Assmann v Minister for Immigration & Multicultural Affairs [2001] FCA 1180

FEDERAL COURT OF AUSTRALIA

Assmann v Minister for Immigration & Multicultural Affairs [2001] FCA 1180

MIGRATION LAW – Retirement visa – Application for review of decision of the Migration Review Tribunal – Application to Minister pursuant to s 351 of the Migration Act 1958 Migration Act 1958 (Cth) s 351 Migration Regulations 1994 (Cth) Sched 2, Subclass 410

HEINZ GERHARD ASSMANN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS T16 OF 2001 MARSHALL J HOBART 24 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY T16 OF 2001

BETWEEN: HEINZ GERHARD ASSMANN

APPLICANT

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MARSHALL J

DATE OF ORDER: 24 AUGUST 2001

WHERE MADE: HOBART

THE COURT ORDERS THAT: 1. The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY T16 OF 2001

BETWEEN: HEINZ GERHARD ASSMANN

APPLICANT

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MARSHALL J

DATE: 24 AUGUST 2001

PLACE: HOBART

REASONS FOR JUDGMENT 1 The proceeding before the Court is an application to review the decision of the Migration Review Tribunal ("the MRT") to refuse the applicant a Retirement (Temporary) (Class TQ) visa, sub-class 410 ("the retirement visa"). The MRT decision was made on 28 March 2001.

Factual background 2 The applicant, Mr Assmann, is a citizen of the Federal Republic of Germany. He is a 76 year old widower. Mr Assmann has visited Australia on several occasions. His daughter, Ms Margit Assmann is an Australian citizen who resides in Hobart. Mr Assmann last entered Australia on a visitor's visa on 26 December 1998. The visitor's visa expired on 23 September 2000. 3 In January 1999, Mr Assmann obtained an application form for the retirement visa from the respondent's department. The application form obtained by Mr Assmann was out of date and contained monetary requirements that were only relevant prior to 1 December 1998. 4 Prior to 1 December 1998, an applicant for the retirement visa was required to have available resources of $500 000 to transfer to Australia; or available resources of not less than $150 000 to transfer to Australia and other money and entitlements sufficient to provide an annual income of $35 000. Amendments to the Migration Regulations 1994 (Cth) ("the Regulations") effective from 1 December 1998, required an applicant for the retirement visa to have available resources of $600 000 to transfer to Australia; or available resources of not less than $180 000 to transfer to Australia and other money and entitlements sufficient to provide an annual income of not less than $42 000. See Sched 2, Subclass 410.227 of the Regulations. 5 On 7 June 1999, Mr Assmann applied for the retirement visa. On 7 June 1999, Mr Assmann met the former requirements for the grant of the retirement visa but not the then applicable requirements. On 25 June 1999, a departmental officer interviewed Mr Assmann, in the presence of Ms Assmann, to explain the new requirements for the grant of the retirement visa. A discussion ensued about investment strategies that would allow Mr Assmann to achieve an annual income of $42 000 while keeping a capital sum of $180 000. 6 Mr Assmann declined to adopt the strategy suggested to him at the discussion and requested the prompt processing of his application. On 31 August 1999, a delegate of the respondent refused the application for failure to meet the requirements of Sched 2 Subclass 410.227(1)(a) of the Regulations. Mr Assmann sought a review of the delegate's decision before the MRT. Despite being afforded an opportunity to attend and submit oral evidence at a hearing before the MRT, Mr Assmann was content to let the matter be determined on the papers.