CVY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FCA 1051

FEDERAL COURT OF AUSTRALIA

CVY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1051

Appeal from:	CVY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 720
File number:	NSD 470 of 2021
Judgment of:	MARKOVIC J
Date of judgment:	8 September 2022
Catchwords:	MIGRATION – appeal from orders made by the Federal Circuit Court of Australia (as it then was) dismissing an application for judicial review of a decision of the second respondent (Tribunal) – where the Tribunal had affirmed a decision of a delegate of the first respondent to cancel the appellant’s partner visa pursuant to s 109 and s 140(2) of the Migration Act 1958 (Cth) – where appellant accepts that if her husband’s appeal is unsuccessful this appeal will necessarily fail – where appellant’s husband’s appeal was dismissed – appeal dismissed
Legislation:	Migration Act 1958 (Cth) s 140(2)
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	14
Date of hearing:	31 May 2022
Counsel for the Appellant:	Ms G Costello
Solicitor for the Appellant:	Bardo Lawyers
Counsel for the First Respondent:	Mr P Knowles
Solicitor for the First Respondent:	Mills Oakley
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice

ORDERS

NSD 470 of 2021

BETWEEN:

CVY20

Appellant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	MARKOVIC J
DATE OF ORDER:	8 SEPTEMBER 2022

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant is to pay the first respondent’s costs, as agreed or taxed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MARKOVIC J:

1. This is an appeal from orders made by the Federal Circuit Court of Australia, as it then was (now the Federal Circuit and Family Court of Australia), dismissing an application for judicial review of a decision of the second respondent (Tribunal).  The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) to cancel the appellant’s Partner (Residence) (class BS) (subclass 801) visa (partner visa) pursuant to s 109 and s 140(2) of the Migration Act 1958 (Cth).

   BACKGROUND

2. The appellant was granted a partner visa on 24 February 2015 based on her marriage to CLO17 who held a Protection Class XA (subclass 866) visa (protection visa). On 14 November 2016 a delegate of the Minister cancelled CLO17’s protection visa pursuant to s 109 of the Migration Act. This was because the delegate found that CLO17 had provided incorrect information about his sexuality in his protection visa application in contravention of s 101(b) of the Migration Act.

3. That decision, in turn, enlivened s 140(2) of the Migration Act which relevantly provides:

   140  Cancellation of visa results in other cancellation

   (2)      If:

   (a)a person’s visa is cancelled under section 109 (incorrect information)…; and

   (b)another person to whom subsection (1) 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 other person’s visa.

4. On 14 November 2016 a delegate of the Minister cancelled the appellant’s partner visa under s 140(2) of the Migration Act on the basis that her husband’s protection visa had been cancelled.

5. The appellant and CLO17 each applied to the Tribunal for review of the delegate’s decisions.  On 8 May 2017, the Tribunal affirmed the decision to cancel CLO17’s visa and on 21 June 2017 the Tribunal affirmed the delegate’s decision to cancel the appellant’s partner visa.  

6. CLO17 then filed an application in the Federal Circuit Court (CLO17’s FCC application) wherein he raised a single, broad ground of review alleging legal unreasonableness on the part of the Tribunal in reaching its conclusion that he had provided incorrect information about his sexuality.  That application was dismissed on 16 April 2021. 

7. The appellant also filed an application in the Federal Circuit Court (appellant’s FCC application) in which she sought an order that the Tribunal’s decision be quashed and a writ of mandamus directing the Tribunal to determine the appellant’s FCC application according to law.  By her originating application in the Federal Circuit Court the appellant relied on the following ground:

   Ground 1:

   The … wife's case depends on the husband's case and, in the event that the husband is successful, the wife should be granted relief.

8. The appellant’s FCC application was heard together with CLO17’s FCC application.  This was because the parties accepted that the outcome of the appellant’s FCC application turned on the outcome of CLO17’s FCC application.  On 16 April 2021 CLO17’s FCC application was dismissed.  Accordingly, the appellant’s FCC application was also dismissed on 16 April 2021.

9. On 25 May 2021 and 27 May 2021 respectively the appellant and CLO17 each filed a notice of appeal in this Court.  In his notice of appeal CLO17 challenged the primary judge’s treatment of what was described as his “free standing complaint” (CLO17’s appeal).  

   APPEAL TO THIS COURT

10. The appellant’s notice of appeal raises the following grounds of appeal:

    1.The Court below dismissed the judicial review application on the basis that the main applicant’s judicial review application was dismissed (CLO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2017] FCCA 720.

    2.For the reasons stated in the notice of appeal in CLO17’s appeal, the Court erred in dismissing CLO17’s application for judicial review and the dismissal of [the appellant’s] application for judicial review is therefore erroneous.

11. This appeal was heard together with CLO17’s appeal.  The appellant and CLO17 were represented by the same counsel.  Counsel for the appellant and counsel for the Minister agreed that the outcome of this appeal would “follow” the outcome of CLO17’s appeal. 

12. CLO17’s appeal was dismissed on 8 September 2022, see CLO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1052. It follows that this appeal must necessarily fail.

    CONCLUSION

13. In light of the matters set out above, the appeal should be dismissed.  As the appellant has been unsuccessful she should pay the Minister’s costs.

14. I will make orders accordingly.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Markovic.

Associate:

Dated:       8 September 2022