KAUR v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION [2004] FMCA 110

MIGRATION – Application for review of a decision of the Migration Review Tribunal – applicant sister of the visa applicant – Preferential Relative (Migrant) (Class AY, subclass 104) visa – whether the Tribunal’s findings were errors constituting jurisdictional error and whether the decision falls within section 474 of the Migration Act therefore not invoking a privative clause decision – whether the Tribunal failed to address the proper meaning of special need relative – whether the Tribunal failed to characterise the nominator’s problems and needs – whether the Tribunal fell into error in failing to ask itself the correct question applying the definition of other serious circumstances.

Migration Act 1958 (Cth), s.474
Migration Regulations 1994 (Cth), Regs 1.03

Federal Court Rules

Federal Magistrates Court Rules

Su v Minister for Immigration and Multicultural and Indigenous Affairs (2001) FCA 1409
Chow v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 88
Hussein v Minister for Immigration & Multicultural & Indigenous Affairs (1999) FCA 1621
Wu v Minister for Immigration & Multicultural & Indigenous Affairs (2000) FCA 1817
Plaintiff S157/2002 v Commonwealth of Australia (2003) HCA 2
Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194
Fudeche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515

Applicant: NARJAN KAUR

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MZ 155 of 2003

Delivered on: 17 June 2004

Delivered at: Melbourne

Hearing date: 8 August 2003

Judgment of: Bryant CFM

REPRESENTATION

Counsel for the Applicant: Ms Langdon

Solicitors for the Applicant: Buxton & Associates

Counsel for the Respondent: Mr Livermore

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. In accordance with my reasons, I order that the Application be dismissed.

2. The Applicant pay the Respondent’s costs in default of agreement to be taxed pursuant to Order 62 of the Federal Court Rules having regard to Schedule 1 of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ155 of 2003

NARJAN KAUR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is the sister of the visa applicant. The visa applicant applied for a Preferential Relative (migrant) (class AY, subclass 104) visa on 6 July 1998 on the basis that the visa applicant was a special need relative of the applicant.

2. The applicant claimed, in general terms, that she required the assistance of her sister to look after her son and to provide her with help and support.  She said this was required because she had separated from her husband and was under a great deal of emotional stress as a result of the breakdown of her marriage and harassment by her estranged husband.  The applicant provided copies of documents including reports from a consultant psychiatrist.

3. On 8 March 2001 a delegate of the respondent refused the application on the basis that the assistance required by the applicant did not…