NACN v Minister for Immigration and Multicultural Affairs

[2002] FCA 473

FEDERAL COURT OF AUSTRALIA

NACN v Minister for Immigration & Multicultural Affairs [2002] FCA 473

Migration Act 1958 (Cth) s 48

Migration Regulations 1994 (Cth) Reg 2.12, Schedule 2 subclause 832.211(3)

NACO v Minister for Immigration & Multicultural Affairs [2002] FCA 474

NACN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1573 OF 2001

HELY J
19 APRIL 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1573 OF 2001

BETWEEN:	NACN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	19 APRIL 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed with costs.

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 1573 OF 2001

BETWEEN:	NACN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	19 APRIL 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This matter was heard in conjunction with NACO v Minister for Immigration & Multicultural Affairs [2002] FCA 474.

2. The applicant entered Australia on 2 February 1989 when she was 19 years old.

3. On 14 March 1995 the applicant applied for a protection visa. On 30 September 1996 the Minister’s delegate refused her application. In consequence of that refusal, s 48 of the Migration Act 1958 (Cth) applied to the applicant such that thereafter she could only apply for a visa of a class listed in Regulation 2.12 of the Migration Regulations 1994 (Cth).

4. On 19 November 2001 the applicant applied for a Special Eligibility (Residence) Class AO visa on the ground of being a prospective spouse.  By letter of 22 November 2001 the Minister’s delegate advised the applicant that the visa application was not valid.  The letter contained the same error as to the number of the subclass of the visa for which the application was made, and the same inadequacy as to the expression of the reason for invalidity as was the case in NACO v Minister for Immigration & Multicultural Affairs (supra).

5. By application lodged with the Court on 28 November 2001 review of the decision of the delegate of the Minister given on 22 November 2001 was sought.  An amended application was also filed on the morning of the hearing in the same circumstances as the amended application was allowed to be filed in NACO.  The grounds on which review is sought are materially the same.

6. On 7 February 2002 the respondent lodged a Notice of Objection to Competency of the application on the same grounds (mutatis mutandis) as those relied upon in NACO.  Paragraph 5 of that Notice is as follows:

   “Given that the applicant was aged 19 upon her arrival upon her last arrival (sic) in Australia she cannot, under any circumstances, satisfy the requirements of subclause 832.211(3) of Schedule 2 of the Regulations.”

   Those statements are incontrovertibly correct.

7. For the reasons given in NACO v Minister for Immigration & Multicultural Affairs (supra), the proceedings should be dismissed pursuant to Order 20 rule 2 as they are doomed to failure.

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

Associate:

Dated:             19 April 2002

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	R Bromwich
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	3 April 2002
Date of Judgment:	19 April 2002