Markaj v Minister for Immigration and Border Protection

In Markaj v Minister for Immigration and Border Protection, the applicant, an Albanian national, sought judicial review of a decision of the Administrative Appeals Tribunal (AAT) affirming the decision of a delegate to refuse him a Partner visa. The applicant argued that the AAT failed to properly consider his role as a caregiver for his minor grandchildren in Albania when assessing the best interests of those children. The primary legal issue for the court was whether the AAT engaged in a constructive failure to exercise its jurisdiction by not adequately considering the applicant's role as a parental figure under Direction No 65. The court had to determine if the AAT misunderstood its obligations or applied an incorrect test when assessing the best interests of the minor children.

The court found that the AAT did not sufficiently engage with a social worker’s report that detailed the applicant’s role as a primary caregiver for his grandchildren. This oversight was considered a constructive failure to exercise jurisdiction, as the AAT did not adequately consider a relevant matter required under Direction No 65. The court also determined that the AAT did not apply the correct test in assessing the best interests of the minor children, as it failed to give due weight to the applicant's significant role in their lives. The other grounds of appeal, which challenged the AAT's consideration of other factors such as the applicant's criminal history and character, were dismissed.

Consequently, the Federal Court set aside the AAT's decision and ordered the AAT to reconsider the applicant's visa application according to law. The court also issued a writ of certiorari to quash the AAT's decision and a writ of mandamus to compel the AAT to re-evaluate the application. Additionally, the Minister for Immigration and Border Protection was ordered to pay the applicant's costs of the proceedings.