Partner Visas Australian Flag Kean Legal Barristers and Solicitors

Migration Law Blogs Series (MLBS) 19 – Migration visas- Partner Visas – Evidence and procedure (Part 3)

This is the nineteenth in a series of blogs that have focused on Australian Migration Law on Partner Visas.

By Mr Anthony J Aristei

If you are not sure if it you should file or what documents to file, do not delay, please seek legal advice straight away. Do not wait until it is too late.

Nothing here should be taken as legal advice or a substitute for speaking to a lawyer from our office. Unsure of what you can do, or what to do next? A solicitor form Kean Legal Barristers & Solicitors is ready to help. If you have any questions, please call us on 08 63238613.

In several blogs in this particular series, we have tried to highlight the importance of the rules of evidence and procedure.

Each application made by (or on behalf of) a visa applicant must be determined on the basis of the evidence before it. This principle applies, regardless of whether it is the Australian Migration Department called Department of Home Affairs, a Federal Court of Australia or the Administrative Appeals Tribunal (“AAT”) which has to decide the matter.

If the evidence is insufficient (or non-existent), you will not be able to satisfy the decision-maker that either your visa application, review or appeal should be granted.

Further, if you do not apply the correct procedure to lodge a review to the Administrative Appeals Tribunal (“AAT”) or an appeal to a Federal Court of Australia, you might be unable to obtain a positive outcome. This principle applies, regardless of the strength of your supporting evidence.

Not lodging your application by the applicable time-limit is a common example of how an error of procedure can ‘compound your difficulties’ from the outset.

Yet, month after month, year after year, cases are dismissed because of errors which have been made in relation to the presentation of evidence or the application of procedure.

Case Example for Partner Visas

The case of Koring v MIBP (2017) FCCA 1989 is but one example of the errors which are made.

In that case, the applicant applied for a partner visa shortly after her prospective marriage visa had expired. There were two issues that the Federal Circuit Court of Australia had to determine: 

  1. The first key matter requiring evidence was:

Proof that the applicant and the sponsoring spouse had entered into:

  1. a mutual commitment for a shared life as husband and wife, to the exclusion of all others; and
  1. a relationship between them which was genuine and continuing.

Yet, the applicant (who was not legally represented) provided little (if any) evidence about these essential matters.

Worse still, the applicant failed to raise any relevant evidence when she directly responded to a letter sent to her by the Migration Department. That letter requested her response to the facts they had gathered.

As we have said in an earlier blog in this series, any ‘invitation’ sent to you by the Migration Department needs to be taken seriously! (Obtaining legal advice before responding is recommended).

  1. The second key matter requiring evidence was whether the relationship had ceased due to ‘family violence’. (That issue has also been specifically discussed in earlier blogs in the ‘Partner Visa’ series).

Again, there was little or no evidence provided by the applicant to either the Migration Department or to the Administrative Appeal Tribunal (“AAT”) to support this claim:

  • No Court orders as to such violence were produced by the applicant;
  • No statutory declarations in relation to this issue were produced (as required); and
  • The applicant had not raised any evidence of family violence in her earlier letter of response which she sent to the Migration Department.

At the review hearing before the Federal Court, the applicant also made further errors of evidence and procedure, namely by:

  • Preparing grounds for review that were not based on the matters of specific evidence which were earlier before the Administrative Appeals Tribunal;
  • Attempting to produce photographic evidence to the Federal Court when that evidence should have instead been provided to the Migration Department or the Administrative Appeals Tribunal at an earlier stage;
  • Attempting to argue that the application should be heard on its merits – when the application before the Federal Court was limited to a judicial review; and
  • Attempting to call evidence from an interstate witness – when such evidence had not been called before the Administrative Appeals Tribunal at an earlier stage.

In many ways, this case might be seen as an example of how a case should ‘not’ be prepared or presented.

But it didn’t need to ‘end’ like this. Timely legal advice could have been obtained in order to ensure that all supporting evidence was presented to the Federal Court.

Legal advice could also have been provided in order to ensure that the grounds for review were properly drafted. All of those potential legal issues in the case could have been properly considered, all these steps ‘could have’ been taken……… but weren’t!

If you require professional assistance by a migration lawyer to point you in the right direction or for representation, we can be contacted on our office number on: +61 8 6323 8697

Leave a Comment

Your email address will not be published. Required fields are marked *