CVY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 721
•16 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
CVY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 721
File number(s): SYG 2205 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 16 April 2021 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to decision by the Administrative Appeals Tribunal (Tribunal) affirming decision to cancel Partner visa under s 140(2) of the Act based on the cancellation of a Protection visa granted to the applicant’s husband (husband) – applicant accepts that if the husband fails in his application for remedies under s 476 of the Act in relation to the Tribunal’s decision affirming the cancellation of the Protection visa the applicant must fail in her application for remedies in relation to the decision affirming the cancellation of the Partner visa – husband’s application failed – application dismissed. Legislation: Migration Act 1958 (Cth) ss 101(b), 109, 140(1), 140(2), 476 Cases cited: CLO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 720 Number of paragraphs: 6 Date of hearing: 23 June 2020 Place: Sydney Counsel for the Applicant: Mr O Jones, by video Solicitor for the Applicant: Firmstone & Associates Counsel for the First Respondent: Mr P Knowles, by video Solicitor for the First Respondent: Sparke Helmore Lawyers ORDERS
SYG 2205 of 2017 BETWEEN: CVY20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
16 APRIL 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.Subject to order 3 the applicant pay the first respondent’s costs set in the amount of $6,000.
3.The applicant has liberty to apply within 14 days after the day on which these orders are pronounced for an order varying the amount for which the first respondent’s costs are set.
REASONS FOR JUDGMENT
The applicant applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming a decision by a delegate of the first respondent (Minister) to cancel the applicant’s Partner (Residence) (Class BS) visa (Partner visa).
The applicant was granted the Partner visa in 2015 on the basis of her relationship with her husband, CLO17, who at that time held a Protection (Class XA) Subclass 866 visa (Protection visa). On 14 November 2016 a delegate of the Minister cancelled CLO17’s Protection visa under s 109 of the Act on the ground that CLO17 had failed to comply with s 101(b) of the Act. CLO17 applied to the Tribunal for review of the delegate’s decision, but the Tribunal affirmed the delegate’s decision. CLO17 then applied to this Court for remedies under s 476 of the Act. I heard that application on 23 June 2020 (CLO17 proceeding).
The delegate’s decision to cancel CLO17’s Protection visa engaged s 140(2) of the Act. That subsection relevantly provides that if a person’s visa is cancelled under s 109 of the Act, and another person, to whom s 140(1) of the Act does not apply, holds a visa only because the person whose visa is cancelled held a visa, the Minister may, without notice to the other person, cancel the person’s visa. By letter dated 14 November 2016 a delegate of the Minister cancelled the applicant’s Partner visa. The applicant applied to the Tribunal for review of the delegate’s decision; and on 21 June 2017 the Tribunal affirmed the delegate’s decision. The applicant then applied to this Court for remedies under s 476 of the Act.
The claims the applicant made in this Court were set down for hearing before me on 23 June 2020, at the same time I had set down the CLO17 proceeding for hearing. The applicant and CLO17 were represented by one counsel. Counsel for the applicant and CLO17 and counsel for the Minister agreed that the fate of the applicant’s application turned entirely on the fate of CLO17’s application. I then heard CLO17’s application after which I reserved my judgment.
For reasons I will publish immediately before I publish these reasons,[1] I propose to order that CLO17’s application be dismissed. Given the agreement of counsel for the parties, the consequence of my dismissing CLO17’s application is that I must also dismiss the applicant’s application. I accordingly propose to order that the applicant’s application be dismissed.
[1] CLO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 720
Counsel agreed that costs should follow the event. Counsel for the Minister did not have instructions on the amounts for which his costs should be set in this proceeding if the Minister were to succeed in the CLO17 proceeding. By email sent to my associate on 15 April 2021, the lawyer for the Minister said that if the Minister were to succeed on the application he would seek an order that his costs be set in the amount of $6,000. I propose to order that the Minister’s costs be set in that amount. I will, however, reserve to the applicant liberty to apply on 14 days’ notice for an order varying the amount for which I propose to set the Minister’s costs.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 16 April 2021
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