Moussa v Minister for Immigration & Multicultural Affairs [2002] FCA 68

FEDERAL COURT OF AUSTRALIA

Moussa v Minister for Immigration & Multicultural Affairs [2002] FCA 68

Migration Act (1958) (Cth) Hussein v Minister for Immigration & Multicultural Affairs [1999] FCA 1621 Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 SAMIA MOUSSA MOUSSA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1072 OF 2001 GYLES J SYDNEY 5 FEBRUARY 2002

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1072 OF 2001

BETWEEN: SAMIA MOUSSA MOUSSA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: GYLES J

DATE OF ORDER: 5 FEBRUARY 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The decision of the Migration Review Tribunal of 25 June 2001 be set aside. 3. The matter be remitted to the Migration Review Tribunal for consideration according to law. 4. The respondent pay the applicant's costs of the application. 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 1072 OF 2001

BETWEEN: SAMIA MOUSSA MOUSSA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: GYLES J

DATE: 5 FEBRUARY 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT (EX TEMPORE) 1 This is an application for review of a decision of the Migration Review Tribunal ("the Tribunal") in relation to refusal of an application for a Family (Residence) (Class AO) visa made on 9 October 1997. Because of the enormous delay which has taken place in dealing with that visa application and as I have formed a clear view as to the fate of the application, it is appropriate that I give judgment immediately rather than inflict further delay upon this applicant even though that means that the reasons for judgment may be less elaborate than they otherwise may have been. 2 The application has been amended on more than one occasion and is now a further amended application consisting of five grounds, including various particulars of those grounds. It is common ground that the principal issue for determination by the Tribunal, standing in the shoes of the original decision maker, is whether the applicant was a relative who was willing and able to provide substantial and continuing assistance to the nominator, who was her daughter, if the daughter had a permanent or long term need for assistance because of prolonged illness or other serious circumstances affecting that daughter and her children. If that were established, it would then be necessary to consider whether assistance could not reasonably be obtained from other sources. 3 I need not reproduce the grounds set out in the further amended application in this judgment. They may be seen from that further amended application. Written submissions have been filed prior to the hearing on behalf of both applicant and respondent. They are available and there has been a verbatim transcript taken of the argument which has proceeded today. I am not persuaded of any of the grounds put forward by the applicant save in two respects, to which I will return in a moment, substantially for the reasons outlined by the respondent's counsel in his written and oral submissions.