Australian Immigration Daily News

How can you tell if the Administrative Appeals Tribunal has made a jurisdictional error in a partner visa case? 

That is, of course, a critical question.  Because if you are able to identify a jurisdictional error, then you can advise your client that she/he would have reasonable prospects for success in a judicial review proceeding, and that it would make sense to file an application with the Federal Circuit Court to try to get the decision of the AAT “quashed”, or overturned. 

A decision that was handed down earlier this week by Judge Nicholls, in the case of Butterworth v Minister for Immigration & Anor (2016) FCCA 876 (18 April 2016) does provide some very helpful guidance about when a jurisdictional error has occurred.  So it is definitely a case that is worth knowing about. 

Partner visa refusals can of course be incredibly frustrating, can’t they? 

When you have clients who are without doubt lawfully married to each other, and want to share a life together in Australia, but the application nonetheless gets “knocked back”.  As that familiar saying goes, “married in the eyes of the law is not the same thing as being “married” in the eyes of the Department.  

And it would seem that relationships where there is a large age discrepancy between the parties to the marriage receive a high degree of scrutiny.  Yet when famous people marry much younger partners – for example, Rupert Murdoch and Jerry Hall, or George and Amal Clooney, it doesn’t seem like anyone questions whether they have a “mutual commitment to a shared life as husband and wife to the exclusion of all others”, or makes value judgments about the underlying motives for the marriage. 

Well, what was the story in the Butterworth case?  There was certainly a large age gap between the parties, and, while not specifically mentioned in the Tribunal’s decision, you have to at least wonder whether the existence of that age gap played a part in the Department’s refusal of the application in the first instance, and the Tribunal’s decision to affirm the refusal. 

The facts were that the sponsoring Australian citizen, Mr Butterworth, was 71 years old.  His wife was a Cambodian citizen who was about 35 years younger.  

As reported in Judge Nicholls’ judgment, the evidence was that Mr Butterworth had met his wife when she came to Australia to visit her mother.  After the wedding ceremony, the wife returned to Cambodia, where she had three children from an earlier marriage.  There was evidence that Mr Butterworth and his wife had remained in contact with each other through mobile phone records and transcripts of Viber messages, that Mr Butterworth had made bank transfers to his wife, and that he had moved to larger accommodation to provide housing in Australia for his wife and her children. 

However, the Departmental officer in Pnomh Penh was not satisfied that sufficient credible evidence had been provided to persuade him that the relationship was genuine and continuing.  And on review, the Tribunal agreed with this conclusion. 

The factors that were troubling to the Tribunal were that Mr Butterworth and his wife did not have any jointly owned assets or liabilities, and did not share day-to-day expenses, as they lived in different countries; there was concern on the part of the Tribunal that there had been a “hurried” decision to marry, and that the relationship had been entered into with “little mature or considered thought”; and that there were communication difficulties between the couple such that the Tribunal was not prepared to accept that the couple provided each other with a meaningful  level of companionship or emotional support. 

Therefore, the Tribunal was not satisfied that Mr Butterworth and his wife were in a genuine relationship, or that they were committed to a shared life to the exclusion of all others. 

So how did Mr Butterworth’s representatives persuade Judge Nicholls that the Tribunal’s decision was “infected” by jurisdictional error? 

They made one argument that did not succeed. They claimed that the question of whether the parties to a married relationship have a mutual commitment to a shared life together is purely a question of their “state of mind” or “subjective intention” with respect to the relationship. 

However, Judge Nicholls accepted the Minister’s submission that the determination as to whether these is a mutual commitment cannot be based purely on the parties’ claims concerning their “subjective intentions”. Rather, Judge Nicholls took the view that the question of whether there is a “mutual commitment” must be made on the basis of “all the circumstances”, including those matters listed in Regulation 1.15A. In short, Judge Nicholls ruled that the parties’ claimed subjective intentions concerning the relationship is not determinative of whether a partner visa should be granted. 

So if this argument failed, then how was Judge Nicholls persuaded that there was jurisdictional error in this case? 

This is what turned the tide: There had been evidence from Mr Butterworth before the Tribunal that he was “seeking companionship and physical and emotional support” from the relationship. On the basis of that evidence, the Court found that the Tribunal had made findings that went to the matter of whether there was a commitment to the relationship on Mr Butterworth’s part.  

However, the Tribunal had made no findings at all concerning what Mr Butterworth’s wife was “seeking from the relationship”.  

The Court therefore concluded that the Tribunal had “failed to complete the exercise of its jurisdiction”. 

To put it another way, the conclusion of the Court was that the Tribunal had not made a determination concerning a “relevant matter” – whether there was a shared commitment on the part of Mr Butterworth’s wife to a life together as husband and wife to the exclusion of all others.  So the Tribunal had “fallen into error” by failing to make a finding necessary to determine if there was in fact a “married relationship” between the parties within the meaning of section 5F of the Act. 

So what is the ultimate lesson to be taken from this case about how it can be determined that there was jurisdictional error in a partner visa case: Again, if the Tribunal does not make any finding concerning one of the matters that is critical to the determination of whether a married relationship exists, such as whether there is a commitment on the part of one of the parties to a shared life, then, in that situation, a finding of jurisdictional error may be made.

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.