SZSLA v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judge: COLVIN J
• Judgment Date: 07 July 2020
• Neutral Citation: [2020] FCA 944
• Date: 07 July 2020
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

SZSLA v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 944

Appeal from:	SZSLA v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 2824
File number:	NSD 2154 of 2019
Judge:	COLVIN J
Date of judgment:	7 July 2020
Catchwords:	MIGRATION - appeal from decision of Federal Circuit Court dismissing application for judicial review of decision of the Administrative Appeals Tribunal - where Tribunal affirmed delegate's decision to refuse appellants' application for partner visa - whether primary judge erred in failing to find Tribunal did not engage in active intellectual process when considering fundamental part of claim - where first appellant claimed he was father to four children in Australia - consideration of jurisdictional error on basis of failure to engage in active intellectual process in forming required state of satisfaction - appeal allowed
Legislation:	Migration Act 1958 (Cth) s 65 Migration Regulations 1994 (Cth) Schedule 2 cl 820.211, Schedule 3 criterion 3001
Cases cited:	Ali v Minister for Home Affairs [2019] FCA 1900 Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 AXT19 v Minister for Home Affairs [2020] FCAFC 32 Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 Bondelmonte v Bondelmonte [2017] HCA 8; (2017) 259 CLR 662 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713 Minister for Home Affairs v Omar [2019] FCAFC 188 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 Navoto v Minister for Home Affairs [2019] FCAFC 135 Nobarani v Mariconte [2018] HCA 36; (2018) 265 CLR 236 Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 Singh v Minister for Home Affairs [2020] FCAFC 7 Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 SZQPY v Minister for Immigration and Border Protection [2018] FCA 359 Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 269 FCR 225
Date of hearing:	23 June 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	95
Counsel for the Appellants:	Mr C Jackson with Mr P Berg
Solicitor for the Appellants:	KWL Lawyers
Counsel for the First Respondent:	Mr N Swan
Solicitor for the First Respondent:	Mills Oakley Lawyers
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

		NSD 2154 of 2019
BETWEEN:	SZSLA First Appellant ; BCX19 Second Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	COLVIN J
DATE OF ORDER:	7 JULY 2020

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The decision of the Federal Circuit Court made on 27 November 2019 be set aside and in lieu thereof it be ordered that:

   1. the decision of the second respondent be set aside; and

   2. the first respondent do pay the costs of the application, save that the order as to costs referred to in [19] of the reasons of the primary judge delivered on 27 November 2019 shall not be disturbed.

3. The matter be remitted to the second respondent for determination according to law.

4. The first respondent do pay the costs of the appeal to be assessed on a lump sum basis if not agreed.

5. If it is necessary to assess costs then:

   1. the appellant may file and serve an affidavit constituting a Costs Summary in accordance with the Court's Cost Practice Note (GPN-COSTS);

   2. within 14 days of service of the Costs Summary the first respondent do file and serve any costs proposal in accordance with GPN-COSTS; and

   3. if either party thereafter requests a determination of an appropriate lump sum figure then the matter shall be referred to a Registrar for determination of the lump sum on the papers and determination of the date by which the costs as assessed shall be payable.

6. There be liberty to apply within 7 days to vary the orders as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1. The first appellant came to Australia in 2008 on a student visa that expired in 2010. He overstayed. In 2011, he applied for a protection visa with his then de facto partner. Their application was unsuccessful, as was their application to review the refusal of the visa and their further application for judicial review. They then sought Ministerial intervention based on their protection claims but that too was finally refused in mid-2014. In early December 2014, the first appellant married his now wife. His wife has two children from a previous relationship.

2. The second appellant is a daughter of the relationship between the first appellant and his now former de facto partner.

3. In 2015, the first appellant applied for a temporary partner visa. His sponsor was his new wife. The second appellant joined in the visa application by her father as a dependent and her position stands or falls on the claims advanced by her father. For that reason, in the balance of these reasons I will refer to the first appellant as the appellant.

4. Relevantly for present purposes, an applicant for a temporary partner visa in Australia must make such an application within 28 days of expiry of a substantive visa. If that is not the case (and there was no suggestion in present proceedings that the relevant application was brought within the 28 day period) then the Minister must be 'satisfied that there are compelling reasons for not applying' that criterion: see cl 820.211 of Schedule 2 and criterion 3001 of Schedule 3 to the Migration Regulations 1994 (Cth).

5. The application for a temporary partner visa was refused by a delegate of the Minister and the refusal was affirmed by the...