Asif v Minister for Immigration & Multicultural Affairs [1999] FCA 1487

FEDERAL COURT OF AUSTRALIA

Asif v Minister for Immigration & Multicultural Affairs [1999] FCA 1487 IMMIGRATION – application for review under s 476(1)(f) – whether the tribunal member was induced or affected by actual bias – whether the tribunal member has prejudged the question – whether the tribunal member's preliminary view was such that he could not be persuaded to another conclusion. Migration Act 1958 (Cth) s 476(1)(f) Migration Regulations reg 1.15A, 820.211(2)(a)(i) Sarbjit Singh v Minister for Immigration and Ethnic Affairs (Lockhart J, 18 October 1996, unreported) considered Durairajasingham v Minister for Immigration and Multicultural Affairs (1997)50 ALD 469 considered

Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 considered

MUHAMMAD ASIF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 471 OF 1999 MANSFIELD J 29 OCTOBER 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 471 OF 1999

BETWEEN: MUHAMMAD ASIF

Applicant

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

Respondent

JUDGE: MANSFIELD J

DATE OF ORDER: 29 OCTOBER 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The decision of the Immigration Review Tribunal be set aside. 2. The application be remitted to the Immigration Review Tribunal for rehearing before the Tribunal differently constituted. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 471 OF 1999

BETWEEN: MUHAMMAD ASIF

Applicant

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

Respondent

JUDGE: MANSFIELD J

DATE: 29 OCTOBER 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for judicial review of a decision of the Immigration Review Tribunal ("the Tribunal") given on 28 April 1999. The Tribunal affirmed the decision of the respondent, both initially by his delegate and by a Migration Internal Review Officer, that the applicant is not entitled to the visa sought by his application dated 18 November 1995 and apparently lodged on 24 November 1995 ("the application"). 2 The application was for a Class TK Extended Eligibility (Temporary) Subclass 820 spouse visa ("the visa"). If the visa were granted, it would enable the applicant to remain permanently in Australia as a spouse of an Australian citizen. 3 The prescribed criteria for the visa include that, at the time of the application, the applicant be the spouse of a person who is an Australian citizen: reg 820.211(2)(a)(i) of the Migration Regulations ("the Regulations"). "Spouse" is defined in reg 1.15A. The relevant parts of that definition as then in force are: