El Ess v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1038

FEDERAL COURT OF AUSTRALIA El Ess v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1038 MIGRATION – visa – family visa – application – earlier visa containing condition that, after entering Australia, holder not entitled to be granted a substantive visa while remaining in Australia – whether application for family visa not a valid application – whether condition imposed validly – whether failure to follow policy guidelines – whether tribunal could have treated decision to impose condition in earlier visa as a nullity – effect of condition – whether a condition described in particular provision of Act relating to imposition of condition automatically in classes of visas – condition imposed as an exercise of discretion – whether condition had any effect if not to make subsequent application not a valid application Migration Act 1958 (Cth) ss 41, 46, 65, 69, 346, 351, 474, 475, 476, 478, 485 Judiciary Act 1903 (Cth) s 39B Constitution (Cth) s 75(v) Migration Regulations 1994 (Cth) reg 2.05, Sch 2 item 676, Sch 8 item 8103 High Court Rules (Cth) O 55 r 30 Federal Court Rules (Cth) O 51A Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597 referred to Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 211 CLR 476 referred to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 referred to Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288 (2003) 204 ALR 55 referred to Sevim v Minister for Immigration and Multicultural Affairs [2001] 1597 (2001) 114 FCR 126 referred to Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230 (2000) 61 ALD 641 applied Soegianto v Minister for Immigration & Multicultural Affairs [2001] FCA 1612 applied Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 applied Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 referred to