Babicci v Minster for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1645

FEDERAL COURT OF AUSTRALIA

Babicci v Minster for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1645

MIGRATION – application for constitutional writs – Migration Review Tribunal refused to grant a Partner (Provisional) (Class UF) visa – whether Tribunal erred in its construction of the phrase "compelling circumstances" – whether Tribunal committed jurisdictional error

WORDS AND PHRASES – "compelling circumstances"

Migration Regulations 1994 reg 1.20J ERIC RICHARD BABICCI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND THE MIGRATION REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA NSD 890 OF 2004 MOORE J 16 DECEMBER 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 890 OF 2004

BETWEEN: ERIC RICHARD BABICCI

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA

SECOND RESPONDENT

JUDGE: MOORE J

DATE OF ORDER: 16 DECEMBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the first respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 890 OF 2004

BETWEEN: ERIC RICHARD BABICCI

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA

SECOND RESPONDENT

JUDGE: MOORE J

DATE: 16 DECEMBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction 1 This judgment concerns an application for constitutional writs in relation to a decision of the Migration Review Tribunal ("the Tribunal"). The applicant's spouse, for convenience referred to as "the visa applicant", applied for a Partner (Provisional) (Class UF) visa on 21 May 2002. On 15 August 2002, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused that application. The applicant lodged an application for review of that decision with the Tribunal on 4 November 2002, and on 3 May 2004 the Tribunal affirmed the decision of the delegate and refused to grant a visa to the visa applicant. On 31 May 2004, the applicant filed an application for judicial review of that decision in this Court. The second respondent should not be a party: see s 479 of the Migration Act 1958 (Cth) ("the Act").