Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
MIGRATION – application to review decision of Immigration Review Tribunal – Family (Residence) (Class AO) visa – Tongan father of three year old Australian citizen – father seriously injured in road accident – whether father "special need relative" to son
WORDS AND PHRASES – "special need relative"
Migration Regulations reg 1.03
Fuduche v Minister for Immigration etc (1993) 45 FCR 515 not followed Chen v Minister for Immigration etc (No. 2) 1994 51 FCR 332 not followed Moskal v Minister for Immigration etc (1994) 125 ALR 307 not followed Minister for Immigration etc v Teo (1995) 57 FCR 194 applied Huang v Minister for Immigration etc (unreported, Federal Court of Australia (Full Court), 29 November 1996) applied Zakinov v Gibson (unreported, North J, 26 July 1996) at 13 followed
PALAISASA TUAMOHELOA v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
vg 613 of 1997
HEEREY J
4 NOVEMBER 1998
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY VG 613 of 1997
BETWEEN: palaisasa tuamoheloa
Applicant
AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE: HEEREY J
DATE OF ORDER: 4 NOVEMBER 1998
WHERE MADE: MELBOURNE
THE COURT ORDERS THAT: The application is dismissed with costs, including reserved costs. 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 VG 613 of 1997
BETWEEN: palaisasa tuamoheloa
Applicant
AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE: HEEREY J
DATE: 4 NOVEMBER 1998
PLACE: MELBOURNE
REASONS FOR JUDGMENT
Introduction The applicant is a citizen of Tonga, having been born in that country in 1965. He seeks a review under s 476 of the Migration Act 1958 (Cth) (the Act) of a decision of the Immigration Review Tribunal (IRT) to affirm the decision of a delegate of the Minister to refuse to grant him a Family (Residence) (Class AO) visa. The applicant had a relationship with Ms Kylie-Ann Bayley. A son Tevita Palei Tuamoheloa was born on 25 September 1994 and is in his mother's care. The issue before the IRT was whether the applicant was a "special need relative" in relation to Tevita, the latter being an Australian citizen usually resident in Australia. That term is defined, relevantly for present purposes, in reg 1.03 of the Migration Regulations as follows: "Special need relative" in relation to an Australian citizen usually resident in Australia … means a relative who is willing and able to provide substantial and continuing assistance to the citizen … if: (a) the citizen … has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen … personally, or a member of his or her family unit; and (b) the assistance cannot reasonably be obtained from: (i) any other relative of the citizen … being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or (ii) welfare, hospital, nursing or community services in Australia".
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