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Court Holds Tribunal Fell Into Error by Failing to Expressly Consider Matters Relevant to Parties’ Commitment to Each Other

There are occasions, perhaps not frequent, when the Tribunal’s decision runs off the rails so badly that it is literally a “train wreck”.

You know if has to be bad when Judge Street, who is known to have a high rate of dismissal of applications for judicial review, quickly and succinctly, in the space of less than 4 pages in His Honour’s written reasons, comes to the conclusion that the Tribunal has been guilty of jurisdictional error, and sends the case back to the Tribunal for re-determination.

So it was in a case recently decided by Judge Street, Sin v Minister for Home Affairs & Anor (2018) FCCA 3282 (13 November 2018).

Consider the circumstances of this case, which involved an application for a partner visa:

The applicant is a citizen of South Korea who was born in 1934. He first married his sponsoring spouse in 1959. This marriage lasted 15 years, and the applicant and his wife had 3 children together.

Many years after the marriage dissolved, in 2011, the applicant visited his former wife in Australia; the relationship “rekindled” and they re-married in 2012.

Judge Street found that there were a number of errors in the Tribunal’s reasoning processes, which included the following:

  • Even though the Tribunal had included a general statement in its decision to the effect that it has “considered” the nature of the parties’ commitment to each other including the duration of their relationship and the length of time they had lived together, despite these general statements, the Tribunal made no express reference, when considering the parties’ commitment, to the length of time that they had lived together since re-marrying in 2012;
  • The Tribunal had also failed to give express consideration, when considering the nature of the parties’ commitment to each other, to the motivations of the sponsor to look after and care for her husband, who was suffering from progressive dementia;
  • There was evidence in the Court Book (containing documents relating to the visa application that had been before the Department and the Tribunal) concerning the parties’ commitment to each other which again the Tribunal had failed to expressly
  • The Tribunal had also failed to give express consideration to the age of the parties (the applicant was 84 years old!); Judge Street was of the view that this was relevant to the question of whether the parties’ regarded the relationship to be long term (as in Judge Street’s opinion, since both the applicant and the sponsor were over 80 years old they were in an obvious category where they would each be unlikely to move on to other relationships.

The moral of this case is that –even though the principle that decisions of the Tribunal should not be read with “an eye keenly attuned to error” (which was stated by the High Court in Minister for Immigration & Ethnic Affairs v Wu San Liang (1996) HCA 6) there nonetheless are cases where the Tribunal has made errors that are relatively easily identified.

That is why it pays to read the decisions of the Tribunal quite closely – you never know what you might find, and you just might find that there are “golden nuggets” buried in the Tribunal’s decision which might just enable you to salvage an applicant’s case!

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