Has there been a denial of procedural fairness? Can you spot apprehended bias in the delegate’s decision making? Are Jeff and Avi victims of sexual orientation discrimination?
Jeff and Avi are gay and are in a long-term de facto relationship. Avi is from India. Jeff is Australian. They have been in a committed relationship since early 2009. Avi and Jeff lived together in Australia between 2014 and March 2016. Avi had no choice but to leave Australia to lodge an offshore partner visa application (because he had lost an Administrative Appeals Tribunal case and couldn’t lodge any further visa applications onshore).
Under India’s criminal code, it is a criminal offence for same-sex couples to engage in sexual acts. India’s mistreatment of sexual minorities is well-documented. Keep these two facts in mind.
In April 2016, Avi lodged an online de facto partner visa application which was processed by the Australian High Commission in New Delhi, India. Avi waited and waited for an outcome. 6 months passed. Nothing. 12 months passed. Still nothing. 18 months. Still nothing. 24 months passed. Still nothing. Finally, at 26 months and 7 days, the application was refused? Why? Glad you asked. Let us explain.
Back in mid-2014, Avi’s previous agent lodged an onshore partner visa application and attached two form 888s. That application was refused a couple of months later. That same agent then lodged the Administrative Appeals Tribunal and attached zero documents. The Administrative Appeals Tribunal case was refused in April 2016.
The couple then lodged the offshore partner visa application and attached all their relationship evidence proving their committed de facto relationship, including a joint bank account, evidence of Avi’s financial dependence on Jeff, household bills in Jeff’s name, official correspondence sent to their common residential address, a joint health insurance policy, a registered relationship certificate, three form 888s, photos of the relationship, relationship history statements and evidence of maintaining contact while apart and active use of their joint bank account while Avi was back in India.
The delegate at the Australian High Commission in New Delhi, India rejected every piece of evidence. The delegate did not interview Avi or Jeff either by phone or face-to-face. The form 888s witnesses were not contacted. The Australian High Commission in New Delhi, India sat on the visa application for 26 months and 7 days. What did they do during this time? That’s the million-dollar question.
If you bear with us, we will take you through the law, facts and evidence which tends to prove that the Australian High Commission in New Delhi has denied this couple procedural fairness, the delegate has demonstrated apprehended bias in his decision making and sexual orientation discrimination. Let’s break it down for you, step by step.
What is procedural fairness?
An Australian Government website, the Australian Law Reform Commission, provides this explanation of procedural fairness.
“Procedural fairness” means acting fairly in administrative decision making. It relates to the fairness of the procedure by which a decision is made, and not the fairness in a substantive sense of that decision.
In other words, when you look at whether there has or has not been procedural fairness, you don’t look at the destination (ie the outcome or decision) but rather you look at the journey (assessment of the law, facts and evidence) that got you to your destination.
To prove that the delegate at the Australian High Commission in India has denied Avi and Jeff procedural fairness, we need to show that the delegate’s assessment of the law, facts and evidence was incorrect. Similarly, we can compare other partner visa applications (“case studies”) processed by the Australian High Commission in India and by comparing statistics from these case studies, we can start to see that Avi and Jeff were treated differently. That different treatment is denial of procedural fairness.
Our evidence will show that other complex visa applications involving heterosexual couples, handled by the Australian High Commission India took less time to process (8 months less in two complex cases and 21 months less for simple cases). In most cases, either the applicant and/or sponsor were interviewed. In some cases, the processing office conducted random site visits to test the veracity of applicants’ claims. None of those steps were afforded to Avi and Jeff.
What is apprehended bias?
A Victorian State Government website, the Victorian Government Solicitor’s Office, provides this explanation of apprehended bias.
There is now one single test for apprehended bias in Australia, and this test is the same for both administrative decision-makers and judicial officers. It has been described by the High Court as follows:
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a [decision maker], the governing principle is that, subject to qualifications relating to waiver … or necessity …, a [decision-maker] is disqualified if a fairminded lay observer might reasonably apprehend that [she or he] might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done… [emphasis added]
Does the bias rule apply to all administrative decision-makers?
The scope of administrative law developed throughout the 20th Century and by the 1990s established that the rules of procedural fairness, and therefore the bias rule, apply to administrative decisions made under statute. As was stated by the High Court in Annetts v McCann:
When a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment…
In other words, we are saying that if a decision maker is anti-gay, and that person has to decide a gay couple’s fate, if there is a real chance that person’s own views on homosexuality might cloud his reasoning when deciding, that would be evidence of apprehended bias. Remember India’s criminal law outlawing same-sex sexual acts? Type into Google “Gay in India” and read the news stories from recent years. You start to get the picture that homosexuality is a highly controversial topic in India. Indeed, between 1860 and 2009, the Indian Penal Codes 377 criminalised sexual activities that were “against the order of nature”.
Of unnatural offences
- Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1*[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation. Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
The landmark case of Naz Foundation v Government of NCT of DelhiWP(C) No.7455/2001 (2 July 2009) (‘Naz Foundation Case’),iii overturned the 150-year-old law which treated homosexual acts between adults as a violation of the criminal law. The Court held that such a law was a breach of fundamental rights protected by India’s constitution. This legal victory was short-lived, as the Supreme Court reinstated the archaic law on appeal in 2013.
It is a well-known fact throughout the world that Indian society has an ingrained intolerance of homosexuality owing to the above long-standing relic of India’s Criminal Code introduced during British rule. Many news articles and academic papers illuminate the extent of discrimination, marginalisation, harassment, blackmail and physical violence toward the gay population.
Evidence gathered will show that similar complex visa applications handled by the processing office took less time to process (8 months longer in one case), either the applicant and/or sponsor were interviewed, and the processing office conducted random site visits to test the veracity of the applicant’s claims. Furthermore, the evidence shows that heterosexual couples were frequently interviewed by the processing office and their processing times fell below the published global processing times by a significant margin compared to the applicant’s case. The different treatment of the applicant’s case suggests apprehended bias.
View the partner visa refusal against this background and stay with us, as we tackle sexual orientation discrimination next.
Sexual orientation discrimination
An Australian Government website, the Australian Human Rights Commission, provides this explanation about sexual orientation discrimination.
Sexual orientation discrimination happens when a person is treated less favourably because that person has a sexual orientation towards:
- persons of the same sex; or
- persons of a different sex; or
- persons of the same sex and persons of a different sex.
Direct sexual orientation discrimination happens when a person is treated less favourably than a person with a different sexual orientation would be treated in the same or similar circumstances. For example, it may be direct sexual orientation discrimination for an employer not to promote an employee because it has become aware that he is bisexual.
Indirect sexual orientation discrimination occurs when there is a requirement or practice that is the same for everyone but has an unfair effect on people of a particular sexual orientation. For example, a company policy that offers benefits to an employee’s husband or wife, such as discounted travel or gym membership, may disadvantage employees with a same-sex partner because of their sexual orientation and/or relationship status.
Let’s use another scenario to explain. You have a same-sex couple and a heterosexual couple both applying for a de facto partner visa application and both submit their joint bank account statements. The delegate says to the heterosexual couple, we accept your joint bank account statements as financial evidence. But to the same-sex couple, the delegate says the joint bank account statements don’t prove it was you the visa applicant and sponsor making those withdrawals. That is sexual orientation discrimination.
The delegate did not once mention the applicant’s homosexuality and rationalise that due to India’s publicly documented intolerance toward homosexuals, it was reasonable for the applicant to keep his sexuality and de facto relationship a secret from his family, friends and community. The couple claim to have been in a committed relationship for 9 years, but the delegate concluded there was no evidence to show their commitment to the relationship. I have assisted hundreds of partner visa applicants over 10 years. The clients’ circumstances differ because each relationship is unique. The delegate has not treated this couple equally compared to treatment of heterosexual couples or couples in long-term relationships. For that reason, there is strong evidence of sexual orientation discrimination.
The delegate’s “concerns”
The delegate expressed many times in the decision record his “concerns” about the relationship.
Page 6 decision record:
You have stated that you committed your life to each other and your relationship began on Day Month 2009. However, you have not provided sufficient evidence of your relationship with your sponsor for majority of the period you and your sponsor stayed together in Australia. This raises further concerns in regards to the social recognition of your relationship.
Based on the evidence provided, I am concerned that limited evidence has been provided to support social aspect of your relationship.
… In terms of your commitment to each other, you have provided evidence of chat history for period of Day Month 2016 to Day Month 2016. The evidences submitted depicts limited contact between you and your sponsor for a very short duration of time as compared to the claimed length of your relationship with your sponsor. I do not find this evidence sufficient and hence have concerns.
Departmental records indicate that your sponsor has not visited you since his last visit and you have also not made any applications to visit him in Australia. Hence you have failed to provide any evidence of efforts to meet each other. On balance, I find the evidence provided by you is insufficient to outweigh the concerns I have regarding the nature of your commitment to each other.
Page 7 decision record:
I have considered the information provided in your application. In assessing the nature of your relationship, I have considered the circumstances of a couple’s meeting, relationship development, length of time you have lived together, the degree of companionship and emotional support that you draw from each other and whether you see the relationship as a long-term one. Based on the overall information available on hand, I am not satisfied and I have serious concerns regarding the genuineness of your relationship and commitment to each other.
Legislation and departmental policy guidelines governing de facto partner visa applications
Under the Migration Act 1958 (Cth) (“the Act“), a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person. A person is in a de facto relationship with another person if they are not in a married relationship with each other but:
- they have a mutual commitment to a shared life to the exclusion of all others; and
- the relationship between them is genuine and continuing; and
- they:
- live together; or
- do not live separately and apart on a permanent basis; and
- they are not related by family.
Put simply, all de facto partner visa applications must be assessed against the factors outlined in Regulation 1.09A of the Migration Regulations 1994 (Cth) (“the Regulations”). These factors include the four broad areas of a relationship: the financial aspects of the relationship, the nature of the household, social aspects of the relationship and the nature of the commitment to each other.
The Regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (a), (b), (c) and (d) above exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
In all cases, delegates are to take into account collectively the four factors specified, that is, the:
- financial aspects of the relationship
- nature of the household
- social aspects of the relationship and
- nature of the persons’ commitment to each other.
The delegate’s assessment must not be based by only comparing how many factors listed in regulation 1.09A are satisfied against how many are not satisfied. Rather, it involves delegates:
- considering each individual relationship against all factors listed in regulation 1.09A(3) and
- taking into account any other relevant information provided by the applicant (or information otherwise available to delegates), assessing whether or not, on balance, the requirements are met and that a de facto partner relationship exists.
Delegates must decide the weight to be given to each factor or characteristic. However, they are not, limited to the four factors at regulation 1.09A but can consider any additional information that is reasonable and practicable on which a decision can be based.
Certain information must be given to application – section 57
When the Department conducts checks to confirm the information provided in the application, if unfavourable information is received during that process which does not support the application, the applicant must be invited to comment on the adverse information received. This is known as a Natural Justice letter and its legal basis is section 57 of the Act.
The applicant did not receive a section 57 Natural Justice letter. What can be deduced from this is that the processing office has not received unfavourable information which does not support the application. Therefore, the delegate MUST:
- consider this individual relationship (same-sex couple) against all factors listed in regulation 1.09A; AND
- take into account any other relevant information provided by the applicant (or information otherwise available to delegates) including information held by the Department from the applicant’s previous partner visa application and AAT application; AND
- assess whether on balance, a de facto partner relationship exists.
Australian case law
We wish to provide some commentary on three recent court cases where couples have sought judicial review of their partner visa application refusal. These cases are particularly noteworthy because the judgments touch on issues that are either relevant to the applicant and sponsor’s circumstances, or, demonstrate in general that relationships are so very different and therefore each relationship must be considered in context. These cases include i) a relationship characterised by a history of domestic violence where the visa applicant paid all the couple’s household expenses; ii) a relationship between a man and women that looked on the surface to a business arrangement rather than a de facto relationship; and iii) a relationship where the couple did not co-habit prior to lodging the partner visa application.
Singh v Minister for Immigration & Anor [2016]
In Singh v Minister for Immigration & Anor [2016] FCCA 114 (“Singh“), the Court was required to consider the circumstances of the relationship, specifically the financial aspects of the relationship, as set out in Reg 1.09A. The evidence before the Tribunal was that the visa applicant paid for the couple’s expenses as the sponsor wife was not working. However, in paragraph 34 of the Tribunal’s reasons for decision, the Tribunal relied on “the lack of any sharing of household expenses” as a reason for not accepting that the relationship was genuine. Judge Riley provides a very good explanation of the Regulations and what is required when assessing the financial aspects of the relationship which appears at paragraphs 25 to 31 of the judgment (which you can access here: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2016/19.html)
[25] The tribunal appears to have accepted that the applicant paid all of the couple’s bills and living costs. However, in paragraph 34 of its reasons for decision, the tribunal relied on “the lack of any sharing of household expenses” as a reason for not accepting that the relationship was genuine. In my view, this statement belies a misapprehension about what the regulations required.
[28] The tribunal appears to have understood the regulations to mean that the applicant and the sponsor were each required to have in some way shared financially in the household expenses. That is patently incorrect. The regulations relevantly required that the tribunal consider: the basis of any sharing of day-to-day household expenses.
[29] The regulations do not require that there be a sharing of household expenses to establish a genuine relationship. The regulations refer to “any” sharing of household expenses. Furthermore, the regulations only require that the tribunal consider the basis of any sharing of household expenses.
[30] There are a number of bases on which genuine couples can deal with their household expenses. For example:
- they can each contribute equally or at least substantially;
- one can pay for utilities and food while the other pays the mortgage; and
- one can pay for all household expenses while the other keeps any earnings for personal use.
Judge Riley then affirmed that the Regulations require a consideration of the basis of any sharing of day-to-day household expenses:
The regulations do not require that there be a sharing of household expenses to establish a genuine relationship. The regulations refer to “any” sharing of household expenses.
Furthermore, the regulations only require that the tribunal consider the basis of any sharing of household expenses.
The Court held that the Tribunal had misdirected itself when considering the basis of any sharing of household expenses, and in doing so, misapplied the law. Also, in Singh, the Tribunal mistakenly held that ‘a relationship characterised for its duration by conflicting expectations, demands and mutual distress cannot simultaneously be a relationship in which the parties have a mutual commitment to a shared life to the exclusion of all others’. Singh is therefore good (and recent) authority for what is required when assessing the financial aspects of the relationship. Angus and Jenny do not presently have any regular or ongoing sharing of household expenses (because they currently reside in different countries) but this does not mean that the couple cannot establish a genuine relationship.
Minister for Immigration and Border Protection v Angkawijaya [2016]
In Minister for Immigration and Border Protection v Angkawijaya[2016] FCAFC5 (“Angkawijaya“), the Court was required to consider a relationship that was entered into by the parties to obtain a personal advantage on both sides. The Court found for the visa applicant because the Minister’s task under section 65 of the Act is subject to an overarching obligation imposed by reg 1.09A(2) to consider all the circumstances of the claimed de facto relationship. The Court said:
An assessment of the various matters and considerations which are relevant to the application of s 5CB and reg 1.09A necessarily involves an evaluation of those matters and considerations on the part of the relevant decision-maker, who must balance them against each other having regard to all the relevant circumstances. As Conti J stated in Jian Xin Lui v Minister for Immigration and Multicultural Affairs [2001] FCA 1437 at [23]:
In determining the propriety of one person’s commitment to a marriage, the very nature of the task requires an evaluation, based on human experience, understanding and perception of the available spectrum of potentially relevant circumstances of each particular case.
The true and only test in relation to a partner visa is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life to the exclusion of all others. The reasons for entering into that commitment are immaterial.v
The Full Federal Court of Australia found that love and affection are an optional, but not a mandatory requirement, for de facto relationships. The Court found that evidence to suggest that love is present in a de facto relationship would be relevant to the genuineness and continuing nature of the relationship, as well as to the question of there being a mutual commitment to a shared life, however, the existence or absence of these aspects of a relationship is not determinative. The Court held that the absence of love in a relationship is not necessarily fatal to the Minister’s favourable consideration of a partner visa application.
Angkawijaya is therefore good (and recent) authority for what is required when deciding if the claimed relationship satisfies the legal definition (of a de facto relationship) as prescribed under section 5CB of the Act and the assessment must include consideration of all the circumstances of the relationship including those listed under Reg 1.09A of the Regulations. The applicant and sponsor have expressed their love for another and they see their relationship as being long-term, to the exclusion of all others. They have provided ample evidence to satisfy the definition of a de facto relationship that is continuing and ongoing to the exclusion of all others.
SZOXP v Minister for Immigration and Border Protection [2015]
In SZOXP v Minister for Immigration and Border Protection[2015] FCAFC 69 (“SZOXP“) the Court was required to consider the issues of whether the Regulations require a couple to have previously lived together prior to application or in the requirement that the couple do not live separately apart on a permanent basis. The visa applicant applied for a partner visa on the basis of his de facto relationship with the sponsor. The application was refused on the basis that the applicant was not in a de facto relationship. The visa applicant applied for a review. The Tribunal found that:
- the sponsor (“Ms Yang”) was an Australian citizen;
- the appellant and Ms Yang were in a committed relationship from December 2011, and that their relationship was exclusive;
- the appellant and Ms Yang had, as required at the time of the visa application, a mutual commitment to a shared life to the exclusion of all others, and the relationship was genuine and continuing;
- the appellant and Ms Yang are devout Buddhists and share the same outlook on life;
- the appellant and Ms Yang had chosen to follow specific teachings and interpreted the Third Precept of Buddhism to mean that they should not cohabit or have sexual relations before marriage;>
- the appellant and Ms Yang had not had a sexual relationship or cohabited before their marriage on 26 November 2012; and
- the appellant and Ms Yang did not live together because they wanted to marry first, but they had not lived together after their marriage because the appellant had been in immigration detention.
The Tribunal held that there was no requirement in the Act that the parties live together before a de facto relationship can be found to exist. The Tribunal concluded that the requirements for a “de facto” relationship had been met. The Minister sought judicial review in the Federal Circuit Court overruled the Tribunal’s finding.
The Federal Court judgment provides excellent commentary about Section 5CB of the Act and we commend it to all who are required to consider and apply the relevant legislative provisions to partner visa applications. The relevant paragraphs from this judgment include paragraphs 27 to 60 which you can access here:
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC/2015/69.html
The take-home message from this judgment for Avi and Jeff is the part about living together at the same address at paragraph 39.
[39] … living together at the same address for six months or longer was to be taken to be strong evidence that the relationship is genuine and continuing (although the opposite was not true merely because the parties had not been living at the same address for six months or longer). Evidence that the parties have been living together, and the period for which they were living together, will remain relevant under s 5CB of the Migration Act for the determination of whether the relationship is genuine and continuing.
Australian common law is binding on delegates
The cases referred to above are binding on delegates, meaning delegates are not permitted to ignore these established principles when assessing an applicant’s claims and evidence.
The Federal Court of Australia held that there is no requirement under the Act for two people to live together prior to lodging an application for a Partner Visa before a de facto relationship could be found to exist.
Our conclusion is that there is no requirement that the couple previously live together in the definition of a “de facto relationship” or in the requirement that the couple “do not live separately and apart on a permanent basis”. This conclusion is based upon the plain words of s 5CB of the Migration Act. It is reinforced by the legislative history of the section and the long history of the meaning of the phrase “live separately and apart” in ecclesiastical law and matrimonial law. The conclusion is also consistent with the purpose of the provision and is not an absurd result. In contrast, the implication proposed by the Minister is difficult to express in clear words; it would distort the meaning of the text; and it would give rise to potential inconsistencies with other provisions.
SZOXP established that there is no requirement under the Act or Regulations for two people to live together prior to making an application for a partner visa application. SZOXPalso established that a couple who have lived apart still satisfy the definition of a de facto relationship if there is a reasonable likelihood that cohabitation would resume at some point in the future.
Since making the decision to start a committed relationship, the applicant and sponsor have gone about making plans for a future together in Australia and they have managed the best they can in their unique circumstances given their cultural differences (due to India’s stance on homosexuality). The couple have had to be cautious about their de facto relationship to protect the applicant against reprisals from Indian friends and family both in Australia and back in India. This was explained in the applicant’s AAT application and the Tribunal member accepted the applicant and sponsor’s oral evidence on this point.
Avi has been desperate to visit/reunite with Jeff throughout the 26 months and 7 days the application was processing. Both Avi and Jeff contacted me to discuss student and visitor visas. On each occasion I advised the applicant and sponsor that such an application would be a waste of money because there was a high probability the application would be refused (due to PIC 4014). For example, a Visitor (Tourist) Class FA Subclass 600 visa application requires an applicant to satisfy PIC 4014 (Regulations clause 600.213). PIC 4014 says:
PIC 4014 (Regulations clause 600.213)
- If the applicant is affected by the risk factor specified in subclause (4):
- the application is made more than 3 years after the departure of the person from Australia referred to in that subclause; or
- the Minister is satisfied that, in the particular case:
- compelling circumstances that affect the interests of Australia; or
- compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
- justify the granting of the visa within 3 years after the departure.
- Subject to subclause (5) a person is affected by a risk factor if the person left Australia as:
- an unlawful non-citizen; or
- the holder of a Bridging C (Class (WC), Bridging D (Class WD) or Bridging E (Class WE) visa.
The OMARA Code of Conduct
As a registered migration agent, I am bound to adhere to the OMARA Code of Conduct. I refer to these clauses which are pertinent to my professional obligations regarding unfounded visa applications.
2.3 A registered migration agent’s professionalism must be reflected in a sound working knowledge of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, and a capacity to provide accurate and timely advice.
2.3A A registered migration agent’s professionalism must be reflected in the making of adequate arrangements to avoid financial loss to a client, including the holding of professional indemnity insurance mentioned in regulation 6B for the period of the migration agent’s registration.
2.4 A registered migration agent must have due regard to a client’s dependence on the agent’s knowledge and experience.
2.6 To the extent that a registered migration agent must take account of objective criteria to make an application under the Migration Act or Migration Regulations, he or she must be frank and candid about the prospects of success when assessing a client’s request for assistance in preparing a case or making an application under the Migration Act or Migration Regulations.
2.7 A registered migration agent who is asked by a client to give his or her opinion about the probability of a successful outcome for the client’s application:
- must give the advice, in writing, within a reasonable time; and
- may also give the advice orally to the extent that the oral advice is the same as the written advice; and
- must not hold out unsubstantiated or unjustified prospects of success when advising clients (orally or in writing) on applications under the Migration Act or Migration Regulations.
2.17 If an application under the Migration Act or the Migration Regulations is vexatious or grossly unfounded (for example, an application that has no hope of success) a registered migration agent:
- must not encourage the client to lodge the application; and
- must advise the client in writing that, in the agent’s opinion, the application is vexatious or grossly unfounded; and
- if the client still wishes to lodge the application — must obtain written acknowledgment from the client of the advice given under paragraph (b).
My advice to the applicant demonstrates that I acted in accordance with my code of conduct. Considering the foregoing, the delegate’s comment that “Departmental records indicate that your sponsor has not visited you since his last visit and you have also not made any applications to visit him in Australia. Hence you have failed to provide any evidence of efforts to meet each other” is offensive to me and my reputation as a professional. It also demonstrates the delegate’s inexperience with Australian immigration law matters.
The delegate’s comment that the applicant has not made any applications to visit the sponsor in Australia is offensive to the applicant because Australia’s immigration laws were a legitimate barrier to obtaining a visa. The delegate’s comment constitutes jurisdictional error, apprehended bias and denial of procedural fairness.
Residual concerns about the relationship
If the case officer had “serious concerns” about the relationship, why did the delegate refrain from inviting both the applicant and sponsor, who were ready and willing, to participate in a telephone interview?
Comparison of other partner visa applications handled by this processing office.
The table below is a summary of 30 case studies, specifically the key information extracted from a forum thread dedicated to partner visa applications, handled by the processing office. Interesting observations about this anecdotal evidence includes:
- the entries in red text represent the longest processing times for this sample. All four applications were approved. Three out of four confirmed they attended an interview.
- 28june2016 took 15 months and 11 days to finalise. The next highest processing time after this was 10 months and 27 days for ishavora.
- most of the cases were finalised well below the published global processing times.
The total time taken to finalise the applicant’s de facto partner visa application was 26 months and 7 days. This represents an additional 8 months compared to the longest processing time from the sample. When you compare these statistics with the applicant’s case, it becomes all too clear that something has gone awry.
26 months and 7 days processing and no invitation to attend an interview, no call or email to the form 888 witnesses, no natural justice letter sent to the applicant. What has the processing office been doing for 26 months and 7 days?
Raise your hand if you think the Australian High Commission in New Delhi, India has denied Avi and Jeff procedural fairness.
Remember the 30 case studies, the financial evidence joint bank account statements, the registered relationship evidence, relationship statements confirming a committed relationship since 2009? It 2018 now people! That’s a 9-year relationship. Raise your hand if you think the delegate at Australian High Commission in New Delhi, India has displayed apprehended bias in his assessment of the law, facts and evidence.
If heterosexual couples were interviewed and simple cases were finalised within 5 months, what did the Australian High Commission in New Delhi, India do during the 26 months and 7 days the application was sat processing? Raise your hand if you think the delegate at Australian High Commission in New Delhi, India has displayed sexual orientation discrimination.
We have a go-fund-me campaign running to help Avi and Jeff fight the Australian Department of Home Affairs.
Please help spread the word and please give generously: https://www.gofundme.com/a-gay-love-story-gone-wrong.
| No. | Forum ID | Heterosexual couple (Y/N) | Date of lodgement (dol) | Processing time | Interviewed (Y/N) | Visitor visa application (Y/N) | Complex case (Y/N) |
| 1 | 9June2016 | YES | 2016 June 09 | 18 months 19 days | YES. BOTH. | YES. | |
| 2 | 28june2016 | 2016 June 28 | 15 months 11 days | YES. | YES. REFUSED. | NO. | |
| 3 | 29Sept | YES. | 16 months 4 days | ||||
| 4 | Amy Sharma | 2016 November 23 | YES. | ||||
| 5 | Apsingh13 | YES. | 2017 May 30 | 8 months 25 days | |||
| 6 | ergonomics23 | YES. | 2016 February 12 | YES. BOTH. | YES. | ||
| 7 | Happy birthday | 2016 May | |||||
| 8 | Hsk | 2015 December 24 | 18 months 11 days | YES | |||
| 9 | Iqbal singh | 2017 May 12 | 9 months 12 days | ||||
| 10 | ishavora | 2016 November 10 | 10 months 27 days | YES. GRANTED. | NO. | ||
| 11 | jaalo | 2017 April 16 | 5 months 5 days | ||||
| 12 | Kamal | YES. | 2017 December 5 | YES. REFUSED. | YES. | ||
| 13 | Kaz12 | YES. | |||||
| 14 | Jason8829 | YES. | |||||
| 15 | Lexi2000 | YES. | 2017 April 26 | 8 months 25 days | YES. | ||
| 16 | Lovebirds | 2016 August 1 | 7 months 28 days | YES. | YES. | ||
| 17 | Maheshvarmas | 2017 April 13 | 6 months 20 days | YES. GRANTED. | |||
| 18 | Mar17 | NO. High chance refusal. | |||||
| 19 | Nands | 2017 April 6 | 8 months 27 days | YES. BOTH. | ASSUME YES, GRANTED. | ||
| 20 | Oscar85 | YES. | 2016 August 3 | YES. REFUSED 2 times. | |||
| 21 | Rakesh | YES. | 2017 January 13 | 5 months 25 days | |||
| 22 | reddraghu | 2016 April 5 | 9 months 22 days | ||||
| 23 | RIWATY | YES. | |||||
| 24 | Romana | YES. | 2017 April 21 | YES. REFUSED. | |||
| 25 | Sam0789 | 2016 July 14 | 8 months 14 days | YES. GRANTED. | |||
| 26 | Samy2016 | YES. | |||||
| 27 | SC461 | 2017 April 10 | YES. | ||||
| 28 | Superman89 | YES. REFUSED. | YES. | ||||
| 29 | Visawait2016 | 2016 July 4 | 7 months 20 days | ||||
| 30 | winSP81 | 2017 September 13 | 5 months 9 days |