Monakova v MIMA

[2006] FMCA 849

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MONAKOVA v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 849

MIGRATION − Refugee Review Tribunal − application for spouse visa in Australia − whether "compelling reasons for not applying criteria" – jurisdictional error − whether applicant’s ability to remain in Australia while awaiting grant of aged parent visa relevant to "compelling reasons" – irrelevant consideration taken into account.

Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)

Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30
Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707

Applicant: KAMILLA MONAKOVA

Respondents: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS and MIGRATION REVIEW TRIBUNAL

File number: MLG 1676 of 2005

Judgment of: Phipps FM

Hearing date: 4 May 2006

Date of last submission: Nil

Delivered at: Melbourne

Delivered on: 16 June 2006

REPRESENTATION

Counsel for the Applicant: C Symons

Solicitors for the Applicant: Clothier Anderson & Associates

Counsel for the Respondent: C Horan

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The decision of the second respondent made on 23 November 2005 upholding the decision of the delegate of the first respondent made on 22 March 2005 to refuse the applicant the grant of a spouse visa be set aside.

2. There be an order in the nature of a writ of mandamus remitting the matter to the second respondent and requiring that the second respondent hear and determine the matter according to law.

3. The First Respondent pay the Applicant’s cost fixed at $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1676 of 2005

KAMILLA MONAKOVA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS and MIGRATION REVIEW TRIBUNAL

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant has been refused a temporary spouse visa and the refusal affirmed by the Migration Review Tribunal.

2. To obtain the visa, the applicant had to show compelling circumstances. The Tribunal found they were not compelling circumstances.  The applicant claims that the Tribunal took into account an irrelevant consideration.  The Tribunal took into account that the refusal of the spouse visa application will not result in the enforced separation of the applicant and her spouse.  This is because the visa applicant holds a bridging visa and is in the queue awaiting the processing of her application for an aged parent visa.

3. The applicant argues that this is an irrelevant consideration, and that by taking it into account, the Tribunal exceeded its jurisdiction.

History

1. The applicant is a female citizen of the Russian Federation, now 75 years old.  She last arrived in Australia on 4 October 2002 as the holder of a visitor visa.  She has remained in Australia since then.

2. On 24 October 2002, the applicant lodged an application for an Aged Parent visa, sponsored by her only child, who is an Australian citizen.  On 27 April 2004, the applicant was placed in the queue for a parent visa.  This means that the applicant meets the key criteria for the visa and her application will be processed when places become available.

3. On 16…