JNMK v Minister for Home Affairs

The case of JNMK v Minister for Home Affairs involves the applicant, a citizen of Zambia, who is challenging the refusal of his Partner (Migrant) (Class BC) visa by the Minister for Home Affairs. The applicant had previously been in Australia on a student visa, met his now Australian citizen wife in 2011, and married her in 2013 after returning to Zambia. He returned to Australia on a Partner (Provisional) (Class UF) visa in January 2014 and applied for the Partner (Migrant) (Class BC) visa at the same time. The Tribunal had found that the applicant had not passed the character test for the visa due to previous driving offences and reoffending in 2018, and thus the delegate's decision to refuse the visa was upheld.

The key legal issues in this case are whether the Tribunal made a jurisdictional error in failing to consider the effect that separation from the applicant would have on his child, whether the Tribunal's time limit for making a decision was correctly applied, and whether the applicant's wife and children have a sufficient arguable case for judicial review. The applicant argues that the Tribunal did not consider the interests of the unborn child, the impact on the existing child, and the effect on the applicant's wife in making its decision. Additionally, the applicant claims that the Tribunal incorrectly applied the 84-day time limit for making a decision under s 500(6L) of the Act, and that the Department did not comply with s 501G of the Act when notifying the applicant of the delegate's decision.

The court found that the grounds of review were at least arguable, and granted the applicant an extension of time for judicial review. The court held that the Tribunal had indeed failed to consider the effect that separation from the applicant would have on his unborn child, which constituted a jurisdictional error. The court further held that the Tribunal's time limit for making a decision was incorrectly applied, and that the Department had not complied with s 501G of the Act when notifying the applicant of the delegate's decision. As a result, the court quashed the Tribunal's decision and ordered the Tribunal to determine the applicant's application for review according to law.

The final orders of the court were that the application for an extension of time was allowed, the Tribunal's decision was quashed, the Tribunal was directed to determine the applicant's application for review according to law, and the applicant had liberty to apply in relation to costs on 14 days' notice. The outcome of the case will affect the interests of the applicant's wife and his two children, both of whom are Australian citizens.