FEDERAL CIRCUIT COURT OF AUSTRALIA
| BABAR v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2311 |
| Catchwords: MIGRATION – Judicial review – Temporary Partner Visa – citizen of Bangladesh – whether failure to exercise jurisdiction reasonably – whether Tribunal asked the wrong question – whether denial of procedural fairness – whether jurisdictional error. |
| Legislation: Guardianship and Administration Act 1990 (WA) Migration Amendment Regulations 2002 (No.2) (Cth) |
Keep reading for free
Create a free CaseChat account to read Babar v Minister for Immigration and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [2019] FCCA 2311
- Decision Date
CaseChat Overview and Summary
This matter concerned an appeal by Mr. Babar against a decision of the Minister for Immigration. The dispute centred on the interpretation and application of clause 820.221(4) of Schedule 2 of the Migration Regulations, which requires that a sponsorship be approved by the Minister and remain in force for a Subclass 820 (Spouse) visa. The court was required to determine whether the Administrative Appeals Tribunal had the power to assess and determine the approval of a sponsorship in the context of reviewing a visa application.
The legal issues before the court were whether the approval of a sponsorship constituted a decision for the purposes of Schedule 2 of the Migration Regulations, and consequently, whether the Tribunal, in exercising its review powers, was empowered to make findings of fact regarding that sponsorship. The court also considered the presumption of validity of administrative acts and the extent to which the Tribunal could "stand in the shoes" of the Minister or their delegate.
The court reasoned that clause 820.221(4) was a primary criterion for a Subclass 820 visa, and its insertion by the Migration Amendment Regulations 2002 (No.2) aimed to ensure that sponsorship approval was a mandatory requirement. Applying the principle that administrative acts are presumed valid, and drawing on the established power of the Tribunal under section 349(1) of the Migration Act to exercise the powers of the Minister or their delegate, the court concluded that the Tribunal was indeed empowered to determine the approval of Mr. Babar's sponsorship. This was a necessary consequence of the Tribunal's duty under section 65 of the Migration Act to make findings of fact when considering whether a visa applicant met the relevant criteria. The court found that the Tribunal was therefore necessarily empowered to assess whether Mr. Babar met the sponsorship criterion on the material before it.
The legal issues before the court were whether the approval of a sponsorship constituted a decision for the purposes of Schedule 2 of the Migration Regulations, and consequently, whether the Tribunal, in exercising its review powers, was empowered to make findings of fact regarding that sponsorship. The court also considered the presumption of validity of administrative acts and the extent to which the Tribunal could "stand in the shoes" of the Minister or their delegate.
The court reasoned that clause 820.221(4) was a primary criterion for a Subclass 820 visa, and its insertion by the Migration Amendment Regulations 2002 (No.2) aimed to ensure that sponsorship approval was a mandatory requirement. Applying the principle that administrative acts are presumed valid, and drawing on the established power of the Tribunal under section 349(1) of the Migration Act to exercise the powers of the Minister or their delegate, the court concluded that the Tribunal was indeed empowered to determine the approval of Mr. Babar's sponsorship. This was a necessary consequence of the Tribunal's duty under section 65 of the Migration Act to make findings of fact when considering whether a visa applicant met the relevant criteria. The court found that the Tribunal was therefore necessarily empowered to assess whether Mr. Babar met the sponsorship criterion on the material before it.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
It is clear in the terms of cl.820.221(4) of the sch.2 of the Migration Regulations that the Minister was required to approve the sponsorship:820.22 – Criteria to be satisfied at time of decision820.221…(4) The sponsorship mentioned in paragraph 820.211(2)(c), (5)(f) or (6)(c) has been approved by the Minister and is still in force. Clause 820.221(4) was inserted into the Migration Regulations by the Migration Amendment Regulations 2002 (No.2) (Cth). The Explanatory Memorandum explains the rationale behind the introduction of cl.820.221(4) of sch.2 of the Migration Regulations in Item 2365:This item inserts new subclause 820.221(4) into clause 820.221.New subclause 820.221(4) establishes that one of the primary criteria to be satisfied for a Subclass 820 (Spouse) visa is that the sponsorship mentioned in paragraphs 820.211(2)(c), 820.211(3)(f), 820.211(4)(f), 820.211(5)(f) or 820.211(6)(c) has been approved by the Minister and is still in forceAs the provisions for a Subclass 820 (Spouse) visa are amended by these Regulations to require an applicant to be sponsored rather than nominated, it is necessary to ensure the sponsorship has been approved by the Minister and is still in force.Having different requirements for onshore visa applications (requiring 'nomination' of the visa applicant) and offshore visa applications (requiring 'sponsorship' of the visa applicant) is outdated and inefficient now that much of the "family visa stream" migration program is managed onshore.” Section 496(1) of the Migration Act allows the Minister, by writing, to delegate to a person any of the Minister’s powers exercised under the Migration Act, and similarly reg.1.16 of the Migration Regulations dictates the same. There is a presumption that all administrative acts are presumed to be valid: VMOZ v Minister for Immigration, Multicultural & Indigenous Affairs [2003] FCA 188 at [30] per Heerey J. It is well accepted that the Tribunal is empowered to “stand in the shoes” of the Minister, that being it can exercise any of the powers which the Delegate was permitted to exercise under the Migration Act: Migration Act, s.349(1); Minister for Immigration & Ethnic Affairs v Pochi (1980) 44 FLR 40; (1980) 31 ALR 666; (1980) 4 ALD 139; (1980) 1A IPR 708, FLR at 46 per Smithers J. It was within the power and jurisdiction of the Tribunal to determine the approval of the sponsorship of Mr Barbar by Ms Nicholson. On the proper construction of cll.820.211 and 820.221 of sch.2 to the Migration Regulations, the approval of the sponsorship is a decision for the purposes of sch.2 of the Migration Regulations. As a decision made in respect of sch.2 to the Migration Regulations, the Tribunal was necessarily empowered to determine all matters as to findings of fact when considering if Mr Barbar should be granted a Partner Visa. It was a necessary consequence of s.65 of the Migration Act that the Tribunal make a finding that Mr Barbar was “sponsored” and therefore in conducting its review the Tribunal could assess if Mr Barbar met this criterion on the material before it.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.