Is there any way to salvage a partner visa application that has been “knocked back” by the Administrative Appeals Tribunal?
Suppose, for example, that the Tribunal has made a finding that it was not satisfied that based on “inconsistencies and implausibilities in the evidence” it was not satisfied that the applicant and the sponsor had a mutual commitment to a shared life together to the exclusion of all others, that any commitment was genuine and continuing, or that they lived together or that did not live separately and apart on a permanent basis?
Is that necessarily the end of the story?
A decision of Judge Lucev of the Federal Circuit Court that was handed down on 3 August illustrates one way to identify whether the Tribunal’s decision was infected by jurisdictional error,and to get the decision set aside and returned to the Tribunal for reconsideration: Fobizi v Minister for Immigration & Anor (2017) FCCA 1738.
The background of the case was that it involved an “off-shore” partner visa application, made under Subpart 309 of Schedule 2 of the Migration Regulations 1994. The applicant and the sponsor claimed to have been married in October 2014, and the applicant was living overseas in a country that was not identified in the Federal Circuit Court’s decision but was apparently South Africa.
In canvassing the evidence that had been tendered to the Tribunal in support of the application, the Tribunal made the following findings:
* With respect to the financial aspects of the relationship, that it is difficult for two people living in separate countries to acquire property in joint names, open joint bank accounts or borrow money, and that the only way that they could pool money was through money transfers, and that while there was evidence that the sponsor had sent money to the applicant, it was not sufficient to indicate a pooling of resources of a sharing of day-to-day finances;
* With respect to the nature of the household, because the sponsor and applicant lived in separate countries there was limited opportunity for them to live together as spouses;
* With respect to the social aspects of the relationship, the evidence was limited to showing short phone calls between the applicant and members of the sponsor’s family; that the sponsor had met members of the applicant’s family and that various friends and relatives of the sponsor and the applicant had attended their wedding ceremony, but that ultimately this evidence was not sufficient to persuade the Tribunal that the social aspects of the relationship evidenced a spousal relationship.
The Tribunal’s decision also mentioned inconsistencies in the sponsor’s evidence concerning matters such as when the sponsor met the applicant; the provision of financial support by the sponsor to the applicant; and the sponsor’s account of his travel to meet the applicant’s family.
So what turned the tide in this case?
Nothing less than what might be described as a “classic species of jurisdictional error”.
As readers will be aware, Regulation 1.15A(2) of the Migration Regulations requires that in assessing whether a spousal relationship exists for the purposes of the grant of a Partner visa, the Tribunal must consider all of the circumstances of the relationship, including the matters set out in Regulation 1.15A(3). In turn, sub-regulation 1.15A(3)(d)(iv) requires consideration of the nature of the persons’ commitment to each other, including “whether the persons see the relationship as a long-term one”.
With reference to authorities in the case law, Judge Lucev found that e direction in Regulation 1.15A(2) that “all” of the matters listed in Regulation 1.15A(3) be considered is absolutely mandatory, and imposes an “absolute obligation”, or “imperative command” on the Tribunal to consider those matters.
And Judge Lucev also concluded that the direction in Regulation 1.15A(2) that “all” the matters in Regulation 1.15A(3) be considered also speaks to the “imperative nature of the obligation”, and thus makes clear that the “breadth” of the obligation extends to all the circumstances and matters that are specifically listed and described in Regulation 1.15A(3).
Accordingly, Judge Lucev held that the obligation imposed by Regulation 1.15A(2) requires that the Tribunal consider whether the applicant and the sponsor “see the relationship as a long-term one”.
Further, Judge Lucev held that the duty to “consider” a matter means that the Tribunal must “engage in an active intellectual process directed at the claim or criteria”.
What Judge Lucev found was that in this particular case, the Tribunal had not, at any point in its decision, considered whether the parties saw the relationship as a long-term one. There was no “active intellectual process” by which the Tribunal engaged with this issue.
Thus, Judge Lucev ruled that it was not evident from the Tribunal’s decision that it had considered all the criteria relevant to the question of whether the visa should be granted, that there had been no “real” exercise by the Tribunal of its powers of review, and that jurisdictional error had occurred.
The moral of the case: in partner visa cases, it is essential to review carefully the Tribunal’s reasons for affirming the refusal of an application; if it is apparent that the Tribunal has not considered one (or more) of the circumstances of the relationship that is listed in Regulation 1.15A(3), there is every likelihood that a strong case can be made that there had been error on the part of the Tribunal.
And here is another important moral: if a delegate of the Minister makes this kind of error when reviewing a partner visa application - failing to have regard to one of the "circumstances" referred to in Regulation 1.15A(3) - then it is likely that there will be good prospects for challenging the refusal before the Administrative Appeals Tribunal!!
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