Assmann v Minister for Immigration and Multicultural Affairs

[2001] FCA 1180

FEDERAL COURT OF AUSTRALIA

Assmann v Minister for Immigration & Multicultural Affairs [2001] FCA 1180

MIGRATION LAW – Retirement visa – Application for review of decision of the Migration Review Tribunal – Application to Minister pursuant to s 351 of the Migration Act 1958

Migration Act 1958 (Cth) s 351
Migration Regulations 1994 (Cth) Sched 2, Subclass 410

HEINZ GERHARD ASSMANN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

T16 OF 2001

MARSHALL J
HOBART
24 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	T16 OF 2001

BETWEEN:	HEINZ GERHARD ASSMANN APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	24 AUGUST 2001
WHERE MADE:	HOBART

THE COURT ORDERS THAT:

1.        The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	T16 OF 2001

BETWEEN:	HEINZ GERHARD ASSMANN APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MARSHALL J
DATE:	24 AUGUST 2001
PLACE:	HOBART

REASONS FOR JUDGMENT

1. The proceeding before the Court is an application to review the decision of the Migration Review Tribunal (“the MRT”) to refuse the applicant a Retirement (Temporary) (Class TQ) visa, sub-class 410 (“the retirement visa”). The MRT decision was made on 28 March 2001.

   Factual background

2. The applicant, Mr Assmann, is a citizen of the Federal Republic of Germany. He is a 76 year old widower. Mr Assmann has visited Australia on several occasions. His daughter, Ms Margit Assmann is an Australian citizen who resides in Hobart. Mr Assmann last entered Australia on a visitor’s visa on 26 December 1998. The visitor’s visa expired on 23 September 2000.

3. In January 1999, Mr Assmann obtained an application form for the retirement visa from the respondent’s department. The application form obtained by Mr Assmann was out of date and contained monetary requirements that were only relevant prior to 1 December 1998.

4. Prior to 1 December 1998, an applicant for the retirement visa was required to have available resources of $500 000 to transfer to Australia; or available resources of not less than $150 000 to transfer to Australia and other money and entitlements sufficient to provide an annual income of $35 000. Amendments to the Migration Regulations 1994 (Cth) (“the Regulations”) effective from 1 December 1998, required an applicant for the retirement visa to have available resources of $600 000 to transfer to Australia; or available resources of not less than $180 000 to transfer to Australia and other money and entitlements sufficient to provide an annual income of not less than $42 000. See Sched 2, Subclass 410.227 of the Regulations.

5. On 7 June 1999, Mr Assmann applied for the retirement visa. On 7 June 1999, Mr Assmann met the former requirements for the grant of the retirement visa but not the then applicable requirements. On 25 June 1999, a departmental officer interviewed Mr Assmann, in the presence of Ms Assmann, to explain the new requirements for the grant of the retirement visa. A discussion ensued about investment strategies that would allow Mr Assmann to achieve an annual income of $42 000 while keeping a capital sum of $180 000.

6. Mr Assmann declined to adopt the strategy suggested to him at the discussion and requested the prompt processing of his application. On 31 August 1999, a delegate of the respondent refused the application for failure to meet the requirements of Sched 2 Subclass 410.227(1)(a) of the Regulations. Mr Assmann sought a review of the delegate’s decision before the MRT. Despite being afforded an opportunity to attend and submit oral evidence at a hearing before the MRT, Mr Assmann was content to let the matter be determined on the papers.

   The MRT’s decision

7. The MRT dealt with the application for the retirement visa on the basis of the requirements applicable at 7 June 1999, the date of Mr Assmann’s application. The MRT accepted that Mr Assmann had resources available in the sum of not less than $180 000. However it did not find that Mr Assmann had funds sufficient to provide him with an annual income of not less than $42 000. The MRT said that:

   “…the Tribunal finds at the time of decision the review applicant’s pension rights and capital for investment provide him with an annual income of $35,562 yearly and therefore do not meet the requirement of an annual income of $42,000. Accordingly the review applicant does not satisfy the requirements of sub-class 410.227(1)(a)(iii)."”

8. Although the MRT decided that Mr Assmann did not qualify for the retirement visa, it observed in its reasons for decision that Mr Assmann’s problems stemmed, at least in part, from the fact that he was given an outdated application form by officers of the respondent’s department. It also acknowledged that Mr Assmann’s income did not fail to meet the relevant requirements by a significant amount. The MRT recognised that the case was an appropriate one for Mr Assmann to apply to the Minister under s 351 of the Migration Act 1958 (Cth) (“the Act”) “for the purpose of seeking a more favourable decision from him.”

   The competing contentions

9. At the hearing before the Court this afternoon Mr Assmann represented himself. The only matter advanced in support of the application was that Mr Assmann was misled by being given an old form by the respondent’s department and that it was not his fault that his application for the retirement visa did not succeed. In response counsel for the respondent, Mr McLeish, submitted that Mr Assmann had not raised any reviewable grounds under Part 8 of the Act.

   Consideration

10. I agree with Mr McLeish that the Court has no power to review a decision of the MRT on the basis that the respondent’s officers misled Mr Assmann by providing him with an outdated form.

11. No such ground of review is referred to in Part 8 of the Act. Consequently, I can do no more than observe the advice given by the MRT that Mr Assmann apply to the Minister pursuant to s 351 of the Act for a more favourable decision given the special circumstances of Mr Assmann’s case which were identified by the MRT. I agree with the MRT’s view that such an application should be made. I was told today that the application has in fact been made and may be considered by the Minister. I would urge the Minister to give whatever favourable consideration he can to remedy the injustice that has occurred.

Order

1. The Court orders that the application be dismissed.

2. Given that the problems in this matter stem, at least in part, from the use of an outdated form obtained from the Minister’s department, I do not consider that costs should be awarded.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:             24 August 2001

Mr H Assmann for himself.
Counsel for the Respondent:	Mr McLeish
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 August 2001
Date of Judgment:	24 August 2001