Sub 820/801: what happens if DHA resends refusal letter

Federal Court: when a person makes an application for visa subclasses 820 & 801 at the same time & place, does it require a  single decision or one decision for each subclass? If the decision record does not expressly refer to subclass 801, can it in some circumstances nevertheless, in substance, include that subclass? Can the Department resend a refusal notification letter for subclass 801? If so, does that enliven the Tribunal's power to review subclasses 820 and/or 801 once again?

Summary and discussion

The Appellant made a partner visa application for subclasses 820 and 801 at the same time and place. The Department sent the Appellant a refusal letter pursuant to s 66(2) of the Migration Act 1958. That letter made several express references to subclass 820 but no express reference to subclass 801. White J said the following about that:

22    The subject line in this letter suggested that the notification related only to the refusal of the [subclass 820] visa. However, the first delegate referred in the opening paragraph to the application for a “combined” visa [i.e. both subclasses 820 and 801]...

The Appellant made an application to the AAT for review of the Department's decision. The AAT affirmed that decision. It was not clear to  the Federal Court (FCA) whether the AAT had affirmed the visa 820 decision, the visa 801 decision or both.

The Department then sent the Appellant a new letter, informing the Appellant that she had not been correctly notified of the 801 visa decision. To avoid doubt, there was no suggestion that the invalidity of the original notification invalidated the original decision (see s 66(4) of the Act) nor that the new letter was re-notifying the Appellant about the 820 visa refusal.

Based on that re-notification, the Appellant made another application to the Tribunal for the review of the 801 refusal. The AAT affirmed the 801 refusal (the AAT's second decision). It was clear that the AAT's second decision related only to the 801 visa.

The Appellant applied to the FCCA for judicial review of the AAT's second decision. The FCCA dismissed that application and the Appellant appealed from it to the FCA.

The FCA answered several questions, the most important of which are as follows (the below terminology is adopted for this article and was not used by the Court):

Question 1: when a person makes an application for visa subclasses 820 and 801 at the same time and place, does that application require a single decision or one decision for each subclass by the Department?

Question 2: if the decision record does not expressly refer to subclass 801, can it in some circumstances nevertheless, in substance, be a decision record that includes that subclass?

Question 3: could the Department re-notify the Appellant of the subclass 801 visa refusal?

Question 4: if the answer to Question 3 is 'yes', what are the consequences of re-notification? In other words, did re-notification give the Appellant an opportunity to make a second Tribunal application:

  • for the refusal of subclass 820? or
  • for the refusal of subclass 801? or
  • for the refusal of both subclasses?

The FCA answered as follows...

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