Koluacik v Minister for Immigration & Multicultural Affairs [2002] FCA 729

FEDERAL COURT OF AUSTRALIA

Koluacik v Minister for Immigration & Multicultural Affairs [2002] FCA 729

Migration Act 1958 (Cth) s 476 Migration Regulations 1994 (Cth) r 1.15A, Sch 2 items 820.211, 820.221 Federal Court Rules (Cth) O 80

Minister for Immigration, Local Government and Ethnic Affairs v Dillon (Federal Court of Australia, 8 May 1990, unreported) referred to Bretag v Immigration Review Tribunal (Federal Court of Australia, 29 November 1991, unreported) referred to HAKAN KOLUACIK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 727 of 2001 GRAY J 30 APRIL 2002 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 727 of 2001

BETWEEN: HAKAN KOLUACIK

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: GRAY J

DATE OF ORDER: 30 APRIL 2002

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the proceeding. 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 727 of 2001

BETWEEN: HAKAN KOLUACIK

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: GRAY J

DATE: 30 APRIL 2002

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an application for judicial review pursuant to s 476 of the Migration Act 1958 (Cth) ("the Migration Act") of a decision of the Migration Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), to refuse to grant to the applicant the visas that he sought. Because of the history of the matter, I am required to deal with it in accordance with s 476 of the Migration Act as it stood prior to amendments that came into operation on 2 October 2001. 2 The applicant is a citizen of Turkey. He arrived in Australia on 10 October 1996 on a Temporary Business Entry (Class) UC visa (Subclass 456) (Business (Short Stay)), with permission to stay until 29 October 1996. He was then granted a Long Stay (Visitor) (Class TN) visa (Subclass 686) (Tourist (Long Stay)), which permitted him to stay in Australia until 29 April 1997. The date was subsequently extended to 5 October 1997. 3 On 19 September 1997, the applicant and Kim Liesl Judkins went through a ceremony of marriage. On 2 October 1997, the applicant made application for two visas. One was an Extended Eligibility (Temporary) (Class TK) visa (Subclass 820) ("a subclass 820 visa"). The other was a General (Residence) (Class AS) visa (Subclass 801) ("a subclass 801 visa"). The application was based on his marriage and his spouse was the nominator, as required by the Migration Regulations 1994 ("the Migration Regulations"). On 20 July 1998, the application for the visas was refused by the Department of Immigration and Multicultural Affairs. On 15 October 1998, that decision was affirmed by the Migration Internal Review Office. On 12 November 1998, the applicant lodged an application for review with the Immigration Review Tribunal. On 1 June 1999, amendments to the Migration Act came into operation. The Immigration Review Tribunal ceased to operate and the case was transferred automatically to the Tribunal. 4 On 2 March 2000, the Tribunal affirmed the decision to refuse the visas. The applicant applied to the Court for judicial review of that decision. On 25 July 2000, the Court made an order by consent, setting aside the decision of the Tribunal and remitting the matter to the Tribunal for further consideration according to law. The Tribunal conducted a further hearing. On 22 June 2001, the Tribunal published its decision and its reasons for decision. Again, it affirmed the decision to refuse to grant a visa to the applicant. In the present application to the Court, the applicant seeks judicial review of the decision of the Tribunal made on 22 June 2001. 5 It is normal for a person to apply in one application for both visas. A subclass 801 visa is a permanent visa. Item 801.221(2)(a) in Sch 2 to the Migration Regulations provides that a criterion to be satisfied at the time of a decision whether to grant a subclass 801 visa is that the applicant be the holder of a subclass 820 visa. A subclass 820 visa is a temporary visa. It is usual for a decision-maker to consider the application for a subclass 820 visa first, as the Tribunal did. Item 820.211 in Sch 2 to the Migration Regulations provides for criteria to be satisfied at the time of application for a subclass 820 visa. Relevantly for present purposes, item 820.211(2)(a)(i) requires that the applicant be the spouse of a person who is an Australian citizen. The word "spouse" is defined at length in reg 1.15A of the Migration Regulations. By subregulation (1A):