Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480

Federal Court of Australia

Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480 Appeal from: Promsopa v Minister for Immigration & Anor [2020] FCCA 546

File number: WAD 53 of 2020

Judgment of: ALLSOP CJ

Date of judgment: 14 October 2020

Catchwords: MIGRATION – appeal from decision of Federal Circuit Court – where appellant granted partner visa – where visa subsequently cancelled under s 109 of the Migration Act 1958 (Cth) after Department became aware that appellant was no longer in a genuine relationship with her sponsor at the time the visa was granted and thus did not comply with s 104 – where decision affirmed on review by Administrative Appeals Tribunal – where application for judicial review dismissed by Federal Circuit Court – where appellant self-represented – where Tribunal questioned appellant about potential breach of the law – whether Tribunal should have administered a warning about the appellant's right to invoke the privilege against self-incrimination – whether Tribunal failed to afford appellant procedural fairness – appeal allowed MIGRATION – appeal from decision of Federal Circuit Court – where appellant granted partner visa – where appellant has a young child who is an Australian citizen and was born in Australia – where father of child is a temporary resident in Australia – where visa subsequently cancelled under s 109 of the Migration Act 1958 (Cth) after Department became aware that appellant was no longer in a genuine relationship with her sponsor at the time the visa was granted and thus did not comply with s 104 – where decision affirmed on review by Administrative Appeals Tribunal – where application for judicial review dismissed by Federal Circuit Court – whether Tribunal's decision to affirm visa cancellation decision affected by jurisdictional error – whether Tribunal failed to take best interests of the child into account as a primary consideration – appeal allowed