Yang (Migration)

The applicant, Yang, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the refusal of her Partner (Residence) (Class BS) visa, subclass 801. The matter was remitted to the Federal Circuit Court. The core of the dispute concerned whether the applicant had provided sufficient evidence to demonstrate a continuing and genuine relationship with her sponsor, as required by clause 801.221 of the Migration Regulations 1994.

The primary legal issue before the Court was whether the Tribunal had erred in law by failing to disclose to the applicant the existence of a section 376 certificate. This certificate, issued under the Migration Act 1958, contained information relevant to the assessment of the relationship. The Court also had to consider whether, in light of this non-disclosure and the inconsistent evidence presented by the parties regarding travel, the Tribunal's finding of insufficient evidence of a continuing and genuine relationship was reasonable and supported by the evidence before it.

The Court found that the Tribunal had committed a jurisdictional error by failing to disclose the section 376 certificate to the applicant, thereby denying her procedural fairness. This error meant that the Tribunal's decision could not stand. However, the Court also considered the merits of the case. It noted that even without the undisclosed certificate, the evidence regarding the parties' travel patterns was inconsistent and raised doubts about the genuineness and continuity of the relationship. The Court concluded that, on the available evidence, it was open to the Tribunal to find that the applicant had not satisfied the requirements of clause 801.221.

Consequently, the Court set aside the Tribunal's decision and remitted the matter back to the Tribunal to be heard and determined according to law, with the Tribunal to provide the applicant with the section 376 certificate and an opportunity to respond to its contents.