Elliott v Minister for Immigration and Multicultural Affairs [2007] FCAFC 22

FEDERAL COURT OF AUSTRALIA

Elliott v Minister for Immigration and Multicultural Affairs [2007] FCAFC 22 MIGRATION – remaining relative visa – Tribunal's application of departmental policy – misapplication or misconstruction of policy – whether error of law – whether appellant discharged burden imposed by policy of demonstrating no contact within reasonable period with overseas near relatives or that contact confined to single instances – Tribunal holding that burden not discharged despite its apparent acceptance of evidence of appellant and his father.

s 39B of the Judiciary Act 1903 (Cth) Migration Act 1958 (Cth) Migration Regulations 1994 reg 1.15, Sch 2 cll 835.212 and 835.213

Minister for Immigration and Multicultural and Indigenous Affairs v Hidalgo (2005) 145 FCR 564 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592

GARETH ROY ELLIOTT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND MIGRATION REVIEW TRIBUNAL WAD 57 OF 2006

RYAN, TAMBERLIN AND MIDDLETON JJ

2 march 2007

melbourne (heard in perth) IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 57 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: GARETH ROY ELLIOTT

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGES: RYAN, TAMBERLIN AND MIDDLETON JJ DATE OF ORDER: 2 MARCH 2007