ss 338 & 347 satisfied, yet not a Part 5-reviewable decision?

By
Sergio Zanotti Stagliorio
-

Federal Court. A delegate refused to grant the Applicant a subclass 309 (partner) visa under s 501 of the Migration Act 1958 (Cth). Can it be said that the refusal is not a Part 5-reviewable decision, with the result that s 359AA did not apply to the review? If so, was the Tribunal nevertheless required to comply with the well-established common law principle of procedural fairness?

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

Question 1: Can it be said that the refusal is not a Part 5-reviewable decision, with the result that s 359AA of the Migration Act 1958 (Cth) did not apply to the review?

Question 2: If the answer to Question 1 is 'yes', was the Tribunal nevertheless required to comply with the well-established common law principle of procedural fairness?

The FCA answered those questions as follows:

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