FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CGP21 v Minister for Home Affairs [2021] FedCFamC2G 11
File number(s): SYG 1532 of 2021 Judgment of: JUDGE DRIVER Date of judgment: 1 September 2021 Catchwords: MIGRATION – Application for mandamus to compel making of a decision on a visa application – application to the Court premature and circumstances of the applicants rapidly changing – mandamus refused – no award of costs. Legislation: Migration Act 1958 (Cth) ss 63, 65, 474
Migration Regulations 1994 (Cth)
Cases cited: AFX17 v Minister for Home Affairs [2020] FCA 807
AQM18 v Minister for Immigration and Border Protection (2019) 268 FCR 424
ASP15 v Commonwealth (2016) 248 FCR 372
BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530
CMA19 v Minister for Home Affairs [2020] FCA 736
Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285
FGS20 v Minister for Home Affairs [2021] FCCA 753
FGS20 v Minister for Home Affairs [2021] FCA 874
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470
P & C Canterella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
R v Building Controller; Ex Parte Marinov (1981) 36 ACTR 13
Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty Ltd (1983) 50 ALR 577
SZMNF v Minister for Immigration and Citizenship [2008] FMCA 983
Division: Division 2 General Federal Law Number of paragraphs: 59 Date of hearing: 1 September 2021 Place: Sydney Solicitor for the Applicants: Mr D Taylor with Ms N Harendran of Sydney West Legal and Migration Counsel for the First, Second and Fourth Respondents: Ms C Roberts Solicitor for the Third Respondents: Mr J Hutton of Australian Government Solicitor Solicitors for the Respondents: Australian Government Solicitor ORDERS
SYG 1532 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CGP21
First Applicant
CGR21
Second Applicant
CGS21 (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent
COMMONWEALTH OF AUSTRALIA (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
1 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The application lodged on 6 August 2021 and filed on 12 August 2021 is dismissed.
2.There be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit…
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- Case
- [2021] FedCFamC2G 11
- Decision Date
CaseChat Overview and Summary
The court found that the applicants did not have a right to compel the Minister to make a decision on their visa applications. The court held that the visa applications had not been received or considered at the time the judicial review application was lodged, and that there had not been any unreasonable failure to consider the applications since then. The court further held that compelling a decision at that time would likely result in a negative outcome for the applicants, which would provide little comfort to them. The court also found that the application was premature given the rapidly changing circumstances in Afghanistan, and that it would be inappropriate to make a decision on the visa applications at that time.
The court dismissed the application and made no order as to costs. The court found that the applicants had made the application in support of an understandable desire to help their family members in Afghanistan, but that the application had been unsuccessful. The court held that it would be inappropriate to further burden the applicants with a costs order, given the extraordinary circumstances of the case.
In summary, the court found that the applicants did not have a right to compel the Minister to make a decision on their visa applications, and that the application was premature given the rapidly changing circumstances in Afghanistan. The court dismissed the application and made no order as to costs.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The application lodged on 6 August 2021 and filed on 12 August 2021 is dismissed.
2. There be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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