Federal Court. The Tribunal obtained the sponsor’s movements record after the hearing and took that evidence into account in affirming the decision without giving the appellant an opportunity to be heard about the evidence of the sponsor’s travel and the couple’s time apart in relation to whether compelling reasons existed. The movement records had a direct bearing on the veracity of the appellant’s "compelling reasons" claim. Did that constitute a failure to comply with ss 359A or 360 of the Migration Act 1958 (Cth)?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Is a genuine and continuing relationship between a subclass 820 visa applicant and their sponsor capable of being relevant to the question of whether "compelling reasons” exist to not apply the criteria in Schedule 3 of the Migration Regulations 1994 (Cth)?
Question 2: The Tribunal obtained the sponsor’s movements record after the hearing and took that evidence into account in affirming the decision without giving the appellant an opportunity to be heard about the evidence of the sponsor’s travel and the couple’s time apart in relation to whether compelling reasons existed. The movement records had a direct bearing on the veracity of the appellant’s "compelling reasons" claim. Did that constitute a failure to comply with s 359A of the Migration Act 1958 (Cth)?
Question 3: Did the fact that the Tribunal denied appellant an opportunity to be heard about the evidence of the sponsor’s travel and the couple’s time apart mean that the Tribunal's invitation to a hearing was an empty shell or hollow gesture, with the result that the Tribunal failed to comply with s 360?
The FCA answered those questions as follows: