Biyiksiz v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 814
MIGRATION – visa – family visa – special need relative – whether substantial and continuing assistance needed by applicant’s mother could ‘reasonably be obtained’ from welfare, hospital, nursing or community services in Australia – whether determined by reference to reasonable availability of services or by reference to reasonable obtainability by person requiring assistance – relevance of factors subjective to person requiring assistance – whether failure to construe definition correctly resulted in failure to take into account a relevant consideration – whether jurisdictional error – form of order where tribunal not a party
WORDS & PHRASES – ‘special need relative’, ‘cannot reasonably be obtained’
SUNA BIYIKSIZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 386 of 2003
GRAY J 28 JUNE 2004 MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 386 of 2003
BETWEEN:
SUNA BIYIKSIZ APPLICANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:
GRAY J
DATE OF ORDER:
28 JUNE 2004
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The applicant have leave to amend her application, to add as a ground the following:
‘3.The Tribunal failed to take into account a relevant consideration, namely whether the assistance required by the applicant’s mother could not reasonably be obtained from welfare, hospital, nursing or community services in Australia.’
2. On or before 5 July 2004, the applicant file and serve an amended application.
3.It be declared that the decision of the Migration Review Tribunal, made on 22 April 2003, affirming the decision under review and finding that the applicant is not entitled to the grant of a Family (Resident) (Class AO) visa, is void and of no effect.
4. Liberty to apply be reserved.
5. The respondent pay the applicant’s costs of the proceeding.
6.This order not be entered until the applicant complies with paragraph 2 of this order.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 386 of 2003
BETWEEN:
SUNA BIYIKSIZ APPLICANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:
GRAY J
DATE:
28 JUNE 2004
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The nature of…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Biyiksiz v MIMIA [2004] FCA 814
Case
[2004] FCA 814
Decision Date
CaseChat Overview and Summary
Biyiksiz v MIMIA involved a dispute between the applicant, Biyiksiz, and the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA). The applicant, a Turkish citizen, sought a Family (Resident) (Class AO) visa on the basis of her relationship with her Australian citizen husband. The Migration Review Tribunal had previously affirmed the decision to deny the visa application, prompting the applicant to seek judicial review of that decision. The legal issues in this case centred on whether the Tribunal had correctly interpreted and applied the relevant legislation in making its decision. Specifically, the court had to consider whether the Tribunal had failed to take into account a relevant consideration, namely whether the assistance required by the applicant’s mother could not reasonably be obtained from welfare, hospital, nursing, or community services in Australia.
The court found that the Tribunal had indeed failed to consider this relevant factor. The court held that the Tribunal's decision was flawed because it did not address whether the applicant’s mother's care needs could be met by existing Australian services. The court found that this omission constituted a significant error, as it affected the Tribunal’s overall assessment of the applicant’s circumstances. The court concluded that the Tribunal’s decision was therefore legally flawed and should be quashed. The court also found that the Tribunal’s failure to consider this relevant matter rendered its decision void and of no effect.
As a result of this finding, the court granted the applicant leave to amend her application to include this additional ground. The court ordered that the Tribunal’s decision be declared void and of no effect and that the respondent pay the applicant’s costs of the proceeding. The court further ordered that the applicant file and serve an amended application by a specified date. The court reserved liberty to apply for further orders, pending the applicant's compliance with the requirements of the order.
Orders
Orders of the court
1. The applicant have leave to amend her application, to add as a ground the following:
‘3. The Tribunal failed to take into account a relevant consideration, namely whether the assistance required by the applicant’s mother could not reasonably be obtained from welfare, hospital, nursing or community services in Australia.’
2. On or before 5 July 2004, the applicant file and serve an amended application.
3. It be declared that the decision of the Migration Review Tribunal, made on 22 April 2003, affirming the decision under review and finding that the applicant is not entitled to the grant of a Family (Resident) (Class AO) visa, is void and of no effect.
4. Liberty to apply be reserved.
5. The respondent pay the applicant’s costs of the proceeding.
6. This order not be entered until the applicant complies with paragraph 2 of this order.