Kareem v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCA 1016

Kareem v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCA 1016

The appeal failed because the exclusive relationship and genuine and continuing relationship criteria were mandatory visa criteria with no discretionary component or waiver, so the Tribunal was not required or permitted to determine the exclusive relationship criterion by reference to the best interests of children, hardship, or related matters. The Tribunal's reasons showed comprehensive consideration of the relationship evidence, including the issue addressed by the appellant's 24 July 2017 statutory declaration, and it was not required to refer to each item of evidence expressly. No jurisdictional error by the Tribunal or error by the primary judge was established.

Jurisdiction
Australia
Judgment Date
27 August 2021
Procedural Posture
Migration Appeal From Dismissal of Application for Judicial Review / Appeal From the Federal Circuit Court of Australia
Outcome
Appeal dismissed with costs.
Legal Topics
['partner (provisional) (class Uf) (subclass 309) Visa' 'de Facto Partner' 'exclusive Relationship Criterion' 'genuine and Continuing Relationship' 'relevant Considerations' 'procedural Fairness' 'failure to Consider Evidence' 'judicial Review' 'jurisdictional Error']
['migration Law' 'administrative Law'] ['partner (provisional) (class Uf) (subclass 309) Visa' 'de Facto Partner' 'exclusive Relationship Criterion' 'genuine and Continuing Relationship' 'relevant Considerations' 'procedural Fairness' 'failure to Consider Evidence' 'judicial Review' 'jurisdictional Error']

Case Brief

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Procedural Posture

Migration Appeal From Dismissal of Application for Judicial Review / Appeal From the Federal Circuit Court of Australia

Legal Issues

  1. 1 ['Whether the primary judge erred in failing to find that the Tribunal was required to consider the best interests of affected children, hardship, or related issues when determining the exclusive relationship criterion for a partner visa.' "Whether the Tribunal failed to consider the sponsor's statutory declaration dated 24 July 2017 concerning the asserted ending of his relationship with Ms Oluwakemi Omotayo." 'Whether any ground identified jurisdictional error by the Tribunal or error by the primary judge.']

Ratio Decidendi

The appeal failed because the exclusive relationship and genuine and continuing relationship criteria were mandatory visa criteria with no discretionary component or waiver, so the Tribunal was not required or permitted to determine the exclusive relationship criterion by reference to the best interests of children, hardship, or related matters. The Tribunal's reasons showed comprehensive consideration of the relationship evidence, including the issue addressed by the appellant's 24 July 2017 statutory declaration, and it was not required to refer to each item of evidence expressly. No jurisdictional error by the Tribunal or error by the primary judge was established.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs as assessed or agreed."]