Gupta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1494

Gupta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1494

The appeal was dismissed because the notice of appeal and the appellant's further written and oral submissions disclosed no error by the Federal Circuit Court Judge and no jurisdictional error by the Tribunal. The appellant did not provide the statutory declaration required by rr 1.24(a) and 1.25 of the Migration Regulations 1994 (Cth), despite an opportunity to provide further evidence, and the other material did not establish a non-judicially determined claim of family violence. The Tribunal was not obliged under ss 359AA or 359A of the Migration Act 1958 (Cth) to advise the appellant that failure to meet those evidentiary requirements might lead to affirmance of the delegate's...

Jurisdiction
Australia
Judgment Date
29 November 2021
Procedural Posture
Migration Appeal From Federal Circuit Court Dismissal of Judicial Review Application / Appeal to the Federal Court of Australia
Outcome
Appeal dismissed with costs.
Legal Topics
['partner Residence (class Bs) Visa' 'judicial Review' 'administrative Appeals Tribunal' 'non Judicially Determined Claim of Family Violence' 'amended Notice of Appeal']
['migration Law' 'administrative Law'] ['partner Residence (class Bs) Visa' 'judicial Review' 'administrative Appeals Tribunal' 'non Judicially Determined Claim of Family Violence' 'amended Notice of Appeal']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether the Federal Circuit Court Judge erred in dismissing the application for judicial review of the Tribunal's decision affirming refusal of a Partner (Residence) (Class BS) visa." 'Whether the appellant had established a non-judicially determined claim of family violence under rr 1.23, 1.24 and 1.25 of the Migration Regulations 1994 (Cth).' "Whether the Tribunal was obliged under ss 359AA or 359A of the Migration Act 1958 (Cth) to inform the appellant that failure to establish a non-judicially determined claim of family violence might be a reason to affirm the delegate's decision." 'Whether the appellant should be permitted to rely on matters not contained in an amended notice of appeal despite not filing one after adequate opportunity.']

Ratio Decidendi

The appeal was dismissed because the notice of appeal and the appellant's further written and oral submissions disclosed no error by the Federal Circuit Court Judge and no jurisdictional error by the Tribunal. The appellant did not provide the statutory declaration required by rr 1.24(a) and 1.25 of the Migration Regulations 1994 (Cth), despite an opportunity to provide further evidence, and the other material did not establish a non-judicially determined claim of family violence. The Tribunal was not obliged under ss 359AA or 359A of the Migration Act 1958 (Cth) to advise the appellant that failure to meet those evidentiary requirements might lead to affirmance of the delegate's...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal is dismissed.' "The appellant must pay the first respondent's costs as agreed or taxed."]