Makwasa v Minister for Home Affairs & Anor

The applicant, Mr. Makwasa, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the refusal of his student visa. Mr. Makwasa was a citizen of Tanzania and a subsequent entrant on his husband's student visa. The core of the dispute concerned whether the requirement for the husband to have declared his family members, including his de facto partner (the applicant), on his primary student visa application, or before that visa was granted, had been met.

The primary legal issue before the Court was whether the AAT had committed a jurisdictional error in its interpretation and application of the relevant migration regulations. Specifically, the Court had to determine whether the applicant, as a de facto partner, constituted a "family member" for the purposes of the declaration requirement, and whether the husband's declaration satisfied the statutory conditions.

The Court reasoned that the term "family members" in the context of the migration regulations included a de facto partner. It found that the husband's declaration had not been made in accordance with the requirements of the regulations, as it was not made on the primary application or prior to the grant of his student visa. The Court concluded that the AAT had erred in law by misinterpreting the legislative intent and the plain meaning of the word "must" in the relevant provision, which imposed a mandatory obligation.

The Court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.