Commons v Minister for Immigration

[2016] FCCA 249

FEDERAL CIRCUIT COURT OF AUSTRALIA

COMMONS & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 249

Catchwords:
MIGRATION– Administrative review – visa application –no jurisdictional error – application dismissed – applicant pay the respondent’s costs.

Legislation:

Migration Act 1958 (Cth)

First Applicant: FRANCESCA CYAN COMMONS

Second Applicant: SENNEN SAMUEL

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number:   BRG 915 of 2015

Judgment of: Judge Vasta

Hearing date: 21 January 2016

Date of Last Submission: 21 January 2016

Delivered at: Brisbane

Delivered on: 21 January 2016

REPRESENTATION

The Applicants appearing on their own behalf

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The applicant pay the first respondent’s costs fixed in the amount of $5800.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 915 of 2015

FRANCESCA CYAN COMMONS

First Applicant

And

SENNEN SAMUEL

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. The Applicant, who is a citizen of the United Kingdom, lodged an application for a visa on 11 November 2011.  At that time her son and daughter applied for visas as members of the Applicant’s family unit. 

2. At the time of the application, the daughter was 21 years old and the son was 15 years old.  The Applicant was sponsored by her sister who is an Australian citizen and had been from 26 January 2007. 

3. On 12 March 2013 the Applicant’s daughter withdrew her application for the visa as she was applying for a partner visa.  The daughter has, at this point in time, a temporary partner visa and, as the Applicant has told me, is hoping that any day the paperwork comes through granting permanent residency to the daughter.

4. The regulations that applied at the time, were that the Applicant must be a remaining relative of an Australian relative.  A remaining relative is, for these purposes, a person whose relationship to the other person is a parent, brother, sister, etcetera.  That aspect has been satisfied because the sponsor of the Applicant is a sister and she is resident in Australia and she is an Australian citizen. 

5. Whilst that part may have been satisfied, the other part of the regulation is that the Applicant have no near relatives other than near relatives who are both usually resident in Australia and Australian citizens.

6. The near relative that the Applicant does have is her daughter, whom I have just mentioned.  At this point in time, the daughter is usually resident in Australia but she is not an Australian citizen, not an Australian resident and she is not an eligible New Zealand citizen. 

7. Therefore, she is a near relative who does not comply with the regulation.  Under the regulation, the Applicant does not fit that category of remaining relative.  That may be seen as an unfortunate consequence, but it is the only consequence that is open on any interpretation of the legislation.  The Administrative Appeals Tribunal has ruled as I had just stated as the law is.

8. The Applicant had filed an application for review with grounds that there was a misinterpretation of this matter, but, as is conceded during the course of the hearing as we went through, the Tribunal had not done that at all. 

9. There was actually no merit in either of the grounds.  Whilst the result of this is somewhat unfortunate for the Applicant it is the only result that is open under the legislation as it currently stands.  I therefore find that there is no jurisdictional error and I dismiss the application.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  11 February 2016