Antipova v Minister for Immigration and Multicultural and Indigenous Affairs

The case of Antipova v Minister for Immigration and Multicultural and Indigenous Affairs involved the applicant, Ms Antipova, challenging the decision of the Migration Review Tribunal (the Tribunal) to affirm a decision by the Minister's delegate not to grant her a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa. The dispute arose from the manner in which the Tribunal conducted the hearing of Ms Antipova's application, which she argued amounted to procedural unfairness and jurisdictional error. The legal issues before the court were whether the Tribunal's decision could be set aside on the grounds of bias and whether the Tribunal had failed to comply with the essential precondition for exercising its jurisdiction under s 360(1) of the Migration Act.

The court found that the Tribunal's decision could not be set aside on the ground of bias. While a fair-minded lay observer might think that the Tribunal did not perform its statutory function well, there was no reasonable apprehension that the Tribunal would not bring an impartial and unprejudiced mind to the resolution of Ms Antipova's case. However, the court concluded that the Tribunal's decision was flawed by jurisdictional error. The Tribunal had failed to comply with the essential precondition to the exercise of its jurisdiction, which required it to invite Ms Antipova to appear before it to give evidence and present arguments. Although the Tribunal gave such an invitation in form, the manner in which it conducted the hearing meant that there was no such invitation in reality. Alternatively, the Tribunal denied Ms Antipova procedural fairness, which amounted to jurisdictional error.

Consequently, the court ordered that the Migration Review Tribunal be joined as the second respondent to the proceeding. Service on the second respondent was dispensed with, and a writ of certiorari was issued to the Tribunal for the purpose of quashing its decision. The court also issued a writ of mandamus to the Tribunal, requiring it to hear and determine Ms Antipova's application for review of the Minister's decision according to law. The Minister was ordered to pay Ms Antipova's costs of the proceeding.