Federal Court Rejects Visa Application: Nominator Must Show Inability to Care for Self

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

[APPELLANT] v Minister for Immigration & [NAME] & [NAME] Affairs [2002] FCA 917

[APPELLANT] v MINISTER FOR IMMIGRATION & [NAME] & [NAME] AFFAIRS

N 462 OF 2002 BRANSON J 16 JULY 2002 [APPELLANT]

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 462 OF 2002

BETWEEN: [APPELLANT]

APPLICANT

AND: [APPELLANT[NAME]

RESPONDENT

[APPELLANT] OF ORDER: 16 JULY 2002

[APPELLANT]

THE COURT ORDERS THAT: 1. The application be dismissed. 2. There be no order for costs.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 462 OF 2002

[APPELLANT]

APPLICANT

AND: [APPELLANT[NAME]

RESPONDENT

JUDGE: BRANSON J

DATE: 16 JULY 2002

PLACE: [APPELLANT] FOR

JUDGMENT 1 This matter was heard together with that of the applicant's sister, [NAME] [APPELLANT]. The applicant in this case is the twin brother of [NAME] ("[NAME]"). [NAME] nominated both the applicant and [NAME] [APPELLANT] for a [NAME]) (Class AO) visa on the basis that he was a special need relative. The Tribunal heard the applicant's application for review of the decision refusing him and his wife and child the visa which he sought together with that of [NAME] [APPELLANT]. 2 As in the matter of [NAME] [APPELLANT] the Tribunal concluded that: "There is no evidence that the [NAME] was unable or found it difficult to look after herself at the time of the visa application."

The applicant in this case advances through his counsel the same complaint with respect to the above finding as was advanced in the matter of [NAME] [APPELLANT].

3 In my view, the complaint is without substance because it involves the same erroneous reading of the written reasons for decision as I identified in the matter of [NAME] [APPELLANT] ([APPELLANT] v Minister for Immigration & [NAME] & [NAME] Affairs [2002] FCA 916). Interestingly the written reasons for decision in this case reveal another example of the tendency in the Presiding Member which I identified in the matter of [NAME] [APPELLANT]. Paragraph 40 of the Tribunal's reasons for decision in this case states: "The Tribunal … is unable to find as a fact that the [NAME] was at the time of the visa application depressed and anxious to a level which could amount to serious circumstances." 4 In my view, it is plain that the Tribunal member intended to convey by the above paragraph that having considered all of the relevant evidence before her she was satisfied that the [NAME]'s depression and anxiety at the relevant time was not of a level which could amount to serious circumstances. 5 For the reasons given in the related matter of [NAME] [APPELLANT] the order of the Court is the application be dismissed. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate: Dated: 24 July 2002

Counsel for the 1st and 2nd Applicants: [redacted]

Counsel for the Respondent: [redacted]

Solicitor for the Respondent: [redacted]

Date of Judgment: 16 July 2002