Sherzad v Minister for Immigration & Citizenship [2008] FCA 460

Sherzad v Minister for Immigration & Citizenship [2008] FCA 460

Read in the context of reg 1.15 as a whole, reg 1.15(1)(c)(ii) requires an applicant with overseas near relatives to have had no contact with any of them within the relevant period. The applicant's construction, under which absence of contact with one overseas near relative would suffice despite contact with others, would undermine the remaining relative concept. The Tribunal therefore asked the correct question, did not commit jurisdictional error, and the application had to be dismissed.

Jurisdiction
Australia
Judgment Date
11 April 2008
Procedural Posture
Application Under S 476 a of the Migration Act 1958 (cth) for Judicial Review of a Migration Review Tribunal Decision Affirming Refusal of an Other Family (migrant) (class Bo) Subclass 115 (remaining Relative) Visa. / Final Judgment in the Federal Court After Transfer From the Federal Magistrates Court Pursuant to S 39 of the Federal Magistrates Act 1999 (cth).
Outcome
Application dismissed with costs.
Legal Topics
['subclass 115 (remaining Relative) Visa' 'meaning of Remaining Relative' 'overseas Near Relative' 'contact Test in Reg 1.15(1)(c)(ii)' 'jurisdictional Error']
['migration Law' 'statutory Interpretation'] ['subclass 115 (remaining Relative) Visa' 'meaning of Remaining Relative' 'overseas Near Relative' 'contact Test in Reg 1.15(1)(c)(ii)' 'jurisdictional Error']

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Procedural Posture

Application Under S 476 a of the Migration Act 1958 (cth) for Judicial Review of a Migration Review Tribunal Decision Affirming Refusal of an Other Family (migrant) (class Bo) Subclass 115 (remaining Relative) Visa. / Final Judgment in the Federal Court After Transfer From the Federal Magistrates Court Pursuant to S 39 of the Federal Magistrates Act 1999 (cth).

Legal Issues

  1. 1 ['Whether the Tribunal misconstrued reg 1.15 of the Migration Regulations 1994 (Cth) by requiring the contact test in reg 1.15(1)(c)(ii) to be satisfied in relation to any or all overseas near relatives.' 'Whether contact between the visa applicant and his mother and sister in Afghanistan prevented him from satisfying the definition of remaining relative notwithstanding absence of contact with his sister in Iran.' 'Whether the Tribunal failed to ask the correct question and thereby committed jurisdictional error.']

Ratio Decidendi

Read in the context of reg 1.15 as a whole, reg 1.15(1)(c)(ii) requires an applicant with overseas near relatives to have had no contact with any of them within the relevant period. The applicant's construction, under which absence of contact with one overseas near relative would suffice despite contact with others, would undermine the remaining relative concept. The Tribunal therefore asked the correct question, did not commit jurisdictional error, and the application had to be dismissed.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application be dismissed.' "The applicant pay the first respondent's costs."]