Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Ganzon v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1628 ISAIAS GANZON v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 65 of 2002 GRAY J 12 DECEMBER 2002 MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY V 65 of 2002
BETWEEN: ISAIAS GANZON
APPLICANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE: GRAY J
DATE OF ORDER: 12 DECEMBER 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 65 of 2002
BETWEEN: ISAIAS GANZON
APPLICANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE: GRAY J
DATE: 12 DECEMBER 2002
PLACE: MELBOURNE
REASONS FOR JUDGMENT 1 This is an application with respect to a decision of the Migration Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of the delegate of the Minister for Immigration and Multicultural Affairs, who is now the Minister for Immigration and Multicultural and Indigenous Affairs (in both cases, "the Minister"). The delegate refused to grant to the applicant the visa that he sought pursuant to the Migration Act 1958 (Cth) ("the Migration Act"). The application, which was filed on 4 February 2002, is in the form of form 56 in the schedule to the Federal Court Rules, which was a form appropriate for use under Pt 8 of the Migration Act, in the form in which Pt 8 stood before significant amendments that came into operation on 2 October 2001. The form is no longer appropriate but I am prepared to treat the application as invoking the jurisdiction of the Court pursuant to s 39B of the Judiciary Act 1903 (Cth). 2 The applicant is a citizen of the Philippines. He entered Australia on 13 February 2000 with a short stay visa. He was granted permission to remain until 13 March 2000 and then several further extensions of the visa, the last of which expired on 12 January 2001. On 12 January 2001 the applicant made an application for a kind of visa described as an Other Family (Residence) (Class BU) visa, subclass 836 (Carer). The basis of the application was that the applicant was a carer for his sister, Marita Schumann, an Australian citizen, who nominated him for the grant of the visa. The criteria for a visa of that kind are found in item 836 of the second schedule to the Migration Regulations 1994 (Cth) ("the Migration Regulations"). By item 836.221 a criterion to be satisfied at the time of decision is that an applicant for the visa be a carer of a person who is a settled Australian citizen, usually resident in Australia, who has nominated the applicant for the grant of the visa. For the purposes of that criterion the word "carer" is defined in reg 1.15AA of the Migration Regulations as follows: "(1) An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if: (a) the applicant is a relative of the resident; and
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