Australian Immigration Daily News

Have you ever gotten a "bad" decision from the Tribunal on a Partner visa case?

A decision that affirmed a refusal of the Department that seemed "wrong", or that just skimmed over the evidence you presented for your client and did not include a full and fair analysis of the facts?

Have you wondered: "Is there anything I can do to fix this?"

Well, there's been another decision from the courts that points the way!

You may have heard that there was a decision from the Full Court back at the end of 2017 that was really helpful: It was He v Minister for Immigration and Border Protection (2017) FCAFC 206.

In essence, this Full Court case held that, when standing in the shoes of the Department, the Tribunal must make specific findings as to "the circumstances of the relationship" - those matters that are listed out in regulation 1.15A(3). And in circumstances where the Tribunal neglects to make such findings, it is likely that a Court will hold that jurisdictional error has occurred, and that the case must be sent back to the Tribunal for re-determination.

Very recently, there has been another decision from the Federal Circuit Court, Enua v Minister for Immigration & Anor (2019) FCCA 3604 (12 December 2019)  that follows the Full Court's decision in He.

In essence, it was held in Enua that it is not "good enough" for the Tribunal merely to "recite" what the evidence that was presented to the Tribunal was, or to express concerns about the evidence in a "general" way, or at a "high level of abstraction".

Instead, the decision in Enua confirms that the Tribunal must go further, explain why it accepted some of the evidence or rejected other evidence, discuss what the evidence did or did not prove, and most critically, must make specific findings about all of the circumstances of the relationship that are listed in regulations 1.15A(3) and 1.09A(3).

Yep, getting a powerful tool to vindicate your cients' claims for partner visas is a pretty good "gift" at holiday time!!!

If you'd like to read more about the decision in Enua, please have a look at the more detailed article on The Migration Messenger (subscription needed).