KODAMA v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KODAMA v MINISTER FOR IMMIGRATION [2002] FMCA 262

MIGRATION – Review of Migration Review Tribunal decision affirming a delegate’s refusal to grant a spouse visa – whether the MRT decision shows a lack of good faith – whether an inviolable pre-condition on the exercise of power by the MRT was breached – whether the applicant was misled by the MRT in the provision of information – whether the MRT applied the wrong definition of “spouse” – declaration of invalidity granted.

Migration Act 1958 (Cth), ss.65, 353, 420, 474, 499

Migration Regulations 1994
Freedom of Information Act 1982 (Cth)
Privacy Act 1988 (Cth)

NAAV v Minister for Immigration [2002] FCAFC 228
NAGT of 2002 v Minister for Immigration [2002] FCAFC 319
NAIN v Minister for Immigration [2002] FMCA 177
SCAZ v Minister for Immigration [2002] FCA 1377
The Queen v Coldham; ex parte Australian Workers Union (1983) 153 CLR 415
WADK v Minister for Immigration [2002] FMCA 175
Wu v Minister for Immigration [2002] FCA 1242
Zahid v Minister for Immigration [2002] FCA 1108

Applicant: NOBUKO KODAMA

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ418 of 2002

Delivered on: 29 November 2002

Delivered at: Sydney

Hearing Date: 30 October 2002

Judgment of: Driver FM

REPRESENTATION

Solicitors for the Applicant: Mr R Turner
Yandell Wright Stell

Solicitors for the Respondent: Mr G Peek
Australian Government Solicitor

THE COURT DELCARES THAT

1. The decision of the Migration Review Tribunal made on 20 May 2002 is invalid and of no effect.

THE COURT DIRECTS THAT

1. The parties have liberty to apply for further orders arising out of these orders on five days notice.

THE COURT ORDERS THAT

1. The respondent is to pay the applicant’s costs and disbursements of and incidental to the application, fixed at $3,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ418 of 2002

NOBUKO KODAMA

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks judicial review of a decision of the Migration Review Tribunal (“the MRT”) made on 20 May 2002.  The MRT affirmed a decision of a delegate of the respondent Minister refusing to grant the applicant a spouse (migrant) (class BC) visa.  The applicant is a Japanese national, born on 13 January 1970, who first applied for permanent residence on 26 July 1996.  On 11 June 1997 the applicant  was granted an extended eligibility (temporary) (class TK) sub class 820 visa. 

2. The immigration history of the applicant shows that she entered Australia on a sub class 670 (tourist) visa on 20 June 1993.  That visa expired on 21 September 1993 and she left Australia on 11 July 1993. She returned to Australia on a further sub class 670 (tourist) visa on 23 December 1994 and left Australia again on 7 January 1995.  She then applied for and obtained a working holiday visa and arrived in Australia on 1 August 1995.  During the life of that visa she applied for a sub class…