Makhmudkhodjaeva v Minister  FCAFC 88 is a recent Full Court case about refusal to approve a sponsorship in relation to a child visa. If the child’s mother had a partner (either de facto or by marriage) then that person (Mr M) would need to meet the character test. The interesting issue in this case is that the mother denied she was in de facto relationship despite the facts that:
- she and Mr M shared a household together (and lived at the same address);
- Mr M provided financial support;
- Mr M was the father of two of her children.
It sounds like a de facto relationship doesn’t it? Those “bare facts” didn’t reveal that Mr M was in prison serving a seven year sentence. Once the fact of imprisonment came to light, the Full Court found that:
- the Tribunal should have explored the nature of the relationship and considered the criteria in section 5CB(2) Migration Act. The factors in that section include whether there is a mutual commitment to a shared life to the exclusion of all others, whether that relationship, was genuine and continuing and whether they did not live separately and apart on a permanent basis;
- however, the Tribunal only looked at factors 1-3 above (and didn’t dig deeper);
- The Court found that: “Depending on the factual situation of a relationship between parties, a decision-maker could regard a prison sentence as being merely a temporary interruption for its duration in what is a mutual commitment to a shared life to the exclusion of all others in a genuine and continuing relationship or as having precipitated or evidenced a permanent separation.“
The ultimate result was that this failure to consder 5CB was a jurisdictional error, the appeal was successful and the matter was remitted to the Tribunal to be considered in accordance with the law.
Creative commons acknowledgement for the photograph.