Australian Immigration Daily News

At the end of last year, on 14 December 2017, the Full Court handed down a decision, He v Minister for Immigration and Border Protection & Anor (2018) FCAFC 206 that is an exceptionally important tool for challenging adverse decisions of the Administrative Appeals Tribunal affirming the refusal of partner visa applications.

It would have been easy to miss the He decision, given that it was handed down shortly before Christmas and the December – January summer holidays, when our thoughts turn (temporarily!) away from full-time  preoccupation  with migration issues, and towards sun, sand, surf, surfing, barbecues and even to avoiding bluebottles, brown snakes and blue-ringed octopi at the beach!

But the case really oughtn’t to be missed. It is perhaps the most consequential court decision relating to partner visas since the Full Court’s (revolutionary) decision on “Schedule 3” issues in Waensila, which was handed down in March 2016.

For those who wish to refer to it, there is a full discussion of the He decision on the Migration Alliance Website, which can be found by clicking on this link.

The short synopsis of He is that in that case, the Full Court held that in partner visa cases, the Tribunal must methodically consider each and every one of the matters concerning the “circumstances of the relationship” that are listed in Regulation 1.15(A)(3).  The Full Court ruled in He that a failure to consider all of matters listed in 1.15(A)(3) amounts to jurisdictional error, and will therefore be sufficient to require a reviewing court to “quash” a decision of the Tribunal and to send the case back to the Tribunal for “reconsideration in accordance with law”.

Under He, jurisdictional error can be found whenever the Tribunal fails to address and consider one of the matters listed in 1.15(A)(3): a finding must be made on each listed matter, even if the finding is no more than that “no conclusion can be reached upon the matter”.

So it is literally impossible to overestimate or overstate just how powerful the He decision really is.

I would venture to say that in any case where the Tribunal did not systematically and methodically work its way through the list of circumstances that is stated in Regulation 1.15(A)(3), there is an extremely strong likelihood that an application for judicial review would be successful.  And that may even be true in cases where the judicial review application was not filed within the usual 35-day time limit after the Tribunal’s decision.  And I would be prepared to assume that there may be many, many cases where Tribunal decisions can be challenged on “He” grounds.

A recent decision  by Judge Riley of the Federal Circuit Court in Melbourne, in the case of Truong v Minister for Immigration & Anor (2018) FCCA 497 (2 March 2018) illustrates just how powerful the He case really is.

In Truong,  the Tribunal concluded that it was not satisfied that the sponsor and the applicant were in a genuine and continuing spousal relationship at the time of the decision.  The Tribunal reached this conclusion (incredibly!) in the face of claims made by the applicant and the sponsor that they had been in a relationship since 2008, that they had lived together since 2009, and that they had been married since 2011.

Also (again somewhat incredibly!) the Tribunal found that since the applicant had made reference in his evidence to the prospect that he and his sponsoring wife had considered purchasing a home together, while his wife had not mentioned that possibility in her evidence, as being indicative that “they had not discussed their future plans” and that this then indicated that they might not be in a genuine and committed relationship.

So, what did “turn the tide” in this case, and what led Judge Riley to conclude that the Tribunal had committed jurisdictional error?

It was that the applicant had stated in a statutory declaration that “We always draw support from one another”.

In its decision, the Tribunal had made no finding at all in relation to Regulation 1.115(A)(3)(d)(iii), which lists as one of the “circumstances of the relationship “ that must be considered “the degree of companionship and emotional support that the persons draw from each other”.

Judge Riley observed that under He, “even if there is a weak case, or no case at all, raised in relation to one of the matters specified in” Regulation 1.15(A)(3), the Tribunal “should say so in its reasons for decision”. 

So in Truong, by not making any finding at all about the degree of emotional  companionship and support, the Tribunal committed jurisdictional error.

The moral here is that if you have had a case where the Tribunal affirmed the refusal of a partner visa, and you previously had considered  that there weren’t prospects for a successful application for judicial review, I would encourage you to “reconsider”, to re-read the Tribunal decision, and, if it appears that the Tribunal has not gone through all of the circumstances listed in 1.15(A)(3) and made findings about each and every one, to think about whether an application for judicial review ought to be evaluated.

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