Kryeziu v Minister for Immigration and Multicultural Affairs

[2001] FCA 1405

FEDERAL COURT OF AUSTRALIA

Kryeziu v Minister for Immigration & Multicultural Affairs [2001] FCA 1405

NADIRE KRYEZIU v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1032 OF 2001

EMMETT J
24 AUGUST 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1032 OF 2001

BETWEEN:	NADIRE KRYEZIU APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	24 AUGUST 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application be dismissed.

2.   The applicant pay the respondent’s costs.

3.   The respondent inform the applicant in writing of the effect of Order 35 Rule 7 of the Federal Court Rules.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1032 OF 2001

BETWEEN:	NADIRE KRYEZIU APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	24 AUGUST 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a national of Germany, born on 1 September 1951.  She applied for a Family 806 (Residence) (Class AO) visa on 6 December 1996.  On 25 August 1999, a delegate of the respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”), refused to grant the visa.  The applicant lodged an application for review to the Migration Review Tribunal (“the Tribunal”) on 23 September 1999.  On 1 June 2001, the Tribunal affirmed the decision, finding that the applicant was not entitled to the grant of a Family 806 (Residence) (Class AO) visa.  The applicant now seeks review of the Tribunal’s decision by the Court.

2. Today is the first return date for the application.  When the matter was called on today, there was no appearance for the applicant.  The Minister therefore asked for dismissal of the application pursuant to Order 10 Rule 3 of the Federal Court Rules.  That rule provides for summary dismissal where there is no appearance for the applicant on a directions hearing. 

3. At the time of the application, Class AO contained a number of sub-classes.  The only sub-class in respect of which any claims were advanced to the Tribunal was sub-class 806 in respect of a special need relative ground.  The Tribunal in its reasons said that there is no evidence to suggest that the visa applicant meets key criteria for other sub-classes. 

4. One of the criteria to be satisfied at the time of application for the grant of a sub-class 806 visa is contained in clause 806.213.  That clause provides that the visa applicant is a special need relative of another person.  The definition of special need relative in the regulations is as follows:

   “Special need relative in relation to an Australian citizen usually resident in Australia … means a relative who is willing and able to provide substantial and continuing assistance to the citizen…if:

   (a)   the citizen …has a permanent or long term need for assistance because of …serious circumstances affecting the citizen …;and

   (b)    the assistance cannot reasonably be obtained from:

   (i)any other relative of the citizen…; or

   (ii)welfare, hospital, nursing or community services in Australia.”

   An additional requirement is that the Australian citizen in question must be “settled”. That term is defined as being lawfully resident in Australia for a reasonable period.

5. The claim made by the applicant was to be a special need relative in respect of her mother, who is an Australian resident.  The Tribunal based its decision on a number of grounds.  First, the Tribunal doubted that the applicant’s mother met the requirement of being settled.  In addition, the Tribunal was not satisfied that the applicant’s mother, as at the date of application, suffered from such serious circumstances that she then had a permanent or long-term need for assistance.  It followed, in the Tribunal’s view, that at the date of the application the visa applicant did not meet the definition of special need relative. 

6. The Tribunal also concluded that the applicant was not a full time carer of her mother until 11 November 1999 when the applicant and her mother returned to Sydney from an overseas visit to Germany.  Thus, it was almost three years after the application was made that that requirement was satisfied.  The Tribunal accepted that the applicant's mother currently requires 24-hour care, which could not be provided by welfare or community services unless the mother was placed in a nursing home.  However, the Tribunal concluded that the need for that degree of care was not apparent from any evidence explaining the mother’s condition on 6 December 1996.  The Tribunal therefore found that the applicant was not a special need relative in relation to her mother at the time of the visa application. 

7. The grounds of review do not disclose any ground within s 476(1) of the Migration Act 1958 (Cth). The grounds of review appear to be a complaint about incorrect factual findings made by the Tribunal. In the circumstances, it appears to me to be appropriate to accede to the Minister’s request that the application be dismissed with costs. However, I will direct the Minister to inform the applicant of the provisions of the rules relating to summary dismissal of a proceeding in the absence of an applicant.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:  12 October 2001

Counsel for the Applicant:	No appearance
Solicitors for the Respondent:	Clayton Utz
Date of Hearing:	24 August 2001
Date of Judgment:	24 August 2001