Makhmudkhodjaeva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 88

Makhmudkhodjaeva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 88

The Tribunal committed jurisdictional error because it failed to identify or apply the statutory criteria in s 5CB(2) when finding that the sponsor and Mr M were in a de facto relationship at the time of its decision. Mr M's seven-year imprisonment required consideration of whether there remained a mutual commitment to a shared life, whether the relationship was genuine and continuing, and whether they were not living separately and apart on a permanent basis. The existence of a current de facto relationship was material to the availability or exercise of the discretion under reg 1.20KB(12) and to whether the sponsorship requirement in cl 101.222 was satisfied.

Jurisdiction
Australia
Judgment Date
05 May 2020
Procedural Posture
Migration Appeal From Federal Circuit Court Decision Refusing Constitutional Writ Relief in Judicial Review of Administrative Appeals Tribunal Decision Affirming Refusal of Child Migrant Visa / Full Court Appeal
Outcome
Appeal allowed with costs; Federal Circuit Court orders set aside; Tribunal decision quashed and matter remitted to the Tribunal for determination according to law.
Legal Topics
['child Migrant (class Ah) (subclass 101) Visa' 'sponsorship Approval' 'de Facto Partner Definition' 'police Check Request' 'jurisdictional Error' 'administrative Appeals Tribunal Reasons']
['migration Law' 'administrative Law' 'judicial Review'] ['child Migrant (class Ah) (subclass 101) Visa' 'sponsorship Approval' 'de Facto Partner Definition' 'police Check Request' 'jurisdictional Error' 'administrative Appeals Tribunal Reasons']

Case Brief

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Procedural Posture

Migration Appeal From Federal Circuit Court Decision Refusing Constitutional Writ Relief in Judicial Review of Administrative Appeals Tribunal Decision Affirming Refusal of Child Migrant Visa / Full Court Appeal

Legal Issues

  1. 1 ['Whether the Tribunal committed jurisdictional error by failing to consider whether, at the time of its decision, the sponsor was in a de facto relationship within the meaning of s 5CB(2) of the Migration Act 1958 (Cth).' 'Whether the Tribunal erred in relying on reg 1.20KB(12) of the Migration Regulations 1994 (Cth) to refuse approval of sponsorship because a police check for the alleged de facto partner had not been provided.' "Whether the Tribunal was required to consider how the alleged de facto partner's seven-year prison sentence affected the existence of any current de facto relationship."]

Ratio Decidendi

The Tribunal committed jurisdictional error because it failed to identify or apply the statutory criteria in s 5CB(2) when finding that the sponsor and Mr M were in a de facto relationship at the time of its decision. Mr M's seven-year imprisonment required consideration of whether there remained a mutual commitment to a shared life, whether the relationship was genuine and continuing, and whether they were not living separately and apart on a permanent basis. The existence of a current de facto relationship was material to the availability or exercise of the discretion under reg 1.20KB(12) and to whether the sponsorship requirement in cl 101.222 was satisfied.

Court Disposition

Appeal allowed with costs; Federal Circuit Court orders set aside; Tribunal decision quashed and matter remitted to the Tribunal for determination according to law.

Orders

  • ['The appeal be allowed.' 'The orders made on 12 December 2019 by the Federal Circuit Court of Australia be set aside.' 'A writ of certiorari issue to quash the decision of the second respondent made on 14 August 2018.' "A writ of mandamus issue to the second respondent to determine the second applicant's...