El Bkassini v Minister for Immigration & Multicultural Affairs [2002] FCA 612

FEDERAL COURT OF AUSTRALIA

El Bkassini v Minister for Immigration & Multicultural Affairs [2002] FCA 612

SABAH ASSAD EL BKASSINI v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 987 of 2000

RYAN J

13 MAY 2002

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 987 of 2000

BETWEEN: SABAH ASSAD EL BKASSINI

Applicant

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: RYAN J

DATE OF ORDER: 13 MAY 2002

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The decision of the Migration Review Tribunal made on 5 December 2000 be set aside. 2. The matter to which the decision relates be referred to the Migration Review Tribunal to be heard and determined according to law. 3. The respondent pay the applicant's costs of the application to this Court, such costs 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

VICTORIA DISTRICT REGISTRY V 987 of 2000

BETWEEN: SABAH ASSAD EL BKASSINI

Applicant

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: RYAN J

DATE: 13 MAY 2002

PLACE: MELBOURNE

REASONS FOR JUDGMENT

Introduction 1 The applicant, Sabah Assad El Bkassini, seeks a review of a decision by the Migration Review Tribunal ("the Tribunal") constituted by Senior Member Graham Friedman affirming the decision of a delegate of the Minister to refuse to grant the applicant a Family and Other Close Ties (After Entry) Visa under Subclass 806 of the Migration Regulations 1994 (Cth) ("the Regulations"). The applicant has relied on the following general ground of review; "The Tribunal committed an error of law (either identifying the wrong issue or ignoring a relevant consideration) under s 476(1)(e) of the Act by incorrectly interpreting the applicable law or incorrectly applying the law to the facts." More specifically, the applicant contends that the Tribunal failed properly to interpret and apply the appropriate definition of "special need relative" particularly in light of its construction of the phrase "serious circumstances" giving rise to a special need. 2 Initially, the applicant had contended that the Tribunal had failed to make findings of fact as required by s 368 of the Act and that consequently the Tribunal had committed a procedural error under s 476(1)(a). However, the effect of the judgment of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 75 ALJR 1105 has been to exclude that as a permissible ground of review. Although the High Court had directed its observations to the relationship between s 430 and s 476(1)(a) of the Act, they are equally applicable to s 368 which subjects the Tribunal to the same obligations as s 430 imposes on the Refugee Review Tribunal.