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Family Residence 835 Visa Refusal: Court Reasons

Matter Refused: Prasad v MIAC [2007] FCA 1739

This was an appeal from a judgment of the Federal Magistrates Court dismissing an application for judicial review of a decision of the Migration Review Tribunal (the Tribunal) affirming a decision of the Minister's delegate to refuse to grant the appellant an Other Family (Residence)(Class BU) subclass 835 visa. This is not a matter our firm handled.

The Tribunal found that the appellant and her husband usually resided in Australia at the time of visa application. The Tribunal was not satisfied that the appellant's husband had not had contact with his mother, who lived in New Zealand, within a reasonable time before making the visa application.

As such, it found that the appellant failed to meet r.1.15(1)(c)(ii) of the Migration Regulations 1994 (as in force prior to 1 November 2005).

The Federal Magistrates Court considered whether, on its true construction, r 1.15(1)(ii) had any application to the appellant, given the conceded inapplicability to her of r.1.15(1)(c)(i) as per MIMIA v Hildago [2005] FCAFC 192.

The Federal Magistrates Court dismissed the application and found that the proper construction of r.1.15(1)(c)(ii) was that 'it stands alone as a criterion to be satisfied even when, as in this case, sub-regulation (c)(i) does not apply'.

On appeal to the Federal Court, the appellant argued that r.1.15(1) set out one 'related and integrated' criterion and that subparagraph (c) identified a particular type of 'overseas near relative' and the quality of the association between that overseas near relative and the visa applicant. Thus, the reference to 'that relative' in r 1.15(1)(c)(ii) was said to be a reference to the relative described in r.1.15(1)(c)(i).

Held: Appeal was dismissed

1. The Tribunal did not commit jurisdictional error.
2. The role that the conjunctive word 'and' plays within r.1.15(1)(c) is to indicate that there are two items of information sought in respect of each 'overseas near relative', not that the two items are interdependent, i.e. not to indicate that item (ii) is cumulative upon item (i). In each item, as a matter of construction, the expression 'that relative' refers to the term 'overseas near relative' that appears in the conditional clause that opens paragraph (c). If it transpires that the visa applicant or that person's spouse happens usually to reside in Australia all that means is that it is unnecessary to endanger Ministerial satisfaction in respect of one of the items specified in r.1.15(1)(c), not that this paragraph has no application whatsoever.
3. A more natural reading of r.1.15(1)(c) is that it is directed to engendering Ministerial satisfaction with respect to two separate subjects in relation to each and any 'overseas near relative', whether that relative usually resides in a third country, a 'geographic' subject and the contact, if any, that the visa applicant or his or her spouse had with that relative within a reasonable time prior to the making of the visa application, a 'quality of contact' subject.

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