Australian Immigration Daily News

Is it “jurisdictional error” – and thus grounds for setting aside a Departmental decision to refuse a visa application – when a Departmental officer decides a visa application on the basis that she/he is “required” to take certain matters into account, when the applicable regulation only says that the officer “may” take the matters into consideration?

Does every jurisdictional error require that the underlying decision on the visa application be set aside?

Or does jurisdictional error only matter when it makes a material difference to the outcome of the visa application?

These questions were considered by Judge Manousaridis of the Federal Circuit Court in a decision that was handed down on 21 August 2015, Sunar v Minister for Immigration (2015) FCCA 2233. (It should be noted that this case is unusual procedurally: ordinarily, judicial review proceedings are brought before the Federal Circuit Court following merits review of a Departmental decision by the Administrative Appeals Tribunal but in this case the “jurisdictional error” was one claimed to have been made in the first instance by the Department itself, and not by the AAT on review).

The visa decision that resulted in the judicial review proceedings involved the refusal of an application to grant a New Zealand Family Relationship (Subclass 461)visa to the wife of a New Zealand citizen who was living in Australia. 

The history of the relationship of the visa applicant (a citizen of Nepal) and her New Zealand citizen husband was somewhat “convoluted”, to put it mildly! The visa applicant and her husband had originally entered into an “arranged marriage” in Nepal in 1995. The husband then travelled to Australia on his own. In 1998, the husband  met another woman, who was a citizen of New Zealand. He married this second woman in 2001 and then had a child with her.

The man then returned to Nepal for the purpose of applying for a partnership visa on the basis of his marriage to the second woman, but his NZ migration lawyer did not (for reasons that are not explained in the Court’s judgment) lodge the application. Thereafter, the man gained a visa for residency in New Zealand through the application of his second wife. He ultimately acquired NZ citizenship. However, his second wife and their daughter did not remain with him in NZ; ultimately she returned to Australia and began a new relationship, so the man then divorced from his second wife.

After this divorce, the man returned to Nepal, re-married his first wife, and then came back to live in Australia.

The application for the New Zealand Family Relationship Visa for the original wife then followed.

One of the criteria for the grant of a New Zealand Family Relationship visa is that the applicant must be a “member of the family unit” of a New Zealand citizen who is in Australia as the holder of a “Special Category” (Subclass 444) visa. The term “member of a family unit” is defined in regulation 1.12(1)(a) of the Migration Regulations to include a “spouse”.  However, the departmental officer who reviewed the visa application refused it on the basis that she was not satisfied that the applicant and her New Zealand citizen husband were in fact in a “genuine and ongoing spousal relationship”.

The Departmental officer carried out her assessment of the visa application based on the assumption that she was required to consider the matters identified in subregulation 1.15A(3) (so-called “subregulation 3 matters” when evaluating whether the spousal relationship was genuine and on-going.   These subregulation 3 matters include issues such as the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons’ commitment to each other.  

Indeed, subregulation 1.15(A()2) provides that when certain kinds of partner visa applications are being assessed, (Partner (Migrant)(Class BC), Partner (Provisional)(Class UF), Partner (Residence)(Class BS) and Partner(Temporary)(Class UK) visas , the Department must consider so-called “subregulation 3 matters”.

However, very significantly for this case, subregulation 1.15A(4) states only that the subregulation 3 matters may be considered in relation to visas other than the types of partner visas referred to in the preceding paragraph.  In other words, subregulation 1.15A(4) provides that while the Department may take the subregulation matters into account when reviewing a different kind of visa application, like an application for a NZ Family Relationship visa, it is not required to do so (put another way, the subregulation 3 matters are not a “mandatory relevant consideration” for this kind of visa).

Nonetheless, proceedings upon the basis that she was required to take the subregulation 3 matters into account, the Departmental officer assessed the spousal relationship between the visa applicant and her NZ citizen husband through the lens of those “matters” and thus reached a conclusion that the relationship was not “genuine and ongoing”.  

Judge Manousaridis held that the officer’s approach to the assessment of the visa application had resulted in jurisdictional error.  The jurisdictional error stemmed from the fact that the Departmental officer had misunderstood the nature or limits of her decision-making power. It was Judge Manousardis’s conclusion that by considering the NZ Family Relationship visa application on the basis that she was required to consider the subregulation 3 matters, she disregarded the fact that she had discretion not to consider those matters (and again, subregulation 1.15A(4) specifically provides that the subregulation 3 matters do not have to be considered in connection with a NZ Family Relationship visa application). It was Judge Manousardis's view that the Departmental officer did not have authority to make a decision in respect of the visa application on the basis that she was required  to consider the subregulation 3 matters.

In his opinion, Judge Manousardis also considered whether every “jurisdictional error” will cause the decision that is “infected” by such error to be invalid.  His Honour answered this question “in the negative”:  His Honour found that jurisdictional error will invalidate a decision only when it “materially affects the outcome”.

In the particular circumstances of this case, Judge Manousardis held that the jurisdictional error that had been made by the Departmental officer in assuming that she was required to consider the subregulation3 matters did have the effect of materially affecting the outcome of the review of the visa application. As His Honour put it:

“I cannot discount the possibility, for example, that had the delegate approached her task on the basis that she was not required to consider the subreg 3 matters, the delegate may have disregarded one or more of the subreg. 3 matters she in fact considered, and, as a result, may have made a decision favourable to the applicant.”

Accordingly, Judge Manousardis decided that the jurisdictional error had rendered the Department’s decision to refuse the visa application invalid.

The outcome in the Sunar  case thus highlights a particular “species” of jurisdictional error.  When a decision-maker determines, incorrectly, that it is required to consider certain issues, and the applicable regulation says that consideration of such issues is not in fact required, then in that circumstance the decision (for example, to refuse a visa application) – is vulnerable to challenge.

A consequence of this decision may be that NZ citizens who are here on Special Category visas may have an easier time of getting a Family Relationship Visa and thus bringing their spouses over to Australia to live with them: the level of scrutiny concerning the "spousal relationship" may be less if the "subregulation 3" matters are not applied by the Department. Time will tell if this decision causes the Department to change the way that it reviews these types of applications!!

Concordia Pacific Migration Lawyers, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837