Federal Court overturns Tribunal decision in partner visa case

Phillip Silver and Associate Lawyers has successfully challenged a Tribunal decision on behalf of the applicant (our client) in relation to a partner visa application which had been refused by the Department of Home Affairs and affirmed by the Administrative Appeals Tribunal (Tribunal).

We appealed the decision in the Federal Circuit and Family Court of Australia (the Court). The Court found that the Tribunal failed to consider critical aspects of the evidence in relation to this case.

 

Our client, a national of Vietnam, first arrived in Australia in October 2014, on a Visitor (Subclass 600) visa. Our client’s visitor visa expired in January 2015, and he never held a substantive visa since.

The applicant married an Australian permanent resident (wife). The wife is a mother of five children. The eldest son (stepson) is in his 30’s and is diagnosed with chronic Schizophrenia.  In December 2017, our client sponsored by his wife, applied for a Subclass 820 (partner visa). Our client never held a substantive visa —a requirement for the Subclass 820, when the partner visa application was lodged.

 

Our client’s partner visa application was rejected by a delegate of the Minister of the Department of Home Affairs (the Minister). Our client sought review of the delegate’s decision by the Tribunal who upheld the Department’s decision in April 2021, citing that our client was not a holder of a substantive visa and failed to show compelling reasons as to why the Department should waive the criteria of Schedule 3 of the Migration Regulations 1994 (Cth) which requires the application for subclass 820 visa to be made within 28 days of holding a substantive visa.

In carrying out its statutory duty to review a decision of the respondent, the Tribunal was required to give a “proper, genuine and realistic consideration” to the evidence and representations made by an applicant. This involved engagement in an “active intellectual process” with these matters.

 

Following this, our client sought judicial review by the Federal Circuit and Family Court of Australia (FCFCA). Our client’s ground for review was that the Tribunal did not properly and genuinely consider the impact our client’s removal from Australia would have on his family in Australia—particularly his wife and his stepson with chronic Schizophrenia. The Court considered how a Tribunal, whose task is to review, may commit a jurisdictional error by failing to engage in an active intellectual process or give proper, genuine and realistic consideration of the central argument being the detrimental consequences of the removal of our client from Australia, on his wife and his stepchildren.

 

The Court considered the documentary evidence presented by our client to the Tribunal in supporting his case. It also considered the oral submissions presented by our client’s legal representative, Phillip Silver at the Tribunal hearing.

The Court determined that the Tribunal failed to consider the particular circumstances of the relationship between our client and the sponsor particularly, the emotional and practical support our client provides to his wife and her mentally disabled son who is depended on our client for his daily needs. Additionally, while the Tribunal acknowledged our client’s support in managing his stepson’s mental health, it failed to consider the limitations of the existing professional health services and overlooked the significant daily assistance our client provides—such as ensuring his stepson takes his medication regularly and managing his behaviour at home.

Importantly, the Court established that the Tribunal did not put proper weight on the history of violence of our client’s stepson towards his wife. The Court found that the Tribunal failed to give proper weight to the evidence presented on the importance of our client’s presence and help he provides in controlling his stepson’s violent behaviour and reduce the risk to our client’s wife and her other children while caring for the stepson.

The Court considered the submission made by our client with regard to his relationship with the stepdaughter who has never met her biological father and treats our client as her father. The Court concluded that the Tribunal failed to engage with the evidence presented by our client to support his claim thus not giving much weight to his relationship with his stepdaughter which is vital to the family unit.

The Court concluded that the “Tribunal erred by having failed to give proper, genuine and realistic consideration to a range of submissions and evidence in support of the sponsor argument and the stepson argument. In reaching that conclusion, it is apparent from a reading of the Tribunal’s reasons as a whole that the Tribunal did not properly address each of these arguments in terms of reading, identifying, understanding and evaluating the claims as presented in the relevant submissions and evidence”. The Court quashed the Tribunal’s decision and ordered the Tribunal to re-determine, according to law, the application for review before it.

The Court also ordered the Minister to pay our client a total sum of $8,371.30 for costs and disbursement.