Srour v Minister for Immigration and Multicultural Affairs [2006] FCA 1228

FEDERAL COURT OF AUSTRALIA

Srour v Minister for Immigration and Multicultural Affairs [2006] FCA 1228 MIGRATION – appeal from Federal Magistrates Court – application for spouse visa – where Tribunal not satisfied of spousal relationship and found no evidence to support alternative criteria including clause 100.221(4) of Sch 2 to the Migration Regulations 1994 – where evidence before Tribunal of child of relationship – whether evidence of informal access arrangements required to satisfy clause 100.221(4) – whether appellant satisfied criteria by reason of parental responsibility obligations under statute WORDS AND PHRASES – 'has custody or joint custody of, or access to', 'any other formal maintenance obligation'

Migration Regulations 1994 (Cth) Sch 2 clause 100.221(4) Child Support (Assessment) Act 1989 (Cth)s 3 Fitch v Migration Review Tribunal [2004] FCA 1673 applied Yazbeck v Minister for Immigration & Multicultural Affairs (2002) 124 FCR 458 discussed OSSAMA MOHAMMAD SROUR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND MIGRATION REVIEW TRIBUNAL NSD 2448 OF 2005 MOORE J 15 SEPTEMBER 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALESDISTRICT REGISTRY NSD 2448 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: OSSAMA MOHAMAD SROUR

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE: MOORE J

DATE OF ORDER: 15 SEPTEMBER 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal is allowed. 2. Subject to order 3, the first respondent pay the appellant's costs of the appeal. 3. The appellant pay the first respondent's costs thrown away by the adjournment of 26 April 2006. 4. Order 1 of the Federal Magistrates Court on 22 November 2005 be set aside and in lieu thereof it be ordered that: (a) order in the nature of an order absolute in the first instance for a writ of certiorari to quash the decision of the Migration Review Tribunal made on 3 September 2004; (b) order in the nature of a writ of mandamus directing the Migration Review Tribunal to hear and determine the applicant's application for Spouse (Migrant) (Class BC) visa according to law. 5. The Migration Review Tribunal be joined as second respondent Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA