Australian Immigration Daily News

Do the Tribunal’s decisions (or the Department’s) sometimes drive you up a wall?

Can they, on occasion, seem at odds with the plain, obvious evidence that has been submitted to the Tribunal?

It is for exactly these circumstances, dear readers, that judicial review proceedings exist: when it is clear that the Tribunal has “gotten it wrong” then the remedy is to take the case to the Federal Circuit Court, and if necessary, on to the Federal Court on appeal, to get the error corrected and to get the case sent back to the Tribunal for reconsideration.

A prime example of how useful and indeed essential judicial review proceedings can be comes from a recent (14 June 2019) decision of Justice Colvin of the Federal Court in Nguyen v Minister for Home Affairs (2019) FCA 892.

This was a case that involved an offshore Partner visa application.

The sponsor in this case was a woman of Vietnamese ancestry who was born in Australia. She had married a man in Vietnam in 2014; however, his application for a provisional Partner visa had been refused in 2015.

The applicant had lodged several Statutory Declarations (Form 888s) in support of the visa application.

However, in rendering its decision to affirm the refusal of the applications, the Tribunal stated as follows:

“The Tribunal considers that none of the sworn statements provided by the review applicant’s family as well as the visa applicant’s family set out any reasons why they believe the relationship is genuine.”

At the Federal Circuit Court level, it was asserted that the statutory declarations did indeed set out reasons why the declarants considered the relationship to be genuine and continuing. 

However, the presiding judge at the FCC found that this submission was “not based on a fair reading of the Tribunal’s reasons, and that it was apparent from reading the Tribunal’s reasons “as a whole” that the Tribunal expressly referred to the statutory declarations and took them into account in relation to the issue of the genuineness of the relationship.

 When the case was then brought on appeal to the Federal Court (which reproduced the full texts of the statutory declaration in its judgment) it was apparent that, contrary to the Tribunal’s conclusion that the statutory declarations had not set out reasons why the declarants believed the relationship of the applicant and his sponsor to be genuine, the statutory declarations did indeed include such reasons.  

For example, the stat dec sworn by the sponsor’s mother, with whom she lives,  stated that she believed the relationship to be genuine because the applicant and sponsor were constantly on the phone with each other; that the sponsor had discussed with her having children with the applicant; that the sponsor lives with the applicant when she visits him in Vietnam; and that their persistence in seeking the partner visa over many years was reflective of the genuineness of the relationship.

Justice Colvin concluded that the Tribunal had committed jurisdictional error by approaching the case on the basis that the statutory declarations that had been prepared by family members of the applicant and the sponsor had advanced no reasons in support of their view that the relationship was genuine, when in fact their statutory declarations had in fact given reasons.

The moral here is that it is essential for migration agents who appear before the Tribunal to be alert to circumstances when the Tribunal had plainly misread or overlooked the evidence.

It also shows that seeking judicial review is not just an exercise, but can result in a very positive outcome for the applicant.  Far better than tearing your hair out, and doing nothing more than complaining that the Tribunal did not assess the case correctly!