Are things always what they seem? Or not?
Is a case that appears to be “dead on arrival” really in fact as lacking in prospects as it seems to be?
Take for example the case of Spano v Minister for Immigration and Anor (2018) FCCA 2049 (3 August 2018) that was decided by Justice Neville in Canberra.
In that case, there were the following background circumstances:
The applicant, a citizen of Albania, had previously applied for a subclass 571 student visa, but the application had been refused on two separate occasions by the Australian Embassy in Athens; the applicant subsequently arrived in Australia on a fraudulently altered Italian passport in a false name, and as a consequence he was not immigration cleared and was detained; he then lodged an application for a protection visa, which was refused; he was later granted a bridging visa, but then subsequently became an unlawful non-citizen and was again detained and then removed from Australia.
There were also these facts about the relationship: the applicant and sponsor met in a nightclub in Adelaide, but he was taken into immigration detention less than a month after they started going out with each other. They were legally married while the applicant was in immigration detention, and he was thereafter removed back to Albania.
The Tribunal focused on the following matters in arriving at the conclusion that the applicant and sponsor were not in a genuine spousal relationship for the purposes of the Migration Act:
The parties had spent only a short time together as they had been separated by reason of the applicant’s detention and later removal to Albania; there was a 25 year age gap between the applicant and his sponsor; there were no children of the relationship and, in the Tribunal’s view, the parties had not discussed the issue of children “in a meaningful way”; and there was no evidence regarding joint ownership of assets, join t or joint liabilities; and the Tribunal considered that the fact that the sponsoring wife did not wear a wedding band to be a “relevant consideration”.
So would you guess that with these facts, the case really was dead on arrival, and a sure loser when judicial review was sought in the Federal Circuit Court?
If that was your guess, then you would, perhaps surprisingly, be wrong!
Justice Neville in fact determined that the Tribunal had committed a number of jurisdictional errors.
These included that, even though it considered the fact that the sponsoring wife did not wear a wedding ring to be relevant, it made no mention all that the sponsor had had her husband’s name tattooed on her arm; that even though the sponsoring wife had visited the applicant nearly every day while he was in immigration detention, the Tribunal did not comment on, or draw any conclusion, from those circumstances; the Tribunal did not define in its decision what would constitute a “meaningful discussion” between the sponsor and the applicant concerning the issue of children and yet cited the purported fact that there had not been such a “meaningful discussion” as supporting a conclusion that the parties were not in a genuine and committed relationship.
So, the result in this case shows that even if an initial consideration of the facts of a case may suggest that it may be difficult for a partner visa to succeed, it may well be that the Tribunal’s consideration of the case was highly problematic, and that it is indeed worth probing beneath the surface, seeking to identify jurisdictional error in the Tribunal’s decision, and then seeking judicial review.
You never ever know, it may well be possible to obtain a positive result in the Federal Circuit Court!