Sok v Minister for Immigration and Citizenship [2008] HCA 50

HIGH COURT OF AUSTRALIA

GUMMOW, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ

SIE SOK APPELLANT

AND

MINISTER FOR IMMIGRATION AND

CITIZENSHIP & ANOR RESPONDENTS

Sok v Minister for Immigration and Citizenship [2008] HCA 50

16 October 2008

M60/2008

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Full Court of the Federal Court of Australia made on 5 March 2008 and 2 April 2008 and in their place order that the appeal to that Court be dismissed with costs.

On appeal from the Federal Court of Australia

Representation

D S Mortimer SC with R M Niall for the appellant (instructed by Erskine Rodan & Associates)

M A Perry QC with W S Mosley for the first respondent (instructed by Australian Government Solicitor)

Submitting appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Sok v Minister for Immigration and Citizenship

Citizenship and migration – Visa – Spouse visa – Non-judicially determined claim of domestic violence – Grant of relevant permanent visa required visa applicant to remain spouse of sponsor at time of grant – Exception where relationship had ceased and visa applicant had suffered domestic violence committed by sponsoring spouse – Minister's delegate not satisfied applicant was spouse of sponsor – Grant of visa refused – After Minister's refusal, applicant claimed to have suffered domestic violence – Timing of claim – Whether domestic violence exception can be engaged where applicant first raises domestic violence claim in application to Migration Review Tribunal ("Tribunal") for review of Minister's refusal – Whether Div 1.5 of Migration Regulations 1994 (Cth) ("Regulations") applies to review by Tribunal or confines criteria for grant of visa to claims before original decision-maker.