Suppose you have a case involving an application for a partner visa.
There is a 20 year age gap between the applicant and the sponsor. The evidence is that the applicant and the sponsor do not share a bank account, the sponsor does not contribute to shared household costs, and the sponsor instead spends large sums of her money on alcohol and cigarettes.
Although the applicant and the sponsor are lawfully married, the relationship ended after the partner visa application had been lodged, and before it was determined by the Department. There is a claim of family violence by the applicant. However, the Department’s officer declines to consider the family violence claims on the basis that the evidence does not establish that the applicant was in a genuine and continuing relationship with the sponsor at the time of the application.
What can you do in this situation? Do you decide there’s nothing you can do to advance your client’s case, that it is dead on arrival, and the best course of action is to throw yourself off a cliff? Or to collapse in a heap on the floor of your office? Jump out of an airplane?
Well, a case that was decided in the Federal Circuit Court just on Monday would suggest that if you did give up, you would have been too hasty! Sometimes, there’s more than meets the eye!
And sometimes, as happened in this case – Singh v Minister for Immigration and Anor (2016) FCCA 1845 (1 August 2016) – the hearing process before the Tribunal goes off the rails, the Tribunal misapplies the law or denies your client procedural fairness, and you can rescue the case with an application for judicial review to the Federal Circuit Court.
So the Singh case gives you something to hang your hat on if a client asks you: “What is the benefit in my paying you to accompany me to the hearing before the AAT? You have explained to me that under section 366A(2) of the Migration Act that you won’t be able to present arguments on my behalf, or to address the Tribunal unless there are “exceptional circumstances”. So, won’t you just be a bump on the log at the hearing? If you’re not allowed to talk or present arguments on my behalf, why shouldn’t I just go on my own and save the money?”
So, what happened in the Singh case anyway?
Well, at the hearing, the visa applicant said that he paid all of the household bills during the period that he shared a home with his Australian wife, and that she did not contribute to utility bills or living costs. The applicant sought to offer evidence that his wife had incurred a number of fines for speeding and that he had paid some of the fines, but the Tribunal member stated that she did not think they were “legally relevant”.
The Tribunal member then concluded that “there was minimal evidence of any pooling of resources” and that it was thus not satisfied that “the financial aspects of the relationship support a finding that the relationship between the applicant and the sponsor was genuine”.
Clang? Was this statement by the Tribunal member equivalent to the sounding of the alarm bell signaling the presence of jurisdictional error?
Yep!
Judge Riley of the Federal Circuit Court found that the Tribunal member had misunderstood and misapplied the relevant regulation – 1.15A(3)(iii) – concerning the pooling of resources. Her Honour was of the view that evidence concerning the applicant’s payment of the sponsor’s speeding fines was in fact “legally relevant” because it did show pooling of financial resources, in the sense of one party meeting the expenses of another.
Judge Riley also determined that the Tribunal had been in error when it determined that the evidence that the applicant paid all the household bills and that the sponsor did not contribute showed that there had been minimal pooling of resources. Her Honour took the view that when an applicant pays for a sponsor’s living expenses that amounts to a “pooling of financial resources”. In Judge Riley’s opinion, such a scenario is very different from one where each person pays for all of their own expenses entirely separately.
So the important lesson here is that the parties to a relationship do not have to share household and other expenses equally in order for there to be a finding that there is a pooling of resources, and thus evidence of a genuine relationship. In fact, this case tells us that one of the parties does not need to contribute at all to living expenses, so long as the expenses are “common “ or shared expenses of the parties to the relationship.
There was another aspect of the hearing in this case which led Judge Riley to conclude that the Tribunal had committed jurisdictional error.
At the conclusion of the hearing, the Tribunal member had asked the applicant’s agent whether he wished to make any submissions.
However, what occurred after this invitation was extended was that the member engaged in an argument with the agent, repeatedly interrupted him and did not let him speak. The consequence was that the agent ultimately did not have an opportunity to make submissions. Judge Riley found that, in light of the Tribunal’s misapplication of the law concerning the pooling of financial resources, that the refusal of the Tribunal member to allow the agent to make submissions might have affected the outcome.
So on top of the incorrect interpretation of the law, Judge Riley found that the Tribunal member’s refusal to allow the applicant’s agent to make submissions had the effect of denying the applicant a fair hearing.
A case definitely worth keeping in mind and bringing to the attention of the Tribunal when you ask for the opportunity to make submissions at the close of a hearing!!!
Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.