Migration Law: Comprehensive Analysis of Migration Law Cases

This report provides a detailed analysis of two key cases in Australian migration law. The first case, Moustafa (Migration) [2019] AATA 267, examines the Administrative Appeals Tribunal's decision regarding a Prospective Marriage visa application, focusing on the application of the Migration Act 1958 and the Marriage Act. The analysis explores the legal requirements for visa approval, including health, character, and financial criteria, and the impact of the applicant's subsequent marriage. The second case, Maharjan v Minister For Home Affairs & Anor [2019] FCCA 433, delves into the Federal Circuit Court's consideration of an application for extending the time limit to apply for remedy under the Migration Act 1958, addressing issues of jurisdictional errors and delays in application. The report examines the court's interpretation of time limits, the reasons for the applicant's absence from court, and the impact of the tribunal's decisions on the applicant's student visa and family life, concluding with the court's ultimate decision.

Running head: MIGRATION LAW
MIGRATION LAW
Name of the Student:
Name of the University:
Author Note:

1MIGRATION LAW
Answer 1:
Issues:
In this question, the court considered is an Administrative Appeal Tribunal. The case that
has been referred to here is the case of Moustafa (Migration) [2019] AATA 267 (15 January
2019). The issues that have been adjudicated here was whether the Prospective Marriage
(Temporary) (Class TO) Visa1 can be granted to the visa applicant according to section 65 of the
Migration Act 195823, hereinafter referred to as the act. The present case is a review case of the
decision of the lower court which had refused to grant the visa.
According to section 65 of the said act, the Minister of Immigration must be satisfied
with the conditions laid down like with the health and other criteria of the applicant as per the
Act or the Migration Regulations Act 994. In addition to this, the Minister must be sure that the
granting of such visa should not be barred by the provisions of section 40, 91WA, 91WB of the
Migration Act 1958 or any other provisions enumerated in this Act or any other laws recognized
by the Commonwealth. Moreover, the applicant must have paid the required visa application fee.
If these conditions are not satisfied, it may not grant visa to the applicant.
In this case, the Administrative Tribunal has cancelled the review petition with the
directions to apply for Partner (Migrant) (Class BC) visa4 and a Partner (Provisional) (Class UF)5
1 Immi.Homeaffairs.Gov.Au (Webpage, 2019) https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/
prospective-marriage-300#howto.
2 The Migration Act 1958, s. 65.
3 "Migration Act 1958", Legislation.Gov.Au (Webpage, 2019)
<https://www.legislation.gov.au/Details/C2017C00384>.
4 "Partner Visa (Apply Overseas)", Immi.Homeaffairs.Gov.Au (Webpage, 2019)
https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/partner-offshore
5 "Partner Visa (Apply Overseas)", Immi.Homeaffairs.Gov.Au (Webpage, 2019)
https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/partner-offshore.

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visa. Hence in this case, the successful party was the Administrative Appeals Tribunal6. It
functions to review the decisions on merits under the Commonwealth laws of the Government of
Australia.
Rules & Application:
The decision given by the Tribunal in the instant case is discussed in reference to the
Migration Act and the Migration Regulations. The applicant applied for visa on 1st February,
2017 as the Prospective spouse of the sponsor but it was rejected by the delegate on May 4th,
2018. In this instant case, the tribunal has to consider three criteria mainly; the first being
whether the marriage of the visa applicant is legally valid, the second factor is whether she is
married to the sponsor and the third one is whether the marriage was solemnized after the
application of prospective visa is made.
While deciding the case, the Tribunal looked upon the provisions of section 12 of this act
and Part VA7 of the Marriage Act. Whether a marriage is valid or not is given by section 128 of
the said act. According to this particular section, Part VA of the Marriage Act applies as if
section 88E of the Act is excluded.
The recognition of foreign marriages is given under Part VA of the Marriage Act. The
objective of this part is to provide result to chapter II of the Convention9 signed on 14th March,
1978 at the city of Hague. This part VA contains sections 88A to 88G.
Section 88E of the Act declares that whether a marriage is valid or not does not affect the
Part. Sub section 1 enumerates that a marriage which was solemnized in a country outside
6 "Administrative Appeals Tribunal | Administrative Appeals Tribunal", Aat.Gov.Au (Webpage, 2019)
<https://www.aat.gov.au/>.
7 The Marriage Act 1961, Part VA.
8 The Migration Act 1958, s. 12.
9 Convention on Celebration and Recognition of the Validity of Marriages, Chapter II.

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Australia, that is foreign country, would be held as valid subject to sub section 2 which provides
that when a person who is domiciled in Australia got married in a foreign country, such marriage
will not be held as valid if any of the parties to the marriage has not attained the required
marriage.
Section 88G holds that a document being the original or certified copy of the marriage
certificate, issued by the concerned authority, will be treated as a proof of marriage when the
marriage is conducted outside Australia.
When the Tribunal was adjudicating the case, it looked upon the above mentioned
provisions of law. It was satisfied that section 12 was perfectly construed. It holds the view that
it is a valid marriage between the visa applicant and her sponsor which was solemnized after the
visa application was refused and the Tribunal was informed about this marriage too. Moreover
the parties produce marriage certificate issued by the Ministry of Inferior and Municipalities,
Tripoli, Lebanon which provides a valid proof of their marriage as per section 88G of the Part
VA of the Marriage Act. Section 8E is not applicable here.
Thus in accordance to Rule 2.08.E of the Migration Regulations10, the Tribunal is now
under obligation to remit the application of visa to the Minister such that it can reconsider it with
a direction that the applicant should now apply for the Partner Visa as she was not a Prospective
bride anymore.
Conclusion:
The Tribunal has made proper justification in this review case as per the provision
according the related law provisions.
10 The Migration Regulations 1994, r. 2.08E.

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Answer 2:
In this answer, the case which has been referred to is Maharjan v Minister For Home
Affairs & Anor [2019] FCCA 433.
Issues:
The issues that are found in this case are that whether the register is entitled to grant or
dismiss the application of praying for extension of 35 days period given in section 477 of the
Migration Act 1958 to apply remedy under s. 476 of this act. Section 477 specifies the time limit
for making applications to the Federal Circuit Court. It provides that an application to the Federal
court for granting remedy while exercising original jurisdiction of that court according to s. 476
in relation to migration issues must be made in the respective court within a period of 35 days
from the date when the migration decision was announced. It is at the discretion of the Federal
Court to extend such time limit or not. If the applicant can satisfy the Federal court with the
reasons why he needs such extension then the Court allow it. When the court is convinced that
such extension is needed for the administration of justice, it will allow such extension. This type
of extensions will not interfere in the validity of the migration decision. The jurisdiction of court
is given in section 476 of the act.
Rules & Application:
The decision given in this case was in the favor of the applicant and the Federal court
held that the decision of the registrar is to be dismissed.
While deciding this type of cases, the judges decided for the applicant by considering the
following facts and provisions of the given provisions of law. Firstly, the judge interpreted why
the registrar dismissed the application to extend the time limit. The reason behind such dismissal

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is that the applicant did not appear in the court on the first date. The application was dismissed as
per rule 13.03.C(1)(c)11 of the FCC rules which holds that when the applicant party himself is
absent in the first court date, the Registrar has the power to dismiss it.
The judge in this case also tried to discuss the reason behind the absence of the applicant
on the first court date. Though the applicant gave few reasons for his absence, he failed to
convince the judge with those reasons. In addition to this, the applicant made delay in making the
application to dismiss the decision of the registrar. The registrar dismissed the application on
April 26, 2018 and he made the application on January 9, 2019. The applicant did not furnish
appropriate explanations for the delay.
In this case, the judge had attempted to find out the cause behind the decision of the
tribunal against the applicant. The application was made before the tribunal to review the
delegate’s decision of not granting the student visa to the applicant. The delegate did not grant
him the student visa as the applicant did not satisfy the provisions of cl.500.312 of Schedule 2 to
the Regulations12.
The judge analyzed that the tribunal did not grant him the student visa as it did not look
into the relationship of the applicant with his wife who was on the student visa. The applicant
filed the visa application not only for the continuation of the education at Australia but also to
maintain a healthy conjugal life with his wife. The tribunal not only decided on whether the
applicant’s wife was a valid applicant for entry and stay as a student in Australia. Further the
tribunal did not look into the history of education of the applicant. All these factors contributed
to the jurisdictional errors on the tribunal’s part.
11 The Federal Circuit Court Rules, r.13.03C(1)(c).
12 The Migration Regulations 1994, Schedule 2, cl.500.312.

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The judge before making the final verdict considered and stressed upon two facts mainly;
firstly the delay made by the applicant to file the application to extend time limit and secondly,
the jurisdictional errors on the part of the Tribunal. He found that the applicant had option of
obtaining an order under section 477(2)13 of the act. The judges shifted and weighed these two
factors very minutely and found that the jurisdictional errors overweigh the inappropriate
explanations provided by the applicant.
Conclusion:
Thus from the above discussion, the conclusion is reached is that the judge made an
appropriate decision in the favor of the applicant. Here the applicant is the successful party.
13 The Migration Act 1958, s. 477(2).

7MIGRATION LAW
References:
"Administrative Appeals Tribunal | Administrative Appeals Tribunal", Aat.Gov.Au (Webpage,
2019) <https://www.aat.gov.au/>
"Migration Act 1958", Legislation.Gov.Au (Webpage, 2019)
https://www.legislation.gov.au/Details/C2017C00384
"Partner Visa (Apply Overseas)", Immi.Homeaffairs.Gov.Au (Webpage, 2019)
<https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/partner-offshore>
Convention on Celebration and Recognition of the Validity of Marriages, Chapter II
Immi.Homeaffairs.Gov.Au (Webpage, 2019) https://immi.homeaffairs.gov.au/visas/getting-a-
visa/visa-listing/prospective-marriage-300#howto
The Federal Circuit Court Rules
The Marriage Act 1961
The Migration Act 1958
The Migration Regulations 1994
The Migration Regulations 1994, Schedule 2