Australian Immigration Daily News

How unusual is it for the Minister to seek judicial review of a decision of the Administrative Appeals Tribunal? 

How about: “Incredibly”? (“The Incredibles” would probably like that answer!) 

I have been closely reading the migration decisions of the Federal Courts for the last 5 years and I have never seen a case involving an application by the Minister. 

But there you have it, the rare and unusual does happen, as there was an application by the Minister in a case that was just decided by Judge Smith, Minister for Immigration and Border Protection v Lining Mo (2018) FCCA 1893 (14 May 2018). 

And the Minister was actually successful in this application! 

Which means that even if you are successful in an application for merits review before the Tribunal, that victory is not necessarily a secure one: if the Tribunal made a jurisdictional error in granting the application, then the decision can be quashed and the matter can be sent back to the Tribunal for re-determination. 

What was this case about? 

It concerned an application for a Partner Migrant visa, subclass 100. 

The relationship had come to an end within the 2 year period after the grant of the initial Provisional Partner visa. 

The applicant sought to vindicate her application for the Partner visa under sub-regulation 100.221(4), namely, she claimed that she had been the victim of family violence at the hands of her sponsoring husband. 

The Tribunal at first instance was not prepared to accept that the claim of family violence was well-founded, so it referred the claim to an independent expert pursuant to regulation 1.23(10)(c). 

The independent expert found that there had been three incidents of concern: 

1) The sponsor had spoken to the applicant in an angry tone and had persistently asked her to leave home; 

2) There had been an argument over an iPad; and

3) The applicant had become fearful when the sponsor began sporadically attending her place of work. 

The independent expert concluded that only the third of these incidents amounted to family violence, as the sponsor’s conduct could have caused the applicant to feel intimidated and reasonably fearful. 

So, was that the end of the matter? Isn’t the opinion of the independent expert, properly formed, supposed to be conclusive and unassailable on the issue of whether family violence did or did not occur? 

Well, the Tribunal did accept that family violence had occurred. 

What was the problem then, and what led the Minister to seek judicial review? 

The Minister claimed that the Tribunal had failed to answer the critical question of whether the family violence had occurred while the spousal relationship was still in existence. 

Judge Smith of the Federal Circuit Court accepted that there had been a flaw in the Tribunal’s reasoning process: 

The Tribunal had noted only that: 1) there was amply documentary evidence concerning the various aspects of the relationship; and 2) the applicant had previously been granted a temporary partner visa, so that her relationship with the sponsor had previously been assessed as being genuine. 

The Tribunal followed these observations by concluding that, “having regard to the totality of the evidence”, the family violence had occurred while the relationship was in existence. 

The difficulty with this, and the jurisdictional error that Judge Smith identified, was that the Tribunal never made specific enquiry as to whether the family violence had in fact occurred during the time that the relationship was in existence, or, if it had done so, there was no evidence in the record to support its finding. 

So the lesson here is that migration agents acting for applicants should be very careful to assure that where there is a claim of family violence, that the evidence clearly supports that the violence, or at least part of it, took place while the relationship is still continuing. 

If the Tribunal arrives at the conclusion that there was relevant family violence without making a finding that the violence occurred while the relationship was in existence, the Minister could turn around and seek review of that decision. 

So, this case shows us that someone out there is reading the AAT’s decisions for the Minister, and assessing whether there has been jurisdictional error. 

As the Canadian singer Neil Young once said: “Rust Never Sleeps” - and apparently the Minister’s lawyers are burning the midnight oil too!