Bautista v Minister for Immigration

The applicant, Bautista, sought judicial review of a decision by the Minister for Immigration, which affirmed a delegate's decision to refuse a partner visa application. The Administrative Appeals Tribunal had affirmed the delegate's decision, finding that the applicant's evidence regarding her de facto relationship lacked credibility. The dispute centred on whether the Tribunal had failed to provide the applicant with an opportunity to respond to adverse information it considered in reaching its decision.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the Tribunal, in its consideration of the evidence at paragraph [66] of its decision, had relied on information that required it to provide the applicant with an opportunity to comment under section 359A of the *Migration Act 1958* (Cth). Specifically, the applicant argued that the Tribunal's reference to "the above evidence" encompassed information detailed in paragraphs [57]-[59], including a letter from Ms C dated June 2003. This letter contained allegations that the applicant's sponsor was in a relationship with Ms C and residing with her, and that the applicant was aware of this.

Judge Nicholls reasoned that the Tribunal's statement at [66] that "the evidence that the applicant’s sponsor was residing with Ms C at the time of his marriage with the applicant and at the time the application was lodged is far stronger than the evidence provided by the applicant" indicated a reliance on the information contained in Ms C's letter. The Tribunal's subsequent findings regarding the applicant's lack of credibility were directly linked to this adverse information. As no hearing was held, the Tribunal was obliged under section 359A to provide the applicant with a written invitation to comment on this information before affirming the delegate's decision. The Court found that the Tribunal had failed to do so.

The Court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.