. Partner visa applications and big love . Will the rights of the child cure the lack of exclusivity?

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Migration Case Law Updates

In the Federal Court decision of Kareem v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCA 1016, Bromwich J held that when considering a subclass 309 partner visa applications.  (The case dealt with a de facto partner of visa sponsor) The tribunal was NOT allowed to consider the best interest of the affected children or related issues or any hardship that might be occasioned by refusal of visa be that to the visa applicant the sponsor or their children.

History:

The Sponsor, an Australian citizen, is a Nigerian citizen living in Nigeria. The visa applicant applied for the visa the subject of this appeal upon the basis that she was in a de facto relationship with the sponsor, having previously been refused a number of other visas that she had applied for. The Minister’s delegate refused to grant the visa, and the Tribunal principally affirmed that decision upon the basis of not being satisfied that the visa applicant and the sponsor were in an exclusive relationship as required by part of the definition of “de facto partner” in s 5CB of the Migration Act 1958 (Cth)

The sponsor had been in a polygamous relationship with the visa applicant and with another person, Ms Oluwakemi Omotayo. The sponsor did not deny that had been the situation in the past, but his case was that his relationship with Ms Omotayo had ceased, and that his sole relationship was with the visa applicant. The delegate and the Tribunal both recorded three children from the sponsor’s relationship with the visa applicant, and three children from the sponsor’s relationship with Ms Omotayo, with overlapping birth dates, in the period from 1998 to 2011. Neither the delegate nor the Tribunal were satisfied that the relationship between the sponsor and Ms Omotayo had ended, such that neither was satisfied, as required, that the sponsor was in a relationship with the visa applicant to the exclusion of all others. The Tribunal’s decision was also made upon the basis of not being satisfied that the relationship was genuine and continuing.

The primary judge was not satisfied that any jurisdictional error had been established, characterising much of what was advanced by the sponsor as amounting in effect to impermissible merits review.

On Appeal

Legislative regime, the best interests of affected children and hardship from visa refusal

Held:

Section 65(1) of the Migration Act requires that a valid visa application for which any application fee has been paid be granted if the criteria for the grant of the visa are met, and be refused if the criteria are not met. This is subject to certain exclusions not applicable in this case. No discretion is involved in making that binary determination, although for some visas one or more of the criteria may have a discretionary element which is able to be waived.

 Among the criteria required to be met at the time of the 23 July 2017 visa application, and still required to be met at the time of the visa decision, was that the visa applicant was the spouse or de facto partner of an Australian citizen: Migration Regulations 1994 (Cth) sch 2 cl 309.211(2)(a). The visa application in this case was made upon the basis of the visa applicant being the de facto partner of the sponsor, rather than spouse. The Tribunal also addressed the alternative of a spouse relationship, reaching the same conclusion, but nothing turns on this and it therefore does not need to be addressed further.

s 65(1) of the Migration Act required that the visa application be refused because the exclusive relationship criterion, contained no discretionary component and could not be waived. Therefore the visa applicant, and through her the sponsor, could not rely upon compassionate grounds related to her children or hardship occasioned by her not being granted the visa. The fact that other criteria for other visas, even other partner visas, may be waived is of no relevance to this case.

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