Australian Immigration Daily News

Who said “there ain’t no cure for the summertime blues?”  (Well if you happened to be around in the late 1960’s, or a fan of rock music, you’ll know that it was the British band, “The Who” who made a song with those lyrics very famous!)

Or, if you are not a “flower child” from the 1960’s, you can nonetheless find a cure for the summertime blues by reading the recent decision of the Full Court in the case of He v Minister for Immigration and Border Protection (2017) FCAFC 206 – or, just keep reading the discussion below.

The decision was handed down on 14 December 2017, and it really was an “early Christmas present”!

Although the applicant ultimately lost the judicial review application in the Full Court, the Court’s decision provides a very valuable road map which can be used to identify when the Tribunal has committed jurisdictional error in partner visa cases, and thus when there are “reasonable prospects for success” which warrant lodging an application for judicial review of a Tribunal decision affirming the refusal of an application.

The principal argument that was advanced by the applicant in the He case was that the requirement of regulation 1.15A(2) that the Minister must “consider” the matters that are set out in regulation 1.15A(3) in determining whether a genuine spousal relationship exists  requires that the Tribunal, “standing in the shoes” of the Minister, must make findings about each of the matters listed in regulation 1.115A(3).

The Full Court accepted this submission from the applicant.

It held that the requirement specified in regulation 1.15A(2) that the matters listed in regulation 1.15A(3) must be “considered”  means that the Tribunal must make findings concerning each of the “prescribed matters” numbered with Roman numerals in regulation 1.15A(3).

What this means, for example, is that in relation to the “principal matter”  identified by the letter “b” in regulation 1.115A(3) , “the nature of the household”, the Tribunal must make findings concerning  the matters listed in (b)(i) – (b)(iii) of the regulation, specifically:

• whether there are children and whether there is any joint responsibility for their care and support (b)(i);
• what the living arrangements of the persons are (b)Iii); and
• whether and to what extent there is sharing of the responsibility for housework (b)(iii).

The Full Court stated in He that each of the “prescribed matters”  listed next to Roman numerals in regulation 1.115A(3) must be regarded as posing questions that must be answered. 

And the Full Court also stated that even where there is no material, or insufficient material, to enable the Tribunal to form a conclusion on one of the prescribed matters listed in the regulation, the Tribunal must nonetheless still make a finding concerning each matter, even if that finding is  “that no conclusion can be reached upon the matter”.

The Court noted that because regulation 1.115A(3) has been drafted to require the decision-maker  to take into account each and every one of the matters listed next to a Roman numeral in making an evaluation of whether there is a “married relationship”, then if the Tribunal does not specifically refer to each of these matters in its decision record and does not make explicit findings  in relation to each of those matters, then jurisdictional error may have occurred.

So there you have it, from the Full Court: incredibly useful guidelines from the Full Court about how to spot jurisdictional error in a partner visa case, and how to know when you should be pursuing a judicial review application!

So, if you have received an unfavourable decision from the Tribunal in a partner visa case, you know what to do: read the decision closely to see if the Tribunal has methodically gone through all of the matters listed next to the Roman numerals in the regulation and has made findings about all of them.

And if it appears that the Tribunal failed to make findings about these “prescribed matters” – the next step is to seek legal advice about whether the case should be taken on to the Federal Circuit Court!!

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