Kaur v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 961

FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 961

MIGRATION – appeal from decision of Federal Magistrates Court dismissing application for review of decision of Migration Review Tribunal affirming decision not to grant a Family (Residence) (Class AO) visa – whether

Federal Court of Australia Act 1976 (Cth) s 25(1A) Migration Act 1958 (Cth) Migration Regulations 1994 (Cth) reg 1.03

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 cited Kaur v Minister for Immigration [2003] FMCA 165 cited SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80 cited JASWANT KAUR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N661 OF 2003 EMMETT J 4 AUGUST 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N661 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: JASWANT KAUR

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 4 AUGUST 2003

WHERE MADE: SYDNEY

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N661 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: JASWANT KAUR

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 4 AUGUST 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is a national of India. On 11 August 1997, she applied for a Family (Residence)(Class AO) visa under the Migration Act 1958 (Cth) ('the Act'). The application was based on an assertion that the appellant is a 'special need relative' in relation to her mother, who is an Australian citizen. A delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), refused to grant the visa on 23 March 2001. On 9 April 2001, the appellant lodged an application for review of that decision by the Migration Review Tribunal ('the Tribunal'). On 23 September 2002, the Tribunal affirmed the decision not to grant the visa. 2 The appellant then applied for relief under s 39B of the Judiciary Act 1903 (Cth) in respect of the decision of the Tribunal. That matter came before the Federal Magistrates Court for hearing on 1 May 2003. On 13 May 2003, Raphael FM ordered that the application be dismissed and the appellant pay the Minister's costs: see Kaur v Minister for Immigration [2003] FMCA 165. 3 By notice of appeal filed on 2 June 1003, the appellant appeals to the Federal Court of Australia from the orders of the Federal Magistrates Court. On 11 July 2003, the Chief Justice directed, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth),that the appeal be heard and determined by a single judge. 4 The grant of a visa to the appellant, pursuant to the nomination of her mother, depends upon whether, at relevant times, the appellant was a 'special need relative' in relation to her mother. Under reg 1.03 of the Migration Regulations 1994 (Cth) (as it was at the time the application for the visa was made), 'special need relative' in relation to an Australian citizen usually resident in Australia means a relative who is able and willing to provide substantial and continuing assistance to the citizen if: (a) the citizen has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen; and (b) the assistance cannot reasonably be obtained from any other relative of the citizen who is an Australian citizen, or from welfare, hospital, nursing or community services in Australia. 5 The appellant entered Australia on 4 September 1996 under a Tourist (Short Stay) visa. She was granted Tourist (Long Stay) visas on 12 November 1996 and 4 March 1997. The last visa, granted on 4 March 1997, was valid until 4 September 1997. The appellant has held various bridging visas since that date, granted on the basis of the application that is the subject of this proceeding. 6 The appellant's husband and two daughters, who were included in the application, live in India. The appellant lived with her husband in India until she left that country on 4 September 1996 to care for her dying father and her mother. She has a brother and sister living in Australia. In her visa application, in response to the following questions, the appellant provided answers as indicated: '77. What circumstance has led to your relative needing your assistance (eg permanent disability, death of a close relative, etc)?