Case Study: Case Run By Nilesh Nandan
Hello, my name is Nilesh Nandan, and I am an immigration lawyer. I would like to take this opportunity to introduce myself and discuss a particular case that holds significant relevance to my many conversations about Partner visas.
Recently, I had the privilege of representing a client in a Partner visa refusal case in Perth, which resulted in a successful outcome.
This specific case, involved a review of the Administrative Appeals Tribunal’s decision to affirm the refusal of the Partner visa application.
Through a step-by-step examination of the decision, we were able to demonstrate that the Tribunal had failed to consider crucial aspects of the case put, including raising concerns about procedural fairness and the reasonableness of their findings.
Our arguments centred around highlighting the applicant’s genuine and continuing de-facto relationship with their sponsor, as well as addressing concerns raised by the Tribunal regarding the sponsor’s demeanour and what should be concluded about the absence of certain evidence. We sought to identify gaps in the reasoning of the Tribunal in its decision and deficiencies in its evaluation of the evidence presented.
By presenting compelling evidence, navigating the procedural requirements, and arguing a comprehensive understanding of the relevant legislation and guidelines, we were able to successfully challenge the Tribunal’s decision. We crafted written submissions and skillfully presented oral arguments to emphasize the strengths of our client’s case.
The court accepted our arguments and ultimately quashed the Tribunal’s decision, providing our client with a fresh opportunity for their Partner visa application. This outcome showcases the importance of thorough legal representation and the potential for successful outcomes even in challenging situations.
I am humbled by the opportunity to have contributed to this successful outcome and am grateful for the trust placed in me as an immigration lawyer. It is my belief that every Partner visa case, whether it involves a de-facto partner or a traditional spouse, deserves thorough attention and dedicated advocacy. I approach each Partner visa application or appeal with school-boy humility and a commitment to providing the best possible representation for my clients.
If you or someone you know is facing a Partner visa refusal, rejection, or an upcoming Partner visa application or appeal, I encourage you to reach out to me. I have extensive experience in handling Partner visa cases and navigating the complexities of the immigration process. Together, we can work towards a successful outcome and reunite you with your loved one in Australia.
Please feel free to contact me to discuss your Partner visa case further. I look forward to assisting you and guiding you through the intricacies of the Partner visa application or appeal process.
The Case: ENUA v MINISTER FOR IMMIGRATION & ANOR  FCCA 3604
The applicant’s immigration history provides relevant context to the case.
The applicant was born in the Federal Republic of Nigeria, while the sponsor for the Partner visa was born in the Democratic Republic of Congo (DRC). The sponsor’s son from a previous relationship was also born in the DRC.
On 18 March 2010, the sponsor arrived in Australia, and in 2013, the applicant arrived in Australia on a student visa.
According to the applicant, he first met the sponsor on 3 July 2013, and their committed de-facto relationship began on 1 January 2014. Subsequently, on 14 August 2015, the applicant applied for the Partner visa based on his relationship with the sponsor, with the assistance of a migration agent. By this time, the sponsor had become a permanent Australian resident, and on 9 March 2016, both the sponsor and her son obtained Australian citizenship.
During the Partner visa application process, on 30 August 2016, the Department of Immigration and Border Protection requested further information from the applicant. The Department specifically sought evidence regarding the length of the de-facto relationship prior to the application and evidence of the relationship since the lodgement. In response to this request, the applicant’s migration agent submitted additional supporting documents on 20 September 2016, followed by additional documents on 27 September 2016.
Despite the submission of additional documents, the delegate refused to grant the Partner visa on 10 October 2016. As a result, the applicant, represented by his migration agent, applied to the Tribunal on 26 October 2016 for a review of the delegate’s decision. Subsequently, on 28 February 2017, the applicant sought access to certain written material under section 362A of the Act, and the Tribunal provided the requested material on 24 March 2017.
The Tribunal scheduled a hearing for the applicant to present his case. On 6 June 2017, the applicant’s migration agent submitted written submissions to the Tribunal, attaching various documents such as bank statements, electricity bills, and statutory declarations from relevant individuals. On 15 June 2017, the Tribunal conducted a hearing where the applicant and his migration agent were present, and the hearing lasted for approximately one hour.
However, despite being informed that the sponsor would be required to provide evidence, the Tribunal could not establish contact with the sponsor during the hearing. As a result, the Tribunal adjourned the review hearing to 22 June 2017 to allow the sponsor an opportunity to provide evidence. On 22 June 2017, a further hearing took place with the applicant, his migration agent, and the sponsor in attendance. The sponsor appeared by telephone, and the hearing lasted for 20 minutes. During this hearing, the Tribunal also accepted additional documents submitted by the applicant, including mobile phone records and photographs.
On 27 June 2017, the Tribunal affirmed the delegate’s decision, ultimately deciding not to grant the applicant the Partner visa.
Consideration – Procedural Fairness
In light of the applicant’s concerns about procedural fairness, the Court carefully examined the Tribunal’s decision. The applicant argued that the Tribunal breached procedural fairness by making adverse credibility findings against the sponsor without providing notice of the requirement for medical evidence and assuming that the absence of evidence from the sponsor’s family would lead to an adverse conclusion. However, after thorough consideration, the Court found that the applicant was not denied procedural fairness.
The Court emphasized that the Tribunal was not obligated to notify the applicant of its view on the sponsor’s demeanor, as it was not the determining factor in finding the absence of a de-facto relationship. The Court clarified that the Tribunal’s remarks about the sponsor being “aggressive and deliberately obstructive” were incidental and did not influence the overall finding regarding the de-facto relationship.
Regarding the lack of medical evidence, the Court noted that it was the applicant’s responsibility to explain the impact of the accident and provide supporting evidence. The Tribunal had given the applicant an opportunity to present such evidence, but the materials provided were insufficient to convince the Tribunal that the accident had affected the sponsor’s ability to give evidence. The Court emphasized that it was not the Tribunal’s role to prompt the applicant to provide evidence to bolster his claim.
Furthermore, the Court determined that the Tribunal was not required to inform the applicant about the absence of evidence from the sponsor’s family or seek explanations for their failure to provide supporting statements. It emphasized that it was the applicant’s responsibility to produce the evidence he wished to present in support of his application.
In terms of the applicant’s expectation that the Tribunal would consider the guidelines on credibility, the Court found no evidence to suggest that the Tribunal had disregarded the guidelines. Even if the Tribunal had not explicitly considered the guidelines, it would not necessarily amount to jurisdictional error, as the guidelines are not mandatorily binding.
The Court concluded that the Tribunal had fulfilled its obligations under the Act, finding no errors in the procedural fairness provided to the applicant.
Consideration – Reasonableness
The Court determined that the Tribunal had failed to give proper consideration to the matters outlined in regulation 1.09A(3) of the Regulations. Consequently, the Court found that the Tribunal’s conclusion, which stated it was not satisfied with the existence of a genuine and continuing relationship, lacked a probative basis due to the omission of relevant considerations.
Addressing the applicant’s contentions regarding the Tribunal’s view of the sponsor’s credibility, the Court noted that the Tribunal did not reject all the other evidence-based solely on the sponsor’s “aggressive and deliberately obstructive” demeanor. The Court highlighted that the Tribunal’s assessment of the evidence was independent of its concerns about the sponsor and took into account factors unrelated to her demeanor.
The Court emphasized that the Tribunal’s statement about the sponsor’s demeanor was merely an observation and did not undermine its assessment of the evidence. The concerns raised by the Tribunal were based on independent factors, such as the failure to declare the relationship to Centrelink and the absence of independent evidence supporting certain aspects of the relationship.
The Court concluded that the Tribunal’s observation of the sponsor’s demeanor did not taint its evaluation of the evidence or warrant rejection of the testimony of the applicant and other witnesses. It found no errors comparable to those identified in the DAO16 case, where the Tribunal’s reliance on demeanor led to the rejection of all other evidence. In this case, the Tribunal did not reject any evidence and based its concerns on factors separate from the sponsor’s demeanor.
The Court acknowledged that the Tribunal’s view that the sponsor was “aggressive and deliberately obstructive” was a reasonable one, considering the references to her unwillingness to answer certain questions. It further emphasized that as the Tribunal was present during the hearing and had access to the evidence, it was not unreasonable for the Tribunal to form such a view.
Taking into account the applicant’s immigration history and the additional information provided, the Court expressed significant concerns about the general nature of the Tribunal’s reasons. As a result, the Court allowed the applicant’s application, quashed the Tribunal’s decision, and remitted the matter for re-hearing. This decision ensures a fresh examination of the case, ensuring procedural fairness and proper consideration of all relevant factors in accordance with legal requirements.
As an immigration lawyer, I understand the complexities and challenges associated with Partner visa applications and appeals. I have handled numerous cases involving de-facto partners and traditional spouses, and I approach each case with humility and a dedication to achieving the best possible outcome for my clients. If you are facing a Partner visa refusal, rejection, or need assistance with a Partner visa application or appeal, please do not hesitate to contact me. I am here to provide you with expert guidance and representation throughout the process.