Court Rejects Visa Appeal by Non-Citizen With Domestic Violence History

A non-citizen with a history of domestic violence has lost a case in the Australian Federal Court meaning he will not be able to extend his stay in the country.

Vincent Moonga Mwambwa appealed a Federal Court decision concerning the refusal of his Bridging E visa application, arguing that his removal from Australia would negatively affect his four-year-old daughter.

A Bridging Visa E allows someone to remain in Australia if they are currently unlawful non-citizens or resolving an immigration matter.

It is understood Mwambwa, from Zambia, was originally granted an injunction to remain in Australia as he did not have a visa or citizenship.

Counsel acting on behalf of Mwambwa argued that the Administrative Appeals Tribunal had failed to properly consider the impact of separation on his daughter—the court was told she had complex needs and had a severe speech delay and learning disability.

Justice Jackson said the impact on Mwambwa’s daughter was a significant humanitarian consideration, despite the man’s history of domestic violence against her mother.

“The minister accepts that those humanitarian concerns are real, albeit he qualifies them by reference to the domestic violence which Mr. Mwambwa has perpetrated on W’s mother in the past,” he said. W is the pseudonym for the daughter.

Yet the minister argued Mwambwa would likely be removed before the Tribunal could complete any further review, even if his appeal succeeded.

The court heard that Mwambwa had also requested ministerial intervention for the granting of a visa and had applied for an extension of time to challenge an earlier refusal of a protection visa.

The minister argued Mwambwa had no valid application for a substantive visa on foot and remained subject to a statutory duty to be removed from Australia.

Evidence provided by solicitor Tareena Martin indicated the Immigration Department intended to proceed with removal once the injunction expired.

Justice Jackson accepted that assessment, finding the injunction would probably delay Mwambwa’s removal rather than prevent it.

“There is a serious case to be put on appeal,” Justice Jackson said.

“But it is not a strong case, and the likely futility of the appeal meant that the balance of convenience favoured the Minister and the Department being permitted to administer the Migration Act without the intervention of the court.”

Justice Jackson concluded the public interest in administering the Migration Act outweighed the case for extending the injunction.

Mwambwa has also applied to the Federal Circuit and Family Court of Australia for an extension of time to challenge an earlier refusal of a protection visa.

Justice Jackson said that court would need to determine whether to grant its own injunction if Mwambwa sought one.