Tam v Minister for Immigration and Border Protection [2019] FCA 780

Tam v Minister for Immigration and Border Protection [2019] FCA 780

The appeal failed because the Federal Circuit Court did not misunderstand its jurisdiction, the only decision before the Tribunal was the re-notified refusal of the Partner–Permanent visas, and the Tribunal was not authorised or required to review the refusal of the Partner–Temporary visas. Any defect in notification under s 66 did not invalidate the delegate's decision and, in any event, could not enlarge the Tribunal's review to include a decision already reviewed. The appellants could not satisfy the essential criterion for the Partner–Permanent visas because Ms Tam did not hold, and had never held, a Subclass 820 visa. The non-disclosure of the s 375A certificate was immaterial...

Jurisdiction
Australia
Judgment Date
29 May 2019
Procedural Posture
Migration Appeal From Federal Circuit Court Dismissal of Judicial Review Application / Appeal to the Federal Court of Australia
Outcome
Appeal dismissed.
Legal Topics
['partner (temporary) (class Uk) (subclass 820) Visa' 'partner (residence) (class Bs) (subclass 801) Visa' 'merits Review' 'judicial Review' 'jurisdictional Error' 'privative Clause Decisions' 'notification of Visa Refusal' 'procedural Fairness' 's 375 a Certificate']
['migration Law' 'administrative Law' 'constitutional Law'] ['partner (temporary) (class Uk) (subclass 820) Visa' 'partner (residence) (class Bs) (subclass 801) Visa' 'merits Review' 'judicial Review' 'jurisdictional Error' 'privative Clause Decisions' 'notification of Visa Refusal' 'procedural Fairness' 's 375 a Certificate']

Case Brief

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Procedural Posture

Migration Appeal From Federal Circuit Court Dismissal of Judicial Review Application / Appeal to the Federal Court of Australia

Legal Issues

  1. 1 ['Whether the Federal Circuit Court misunderstood its jurisdiction in relation to review of migration decisions and s 474 of the Migration Act 1958 (Cth).' 'Whether the Administrative Appeals Tribunal was required to review the refusal of both the Partner–Temporary visa and the Partner–Permanent visa after re-notification of the refusal of the Partner–Permanent visa.' 'Whether any defect in notification under s 66 of the Migration Act 1958 (Cth) affected the validity or scope of the decision under review.' 'Whether non-disclosure of a s 375A certificate caused a denial of procedural fairness or jurisdictional error.']

Ratio Decidendi

The appeal failed because the Federal Circuit Court did not misunderstand its jurisdiction, the only decision before the Tribunal was the re-notified refusal of the Partner–Permanent visas, and the Tribunal was not authorised or required to review the refusal of the Partner–Temporary visas. Any defect in notification under s 66 did not invalidate the delegate's decision and, in any event, could not enlarge the Tribunal's review to include a decision already reviewed. The appellants could not satisfy the essential criterion for the Partner–Permanent visas because Ms Tam did not hold, and had never held, a Subclass 820 visa. The non-disclosure of the s 375A certificate was immaterial...

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal be dismissed.']