Sylvester v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1460

FEDERAL COURT OF AUSTRALIA

Sylvester v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1460

MIGRATION – visas – family residence visa – non-dependent child – overseas near relative – whether Migration Review Tribunal fell into reviewable error in finding that applicant usually resided in the same country as his son – whether reviewable error in finding that applicant had had contact with his son during a reasonable period preceding the application – whether any error of law giving rise to judicial review. Migration Act 1958 (Cth), s 474 Migration Regulations 1994, reg. 1.03, 1.15(1), (2) and (3) Jankovic v Minister for Immigration and Ethnic Affairs (1995) 56 FCR 474 referred to NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 referred to PHILIP ANTHONY SYLVESTER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS W265 of 2002 CARR J 4 DECEMBER 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W265 OF 2002

BETWEEN: PHILIP ANTHONY SYLVESTER

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGE: CARR J

DATE OF ORDER: 4 DECEMBER 2002

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W265 OF 2002

BETWEEN: PHILIP ANTHONY SYLVESTER

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGE: CARR J

DATE: 4 DECEMBER 2002

PLACE: PERTH

REASONS FOR JUDGMENT INTRODUCTION 1 This is an application for an order of review of a decision of the Migration Review Tribunal ("the Tribunal"), made on 14 August 2002, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant the applicant a subclass 806 Family (Residence) (Class AO) visa ("family residence visa"). The applicant, who is a national of Malta, applied for a family residence visa on 22 August 1997. On 30 March 1999, a delegate of the respondent refused the application and, on 29 April 1999, the applicant lodged an application for internal review with the Migration Internal Review Office. This became an application for review to the Tribunal on 1 June 1999 by way of a transitional provision in the Migration Legislation Amendment Act (No. 1) 1998. On 29 June 2001, the Tribunal affirmed the decision of the delegate not to grant the visa. An application for judicial review of the decision of the Tribunal was made to this Court. On 17 October 2001, by consent, the decision was set aside and remitted to the Tribunal for reconsideration according to law. On 14 August 2002, a differently constituted Tribunal re-affirmed the decision of the delegate of 30 March 2001. The question is whether the Tribunal fell into reviewable error when it decided that the applicant was disqualified, on two grounds, from being granted a family residence visa as a "remaining relative".