Kuar, R v Bolkus, N

[1994] FCA 60

RAJ KUAR and ASHWANI SINGH v. THE HONOURABLE NICK BOLKUS, MINISTER OF STATE
FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. G763 of 1993
FED No. 60/94
Number of pages - 5
Immigration Law
(1994) 48 FCR 343
(1994) 33 ALD 741 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
BEAUMONT, FOSTER AND DRUMMOND JJ

CATCHWORDS

Immigration Law - review of decision of Minister refusing December 1989 (temporary) entry permit - whether declaration of right should have been made - whether compassionate ground relating to extreme hardship or irreparable prejudice to Australian citizen exists - whether failure to give proper consideration to alleged hardship.

Administrative Decisions (Judicial Review) Act 1977

Migration Act 1958

Minister for Immigration and Ethnic Affairs v Naumovska (1983) 88 ALR 589 cons.

Kyung Chol Kim v Minister for Immigration, Local Government and Ethnic Affairs (unreported, Wilcox J, 26 February 1993) cons.

HEARING

SYDNEY, 24 February 1994
#DATE 24:2:1994

Counsel and Solicitors Mr. N.J. Williams instructed by
for the Appellants: John McEncroe and Company

Counsel and Solicitors Mr. J. Basten QC instructed by
for Respondent: the Australian Government Solicitor

ORDER

THE COURT ORDERS:
Appeal dismissed, with costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

BEAUMONT, FOSTER AND DRUMMOND JJ This is an appeal in a migration matter in which Lockhart J dismissed an application for judicial review of the decision of the respondent, the Minister of State for Immigration, Local Government and Ethnic Affairs, made on 12 June 1992 refusing to grant a "December 1989 (temporary) entry permit" to the first appellant, Raj Kuar ("Mrs. Kuar"). The second appellant, Ashwani Singh ("Mrs. Singh"), is the daughter of Mrs. Kuar. Relief was sought at first instance pursuant to the Administrative Decisions (Judicial Review) Act 1977 and pursuant to s.39B of the Judiciary Act 1903. The Court's accrued jurisdiction was also relied upon.

THE FACTS FOUND AT FIRST INSTANCE
2. The material findings of fact made by Lockhart J may be summarised as follows.

1. Mrs. Kuar is an Indian Fijian citizen. She was born on 7 October 1946. She arrived in Australia on 12 December 1987 on a visitor's visa which expired on 16 March 1988. She has remained in Australia illegally since then. She is divorced and has four children, three of whom reside in Australia. Her eldest daughter, who is also divorced, lives in Fiji where she supports three children. They live in poverty.

2. Mrs. Singh arrived in Australia from Fiji in May 1987. At the time of the hearing at first instance, she was 24 years of age. She separated from her first husband in January 1988, that is some six or seven months after arrival in this country. She is divorced from her first husband. She became an Australian citizen in November 1989 and married her present husband on 30 April 1990. Her present husband came to Australia in August 1990, also from Fiji. She has a…