Koulaxazov v Minister for Immigration & Multicultural Affairs [2002] FCA 554

FEDERAL COURT OF AUSTRALIA

Koulaxazov v Minister for Immigration & Multicultural Affairs [2002] FCA 554

MIGRATION – application for an order of review – whether the Migration Review Tribunal erred in refusing to grant the Applicant a Special; Eligibility (Residence) (Class AO) Visa. Migration Act 1958 (Cth) s 353 KOULAXAZOV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS S 179 OF 2001 O'LOUGHLIN J 3 MAY 2002 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 179 OF 2001

BETWEEN: PETAR NIKOLOV KOULAXAZOV

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: O'LOUGHLIN J

DATE OF ORDER: 3 MAY 2002

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The Application be dismissed. 2. The Applicant pay the Respondent's costs which costs are to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 179 OF 2001

BETWEEN: PETAR NIKOLOV KOULAXAZOV

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: O'LOUGHLIN J

DATE: 3 MAY 2002

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The applicant in these proceedings, Petar Nikolov Koulaxazov (Mr Koulaxazov), who was born in Bulgaria on 29 April 1942, arrived in Australia on a Tourist (Short Stay) Subclass 676 Visa with an expiry date of 8 June 1997. On 12 May 1997, he sought and obtained a Tourist (Long Stay) Subclass 686 Visa which was due to expire on 8 September 1997. On 7 July 1997, he applied for a Special Eligibility (Residence) (Class AO) Visa. However, a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refused his application on 5 March 1999. 2 Mr Koulaxazov lodged an application with the Migration Internal Review Office for the internal review of the delegate's decision on 30 March 1999. That application became an application for review to the Migration Review Tribunal ("the Tribunal") as from 1 June 1999 as a consequence of the transitional provisions in the Migration Legislation Amendment Act (No 1) 1998 (Cth). On 14 September 2001, the Tribunal affirmed the original decision of the Minister's delegate. 3 Mr Koulaxazov now seeks from this Court a review of the decision of the Tribunal. His initial application, which was filed on 10 October 2001, has been replaced with an amended application that was filed on 26 February 2002. 4 In his amended application Mr Koulaxazov claimed that the Tribunal's decision contained a jurisdictional error. That error was alleged to be a combination of various factors in that it was claimed that the Tribunal identified wrong issues, asked the wrong questions, ignored relevant material, relied on irrelevant material and thereby exceeded the authority or powers that it enjoyed under the Migration Act 1958 (Cth) ("the Act"). That combination of errors was then particularised in the amended application in the following manner: · in the first place, it was submitted that the Tribunal failed to address, as it was required to do by reg 1.03, whether there were "other serious circumstances" present in this case; · secondly, the Tribunal misstated the applicable law in that it stated that each of the four criteria that are contained in reg 1.03 must be addressed; · thirdly, it was claimed that the Tribunal failed to make actual findings when it decided that the criteria that are contained in reg 1.03 had not been satisfied; and · finally, the Tribunal was in error when it held that there was "no medical evidence of permanent disability" because the language of reg 1.03 refers only to a "disability" – not a "permanent disability". 5 The application for the visa that is the subject of this review was made by Mr Koulaxazov on the basis that he was a "special need relative" of his mother. His mother, who was his nominator, was at the time of his application in 1997, seventy-seven years of age. 6 The term "special need relative" was defined in Reg 1.03 of the regulations at the time when Mr Koulaxazov lodged his application in the following terms: "… 'special need relative' in relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or an eligible New Zealand citizen, means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if: (a) the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident 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 or resident, 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;"