Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 802

Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 802

The phrase "most of their life" in cl 6.3(5) of Direction No. 79 bears its ordinary meaning and does not include or mean "most of their adult life". Because Mr Shrestha arrived in Australia aged 21 and had lived in Australia for 14 years, he had not lived in the Australian community for most of his life or from a very young age. The Tribunal's construction and application of cl 6.3(5) was correct, and it did not fail to consider the applicant's argument. No jurisdictional error was established.

Jurisdiction
Australia
Judgment Date
16 July 2021
Procedural Posture
Application for Judicial Review of a Decision of the Administrative Appeals Tribunal Affirming a Delegate's Refusal to Grant a Skilled Regional (subclass 887) Visa Under S 501(1) of the Migration Act 1958 (cth) / Final Judgment on Application for Judicial Review
Outcome
Application dismissed.
Legal Topics
['character Test' 'substantial Criminal Record' 'visa Refusal' 'ministerial Direction No. 79' 'jurisdictional Error' 'construction of Statutory Direction' 'materiality']
['migration Law' 'administrative Law'] ['character Test' 'substantial Criminal Record' 'visa Refusal' 'ministerial Direction No. 79' 'jurisdictional Error' 'construction of Statutory Direction' 'materiality']

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Procedural Posture

Application for Judicial Review of a Decision of the Administrative Appeals Tribunal Affirming a Delegate's Refusal to Grant a Skilled Regional (subclass 887) Visa Under S 501(1) of the Migration Act 1958 (cth) / Final Judgment on Application for Judicial Review

Legal Issues

  1. 1 ['Whether cl 6.3(5) of Direction No. 79 applies to non-citizens who have resided in Australia for most of their adult life but not most of their life.' 'Whether the Tribunal fell into jurisdictional error by misconstruing cl 6.3(5) of Direction No. 79.' 'Whether the Tribunal was required to consider cl 6.3(5) according to the construction advanced by the applicant because he raised it before the Tribunal.']

Ratio Decidendi

The phrase "most of their life" in cl 6.3(5) of Direction No. 79 bears its ordinary meaning and does not include or mean "most of their adult life". Because Mr Shrestha arrived in Australia aged 21 and had lived in Australia for 14 years, he had not lived in the Australian community for most of his life or from a very young age. The Tribunal's construction and application of cl 6.3(5) was correct, and it did not fail to consider the applicant's argument. No jurisdictional error was established.

Court Disposition

Application dismissed.

Orders

  • ['The application is dismissed.' "The applicant pay the first respondent's costs as agreed or taxed."]