Arango v Minister for Immigration
[2003] FMCA 167
•9 May 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ARANGO & ORS v MINISTER FOR IMMIGRATION | [2003] FMCA 167 |
| MIGRATION – Review of decision of the Migration Review Tribunal affirming a decision of a delegate of the Minister refusing to grant a Family (Residence) (Class AO) Visa, subclass 806 – no reviewable error disclosed – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B |
| Plaintiff S157/2002 v Commonwealth of Australia (2003) HCA 2 Craig v South Australia (1995) 184 CLR 163 R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 Wu Shan Liang v Minister for Immigration & Multicultural & Indigenous Affairs (1996) 185 CLR 259 Jun v Minister for Immigration & Multicultural Affairs (2000) FCA 867 Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA 311 Jackson v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 225 |
| Applicant 1: | LUIS ALBEIRO RESTREPO ARANGO |
| Applicant 2: | LUCELLY WAGNER DAZZA |
| Applicant 3: | JULIAN RESTREPO WAGNER |
| Applicant 4: | MAURO ANDRES RESTREPO WAGNER |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ922 of 2002 |
| Delivered on: | 9 May 2003 |
| Delivered at: | Bendigo |
| Hearing Date: | 2 May 2003 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicants: | Mr Gibson |
| Solicitors for the Applicants: | Ersking Rodan & Associates |
| Counsel for the Respondent: | Mr Fairfield |
| Solicitors for the Respondent: | Clayton Utz |
ORDER
The Application is dismissed.
The Applicant pay the Respondents’ costs pursuant to the Federal Magistrates Court Rules 2001 Part 21 Rule 21.10.
It is certified that pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 this matter reasonably required the attendance of counsel as advocate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ922 of 2002
| LUIS ALBEIRO RESTREPO ARANGO |
| LUCELLY WAGNER DAZZA |
| JULIAN RESTREPO WAGNER |
| MAURO ANDRES RESTREPO WAGNER |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This matter was transferred to this Court by order made in the Federal Court of Australia on 6 September 2002 by Marshall J. The matter was transferred pursuant to O.82 of the Federal Court Rules.
The applicants filed an application for an order to review on the 16th of July 2002. That application was amended by amended application filed the 17th of December 2002. The application is made pursuant to s.39B of the Judiciary Act 1903 (Cth) and ss.475A, 477, 478 and 479 of the Migration Act 1958 (Cth) (“the Act”) for writs of prohibition and certiorari and for a declaration in relation to a decision of the Migration Review Tribunal (MRT) made on 11 June 2002 to affirm a decision of the delegate of the Minister to refuse the applicants a Family (Residence) (Class AO) visa. The particulars of the claim are as set out in paragraph A(1)(i) and (2) of the amended application.
History
The first applicant (the applicant) a male national of Colombia, entered Australia on 20 October 1996 as a holder of a sub class 676 visitor visa. On 20 December 1996 he applied for a Family (Residence) (Class AO) visa on the basis that he was a ‘special need relative’ of his father, Luis Octavio Restrepo (the nominator). The applicant’s mother was included in the application as a person who needed the assistance of the applicant, however only the nominator signed the application form. The nominator is an Australian citizen usually resident in Australia. The second applicant is the spouse of the applicant and the third and fourth applicants are their children born on 12 December 1976 and 15 August 1979 respectively. The spouse and children were added to the visa applicant’s primary application. The applicant claimed that the nominator and his wife required both physical and emotional support. Before the delegate was a report from Dr. Anderiesz, dated 18 December 1996, stating that the nominator suffered from ischaemic heart disease and attacks of an irregular heart rhythm. On 6 March 2001 the delegate of the Minister refused the visa application.
By application filed 2 April 2001 the applicants sought review by the MRT of that decision. Written submissions were provided to the MRT and each of the first and second named applicants gave evidence at the hearing. The applicant was represented by his migration agent. Further medical evidence was provided from Dr. Canjera in February 2002 and from Dr. Anderiesz by report dated 17 November 2001 and subsequent to the hearing by report dated 15 April 2002. By decision dated 11 June 2002, the MRT affirmed the decision of the delegate.
Migration Review Tribunal hearing
The MRT found that the nominator and a member of the nominator’s family unit (the nominator’s spouse) suffered from a prolonged illness.
The MRT found that the applicant did not satisfy each aspect of the definition of ‘special need relative’ at the time of the application and at the time of decision – criterion required pursuant to the Migration Regulations 1994 (Cth) 806.213 and 806.22 – in particular because:-
a)there was little objective evidence of the type and level of assistance required by the nominator and his spouse because of their physical conditions;
b)the Tribunal had regard to the Departmental Procedures Advice Manual 3 (“PAM 3”) which provided that in the absence of other factors, companionship or general domestic assistance did not constitute a permanent or long-term need for assistance;
c)neither the nominator nor his spouse had a permanent nor a long-term need for assistance as at the time of the application in December 1996;
d)the circumstances of the nominator or his spouse inclusive of medical condition and factors such as age, loneliness and frailty, did not cumulatively constitute a “disability” at the time of application (CB 170) or other serious circumstance;
e)
the applicant was not ‘able’ to provide substantial and continuing assistance to the nominator after a consideration of the applicant’s full-time employment which included both a full-time and part-time job from 1997 onwards and the nominator and his wife’s absence from the applicant and his family whilst overseas from
5 July 2000 to 3 April 2001. The applicant was required to satisfy the MRT that he was able and willing to provide substantial and continuing assistance to the nominator. The MRT found (CB 172-173) this factual requirement not to be satisfied after a consideration of the evidence before it. The Tribunal concluded that it was not satisfied that the care provided by the visa applicant to his parents was of a substantial and continuing nature; and
f)the MRT was not satisfied that the assistance required by the nominator and his spouse could not reasonably be obtained from a combination of the nominator’s Australian relatives or welfare or community services in Australia.
It is not for this Court to substitute its own views of the evidence.
Consideration
The visa sought by the applicant was a class of visa provided for in
Sch 1 of the Migration Regulations. The relevant provision was in 1115 of that schedule as it stood at the date of the visa applicant’s application. 1115(4) specified the subclass-Family.
The definition of ‘special need relative’ was defined in the Migration Regulations r1.03 and contained a number of elements. The definition of ‘special need relative’ was repealed on 1 December 1998. Regulation 806 was repealed in respect of applications for a visa made on or after 1 November 1999: Migration Amendment Regulations 1999 (No.13), Statutory Rules 1999 No.259, reg 4 and Sch 2 par 2351. Those changes do not affect the application of the law, in force on the date of the application, to the applicant’s case. The nominator was both an Australian citizen and a relative of the applicant. In addition, the definition required the satisfaction of the following elements and each and every one of them:-
a)whether the nominator had a permanent or long-term need for assistance because of certain prescribed circumstances;
b)whether the applicant was willing and able to provide that assistance which was required to also be substantial and continuing; and
c)whether the assistance could not reasonably be obtained from the relatives of the nominator or from Australian welfare, hospital, nursing or community services.
The applicant claimed that the MRT did not consider the nominator’s need for emotional support or alternatively, equated that claim with companionship, and that the need for support coupled with age and state of health could constitute a need for assistance within the terms of part (a) of the definition of ‘special need relative’.
I find this not to be the case. The MRT considered the elements of each of the claims advanced by the applicant as it was required to do. It made findings in respect of the matters put before it by the applicant. The Tribunal did consider properly the question of the emotional needs of the nominator.
The reasons of the MRT should be read fairly and as a whole. I accept Counsel for the respondent’s submission that for the applicant to claim that the Tribunal did not consider emotional support is an unfair reading of what the Tribunal said. Reading the decision as a whole and without an overzealous scrutiny of the language used by the Tribunal (see Wu Shan Liang v Minister for Immigration & Multicultural & Indigenous Affairs (1996) 185 CLR 259) it is clear the Tribunal relied on many matters put before it in reaching its conclusion including whether the nominator or his spouse had a need for emotional support.
It is not in dispute that emotional support may qualify to satisfy the provisions under consideration: (see Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA 311 at par 31). I do not read the Tribunal’s reasons here as excluding that possibility. What the Tribunal did was to reach the view that in circumstances where the emotional support relied upon for qualification at the time of application was comprised of matters falling within the circumstances excluded by the policy, the emotional support present in the applicant’s case did not satisfy the statutory requirements. That was a decision of fact that the Tribunal was entitled to make and not the application of a wrong test (see Jackson v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 225).
Neither the nominator nor his spouse gave evidence at the MRT hearing. The assistance said to be needed by them was identified by the applicant and his family and the medical and other evidence put before the Tribunal. The MRT referred to the nominator requiring ‘physical and emotional support’ (CB 162.8). The MRT found that “no medical or professional reports have been submitted to the Tribunal to substantiate the claim that the nominator suffers from depression or some form of emotional dependency” (CB 169.5). In its findings section, the MRT also noted that it was claimed that the nominator required emotional support from the applicant (CB 168.5 and 169.5).
The applicant argued that the Tribunal misinterpreted and/or misunderstood the criterion of “permanent or long-term need for assistance”. I reiterate that this involved a question of fact for the Tribunal to determine provided that it approached its task correctly as a matter of law. It was clearly open to the Tribunal to determine the nominator’s prolonged illness did not give rise to ‘a permanent or long-term need for assistance.’ This was a finding that the nominator’s condition did not meet the requirements of the Regulations which was a conclusion open on the evidence before the Tribunal.
In addressing the question of permanent or long-term need for assistance the Tribunal had before it the Departmental Procedures Advice Manual 3 (“PAM 3”) which, as its reasons disclose, it applied in analysing part of the applicant’s case. The Tribunal had regard to PAM 3 and the policy expressed therein that, in the absence of other factors, “companionship of a relative” or “general domestic assistance” did not constitute a permanent or long-term need for assistance.
PAM was issued pursuant to the power in the respondent in s.499 of the Act whereby he may give written directions to a body having functions or powers under the Act about the performance of those functions or the exercise of those powers. By s.499(2) it is provided that the directions cannot be inconsistent with the Act or the Regulations. As a consequence of s.499(2A) the body must comply with a direction so made. There is no submission here that PAM is inconsistent with the Act or the Regulations (Jun v Minister for Immigration & Multicultural Affairs (2000) FCA 867 at par 11.).
The MRT made a factual finding open to it and not subject to merits review by this Court that while the nominator and his spouse were close to the applicant and his family, the emotional needs of the nominator were primarily in the nature of companionship (CB 169.9). The provision of this type of assistance was consistent with the evidence given by the applicant himself including such evidence as spending time with his father trying to cheer him up (CB 167).
The applicant argued that the MRT dismissed the factor of ‘frail aged’ as having any relevance to the question of need and that the cumulative effect of age, infirmity and need for emotional support was never considered. It is clear that, contrary to this assertion, the Tribunal did consider and reject these elements of the applicant’s claim.
Whatever the scope and extent of jurisdictional error, it clearly is that an administrative Tribunal exceeds its power and thus commits a jurisdictional error if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion in a way that affects the exercise or purported exercise of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This list is not exhaustive.
I can find no error of law to give rise to a claim of jurisdictional error in these proceedings.
Having found that the decision is not affected by jurisdictional error I am satisfied that the decision is a privative clause decision with s.474(2) of the Act and that the application was commenced within the period of 28 days limited by s.477(1)(b) of the Act.
The decision in Plaintiff S157/2002 v Commonwealth of Australia (2003) HCA 2 determined the scope and extent of s.474 of the Act. The joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ states that s.474 must be read so as to refer only to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act [at (76)].
Given that the tribunal’s decision is a privative clause decision I find that the decision clearly related to the subject matter of the Act; was reasonably capable of reference to the power; and was a bona fide attempt by the decision maker to exercise the power which the Act reposed in such decision-maker (see R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598). Indeed it is not contended by the applicant that these conditions are not satisfied.
I dismiss the application and order that the applicant pay the respondent’s costs pursuant to Part 21, Rule 21.10 of the Federal Magistrates Court Rules 2001.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: L.M.Dorian
Date: 8 May 2003
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