Durzi v Minister for Immigration and Multicultural Affairs [2006] FCA 1767

Durzi v Minister for Immigration and Multicultural Affairs [2006] FCA 1767

The appeal was dismissed because the Tribunal addressed the correct statutory question under reg 1.15(2)(b)(ii) and was entitled on the evidence to find that the appellant's two sons, who lived with their mother in Cyprus while the appellant lived in Australia, were not wholly or substantially in his daily care and control. As a result, the appellant had five overseas near relatives and did not satisfy the cumulative definition of remaining relative. PAM3 did not bind the Tribunal or have legislative effect, and any alleged delegate error was not material after the Tribunal conducted its own review and received evidence from the appellant and his brother.

Jurisdiction
Australia
Judgment Date
19 December 2006
Procedural Posture
Migration Appeal Concerning Refusal of a Subclass 835 (remaining Relative) Visa / Appeal to the Federal Court of Australia From Orders of the Federal Magistrates Court Dismissing Judicial Review of the Migration Review Tribunal's Decision
Outcome
Appeal dismissed.
Legal Topics
['subclass 835 (remaining Relative) Visa' 'overseas Near Relatives' 'daily Care and Control of Minor Children' 'jurisdictional Error' 'procedural Fairness' 'departmental Guidelines' 'legitimate Expectation']
['migration Law' 'administrative Law'] ['subclass 835 (remaining Relative) Visa' 'overseas Near Relatives' 'daily Care and Control of Minor Children' 'jurisdictional Error' 'procedural Fairness' 'departmental Guidelines' 'legitimate Expectation']

Case Brief

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Procedural Posture

Migration Appeal Concerning Refusal of a Subclass 835 (remaining Relative) Visa / Appeal to the Federal Court of Australia From Orders of the Federal Magistrates Court Dismissing Judicial Review of the Migration Review Tribunal's Decision

Legal Issues

  1. 1 ["Whether the Migration Review Tribunal applied the correct test in deciding whether the appellant's two sons were wholly or substantially in his daily care and control for the purposes of reg 1.15." 'Whether the appellant had more than three overseas near relatives and therefore failed to meet the definition of remaining relative.' 'Whether any failure by the delegate to comply with PAM3 gave rise to jurisdictional error or was relevant after the Tribunal conducted its own review.' 'Whether the Tribunal was obliged to have regard to PAM3, including paragraph 21.5 concerning minor children and daily care and control.']

Ratio Decidendi

The appeal was dismissed because the Tribunal addressed the correct statutory question under reg 1.15(2)(b)(ii) and was entitled on the evidence to find that the appellant's two sons, who lived with their mother in Cyprus while the appellant lived in Australia, were not wholly or substantially in his daily care and control. As a result, the appellant had five overseas near relatives and did not satisfy the cumulative definition of remaining relative. PAM3 did not bind the Tribunal or have legislative effect, and any alleged delegate error was not material after the Tribunal conducted its own review and received evidence from the appellant and his brother.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs."]