Fraser v Minister for Immigration and Multicultural and Indigenous Affairs

The case of Fraser v Minister for Immigration and Multicultural and Indigenous Affairs involved the applicant, who had been granted a subclass 806 visa due to the need for substantial and continuing assistance from him by his brother, the nominator, who was suffering from a prolonged illness. The primary issue before the court was whether the applicant continued to satisfy the criterion for the visa at the time of the decision, specifically as of 9 July 2001, the date on which the Migration Review Tribunal (MRT) published its reasons. The legal question hinged on the interpretation of clause 806.221 of the Regulations, which required the applicant to continue to meet the criterion in clause 806.213 at the time of the decision.

The court considered the evidence presented to the MRT, including the reports of Dr Kleynhans, which were based on a single interview. The MRT had discounted the second report of Dr Kleynhans for being prepared without knowledge of the nominator's remarriage. The tribunal also noted that the nominator and the applicant had not resided together since September 1999. The MRT accepted that the nominator was suffering from depression at the time the visa application was lodged but was critical that the applicant did not provide sufficient evidence of the nominator’s condition at the time of the MRT's decision.

The court found that the evidence presented did not sufficiently establish that the nominator continued to need substantial and continuing assistance from the applicant at the time of the decision. Therefore, the applicant did not meet the criterion for the visa as required by clause 806.221 of the Regulations. The court upheld the MRT's decision to reject the applicant's claim for a subclass 806 visa.

ORDERS:
1. The application be dismissed.
2. The applicant pay the respondent’s costs.