Ousmand v Minister for Immigraiton and Multicultural and Indigenous Affairs

[2004] FCA 1583

FEDERAL COURT OF AUSTRALIA

Ousmand v Minister for Immigraiton & Multicultural & Indigenous Affairs [2004] FCA 1583

AKMAL THUNKU OUSMAND v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

V1343 of 2004

NORTH J
26 NOVEMBER 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1343 OF 2004

BETWEEN:	AKMAL THUNKU OUSMAND APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	NORTH J
DATE OF ORDER:	26 NOVEMBER 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant is to pay the costs of the respondent fixed at $1500.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1343 OF 2004

BETWEEN:	AKMAL THUNKU OUSMAND APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	NORTH J
DATE:	26 NOVEMBER 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal against a decision of Phipps FM which dismissed an application to review a decision of the Migration Review Tribunal on the ground that the appellant did not, on 8 April 2004, appear before the learned federal magistrate.  On 18 October 2004 the federal magistrate refused the appellant’s application to set aside the order made on 8 April 2004.  The appellant is appealing the federal magistrate’s decision of 18 October 2004.

2. The appellant argued before the federal magistrate that he was unable to attend court on 8 April 2004 because of his medical condition.  The federal magistrate determined that it was not necessary to decide whether the appellant could have attended on 8 April 2004 or not, because the appellant’s application before the federal magistrate had no prospect of success.

3. The appellant is a citizen of Sri Lanka.  He entered Australia on 25 October 1995 on a visitor's visa which was valid until 25 January 1996.  The appellant also applied for a protection visa on 15 April 1995.  Final determination of that application occurred on 19 August 1996 when the application was rejected.  The appellant was granted an extension on his visitor’s visa which permitted him to remain in Australia until 31 July 1997. 

4. On 30 July 1998 the appellant applied for a Change in Circumstance Residence (class AG) visa on the grounds that his brother-in-law, an Australian citizen who suffers ischaemic heart disease and associated problems, is a ‘special need’ relative. On 16 March 1999 that application was refused by a delegate of the respondent as the appellant had not been nominated by a ‘relative’ within the definition in regulation 1.03 of the Migration Regulations 1994. That decision was affirmed by the Migration Review Tribunal on 17 September 1999.

5. In considering the appeal before him the federal magistrate stated at paragraphs [9] and [10]:

   ‘The visa which the applicant sought was a subclass 806 visa. To satisfy the requirements, an Australian citizen had to be a special need relative.  Special need relative is defined in regulation 1.03.  There are a number of requirements, one of which is that the special need relative has to meet the definition of relative.  Relative is also defined in regulation 1.03.  It is not necessary to set out the regulation.  A brother-in-law does not come within the definition of relative and therefore a brother-in-law cannot come within the definition of special need relative.

   The Migration Review Tribunal made that finding.  It could not have made any other finding.  As a matter of law, the applicant cannot satisfy the requirements and never could satisfy the requirements for the visa he sought because the person who nominated him was not a special need relative, never could be a special need relative.  That means that the application to review the Migration Review Tribunal decision has no prospects of success.  Therefore, this application to set aside the order made on 8 April 2004 cannot succeed…’

6. Before me the appellant was unable to provide any argument suggesting that the federal magistrate had erred.  The federal magistrate was plainly correct. 

7. The appellant’s niece told the Court that her uncle was a very valued member of the family and had been a great support to her and her brother.  The matters raised by the appellant’s niece are not relevant to the question of whether the federal magistrate made an error of law.  The functions of this Court on appeal are very limited.  The question for the Court is whether the federal magistrate misapplied the law or made an error of law.  This is not the occasion for consideration of the merits of the appellant’s situation.  It may be that the appellant is entitled, on another application, to another form of visa or to engage the humanitarian provisions of the Migration Act 1958 (Cth), but those matters are outside the limited function of this hearing. I have no option in the circumstances but to dismiss the appeal with costs.

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

Associate:

Dated:             1 December 2004

Counsel for the Appellant:	Self represented
Counsel for the Respondent:	Mr C Horan
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	26 November 2004
Date of Judgment:	26 November 2004