Successful Federal Court appeal
On 14 October 2020, we had a win for our client, Ms P, in an appeal to the Federal Court of Australia: P v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480. A deserving client, the quashing of a horrible decision and the prevention of a child being permanently removed from her mother, made this victory one of the proudest moments of my career.
The background to this matter starts with a Partner visa application. Ms P was granted a temporary partner visa and moved to Australia from Thailand in order to live with her husband (her sponsor). Unfortunately, around 1 month before she was granted the permanent partner visa, Ms P’s relationship with her husband ended. Around this time, she also fell pregnant to her subsequent partner. Ms P failed to tell the Department of Immigration about these changes in her circumstances. She was granted the permanent partner visa and became a permanent resident of Australia.
About 3 years later, the Department of Immigration received information that indicated that Ms P was not in a relationship with her husband/sponsor at the time of the grant of her permanent partner visa (a mandatory criterion for the grant of that visa). The Department wrote to Ms P, sending her a notice of intention to consider cancellation under section 109 of the Migration Act 1958. Section 109 of the Migration Act allows the Minister to cancel a visa granted to that person if that person has been granted a visa on the basis of incorrect information.
Unfortunately, being self-represented at the time, Ms P did not respond to the notice of intention to consider cancellation under section 109 of the Migration Act 1958. The Minister (by his delegate) decided to cancel Ms P’s visa. Ms P then applied for merits review of this decision to the Administrative Appeals Tribunal (AAT).
While Ms P did have the benefit of some assistance with her application for review to the AAT, this did not extend to representation at the hearing. In a decision which is among the most capricious, mean-spirited and illogical that I have ever read, the AAT decided to affirm the decision of the Minister to cancel Ms P’s visa. Appallingly, the AAT concluded that the best interests of Ms P’s Australian citizen child would not be adversely affected by the cancellation of her visa. This despite the fact that the child’s life would be torn asunder by either:
her separation from her country, her society, her friends and her father by her relocation to Thailand which, as a matter of common sense, offers an inferior standard of living to Australia; or
her permanent separation from her mother and primary caregiver, who would be deported to Thailand and have no practical way of ever seeing her daughter again (the most likely outcome given the Family Court orders in place and the father’s attitude to Ms P).
Ms P then applied for judicial review to the Federal Circuit Court of Australia (FCCA). She was lucky to receive pro bono legal representation at the 11th hour. Unfortunately, while the arguments advanced were proved to be ultimately correct, they did not convince the FCCA that the AAT’s decision was vitiated by jurisdictional error.
Ms P then appealed the judgment of the FCCA to the Federal Court of Australia. She applied for legal representation through Law Access. This was the point where we got involved. We identified new arguments that were not made in the FCCA and did work on the arguments that were advanced in the FCCA. After days and days of work, we formulated our arguments and filed and served an amended notice of appeal and written submissions. With all the preparation, the hearing in the Federal Court went smoothly and a week later we got our judgment, which upheld every single one of our arguments. This was a great relief to Ms P and to us.
The Federal Court ordered that the AAT’s decision be quashed and that the AAT, differently constituted, determine according to law the question of whether Ms P’s visa should be cancelled. Ms P has engaged pro bono legal representation for the AAT hearing and now has an excellent chance of getting her permanent partner visa back. We wish her all the best for the future.