Boyce v Minister for Immigration - [2017] FCCA 16

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOYCE v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 16

Catchwords:
MIGRATION – Permanent resident partner visa – review of Migration Review Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal believed that it did not need to consider the application of cl.801.221(6)(c) of the Migration Regulations 1994 if the applicant was not in a de facto relationship with his sponsor at the time of its decision on the review, considered whether the applicant and his sponsor were de facto partners at times other than at the time of decision and failed to notify the applicant that his relationship status at times other than the time of decision would be relevant to the decision.

Legislation:

Migration Act 1958, ss.5CB, 360, 474

Migration Regulations 1994, regs.1.09A, 1.23, cl.801.221 of sch.2

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Pokharel v Minister for Immigration & Border Protection [2016] FCAFC 34
Sharma v Minister for Immigration & Border Protection [2016] FCCA 1011

Applicant:

PETER RODNEY BOYCE

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2080 of 2014

Judgment of:

Judge Cameron

Hearing date:

22 December 2016

Date of Last Submission:

22 December 2016

Delivered at:

Sydney

Delivered on:

1 February 2017

REPRESENTATION

Solicitors for the Applicant:

Mr N. Dobbie of Dobbie & Devine Immigration

Counsel for the First Respondent:

Mr M.P. Cleary

Solicitors for the Respondents:

Mills Oakley

ORDERS

A writ of certiorari issue bringing into this Court to be quashed the decision of the second respondent dated 25 June 2014.
A writ of mandamus issue directing the second respondent to determine according to law the applicant’s application made to it on 11 September 2013.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2080 of 2014

PETER RODNEY BOYCE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, Mr Boyce, is a citizen of the United Kingdom who arrived in Australia on 26 March 2009 as the holder of a tourist visa. On 14 June 2011 Mr Boyce applied for a combined Partner (Temporary) (Class UK) subclass 820 and Partner (Residence) (Class BS) subclass 801 visa. Mr Boyce’s application was sponsored by his de facto partner, Ms Janice Hammond, who is an Australian permanent resident. On 4 September 2013 a delegate of the first respondent (“Minister”) refused Mr Boyce’s application for a subclass 801 visa on the basis that he did not satisfy cl.801.221 of sch.2 to the Migration Regulations 1994 (“Regulations”) because by the time the delegate made her decision he had ceased being Ms Hammond’s de facto partner. Mr Boyce then applied to the second respondent (“Tribunal”) for a review of the delegate’s decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCCA 16
Decision Date: 1 February 2017

CaseChat Overview and Summary

In *Boyce v Minister for Immigration*, the applicant sought judicial review of a decision made by the Migration Review Tribunal. The dispute concerned the Tribunal's assessment of the applicant's eligibility for a permanent resident partner visa.

The central legal issues before the court were whether the Tribunal had committed a jurisdictional error. Specifically, the court considered whether the Tribunal erroneously believed it was not required to consider clause 801.221(6)(c) of the *Migration Regulations 1994* if the applicant was not in a de facto relationship with his sponsor at the time of the Tribunal's decision. Further, the court examined whether the Tribunal had failed to consider whether the applicant and his sponsor were de facto partners at times other than the time of the decision, and whether the Tribunal had adequately notified the applicant that his relationship status at times other than the time of decision would be relevant to the review.

Judge Cameron reasoned that the Tribunal's interpretation of clause 801.221(6)(c) was too narrow. The court held that the provision required the Tribunal to consider the applicant's de facto relationship status at the time the application was made, not solely at the time of the Tribunal's decision. The Tribunal's failure to consider this broader timeframe, and its subsequent failure to notify the applicant of the relevance of his relationship status at earlier points, constituted a jurisdictional error.

The court found in favour of the applicant, quashing the decision of the Migration Review Tribunal.

Orders