Australian Immigration Daily News

The Full Court of the Federal Court of Australia has ruled that there is no requirement under the Migration Act for two people to live together prior to lodging an application for a Partner Visa on the basis of a de facto relationship. The Court thus rejected an appeal by the Minister against a decision of the Migration Review Tribunal that reached the same conclusion. 

The Court’s decision in this case – SZOXP v Minister for Immigration and Border Protection, (2015) FCAFC 69 (11 June 2015) – is of obvious significance for all RMAs who are advising de facto partners in relation to Partner Visa applications. The case removes an obstacle to these types of applications, as it apparently has been the case that the Department has been refusing applications for Partner Visas in circumstances where the applicant and sponsor did not produce evidence that they had lived together before the application was lodged.

The background of this case was interesting in itself, as the applicant and his sponsor had chosen not to live together for religious reasons. The applicant was a citizen of China. He filed an application for a Partner Visa on the basis of his claimed de facto relationship with his sponsor in October 2012. The couple was married about a month after the visa application was lodged with the Department.

In the article that I posted on the Migration Alliance blog yesterday (24 June 2015) I reviewed the recent decision of the Full Court of the Federal Court, Moana v Minister for Immigration and Border Protection 2015) FCAFC 54 which addresses the “mandatory relevant considerations” that the Minister must take into account when exercising the powers under section 501(2) of the Migration Act to cancel a person’s visa on “character grounds”. 

In brief, the Court held in Moana that it is mandatory that the Minister consider whether there is a “risk of harm” that would arise from the person’s remaining in Australia, but at the same time it is not mandatory that the Minister weight the likelihood of harm (for instance to evaluate how likely it is that the person might re-offend). Interestingly, although the Court in Moana held that “likelihood of harm” is not a “mandatory relevant consideration”, it is nonetheless a consideration that would be of central importance in most cases involving visa cancellations.  The upshot of the Moana decision is that Ministerial decisions to cancel visas on character grounds that have not involved weighing the “likelihood of (future) harm” may well be vulnerable to challenge on grounds of “jurisdictional error”.

Today, I turn to discussion of another, although older, case that also relates to the matters that must be considered by the Minister when cancelling a visa on character grounds – Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) FCAFC 256 (17 September 2014). The Hyunh case is frequently cited and referred to in Federal Court decisions that review visa cancellations (for example in the very recent case of Berryman v Minister for immigration and Border Protection (2015) FCA 616 (23 June 2015)).  It is therefore important for RMAs who deal with visa cancellation cases to be aware of this case as well.

A decision by the Full Court of the Federal Court of Australia that was handed down in late April of this year has clarified the factors that must be taken into account when the Minister personally exercises the powers to cancel a visa on character grounds under section 501(2) of the Migration Act.

The case – Moana v Minister for Immigration and Border Protection (2015) FCAFC 54 (22 April 2015) – involved the cancellation of a “Special Category” visa that was held by a citizen of New Zealand. At the time that his visa was cancelled, Mr Moana was 53 years old and had lived in Australia for 24 years. During the period of his residence, he had developed strong ties to Australia, with 5 adult children, 14 grandchildren, 2 step-children and a 3 year old son living here.

However, Mr Moana had also compiled a substantial criminal record during his time in Australia. This had included a sentence of imprisonment in 1998 for a series of offences including armed robbery, aggravated burglary, false imprisonment, blackmail and theft.  He had also been convicted of multiple counts of breach of “intervention” orders as well as several counts of breach of suspended sentence. Then, in January 2013 he was sentenced to prison again, for kidnapping.

One might observe rather flippantly that compiling a record of minor driving offences is a “rite of passage” for Australians! Or perhaps that “getting caught” for relatively minor offences is something that happens to most people who drive a car, sooner or later. 

Whatever the case, a decision that was handed down earlier this week by the Administrative Appeals Tribunal – Bhownik and Minister for Immigration and Border Protection  (2015) AATA 426 (17 June 2015) – demonstrates that relatively minor driving offences are not enough to prevent a person from gaining Australian citizenship if they are otherwise a person of good character.

On the other hand, a second decision, delivered by the AAT just last week, Brown and Minister for Immigration and Border Protection (2015) AATA 414 (12 June 2015), shows that having a really horrible driving record combined with a history of other serious criminal offences may well pose difficulties – even when the applicant for citizenship has lived in Australia since early childhood.

Two recent decisions of the Federal Circuit Court have once again confirmed that regulations which specify the time when a test to demonstrate English language proficiency must be taken can be strictly enforced.

In each of these cases, Mundi v Minister for Immigration & Anor (2015) FCCA 1412 (26 May 2015) and Singh v Minister for Immigration & Anor (2015) FCCA 1533 (5 June 2015), the Court held that it did not amount to “jurisdictional error” for the Migration Review Tribunal to affirm Departmental refusals of visa applications even in circumstances where the applicant is able to produce test results at the time of the hearing before the MRT to demonstrate that she/he has, as a matter of fact, the level of English language proficiency that is required by the relevant regulations.

It may appear at first blush that these decisions are "unfair" and elevate “form over substance” and that a person who can show that she/he has the necessary level of competency in English at the time that a visa application is determined by the MRT should be able to qualify for the visa.