Eij18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 462
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EIJ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 462
File number(s): MLG 2551 of 2018 Judgment of: JUDGE EGAN Date of judgment: 14 June 2022 Catchwords: MIGRATION – Concession that if Application for Review in related matter was successful, the application in this proceeding would be successful – application granted accordingly. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r. 15.02. Division: Division 2 General Federal Law Number of paragraphs: 8 Date of last submission/s: 24 May 2022 Date of hearing: 31 May 2021 Place: Melbourne Counsel for the Applicant: Dr A McBeth Solicitor for the Applicant: SWL Migration Lawyers Counsel for the First Respondent: Mr J Barrington Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: Submitting appearance save as to costs ORDERS
MLG 2551 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EIJ18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
14 JUNE 2022
IT IS ORDERED THAT:
1.The Further Amended Application for Review filed on 20 April 2021 be granted.
2.The decision of the Immigration Assessment Authority made on 20 July 2018 be quashed.
3.A writ of mandamus issue directed to the Immigration Assessment Authority requiring it to determine according to law the Applicant’s application for review of the Second Respondent’s decision, and that the matter be remitted to the Immigration Assessment Authority for rehearing.
4.For the purpose of the Immigration Assessment Authority again determining the Applicant’s application, that it be constituted by a different member than the member who handed down the decision on 20 July 2018.
5.The First Respondent pay the Applicant’s costs of and incidental to the Amended Application for Review, as agreed, or failing agreement, to be taxed pursuant to the provisions of r. 22.10 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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 and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
Introduction
Judge Davis was a former Judge of this Court. He resigned his commission as a Judge effective as and from 13 May 2022.
On 31 May 2021, Judge Davis presided over applications for review in proceedings numbered MLG 2543 of 2018, MLG 2545 of 2018 and MLG 2551 of 2018 (for convenience those matters will be respectively referred to as EIH18, EII18 and EIJ18).
As at the date of the resignation by Judge Davis of his commission, His Honour had failed to deliver judgments in EIH18, EII18 and EIJ18.
On 24 May 2022, Chief Judge Alstergren made consent orders whereby it was recorded that each of the parties in EIH18, EII18 and EIJ18 had agreed that the respective applications for review in those proceedings would be determined on the papers by another Judge pursuant to the provisions of r. 15.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). This Court has assumed that responsibility in respect of each of those proceedings.
Father’s Amended Application for Review
The applicant in EIH18 is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival in September 2012. He married the applicant in EII18 in or about December 2015. The applicant in this proceeding is the child born of the union of the applicant in EII18 and the applicant in EIH18. He was born in or about August 2016.
At the hearing of this matter on 31 May 2021, it was conceded by Counsel on behalf of the first respondent in each of EIH18, EII18 and EIJ18 that should the applicant in EIH18 be successful in his amended application for review, then the other applications for review in EII18 and EIJ18 would also be successful.
This Court has granted the Amended Application for Review in EIH18, and accordingly, the Court grants the Further Amended Application for Review filed in this proceeding on 20 April 2021.
The Court will hear the parties as to costs.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 14 June 2022
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