Mansour v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1877

Mansour v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1877

The application was dismissed because the proposed appeal had no reasonable prospects of success. The s 375A certificate and documents related to an earlier subclass 820 review and had no possible relevance to the later subclass 801 review, and there was no indication the Tribunal considered them. Mohammed was distinguishable because, unlike in that case, the earlier decision refusing the applicant's subclass 820 visa application had not been set aside and stood as a valid adverse determination. The applicant was not and had never been the holder of a subclass 820 visa, did not meet the legal criteria for a subclass 801 visa, and the Tribunal had no residual discretion to grant the visa....

Jurisdiction
Australia
Judgment Date
15 November 2019
Procedural Posture
Migration Application for Extension of Time and Leave to Appeal From a Judgment of the Federal Circuit Court of Australia / Federal Court Application for Extension of Time and Leave to Appeal
Outcome
Application for extension of time and leave to appeal dismissed; applicant to pay the first respondent's costs.
Legal Topics
['partner Visa Subclass 820' 'partner Visa Subclass 801' 'jurisdictional Error' 'procedural Fairness' 'section 375 a Certificate' 'legal Unreasonableness' 'extension of Time and Leave to Appeal']
['migration' 'administrative Law' 'judicial Review' 'appeals'] ['partner Visa Subclass 820' 'partner Visa Subclass 801' 'jurisdictional Error' 'procedural Fairness' 'section 375 a Certificate' 'legal Unreasonableness' 'extension of Time and Leave to Appeal']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Migration Application for Extension of Time and Leave to Appeal From a Judgment of the Federal Circuit Court of Australia / Federal Court Application for Extension of Time and Leave to Appeal

Legal Issues

  1. 1 ['Whether the applicant should be granted an extension of time and leave to appeal from the Federal Circuit Court judgment.' 'Whether the proposed appeal had reasonable prospects of success by identifying appealable error in the Federal Circuit Court judgment or jurisdictional error by the Tribunal.' 'Whether non-disclosure of a certificate and documents under s 375A of the Migration Act 1958 (Cth) caused procedural unfairness or jurisdictional error.' 'Whether Minister for Immigration and Border Protection v Mohammed [2019] FCAFC 49 assisted the applicant in relation to refusal of a subclass 801 visa where he was not the holder of a subclass 820 visa.' 'Whether the Tribunal had any residual discretion to grant a subclass 801 visa despite the applicant not meeting the legal criteria.']

Ratio Decidendi

The application was dismissed because the proposed appeal had no reasonable prospects of success. The s 375A certificate and documents related to an earlier subclass 820 review and had no possible relevance to the later subclass 801 review, and there was no indication the Tribunal considered them. Mohammed was distinguishable because, unlike in that case, the earlier decision refusing the applicant's subclass 820 visa application had not been set aside and stood as a valid adverse determination. The applicant was not and had never been the holder of a subclass 820 visa, did not meet the legal criteria for a subclass 801 visa, and the Tribunal had no residual discretion to grant the visa....

Court Disposition

Application for extension of time and leave to appeal dismissed; applicant to pay the first respondent's costs.

Orders

  • ['The Application for extension of time and leave to appeal filed on 11 October 2016 be dismissed.' "The applicant pay the first respondent's costs."]