Australian Immigration Daily News

The familiar expression that “timing in life is everything” is used so frequently because it is confirmed by our every-day experience.  But who would think that the truth of this saying would be demonstrated yet again by a decision of the Federal Circuit Court that is “buried” on the Austlii Website? Yet indeed, surprising as this may sound, a recent case, Isanan v Minister for Immigration & Anor, (2015) FCCA 1397 (29 May 2015) does provide another illustration of how critical timing can be! 

The Isanan case involved the refusal of a Permanent Partner Visa.  The applicant, Ms Isanan, was a Filipino citizen who held a Provisional Partner Visa (subclass 309). Her husband and sponsor died suddenly on the same day that she arrived in Australia. Ms Isanan sought to qualify for a Permanent Partner Visa (subclass 100) on the basis of clause 100.221(3)(b) of Schedule 2 of the Migration Regulations.  

 As will be well known to RMAs, one of the usual requirements for obtaining a Permanent Partner Visa is that at least 2 years must have passed since the application for the Provisional Partner Visa was made (see regulation 100.221(2)(c)). However, clause 100.221(3)(b) provides an exception to this “normal rule”.  Under the clause, an applicant can be eligible for the grant of a Permanent Partner Visa if the sponsoring partner dies after the applicant first enters Australia as the holder of a Provisional Partner visa. 

The question on which the outcome of this case turned was whether the applicant had in fact entered Australia before her husband died.  

The facts of the case were that Ms Isanan had married an Australian citizen in the Philippines in 2012. She was granted a Provisional Partner Visa on 11 January 2013. On 19 January 2013, she boarded a flight to Australia from Manila that was scheduled to arrive in Perth at 11:10 p.m.  After being taken to the home of her husband’s sister, she was told that her husband had died earlier that day.  Although the death certificate that was prepared in relation to her husband stated a cause of death, it did not specify the time of his death. 

A few days later, Ms Isanan signed a “Notification of Changes in Circumstances” form (Form 1022) which stated that her husband had died at 7:40 p.m. on 19 January 2013, and that she had arrived in Australia at 11:30 p.m. on that same day.  

Due to the fact that the information on this form indicated that Ms Isanan had not entered Australia as the holder of a Provisional Partner Visa until after the time that her husband had died, a Departmental officer refused her application for a Permanent Partner Visa. The Migration Review Tribunal affirmed the refusal of the application, and Ms Isanan then appealed to the Federal Circuit Court. 

The basis of the challenge to the MRT’s decision in the Federal Circuit Court was that the Tribunal had relied on “hearsay evidence” (in the form of the “Notification of Change of Circumstances”  that had been signed by Ms Isanan  to make a finding that Ms Isanan’s husband had died before she had entered Australia (in other words, before her plane had landed in Perth).  The Notification of Change of Circumstances was claimed to be “hearsay” because Ms Isanan was not personally aware of the time of her husband’s death – that information had been given to her after her arrival in Australia by members of her husband’s family who had been present when he died.  

It is of interest that no evidence was given to the MRT concerning the actual time of the death of Ms Isanan’s husband, either from the doctor who signed his death certificate or otherwise. Likewise, there was no evidence that Ms Isanan’s representatives had requested that the doctor give evidence in the MRT, or even that efforts had been made to contact the doctor so that it could be arranged for him to give evidence.  (The written judgment of the Federal Circuit Court does not indicate whether any evidence could have been developed which would have demonstrated that Ms Isanan’s husband had actually died at a later time than was stated in the Notification of Change of Circumstances form). 

Against this background, the Federal Circuit Court found that the MRT had not committed jurisdictional error by relying on the Notification of Change of Circumstances from as evidence of the time of the death of Ms Isanan’s husband.  The fact that this document could be characterized as being based on “hearsay”  was not, in the Court’s view, a reason why it could not be relied on by the MRT to make a factual finding. The Court adopted the holding of the Federal Magistrates Court in the case of WZANF v Minister for Immigration and Citizenship (2010) FMCA 110 to support its conclusion that the MRT can properly rely on hearsay evidence. 

The irony of this case is that if Ms Isanan had arrived in Australia even a few hours earlier, her application for a Permanent Partner Visa would likely have been successful.  The case is thus a sad reminder of the unpredictability of life, and of the consequences that this unpredictability may have on the determination of a person’s visa application. 

The case also demonstrates the degree of care that must be taken when information is given to the Department that might be consequential or determinative of a visa application.  As suggested above, the Court’s decision does not indicate definitively whether evidence could have been obtained that would have fixed the time of death of Ms Isanan’s husband after the time that she entered Australia.  However, as this information was obviously critical, it appears that it would have been worthwhile for Ms Isanan to explore whether such evidence could have been obtained before she filed the Notification of Change of Circumstances form. 

Of course, this is yet another area where RMAs can provide extremely valuable assistance to prospective visa applicants.

This article was prepared by Michael Arch, Concordia Pacific Migration Lawyers, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. ,This email address is being protected from spambots. You need JavaScript enabled to view it. Tel: (02) 8068 8837