Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Gupta [2022] FCAFC 51

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Gupta [2022] FCAFC 51

Clause 100.221(4)(b) of Sch 2 to the Migration Regulations 1994 (Cth) requires the decision-maker to be satisfied that a married or de facto relationship within the meaning of s 5F or s 5CB of the Migration Act 1958 (Cth) between the visa applicant and sponsoring partner existed and had ceased. The mere fact that the applicant first entered Australia as, and continued to hold, a subclass 309 visa does not create a presumption that such a relationship existed. Because the Tribunal found that Ms Gupta and her sponsor had never been in a genuine spousal relationship, it was not required to determine her claim of family violence and did not make jurisdictional error. The Federal Circuit...

Jurisdiction
Australia
Judgment Date
31 March 2022
Procedural Posture
Migration Appeal From Federal Circuit Court Judicial Review Decision / Appeal
Outcome
Appeal allowed.
Legal Topics
['partner (migrant) (class Bc) (subclass 100) Visa' 'partner (provisional) (class Uf) (subclass 309) Visa' 'construction of Cl 100.221(4) of Sch 2 to Migration Regulations 1994 (cth)' 'spousal Relationship Under S 5 F of the Migration Act 1958 (cth)' 'family Violence Provisions' 'jurisdictional Error' 'costs Certificate Under Federal Proceedings (costs) Act 1981 (cth)']
['migration Law' 'administrative Law'] ['partner (migrant) (class Bc) (subclass 100) Visa' 'partner (provisional) (class Uf) (subclass 309) Visa' 'construction of Cl 100.221(4) of Sch 2 to Migration Regulations 1994 (cth)' 'spousal Relationship Under S 5 F of the Migration Act 1958 (cth)' 'family Violence Provisions' 'jurisdictional Error' 'costs Certificate Under Federal Proceedings (costs) Act 1981 (cth)']

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Procedural Posture

Migration Appeal From Federal Circuit Court Judicial Review Decision / Appeal

Legal Issues

  1. 1 ['Whether cl 100.221(4)(b) of Sch 2 to the Migration Regulations 1994 (Cth) requires the decision-maker to be satisfied that a married or de facto relationship within the meaning of s 5F or s 5CB of the Migration Act 1958 (Cth) existed and had ceased before considering family violence.' "Whether the Administrative Appeals Tribunal made jurisdictional error by not considering Ms Gupta's family violence claim after finding that no genuine spousal relationship ever existed." 'Whether the Federal Circuit Court erred in applying El Jejieh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1103.' 'Whether a costs certificate should be granted to Ms Gupta under the Federal Proceedings (Costs) Act 1981 (Cth).']

Ratio Decidendi

Clause 100.221(4)(b) of Sch 2 to the Migration Regulations 1994 (Cth) requires the decision-maker to be satisfied that a married or de facto relationship within the meaning of s 5F or s 5CB of the Migration Act 1958 (Cth) between the visa applicant and sponsoring partner existed and had ceased. The mere fact that the applicant first entered Australia as, and continued to hold, a subclass 309 visa does not create a presumption that such a relationship existed. Because the Tribunal found that Ms Gupta and her sponsor had never been in a genuine spousal relationship, it was not required to determine her claim of family violence and did not make jurisdictional error. The Federal Circuit...

Court Disposition

Appeal allowed.

Orders

  • ['The appeal be allowed.' 'The judgment of the Federal Circuit Court of Australia made on 21 July 2021 in PEG257/2020 be set aside and in lieu thereof the Court orders that the application be dismissed.' 'There be no order as to costs of the application.' 'There be no order as to costs of the appeal.' 'The first...