Christopher Levingston Blog

Larney v Minister for Immigration & Anor [2018] FCCA 2707 is a recent decision of the Federal Court out of Western Australia.

www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2019/2019fca0700

This was a case where the applicant for the visa asserted that he had no previous "relationships" and that the fact of there being 2 children as a result of those relationships did not mean that he had a "relationship"  (spouse or defacto) and on that basis PIC4020 was not enlivened.

This case is very interesting in a number of respects: First, it reveals the propensity of decision makers to apply a lesser standard of proof as to what might be properly characterised as a spouse relationship or a defacto relationship when that characterisation is likely to be adverse to your client. Second there is only one standard and that is the statutory scheme itself.

As we are all well aware it is hard, in the face of a spouse visa refusal (309/100 or 820/801), to get the case across the line but what is abundantly clear is that the facts that must be addressed are the criterion in Regs 1.15A(2) and 1.15A(3)

The trend is, in my view, towards a lesser standard in circumstances where there is an adverse characterisation. In my view the standard that is set is that in Regs 1.15A(2) &(3)...No ifs no buts.

As we all know the mere fact of having an ex nuptial child is NOT evidence of a defacto or a spouse relationship.

The other interesting aspect of this case is the clear statement about what a jurisdictional error is:

9.     In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351, McHugh, Gummow and Hayne JJ said:

“Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law. (Citations omitted.)

Quite apart from the identification of a jurisidictional error is now well settled law that the identified error must be material as well..

Materiality

15.    The Tribunal’s error in asking itself a wrong question was material to its decision. Recent decisions of the High Court and Full Court of the Federal Court emphasise the need to establish not only an error but an error that is material and, therefore, one that vitiates jurisdiction: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45]; Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780 at [31]; EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20 at [42]. In SZMTA at [45], a majority of the High Court stated that “[a] breach is material to a decision only if compliance could realistically have resulted in a different decision.”

16.    In the present case, had the Tribunal correctly identified (at [10]) exactly what was stated by the appellant “[w]hen making the application” (i.e. the answer “No”), and applied itself to that question, it could have reached a different conclusion not based on the premise that the appellant was in a previous “de facto relationship as defined in the Migration legislation”. Instead, the Tribunal’s assessment would likely have turned on different evidence and certainly different criteria without reference to the meaning of “de facto relationship as defined in the Migration legislation”.

The take home message in all of this is practitioners need to be alert to this departure from the statutory scheme and challenge it when it arises. There is only one standard and that is set by the statutory scheme.

If you want to explore this space further there is a fantastic High Court case which draws together a whole line of authorities which practitioners would be well advised to keep in their kitbag to draw out whenever needed...

http://www.hcourt.gov.au/assets/publications/judgment-summaries/2019/hca-3-2019-02-13.pdf

http://eresources.hcourt.gov.au/downloadPdf/2019/HCA/3

If you run into a problem or you need any advice...you know the rule ..."Any Question, Any time"!. Just email me... This email address is being protected from spambots. You need JavaScript enabled to view it.