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A Partner Visa Application Rescued!

Are things always as difficult/impossible as they seem?

Assume, for example, that you were asked for advice about the following circumstances in relation to a Partner visa application:

1. That during the period when an applicant and his sponsor claimed to be living together in a de facto relationship, the sponsor had been granted a “parenting payment single” by Centrelink, accompanied by a letter from Centrelink which stated that the sponsor was “not partnered”;

2. That the visa applicant had also applied for a Protection visa and that when questioned about his “current circumstances” by the then Refugee Review Tribunal (in the context of an application for merits review of the refusal of the Protection visa application) the applicant did not mention that he was in a de facto  relationship with his sponsor – and further, that the applicant sought to explain his failure to mention the de facto relationship to the Tribunal because he had understood the Tribunal’s questions about his circumstances pertained only to “blood relatives”.

Is this type of evidence the clanging bell of doom, signaling that this particular Partner visa application was “dead on arrival”?

Would the only option for an RMA in this situation be to find the nearest manhole, crawl inside, slide the manhole cover back in place over her/his head, cry, and hope the case goes away?

Or maybe things aren’t as bleak as they seem? And it’s too soon to give up? And that redemption may be found through a judicial review application at the Federal Circuit Court?

The latter scenario is the better one, as the recent decision of Judge Manousaridis in the case of Newal  v Minister for Immigration & Anor (2017) FCCA 1237 (9 June 2017) instructs us.

It may well be the case that somewhere, buried in the AAT decision, jurisdictional error on the part of the Tribunal is lurking, and if it can be brought to the surface and demonstrated to the FCC, then the case may be remitted back to the Tribunal “for another bite of the apple” (redetermination of the case “in accordance with law”).

So what jurisdictional error was identified in the Newal case?

As it turned out, there was material that was corroborative of the applicant’s claim that he had been in a de facto relationship with the sponsor that was not considered by the Tribunal!

This material consisted of a statutory declaration made by the sponsor on the day before the Partner visa application was lodged with the Department, which “averred” that the sponsor had met the applicant at a party, that shortly thereafter, she had moved into the applicant’s residence, and that the sponsor’s children had “adopted” the applicant as their natural father. 

It also consisted of an email that the sponsor sent to the Department by which she sought to withdraw her sponsorship, and in which she had said that her relationship with the applicant had broken down – thereby implicitly confirming that the relationship had existed.

And how had the Tribunal failed to consider that evidence?

The authorities reviewed by Judge Manousaridis in his decision hold that the Tribunal must give “proper, genuine and realistic consideration” to an applicant’s claims, and that the term “consideration:” implies that the Tribunal must “view or contemplate attentively….examine…scrutinize…fix the mind upon…or reflect upon” the information provided by the applicant (SZTIF v Minister for Immigration & Anor).

And the Tribunal’s decision must reflect awareness on the part of the Tribunal of “consciousness of the contents” of the materials on which the applicant seeks to rely, and also an evaluation of the materials and a “process of weighing evidence and preferring some over the other” (Minister for Immigration and Border Protection v MZYTS”.

In the Newal case, the Tribunal recorded in its decision that it was not prepared to accept that the sponsor had engaged in Centrelink fraud, and it did not otherwise state in its reasons why it did not accept the evidence given by the sponsor in her statutory declaration or in her email to the Department about having been in a de facto relationship with the applicant.

So it all goes to show that if the Tribunal’s decision does not explain the Tribunal’s reasons for not accepting certain evidence that is corroborative of the applicant’s claims, then jurisdictional error may have occurred.

It all goes to show why it is important never to give up!!!!!!!!!  

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Guest Saturday, 24 June 2017

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