Basra v Minister for Immigration and Border Protection

Basra v Minister for Immigration and Border Protection concerned the appeal of a decision by the Federal Circuit Court regarding a partner visa application. The applicant, Basra, had applied for both a temporary partner visa (Subclass 820) and a residence partner visa (Subclass 801) in a single application. The initial delegate of the Department of Immigration and Citizenship refused both visas, and this decision was affirmed by the first Migration Review Tribunal. Subsequently, the Department identified an error in the refusal of the Subclass 801 visa and sought to remake the decision. A second delegate then refused the Subclass 801 visa, and the second Tribunal affirmed this decision. The central legal issue in this case was whether the second Tribunal had jurisdiction to consider the application for both visas, particularly the Subclass 820 visa, given that the second delegate had only revisited the Subclass 801 visa.

The court examined the principles established in Minister for Immigration and Multicultural Affairs v Bhardwaj, which provide that an administrative decision-maker may revisit and remake a decision affected by jurisdictional error. The court held that once the initial decision was found to be affected by jurisdictional error, the second delegate was obliged to revisit and remake the entire composite decision, including both visas. The second Tribunal, standing in the shoes of the second delegate, was thus also required to review both aspects of the initial decision. The court found that the second Tribunal was correct in deciding it did not have jurisdiction to consider the Subclass 820 visa, as the decision to refuse it had already been finally determined. The primary judge's judgment was upheld as there was no error in finding that the second Tribunal did not engage in jurisdictional error by limiting its review to the Subclass 801 visa.

The appeal was dismissed, and Basra was ordered to pay the Minister's costs. This outcome underscores the importance of treating composite visa decisions as a single decision for the purposes of judicial review, particularly when revisiting decisions affected by jurisdictional error.