El Jejieh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1103

El Jejieh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1103

The appeal was allowed because the Tribunal committed material jurisdictional errors: it failed to give adequate procedural fairness concerning s 375A and s 376 certificates; it left material documents out of account because of an invalid s 375A notification; it failed to give the appellant a sufficient opportunity under s 360 to address the issue whether the spousal relationship had ever been genuine; and it misconstrued cl 100.221(4) by failing to consider whether the appellant satisfied the family violence criterion despite holding a Subclass 309 visa and claiming family violence.

Jurisdiction
Australia
Judgment Date
03 August 2020
Procedural Posture
Migration Appeal From Decision of the Federal Circuit Court of Australia Dismissing Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Visa Application / Appeal
Outcome
Appeal allowed with costs; Federal Circuit Court orders set aside; Tribunal decision set aside and review remitted to the Administrative Appeals Tribunal differently constituted for determination according to law.
Legal Topics
['partner (migrant) (class Bc) (subclass 100) Visa' 'non Disclosure Certificates Under Ss 375 a and 376 of the Migration Act 1958 (cth)' 'jurisdictional Error' 'materiality' 'opportunity to Give Evidence and Present Arguments Under S 360 of the Migration Act 1958 (cth)' 'family Violence Criterion in Cl 100.221(4) of Sch 2 to the Migration Regulations 1994 (cth)']
['migration Law' 'administrative Law' 'judicial Review' 'procedural Fairness'] ['partner (migrant) (class Bc) (subclass 100) Visa' 'non Disclosure Certificates Under Ss 375 a and 376 of the Migration Act 1958 (cth)' 'jurisdictional Error' 'materiality' 'opportunity to Give Evidence and Present Arguments Under S 360 of the Migration Act 1958 (cth)' 'family Violence Criterion in Cl 100.221(4) of Sch 2 to the Migration Regulations 1994 (cth)']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Migration Appeal From Decision of the Federal Circuit Court of Australia Dismissing Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Visa Application / Appeal

Legal Issues

  1. 1 ["Whether the Tribunal's non-disclosure or inadequate disclosure of s 375A certificates and the revocation of one such certificate denied procedural fairness and amounted to jurisdictional error." 'Whether an invalid notification that s 375A applied to documents was material because the Tribunal left relevant documents out of account.' "Whether the Tribunal's non-disclosure of a s 376 certificate denied the appellant the opportunity to seek disclosure under s 376(3)(b) and amounted to jurisdictional error." 'Whether the Tribunal breached s 360 of the Migration Act 1958 (Cth) by failing to alert the appellant that the genuineness of the spousal relationship from the outset was an issue on review.' "Whether the Tribunal misconstrued cl 100.221(4) of Sch 2 to the Migration Regulations 1994 (Cth) by declining to consider the appellant's family violence claim after finding there had never been a genuine spousal relationship."]

Ratio Decidendi

The appeal was allowed because the Tribunal committed material jurisdictional errors: it failed to give adequate procedural fairness concerning s 375A and s 376 certificates; it left material documents out of account because of an invalid s 375A notification; it failed to give the appellant a sufficient opportunity under s 360 to address the issue whether the spousal relationship had ever been genuine; and it misconstrued cl 100.221(4) by failing to consider whether the appellant satisfied the family violence criterion despite holding a Subclass 309 visa and claiming family violence.

Court Disposition

Appeal allowed with costs; Federal Circuit Court orders set aside; Tribunal decision set aside and review remitted to the Administrative Appeals Tribunal differently constituted for determination according to law.

Orders

  • ['The name of the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.' 'The appeal be allowed.' 'The orders made by the Federal Circuit Court of Australia on 2 April 2019 be set aside and in lieu thereof it be ordered that the application for judicial...