Decision-makers required to explicitly refer to relevant provisions?

Federal Court: Appellant did not satisfy cl 602.212(6)(b). Thus, cl 602.213(3) & (5) required satisfaction of cl 3001. DHA refused application, as it was lodged after 28-day deadline and thus did not satisfy cl 3001. DHA's decision did not explicitly refer to cl 602.212(6). AAT affirmed decision, but failed to explicitly refer to which parts of cl 602.212(6) or cl 3001 were not satisfied. Did AAT's failure to explicitly mention those parts constitute failure to give proper consideration to the issues before it? If  AAT makes erroneous reference to a written submission that was not in fact provided to it, is that, without more, a jurisdictional error? What is a "substantive temporary visa"?

This judgement concerns an old version of the provisions in Schedule 2 of the Migration Regulations 1994 (Cth) for subclass 602 (medical) visa applications.

That version referred to a "substantive temporary visa", which was not defined in the Act or Regulations. The same applies to the current version, although the current version is irrelevant for present purposes.

The Appellant applied for a subclass 602 visa. The relevant provisions included the following parts in Schedule 2 of the Regulations:

602.212

(1)  The requirements in one of subclauses (2) to (8) are met.

...

(6)  All of the following requirements are met:

...

(b)  the applicant has turned 50; ...

600. 213

(3)  Subclauses (4) and (5) apply if:

...

(c)  the requirements described in subclause 602.212(6) are not met in relation to the applicant.

...

(5)  The applicant satisfies Schedule 3 criteria 3001 ...

The Appellant was less than 50 at the relevant time and applied for the 602 visa more than 28 days after he had last held a substantive visa.

The delegate's reasons for refusing the visa application explicitly referred to cl 3001 and cl 602.213, but not to cl 602.212(6).

The Appellant then applied for merits review of the delegate's decision to the Tribunal, which affirmed that decision.

The Tribunal's reasons:

  • failed to explicitly refer to which parts of cl 602.212(6) and cl 3001 were not satisfied;
  • made reference to the fact that the Appellant had provided it on a given date with written submissions and supporting documents.

The Appellant applied to the Federal Circuit Court (FCCA) for judicial review of the Tribunal's decision and the FCCA upheld that application.

The Minister eventually appealed the FCCA's decision to the Federal Court (FCA), before which it could not be "determined on the evidence whether or not the [above-mentioned] submissions and supporting documents existed".

The questions to the Federal Court (FCA) were as follows:

Question 1: What is a "substantive temporary visa"?

Question 2: Did the Tribunal's failure to explicitly mention which parts of cll 602.216(6) and 3001 of Schedules 2 and 3 of the Migration Regulations 1994 (Cth) were not satisfied support the conclusion that it did not to give proper, genuine and realistic consideration to the issues before it?

Question 3: Did the delegate's failure to explicitly refer to cl 602.212(6) support the conclusion that the Tribunal did not give proper, genuine and realistic consideration to the issues before it?

Question 4: If the Appellant did not in fact provide the Tribunal with the above-mentioned written submissions and supporting documents, did the Tribunal's statement to the contrary constitute, without more, a jurisdictional error?

The FCA answered those questions as follows:

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