Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Scargill v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 116
MIGRATION – visa subclass 806 – family visa – Migration Review Tribunal – meaning of 'usually resides' – constructive failure to exercise jurisdiction under s 65(1) of the Migration Act 1958 (Cth) – decision not a privative clause decision – appeal allowed. Judiciary Act 1903 (Cth) Migration Act 1958 (Cth) ss 65(1), 474 Migration Regulations 1994 (reprint 2) reg 1.15 NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 discussed Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 considered Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241 discussed Gauthiez v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 512 followed Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S 134/2002 (2003) 195 ALR 1 followed ANTHONY MALCOLM SCARGILL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS V 908 of 2002 FRENCH, von DOUSSA and MARSHALL JJ 3 JUNE 2003 MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY V908 OF 2002
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: ANTHONY MALCOLM SCARGILL
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE: FRENCH, von DOUSSA and MARSHALL JJ
DATE OF ORDER: 3 JUNE 2003
WHERE MADE: MELBOURNE
THE COURT ORDERS THAT: 1. The appeal is allowed. 2. The order of the Federal Court of Australia made on 4 December 2002 dismissing the application is set aside. 3. Certiorari issue directed to the Migration Review Tribunal quashing the decision of the Migration Review Tribunal made on 3 May 2002 affirming a decision of a delegate of the respondent not to grant the appellant a Family (Residence) (Class AO) Visa. 4. Mandamus issue directed to the Migration Review Tribunal requiring it to review according to law the decision of the respondent by his delegate refusing to grant the appellant a Family (Residence) (Class AO) Visa. 5. The respondent is to pay the appellant's costs of these proceedings both at first instance and on appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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