Zhan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 327

FEDERAL COURT OF AUSTRALIA

Zhan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 327 MIGRATION – Application for Spouse (Migrant) (Class BS) visa under Part 100, Schedule 2 of the Migration Regulations – Deputy Registrar found no jurisdiction of Migration Review Tribunal to review decision by reason of out of time application – inadequacy of notice under s 66 of the Migration Act 1958 (Cth), subs 66(2)(a) and par 66(2)(d)(iv) not satisfied – application not out of time – decision of Deputy Registrar quashed. Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) ss 66, 128, 338, 347, 348, 474, 494B, 494C Acts Interpretation Act 1901 (Cth) s 23(b) subs 46(2) Migration Regulations Sch 2 Subclass 100 reg 2.16, 4.10, NAAO v Secretary, Department of Immigration and Multicultural Affairs (2002) 34 AAR 508 referred to Golden-Brown v Hunt (1972) 19 FLR 438 referred to Evans v Donaldson [1977] Tas SR 104 referred to Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 305 referred to ZHI FANG ZHAN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 874 of 2002 ALLSOP J 11 APRIL 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY 874 of 2002

BETWEEN: ZHI FANG ZHAN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 11 APRIL 2003

WHERE MADE: SYDNEY

THE COURT: 1. Orders that the decision of a Deputy Registrar of the Migration Review Tribunal (the Tribunal) dated 27 July 2002 that the Tribunal had no jurisdiction to review the decision of a delegate of the respondent refusing the applicant a Spouse (Migrant) (Class BS) visa (the "decision") be quashed. 2. Declares that the Tribunal has jurisdiction to review the decision. 3. Orders that the Tribunal review the decision under Part 5 of the Migration Act 1958 (Cth). 4. Orders that the respondent pay the costs of the applicant. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.