Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Bautista v Minister for Immigration and Border Protection [2018] FCA 1114 Appeal from: Bautista v Minister for Immigration & Anor [2017] FCCA 702; (2017) 318 FLR 205
File number: NSD 626 of 2017
Judge: COLLIER J
Date of judgment: 27 July 2018
Catchwords: MIGRATION – application for partner visa – appeal against dismissal by Federal Circuit Court of application for judicial review of Tribunal decision – where Tribunal sent appellant a letter pursuant to s 359A of the Migration Act 1958 (Cth) (the Act) – where Tribunal extended period during which to respond to s 359A letter in accordance with s 359B(4) and reg 4.18A(4) and calculated the last day for response as 21 August 2014 – where appellant responded on 22 August 2014 – revocation of offer to attend hearing at the Tribunal under s 360 of the Act for failure to respond to s 359A letter within statutory time limit – effect of s 363A of the Act – whether Tribunal miscalculated length of prescribed further period under s 359B(4) of the Act– whether Tribunal erred by not conducting a hearing in accordance with s 360 of the Act MIGRATION – requirements for s 359A letter – whether the Tribunal failed to give the appellant clear particulars of information it considered would be the reason or part of the reason for affirming the decision under review – degree of particularity required in s 359A letter STATUTORY INTERPRETATION – interpretation of s 359B(4) of the Act –– interaction of s 359B(2) and s 359B(4) of the Act, and regs 4.17 and 4.18A of the Migration Regulations 1994 (Cth) (the Regulations) – whether primary Judge erred in interpretation of reg 4.18A(4) – validity of reg 4.18A(4) of the Regulations – whether reg 4.18A(4) led to manifest arbitrariness or a result inconsistent with the intention of s 359B(4) of the Act – effect of invalidity of regulation prescribing statutory time limit – whether power under the Act is dependent on existence of prescription by regulation – whether time requirement can be read into s 359B(4) in the absence of prescription by regulation
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