Minister for Immigration and Multicultural Affairs v Peralta Montes

In the matter of Minister for Immigration and Multicultural Affairs v Peralta Montes, the applicant, a visa applicant, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT). The Tribunal had set aside a decision by a delegate of the Minister, who had refused to grant the applicant a visa under section 501(1) of the Migration Act 1958 (Cth) on the ground that the applicant did not pass the character test. The Tribunal substituted the decision of the delegate by revoking the refusal of the visa application. The Minister challenged the Tribunal’s decision on four grounds, including that the Tribunal had misconstrued a Ministerial Direction and applied an incorrect test in its decision-making process.

The central legal issues the court had to address were whether the Tribunal had misapplied the Ministerial Direction No. 110, which requires consideration of family violence committed by non-citizens, and whether the Tribunal had applied the wrong legal test in revoking the refusal of the visa application. Specifically, the court had to determine if the Tribunal had asked itself the correct question and applied the appropriate statutory obligations under section 499(2A) of the Migration Act. Additionally, the court considered whether the Tribunal had afforded the Minister procedural fairness by inviting them to address the characterisation of certain considerations.

The court found that the Tribunal had indeed erred in its interpretation and application of Ministerial Direction No. 110. The Tribunal had misconstrued paragraph 8.2 of the Direction, which pertains to family violence, as a consideration that could weigh in favour of the visa applicant. This misconstruction led the Tribunal to conclude that this consideration weighed in favour of revoking the refusal of the visa application, which was contrary to the statutory obligations. Furthermore, the court held that the Tribunal had failed to exercise its jurisdiction correctly by misconstruing the statutory task under section 501(1) of the Act. The Tribunal’s error established the basis for allowing the Minister’s application for judicial review.

Consequently, the court issued a writ of certiorari to quash the decision of the AAT made on 28 August 2024 and a writ of mandamus to direct the AAT to determine the visa applicant’s application for review of the decision according to law. The Minister was awarded costs as agreed or taxed.