Australian Immigration Daily News

In my most recent article last week, I made some observations about how frustrating, even heartbreaking, it can be when the Department and the Tribunal assess a partner visa application with a skeptical, perhaps “cynical” eye.  

It would be hard to imagine anything much worse, in the context of migration law, than for people who genuinely love each other and want to spend their lives together in Australia, to have their partner visa refused because the Department does not accept that a relationship is genuinely genuine.  As RMAs, a big part of our job is to help people’s dreams come true. So how disappointing and devastating must it be when a legitimate partner visa application gets “knocked back”? 

At the same time, we all recognize that the Department does have a legitimate task to do in relation to partner visas.  Unfortunately, not every partner visa application is the product of a genuine relationship. And it surely can’t be argued that the Department has a perfectly proper role to play in “separating the wheat from the chaff” by screening out partner visa applications where the relationship is not genuine. 

A recent decision from the Federal Circuit Court – Singh v Minister for Immigration & Anor (2015) 3214 (4 December 2015) – is definitely worth knowing about.   It provides an illustration of the kinds of factual circumstances which may lead the Department and the Tribunal to reach a conclusion that a relationship is not genuine.  

So the case can provide a useful “alarm bell” to RMAs about the kinds of issues that can cause problems for a partner visa.  When these alarm bells start “ringing”, RMAs will be able to identify that a partner visa application may be “headed for difficulty”.  And perhaps, perhaps in these kinds of cases, once RMAs hear the alarm bells ringing, it will be possible to go back to their clients and get further evidence that may enable them to “rescue” the application. 

Or perhaps when an RMA hears these alarm bells, she/he can advise the client that her/his application is likely to encounter obstacles, and to advise the client that it might just well be wise to avoid the risk of losing the large application fee that is now required for partner visas! 

So – exactly what were the circumstances in the Singh case that caused trouble for the applicant? 

The story here was that the applicant was already in Australia on a provisional partner visa (subclass 820). He then applied for a “permanent” or “resident” partner visa (subclass 801). However, by the time that the permanent partner visa application was lodged with the Department,  his sponsoring “spouse” had died. 

The applicant thus faced 2 fundamental problems. 

First, he needed to be able to satisfy sub clause 801.221(5) of Schedule 2 of the Migration Regulations by showing that he had “developed close business, cultural or personal ties to Australia”. The Tribunal was not satisfied that the applicant had such ties. And when the applicant’s case came before the Federal Circuit Court, he did not attempt to challenge the Tribunal’s findings on this matter. 

Accordingly, the applicant’s case was, quite literally, “dead on arrival” when it reached the “doorstep” of the Federal Circuit Court.  Without having any basis to challenge the Tribunal’s conclusions on the issue of his ties to Australia, the applicant did not have a prayer of succeeding in the Federal Circuit Court.  As lawyers love to say, his application for judicial review was proverbially “doomed to failure”.  The only possible outcome was that the applicant was going to get his judicial review application dismissed and get an adverse costs order.  That is exactly what happened. 

The lesson here? If an applicant cannot satisfy one of the criteria for grant of a particular kind of visa, and doesn’t have any basis at all for challenging an adverse finding by the Department and the Tribunal on the issue, then the applicant has no business going anywhere near the Federal courts!  

The second criterion that the applicant was required to show under sub clause  801.221(5) that he “would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died”. 

The problem for the applicant was that the Tribunal was not satisfied about this issue. The Federal Circuit Court concluded that there had been good reason for the Tribunal not to be satisfied. In the Court’s view, the Tribunal’s conclusion that the applicant had not genuinely been the spouse of his sponsor, and would not have continued to be her spouse had she not died, was perfectly reasonable based on the available evidence. 

The difficulties included the following:

1.There was limited evidence that the applicant and the sponsor had any joint liabilities or that they had pooled their financial resources. Thus, the Tribunal concluded that the kind of joint financial relationship that could be expected if the parties were in a genuine spousal relationship did not in fact exist

2. There was limited evidence that the applicant and his sponsor represented themselves or were accepted by friends and family as a couple.  The applicant’s evidence before the Tribunal was that he and the sponsor had only one mutual friend; that he had never met the sponsor’s mother; that he had met the sponsor’s sister only once and did not even know the sister’s name.

3.The evidence concerning the parties’ commitment to each other was especially weak: the applicant’s account of the cause of his sponsor’s death was different from that given in the independent medical evidence; the applicant was not aware that there had been a coronial inquest into the cause of the sponsor’s death; and the applicant did not know about the sponsor’s criminal history which included a manslaughter conviction and a string of other convictions that had been recorded during the period when they were supposedly in a spousal relationship. 

Clang, clang clang! The alarm bells that sounded in this case were so loud they were practically deafening! 

The gaps in the applicant’s evidence were big enough to drive a truck through! And they provided a clear indication that this application was headed straight over the edge of a cliff. 

The ultimate moral of this case? If it walks like a duck and squawks like a duck, it is a duck! If the evidence concerning the existence of a spousal relationship is as thin as gruel, no amount of legal proceedings, either in the AAT or in the Courts, will be enough to save it!

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837