Le v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1547

Le v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1547

The husband's international movement records were not neutral. They directly disclosed repeated travel in and out of Australia and extended absences from Australia, which on their face undermined the appellant's claim of a genuine and continuing relationship and her claim that there were compelling reasons to waive Schedule 3 criteria. Because the Tribunal obtained the records after the hearing, did not put them to the appellant, and used them critically in assessing relationship duration and emotional support, it failed to comply with ss 359A and 359AA and breached s 360 of the Migration Act 1958 (Cth).

Jurisdiction
Australia
Judgment Date
07 December 2023
Procedural Posture
Migration Appeal From a Federal Circuit and Family Court of Australia Decision Dismissing Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Partner (temporary) (class Uk) Visa / Appeal to the Federal Court of Australia; Appeal Allowed and Parties Directed to File Proposed Orders
Outcome
Appeal allowed.
Legal Topics
['partner Visa Refusal' 'schedule 3 Criteria Waiver' 'administrative Appeals Tribunal Review' 'disclosure of Adverse Information' 'international Movement Records' 'sections 359 AA, 359 a and 360 of the Migration Act 1958 (cth)']
['migration Law' 'administrative Law' 'procedural Fairness'] ['partner Visa Refusal' 'schedule 3 Criteria Waiver' 'administrative Appeals Tribunal Review' 'disclosure of Adverse Information' 'international Movement Records' 'sections 359 Aa, 359 a and 360 of the Migration Act 1958 (cth)']

Case Brief

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Procedural Posture

Migration Appeal From a Federal Circuit and Family Court of Australia Decision Dismissing Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Partner (temporary) (class Uk) Visa / Appeal to the Federal Court of Australia; Appeal Allowed and Parties Directed to File Proposed Orders

Legal Issues

  1. 1 ["Whether the Tribunal failed to comply with ss 359A and 359AA of the Migration Act 1958 (Cth) by not giving the appellant clear particulars of her husband's international movement records and inviting comment or response." "Whether the appellant's husband's travel movement records constituted information within the meaning of ss 359AA and 359A of the Migration Act 1958 (Cth)." "Whether the Tribunal breached s 360 of the Migration Act 1958 (Cth) by obtaining the husband's movement records after the hearing and using them without affording the appellant an opportunity to be heard."]

Ratio Decidendi

The husband's international movement records were not neutral. They directly disclosed repeated travel in and out of Australia and extended absences from Australia, which on their face undermined the appellant's claim of a genuine and continuing relationship and her claim that there were compelling reasons to waive Schedule 3 criteria. Because the Tribunal obtained the records after the hearing, did not put them to the appellant, and used them critically in assessing relationship duration and emotional support, it failed to comply with ss 359A and 359AA and breached s 360 of the Migration Act 1958 (Cth).

Court Disposition

Appeal allowed.

Orders

  • ['Within seven days from the date of these orders, the parties confer and file proposed agreed orders giving effect to the reasons of the Court. If there is disagreement between the parties, within seven days from the date of these orders, each party is to file separate proposed orders and written submissions of no...