Singh v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION [2004] FMCA 319

MIGRATION – Application for "special need relative" visa – whether Tribunal asked wrong question – whether "prolonged illness" required "substantial continuing assistance" to meet requirements of visa.

Migration Regulations 1994, r.1.03

Minister for Immigration and Multicultural Affairs v  Yusuf (2001) 206 CLR 323, [2001] HCA 30
Wu v Minister for Immigration and Multicultural Affairs (2000 ) 105 FCR 39, [2000]
Narayan  v Minister for Immigration and Multicultural Affairs [2001] FCA 1745

Applicant: JASWINDER SINGH

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MZ 932 of 2002

Delivered on: 27 May 2004

Delivered at: Melbourne

Hearing date: 3 April 2003

Judgment of: Phipps FM

REPRESENTATION

Counsel for the Applicant: Mr Gilbert

Solicitors for the Applicant: Erskine Rodan & Associates

Counsel for the Respondent: Ms Kennedy SC

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the respondent’s costs fixed in the sum of $7,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 932 of 2002

JASWINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The first applicant has been refused a special need relative visa.  The other applicants are members of the first applicant’s family unit.  For convenience, the first applicant is described as “the applicant”.

2. The applicant seeks review by way of prerogative writ of a decision of the Migration Review Tribunal made on 23 April 2002 by which the Tribunal affirmed the decision of a delegate of the respondent that the applicant was not entitled to be granted a Family (Residence) (Class AO) visa.

3. The applicant entered Australia on a subclass 676 Short Stay (Visitor) visa on 12 June 1997, which was valid until 12 September 1997.  On 25 August 1997, the applicant was granted a Subclass 686 Long Stay (Visitor) visa valid until 12 March 1998. He has since held a bridging visa granted on the basis of the application for a visa which is the subject of this review.

4. The applicant claimed in the visa application on 5 March 1998 that he was the special need relative of his sister, Balwinder Singh (the nominator), who was born on 15 September 1957. The nominator entered Australia on 12 December 1991 with her spouse and three children, and was granted Australian citizenship on 14 June 1994. The visa application also included the nominator's three children as Australian citizens who needed his assistance. The nominator's eldest child, Amardip Kaur Sidhu, was born on 16 August 1981 and twins, Manminder Singh Sidhu and Sukhjit Singh Sidhu, were born on

   
   

   1 September 1985. The nominator's children were aged 16 years and 13 years, respectively, at the date of the application.

5. The issue before the Tribunal was whether the applicant was a "special need relative" as defined in regulation 1.03 of the Migration Regulations 1994. That provided:

   `special need relative' in relation to an Australian citizen usually resident in Australia,…