Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Fitch v Migration Review Tribunal [2004] FCA 1673
MIGRATION – spouse visa – relationship between visa applicant and sponsoring spouse has ceased – visa applicant and sponsoring spouse have ongoing connection with child – subclause 801.221(6)(c)(ii) of the Migration Regulations 1994 – whether a court order is necessary to satisfy subclause 801.221(6)(c)(ii)(A) of the Migration Regulations 1994 – whether a statutory obligation to maintain a child satisfies subclause 801.221(6)(c)(ii)(E) WORDS & PHRASES – "custody", "formal maintenance obligation"
Family Law Act 1975 (Cth) ss 60D, 61B, 61C, 64C, 66C, 69ZK Family Law Reform Act 1995 (Cth) Sch 2, cl 2 Migration Regulations 1994 (Cth) reg 1.03, Sch 2 subclasses 801, 802 Family Law Regulations 1984 (Cth) Sch 5 Status of Children Act 1978 (Qld) s 3 Commonwealth Powers (Family Law - Children) Act 1990 (Qld) s 3 Child Protection Act 1999 (Qld) ss 18, 59, 61 Acts Interpretation Act 1954 (Qld) s 33 Maintenance Act 1965 (Qld) s 15 Criminal Code (Qld) s 286
Yazbeck v Minister for Immigration and Multicultural Affairs (2002) 124 FCR 458 not followed SIMON JUSTIN FITCH v MIGRATION REVIEW TRIBUNAL AND MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Q 124 OF 2004 DOWSETT J 21 DECEMBER 2004 BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY Q 124 OF 2004
BETWEEN: SIMON JUSTIN FITCH
APPLICANT
AND: MIGRATION REVIEW TRIBUNAL
FIRST RESPONDENT
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT
JUDGE: DOWSETT J
DATE OF ORDER: 21 DECEMBER 2004
WHERE MADE: BRISBANE
THE COURT ORDERS THAT: 1. The application be allowed. 2. The decision of the Migration Review Tribunal be set aside. 3. The matter be remitted to the Tribunal for further consideration in accordance with the law. 4. The second respondent pay the applicant's costs of the proceedings, not including the reserved costs of 27 October 2004, with respect to which I make no order. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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