Here is a really practical, common, down to earth and practical question:
If you are acting for an applicant who has had a combined subclass 820/801 partner visa application refused by the Department, how do you complete the electronic appeal form to seek merits review before the AAT?
Is it ok to list the name of the applicant’s sponsor in the part of the AAT application form that calls for the “Details of the person applying for review”?
And if you provide the details of the sponsor, instead of the details of the applicant in this part of the form, is it fatal to the applicant’s ability to have her/his case reviewed by the Tribunal?
This important question was raised by a case that was recently decided by Justice Greenwood of the Federal Court, Le v Minister for Immigration and Border Protection (2019) FCA 427 (27 March 2019).
What occurred in this case was that in filling out the AAT application form, the applicant’s legal representatives had in fact provided the name and other details of the applicant’s sponsor in the part of the form requiring the “Details of the person applying for review”.
And even though the name and details of the visa applicant were correctly given in the part of the application form requiring information concerning the “Primary visa applicant”, and even though other details referable to the applicant’s application – the Department file number, the Department client ID and the date of the decision – were given in this part of the form, and additionally, the Department’s letter notifying the applicant that her application had been refused, and the Decision Record specifying the reasons for the refusal were “uploaded” with the application for review.
Nonetheless, the Tribunal determined that it did not have jurisdiction to entertain the application for review of the partner visa application, and the Federal Circuit Court (Judge Vasta) upheld that decision.
The Tribunal’s reasoning in this case was that section 347(2) of the Migration Act specifies who has the right to apply for review of a decision of the Department, and provides that in cases arising under section 338(2) (in other words, applications like onshore partner visa applications, where the visa is one that can be granted while the non-citizen is in the migration zone, the application is made while the applicant is in the migration zone and the non-citizen has been identified (sponsored) in an approved nomination) the application for review may be made only by the non-citizen who is the subject of the refusal decision.
(Of course, it should be noted that in cases involving an offshore partner visa application, review rights arise not under section 338(2), but rather under section 338(5), and under section 347(2), only the sponsor has the right to make an application for review).
So, the question before the Federal Court was whether the applicant’s “goose was cooked”, and whether her review rights were “fried”, because the form filed with the AAT identified her sponsor as the person making the application for review.
Fortunately for the applicant in Le, the conclusion that was reached by Justice Greenwood in this case was that providing the sponsor’s details in the section of the AAT form that required the details of the “person applying for review” was not fatal, and did not deprive the AAT of jurisdiction to hear the application for merits review of the refusal of the partner visa application.
Justice Greenwood reasoned that the question of “who” is the person who is making the application for review cannot be answered solely by reference to that part of the AAT application form that requests under that heading in the application form is not determinative of the legal question of who is seeking review.
Rather, it was Justice Greenwood’s view that, in making an evaluation concerning who is the person applying for review, the Tribunal must have regard to “the entire contents of the form” and not just a part of the form. And it was Justice Greenwood’s view that when assessed as a whole, the merits review application that had been filed with the Tribunal did in fact make it quite clear that the visa applicant was the person who was making the application for review, and not her sponsor (again, the evidence that the form identified the applicant as the visa applicant and correctly identified her Department file number and client ID and also attached the Department’s notification letter and decision record relating to the applicant) made it very apparent that it was in fact the visa applicant who was seeking review.
So here, very fortunately for the applicant, was a judge who was prepared to find that, even in the bureaucratic realm of migration law, form (pun intended) should not be elevated over substance!
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