Australian Immigration Daily News

What if the Department has refused your client’s application for a partner visa, and the Tribunal has in turn affirmed the refusal.

Suppose the evidence in support of the genuineness of the spousal relationship between your client and his sponsor is also pretty “thin”?

For example, what if your client and the sponsor had only known each other for 2 months before they married, had met with each other  on only six or seven separate occasions before the wedding, and the marriage took place shortly before the applicant’s student visa was due to expire?

What if the bank statements for the joint bank account of the applicant and the sponsor show almost no transactions, but the account held separately by the sponsor shows numerous transactions? What if the statements for the joint bank account so not show any withdrawals for mortgage payments or evidence of joint savings?

And what if there is evidence that the sponsor and the applicant had travelled  together to Thailand with another man who the sponsor referred to as her “best friend”, but the applicant returned to Australia several days before the sponsor came back with the “best friend”?

Suppose further that allegations are received by the Department, which come to the attention of the Tribunal, asserting that the sponsor married the applicant for financial gain, that the relationship was contrived, and that the sponsor had used money that she had received from the applicant to have cosmetic surgery and to take various holidays?

And imagine further that the Tribunal concludes that the allegation that was made to the Department that the relationship was contrived for migration purposes, and that the Tribunal finds that the documents and photographs that are provided to establish that a genuine relationship exists could equally have been obtained even if there was no genuine relationship?

In all of these circumstances, is your client’s case necessarily doomed to failure?

Well, if you find yourself in a situation where the Tribunal has relied on such an accumulation of doubts as the basis for affirming the refusal of a partner visa application, then it may be well to know about a decision that was handed down by the Federal Circuit Court back in September of last year, Tran & Anor v Minister for Immigration & Anor (2016) FCCA 2723 (7 September 2016).

In that case, it was claimed in the Federal Circuit Court that the Tribunal had failed to consider one of the matters listed in regulation 1.15A, namely, whether the applicant and the sponsor had actually lived together during the course of their marriage, and, if so, “how they lived together”.

And guess what? This claim was successful! It was sufficient to persuade the Federal Circuit Court to send the case back to the Tribunal for re-determination.

The Court concluded that because the Tribunal had failed to expressly refer to the question of whether the applicant and spouse had ever lived together, and the nature of their household arrangements, was sufficient to create cause for suspicion that these issues had been “overlooked”.  And that was the case even though the Tribunal had stated in its decision that it had “considered the evidence in relation to the nature of the household and the social aspects of the relationship”.

So there are a couple of “morals to the story” here. 

The first is that as a matter of general principle, if you are able to show that the Tribunal has failed to take into account an issue that is a “mandatory consideration”, then you may be able to unlock the door, and show that jurisdictional error has occurred at the Tribunal.

And secondly: it really (really!) can reward you to read an adverse decision from the Tribunal as closely and carefully as you possibly can (even if you’re initial instinct might be to throw your hands up in disgust, complain to any colleague within earshot that “the Tribunal got it all wrong and dealt my client an injustice”, and look for the nearest packet of matches to light the decision on fire (on a day like          today, it might be just enough to put the decision on the sidewalk and hold a magnifying glass over it!).

Seriously, if close reading of the decision shows that the Tribunal has not made express reference to a matter that is directly relevant to the determination of the case, you may be able to convince the court that the Tribunal has failed to consider a matter that is was required to consider.

Then you may be able to save the day for your client.

And what could be better!

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