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A refusal to grant a partner visa by the Department of Immigration and Citizenship has been overturned following an Ombudsman investigation.
Ms B had first applied in 2008 from Cairo for a provisional partner visa for herself (and their children as dependants) to join her partner Mr A in Australia. Provisional and permanent visas allow a person to enter or remain in Australia with their partner—in a married or de facto relationship—if their partner is an Australian citizen or a permanent resident. A temporary visa normally transmits into a permanent visa after about two years.
After DIAC rejected her application she appealed to the Migration Review Tribunal which found that Ms B satisfied the definition of ‘spouse’ and overturned DIAC’s decision in October 2008.
DIAC had the opportunity to apply for judicial review of the Tribunal’s decision but failed to challenge the decision within the legislative timeframes for review. Instead it took the unusual step of writing to the Tribunal asking for it to reconsider the ruling, which was rejected.
“DIAC’s request to the Tribunal that it reconsider its own decision was contrary to the established system of review and was inappropriate in the circumstances,” said Mr Asher.
Processing for the case continued for a further 18 months, including medical and DNA tests for the children, before a provisional partner visa was granted on 3 May 2010. Then two days later DIAC made a contradictory decision, refusing a permanent partner visa. Whilst the delegate was not legally prevented from doing this, likewise it was not required by law to make this decision.
“It is concerning that this action may have been an attempt to avoid a Tribunal decision that DIAC disagreed with but had not challenged appropriately,” Allan Asher said.
Because Ms B had still not entered the country, she could not seek a review of the most recent rejection and her partner, Mr A, lodged a complaint with the Commonwealth Ombudsman.
Following investigation of the complaint by the Ombudsman, DIAC granted Ms B a permanent partner visa.
This office recognises the complexities involved in assessing visa applications and the genuine concerns of DIAC Staff about maintaining the integrity of the visa program. However, this case suggests that further action may be needed to ensure that difficult cases like this one are actively managed.
Other recommendations in the report which DIAC agreed to, aim to ensure lessons learnt from this case are acted upon, including that any challenge to tribunal or court decisions occurs through the proper process and in a timely fashion, and that difficult cases are actively managed.
Download the report: Department of Immigration and Citizenship—Proper process for challenging a tribunal decision, February 2011—03|2011
