Fernandez v Minister for Immigration and Border Protection [2015] FCA 1265

Procedural Posture

Migration Appeal From the Federal Circuit Court of Australia Concerning Judicial Review of a Migration Review Tribunal Visa Refusal Decision / Appeal to the Federal Court of Australia

Legal Issues

1. 1 ['Whether the Tribunal erred by treating the appellant as sponsored by only one person at the time of the visa application.' 'Whether the singular references in the Migration Regulations 1994 (Cth) should be read as including the plural so that the appellant could rely on financial support from two nieces.' 'Whether the appellant was wholly or substantially reliant on the sponsor for financial support to meet basic needs for food, clothing and shelter for the required period.' "Whether the Tribunal's treatment of the appellant's request for referral to the Minister for possible exercise of powers under s 351 of the Migration Act 1958 (Cth) involved reviewable error."]

Ratio Decidendi

The appeal failed because the Tribunal found as a fact that, at the time of the visa application, the appellant had only one sponsor, Mrs Arvelo, and the later involvement of Ms Lacroix could not satisfy the time-of-application sponsorship criterion. On the Tribunal's findings the appellant was not predominantly reliant on Mrs Arvelo for financial support to meet his basic needs. The Tribunal's handling of the request for referral for Ministerial intervention under s 351 did not constitute material jurisdictional error because such referral was not shown to be part of the Tribunal's statutory review function and the PAM3 guidelines were not binding.

Court Disposition

Notice of contention upheld; appeal dismissed with costs.

Orders

• ['The name of the second respondent be amended to read "Administrative Appeals Tribunal".' 'The notice of contention be upheld and the appeal dismissed, with costs.']