Federal Court. Did the Tribunal err in concluding that the Minister retained a discretion under s 65 to grant a partner visa even if the applicant did not satisfy the special return criteria?
The Tribunal said as follows in the context of reviewing a decision under s 501CA(4) of the Migration Act 1958 (Cth):
It can also be accepted that if this Tribunal does [does] revoke the mandatory cancellation decision (s 501(3A) of the Act), then the Applicant would not satisfy the abovementioned Special Return Criteria. But that would not absolutely preclude the Applicant from possibly obtaining another visa. As noted in the abovementioned Regulation 5001(c)(ii), the Minister, acting personally, could theoretically grant a permanent visa to the Applicant. He has an application for a partner visa currently before the Minister. The Applicant contends that a decision by this Tribunal refusing to revoke the s 501CA(4) decision ‘will mean his application [for a partner visa] is bound to fail.’
This is not necessarily the case or cannot be known with any certainty. This is because the Minister’s power to grant the partner visa is regulated by s 65 of the Act. Section 65(1)(a)(i)-(iv) stipulates four conjunctive criteria. If all four of those criteria are met, then the Minister’s discretion is engaged. Section 65 of the Act expresses that discretion in binary terms – that is, depending on the Minister’s level of satisfaction about whether a visa applicant satisfies the four conjunctive criteria, the Minister can then grant or refuse to grant the requested visa.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Did the Tribunal err in concluding that the Minister retained a discretion under s 65 to grant the partner visa even if the applicant did not satisfy the special return criteria?
Question 2: Can it be said that the only power to which special return criterion 5001 in Schedule 5 to the Migration Regulations 1994 (Cth) could be referring in this context was the power under s 351 of the Migration Act 1958 (Cth)?
Question 3: If the answer to Question 1 is 'yes', was the error immaterial in the sense that, by reason of special return criterion 5001(c)(ii), the applicant’s partner visa application was not technically bound to fail, as it was theoretically possible that the applicant could be granted a permanent visa by the Minister under s 351 before the partner visa came to be determined?
Question 4: In circumstances where the applicant did not demonstrate to the Tribunal that it was rare for the Minister to exercise the power in s 351 to grant a permanent visa and did not identify or adduce any evidence before the Tribunal about the visas which could have been obtained by him, was the Tribunal’s reference to the theoretical possibility of the applicant being granted a permanent visa legally unreasonable?
Question 5: Was it outside of the Tribunal's decision-making scope under s 501CA(4) to consider special return criterion 5001?
The FCA answered those questions as follows: