Nisha v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 222

FEDERAL COURT OF AUSTRALIA

Nisha v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 222 SOFIA SHAINAZ NISHA & PAYAL PRIYANKA NARAYAN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, MEMBER, MIGRATION REVIEW TRIBUNAL & PRINCIPAL MEMBER, MIGRATION REVIEW TRIBUNAL S 661 of 2003 MANSFIELD J 4 MARCH 2004 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 661 OF 2003

BETWEEN: SOFIA SHAINAZ NISHA & PAYAL PRIYANKA NARAYAN

APPLICANTS

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

MEMBER, MIGRATION REVIEW TRIBUNAL

SECOND RESPONDENT

PRINCIPAL MEMBER, MIGRATION REVIEW TRIBUNAL

THIRD RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 4 MARCH 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. Application dismissed. 2. Applicant to pay to first respondent costs of application.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 661 OF 2003

BETWEEN: SOFIA SHAINAZ NISHA & PAYAL PRIYANKA NARAYAN

APPLICANTS

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

MEMBER, MIGRATION REVIEW TRIBUNAL

SECOND RESPONDENT

PRINCIPAL MEMBER, MIGRATION REVIEW TRIBUNAL

THIRD RESPONDENT

JUDGE: MANSFIELD J

DATE: 4 MARCH 2004

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application instituted in the High Court and remitted to this Court on 11 June 2003 for further hearing and determination. The application was under s 75(v) of the Constitution for prerogative orders, in essence to quash a decision of the Migration Review Tribunal made on 29 January 2003 and to direct the Tribunal to hear and determine according to law an application for review of a decision of a delegate of the respondent made on 9 November 2000. The decision of the delegate concerned an application made by the applicant on 20 October 2000, shortly after her latest visit to Australia, for an Other Family (Residence) (Class BU) visa, commonly called a 'remaining relative' visa. 2 The applicant is a young woman from Fiji. She has had no contact with her father for many years. At the time of the application her mother and brother and two younger sisters were resident in Australia. Her mother and two younger sisters at the time were in Australia only under a Temporary Entry visa. On 28 November 2000, some five or so weeks after the application for the remaining relative visa, the mother (through her marriage to an Australian citizen) and her two younger sisters were granted permanent entry visas into Australia. The applicant had left her family at the age of 17 to marry, but the relationship with her husband had come to an end. She came to Australia intending to live with her family in Australia. She herself has no ties in Fiji. 3 To be eligible to be granted the visa, the applicant was required to satisfy cl 835.212 of Sch 2 to the Migration Regulations 1994 (Cth) at the time the application for the visa was made. By reason of cl 835.221 she was required to continue to satisfy that criterion at the time of the decision. For reasons which appear, she did not satisfy that criterion at the time of the application but she did satisfy that criterion at the time of the decision. The criterion is in the following terms: 'The applicant is the remaining relative of an Australian relative.'