DED16 v Minister for Home Affairs [2019] FCAFC 18

DED16 v Minister for Home Affairs [2019] FCAFC 18

The Tribunal is required by s 36(3) of the Migration Act to determine whether a visa applicant has not taken all possible steps to avail himself of a right to enter and reside in another country. The Tribunal need only determine whether such a right exists, based on evidence including administrative arrangements; it is not required to identify the source or legal character of such a right. No jurisdictional error occurred in performing that statutory task.

Parties
Appellant: DED16; First Respondent: Minister for Home Affairs; Second Respondent: Administrative Appeals Tribunal
Jurisdiction
Australia
Judgment Date
07 February 2019
Procedural Posture
Appeal / Judgment
Outcome
Appeal dismissed
Legal Topics
Protection Visa, Judicial Review, Right to Enter and Reside, Jurisdictional Error
Migration Law Administrative Law Protection Visa Judicial Review Right to Enter and Reside Jurisdictional Error

Case Brief

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Parties

DED16

Appellant

Minister for Home Affairs

First Respondent

Administrative Appeals Tribunal

Second Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the Tribunal erred in its application of s 36(3) of the Migration Act regarding the source and nature of a right to enter and reside in another country
  2. 2 Whether the Tribunal was required to identify the source of an administrative arrangement conferring such a right

Ratio Decidendi

The Tribunal is required by s 36(3) of the Migration Act to determine whether a visa applicant has not taken all possible steps to avail himself of a right to enter and reside in another country. The Tribunal need only determine whether such a right exists, based on evidence including administrative arrangements; it is not required to identify the source or legal character of such a right. No jurisdictional error occurred in performing that statutory task.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed.