence’ as follows:
relevant family violence means conduct, whether actual or threatened, towards:
(a)the alleged victim; or
(b)a member of the family unit of the alleged victim; or
(c)a member of the family unit of the alleged perpetrator; or
(d)the property of the alleged victim; or
(e)the property of a member of the family unit of the alleged victim; or
(f)the property of a member of the family unit of the alleged perpetrator;
that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.
Before me, the Applicant accepted that the letter from his psychologist and the letter from his general practitioner provided to the Tribunal on 8 May 2020 did not satisfy the requirements of regulations 1.24 and 1.25. The Applicant maintained his contention, however, that the Statutory Declaration satisfied the requirements of regulations 1.24 and 1.25.
THE APPLICATION
The Amended Application contained seven grounds of review. Grounds 1, 3 and 5 were abandoned by the Applicant. I consider each of the remaining grounds of review below.
Ground 2
This ground is as follows:
2.The Tribunal did not consider the applicant's brother's evidence with the engagement required by law and by not doing so fell into jurisdictional error.
Particulars
(a)The Tribunal noted but did not consider the Applicant's brother's evidence about the poverty of the Applicant at the time of suffering the family violence he claimed, and at the time of attempting to obtain reports from a doctor and a psychologist.
(b)The Tribunal noted but did not consider the Applicant's brother's evidence about the applicant having several times attempted suicide.
I have set out earlier at paragraphs [24]-[24] the evidence of the Applicant’s brother.
The Tribunal dealt with the evidence of the Applicant’s brother at paragraph [31] of its reasons as follows (CB 331):
The applicant’s brother told the Tribunal Brother said that after the relationship between the applicant and the sponsor ended, he came to stay with him. He said that the applicant would yell out at night saying that he was afraid for his life. The applicant’s brother stated that the applicant was under severe depression and that he wanted to commit suicide several times. The Tribunal asked why, if the applicant had tried to commit suicide, he would not have taken him to a hospital or psychologist. He said they didn’t have any money. [sic]
The Applicant contends that paragraph [31] as set out above fails to engage with the evidence given by the Applicant’s brother and properly consider it as required by law. In oral submissions, argument under this ground appeared to expand to include failure by the Tribunal to consider the Applicant’s evidence about these matters. The Applicant relied on Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 paragraphs [20]-[28] in advancing his submissions. The Applicant contends clear evidence was put before the Tribunal as to his poverty and the fact that his financial difficulties were a barrier to him obtaining the relevant reports. He contends the Tribunal should have raised a question about whether there was a way around this problem. The Applicant also contends that the Tribunal failed to deal with evidence before it that he had attempted suicide. While acknowledging that the Tribunal was constrained by the formal requirements contained within regulations 1.23 and 1.24 of the Regulations, the Applicant submits that had the Tribunal properly considered the gravity of the suicide attempts, it may have considered exercising its powers to adjourn the hearing before it in order to permit the Applicant to obtain evidence.
I am unable to accept the Applicant’s submissions under this ground for the following reasons.
First, the Tribunal was aware of and took into account the evidence of the Applicant and his brother as to the Applicant’s depression, his suicide attempts or suicidal ideations, and his financial situation. The Tribunal made express reference to the Applicant’s brother giving evidence in paragraph [31] of its reasons. Moreover, within that paragraph, the Tribunal identified specifically the matters the Applicant said it failed to consider, including his lack of money, his severe depression, and his various suicide attempts or suicidal ideations.
Second, the evidence given by the Applicant’s brother at the hearing was evidence only of his observations. It was not expert evidence. The evidence given by the Applicant’s brother was not capable of satisfying the requirements of regulations 1.23 or 1.24 of the Regulations.
Third, the obligation on the Tribunal is to deal with the claims that arise on the material or evidence before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [58]. The Tribunal considered and dealt with the matters before it.
Fourth, the Transcript reveals that the Tribunal not only explained to the Applicant why the documents he submitted did not satisfy the relevant regulations, but also ensured it asked the Applicant whether he wished to add anything prior to the hearing concluding. The Applicant indicated that he had nothing further to add. The Applicant did not request additional time to obtain and submit further documents. The Applicant did not request an adjournment during the hearing, having heard the comments of the Tribunal, to obtain the material (and in fact the Applicant had already been granted additional time to obtain evidence). These facts positively distinguish this matter from matters such as Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (‘Li’) and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1.
For all of these reasons, Ground 2 is dismissed.
Grounds 4, 6 and 7
Grounds 4, 6 and 7 are as follows:
4.The Tribunal did not afford procedural fairness to the applicant as required by section 357 A(3) of the Migration Act 1958 ("the Act") by not granting him leave or explaining that he could seek more time to submit further evidence in support of his claim that he had suffered family violence and by making its decision the same day of the hearing, twenty-five minutes after the end of the hearing.
…
6.the Tribunal fell into jurisdictional error in that it erred in interpreting or applying the law.
Particulars
(a)Further or in the alternative to Ground 4, the Tribunal was not fair or just and thereby erred in interpreting or applying section 357 A(3), 359 and 363(1 )(b) of the Act, by not granting the applicant leave, or explaining that he could seek more time, to submit further evidence in support of his claim that he had suffered family violence and by making its decision the same day of the hearing without notice.
(b)The Tribunal erred in that it found that the Applicant's statutory declaration of 1 April 2017 (CB 305-307) did not meet the requirements of Regulation 1.24(a) of the MigrationRegulations 1994. (Decision and Reasons, [301)
…
7.Further or in the alternative to Grounds 4 and 6, the Tribunal fell into jurisdictional error in that it was legally unreasonable.
Particulars
(a)The Tribunal was legally unreasonable in not granting the applicant leave, or explaining that he could seek more time, to submit further evidence in support of his claim that he had suffered family violence and by making its decision the same day of the hearing without notice.
(b)The Tribunal was legally unreasonable in that it found that the Applicant's statutory declaration of 1 April 2017 B 305-307) did not meet the requirements of Regulation 1.24(a) of the Migration Regulations 1994. (Decision and Reasons, [30])
The parties addressed the Court on Grounds 4, 6(a) and 7(a) together, so it is convenient to deal with the issues on that basis and then deal with the remaining issues.
Grounds 4, 6(a) and 7(a)
Under these grounds, the Applicant contends that the Tribunal was in error by not granting him leave or explaining that he could seek more time to submit further evidence in support of his claim that he had suffered family violence and by making its decision on the same day of the hearing without notice. This error is raised variously as a failure to afford procedural fairness to the Applicant (Ground 4), an error in applying and interpreting the law (Ground 6(a)) and the Tribunal acting unreasonably (Ground 7(a)). In advancing this ground, the Applicant accepts that he was invited to produce evidence prior to the hearing and that he ultimately presented three documents, which the Tribunal regarded as not satisfying the relevant regulations. He also accepts that the Tribunal does not have a general duty to make his case. The Applicant submits, however, that the Tribunal’s view that the material he submitted did not comply with the minimum requirements, along with other matters such as his poverty, depression, suicide attempts, contact with police and claimed family violence, should have informed the Tribunal when it came to considering whether he should be afforded more time to obtain relevant evidence. The Applicant points to the duty imposed on the Tribunal to act reasonably in the exercise of its discretion and says that fairness and justice in the circumstances of his case require the Tribunal to take some steps to leave open the possibility of him being able to submit evidence that complied with the relevant regulations.
The requirement for the Tribunal to act in a way that is fair and just was discussed by the High Court of Australia in Li at paragraph [58]. The Court also considered section 357A of the Migration Act 1958 (Cth) (‘Act’) in the context of section 363(1)(b) at [63], [67], [72] and [74]. It is well accepted and understood that the legal threshold for unreasonableness is usually high: Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46 at [26].
I have set out in some detail earlier the steps the Tribunal took in this matter. Among other things, the Tribunal:
(a)on 17 April 2020, invited the Applicant to comment on or respond to information regarding the breakdown of his relationship with the sponsor and on his ability to meet the alternative criteria in the Regulations;
(b)on 1 May 2025, granted the Applicant an additional week to provide material following his request for more time;
(c)on 19 May 2020, invited the Applicant to attend the hearing before it; and
(d)on 25 June 2020 during the course of the hearing, heard from the Applicant and his brother and additionally, put to him matters that were adverse to his case.
Nothing affected the Applicant’s ability to take part in the hearing. He completed a ‘Response to Hearing invitation’ in which he expressly indicated there was no issue which may affect his ability to participate in the hearing (CB 318).
It is also of significance that, despite what he encountered during the hearing, the Applicant never asked the Tribunal for more time to submit documents. This was despite the Tribunal indicating to the Applicant that it had concerns with the Applicant’s material. Nothing requires the Tribunal to refrain from making a decision on the same day as the hearing is conducted.
In my view, given the matters above, the Applicant was not denied procedural fairness. Nor did the Tribunal make an error in interpreting or applying sections 357A, 359 or 363(1)(b) of the Act or otherwise act unreasonably. Grounds 4, 6(a) and 7(a) ought to be dismissed.
Grounds 6(b) and 7(b)
Under these grounds, the Applicant contends that the Tribunal committed an error when it found that the Statutory Declaration did not meet the requirements of regulation 1.24(a) of the Regulations. The point is raised as either the Tribunal committing an error in interpreting or applying the law, or alternatively as the Tribunal acting unreasonably in reaching the conclusion that it did.
I have set out earlier the relevant regulations.
The Minister took the Court to the Department’s Policy on ‘Non-judicially determined family violence claims’ (‘Policy’). I place no weight on this document. First, I am not persuaded that the Policy before the Court is the Policy that existed at the time the decision was made. The affidavit of Ms Sassine merely records that the Policy before the Court ‘was accessed’ on 1 August 2025 and says nothing about whether the Policy before the Court was that which existed at the time the decision was made. Secondly, the Minister relied on item 49 of the Policy which does little other than emphasise that Departmental Officers should check to ensure that an allegation of family violence is assessed against the relevant regulations, a point that is self-evident.
The extracts from the Transcript set out earlier record the Tribunal putting to the Applicant its concerns about the Statutory Declaration. The Tribunal referred to the Statutory Declaration during the hearing as describing ‘generalised’ violence.
The Tribunal dealt with the Statutory Declaration at paragraphs [27]-[30] of its reasons as follows (CB 330-331):
27.The Tribunal discussed with the applicant his own statement of 1 April 2017 and asked if he had updated that statement. He said that he didn’t update it because the information would be the same since he had already separated from his sponsor.
28.The applicant’s statutory declaration dated 1 April 2017 indicates that the sponsor was aggressive and violent and engaged in domestic violence, was an alcoholic and was psychologically abusive. She spent all his money, partied frequently and this resulted in his brother moving out. He claims that he wanted to marry the sponsor but his divorce to his first wife had not been finalised. He states that in February 2017 the relationship ended as the violence was no longer bearable, He claims to be extremely fearful of the sponsor as she is capable of extreme violence.
29.The Tribunal asked the applicant why he was fearful for his life as he had not described those reasons in the statement. He said that when the sponsor was drunk she was a different person. Asked again why he was fearful of his life the applicant said she was drinking and smoking marihuana; he said that sometimes she would offer to give him a drink and he suspected that she had put something dangerous in it. He did not offer any explanation as to why she would do such a thing.
30.This applicant’s statutory declaration also does not meet the minimum requirements in that it does not provide details or describe the incidents of domestic violence the applicant claims to have suffered.
Paragraph [30] above reveals the reason why the Tribunal found that the Statutory Declaration did not meet the requirements set out in the Regulations. In the Tribunal’s view, the Statutory Declaration did not ‘provide details or describe the incidents of domestic violence the applicant claims to have suffered’.
The Statutory Declaration prepared by the Applicant states as follows (CB 306-307) (errors reproduced from the original):
1.That I am the Applicant for spouse visa (File Ref: BCC 2016/2066217).
2.That I was in a relationship with Andrea Louise Gill from 6th June 2015 to February 2016. We lived together and the relationship was registered on 16th June 2016. Our relationship ceased in February 2017
3.Initially we shared a mutual love, affection and commitment to each other. We also shared in joint parenting responsibilities towards Louise's son Brandon Lloyd Dickson (DoB 16th July 2003). Brandon suffers from severe intellectual and physical disabilities.
4.During the initial phase of our relationship we were very happy in our relationship. However within a short period of time I noticed a sharp decline in the relationship as Louise began to display a manipulative personality.
5.ON 5th July 2016 my brother came to Australia. As he was new to the country we offered him accommodation. Although this was only going to be a temporary arrangement we realised that Louise was not at all happy with this arrangement. Soon she became aggressive and violent and engaged in domestic violence. She was an alcoholic. During these months her drinking habits grew worse. She would drink 1-2 bottles of wine on a daily basis. She then began to psychologically abusive.
6. The biggest issue I had was with her spending habits. She began to demand more and more money from me and then started to blackmail me. She threatened to cancel my visa should I stop giving her money. She needed money to support her lifestyle which included heavy drinking and frequent partying. Being on a limited income this was not possible for me and the arguments and fighting escalated.
7.In November 2016 my brother decided to move out of our house as he could no longer bear to be part of this ongoing violence.
8.I was all this time planning to marry Louise and we had talked about it on many occasions. We were just waiting on my divorce from my ex-wife to be finalised.
9.I had hoped that once my brother moved out of the house I would be able to rebuild my relationship with Louise and continue our once happy family life. Yet, I was disappointed when I realised that these were false expectations. Louise was refusing to change her behaviour and continued to drink and be abusive.
10.Following these ongoing episodes of family violence I found solace in spending more and more time at my brother's. Despite this I had hoped for improvement in our relationship. I never stopped supporting her financially and caring for her. In February this year I decided to end the relationship as the violence was no longer bearable.
11. This situation was affecting my job and ability to think rationally. When we finally broke up she became even more abusive threatening to cancel my visa and closing our joint account after having withdrawn the entire balance.
12.I began to experience depressive symptoms and was finding difficult to cope with my day to day to work. I am currently seeking medical help for my condition.
13.Given her past behaviour I am extremely fearful of her. She is capable of extreme violence and it is for this reasons that I have not even returned home to collect some of my personal belongings including my clothes and tools.
14.I firmly believe that our relationship broke down as a result of her violence in our relationship.
It is plain that the Statutory Declaration names the person alleged to have committed family violence. The relevant question is whether the Statutory Declaration sets ‘out the allegation’ for the purpose of regulation 1.25(2)(a), having regard to the definition of ‘relevant family violence’ set out regulation 1.21.
The Minister contends that the Tribunal correctly applied the regulations to the Statutory Declaration. The Minister further contended that the Tribunal was correct to find that the Statutory Declaration did not provide sufficient detail of the conduct or explain how the Applicant experienced fear.
Regulation 1.21 requires there to be, inter alia, ‘conduct’ that is ‘actual or threatened’ towards the alleged victim ‘that causes the alleged victim to reasonably fear for’ or to be ‘reasonably apprehensive about’ his or her ‘own wellbeing and safety’. Regulation 1.25 relevantly requires a person to ‘set out the allegation’.
Much of what is contained in the Statutory Declaration is generalised and lacks particularity. The Applicant’s allegations that his partner was ‘psychologically abusive’, that she was blackmailing him, and that she was ‘abusive’, ‘violent’ and ‘aggressive’, are all generalised statements. They are conclusionary in nature. They fail to identify or describe conduct. Further, by failing to identify the conduct, the Applicant cannot then demonstrate that such conduct either caused him to reasonably fear for his safety and wellbeing, or caused him to be reasonably apprehensive about his safety and wellbeing. A similar issue arises with the claims that the Applicant’s partner was drinking. He says in the Statutory Declaration that she was drinking alcohol amounting to 1–2 bottles of wine per day, but he does not detail or particularise the actual conduct that followed her alcohol consumption or how that caused him to reasonably fear for his safety and wellbeing or be reasonably apprehensive about his safety and wellbeing.
Not everything in the Statutory Declaration, however, falls within the categories above. The Applicant states that his partner ‘threatened to cancel my visa should I stop giving her money’. He also states that when the parties ended their relationship, his partner ‘threaten[ed] to cancel my visa and closing our joint account after having withdrawn the entire balance’. These are somewhat more specific allegations. The conduct is specifically identified, being the threat to cancel his visa if he stopped giving her money and the threat to cancel the visa and close the joint bank account. The allegations are plainly made and identify the perpetrator.
The next question is whether the Applicant in his Statutory Declaration makes it plain that the conduct described above can be said to have caused him to reasonably fear for, or to be reasonably apprehensive about, his own wellbeing or safety. As well as this jurisdiction, this Court also exercises jurisdiction under the Family Law Act 1975 (Cth) (‘FL Act’). While the definition of ‘family violence’ is different under the FL Act and judges under the FL Act are required to judicially determine whether family violence has occurred, I note that cases in that jurisdiction have made it clear that when assessing family violence, the Court is to, inter alia, identify the full context of the behaviour and identify the impact of the behaviour of the alleged victim: Pickford & Pickford (2024) 70 Fam LR 85; [2024] FedCFamC1A 249 at [48] per Aldridge and Carew JJ).
In the present matter, the context in which the conduct occurred is that the Applicant was at the time of the alleged conduct, a reasonably new arrival to these shores. It can be taken that he was unfamiliar with the country and its norms. It can also be taken in the circumstances of this case that he was dependent upon the sponsor in order to be granted a visa to stay in Australia. In the Statutory Declaration, the Applicant says, ‘Given her past behaviour, I am extremely fearful of her’. This statement, however, when considered alongside the specific threats to cancel his visa or withdrawing funds from his bank account, still does not satisfy the requirements of the Regulations. There is no evidence from the Applicant as how the conduct caused him to be reasonably fearful for his safety and wellbeing, or caused him to be reasonably apprehensive about his safety and wellbeing.
It is worth observing that the Tribunal picked up on this matter during the hearing. The Transcript extracted earlier reveals that the Tribunal asked the Applicant specifically about what caused him fear. He was asked twice, once after he failed to answer the question. He did not provide any evidence as to what caused his fear.
In summary, the Tribunal was correct to conclude that the Statutory Declaration did not meet the minimum requirements set out in the Regulations. Given that conclusion, it follows that that the Tribunal did not make an error of the type identified in Ground 6(b), nor did it act unreasonably as contended in Ground 7(b). Grounds 6(b) and Ground 7(b) should stand dismissed.
CONCLUSION
Given the matters set out above, the Application is dismissed.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 13 October 2025
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