Alkhousi v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 524

Procedural Posture

Migration Judicial Review / Application for Judicial Review of Migration Review Tribunal Decision Affirming Refusal of Partner (migrant) (class Bc) Visa

Legal Issues

1. 1 ['Whether the applicant satisfied the criteria for a Partner (Migrant) (Class BC) visa at the time of decision despite the cessation of his relationship with the sponsoring spouse.' 'Whether the Migration Review Tribunal erred in construing or applying subcl 100.221(2) and the definition of spouse in reg 1.15A of the Migration Regulations 1994.' 'Whether the applicant satisfied the domestic violence criterion in subcl 100.221(4)(c)(i)(A).' "Whether access to the grave of the applicant's deceased child could satisfy subcl 100.221(4)(c)(ii)(A)." 'Whether the Court needed to determine the effect of s 474(1) of the Migration Act 1958 (Cth).']

Ratio Decidendi

The applicant did not satisfy the Subclass 100 criteria at the time of the delegate's decision because he was no longer the spouse of the sponsoring spouse within reg 1.15A and his wife had withdrawn sponsorship; he produced no evidence satisfying the regulatory requirements for domestic violence, and access to the grave of a deceased child could not satisfy the child access criterion. The MRT made no error of law in affirming the refusal, and the Act required refusal because the criteria were not met.

Court Disposition

Application dismissed.

Orders

• ['The application is dismissed.' "The applicant pay the respondent's costs, including reserved costs, if any, to be taxed if not agreed."]