Minister for Immigration and Multicultural and Indigenous Affairs v Hettiarchchige [2005] FCA 37

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Multicultural and Indigenous Affairs v Hettiarchchige [2005] FCA 37 MIGRATION – appeal from judgment of the Federal Magistrates Court – Change in Circumstances (Residence) (Class AG) visa – definition of "special need relative" – whether breach of s 359A of the Migration Act 1958 (Cth) - jurisdictional error – exercise of discretion as to relief WORDS AND PHRASES – "able" Federal Court of Australia Act 1976 (Cth) ss 24, 25, 27 Migration Act 1958 (Cth) ss 29, 31, 48, 65, 359A, 379A Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) Migration Regulations 1994 (Cth) reg 1.03, cl 806.211 (repealed), 806.213 (repealed), 806.221 (repealed) Migration Amendment Regulations (No 2) 2000 (Cth)

Farrington v Deputy Commissioner of Taxation [2002] FCA 1013, referred to Low v Commonwealth of Australia [2001] FCA 702, referred to Allesch v Maunz (2000) 203 CLR 172, referred to Minister for Immigration and Multicultural Affairs v Jia Lageng (2001) 205 CLR 507, referred to Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, referred to Narayan v Minister for Immigration and Multicultural Affairs [2001] FCA 1745, referred to NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 214, cited Fraser v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1575, referred to Re Drake and Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634, referred to Wu v Minister for Immigration & Multicultural & Indigenous Affairs (2000) 105 FCR 39, discussed Waterford v Commonwealth (1987) 163 CLR 54, cited Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323, cited VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158, applied Xiang v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 64, applied Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 88, referred to Jackson v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 203; (2004) 75 ALD 643, referred to Lobo v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 200 ALR 359, referred to Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, referred to Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441, referred to Scargill v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 259, referred to VAAC v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 168, referred to Carlos v Minister for Immigration and Multicultural Affairs (2001) 183 ALR 719, referred to Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27, applied VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471, applied Ling v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1069 MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V DARMARUCHI MANARANJANA HETTIARACHCHIGE V 539 OF 2003 KENNY J 3 FEBRUARY 2005 MELBOURNE