Federal Court. If the department acts upon a visa application withdrawal request, does that act amount to a 'decision', with the result that the Federal Circuit Court has jurisdiction to review such a decision? Might there be cases where a visa application has not been validly withdrawn? If so, will the appropriate remedy will be mandamus to compel the Minister to consider the application? Will the withdrawal of a visa application be invalid and ineffective if there was no genuine intention to withdraw the application?
The Federal Court (FCA) described the relevant facts as follows:
3 On 8 December 2017, the appellant applied for a Partner (Temporary) (Class UK, Subclass 820) Visa and Partner (Residence) (Class BS subclass 801) Visa (collectively, the Visa Application). On 2 August 2018, a delegate of the respondent granted the appellant the Class UK Visa.
4 On 26 August 2019, the respondent sent a letter to the appellant advising it had received information that her relationship with her partner (who was the sponsor of the Visa Application) had ended. Amongst other things, the letter sent to the appellant also advised that she could withdraw her Visa Application by notifying the respondent in writing. A blank “Form 1446 - Withdrawal of a visa application” form was enclosed. The accompanying information to the Form stated that no further action will be taken on a visa application that has been withdrawn and any bridging visa granted as part of the withdrawn application will cease to be in effect 35 calendar days after the date of the withdrawal.
5 On 26 August 2019, the appellant completed and returned the Form to the respondent.
6 On 28 August 2019, the respondent advised the appellant in writing that her Visa Application had been withdrawn.
7 On 29 September 2019, the appellant’s migration agent wrote to the respondent asking them to reconsider their acceptance of the appellant’s withdrawal form on the basis that she had signed and returned the form without knowing the real consequences. There was no response from the respondent.
Some of the questions to the FCA were as follows:
Question 1: Section 49(2) of the Migration Act 1958 (Cth) provides that "an application that is withdrawn is taken to have been disposed of". If the department acts on a visa application withdrawal request, does that act amount to a 'decision', with the result that the Federal Circuit Court (FCCA) has jurisdiction to review such a decision? Or is it by the force of the statute that the result follows, without there being a 'decision'?
Question 2: Can it be said that the respondent failed or refused to consider the appellant’s visa application and that such a failure or refusal constituted a 'decision', thus giving the FCCA jurisdiction to review it?
Question 3: Might there be cases where a visa application has not been validly withdrawn?
Question 4: If the answer to Question 3 is 'yes', "the appropriate remedy will be mandamus to compel the [Minister] to consider the application"?
Question 5: Can it be said that "the withdrawal of a visa application will be invalid and ineffective if there was no genuine intention to withdraw the application"?
The FCA answered those questions as follows:
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