Ayache v Minister for Home Affairs

In the case of Ayache v Minister for Home Affairs, Mr Ayache, a Lebanese citizen, sought judicial review of the Administrative Appeals Tribunal's (AAT) decision to affirm the Minister's decision to cancel his visa on character grounds. Mr Ayache, who had been living in Australia with his Australian citizen wife and their three children, was found to have been unlawfully in Australia on two separate occasions, leading to the cancellation of his visa. The central issue before the court was whether the Tribunal's error in finding that Mr Ayache had been unlawfully in Australia for the second period constituted a jurisdictional error that was material to its decision.

The court held that the Tribunal's error was not merely a factual error but a jurisdictional one, as the Tribunal's decision seemed to be based on Mr Ayache's history of criminal conduct and his visa history. The court reasoned that the Tribunal's erroneous finding relating to the second period of unlawful presence was not immaterial to its conclusion, and therefore, the Tribunal had fallen into jurisdictional error. The Minister's argument that the error was insignificant and did not affect the outcome was rejected by the court.

Consequently, the court set aside the AAT's decision to affirm the Minister's decision to refuse Mr Ayache a Partner visa and remitted his application for review to the Tribunal to be heard and determined according to law. Additionally, the court ordered the Minister to pay Mr Ayache's costs of and incidental to the application.