Chhetri v Minister for Immigration and Border Protection [2019] FCA 1026

Chhetri v Minister for Immigration and Border Protection [2019] FCA 1026

The primary judge did not err in refusing to infer that the AAT relied on PAM 3. The AAT expressly stated that its consideration of compelling reasons was unfettered and that it had not had regard to the policy, and the appellant did not provide persuasive, compelling or cogent reasons to reject that statement. Similarities between PAM 3 and the AAT's reasoning were unsurprising because the AAT was responding to the appellant's claims. It was therefore unnecessary to determine whether PAM 3 was ultra vires, and the AAT was not shown to have misunderstood or misapplied cl 820.211(2)(d)(ii).

Jurisdiction
Australia
Judgment Date
05 July 2019
Procedural Posture
Migration Appeal From Federal Circuit Court Judicial Review Decision Concerning Refusal of Partner (temporary) (class Uk) Subclass 820 Visa / Appeal to the Federal Court of Australia From Chhetri V Minister for Immigration and Border Protection [2019] FCCA 298
Outcome
Appeal dismissed with costs.
Legal Topics
['partner Visa' 'subclass 820 Visa' 'schedule 3 Public Interest Criteria' 'compelling Reasons Waiver' 'procedures Advice Manual (pam 3)' 'jurisdictional Error' 'judicial Review' 'unlawful Non Citizen']
['migration Law' 'administrative Law'] ['partner Visa' 'subclass 820 Visa' 'schedule 3 Public Interest Criteria' 'compelling Reasons Waiver' 'procedures Advice Manual (pam 3)' 'jurisdictional Error' 'judicial Review' 'unlawful Non Citizen']

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Procedural Posture

Migration Appeal From Federal Circuit Court Judicial Review Decision Concerning Refusal of Partner (temporary) (class Uk) Subclass 820 Visa / Appeal to the Federal Court of Australia From Chhetri V Minister for Immigration and Border Protection [2019] FCCA 298

Legal Issues

  1. 1 ["Whether the Federal Circuit Court erred in rejecting the contention that, despite the AAT's express disavowal, PAM 3 informed the AAT's decision." 'Whether PAM 3 was ultra vires as an impermissible fetter or restriction on the exercise of the waiver power under cl 820.211(2)(d)(ii).' 'Whether the AAT misunderstood or misapplied the test for compelling reasons for not applying Schedule 3 criteria.']

Ratio Decidendi

The primary judge did not err in refusing to infer that the AAT relied on PAM 3. The AAT expressly stated that its consideration of compelling reasons was unfettered and that it had not had regard to the policy, and the appellant did not provide persuasive, compelling or cogent reasons to reject that statement. Similarities between PAM 3 and the AAT's reasoning were unsurprising because the AAT was responding to the appellant's claims. It was therefore unnecessary to determine whether PAM 3 was ultra vires, and the AAT was not shown to have misunderstood or misapplied cl 820.211(2)(d)(ii).

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs, as agreed or assessed."]