Kumar v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 201

FEDERAL COURT OF AUSTRALIA

Kumar v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 201

MIGRATION – application for General (Residence) (Class AS), subclass 801 visa (spouse) – application on basis that appellant suffered domestic violence – visa refused on ground that statutory declarations did not comply with reg 1.26 of Migration Regulations 1994 – requirements of reg 1.26 – whether statutory declaration of social worker set out opinion that appellant experienced fear or apprehension. NATURAL JUSTICE – denial of procedural fairness – whether Tribunal misled appellant – whether appellant's migration agent was led to believe by the Tribunal's conduct that the statutory declarations complied with the Regulations – whether such belief was reasonable. PROCEDURE – raising new ground of appeal. Federal Court of Australia Act 1976 (Cth) s 25(1A) Judiciary Act 1903 (Cth) s 39B(1) Migration Act 1958 (Cth) s 474(1) Statutory Declarations Act 1959 (Cth) Migration Regulations 1994 (Cth), reg 1.22 –1.26, Schedule 2, cl 801, sub-cl 801.221 Alin v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 979 applied Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 257 followed Coulton v Holcombe (1986) 162 CLR 1 followed Dagli v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 298 cited Du v Minister for Immigration and Multicultural Affairs [2000] FCA 1115 applied H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43; [2000] FCA 1348 followed Ibrahim v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1279 referred to Meroka v Minister for Immigration and Multicultural Affairs (2002) 117 FCR 251; (2002) 70 ALD 298; [2002] FCA 482 discussed NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298; (2002) 193 ALR 449; (2002) 69 ALD 1; (2002) FCAFC 228 cited O'Brien v Komesaroff (1982) 150 CLR 310 followed Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S154/2002 [2003] HCA 60 applied VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 followed Rajesh Kumar v Minister for Immigration and Multicultural and Indigenous Affairs V68 OF 2003 NORTH J 10 MARCH 2004 MELBOURNE