In order for a partner visa to be granted, the Minister must be satisfied that the applicant and sponsor are in a genuine and continuing relationship as defined by the Migration Act and its Regulations. This is a touchstone criterion- and a common theme amongst partner visa refusals. This was the situation facing Mario, whose partner visa had been refused on the grounds that he was not in a genuine married relationship with his wife, Mia.
The applicant and sponsor were married in Adelaide, Australia in 2014, and applied for a partner visa in 2015. The Department refused the partner visa application on the basis that the delegate was not satisfied that the applicant and sponsor are in a spouse relationship according to regulation 1.15A of the Migration Regulations 1994 (Cth). The decision record appeared to place significant weight on the applicant’s performance in an interview held between the visa applicant and a Senior Migration Officer. To summarise, the sponsor provided inconsistent answers to various questions in the interview, including not knowing where the sponsor went to school, where she previously worked, key dates and other important facts expected to be known by a person of their spouse. In addition, the case officer placed little weight on evidence provided and asserted that the absence of other kinds of evidence meant the application was not genuine.
We prepared a detailed submission breaking down the delegate’s decision. We picked apart every allegation raised by the delegate and rebutted them with evidence or arguments. For example, in relation to the failure to answer certain questions correctly, we submitted that insufficient details have been provided by the Department to better understand the context of the assertions presented in the decision record. No material had been provided to assist the Tribunal in understanding how the interview was conducted, the sequence of questions, the quality of translating and the context generally of how the case officer arrived at the assertions made in the decision record. We had been advised by the applicant that he was nervous during the interview, the questions were not clear and he did not always understand what was being asked of him. We submitted that, in light of no substantive materials regarding the interview (no recording and no transcript have been provided to the applicant) the assertions made in the decision record regarding the interview are unable to be verified. We submitted that, in congruence with the de novo nature of the decision to be made by the Tribunal in this matter, the applicant be given the opportunity to be interviewed by the Tribunal so that the Tribunal may reach a state of satisfaction as to the applicant’s credibility and consistency of answers with submitted materials to inform the Tribunal’s decision regarding whether the sponsor and applicant meet the requirements of s5F and regulation 1.15A.
And the Tribunal did just that. At the hearing the Tribunal interviewed the applicant and the sponsor. Prior to attending the hearing we spent time with the applicant and sponsor going over the types of questions that might be asked, preparing them for the formal nature of the Tribunal proceeding and ensuring they were totally ready for any curve balls that might be thrown their way.
Prior to the hearing we provided a multitude of evidence addressing any concerns the Tribunal might have about the genuineness of the relationship. We obtained many statutory declarations, and ensured they were in sufficient detail to be useful, we obtained further evidence of communication between the applicant and sponsor and debunked the concerns of the case officer in our written submissions.
The hearing couldn’t have gone more smoothly. In less than two hours the Tribunal had interviewed the applicant and sponsor and come to a decision to remit the application back to the Department with the instruction that the applicant meets the criteria for visa grant. Mia and Mario were very happy and within a few weeks Mario was on a plane to be reunited with his wife. They are now celebrating the birth of their first child and building a wonderful family life together in Adelaide.