Generally spouse visas are provisional for 2 years before they become permanent. This is to weed out the non-genuine or short term relationships. There is an exception to the 2 year rule if there is family violence. In Minister v Gupta [2022] FCAFC 51 the Full Court had to resolve an issue about the construction of 100.221(4) which provides inter alia: (a) the applicant first entered Australia as the holder of a Subclass 309 (Partner (Provisional)) visa and continues to be the holder of that visa; and (b) the applicant would meet the requirements of subclause (2) or (2A)  [the 2 year rule] except that the relationship between the applicant and the sponsoring partner has ceased [because of family violence]….

The controversy arose because the AAT found that Ms Gupta and her partner were never in a genuine spousal relationship (s 5F) and as a result 100.221 couldn’t be made out and didn’t apply at all. In the Federal Circuit Court, the judge applied Wigney J’s decision in El Jejieh and found that the AAT had fallen into error because the requirement was the “holding” of a visa, not the genuineness of the relationship.

The Full Court resolved the issue as follows:

  1. Accordingly, we agree with the finding of Jagot J in Hannaat [23] that where the Tribunal found that no marital or de facto relationship as defined in s 5F (and s 5CB) existed at any time, the consequence was that the question of family violence did not arise for consideration. That is so even though we accept that the reasoning in Kaur at [43]-[44] (Murphy J) (on which Jagot J relied) related to a finding of the Tribunal in relation to the failure to satisfy the time of application criterion in cl 820.211 in determining to affirm a decision to refuse a provisional visa under cl 820.221 without considering whether a claim to family violence was made out.
  2. ….
  3. With respect, we do not agree with the reasoning in El Jejieh at [204]-[206]. We note that the issue of the construction of cl 100.221(4)(b) was neither considered by the FCCA Judge nor raised in the notice of appeal in El Jejieh; it was advanced by Mr El Jejieh’s counsel on the appeal with leave to rely on an amended notice of appeal over the Minister’s objection: see El Jejieh at [111]. The decisions in Kaur and Hanna are not referred to in El Jejieh and they do not appear to have been drawn to Wigney J’s attention.

That makes sense because a non-existent relationship can’t actually end because of family violence.

Creative commons acknowledgment for the photograph.

Share Button