FJF18 v Minister for Home Affairs

[2019] FCCA 1004

FEDERAL CIRCUIT COURT OF AUSTRALIA

FJF18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1004

Catchwords:
MIGRATION – partner visa –refusal– no matter of principle.

Legislation:

Migration Regulations 1994 (Cth), Sch.3, condition 3001

Applicant: FJF18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2888 of 2018

Judgment of: Judge Cameron

Hearing date: 18 March 2019

Date of Last Submission: 18 March 2019

Delivered at: Sydney

Delivered on: 18 March 2019

REPRESENTATION

The Applicant in person

Counsel for the First Respondent: Mr T. Reilly

Solicitors for the Respondents: Mills Oakley

ORDERS

1. A writ of certiorari issue bringing into this Court to be quashed the decision of the second respondent dated 10 September 2018.

2. A writ of mandamus issue directing the second respondent to determine according to law the applicant’s application made to it on 26 July 2018.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2888 of 2018

FJF18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This proceeding concerns the refusal by the second respondent (“Tribunal”) of an application for review of a decision by a ministerial delegate to refuse the applicant a partner visa. 

2. In the delegate’s decision of 18 July 2018 reference is made to a Criminal Justice Stay (subclass 951) visa having been cancelled on 21 June 2018.  The delegate’s decision records that the applicant’s visa application the subject of the present proceeding was made on 27 June 2018. 

3. The decision of the Tribunal dated 10 September 2018 was predicated on the applicant having not met the criteria of condition 3001 of sch.3 of the Migration Regulations 1994 on the basis that he had not made his visa application within 28 days of the expiry of his most recent substantive visa.  However, condition 3001 also refers to the termination of criminal justice visas and it is apparent that the Tribunal failed to have regard to that when reaching its decision. 

4. Consequently, the Tribunal could not conclude its decision on the basis it did and it should have gone on to consider other matters.

5. For those reasons, the Minister concedes that the Tribunal’s decision should be set aside. 

6. There will therefore be orders that the Tribunal’s decision be set aside and the matter remitted to it to be determined according to law.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 16 April 2019