Muliyana v MIAC

In the case of Muliyana v MIAC, the appellant challenged the decision of the Migration Review Tribunal which found that she was ineligible for a Partner (Migrant) (Class BC) visa as she did not satisfy the criteria set out in cl 100.221(4)(c) of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations). The central issue in the appeal was the proper interpretation of cl 100.221(4)(c) of the Regulations, specifically whether it requires that the 'domestic violence' to which it refers must have occurred before the relationship between the applicant and the sponsoring spouse ceased.

The appellant had married her husband in India in 2005, and he subsequently sponsored her for a visa to join him in Australia. However, their relationship deteriorated quickly after her arrival in Australia, with the husband informing the Department of Immigration that their relationship was not continuing shortly after her arrival. The Tribunal found that the appellant did not meet the criteria for the visa because the domestic violence perpetrated by her husband against her did not occur during the currency of their spousal relationship.

The Federal Magistrates Court had earlier rejected the appellant’s application for judicial review, finding in favour of the Tribunal’s interpretation of the Regulations. The appellant appealed to the court, arguing that the requirement of cl 100.221(4)(c) was not satisfied because the domestic violence did not need to occur during the currency of the relationship. The Minister for Immigration and Citizenship supported the Tribunal's decision, contending that the domestic violence must have occurred during the relationship for the visa to be granted.

The court allowed the appeal and held that there is no requirement in cl 100.221(4)(c) of the Regulations that the domestic violence must occur before the spousal relationship ceases. The court reasoned that the policy behind the provision is to enable a person in circumstances of domestic violence to leave an abusive relationship without compromising their immigration status, and this policy is not contingent on the timing of the domestic violence relative to the cessation of the relationship. As a result, the appeal was allowed, and the first respondent was ordered to pay the appellant’s costs.