Minister for Immigration & Multicultural Affairs v Lim [2001] FCA 512

Minister for Immigration & Multicultural Affairs v Lim [2001] FCA 512

The Tribunal erred because, on its proper construction, reg 2.08E applies only where the applicant marries the prospective spouse after the Prospective Marriage visa application is made but before it is decided by the Minister or delegate. The visa application was refused by the delegate on 26 November 1998 and was therefore decided before the marriage on 20 April 2000 and before 1 November 1999, so reg 2.08E did not convert it into an application for a Partner (Migrant) (Class BC) visa.

Jurisdiction
Australia
Judgment Date
04 May 2001
Procedural Posture
Application for Review of a Decision of the Migration Review Tribunal / Final Judgment and Orders
Outcome
Application allowed; the Migration Review Tribunal's decision was set aside and the matter remitted to the Tribunal for determination in accordance with law.
Legal Topics
['prospective Marriage (temporary) (class To) Visa' 'partner (migrant) (class Bc) Visa' 'construction of Migration Regulations 1994 Reg 2.08 E' 'meaning of "decided"' 'migration Review Tribunal Review']
['migration Law' 'administrative Law'] ['prospective Marriage (temporary) (class To) Visa' 'partner (migrant) (class Bc) Visa' 'construction of Migration Regulations 1994 Reg 2.08 E' 'meaning of "decided"' 'migration Review Tribunal Review']

Case Brief

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Procedural Posture

Application for Review of a Decision of the Migration Review Tribunal / Final Judgment and Orders

Legal Issues

  1. 1 ['Whether the word "decided" in Migration Regulations 1994 reg 2.08E(2) and Migration Amendment Regulations 1999 (No 13) reg 5(4)(a) refers to a decision by the Minister or delegate, or to the Migration Review Tribunal\'s decision on review.' "Whether the visa applicant's Prospective Marriage (Temporary) (Class TO) visa application was taken to be an application for a Partner (Migrant) (Class BC) visa after the applicant married before the Tribunal's decision but after the delegate's refusal."]

Ratio Decidendi

The Tribunal erred because, on its proper construction, reg 2.08E applies only where the applicant marries the prospective spouse after the Prospective Marriage visa application is made but before it is decided by the Minister or delegate. The visa application was refused by the delegate on 26 November 1998 and was therefore decided before the marriage on 20 April 2000 and before 1 November 1999, so reg 2.08E did not convert it into an application for a Partner (Migrant) (Class BC) visa.

Court Disposition

Application allowed; the Migration Review Tribunal's decision was set aside and the matter remitted to the Tribunal for determination in accordance with law.

Orders

  • ['The decision of the Migration Review Tribunal be set aside.' 'The matter be remitted to the Tribunal for determination in accordance with law.']