Bautista v Minister for Immigration and Border Protection [2018] FCA 1114

Bautista v Minister for Immigration and Border Protection [2018] FCA 1114

Regulation 4.18A(4) of the Migration Regulations 1994 is invalid because it allows the 'further' period for response to overlap with the original period, defeating the statutory intention in s 359B(4) of the Migration Act 1958 that an extension should provide an additional period; thus, the Tribunal erred in refusing a hearing based on timing calculated under this invalid provision. In the absence of a valid prescribed further period, the Tribunal retains power to extend, and must do so within a reasonable period.

Jurisdiction
Australia
Judgment Date
27 July 2018
Procedural Posture
Appeal / Judgment on Appeal From Federal Circuit Court Decision Reviewing a Tribunal Refusal of a Permanent Partner Visa
Outcome
Appeal allowed
Legal Topics
['partner Visa Application' 'extension of Time to Respond Under Migration Act' 'validity of Delegated Legislation' 'procedural Fairness—hearing Rights Before Tribunal']
['migration' 'administrative Law' 'statutory Interpretation'] ['partner Visa Application' 'extension of Time to Respond Under Migration Act' 'validity of Delegated Legislation' 'procedural Fairness—hearing Rights Before Tribunal']

Case Brief

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Procedural Posture

Appeal / Judgment on Appeal From Federal Circuit Court Decision Reviewing a Tribunal Refusal of a Permanent Partner Visa

Legal Issues

  1. 1 ['Whether reg 4.18A(4) of the Migration Regulations 1994 is invalid as inconsistent with s 359B(4) of the Migration Act 1958' "Whether Tribunal erred in refusing a hearing on basis of applicant's response timing" 'Whether Tribunal failed to provide adequate particulars in s 359A letter']

Ratio Decidendi

Regulation 4.18A(4) of the Migration Regulations 1994 is invalid because it allows the 'further' period for response to overlap with the original period, defeating the statutory intention in s 359B(4) of the Migration Act 1958 that an extension should provide an additional period; thus, the Tribunal erred in refusing a hearing based on timing calculated under this invalid provision. In the absence of a valid prescribed further period, the Tribunal retains power to extend, and must do so within a reasonable period.

Court Disposition

Appeal allowed

Orders

  • ['Declaration that reg 4.18A(4) of the Migration Regulations 1994 (Cth) is invalid' 'Judgment and orders of Federal Circuit Court in Bautista v Minister for Immigration & Anor [2017] FCCA 702; (2017) 318 FLR 205 set aside' 'Decision of the Administrative Appeals Tribunal set aside and remitted for reconsideration...