Yazbeck v Minister for Immigration & Multicultural Affairs [2002] FCA 980

FEDERAL COURT OF AUSTRALIA

Yazbeck v Minister for Immigration & Multicultural Affairs [2002] FCA 980 Migration Regulations 1994 (Cth) regs 1.03, 1.15A, sch 2 clause 100.221(4) Family Law Act 1975 (Cth) ss 64B, 66C Family Law Reform Act 1995 (Cth) sch 2 clauses 2, 3 Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 cited JEAN MOUNIER YAZBECK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 306 OF 2001 SUNDBERG J 16 AUGUST 2002 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 306 OF 2001

BETWEEN: JEAN MOUNIER YAZBECK

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: SUNDBERG J

DATE OF ORDER: 16 AUGUST 2002

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The applicant have leave to amend his application in the form filed on 23 July 2002.

2. The amended application be dismissed.

3. The applicant pay the respondent's costs of the application including any costs relating to the application to amend and the adjournment of the proceedings on 23 July 2002.

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 306 OF 2001

BETWEEN: JEAN MOUNIER YAZBECK

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: SUNDBERG J

DATE: 16 AUGUST 2002

PLACE: MELBOURNE

REASONS FOR JUDGMENT

BACKGROUND 1 On 17 November 1997 the visa applicant, a 20 year old Lebanese male, applied for a Spouse (Temporary) (Class VF) visa, subclass 309 ("the temporary visa") and a Spouse (Migrant) (Class BC) visa, subclass 100 ("the permanent visa") on the basis of his marriage in Lebanon on 16 August 1997 to Beny Yazbeck, an Australian citizen ("the sponsor"). The applicant was granted the temporary visa on 9 February 1998. He arrived in Australia on 18 February 1998. On 28 May 1999 the sponsor informed the Department that her relationship with the applicant had broken down in February 1999, and he had moved from Sydney and was now living in Melbourne. On 7 June 1999 the sponsor submitted a statutory declaration stating that her relationship with the applicant had broken down and that the applicant had used her to obtain entry to Australia. The sponsor restated this in June and December 1999. On 24 June 1999 the Department sent a letter to the applicant inviting him to comment on the sponsor's withdrawal of support for the visa. He did not respond to the invitation. On 9 March 2000 the Minister's delegate refused to grant the permanent visa on the ground that the applicant's relationship with the sponsor was no longer genuine and continuing as defined in reg 1.15A of the Migration Regulations 1994 (Cth) ("the Regulations"), and as a result he failed to satisfy the requirements of subclause 100.221(2) in Schedule 2 to the Regulations. 2 On 3 April 2000 the applicant applied for review of the delegate's decision by the Migration Review Tribunal. At a hearing on 8 February 2001 the applicant gave evidence that he and the sponsor lived together happily for twelve months after they came to Australia. The sponsor did not like living in Melbourne and moved to Sydney. Her parents look after the two children of the marriage. He gives financial support to the children, and child support of $21.67 is deducted monthly from his income. He said he saw the sponsor and children recently at a cousin's house.