Do you have the right representative for your Partner Visa application?

 

JENNIFER KHAN asre you choosing the right representative

The Administrative Appeals Tribunal is where your partner visa application can be looked at again in the event of a refusal. I frequently study the decisions and reasons made during a hearing as it greatly helps me to prevent visa refusals for my clients. As migration law frequently changes it is one of a few ways I keep myself up to date with the changes.  Another benefit of studying these decisions is they not only show recent legislative changes, but they also show how we can or can’t apply these changes. It can also show who did the right thing and who did not.

Today I  will share with you a recent decision made regarding a Partner Visa that was applied for outside of Australia.  A refusal decision was made in late 2014 with the tribunal hearing taking place mid 2016.  I should add that the case is not my own however any person can access decision records using www.austlii.edu.au, this is mostly how I research hearing decisions.  The refusal was not the couple’s fault but the fault of their representative.

The reason for refusal in this case is a common reason for refusal:

(the applicant) did not satisfy cl.100.221(2)(b) because the delegate[person allocated to assess the partner visa application] was not satisfied that the applicant is the spouse or de facto partner of her sponsor.

The first thing that comes to mind here is the word ‘genuine’ .  I have written a blog previously about this word.  Establishing that a visa applicant is genuine is pivotal to the success of a visa application. For specifics about how to achieve this in the context of a Partner Visa Application click  HERE in the context of a Sponsored Spouse Visa application click HERE’

The couple were ‘found to be validly married’ which meets a specific requirement in the Migration Act at s.5F(2)(a). Moving through the hearing I am taken aback by this statement,

“The delegate made, in essence, a “no evidence” decision, documenting in the decision his various contacts with the parties’ previous migration agent in an ultimately futile attempt to elicit supporting evidence of the parties’ relationship.”

What is upsetting here for me is that even though the couple did appoint a Registered Migration Agent to represent them this Migration Agent  appears to have made a ‘futile attempt’ to gather sufficient supporting evidence to show that they were a genuine couple.  Perhaps the Migration Agent only submitted the bare minimum requirements or not even that.  The decision included that the sponsoring Australian partner, “expressed his frustration at the previous migration agent’s conduct of this matter.”   While preparing for this Tribunal hearing thankfully the couple managed to find a competent Registered Migration agent who “provided the Tribunal with a great deal of documentary evidence”.

If the case officer who made a decision on the original Partner Visa application had had this evidence at the time of decision in late 2014 I think there would have been very few problems in obtaining a visa grant. Even with the great deal of documentary evidence, after looking at weaknesses in the documents shown at Tribunal, one issue that I believe a case officer possibly could have refused the visa for was in the area of the couple proving ‘pooling of finances’ unless this was dealt with carefully in the application. The result of the hearing was,

“On the evidence overall, the Tribunal finds that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others; the relationship between them is genuine and continuing; and they live together and do not live separately and apart on a permanent basis, thereby satisfying the requirements of s.5F(2) for being in a married relationship”.

The visa was subsequently granted.  Read HERE  to consider the full consequences of a visa refusal.

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