Neofotistou v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 919

FEDERAL COURT OF AUSTRALIA

Neofotistou v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 919 KONSTANTINA NEOFOTISTOU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS VID 1310 OF 2004 NORTH J 26 MAY 2005 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1310 OF 2004

BETWEEN: KONSTANTINA NEOFOTISTOU

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: NORTH J

DATE OF ORDER: 26 MAY 2005

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The decision of the Federal Magistrate of 29 September 2004 is set aside. 2. The decision of the Migration Review Tribunal of 19 June 2003 is set aside. 3. The matter is remitted to the Migration Review Tribunal for rehearing in accordance with these reasons. 4. The respondent is to pay the appellant's costs of the proceedings before the Federal Magistrates Court and the costs of this appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1310 OF 2004

BETWEEN: KONSTANTINA NEOFOTISTOU

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: NORTH J

DATE: 26 MAY 2005

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 Before the Court is an appeal from the decision of a Federal Magistrate delivered on 29 September 2004. The Federal Magistrate dismissed an application for review of a decision of the Migration Review Tribunal (the Tribunal) delivered on 19 June 2003. The Tribunal affirmed a decision of the delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, that the appellant was not entitled to an Extended Eligibility (Temporary) (Class TK) visa or a General (Residence) (Class AS) visa, which together I will refer to hereafter as the spouse visa. On 23 May 2005 the Chief Justice determined pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) that the appeal would be heard by a single judge. 2 The appellant is a Greek national who arrived in Australia on a Temporary Entry (Entertainer) visa on 31 August 1991 to take up employment as a singer. The sponsor of this visa was Stilianos Stamatakis, a nightclub manager. Mr Stamatakis collected the appellant at the airport and she went home with him. She claimed that a de facto relationship began two weeks later. On 14 April 1992, four days before her existing visa was to expire, the appellant applied for an Extended Eligibility (Spouse) entry permit and a permanent entry permit.