Tribunal’s failure to consider substantial evidence in the assessment of the “four pillars”
In the recent decision of Nguyen v Minister for Home Affairs, the Federal Court has confirmed that the Tribunal must give proper, genuine and realistic consideration to the factors set out in regulation 1.15A (3) and 1.09(A) of Migration Regulations 1994 where there is a finding as to the facts (or evidence) that bear upon those factors.
- The appellant, Ms Nguyen, who was born in Australia married her partner, Mr Huynh, a Vietnamese citizen in 2014.
- An application for Partner visa (subclass 309) was refused in 2015 to which the appellant sought a review in the Administrative Appeals Tribunal (AAT). The Tribunal affirmed the decision not to grant the partner visa.
- The appellant exercised her right to seek judicial review in the Federal Circuit Court, which was refused in 2018. Consequently, the appellant sought an appeal in the Federal Court.
- The Federal Court held that the primary judge in FCC erred in finding that there was no jurisdictional error by the Tribunal in failing to consider the four pillars.
Grounds of Appeal
The following appeals were made:
- The Tribunal failed to consider evidence as to the couple’s long term plans based on their subjective views (as set out to do so);
- The Tribunal rejected evidence from family members because they did not set out any reasons for why they believed the relationship is genuine when there were reasons that the Tribunal was required to consider;
- The Tribunal failed to consider the nature of the couple’s commitment as it did not properly consider evidence of their regular communication; and
- The Tribunal failed to consider the liability incurred by the sponsor for the cost of an airfare for Ms Nguyen to visit Vietnam that had been paid by the sponsor’s brother
Breakdown of the Federal Court’s Consideration
- Ground 1: Views as to long term relationship
- The Court held that the statutory declarations provided by both the applicant and the sponsor regarding their long term plans does not demonstrate that there was a failure to consider long term plans.
- The terms in Reg 1.15A(3)(d(iv) (whether the persons see the relationship as a long-term) expressed concerns their present state of mind concerning the relationship. Therefore, their plans and intentions may form part of the inquiry.
- However, this factor may also be consider based on objective information about what the couple have done in the past as well as by reference to evidence from the parties as to their future plans. Therefore, Ground 2 failed on the basis that it did not rise above the factual finding made by the Tribunal.
- Ground 2: Genuine and continuing relationship
- The Court held that the Tribunal’s reasoning did not concern the reasons why the family members expressed the view in their statutory declarations that the relationship was genuine. The Tribunal considered that none of the sworn statements provided by the family members set out any reasons why they believe the relationship is genuine.
- The FCC found that the appellant’s submissions was “not based on a fair reading of the Tribunal’s reasons, and that it was apparent from reading the Tribunal’s reasons “as a whole” that the Tribunal expressly referred to the statutory declarations and took them into account in relation to the issue of the genuineness of the relationship.
- The Court held “it is not correct to describe these statements as not setting out any reasons why each of the deponents consider the relationship to be genuine”. Further, it held that “it is NOT correct to describe the Tribunal’s reasons ‘as a whole’ as considering and not accepting the reasons advanced as to the genuineness of the relationship”.
- Ground 3: Nature of the commitment
- The Court found that although the Tribunal has not accepted that there were long telephone calls but has accepted that the parties communicate on a regular basis. For such reason, it is apparent that this ground is no more than a complaint about a factual finding by the Tribunal.
- Ground 4: Joint liabilities
- The Court found that the financial matters were considered by the Tribunal and that the Tribunal made a finding directed to a particular evidence. Therefore, the matters raised do not demonstrate jurisdictional error.
- It is vital for migration agents who appear before the Tribunal to raise any evidence or facts that the Tribunal had plainly misread or overlooked.
- Generally, the Tribunal will be found to have failed to perform its review function ‘if it failed to take into account of cogent evidence providing substantial support to the applicant’s case’, or ‘if it failed to take account of a substantial and clearly articulated argument advanced by the applicant in support of that case’: SZMTA
If your partner application has been refused and you believe that the evidence you have provided has not been properly considered, it is worthwhile to seek immigration legal advice as to whether your case would have a reasonable prospect of success.
At Migration Centre of Australia, we are well-trained to handle highly complex matters. Book one of our agents for professional advice by calling 02 4626 1002 or email us to book in a time at firstname.lastname@example.org. We also speak fluent Hindi, Nepalese, Punjabi, Turkish, Tamil, Portuguese and Marathi. If one of these isn’t your language, we can also help you arrange an interpreter.