This case was decided in the Full Federal Court in March 2019.
Mr Mohammed and his Australian spouse lodged a combined subclass 820/801 visa application.
The Department refused the subclass 820 Temporary visa application and the Administrative Appeals Tribunal (AAT) affirmed that refusal. The Department then proceeded to refuse the subclass 801 Permanent visa on the basis that Mr Mohammed did not hold and had never held a valid subclass 820 visa. The Tribunal affirmed the refusal of the subclass 801 visa.
Mr Mohammed took the matter on review before the Federal Court and, at that stage, the Department conceded there had been a jurisdictional error and that the original AAT decision affirming the refusal of the Temporary 820 visa was invalid and consented to the matter being referred back to the AAT “for determination according to law.”
The matter went to the Full Court for consideration of whether the Tribunal Court affirm the refusal of the Permanent 801 visa before there had been a final determination of the validity of the Temporary 820 visa.
The Court held that “the Tribunal’s decision to dismiss Mr Mohammed’s application for a Permanent Partner visa because of his want of a yet to be determined Temporary Partner visa” was “legally unreasonable.”
In simple terms, because the decision to refuse the Temporary Partner visa was invalid (for any reason) then a later refusal of the Permanent Partner visa, before a final valid decision was made on the refusal of the Temporary Partner visa, would also be invalid.
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