Qin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 490

FEDERAL COURT OF AUSTRALIA

Qin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 490 Appeal from: Qin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1566

File number: NSD 815 of 2021

Judgment of: KATZMANN J

Date of judgment: 6 May 2022

Catchwords: MIGRATION –appeal – where primary judge dismissed application for judicial review of decision of Administrative Appeals Tribunal to affirm decision of Minister's delegate to refuse to grant appellant a subclass 820 Partner visa – where appellant did not satisfy cl 820.211(2)(d)(ii) of Migration Regulations 1994 (Cth) and delegate found there were no compelling reasons for waiving Sch 3 criteria – where review available only for jurisdictional error –whether primary judge erred by failing to have regard to the genuineness and long-lasting nature of the relationship – whether primary judge erred by failing to have regard to the emotional hardship of separation during IVF treatment and procedure PRACTICE AND PROCEDURE – whether leave should be granted to enable applicant to allege errors by Tribunal not raised below

Legislation: Migration Act 1958 (Cth) ss 5F, 14, 65, 348, 476, 499 Migration Regulations 1994 (Cth) sch 2 cl 155.212, sch 3 cll 820.21, 820.211 Migration Regulations (Amendment) 1996 No 75 (Cth)

Cases cited: Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1166 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 Choi v Minister for Immigration and Border Protection [2018] FCA 291 CQV16 v Minister for Immigration and Border Protection [2019] FCA 1098 Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 Hassan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2014 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; 115 ALD 303 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17, 95 ALJR 441 NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204 Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 75 ALJR 982 Sagnata Investments Ltd v Norwich Corporation [1971] 2 QB 614 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 Waensila v Minister for Immigration and Border Protection (2016) 241 FCR 121