Katonitabua (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by the applicant, Katonitabua. The dispute arose when a delegate of the Minister refused the applicant's visa application. The applicant claimed to have suffered family violence from the sponsor, who had subsequently withdrawn their sponsorship due to the breakdown of their relationship. The Tribunal was required to determine whether the delegate's decision to refuse the visa was lawful, particularly in light of a previous remittal direction from the Tribunal.

The primary legal issue before the Tribunal was whether a delegate of the Minister was bound by a previous permissible direction made by the Tribunal on remittal, even if subsequent information suggested a criterion might not be met. Specifically, the Tribunal had previously directed that the applicant be taken to have satisfied certain criteria, including cl 820.221, which relates to family violence. The delegate, relying on an independent expert's opinion that the applicant had not suffered family violence, refused the visa on the basis that cl 820.221 was not satisfied.

The Tribunal reasoned that a permissible direction made under regulation 4.15(1) of the Migration Regulations 1994 is binding on the Minister and their delegates. This principle was affirmed by the High Court in *Plaintiff M174/2016 v MIBP*, which established that a delegate must comply with such directions when reconsidering a matter. The Tribunal noted that departmental policy also confirms that delegates are bound by AAT directions that a criterion is met, even if later information suggests otherwise. Therefore, the delegate erred by refusing the visa on the basis of not satisfying cl 820.221, as this directly contravened the Tribunal's prior binding direction that the applicant had satisfied this criterion.

Consequently, the Tribunal set aside the delegate's decision of 1 March 2023 to refuse the applicant a Partner (Temporary) (Class UK) Subclass 820 visa. The Tribunal substituted a decision that the visa is not refused.