Somjich v Minister for Home Affairs

The case of Somjich v Minister for Home Affairs involves the appellant, a citizen of Thailand, who sought to appeal against the decision of the Federal Circuit Court of Australia, which had dismissed his application for a Permanent Partner visa. The appellant's initial application for a visa was refused, leading to an appeal to the Administrative Appeals Tribunal (the Tribunal). The Tribunal ultimately dismissed the appeal, and the appellant subsequently sought to appeal the decision of the Federal Circuit Court. The primary issue before the court was whether the appellant should be permitted to raise a new ground of appeal that was not previously argued before the Federal Circuit Court. The appellant contended that the Tribunal had failed to consider crucial evidence, thereby denying him natural justice. Additionally, the appellant argued that the Tribunal's invitation to comment on the cessation of his relationship with his former partner was sent to an outdated email address, which amounted to a denial of natural justice.

The court considered whether it would be unjust for the appellant to be bound by the error made by his former counsel, who had deliberately chosen not to argue a strong ground of appeal before the Federal Circuit Court. The court acknowledged that the consequences for the appellant were severe and that allowing the error to stand would result in an unjust outcome. The court concluded that in this exceptional case, the injustice should not be overridden by the public interest in the finality of proceedings. Therefore, the court granted the appellant leave to file an amended notice of appeal and to raise the additional ground. The court also determined that the Tribunal had indeed failed to consider the statutory declarations of two witnesses that detailed the family violence perpetrated by the appellant's former partner. The court held that this omission amounted to a jurisdictional error, and thus the Tribunal's decision was flawed.

Consequently, the court allowed the appeal, setting aside the Federal Circuit Court's judgment. The court issued a writ of certiorari to quash the decision of the Minister for Home Affairs and a writ of mandamus to compel the Minister to reconsider the appellant's application according to law. The Minister was also ordered to pay the appellant's costs of the appeal. The court made no order regarding the costs of the proceeding before the Federal Circuit Court.