Sevim v Minister for Immigration & Multicultural Affairs [2001] FCA 1597

FEDERAL COURT OF AUSTRALIA

Sevim v Minister for Immigration & Multicultural Affairs [2001] FCA 1597

MIGRATION ­­– visa – combined application for temporary and permanent spouse visas – whether application not valid – applicant lacked eligibility because of condition in visa he held at the time – whether condition affected validity of application – whether tribunal made reviewable error in finding that temporary visa granted inadvertently – whether tribunal should have considered waiving condition – whether condition ineffective at time of decision because of events subsequent to application – whether application could become a valid application after it was lodged – previous decision to grant temporary visa – tribunal reviewing decision to refuse permanent visa – tribunal found applicant did not meet criterion that he hold a temporary spouse visa because decision to grant that visa a nullity because application not valid – tribunal did not consider validity of application for permanent visa – whether tribunal had jurisdiction to review decision to grant temporary visa – whether decision to grant temporary visa a nullity – whether tribunal bound to consider validity of application on review of decision to refuse permanent visa – whether tribunal misapplied test of a valid marriage

Migration Act 1958 (Cth) ss 12, 41, 46(1), 46(2), 47, 65, 66, 67, 68, 69, 71(1), 82, 93, 338, 349(1), 398, 476, 496 Migration Legislation Amendment Act (No 1) 1998 (Cth) Migration Regulations 1994 (Cth) regs 1.15A, 2.05(1), 2.07, 2.17, Sch 2 subclasses 676, 801, 806, 820, Sch 8 Item 8503 Marriage Act 1961 (Cth) s 88E Constitution ch III, ss 72, 75(v)

Phanouvong v Minister for Immigration & Multicultural Affairs [1999] FCA 1489 cited Minister for Immigration & Multicultural Affairs v A [1999] FCA 1679 (1999) 91 FCR 435 discussed Vahaakolo v Minister for Immigration & Multicultural Affairs [2000] FCA 661 cited Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906 (2000) 100 FCR 495 applied Minister for Immigration & Multicultural Affairs v Li [2000] FCA 1456 (2000) 178 ALR 523 applied Hunter Resources Limited v Melville (1988) 164 CLR 234 cited Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 cited Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 cited Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 applied Minister of State for Immigration, Local Government & Ethnic Affairs v Dhillon (Federal Court of Australia, Full Court, 8 May 1990, unreported) applied Ozbunbar v Minister for Immigration & Multicultural Affairs (1998) 55 ALD 163 applied