CUHADAR (Migration)

The applicant, Mr. Cuhadar, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse his application for a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The Federal Circuit and Family Court of Australia heard the matter.

The central legal issue before the Court was whether the Minister's decision to refuse the subclass 300 visa application was affected by jurisdictional error. This question arose in circumstances where the applicant and his sponsor had married after the visa application was lodged but before the Minister's decision was made. The applicant contended that his application should have been treated as an application for a different visa class, specifically a Partner (Temporary) (Class UK) visa, subclass 820.

Her Honour Judge Claringbold found that the Minister's delegate had failed to consider the relevant legislative provisions and the applicant's circumstances in their totality. Specifically, the delegate had not adequately considered whether the application could be treated as an application for a Partner visa, given the change in the applicant's relationship status. The Court held that this failure constituted a jurisdictional error.

Consequently, the Court remitted the application to the Minister for reconsideration according to law, with a direction that the application be treated as an application for a Partner (Temporary) (Class UK) visa, subclass 820.