Podcast: Immigration & Family Law: A Conversation with David Bongiorno

Nadine:

Good afternoon, my name is Nadine Udorovic and I am one of the partners at Nicholes Family Lawyers.  I am joined today by David Bongiorno of David Bongiorno and Associates.  David is an Immigration Lawyer and Migration Agent, with whom I work very closely on many family law matters, but also local domestic law matters.   Today we will be talking about the intersection between Family Law and Immigration Law.

Nicholes Family Lawyers has a specialist knowledge of International Family Law. We have advised on matters in many jurisdictions throughout Europe, Asia, the United States and Australasia.  Due to the international nature of many of our matters, we often see an overlap with Immigration Law.  International Family Law comes in various forms, including matters where a parent is seeking to re-locate to another country with a child or children and international child abduction cases or Hague Convention matters and parenting matters where visa or immigration issues need advice and resolution.  Hence, David Bongiorno will be called upon to assist.

We also have a number of international partnerships and connections including Children’s Rights International, the International Family of Family Lawyers, the World Congress on Family Law and Children’s Rights, and LawAsia, to name a few, and work with other family lawyers around the globe.

David:

Good afternoon, Nadine, good afternoon listeners, it is nice to be here.  I’ve been a lawyer for 20 years now, a migration agent since 2006.  Before that I was a journalist here in Australia, in Bangkok, London and Rome.  I returned to law school as a mature age student in 1996 and did Articles of Clerkship at a commercial law firm in 1999. I won’t name them because they were awful, but like most commercial law firms, the sooner it was done the better.  You remember Articles don’t you, Nadine?

Nadine:

I do, yes

David:

I think younger lawyers are lucky not to have to do them. I practised Criminal Law at Haines and Polites under Charles Mikakis, if any of you know him, he’s a great teacher, a great mentor.   Since 2006 I’ve been in the world of immigration.  My team and I do everything, from tourist visas to ministerial interventions and anything in-between.  Jess Nicole Clough, I hope you are listening, I hope you enjoy the podcast.

Nadine:

Thank you, David. So today, David and I will discuss two cases to highlight some examples of the cross-over between family law and immigration law.  In a case we had, David and I were asked to advise in respect to both family law and immigration law regarding a separated couple    The parties separated and there were acrimonious family law proceedings on foot.  The father threatened to withdraw the mother’s visa application.  The father wanted the mother’s visa cancelled and her to be removed from Australia, allowing him to claim sole parental responsibility for their child in Australia on the basis that he was intent on having the mother return to India.  At issue were the mother’s possible post-natal depression and incapacity to raise the child with proper hygiene standards.

There were also strong tensions between the mother’s Indian relatives and the father. International family law matters often involve confronting broken relationships with clients’ relatives who may live overseas. In response to the father’s suggestion that he wished to have the mother’s visa cancelled, and her effectively removed from Australia and returned to India, our advice to the father was not to try and force the mother’s cancellation of her visa application, on the basis that the mother was breast-feeding and was the child’s primary carer and hence the family court would be likely to award her the right to re-locate to India with the child if she sought such orders from the family court.  And further, that it would be a bad look for the father to essentially take steps to endeavour to try to have the mother’s visa cancelled and her removed from Australia to India.

David’s role was to advise regarding the father’s desire to alert the Department of Immigration to alleged fraudulent activity by the mother in regards to the permanent residency she obtained through marriage to him. Again, such a step by the father would have negatively impacted on the family law proceedings regarding the child.

David:

Nadine, the Australian citizen father was hurting, the Australian permanent-resident mother was hurting and they had an Australian citizen child.  When I spoke with the dad, I learnt that he and his wife had gone through the entire 820/801 partner visa process.  Now, these days, that is 45 months from start to finish. So Australian citizen and now Australian permanent resident wife had made representations, not once but twice to the Department over such a long period.  I don’t know whether they did a 300 prospective marriage visa before that, I can’t recall, but I do know that on two separate occasions and many months apart, they had declared that they had a shared life to the exclusion of others…..if this could be substantiated by financial evidence, household evidence, social recognition evidence, and evidence of a commitment to each other.  Financial aspects of the relationship to the 820 visa and the 801 visa include a joint ownership of real estate and other pooled financial resources.

Her family had loaned them money as well, to help them buy their house; they had travelled to places in Australia and India together.  Household aspects of their relationship to the 820 visa and the 801 visa included statements about who did what around the house, who did what to look after thei child, and who did what around the house in terms of chores.  Social aspects of the relationship to the 820 visa and the 801 visa included evidence that they had represented themselves to other people as being married, there was public recognition at their places of employment, places of worship and so on.  They provided Form triple-8s from Australian citizen friends and Australian permanent resident friends and statutory declarations pursuant to Indian law as well.  Important third-party evidence from two countries, Australia and India.  Important to note here that people who make Form Triple 8s and include false statements in them are liable for punishment of up to 4 years.  So the Form Triple 8 that they use is a very powerful document, it’s heavy stuff.  Now evidence of commitment to each other to the 820/801 visa was also provided in the form of statements about their relationships and she said love stories!  Bills, receipts, invoices, credit cards and statements, were used to support the material they presented in their statements.  It was a lot of evidence to show that they were genuinely committed; the statements chronicled how they met, courted, married, lodged the visa for the wife to stay here, how they wanted to have a child, how they had one.  What I saw and what I heard was that they had powerful evidence to show the duration of their relationship, the length of time they lived together, the degree of companionship and emotional support they drew from each other, and whether they saw their relationship as a long-term one.

When he made noises about fraudulent activity, I asked him what proof he had. I wanted to know how she had used him, how old that proof was, how plentiful the proof was, and what he was going to say about the two applications that he had lodged with his wife.

I asked him, if his wife went back to India, when he thought he would see his child.  He never provided the documents and I think the thought of not seeing his child made him take a deep breath and reconsider what he really wanted to do.

Nadine:

I think that’s right, David, and I think, as I understand it, that the client ultimately accepted the advice that we both gave him and didn’t pursue that.

David:

And that’s a good outcome for him; he probably didn’t feel that at the time, because it’s a good outcome for him because he gets to see his child.  His child stars.

Nadine:

And a good outcome for the child, because I think…essentially, the mother did want to remain in Australia, she certainly didn’t want to go back to India to live.

David:

No, not at all.

Nadine:

So another case was another international law matter that we advised on was a re-location matter which also concerned, had elements of domestic violence. Our client was a Taiwanese citizen living in Australia on an extended tourist visa. Her ex-husband was an Australian citizen; he was born in Taiwan and the pair shared a young child. Our client applied in the Federal Circuit Court at Melbourne for an urgent Recovery Order against the father, to have their child returned to her.  She was living separately from her child because she had left the house, due to serious domestic violence, and she had an Interim Intervention Order against the father.  It was ordered that the child be returned to our client and that the child spend time with her father.  Immigration issues remained, however, because the child had both Taiwanese and Australian citizenship, which had been attained through dissent.

However, it was unknown whether the child had an Australian passport. The mother’s visa expiry date was approaching.  Accordingly, we consulted David in relation to our client’s immigration status, and specifically whether she could apply for permanent residency to remain in Australia and if so how.

David:

If she had come in – she got shy, Nadine!  If she had come in – did she end up with full custody?

Nadine:

Yes she did.

David:

Fantastic result.  What would have happened in that scenario if she had come in…see, she had lived on a tourist visa in Australia, so she couldn’t do a student visa because she was not a genuine temporary entrant.  She couldn’t do a guardian visa, because her child was an Australian citizen, she couldn’t do a 482 visa because she had no appropriate qualifications, no skills, she couldn’t do a 407 trainee visa for the same reasons, no appropriate qualifications or skills, a 186 visa was beyond her, a 491 visa was beyond her.  She couldn’t do a partner visa because she couldn’t do an offshore partner visa….she couldn’t do anything, so what we would have done in that scenario was to put another tourist visa in, and if it had been approved, that would have been a good thing, but we couldn’t do another one because it would not have been approved because she’s not a genuine temporary resident. You can’t maintain a temporary residency on a tourist visa.

We would have put an application in to get to the Administrative Appeals Tribunal and then we would have sought ministerial intervention, believing that her scenario, which is a tragic scenario, could meet compelling compassionate circumstances and we would look to convince the minister that she should stay here to raise her daughter.  That is what we would have done once the final order had been made.

Nadine:

Yes, so women such as the Taiwanese mother who are living in Australia on temporary visas and subject to domestic violence often struggle to access essential support services.  The intersection between international family law and migration law is deeply complex and is essentially pertinent when it comes to domestic violence.  In an ideal world, all victims of family violence living on Australian soil would have access to support services.  However, when it comes to providing support for domestic violence victims, the Australian visa system is flawed. Expertise in both areas of law in community legal centres can be short in supply, particularly in rural areas due to a lack of funding.

As such, women who are on temporary visas and are experiencing family violence often lack access to essential services and therefore feel forced to remain with a violent partner.  Women throughout Australia who are on temporary visas and are experiencing family violence are often unable to access support services, including Centrelink, Medicare, social housing, just to name a few.

These women are often not afforded the right to work in Australia and those with children often cannot afford to put their children through child-care or do not have an income because their time is spent minding their children at home.  Limited social networks, lack of knowledge or services available to them, poor English and cultural expectation to remain in a relationship are also commonly-experienced barriers.

David:

Huge issues, Nadine and you are 100% correct.  Few social networks, no knowledge of what is out there, little or no English, and cultural expectations.  I see this a lot.  Migration regulations contain family violence provisions but they are only applicable to certain visas.  These are the 309/100 offshore spouse visa, the 828/01 onshore spouse visa, the 300 prospective marriage visa from offshore, the dependent child visa, and the distinguished talent visa.  Migration regulations define family violence as conduct whether actual or threatened towards the alleged victim, or a member of the family unit of the alleged victim, or a member of the family unit of the alleged perpetrator, or the property of the alleged victim or the property of a member of the family unit of the alleged victim or the property of a member of the family unit of the alleged perpetrator…..anything that causes the alleged victim to reasonably fear for or to be reasonably apprehensive about his or her well-being or safety.

Now, there are some slight variances, and if the sponsoring partner on a distinguished talent visa, which is one of the few visas, if the sponsoring partner of the primary applicant of the distinguished talent visa has committed – it must be committed family violence while the relationship existed – the sponsoring partner has to have committed the family violence while the relationship existed, and if the victim holds a 300 prospective marriage visa, the victim must have been married to the sponsor.  That’s a visa that gives you 9 months to get here and get married and so if the violence occurred before the marriage, then that person is not eligible.

The relationship has got to be genuine and continuing in all instances and the victim must have formed the view that family violence occurred.  You and I cross over again in our respective areas of law – judicial and non-judicial evidence can be used to demonstrate that family violence has occurred. Judicial evidence includes injunctions, domestic violence orders and findings of guilt in crimes of violence against the visa applicant.  Non-judicial evidence includes statutory declaration from the visa applicant and two items out of such things as a medical report, a police report, a child protection authority report, a treating psychologist report, and so on.  But sadly there are only 5 types of visa at present, where a woman can avail herself of domestic violence provisions.  Once again, the 309/100, the offshore spouse visa, the 828/01 onshore spouse visa, the 300 prospective marriage visa, the 445 dependent child visa and the 858 distinguished talent visa.

The Royal Commission into Family Violence of about 5 years ago, established by the Victorian Government, that addressed the issues of family violence of migrant and refugee women and expanded the family violence provisions to cover a wider range of visa subclasses.  One submission was that the Victorian government should encourage the Commonwealth government to broaden the definition of family violence in the migration regulations so that it is consistent with the Family Violence Protection Act to ensure that people experiencing family violence can access crisis payments regardless of their visa status.

Another submission addressed was the 3^rd action plan that stated that the plan was to ensure migration rules and eligibility requirements and support services do not dis-empower victims of violence or discourage them from leaving violent relationships, an important point!

Another movement towards addressing the protection of visa holders was made 2 years ago by the national advocacy group Women on Temporary Visa’s Experiencing Violence. The group recommended that the government introduce a visa pathway for temporary visa holders facing domestic violence and separation from their children.  It was suggested that such a pathway include expanding Centrelink and Medicare eligibility and extending social housing services.  Unfortunately, the Australian government failed to implement any of these recommendations, which is a pity.

Faced with proposed changes, the Department stated that because only a finite number of visas are granted (and this is really cynical from the Department), women may aggravate claims to meet visa requirements.  We do not need cynical editorialising from the Department.  The attitude towards protection of migrant women facing domestic abuse in this country is still deeply concerning.  What the government needs to do is to address the policies and legislation governing temporary visas, they’re inhibiting domestic violence victims.  They are preventing them and their children from accessing essential support services.

Someone on a visa mentioned above, who believes they are the subject of domestic violence, they have got to seek help quickly.  You don’t want and I don’t want people suffering.  There’s a host of people out there, and if anyone listening wants to reach out to me, if they are on a visa, we can help them find the relevant authorities as well as show how we can help them.  It’s really important people don’t just sit; it’s really important that people act quickly.

Nadine:

Thank you, David.  Immigration law really is so specialised; we are so grateful for your expertise and knowledge today, but also all your ongoing assistance.  I suspect that currently (and this is one thing that we have not touched on today) I suspect that currently due to the COVID – 19 impact,  you have seen an increase in domestic violence and visa issues, as we have seen an increase in domestic violence in family law matters, and I suspect also that we will have to deal with various interstate and international challenges as a result of the travel restrictions

David:

Absolutely!

Nadine:

…..and the impact that has on families and so forth. So thank you!

David:

Pleasure Nadine, pleasure

Disclaimer: Nicholes Family Lawyers intends the information provided in this podcast as general information only, please contact Nicholes Family lawyers if you require specific information and advise in relation to any family law matter.