SZQCN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 186

SZQCN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 186

The appeal was dismissed because, although the Tribunal erred by considering compelling reasons for waiving criterion 3001 only as at the time of application, that error was not material. The appellant no longer remained in a de facto relationship with his sponsor at the time of the Tribunal decision and therefore did not satisfy the independent time-of-decision criterion in cl 820.221 of sch 2 to the Migration Regulations 1994 (Cth). The Tribunal would have been obliged to affirm the refusal of the partner visa regardless of the Schedule 3 error, and the appellant's family violence contentions had not been raised clearly or squarely before the Tribunal.

Jurisdiction
Australia
Judgment Date
08 March 2022
Procedural Posture
Migration Appeal From Federal Circuit Court Dismissing Application for Judicial Review of Migration Review Tribunal Decision Concerning a Partner (temporary) (class Uk) (subclass 820) Visa Application / Appeal Determined on the Papers
Outcome
Appeal dismissed
Legal Topics
['partner Visa' 'judicial Review' 'jurisdictional Error' 'materiality' 'schedule 3 Criteria' 'compelling Reasons Waiver' 'de Facto Relationship' 'family Violence Claim']
['migration Law' 'administrative Law'] ['partner Visa' 'judicial Review' 'jurisdictional Error' 'materiality' 'schedule 3 Criteria' 'compelling Reasons Waiver' 'de Facto Relationship' 'family Violence Claim']

Case Brief

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Procedural Posture

Migration Appeal From Federal Circuit Court Dismissing Application for Judicial Review of Migration Review Tribunal Decision Concerning a Partner (temporary) (class Uk) (subclass 820) Visa Application / Appeal Determined on the Papers

Legal Issues

  1. 1 ["Whether the primary judge erred in dismissing the judicial review application despite the Tribunal's failure to consider compelling reasons existing at the time of the Tribunal decision for not applying criterion 3001 of sch 3 to the Migration Regulations 1994 (Cth)." 'Whether any error by the Tribunal was material where the appellant did not meet the separate time-of-decision criterion in cl 820.221 requiring a continuing de facto relationship.' "Whether the appellant's submissions about family violence disclosed appellable error where no such claim was raised clearly or squarely before the Tribunal."]

Ratio Decidendi

The appeal was dismissed because, although the Tribunal erred by considering compelling reasons for waiving criterion 3001 only as at the time of application, that error was not material. The appellant no longer remained in a de facto relationship with his sponsor at the time of the Tribunal decision and therefore did not satisfy the independent time-of-decision criterion in cl 820.221 of sch 2 to the Migration Regulations 1994 (Cth). The Tribunal would have been obliged to affirm the refusal of the partner visa regardless of the Schedule 3 error, and the appellant's family violence contentions had not been raised clearly or squarely before the Tribunal.

Court Disposition

Appeal dismissed

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs as agreed or assessed." 'The costs referred to in order 2 be awarded in a lump sum pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth), which amount is not to exceed the short form amount prescribed by item 15.2 of Schedule 3 to the...