How to Identify Tribunal’s Error in Their Decision-Making Process for Partner Visa Applications

Partner visa applications are nearly all refused on the basis of failing to meet the requirements of either satisfying:

·         genuine and continuing relationship,

·         mutual commitment to a shared life together to the exclusion of all others, or

·         cohabitation.

Is There a Way to Salvage Such Partner Visa Refusals If They Are Particularly Handed Down by the AAT?

As demonstrated in the case of JF, there is one such way to set aside the decision of the Tribunal by way of identifying whether the Tribunal’s decision contains jurisdictional error.

A quick background of the case: It involved a refusal of an “off-shore” partner visa application (also known as Subclass 309/100) where the applicant was living overseas in South Africa and both the applicant and the sponsor claimed to have been married since October 2014.

          Tribunal’s Findings of the Partner Visa Case

·         With respect to the financial aspects of the relationship, the Tribunal found that it is difficult for a couple residing in different countries to have joint bank accounts or acquire property in joint names and the only way they could pool money was through money transfers. While the couple, in this case, provided proof that the Partner visa sponsor had sent money to the applicant, it was not sufficient enough to indicate a pooling of resources of day-to-day shared expenses;

·         In relation to the nature of the household, the Tribunal held that the couple could not provide evidence of living together simply due to the fact that they lived in separate countries;

·         With respect to the social aspects of the relationship, the Tribunal did not give weight to the limited evidence amounting to the short phone calls between the applicant and the sponsor’s family including many friends and relatives of the sponsor and the applicant attending their wedding ceremony. The Tribunal held that the social aspects of the couple’s relationship was not sufficient as being considered a ‘spousal relationship’; and

·         The Tribunal also found inconsistencies and implausibilities in the evidence provided by the sponsor relating to matters such as when the couple met, the provision of the financial support by the sponsor etc.

So, where is the Jurisdictional Error?

The Federal Circuit Court relied on the direction provided in r. 1.15 A(2) of the Migration Regulations 1994:

Reg 1.15A Spouse

2)  If the Minister is considering an application for:

(a)  a Partner (Migrant) (Class BC) visa; or

(b)  a Partner (Provisional) (Class UF) visa; or

(c)  a Partner (Residence) (Class BS) visa; or

(d)  a Partner (Temporary) (Class UK) visa;

the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3). 

(3)  The matters for subregulation (2) are:

a)    the financial aspects of the relationship;

b)    the nature of the household;

c)     the social aspects of the relationship

d)    the nature of the person’s commitment to each other

…..

(iv) whether the persons see the relationship as a long-term one.

Here, the Court held that the Tribunal must consider all of the circumstances of the relationship, in particular 1.15A(3) and to sub-regulation 1.15A(3)(d)(iv) which requires whether the couple see the relationship as a long-term one. Judge Lucev found that “all” of the matters listed in 1.15A(3) be considered as absolutely mandatory, and imposes an absolute obligation, or imperative command on the Tribunal to consider those matters.

Accordingly, this means that the Tribunal is also to take into account whether the applicant and the sponsor “see their relationship as a long-term one”. Further, Judge Lucev ruled that the duty to “consider” a matter means that the Tribunal must “engage in an active intellectual process directed at the claim or criteria”.

The Tribunal had not taken 1.15A(3)(d)(iv) into account in its decision making so there was no “active intellectual process” by which the Tribunal engaged with this criterion.

The Ultimate Decision: Tribunal’s Decision on the Offshore Partner Visa Contains Jurisdictional Error

The Court held that since the Tribunal had not considered all the required criteria of the Partner visa in its decision-making, that there had been no “real exercise by the Tribunal of its power to review”, and consequently jurisdictional error had occurred.

Key Takeaway

 So, what we can learn from this case is that if the Tribunal has not considered all the required circumstances of the relationship as exercised by the Regulations, then there is a good prospect for challenging the Partner visa refusal of the AAT on the grounds of jurisdictional error.

 

How Can Agape Henry Crux Help

If you have any questions or would like us to assist you in your Partner visa application process, simply call one of our highly trained immigration lawyers on (02)-7200 2700 or email us to book in a time at info@ahclawyers.com .

We also speak fluent English, Korean, Burmese, Mandarin, Cantonese, Indonesian, Spanish and Malay. If these aren’t your language, we can also help you arrange an interpreter.