Australian Immigration Daily News

How can you know whether the Tribunal has committed jurisdictional error in carrying out its review of the refusal of a Partner visa?

Is this task as difficult and challenging as figuring out how many angels can dance on the head of a pin?

Or counting how many jelly beans are in a jar on the counter of a candy store?

Well, a recent decision of the Federal Court in the case of Nguyen v Minister for Immigration and Border Protection (2018) FCA 1374 (6 September 2018) shows that it isn’t always a headache-inducing task to figure out whether the Tribunal has just “gotten it wrong” – on some occasions, it can be rather obvious.

And when you have identified that there is a good case to be made that jurisdictional error has occurred at the Tribunal, then indeed it is time to seek judicial review in the Federal Circuit Court (keeping in mind of course that such applications need to be filed with the Court within 35 days of the Tribunal’s decision!)

So, what happened in the Nguyen case, how did the Tribunal fall into error?

First, the Tribunal’s decision did not make reference to two statutory declarations from supporting witnesses to the relationship that had been submitted with the application.  These statutory declarations spoke about the witnesses’ observations that the sponsor and the applicant were living together as a married couple, and they also attended family occasions as a married couple.

The Federal Court (Justice White) concluded that since Regulation 1.15A(3)(c) makes it mandatory for the Tribunal to consider whether the applicant and her sponsor represented themselves to others as being married to each other, it amounted to jurisdictional error for the Tribunal not to have regard to the statutory declarations.

Thus, in the classic formulation concerning the definition of what constitutes jurisdictional error that was stated in the High Court’s decision in Craig v South Australia, the Tribunal had failed to consider relevant matters that were set forth in the statutory declarations.

Did the Tribunal err in any other way in this case?

Yes it did, the Federal Court concluded!

In an extremely important decision that was handed down at the end of last year, He v Minister for Immigration and Border Protection (2017) FCAFC 206 the Full Court held that the considerations that are listed in Regulation 1.15A are matters that the Tribunal is bound to consider in assessing whether a spousal relationship exists for migration purposes; that the Tribunal is required to bring an active intellectual process , and to give proper, genuine and realistic consideration to each of the matters that are listed in the Regulation; that the Tribunal is required to make findings about each of the matters listed in the Regulation; and that a failure by the Tribunal to make reference to a finding concerning any of the matters listed in the Regulation may give rise to an inference that the Tribunal did not make a finding with respect to that matter, and that it therefore committed jurisdictional error.

In this particular case, the Court found that the Tribunal had not made findings about a large number of matters bearing on Regulation 1.15A – for example, in relation to the factor of “the nature of the persons’ commitment to each other, the Tribunal did not make findings about material in the sponsor’s statement in which he had stated that he and the applicant had lived together since the time of the applicant’s arrival in Australia on a Prospective Marriage visa; that he and the applicant were saving money to purchase a house;  and the support which the husband had given to the applicant at the time of the deaths of the applicant’s father and sister.

The moral of all of this is that the He decision is indeed a very powerful tool for finding jurisdictional error, and that it is very much worthwhile to put negative Tribunal decisions under the microscope to assess whether the Tribunal has done what is legally required under He, make specific findings about each and every matter listed under Regulation 1.15A.

It is interesting to note that the applicant’s victory in this came after a long legal battle, in which the visa application was refused by the Department; the refusal was affirmed by the Tribunal; and the Federal Circuit Court concluded that there had been no jurisdictional error by the Tribunal.

All of which goes to prove the point that if there is a case worth fighting, never give up, keep fighting to the end!

Please note that this is the last regular article that I will be posting on the Migration Alliance Website, although I will be continuing to post articles when there are significant cases that the RMA professional community, visa applicants and others will find to be useful (note that there are over 450 articles that I have prepared on various topics that will continue to be be available as a resource through the search function on the site.)   

I wish to Liana Allan and Migration Alliance for their very generous support in hosting these articles over the last several years.

If you have found these articles to be of value to your practice and you would like to continue receiving updates concerning migration law developments in the Federal courts, please contact me at This email address is being protected from spambots. You need JavaScript enabled to view it. .   Also: if you have any questions about the Federal Courts, or whether any particular case might be a good candidate for judicial review proceedings, please feel free to contact me at any time.

And thanks so much again to all of you who have been devoted readers!