What can be constituted as having a previous relationship has recently been cleared up by the Federal Court of Australia. According to the case of Larney v Minister for Home Affairs, the Tribunal erred in finding that the applicant had previously been in a de facto relationship and had provided information that was false or misleading that triggered Public Interest Criteria 4020.
- The appellant, Mr Larney, a citizen of Ghana who arrived to Australia on a 457 visa (work visa) established a de facto relationship with an Australian citizen.
- In the appellant’s application for a Partner visa, he answered ‘No’ to the question, “Has the applicant been in any previous relationships with persons other than the sponsor?” This contradicted his response to having had two non-migrating children in his application.
- The Department questioned the contradicting response to which the appellant’s lawyer confirmed that he had never been married or been in a de facto relationship, and although he has two children, he never lived together or got engaged to the mother of the children.
- The Department held it to be untrue based on the note in reference to a phone call made by Mr Larney’s former wok visa sponsor who provided that Mr Larney informed him that he has a wife and a two year old son in Ghana.
- Accordingly, the Department provided Mr Larney a “procedural fairness letter” stating that he has failed to satisfy PIC 4020 and asked him to comment on the discrepancies. The Department went on to refuse his Partner visa application.
- The appellant exercised his right to seek merits review of the decision in the Tribunal to which the Tribunal affirmed the decision of the delegate not to grant Mr Larney a Partner visa.
- The Tribunal held that even though Mr Larney claimed that he was never legally married and that the mother of his children is now in another marriage, it does not imply that there was no spouse-like or de facto relationship between them previously. Therefore, the absence of cohabitation is not conclusive.
- Additionally, it was also held that the birth of the two children over three years implies, in the Tribunal’s view, a considerable degree of commitment rather than a quick interaction resulting in the birth of a child.
- The appellant sought judicial review of the Tribunal’s decision to affirm the decision of the Delegate in the Federal Circuit Court of Australia (FCCA). The FCCA found no jurisdictional error and dismissed the application.
- The Appellant eventually appealed the FCCA’s decision to the Federal Court.
Grounds of Appeal
The Appeal involved four (4) important questions:
- Does the question “has the applicant been in any previous relationships” contained in the partner visa application form refer to relationships in general or only to married or de facto relationships?
- If that question refers to relationships in general, was it a material error in the sense of Hossain for the AAT to have asked about the existence of previous de facto relationships?
Can administrative decision-makers assume the existence of a previous de facto relationship even if s 5CB is not satisfied?
- If a person provides information about whether they have previously been in a de facto relationship and a decision maker is trying to determine whether that information is false or misleading, does it matter that, at the time the information was given, the FCCA interpreted s 5CB in a way that was subsequently rejected by the FCA?
Breakdown of the Federal Court’s Consideration
- Main Issue: Whether the applicant met PIC 4020 as required for the grant of the visa he had applied for?
- PIC 4020: “….information must be false and misleading…” – There is no express statement by the Tribunal that permits the Court to identify that information with precision. The Tribunal did not focus on the applicant’s actual answer (to the question whether he had been married previously or in a de facto relationship) but whether his imputed answer was relevantly false and misleading.
- S 5CB De Facto partner: The Court agrees that a couple might be in a de facto relationship despite not having previously lived together, provided they share a mutual intention, in the future, not to live separately and apart on a permanent basis – The evidence before the Tribunal was wholly inconsistent with the applicant and the mother of the children having formed such a mutual intention.
As such, the applicant’s relationship with the mother (of their children) objectively was never capable of being comprehended by the term “de facto relationship”, and as such could not have been false or misleading on the applicant’s part to have disowned his having had such a relationship.
- The Tribunal asked itself a wrong question: It should have asked whether the answer “No” on the visa application form constituted false or misleading information. Therefore, the Tribunal fell into legal error by failing to address the proper question (Craig v South Australia).
- This case reveals the propensity of decision makers to apply a lesser standard of proof as to what might be properly characterised as a spousal or a de facto relationship, especially when that characterisation is likely to be adverse o your client.
- Therefore, it is important to point out or challenge a decision maker if a departure is made from the one and only standard: the statutory scheme itself.