FEDERAL COURT OF AUSTRALIA

De Souza v Minister for Immigration & Multicultural & Indigenous Affairs [2003]  FCA 1636

MIGRATION – application for certiorari quashing respondent’s decision to refuse the applicant an Aged Parent (Residence) (Subclass 804) visa – balance of family test – principles for making order by consent setting aside the decision of the respondent.

Migration Act 1958 (Cth) ss 476, 481, 481

Migration Regulations 1994 (Cth) reg. 1.05(2)(b)(i)

Federal Court of Australia Act 1976 (Cth) s23

Federal Court Rules O 35 r 10

Xiao v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 129 cited

Yulianti v Minister for Immigration & Multicultural Affairs [2001] FCA 142 cited

Sanchez v Minister for Immigration & Multicultural Affairs [1999] FCA 265 cited

Takli v Minister for Immigration & Multicultural Affairs [2000] FCA 1186 cited

Khan v Minister for Immigration & Multicultural Affairs [2001] FCA 1674 cited

FLAVIANA DE SOUZA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

W350 OF 2002

LEE J

7 OCTOBER 2003

PERTH

THE COURT ORDERS THAT:

1.             A writ of certiorari be issued quashing the decisions of the Migration Review Tribunal made on 27 November 2002 that affirmed the respondent’s decision not to grant the applicant an Aged Parent Visa.

2.             The applicant’s application for a visa be remitted to the Migration Review Tribunal for determination according to law.

3.             There be no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 17 July 2001, the applicant, a national of India born on 12 February 1918, applied for a Subclass 804 Aged Parent (Residence) Class BP visa (“Aged Parent Visa”).  The applicant has two daughters and a son.  Her husband died in 1992.  The first daughter is an Australian citizen.  The other has the right to reside in Australia under a Subclass 309 Temporary Resident (Spouse) visa granted on 24 July 2002.  The whereabouts of the son has been unknown to the applicant since 1996.  The applicant has resided in Australia with the first daughter since August 2000.

2                     A primary criterion for the Aged Parent Visa is that the applicant must satisfy the “balance of family test”.  The “balance of family test” relevantly provides, in reg 1.05(2)(b)(i) of the Migration Regulations 1994, that:

“(2)     A parent satisfies the balance of family test if:

...

(b)       the number of children of the parent who are lawfully and permanently resident in Australia or are eligible New Zealand citizens usually resident in Australia is:

            (i)         greater than, or equal to, the total number of children of the parent who are resident overseas;” (Emphasis added)

3                     On 20 November 2001, a delegate of the respondent refused the applicant’s application for the Aged Parent Visa.  On 3 December 2001, the applicant sought a review of the delegate’s decision from the Migration Review Tribunal (“the Tribunal”) and, on 27 November 2002, the Tribunal affirmed the delegate’s decision.  In its reasons for decision the Tribunal stated that:

“Under the balance of family test set out in regulation 1.05, the applicable paragraph is 1.05(2)(b) which requires greater than the number of children resident overseas, in this case 2 children, to be “lawfully an permanently resident in Australia”.” (Emphasis added)

The Tribunal further stated that:

“Accordingly it is implicit in the notion of a person who is “permanently resident” in Australia that they must hold a permanent visa and this view is supported by the policy in the MSI above.  Accordingly, as Merle Stanton was not the holder of a permanent visa at the time of the decision, as she held a temporary subclass 309 visa, it follows that she was not “permanently resident in Australia.”

4                     It does not appear that the Tribunal made any finding of fact in relation to the whereabouts of the son in concluding that his usual country of residence should be taken to be India for the purposes of reg 1.05(1)(b).

5                     By application filed in this court on 20 December 2002, the applicant sought review of the decision made by the Tribunal.

6                     Prior to the hearing of the application a minute of consent orders, prepared pursuant to O35 r 10 of the Federal Court Rules, was presented by the parties proposing that it be ordered that a writ of certiorari issue to quash the decision of the Tribunal; that the applicant’s application for a visa be remitted to the Tribunal for determination according to law; and that there be no order as to costs.

7                     In the circumstances described I am satisfied that it was arguable on the face of the proceeding that error on the part of the Tribunal had been disclosed and that the Court has jurisdiction and power to make the orders proposed by the parties.   I am satisfied that it is proper to exercise the discretion of the Court in the manner sought by the parties.

8                      It is not necessary that the Court set out the grounds on which an order has been made on the consent of the parties if it is apparent that the Court has jurisdiction in the matter and that the proposed order is within power. (See: Xiao v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 129; Yulianti v Minister for Immigration and Multicultural Affairs [2001] FCA 142; Sanchez v Minister for Immigration and Multicultural Affairs [1999] FCA 265; Takli v Minister for Immigration and Multicultural Affairs [2000] FCA 1186.)   It is sufficient that the Court be satisfied as to those matters and that it is appropriate that the order be made as requested by the parties. (See: Khan v Minister for Immigration and Multicultural Affairs [2001] FCA 1674.)

9                     Orders will be made in the terms of the minute.

Associate:

Dated:              8 September 2004