ENANO v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ENANO v MINISTER FOR IMMIGRATION [2004] FMCA 534

MIGRATION – Appeal from Migration Review Tribunal decision – jurisdictional error – “special need relative” – substantial and continuing assistance – assistance reasonably obtainable from other sources – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.474
Migration Regulations 1994 (Cth), regulation 1.03, Schedule 2

Craig v South Australia (1995) 184 CLR 163
Jun v Minister for Immigration & Multicultural Affairs [2000] FCA 867
Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24

Applicant: MERLINA ENANO

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MZ 24 of 2003

Delivered on: 3 September 2004

Delivered at: Melbourne

Hearing date: 28 October 2003

Judgment of: Connolly FM

REPRESENTATION

Counsel for the Applicant: Mr Hurley

Solicitors for the Applicant: Armstrong Ross

Counsel for the Respondent: Mr Horan

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. THAT the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 24 of 2003

MERLINA ENANO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

1. This judgment arises from an application filed by the applicant on

   
   

   18 January 2003 seeking judicial review of the decision of the Migration Review Tribunal on 19 December 2002 to affirm the decision of delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a Family (Residence) (Class AO) (sub-class 806 “special need relative”) visa.

The history

1. The applicant is a female national of The Phillipines.  She came to Australia on 31 January 1998 on a Short-Stay (Visitor) (Class TR) visa, which was valid until 31 April 1998.  On 17 April 1998 the applicant applied for a Family (Residence) (Class AO) (sub-class 806 “special need relative”) visa.  The applicant claimed that she was a special need relative of her father (“the nominator”) who has numerous medical problems.  Specifically, the applicant claimed that the medical and welfare services in Australia could not provide the emotional and psychological support required by her father and the father’s other relatives in Australia (the applicant’s siblings) could not, or were unwilling to, provide the necessary emotional, psychological and physical assistance.

2. On 17 October 2001, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant the visa; the applicant applied to the Migration Review Tribunal (“the Tribunal”) for review of that decision on 7 November 2001. In the decision made by the Tribunal on 19 December 2002, the Tribunal affirmed the decision of the delegate not to grant the visa. Specifically, the Tribunal held that the applicant was not a “special need relative” at the time she lodged her application and thus the Tribunal did not need to consider whether the applicant was a “special need relative” at the time of the Tribunal’s determination (as required by clauses 806.213 and 806.221 of Schedule 2 of the Migration Regulations 1994 (Cth)). The Tribunal…