Australian Immigration Daily News

Imagine for a moment that you are acting for parties to an application for a prospective marriage visa. 

Imagine also that notwithstanding the submission of various documentary evidence in support of the application, such as photographs, statutory declarations and a letter of support from a marriage celebrant, the Department's reviewing officer is not satisfied that the sponsor and the applicant genuinely intend to live together as spouses, and therefore proceeds to refuse the prospective marriage visa application. 

Imagine further that an application for merits review is taken to the Tribunal, and the Tribunal also arrives at a finding that the sponsor and the applicant do not have a genuine intention to live together as spouses. In reaching this conclusion, the Tribunal refers to a) inconsistencies in the evidence concerning whether the sponsor has sent money to the applicant to assist him with his living costs; b) evidence that at an interview in relation to a previous prospective marriage visa application, the applicant was unable to give accurate details about the ages of the sponsor's children or about her life in Australia; c) inconsistencies in the evidence concerning whether the visa applicant had met the applicant's friends; d) inconsistencies in the evidence concerning where the applicant had stayed during her visits to the country where the applicant lived. 

In respect of this issue, the Tribunal raises concerns about the authenticity of hotel receipts where the sponsor claims she and the applicant stayed together during her visits to his country, noting that the receipts were provided to the Tribunal only after the hearing and that even though the receipts were dated from different years, that they appeared to be in the same handwriting. Accordingly, the Tribunal determined to place little weight on the receipts. 

In these circumstances, would you imagine that the application is now a dead letter, and there is little that can be done to retrieve the application? 

Well, if you had arrived at this gloomy outlook, your pessimism about the prospects would have been misplaced! 

That is because, waiting behind the scenes in many cases before the Tribunal, there is a “knight in shining armor” that may come to the rescue, and save the application! 

That “knight in shining armor” is the principle of “procedural fairness”. 

And it can be an extremely powerful tool to challenge decisions of the AAT in the Federal Courts, and to get the application sent back to the AAT for re-determination. 

Let us have a look at how principles of procedural fairness helped to salvage the application in the case that is described above, Ly v Minister for Immigration and Anor (2018) FCCA 409 (19 March 2018). 

What happened in Ly was that the Tribunal failed to give any notice prior to the time of making its decision that it had concerns about the genuineness of the hotel receipts. After the hearing, the Tribunal sent a letter to  the sponsor ( the “review applicant”) before the Tribunal) pursuant to section 359A of the Migration Act which invited the sponsor to comment on information that it considered would be the reason, or part of the reason, for affirming the decision. 

Critically however, this letter made no mention at all of the Tribunal's concerns regarding the genuineness of the hotel receipts. The Federal Circuit Court observed that the Tribunal's failure to mention the receipts in the section 359A letter “could only encourage a view” by the sponsor that the Tribunal did not have any concerns about the genuineness of the hotel receipts. 

The FCC, referring to decisions in the cases of WAJR v Minister for Immigration and Minister for Immigration v CZBP, held that in circumstances where the tribunal has concerns about documents that are provided after a hearing, principles of procedural fairness require that those concerns be raised with the applicant, and that the applicant must be given an opportunity to provide comment to the Tribunal in relation to those concerns. 

So in Ly, notwithstanding the various concerns described above that the Tribunal had concerning the genuineness of the relationship, the Tribunal's failure to accord procedural fairness meant that jurisdictional error had occurred, and that the case had to be remitted back to the Tribunal. 

It all goes to show what a powerful tool that the concept of procedural fairness can really be. 

When everything may appear to be lost, and the situation may seem to be bleak, if it can be demonstrated that the Tribunal did not accord an applicant procedural fairness, then there may indeed a knight in shining armor waiting in the wings to come to the rescue!