Scorgie v Minister for Immigration and Citizenship [2008] FCAFC 101

Procedural Posture

Migration Appeal and Judicial Review Concerning Refusal of a Spousal Visa / Appeal to the Full Court From Orders Dismissing an Appeal From the Administrative Appeals Tribunal and Dismissing an Application for Judicial Review

Legal Issues

1. 1 ['Whether the Administrative Appeals Tribunal denied procedural fairness or failed to comply with s 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth) by referring to Re Howard and materials cited in earlier AAT decisions without giving the appellant notice or an opportunity to inspect and make submissions on those materials.' 'Whether the Administrative Appeals Tribunal had regard to publications or earlier AAT materials in reaching its decision.' "Whether the Administrative Appeals Tribunal took into account an irrelevant consideration by referring to the delegate's views about Chinese protection visa applicants, spouse migration and later reconciliation with former spouses." 'Whether the primary judge erred in dismissing the judicial review application and appeal.']

Ratio Decidendi

The appeal failed because the AAT's reference to Re Howard did not show that it had regard to, or relied on, the publications and earlier AAT decisions now complained of when reaching its decision. Those materials did not play any part in the AAT's decision, so s 39(1) of the AAT Act and procedural fairness did not require that they be disclosed for inspection or submissions. The AAT also did not take into account an irrelevant consideration: the delegate's comments were addressed only in the context of general deterrence, the AAT did not treat the appellant's wife's marriage as sham, and it based its conclusion on her sustained abuse of the migration system and the deterrent effect...

Court Disposition

Appeal dismissed with costs.

Orders

• ['The appeal be dismissed.' "The appellant pay the first respondent's costs."]