Background
Marin Mijalkov, a Macedonian national, entered Australia in March 2018 on a Subclass 309 (Partner (Provisional)) visa to live with his Australian wife and thereafter applied for a permanent Partner (Migrant) (Subclass 100) visa. After separating from his wife in August 2019, he claimed he was entitled to the visa on the basis that his relationship had ceased because he had suffered family violence committed by his sponsoring partner — a pathway provided under cl 100.221(4)(c)(i) of Schedule 2 of the Migration Regulations 1994 (Cth). His alleged violence included gambling-related financial coercion, physical abuse (throwing objects), threats to cancel his visa and have him killed, and isolation from friends and the wider community.
A delegate of the Minister refused the visa in January 2020, finding that Mijalkov had not met the minimum evidentiary requirements for a non-judicially determined family violence claim. On review, the Administrative Appeals Tribunal (AAT) received his statutory declaration, oral evidence over three hearings, a social worker’s statutory declaration, a general practitioner’s letter, and translated text messages, but remained unsatisfied that he had suffered relevant family violence. Pursuant to reg 1.23(10)(c)(i) of the Regulations, the AAT was then required to seek the opinion of an independent expert, who also found that Mijalkov had not suffered relevant family violence. Because reg 1.23(10)(c)(ii) mandates that the AAT take that expert opinion as correct, the AAT affirmed the delegate’s refusal in February 2023.
Mijalkov applied to the Federal Circuit and Family Court of Australia (Division 2) for judicial review under s 476 of the Migration Act 1958 (Cth), arguing jurisdictional error. The primary judge dismissed the application, and Mijalkov appealed to the Federal Court of Australia, contending that the AAT had only addressed the casino incident and had failed to consider his other, more serious claims of family violence before referring the matter to an independent expert.
The Court’s Holding
Vandongen J dismissed the appeal, finding no jurisdictional error in the AAT’s decision. Applying the principles in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582, the Court confirmed that before seeking an independent expert opinion under reg 1.23(10)(c)(i), the AAT was required to read, identify, understand, and evaluate all of the appellant’s claims of having suffered relevant family violence. The operative duty arose from reg 1.23(10)(a), which required the AAT to “consider whether” the applicant had suffered relevant family violence — a phrase importing a genuine evaluative process culminating in a finding of satisfaction or non-satisfaction.
The Court rejected the argument that the AAT had only considered the casino incident. Central to this conclusion was the AAT’s own statement that the appellant’s oral evidence “closely reflected the claims in his statutory declaration” and that he was unable to elaborate when asked for detail or clarification. Because the AAT stated it was unconvinced by all of that oral evidence — and because the oral evidence mirrored the statutory declaration — it necessarily followed that the AAT had considered and rejected the full breadth of claims in the statutory declaration, including allegations of ongoing psychological, emotional, and physical abuse. The AAT’s reasons did not need to enumerate every claim individually, provided the evaluative task had been genuinely performed.
Once the AAT was not satisfied that relevant family violence had occurred, reg 1.23(10)(c)(i) required it to seek an independent expert opinion, and reg 1.23(10)(c)(ii) then required it to treat that opinion as correct. The independent expert concluded that Mijalkov had not suffered relevant family violence, so the AAT was bound to affirm the refusal. Mijalkov was ordered to pay the Minister’s costs of the appeal.
Key Takeaways
- An AAT reviewing a non-judicially determined family violence claim under the Migration Regulations 1994 must genuinely consider all claims of relevant family violence before referring the matter to an independent expert — failure to do so is jurisdictional error under Plaintiff M1/2021.
- Where an AAT finds that an applicant’s oral evidence “closely reflected the claims in his statutory declaration,” that finding carries the implication that the AAT considered (and rejected) the full content of the statutory declaration, not merely the specific incidents it mentioned by name in its reasons.
- Once an independent expert opines that an applicant has not suffered relevant family violence, the AAT is bound by reg 1.23(10)(c)(ii) to treat that opinion as correct — the expert’s finding effectively becomes determinative of the visa criterion.
- Parties challenging AAT decisions on grounds of incomplete consideration must identify the allegedly unaddressed claims with sufficient particularity before or at the hearing; post-hearing supplementation (as occurred here with the “List of Conduct”) may be permitted but will not automatically establish jurisdictional error.
Why It Matters
This decision reinforces the two-stage structure of the family violence assessment framework under Division 1.5 of Part 1 of the Migration Regulations 1994: the decision-maker must first conduct a genuine, holistic evaluation of all claims before invoking the independent expert pathway. At the same time, the Court confirmed that comprehensive consideration does not require line-by-line enumeration of every claim in written reasons — a finding that an applicant’s evidence as a whole was unpersuasive can suffice where it logically encompasses the full scope of that evidence.
For migration practitioners, the case is a practical reminder that applicants alleging family violence should ensure their statutory declarations and oral evidence expressly and specifically articulate each category of claimed conduct. A declaration that covers casino coercion, physical abuse, threats, isolation, and financial control gives the decision-maker — and, on review, a court — a clear record against which the adequacy of the AAT’s consideration can be measured. Where the statutory declaration is the primary evidentiary document and the AAT explicitly links its credibility findings to that document, it becomes difficult to argue that particular claims were overlooked.