Sandhu v Minister for Immigration and Border Protection

Sandhu appealed against a decision of the Federal Circuit Court that dismissed his application for judicial review of a decision of the Migration Review Tribunal. The Tribunal had refused Sandhu a skilled residence visa because of a false or misleading statement he had given in respect of a skills assessment. The Tribunal also refused Sandhu’s application for disclosure of particular written materials on privacy and public interest grounds. Sandhu argued that the Tribunal had breached section 362A of the Migration Act 1958 (Cth) by not disclosing the materials to him. The Federal Circuit Court dismissed the application for judicial review on the basis that there was a separate and independent basis for the Tribunal’s refusal to grant a visa. Sandhu appealed on the basis that the Tribunal had breached section 362A and that the Federal Circuit Court had erred in not finding such a breach and granting declaratory relief. The Federal Court of Australia held that the Federal Circuit Court had erred in not finding a breach of section 362A by the Tribunal. The Tribunal had a duty to give Sandhu access to the written materials, given or produced to it for the purposes of the review, in order to afford him procedural fairness. The Tribunal’s failure to do so was a jurisdictional error. However, the Tribunal’s decision was supportable on another ground, namely that Sandhu’s diploma was not closely related to the nominated occupation. Therefore, the Federal Court of Australia set aside the orders made by the Federal Circuit Court and declared that the Tribunal had breached section 362A. The Federal Court of Australia also dismissed Sandhu’s application for judicial review otherwise. The Federal Court of Australia ordered that the Minister for Immigration and Border Protection pay Sandhu’s costs of the appeal and of the application before the Federal Circuit Court.