Australian Immigration Daily News

As a lawyer, I have often found that I can learn a whole lot more by reading cases where “things went wrong” than cases where “everything went swimmingly” and someone “routinely” won their case. 

The cases where problems caused someone to lose in court can teach us a lot about the types of issues that can cause a visa application to fail. And so if we know about those problems, hopefully we can avoid them when we deal with our own cases. Or at least figure out if there’s any guidance we can give our clients to help them mitigate the problems with their applications, and improve their chances of getting a visa.  Or at least be able to advise our clients about the potential pitfalls or “landmines” in their cases, so they can know about the possible risk they face and make an informed judgment about whether they want to go ahead with the application notwithstanding the risks.  

In this regard, a recent case from the Federal Circuit Court – Zaoud v Minister for Immigration & Anor (2015) FCCA 3138 (25 November 2015) – makes for useful reading. 

The case involved an unsuccessful application for a partner visa. The Department’s refusal was affirmed by the AAT. Judge Street of the Federal Circuit Court dismissed the application for judicial review. 

The application in this case was made by an applicant who was validly married to his sponsor. So the outcome here tells us “right off the bat” that the fact that the parties are married is not enough to get a partner visa application safely through the assessment process.  In fact, establishing that there is a valid marriage may only be “Step 1”! It will always still be necessary to demonstrate to the satisfaction of the Department (or to the AAT, if it becomes necessary) that the circumstances identified in Regulation 1.15A (the financial aspects of the relationship; the nature of the parties’ household; the social aspects of the relationship; and the nature of the parties’ commitment to each other) establish that the relationship is “genuine”. 

The immigration history of the applicant in this case was complicated and unusual. He had originally come to Australia in 1999 on a 457 visa which ceased in 2001. When the first 457 visa came to an end, the applicant applied for another 457. This second 457 visa was refused by the Department; the Tribunal affirmed the refusal; and the Minister declined his request to intervene. The applicant (who was from Lebanon) then sought a protection visa. That application was also refused; the refusal was affirmed by the Tribunal; and the Minister also declined to intervene with respect to the protection visa application. 

After the protection visa application was refused, the applicant remained in Australia as an unlawful non-citizen for more than 6 years. He had also worked unlawfully during that time. 

“Ding, ding, ding”! There’s an alarm bell that goes off when an applicant has a history like this. And the alarm bell is signaling: “Trouble may loom ahead!! This case ain’t your typical partner visa application!” 

Well, as RMA’s will recognize, the prospects for getting this application through were dependent on obtaining a waiver of the criteria of Schedule 3 of the Regulations. 

How did the applicant go with that? 

Well, based on the evidence that was put forward, you’d think, at least initially, that he might have had a reasonable chance. 

This evidence was that:

• Separation from the sponsor and her children (from an earlier marriage) would cause them

Emotional hardship as they were “a tight family unit”;

• The sponsor could not return to Lebanon with him as her children were settled in Australia and in school;
• The sponsor was having a difficult emotional time as her sister was ill, and the sponsor was therefore reliant on the applicant for emotional support;
• The applicant had recently financed businesses for himself and his sponsor and had bought a house. 

Here were the problems, which led Judge Street to conclude that the Tribunal had not committed jurisdictional error in reaching the conclusion that there were not “compelling circumstances” in the case to justify grant of a waiver of the Schedule 3 criteria: 

• The spousal relationship between the applicant and the sponsor had been in existence for only 1 month at the time that the partner visa application was lodged. Judge Street found that it was proper for the Tribunal to consider that the spousal relationship was not a longstanding one when it made an assessment as to whether there were “compelling reasons” to grant a waiver of Schedule 3;;
• Judge Street concurred with the Tribunal that a couple’s desire not to be separated while an offshore partner visa application is being processed does not constitute a “compelling reason” to justify a waiver of the Schedule 3 criteria;
• The sponsor’s teenage children had continuing contact with their biological father and, on Judge Street’s view, it was open to the Tribunal to conclude that the children would not suffer undue emotional hardship pending the processing of an offshore partner visa application;
• The applicant’s sponsor gave evidence before the Tribunal that she looked after her children “in every respect” – this evidence was obviously “unhelpful” to the claim that the children would suffer hardship if the applicant had to wait offshore while a partner visa was being determined;
• The applicant’s financial commitments to his business and his house purchase occurred after he had lodged his application;
• The applicant claimed that he had worked illegally in Australia in order to pay for cancer treatment for a former wife (who had remained in Lebanon) – however, on the applicant’s evidence this wife had died in 2009 and he had nonetheless remained in Australia and had worked unlawfully for many years since her death. 

This litany of problems suggests that it might have been a better course for the applicant to wait to lodge his partner visa application until more time had passed and he was in a position to show that the spousal relationship was more longstanding in nature; and that he make his financial commitments to Australia through the purchase of a business and a house well in advance of lodging the application, and not afterwards.  

An RMA who has a client in this situation could certainly provide this advice and guidance to a client. 

After all, this applicant was in “hot water” anyways due to the long period of time that he had stayed and worked in Australia as an unlawful  non-citizen.  It certainly appears from this case that deferring the lodging of the application may possibly have improved his prospects for demonstrating that the circumstances justified a waiver of Schedule 3. 

There is one other aspect of Judge Street’s decision in this case that is especially worthy of attention: 

Although Judge Street did not decide the matter, His Honour did observe that remaining in Australia for a prolonged period of time and working unlawfully may be considered to be “disentitling conduct”  which may prompt a Court to refuse to grant a “Constitutional writ” and quash a decision of the AAT that is infected by jurisdictional error.  In other words, the observations by Judge Street suggest that there is some possibility that a Court may dismiss a judicial review application even where it has been demonstrated that the Tribunal has committed jurisdictional error, if the applicant has a “bad” immigration history. 

The outcome of this case all goes to show that partner visa applications can sometimes be really tricky, and there are some genuine stumbling blocks out there that RMAs need to be careful about. Especially when the applicant is an unlawful non-citizen!

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