De Abreu v Minister for Immigration

In the Federal Court of Australia, Emmett J considered the case of *De Abreu v Minister for Immigration*. The applicant sought judicial review of a decision by the Migration Review Tribunal (MRT) to affirm the refusal of a partner (residence) visa. The core of the dispute concerned whether the applicant continued to meet the criteria for the visa at the time of the MRT's decision, particularly in light of the breakdown of her relationship with her sponsor.

The legal issues before the Court were whether the MRT had complied with its obligations under the *Migration Act 1958* (Cth) to provide the applicant with clear particulars of the information that would be the reason for affirming the decision, and to invite her to comment on that information. Specifically, the Court had to determine if the MRT's reliance on certain clauses of Schedule 2 to the *Migration Regulations 1994* (Cth) regarding the continuation of sponsorship and spousal status, or the exception for family violence involving child maintenance obligations, had been adequately communicated to the applicant.

Emmett J reasoned that the MRT's obligations under sections 359A and 360 of the *Migration Act* were crucial. While section 359AA allowed for oral notification of particulars, the Tribunal was still required to ensure the applicant understood the relevance and consequences of the information and was invited to respond. The Court noted that the applicant needed to satisfy criteria under clause 801.221 of Schedule 2, which included continuing sponsorship and being the spouse of the sponsor, unless an exception under clause 801.221(6) applied, such as having custody of a child in respect of whom the sponsor had a maintenance obligation. The Court found that the MRT had failed to provide the applicant with clear particulars of the information that would be the reason for affirming the decision, and had not adequately invited her to comment on this information, thereby breaching the natural justice hearing rule.

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