Lastra Pena (Migration)

This matter concerned an application for review of decisions made by a delegate of the Minister for Home Affairs to refuse Prospective Marriage (Temporary) (Class TO) visas (subclass 300) to Ms Rosse Mary Jarro Cuyo, a Bolivian national, and her sons, Mr Limbert Zamudio Jarro and Mr Pedro Zamudio Jarro. The sponsor for the visa was Mr Juan Felix Lastra Pena, an Australian citizen. The review applicant, Mr Lastra Pena, appealed to the Federal Circuit Court of Australia after the Administrative Appeals Tribunal (AAT) initially found it lacked jurisdiction to review the delegate's decision. The Federal Circuit Court quashed the AAT's decision and remitted the application back to the AAT for reconsideration.

The primary legal issue before the AAT was whether the visa applicant and the review applicant had met in person since turning 18 and were known to each other personally, as required by clause 300.214 of Schedule 2 to the Migration Regulations 1994 (Cth). The delegate had refused the visas on the basis that the applicants had not provided sufficient evidence to satisfy this criterion. The AAT was tasked with reviewing this refusal.

The AAT considered evidence presented by the parties, including testimony from Mr Lastra Pena and his son, Mr Lastra Ochra. Mr Lastra Pena stated he first met the visa applicant online in 2009 and subsequently met her in person in Santiago, Chile, where he claims to have sponsored her travel and stayed for two months. Mr Lastra Ochra testified that he believed the relationship was genuine and that he had met the visa applicant during a trip to Bolivia. The AAT noted discrepancies in Mr Lastra Pena's recollection of dates but did not draw adverse inferences due to the age of the events and Mr Lastra Pena's age. The AAT concluded that the matter should be remitted for reconsideration, implying that the delegate's initial assessment of the evidence may have been flawed or incomplete.

The Federal Circuit Court, in its ex tempore decision, found that the AAT's previous decision was affected by an error, referencing the Federal Court's decision in *Sandor v MICMA* [2023] FCA 434. Although the Minister made a formal submission that *Sandor* was wrongly decided, the Court considered itself bound by that Federal Court decision. Consequently, the Court ordered that the AAT review the primary decision according to law.