In 2017, The Full Federal Court held that the Administrative Appeals Tribunal is bound to consider all of the matters set out in the migration regulations under Regulation 1.15A in determining whether a spousal relationship exists for migration purposes.
The Tribunal is required to bring an active intellectual process and to give genuine and realistic consideration to each of the matters listed in the “regulations”, and that failure by the Tribunal to make reference to a finding concerning matters set out in The Regulations, may give rise to an inference that the tribunal did not make any finding with respects to that matter and thereby committed jurisdictional error.
This principal had previously been held by the High Court in Craig v South Australia when the Tribunal failed to consider matters set forth in Statutory Declarations.
In the High Court decision The Federal Court held that a number of matters specified in Regulation 1.15A had not been the subject of findings concerning ‘The nature of the persons commitment to each other’, for example, living together since fiancé (300) visa, saving to purchase a house, support for family matters of the applicant.
This principal may be applied to a variety of cases if the Tribunal did not make specific findings on each and every matter in Regulation 1.15A.
The Federal Court recently applied this assessment of jurisdictional error in Nguyen v Minister for Immigration and Border Protection(2018) FCA 1374 when the Tribunal did not make reference to two statutory declarations submitted which spoke about observations by the declarants that the parties were living together as a married couple.
Justice White concluded that Reg. 1,15A (3)(C) makes it mandatory to consider whether the parties represent themselves as being married to each other. Failure by the Tribunal not to have regard to the statutory declarations amount to jurisdictional error.
A close examination of the Tribunal’s specific examination of ALL regulations may throw you a lifeline!