Basbas v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1042

FEDERAL COURT OF AUSTRALIA

Basbas v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1042

MIGRATION - visa – whether applicant a special need relative of his mother – Migration Review Tribunal found mother had a long-term need for assistance, because of a prolonged illness – applicant provided emotional support, companionship and some practical assistance – whether Tribunal erred in finding that this was not substantial assistance WORDS AND PHRASES – 'special need relative' – 'substantial and continuing assistance'

Migration Act 1958 (Cth) s 474 Judiciary Act 1903 (Cth) s 39B Migration Regulations 1994 (Cth) reg 1.03, Sch 2 item 806

Basbas v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1602 referred to

Narayan v Minister for Immigration & Multicultural Affairs [2001] FCA 1745 followed

FROILAN BASBAS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 583 of 2002 GRAY J 2 OCTOBER 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 583 of 2002

BETWEEN: FROILAN BASBAS

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: GRAY J

DATE OF ORDER: 2 OCTOBER 2003

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 583 of 2002

BETWEEN: FROILAN BASBAS

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: GRAY J

DATE: 2 OCTOBER 2003

PLACE: MELBOURNE

REASONS FOR JUDGMENT

The nature of the proceeding 1 The applicant has invoked the jurisdiction given to the Court by s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Migration Review Tribunal ('the Tribunal'). The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs) (in both cases, 'the Minister') that the applicant was not entitled to the grant of a Family (Residence) (Class AO) visa, pursuant to the Migration Act 1958 (Cth) ('the Migration Act'). 2 The applicant is a citizen of the Philippines. Having come to Australia with a visa, he applied on 10 February 1998 for a Family (Residence) (Class AO) visa, on the basis that his mother, Maria Perkins, was a 'special need relative' who needed the applicant to care for her. On 9 January 2001, the Minister's delegate decided to refuse to grant the visa. The applicant applied to the Tribunal for review of that decision. On 14 August 2002, the Tribunal published a written decision and reasons for decision, affirming the delegate's decision. In respect of the Tribunal's decision, the applicant seeks writs of prohibition and certiorari, a declaration that the decision is invalid and an order remitting the matter to the Tribunal, differently constituted, for determination according to law. 3 The application to the Court, filed on 9 September 2002, named as applicant Maria Perkins. The respondent filed a notice of objection to competency and Ms Perkins applied by notice of motion to amend the title to the proceeding by substituting 'Froilan Basbas' for 'Maria Perkins'. On 19 December 2002, I made orders enlarging the time limited for the filing of the notice of objection to competency, but dismissing the objection. I also dismissed the notice of motion, but, of the Court's own motion, amended the title to the proceeding by substituting the name 'Froilan Basbas' for the name 'Maria Perkins' (see Basbas v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1602).