Australian Immigration Daily News

 Would you be willing to believe that there are occasions when an application for judicial review of a decision of the Tribunal is sometimes relatively easy?

And that sometimes the Tribunal makes an obvious mistake – one that is so obvious that you have to wonder why the case ever went to final hearing before a judge of the Federal Circuit Court? And why the Minister and his legal representatives did not simply concede that a jurisdictional error had been made, and that the case should be remitted to the Tribunal for “re-determination in accordance with law”?

Just such a case was recently reported on Austlii, Thapa v Minister for Immigration & Anor, (2018) FCCA 2182 (10 August 2018).

The story in this case was that the applicant, a citizen of Nepal, was seeking a partner visa.

The applicant and his sponsor submitted three joint bank statements to the Tribunal, which showed a large number of transactions.  These bank statements were tendered to the Tribunal in support of their claim that they shared daily expenses.

However, the Tribunal was not satisfied that the bank statements did show that the sponsor and the applicant shared daily expenses. It took the view that the joint bank statements did no more than show that the sponsor is a business woman “who manages the household and her business, and who sometimes employs the applicant who has resided in her home”.

Somewhat amazingly (!) the Tribunal did not accept that numerous transactions that were recorded on the joint bank statements were for “obvious” daily expenses – such as transactions for groceries that were made at Coles and Safeway supermarkets.

Before the FCC, the Minister took the position that because the joint bank statements showed total debits that came close to or exceeded the sponsor’s yearly income, the Tribunal had justifiably drawn the inference that the joint bank statements were connected only with the sponsor’s business banking, and the fact that there were “non-commercial transactions”  (transactions unrelated to the sponsor’s business activities) shown on the bank statements did not “foreclose” the inference that the transactions on the joint bank account were “connected” with the sponsor’s business banking account.

Judge Hartnett of the FCC rejected these submissions by the Minister.

Judge Hartnett concluded that the transactions shown on the joint bank account – presumably including those relating to grocery purchases at Coles and Safeway – were indeed evidence of the sharing of day to day household expenses.  The court found that there was simply no “tenable path of analysis” that was open to the Tribunal by which it could be found that the supermarket transactions were connected to the sponsor’s business account.

So Judge Hartnett determined that the Tribunal had committed jurisdictional error by failing to engage intellectually with the evidence of the bank accounts, which showed evidence of the intermingling of the finances of the sponsor and the applicant.

So, sometimes the obvious is the obvious!

And, as the saying goes, if it looks like a duck, walks like a duck, swims like a duck, and quacks like a duck, it is….a duck!!!

So equally obvious is it that bank statements from a joint account showing purchases of groceries is evidence of the sharing of expenses, something which the Tribunal must actively consider.

And why did the Minister not quickly concede error in this case?

As the American ragtime musician Fats Waller famously said “One never knows, do one?”