Australian Immigration Daily News

How is it possible to know whether the Tribunal has committed jurisdictional error in reviewing the refusal of a Partner visa application?

Consult a crystal ball? An oracle? A spiritualist? A Ouija board, or an “8” ball?

A recent decision of the Federal Court, handed down by Judge Reeves on 27 October 2017 – Sun v Minister for Immigration and Border Protection (2017) FCA 1270 ­- suggests that these “magical” or “occult” methods may not be needed to determine whether the Tribunal has fallen into error.  

However, the decision does tell us that extremely close reading, or perhaps re-reading and then more re-reading, of the Tribunal’s decision may be necessary in order to determine whether the Tribunal has committed jurisdictional error, and therefore whether or not it is worthwhile for an applicant who has received an adverse decision from the Tribunal to pursue the case further, through an application for judicial review to the Federal Circuit Court.

This case had a bit of a tangled history: The applicant is a citizen of China, now 63 years old. She had apparently originally come   to Australia on a visitor visa, for the purpose of spending time with her daughter and grandchild.  Her first husband had died many years earlier.  During her visit to Australia, in November 2013, she met her present husband. They claimed to have formed a committed relationship by January 2014; married on 12 March 2014, and lodged an application for a partner visa on 26 March 2014.

In the first instance, a delegate of the Minister refused the application, and by the time the case came before the Tribunal for hearing, in April 2016, the applicant had separated from her husband, and had obtained a protection order against him.  

Accordingly, her case before the Tribunal hinged on whether the relevant alleged family violence had occurred during a period when the applicant and her sponsor were in a relationship.

The Tribunal answered this question by concluding that the parties had not been in a genuine spousal relationship.

The matters that the Tribunal had considered problematic in the relationship included:

• That there were language issues that created problems in the applicant’s being able to communicate with her husband, which caused the Tribunal to consider that due to their very limited communication, the parties were not able to  establish a mutual commitment to the relationship;
• The “haste” with which the relationship was formed, which led the Tribunal to doubt that the parties had  spent adequate time with each other to learn enough information to form a committed relationship;
• The applicant’s vagueness in responding to questions from the Tribunal member about what qualities her husband had that had attracted her to the relationship;
• The evidence that the applicant had brought a notarized “Free to Marry” certificate with her when she had arrived in Australia from China, months before she met her Australian husband.

These do sound like matters which perhaps could prompt the Tribunal to doubt whether the spousal relationship was genuine, don’t they?

So what caused Judge Reeves to find that the Tribunal had fallen into error?

It was the analytical approach that the Tribunal followed, or, more accurately, failed to follow in the case, namely:

• The Tribunal had failed to identify what circumstances of the alleged married relationship actually were those that were of “central or fundamental importance”  to determining whether the parties were indeed in a genuine spousal relationship;
• The Tribunal’s decision contained a very general, conclusory statement where the Tribunal simply recited that “having considered the entirety of the evidence and all the circumstances of the relationship” the Tribunal was not satisfied that the relationship had been genuine.

The problem that affected the Tribunal’s approach, according to Judge Reeves, was that the Tribunal had made “no attempt” to identify which circumstances of the relationship that it had in mind when it arrived at the conclusion that the relationship was not genuine.

So, how again does this case instruct us about when the Tribunal has fallen into error when carrying out merits review of a decision by the Department to refuse a Partner visa application?

There are two primary “warning bells”:

1. A failure in the decision to identify the circumstances of the relationship that are considered by the Tribunal to be critical to the question of whether the relationship is genuine; and

2. A failure by the Tribunal to specifically identify precisely what circumstances of the relationship cause it to conclude that the relationship is not genuine (in other words, a decision that does not state with particularity why the Tribunal considers that the relationship is not genuine, and that only includes generalities, statements such as “having regard to a;; the circumstances of the relationship”.

On second thought, even with this guidance, it never ever hurts to have a crystal ball or a clairvoyant to help you figure out when the Tribunal has committed error!

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