Biyiksiz v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 814

FEDERAL COURT OF AUSTRALIA

Biyiksiz v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 814 MIGRATION – visa – family visa – special need relative – whether substantial and continuing assistance needed by applicant's mother could 'reasonably be obtained' from welfare, hospital, nursing or community services in Australia – whether determined by reference to reasonable availability of services or by reference to reasonable obtainability by person requiring assistance – relevance of factors subjective to person requiring assistance – whether failure to construe definition correctly resulted in failure to take into account a relevant consideration – whether jurisdictional error – form of order where tribunal not a party

WORDS & PHRASES – 'special need relative', 'cannot reasonably be obtained'

Migration Act 1958 (Cth) ss 359A, 474 Judiciary Act 1903 (Cth) s 39B Federal Court of Australia Act 1976 (Cth) s 21 Migration Regulations 1994 (Cth) item 806 of Sch 2, reg 1.03 Issa v Minister for Immigration & Multicultural Affairs[2000] FCA 128 applied Lin v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 606 applied Craig v State of South Australia (1995) 184 CLR 163 followed Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 206 CLR 323 followed Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 211 CLR 476 followed Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597 referred to SUNA BIYIKSIZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 386 of 2003 GRAY J 28 JUNE 2004 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 386 of 2003

BETWEEN: SUNA BIYIKSIZ

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS