Nakad v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 810

Nakad v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 810

Because the appellants' parents were living, had custody of them and were responsible for them, it was open to the Tribunal to conclude that the appellants were not the dependent children, or children for any legal purpose, of their uncle who sponsored them. The Federal Circuit Court correctly found no error in the Tribunal's conclusion that the appellants did not meet cl 802.212(1), and the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
01 August 2013
Procedural Posture
Appeal From a Federal Circuit Court Decision Refusing Constitutional Writ Relief in Respect of a Migration Review Tribunal Decision Affirming Refusal of Child (residence) (class Bt) Visas / Appeal Dismissed With Costs
Outcome
Application dismissed; appellants' litigation representative ordered to pay the first respondent's costs.
Legal Topics
['child (residence) (class Bt) Visas' 'dependent Child Criterion' 'sponsorship by Uncle' 'migration Review Tribunal Review' 'constitutional Writ Relief']
['migration Law' 'administrative Law'] ['child (residence) (class Bt) Visas' 'dependent Child Criterion' 'sponsorship by Uncle' 'migration Review Tribunal Review' 'constitutional Writ Relief']

Case Brief

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Procedural Posture

Appeal From a Federal Circuit Court Decision Refusing Constitutional Writ Relief in Respect of a Migration Review Tribunal Decision Affirming Refusal of Child (residence) (class Bt) Visas / Appeal Dismissed With Costs

Legal Issues

  1. 1 ['Whether the Tribunal misapplied the law in finding that the appellants were not dependent children of their uncle for the purposes of the visa criteria.' 'Whether the Department misled the appellants by indicating on form 40CH that the sponsor was not required to be the natural father or biological parent.' "Whether there was error in the Federal Circuit Court's refusal of Constitutional writ relief."]

Ratio Decidendi

Because the appellants' parents were living, had custody of them and were responsible for them, it was open to the Tribunal to conclude that the appellants were not the dependent children, or children for any legal purpose, of their uncle who sponsored them. The Federal Circuit Court correctly found no error in the Tribunal's conclusion that the appellants did not meet cl 802.212(1), and the appeal was dismissed.

Court Disposition

Application dismissed; appellants' litigation representative ordered to pay the first respondent's costs.

Orders

  • ['Mona Nakad be appointed as litigation representative of the appellants for the purposes of this appeal.' 'The application be dismissed.' "The litigant representative of the appellants pay the first respondent's costs."]