Sun v Minister for Immigration and Border Protection [2017] FCA 1270

Sun v Minister for Immigration and Border Protection [2017] FCA 1270

The Tribunal failed to approach its review in the manner required by reg 1.15A(2) of the Migration Regulations 1994 (Cth). Although it considered much of the evidence, its reasons did not show that it identified the pertinent circumstances of the appellant's married relationship by reference to reg 1.15A(3) and any other relevant circumstances, or that it made any necessary findings for that purpose before determining whether the relationship was a married relationship under s 5F of the Migration Act 1958 (Cth). This was the same fundamental error identified in Li and amounted to a failure to conduct the review according to law. The Federal Circuit Court erred by failing to detect that...

Jurisdiction
Australia
Judgment Date
27 October 2017
Procedural Posture
Migration Appeal From the Federal Circuit Court of Australia Concerning Refusal of a Partner (temporary) (class Uk) Visa / Appeal to the Federal Court of Australia From Sun V Minister for Immigration & Anor [2016] FCCA 2952
Outcome
Appeal allowed.
Legal Topics
['partner Visa' 'spouse Visa Criteria' 'married Relationship Under S 5 F of the Migration Act 1958 (cth)' 'regulation 1.15 a of the Migration Regulations 1994 (cth)' 'family Violence Provisions' 'relevant Considerations' 'tribunal Reasons Under S 368 of the Migration Act 1958 (cth)' 'jurisdictional Error']
['migration Law' 'administrative Law'] ['partner Visa' 'spouse Visa Criteria' 'married Relationship Under S 5 F of the Migration Act 1958 (cth)' 'regulation 1.15 a of the Migration Regulations 1994 (cth)' 'family Violence Provisions' 'relevant Considerations' 'tribunal Reasons Under S 368 of the Migration Act 1958 (cth)' 'jurisdictional Error']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Migration Appeal From the Federal Circuit Court of Australia Concerning Refusal of a Partner (temporary) (class Uk) Visa / Appeal to the Federal Court of Australia From Sun V Minister for Immigration & Anor [2016] FCCA 2952

Legal Issues

  1. 1 ['Whether the Federal Circuit Court erred in failing to find that the Tribunal failed to take into account relevant considerations under reg 1.15A of the Migration Regulations 1994 (Cth).' "Whether the Tribunal was required to identify and consider all pertinent circumstances of the appellant's relationship when deciding whether she was a spouse within s 5F of the Migration Act 1958 (Cth)." "Whether an inference could be drawn from the Tribunal's reasons that it failed to consider matters required by reg 1.15A(2) and (3)." "Whether the Tribunal's failure amounted to jurisdictional error requiring certiorari and mandamus."]

Ratio Decidendi

The Tribunal failed to approach its review in the manner required by reg 1.15A(2) of the Migration Regulations 1994 (Cth). Although it considered much of the evidence, its reasons did not show that it identified the pertinent circumstances of the appellant's married relationship by reference to reg 1.15A(3) and any other relevant circumstances, or that it made any necessary findings for that purpose before determining whether the relationship was a married relationship under s 5F of the Migration Act 1958 (Cth). This was the same fundamental error identified in Li and amounted to a failure to conduct the review according to law. The Federal Circuit Court erred by failing to detect that...

Court Disposition

Appeal allowed.

Orders

  • ['The appeal be allowed.' "The orders of the Federal Circuit Court of Australia made on 17 November 2016 be set aside and substituted with orders that: (a) a writ of certiorari issue to quash the decision of the Administrative Appeals Tribunal given on 21 April 2016 (case no 1411375); (b) a writ of mandamus issue...