Fale v MIMA [2001] FCA 1645

Procedural Posture

Application for Review of a Migration Review Tribunal Decision Affirming Refusal to Grant a Family Residence (class Ao) Visa / Subclass 806 Visa / Final Judgment on the Application for Review

Legal Issues

1. 1 ["Whether the Tribunal failed to observe procedures required by the Migration Act 1958 (Cth) in dealing with the applicants' request to adjourn and proceeding without the applicant appearing." 'Whether the Tribunal was entitled under s 362B(1) of the Migration Act 1958 (Cth) to make a decision without taking further action to allow or enable the applicant to appear.' "Whether the Tribunal made an error of law in applying the definition of 'special need relative'." "Whether the Tribunal erred by not separately considering serious circumstances affecting the nominator's children or by failing to refer to Wu v Minister for Immigration & Multicultural Affairs."]

Ratio Decidendi

The Tribunal was entitled to proceed under s 362B(1) because the applicant had received an invitation to appear and, in the circumstances, determined to submit written argument rather than appear. No failure to follow procedures required by the Act was established. Although the Tribunal's reasons were cryptic and unsatisfactory, they did not demonstrate an error of law in understanding or applying the special need relative definition: the Tribunal considered the assistance said to be needed by the nominator and the children's circumstances only needed to be considered insofar as they bore on the nominator's needs. The issue addressed in Wu did not arise because the applicants did not put...

Court Disposition

Application dismissed.

Orders

• ['The application is dismissed.' "The applicants are to pay half of the respondent's cost of and incidental to the proceeding."]