Suppose that you have a client whose application for a Subclass 820 Partner (Temporary) visa is refused in the first instance by the Department on the basis that the Department refuses to “waive” Schedule 3 criteria.
Suppose further that an application for merits review against the refusal of this visa application is taken to the Administrative Appeals Tribunal. And suppose that the Tribunal decides that the Schedule 3 criteria should have been waived, the application for the Subclass 820 visa is remitted to the Department and then granted.
At that point, is it time to relax, pop the champagne corks and assume that since the Department has made a determination when reviewing the Subclass 820 visa application that your client is in a genuine spousal relationship, that the ultimate grant of a Subclass 801 Partner (Residence) visa is a sure thing?
That is only a matter of time, and simply waiting for 2 years to pass before the application for the Subclass 801 visa is made before it is granted?
Well a case that was handed down by Judge Heffernan of the Federal Circuit Court last week, on 7 September 2016, provides an illustration that just because a client has been granted a Subclass 820 visa, there is no guarantee that the client will also subsequently be granted the Subclass 801 visa.
The name of the case was Kalia v Minister for Immigration & Anor (2016) FCCA 2196.
So what went wrong in this case?
The trouble began when, after the Subclass 820 visa was granted, the Department received allegations that the applicant, a citizen of India, was “involved in a contrived relationship” with his sponsor, to whom he was validly married.
Upon receiving this claim, the Department sent an officer to conduct a site visit with the applicant’s family in India. During this visit, the officer spoke with only one member of the family, the applicant’s brother. This brother told the officer that he was in contact with the applicant and that the applicant was not married, not in a relationship and had stated that it was his intention to gain permanent residency in Australia before getting married.
The Department then sent a “natural justice” letter to the applicant, to which the applicant responded by providing apparently extensive documentation designed to show that he was in a genuine spousal relationship with his Australian citizen sponsor. However, the Department was not persuaded by this information, and proceeded to refuse the Subpart 801 Partner (Residence) visa.
The applicant then sought review in the AAT again.
But his case failed.
The Tribunal had regard to the matters identified in Regulation 1.15A in order to determine whether the applicant was in fact in a genuine spousal relationship with his wife. And this is where the applicant was
“in hot water” (serious!).
With respect to the financial aspects of the relationship, the applicant offered a statement from a joint bank account. The problem was that there was no evidence that the sponsor had used the account. Moreover, at the hearing before the Tribunal, the applicant and his mother gave evidence to the effect that he was being supported in Australia by his family and friends (not his wife!). And the only proven asset that was jointly held was a car.
In relation to the social aspects of the relationship, the applicant’s mother gave evidence at the Tribunal hearing that she had never met the sponsor in person, and that she was aware that the applicant and the sponsor had separated. And while the applicant gave evidence to the Tribunal that he was hopeful of resuming his relationship with his sponsor and living with her again, he did not make any mention of the sponsor when discussing his plans for the future.
It also damaged the applicant’s case that the Tribunal was not satisfied that he and his sponsor were conducting a household as spouses. And the Tribunal drew a negative inference from the fact that the sponsor had not herself attended the hearing, nor had she made herself available to give evidence.
It all came unraveled!!! Case before the Tribunal cooked!!
And when the applicant took his case to the Federal Circuit Court, he was essentially grasping at straws.
His main arguments were that the Department should have spoken to more family members than just his brother when it conducted the site visit in India. And that the Department had acted unfairly by sending him the natural justice letter after it conducted the site visit in India, because the letter had come to his wife’s attention and had allegedly caused the relationship to break down.
When questioned by the Federal Circuit Court as to how the Department’s conduct in sending the natural justice letter has rendered the proceedings before the Tribunal procedurally unfair, the applicant really had no answer other than to repeat his claim that the letter had caused his relationship to break down.
The Court was evidently not impressed with this submission. It took the view that the Department’s conduct in carrying out a site visit could not amount to an error on the part of the Tribunal, let alone a jurisdictional error that would have warranted quashing the Tribunal’s decision. It was also the Court’s attitude that if the applicant wanted to challenge the evidence given by his brother to the Department during the site visit in India, he had an obligation to call witnesses of his own to refute that evidence.
And his secondary submission, that the Tribunal should have made a greater effort to contact the sponsor during the hearing, also went absolutely nowhere, because the record revealed that the Tribunal had in fact made several attempts to contact the sponsor. The Court held that the Tribunal had no general duty to make enquiries on behalf of the applicant (e.g. to find out where the sponsor was and to take steps to ensure her attendance at the hearing) and that the Tribunal had not denied the applicant procedural fairness by failing to make additional attempts to locate the sponsor.
So the moral of this unfortunate tale is two-fold: 1. Just because an applicant has successfully gotten through Stage 1 of the partner visa process, it is not a “sure thing” that the applicant will be successful in getting through Stage 2; and 2. The “truth will out”. If sufficient evidence does not exist to meet the criteria for the grant of a partner visa, there is a high risk that the application will fail. And migration agents can really assist their clients by testing the evidence before the application is lodged, and making sure that whatever material is needed to prove the relationship is collected before the application is submitted!