Gherga v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 351

FEDERAL COURT OF AUSTRALIA

Gherga v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 351 MIGRATION – visas – refusal to grant partner visa – decision made in excess of jurisdiction - application of Migration Regulations 1994 (Cth), Reg 1.15A in determining whether there is a genuine 'married relationship' – whether applicants denied natural justice because failure of Migration Review Tribunal to respond to enquiry as to whether available witnesses would be needed – breach of procedural fairness amounting to jurisdictional error that would deny protection of s474 of the Migration Act 1958 (Cth) – whether denial of procedural fairness deprived applicants of the possibility of a successful outcome – failure to consider a topic mandated by the Regulations Statutes Migration Act 1958 (Cth) ss 474, 362 Migration Regulations, 1994 (Cth) Sch 2, par 309; Reg 1.15A(1A), (3), (3)(c), (3)(c)(ii) Cases Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 Referred to Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 Referred to Minister for Immigration & Multicultural & Indigenous Affairs v SGJB [2003] FCAFC 290 Referred to Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Applied Re Phillip Ruddock in his capacity as Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60 Discussed Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Applied

CORNELIU GHERGA and ELENA-LAURA GHERGA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and MIGRATION REVIEW TRIBUNAL

Q94 of 2003

KIEFEL J

BRISBANE

29 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q94 OF 2003

BETWEEN: CORNELIU GHERGA and ELENA-LAURA GHERGA

APPLICANTS