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Jurisdictional Error In The Malhi Vs. Minister

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Question:

Discuss about the Jurisdictional Error in the Malhi vs. Minister for Education & Anor.
 
 

Answer:

The applicant in this case was Mr. Amanpreet Singh Malhi who sought a review of the decision that was made by the Migration Review Tribunal. The tribunal had earlier affirmed the decision by the delegate of the minister to deny the applicant a class BS visa under section 65 of the Migration Act 1958. The applicant was required to satisfy cl801.221 of sch.2 of the Migration regulations at the time of the visa application[1]. These regulations required the applicant of the visa to be a spouse of the sponsor whereby the sponsor must be an Australian citizen and must satisfy section 5F of the Act. Section 5F of the Act, states that a person is someone’s spouse if he/she is in a married relationship. Such persons must have a mutual commitment to a shared life as wife and husband to the exclusion of other persons and the relationship between them should be genuine and continuing[2].

Amanpreet Singh was a male Indian citizen who applied for a partner visa in October 2011 based on his marriage to Ms Teresa Bartlett. He was 26 years old while his sponsor was 52 years of age. Having been denied the visa by the delegate of the minister, she proceeded to the tribunal to review an earlier decision made against him. The tribunal requested that the applicant submit number of documents such as the identity certificates and police clearance certificates. In addition, he was supposed to submit utility invoices, bank statements, travel documents, receipts, a letter from Australian Electoral commission, photographs, greeting cards, and personal statement for the applicant and that of the sponsor.

 


The tribunal made a decision on the matter after considering the applicant’s relationship with the sponsor based on the following g subheadings. The first consideration was the financial aspects of the relationship between the applicant and the sponsor. Similarly, they considered the nature of the household by checking the financial contributions of the applicant in the household. They were convinced that the applicant had contributed immensely in the payment of utility bills but dismally in the purchase of furniture. There was an indication that all the furniture were purchased by the sponsor. The tribunal also considered the social aspects of the relationship and found out that both the applicant and sponsor’s parents did not attend the wedding. In that regard, the tribunal formed a view that the two rushed to do a marriage which was to a greater extent not recognized by their respective families. In arriving to their decision, the tribunal delved into the nature of the commitment by the parties. The tribunal explored the aspect of commitment disavowing the age difference between the two as a factor that would deny them a genuine and a continuing spousal relationship[3]. It was persuaded that the couple had a meaningful discussion regarding how they may not have biological children and take credible steps into having one though medical attention or adoption. However, the tribunal was concerned with the applicant’s decision to enter into a marriage so hastily without having his applicant’s status being resolved[4]. Similarly, it was concerned about the sponsor’s decision to enter into a marriage with all the complexities of being in a troubled relationship previously. Considering these concerns, the tribunal did not see it a genuine and a continuing spousal relationship hence they confirmed the earlier decision by the delegate of the minister to deny the applicant the visa.

After all the submissions had been done by both the applicant, the delegate of the minister and the tribunal before the Federal Circuit Court, a judicial review was done and the Court was satisfied that the tribunal had engaged in a deliberate and systematic jurisdictional error by failing to undertake their statutory task of satisfying itself whether the relationship between the parties was genuine and continuing as a mandatory condition in line with subsection 5F(2) of the Act[5]. The court asserted that the disavowal of the couple’s lack of children does not mean that their relationship was not genuine and continuing was a clear indication that the parties had a meaningful discussion that their relationship and discussion of the parties at the commencement of their relationship. For instance, the tribunal argued that if the parties had a genuine and a mutual goal of having a family in future, they would have sought medical advice about the prospects of having children[6]. This clearly shows that the tribunal was hell-bent on relying on the circumstances surrounding the inception of the relationship including incapacity to bear children as the reason to doubt the genuineness of the couple’s relationship.

 

Bibliography

Malhi v Minister for Immigration & Anor. FCCA 119 ( Federal Circuit Court of Australia, February 2, 2017).

Neilson, Mary, and Matthew Collins. Going to Live in Australia: Your Practical Guide to Beginning A New Life Down Under. Kidlington, UK: How To Books Ltd, 2004.

Commonwealth consolidated regulations. MIGRATION ACT 1958 . Law, Melbourne: Commonwealth, 1958.

Spirov, Andrea. Moving to Australia: A Guide for Expats, Lovers and the Otherwise Curious. Brisbane: CreateSpace Independent Publishing Platform, 2013.

Veltman, Laura. Living & Working in Australia: Everything You Need to Know for Building a New Life. Kidlington, UK: How To Books Ltd, 2000.

Vrachnas, John, Mirko Bagaric, Penny Dimopoulos, and Athula Pathinayake. Migration and Refugee Law: Principles and Practice in Australia. Cambridge: Cambridge University Press, 2011.

Malhi v Minister for Immigration & Anor. FCCA 119 ( Federal Circuit Court of Australia, February 2, 2017).

Commonwealth consolidated regulations. MIGRATION ACT 1958 . Law, Melbourne: Commonwealth, 1958.

Neilson, Mary, and Matthew Collins. Going to Live in Australia: Your Practical Guide to Beginning A New Life Down Under. Kidlington, UK: How To Books Ltd, 2004.

Vrachnas, John, Mirko Bagaric, Penny Dimopoulos, and Athula Pathinayake. Migration and Refugee Law: Principles and Practice in Australia. Cambridge: Cambridge University Press, 2011.

Veltman, Laura. Living & Working in Australia: Everything You Need to Know for Building a New Life. Kidlington, UK: How To Books Ltd, 2000.

Spirov, Andrea. Moving to Australia: A Guide for Expats, Lovers and the Otherwise Curious. Brisbane: CreateSpace Independent Publishing Platform, 2013.

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