Vikas v Minister for Immigration and Border Protection

[2021] FCCA 1714

FEDERAL CIRCUIT COURT OF AUSTRALIA

Vikas v Minister for Immigration and Border Protection [2021] FCCA 1714

File number(s):

SYG 2304 of 2017

Judgment of:

JUDGE STREET

Date of judgment:

26 July 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for a Partner (Temporary) (Class UK) Visa – whether the Tribunal made a factual error in its reasons – whether the factual error regarding the relevant relationship and nature of the household amounted to jurisdictional error by the Tribunal – where the first respondent conceded the factual error – jurisdictional error established – writ of certiorari issued – writ of mandamus issued

Legislation:

Migration Act 1958 (Cth) s 476

Migration Regulations 1994 (Cth) cls 820.211, 820.221

Number of paragraphs:

11

Date of hearing:

26 July 2021

Place:

Sydney

Solicitor for the applicant:

In person

Counsel for the respondent:

Mr J Kay Hoyle

ORDERS

SYG 2304 of 2017

BETWEEN:

VIKAS

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	26 JULY 2021

THE COURT ORDERS THAT:

1.A writ in the nature of certiorari is issued calling up the record of the second respondent and quashing the decision made by it on 22 June 2017.

2.A writ of mandamus is issued requiring the second applicant to determine the review application before it according to law.

3.The first respondent pay any filing or hearing fees that have been incurred and paid for by the applicant.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 22 June 2017, affirming the decision of a delegate of the first respondent (“the delegate”) not grant the applicant a Partner (Temporary) (Class UK) Visa (“the Visa”).

2. Counsel for the first respondent has properly drawn to the Court’s attention to a factual error in the Tribunal’s reasons. The factual error is one which was first identified by reference to what was said in the transcript before the Tribunal.

3. The first respondent properly pointed out that the evidence that the applicant had given was that sometimes his step-son and girlfriend were at the address at which he lived with his wife and step-daughter.

4. Counsel for the first respondent properly pointed out that, at paragraph 28 of its reasons, the Tribunal had misunderstood this evidence, and found that the step-son and girlfriend live at the current address with the applicant, his sponsor and youngest child.

5. Counsel for the first respondent also, properly, took the Court to the repetition of this evidence in considering the nature of the household, being one of the mandatory criteria as to whether there was the relevant relationship at the time of the Visa application and at the time of decision.

6. Counsel for the first respondent also drew attention to the findings that were made in that regard, that the applicant did not meet the criteria under cls 820.211 or 820.221 of the Migration Regulations 1994 (Cth) (“the Regulations”). In the interests of thoroughness, the Tribunal turned to the issue of waiver of the criteria because the applicant did not hold a substantive visa at the time of application.

7. Counsel for the first respondent correctly identified the repetition of the error in paragraph 118 of the Tribunal’s reasons. Counsel for the first respondent correctly submitted that the error in paragraph 118 of the Tribunal’s reasons could not amount to a jurisdictional error in respect of that criteria, because the Tribunal had found that the applicant failed to meet the criteria under cls 820.211 or 820.221 of the Regulations as an independent finding.

8. Counsel for the first respondent submitted that the factual error repeated in relation to the nature of the household should not be treated as material in respect of the independent findings under cls 820.211 and 820.221 of the Regulations. Given that the factual error is expressly repeated in consideration as to the nature of the household, the Court is not satisfied that the factual error could not possibly have given rise to a different outcome in the review. 

9. Given the factual error concession made by the first respondent, the Court is satisfied that the factual error was material in the context of the reasons of the Tribunal in the present case. This is because, not only did the error appear in paragraph 24 of the Tribunal’s reasons, but critically, it appeared under the evaluation of the Tribunal’s findings in respect of the nature of the household in paragraph 76 of its reasons. In these circumstances, the applicant has established a jurisdictional error and is entitled to appropriate relief.

10. Accordingly, the Court grants a writ in the nature of certiorari calling up the record of the second respondent, and quashing the decision made by it, dated 22 June 2017.

11. The Court grants a writ in the nature of mandamus requiring the second respondent to determine the application for review according to law. 

I certify that the preceding eleven (11) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 26 July 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated: 6 October 2021