Federal Court. Do 476A of the Migration Act 1958 (Cth) and s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) favour a finding that the purity of the legislation ordinarily requires appellants to have a layer of appellate scrutiny? If so, can that purity be sacrificed if the grounds of judicial review expose no error, so as to avoid a "tortuous route"? If so, is it relevant to the determination of whether the sacrifice should be made that the Minister chose that tortuous route?
A mother and her two children arrived in Australia on visitor visas, after which each child lodged a subclass 500 (student) visa application and the mother lodged a subclass 590 (student guardian) visa application. The children's student visa applications depended on the success of their mother's student guardian visa application.
A delegate found that cl 590.215 of Schedule 2 to the Migration Regulations 1994 (Cth) was not satisfied, resulting in the refusal of the student guardian visa. Consequently, the delegate refused to grant the student visas.
Each of them (mother and children), the appellants, applied to the Tribunal for review of the delegate's decisions. The Tribunal affirmed each of the three delegate's decision. They then unsuccessfully applied to the Federal Circuit Court for judicial review of the Tribunal's decision and eventually filed one notice of appeal each in the Federal Court (FCA). The only ground of appeal in each case was that the primary judge gave inadequate reasons.
The Minister filed a notice of contention in each appeal, arguing that, if the primary judge gave inadequate reasons, the Federal Court should determine the merits of the judicial review applications for itself anyway, instead of remitting the matters to the now Federal Circuit and Family Court for re-determination according to law.
Some of the questions to the FCA were as follows:
Question 1: Do s 476A of the Migration Act 1958 (Cth) and s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) favour a finding that the purity of the legislation ordinarily requires appellants to have a layer of appellate scrutiny, which goes against the notice of contention?
Question 2: If the answer to Question 1 is 'yes', can that purity be sacrificed if the grounds of judicial review expose no error, so as to avoid a "tortuous route"?
Question 3: If the answer to Question 2 is 'yes', is it relevant to the determination of whether the sacrifice should be made that the Minister chose that tortuous route?
The FCA answered those questions as follows: