VFAY v Minister for Immigration and Multicultural and Indigenous Affairs

The case of VFAY v Minister for Immigration and Multicultural and Indigenous Affairs involves an Afghan minor, VFAY, who arrived in Australia in 2001. The dispute centers on the Minister's decision to deem VFAY's application for a Bridging Visa E invalid, arguing that VFAY does not meet the criteria of an 'eligible non-citizen' under the Migration Act 1958 and the Migration Regulations 1994. This decision was challenged by VFAY, who sought a declaration and mandamus to compel the Minister to reconsider the application. The case was heard by the Federal Court of Australia.

The primary legal issues before the court were whether VFAY qualified as an 'eligible non-citizen' and if an application for special leave to appeal to the High Court from a decision of the Full Federal Court could be considered an application for judicial review for the purposes of the relevant regulations. The court had to interpret the relevant provisions of the Migration Act and the Regulations to determine if VFAY's actions constituted an application for judicial review, which would make him eligible for a Bridging Visa.

The court examined the Minister's argument that an application for special leave did not equate to an application for judicial review. However, the court found that VFAY's application for special leave to appeal the Full Federal Court's decision to the High Court constituted an application for judicial review under sub-regulation 2.20(7)(b)(ii)(B). This was based on the reasoning that if the High Court granted special leave, it would then constitute a review of the protection visa decision. The court also noted that the Minister's previous concession in another matter did not preclude them from arguing otherwise in this case.

Consequently, the court concluded that VFAY was indeed an 'eligible non-citizen' and ordered the Minister to reconsider VFAY's application for a Bridging Visa E according to law. The Minister was also ordered to pay VFAY's costs of the application.