Bachir v Minister for Immigration
[2007] FMCA 115
•19 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BACHIR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 115 |
| MIGRATION – Application to review decision of Migration Review Tribunal – whether Tribunal failed to comply with s.359A of Migration Act – jurisdictional error found – unexplained delay militates against discretionary relief – application dismissed. |
| Judiciary Act1903, (Cth), s.39B Migration Act 1958, (Cth), ss.359A,424A, 477 Migration Legislation Amendment Act (No.1) 1998 (Cth), s.3 and Sch.1 Migration Regulations, 1994 (Cth), regs1.03,1.12 |
| Applicant M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132 Applicant M164 of 2002 v Minister for Immigration &Multicultural & Indigenous Affairs [2006] FCAFC 16 Azzi & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 195 ALR 166; [2002] FCA 24 Cui v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1266 Gararth v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 316 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 32 Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491; [2000] HCA 67 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162; [2005] HCA 24 SZCJD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 609 SZCNG v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 505 SZDPY v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 627 SZECG v MIMIA [2006] FCA 733 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214; [2006] FCAFC 2 SZICO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1803 |
| Applicants: | ANTOINETTE BACHIR & ANOR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 869 of 2005 |
| Judgment of: | Lucev FM |
| Hearing date: | 26 October 2006 |
| Date of Last Submission: | 26 October 2006 |
| Delivered at: | Perth (by video link to Sydney) |
| Delivered on: | 19 February 2007 |
REPRESENTATION
| Applicant | Ms A Bachir in person |
| Counsel for the Respondent: | Ms L Clegg |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Court makes the following Orders:
that the Application, as amended, be dismissed.
that the Applicant, Antoinette Bachir, pay the First Respondent’s costs.
that the name of the First Respondent be amended to read “Minister for Immigration and Citizenship”.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
SYG 869 of 2005
| ANTOINETTE BACHIR & ANOR |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
MIGRATION REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
On 8 April 2005 Antoinette Bachir (“the Applicant”) filed an Application (“the Application”) under s.39B of the Judiciary Act1903 (Cth) and the Migration Act 1958 (Cth) for review of a decision made by the Migration Review Tribunal (“the Tribunal”).
The Application also names Georges Abi Nader, who is the Applicant’s husband, as a co-Applicant however the Application has only been pursued on behalf of the Applicant; and responded to by the Minister, as if only the Applicant is a party, and the Court will deal with the Application as if that were the case, save for formal orders.
Amended application
On 27 May 2005 the Applicant filed an Amended Application claiming:
“1. The decision made by Migration Review Tribunal to be returned to the tribunal and to be reheard by Presiding Member.
2. The Applicant to remain in Australia as Carer and Special Need Relative to her daughter and grandchildren.”
Grounds for amended application
The grounds for the Amended Application are set out therein as follows:
“1. The Migration Review Tribunal failed to have regard to the Nominator’s situation and circumstances without relying on medical evidence and fully understanding the need for care by the visa Applicant who dedicated herself to the wellbeing of her daughter and grandchildren.
2. The Tribunal failed to take into consideration the evidence and verify such evidence by contacting social worker or requesting a proper Health Service Australia examination.
3. The review Applicant had been a nurse in Lebanon and believed that the Tribunal failed to assess the seriousness of the daughter’s condition and the effect on her and her children without the emotional, physical, psychological support of the Applicant.”
Remedy sought
The remedy sought by the Applicant is set out in the Amended Application as follows:
“1. An order that the decision under review be set aside and remitted to the Respondent to be reconsidered according to law.
2. Such further order or orders as the Court thinks fit.”
Background facts
On 30 June 1997 the Applicant, a citizen of Lebanon, arrived in Australia holding a tourist visa subclass 676 visa: see CB 5.
The Applicant applied for a Family Residence (Class AO) visa on
12 June 1998: see CB 1. The Applicant’s daughter (“the Nominator”), who is an Australian citizen, nominated the Applicant.
The Family Residence visa application was refused by the Minister’s delegate on 24 May 1999: see CB 49.
On 31 May 1999 the Applicant made an application for review of the decision of the Minister’s decision on the Family Residence visa application: see CB 65. Ultimately, that application came to the Migration Review Tribunal (“the Tribunal”) for a hearing. The hearing was attended by the Applicant, and she gave evidence, together with the Nominator and other persons: see CB 65, 72 & 81.
The Tribunal made a decision affirming the decision of the Minister’s delegate (“Tribunal Decision”). That decision was made on
1 December 1999: see CB 86.
As indicated above the Application and Amended Application were filed on 8 April 2005 and 27 May 2005 respectively. The claims made by the Applicant before the Tribunal are succinctly summarised in the Minister’s submissions, as follows:
“The Applicant claimed to be a special need relative of the nominator who at the time of the hearing had three very young children and suffered complications during and after pregnancy arising from severe varicose veins. Medical certificates were produced by the Applicant which stated that the nominator suffered from severe depression and distress. It was said that the nominator was also required to look after her ailing father in law, who lived in the family home with the nominator and her family. The nominator claimed that her mother provided irreplaceable emotional, physical and psychological assistance. Without the assistance she would collapse.” (Minister’s Submission, para 9)
The Tribunal Decision: see CB 86-97, set out the evidence in some detail: see CB 90-94, paras 9-24 and then made findings based on that evidence. Relevantly, the findings at CB 94-96, paras 27-34 are as follows:
“27. The Tribunal is not satisfied that Mrs Yacoub [the Nominator] has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstance affecting her personally or a member of her family unit.
28. The application form listed her and her two young sons as needing assistance. Her sons are, on her evidence and that of her mother, in good health. There is no evidence of any disability, prolonged illness or other serious circumstance affecting them. Despite not being listed as a special need relative, the nominator’s father-in-law has been described in the oral evidence as in need of assistance. However, the Tribunal is not satisfied that his medical condition is such as to require substantial assistance. He can attend to his own personal care. He does not cook or do housework but he attributed this to his cultural background, rather than to his medical condition. Further, he is not a member of the nominator’s family unit as defined in regulation 1.12 because, on his own evidence, he is not dependent on his son or daughter-in-law. ‘Dependent’ means ‘wholly or substantially dependent on another person for financial, psychological or physical support’ (regulation 1.03). There is no suggestion of a need for psychological support. His medical problems are not of such magnitude or impact as to render him wholly or substantially physically dependent on another person. Nor is he financially dependent. In fact he contributes to the family expenses by paying $100 per week towards their rent.
29. As to Mrs Yacoub herself, the Tribunal was mindful of the fact that her need for assistance must be established both at the time of application and at the time of decision. At the time of the application Mrs Yacoub was unexpectedly pregnant with a third child, was suffering complications from that pregnancy and was having difficulties in dealing with the reality of her situation in Australia, her husband’s unexpected unemployment and the demands of a young family. At that time she did have a need for so me short-term assistance which her mother met.
30. She now has three small ‘noisy’ but healthy children (aged one, two and three) and responsibility to maintain a household which includes an irritable husband and a father-in-law who is not inclined to assist or to attend to his own needs. The Tribunal accepts that she did suffer from depression after her second delivery but also accepts the evidence of Dr Latif that this was relieved by the arrival of her mother. The medical evidence provided at the time of the application was of a short-term need for assistance through a difficult pregnancy and in the post-natal period. The Tribunal also accepts that she suffered from depression in relation to the termination she underwent earlier this year. She took medication for a short time. However, she is no longer on medication and is not being treated for depression. She talks to her general practitioner when she feels the need. Her overall condition has, by all accounts, improved. Her husband is now employed. She is no longer suffering major complications of pregnancy. She has some residual problems from varicose veins. Her physical condition is not such as to warrant substantial assistance. In fact she provides assistance to her father-in-law.
31. The evidence of the present extent of her depression or inability to cope is limited. Dr Latif’s report of 29 May 1999 suggests that Mrs Yacoub needs assistance in caring for her children. Insofar as her need is for the companionship of her mother, for domestic assistance or for assistance in bringing up children or to overcome maladjustment and homesickness caused by the dislocation of migrating and resettlement in Australia, policy is clear and is adopted by the Tribunal. Such circumstances are not ‘other serious circumstances’ within the definition of ‘special need relative’.
32. Dr Latif expresses concern at the possible consequences of her mother leaving Mrs Yacoub alone (what ‘might’ happen). However, he does not suggest that Mrs Yacoub is presently suffering from depression or any illness that will be exacerbated by her mother’s departure. Mrs Yacoub says that she feels that she will need her mother’s assistance at least until two of her three children are at school. All the evidence before the Tribunal suggests that her need is essentially to help her to cope with the psychological and domestic demands of a young family. Based on the ages of the children, the first two should be at school in a little over three year’s time. It is policy that ‘long-term’ be regarded as meaning ‘a period of at least 5-10 years’. Mrs Yacoub has a short-term need to help her cope with a difficult period in raising her three small boys in an unfamiliar environment, which has not met her expectations. On all the evidence the Tribunal is not satisfied that any need for assistance that Mrs Yacoub has is permanent or long-term as is required under the definition of special need relative.”.
Ground 1
Ground 1 alleges that the Tribunal failed to have regard to the Nominator’s situation and circumstances without relying on medical evidence and fully understanding the need for care by the visa Applicant who dedicated herself to the wellbeing of her daughter (“the Nominator”) and her grandchildren.
There can be no doubt that the Tribunal canvassed, considered and had regard to “the Nominator’s situation and circumstances”. The Tribunal’s Presiding Member’s decision: Tribunal Decision CB 86-97, carefully set out the relevant evidence: Tribunal Decision CB 90-94, paras 9-24, and based findings on that evidence: Tribunal Decision CB 94-96, paras 25-34, to arrive at a conclusion that the Applicant did not satisfy the prescribed criteria for the visa subclass for which the Applicant had applied.
There is simply no basis on which to find that the Tribunal “failed to have regard to the Nominator’s situation and circumstances”, or that the Tribunal mistook or misunderstood the requirement to do so.
Otherwise, as far as this ground seeks to re-agitate the merits of the application, this is simply not permissible.
This ground fails.
Ground 2
Ground 2 alleges that the Tribunal failed to take into consideration the evidence and verify such evidence by contacting the social worker or requesting a proper Health Service Australia examination.
As the Court has found in relation to Ground 1, the Tribunal did canvas, consider and have regard to the evidence. In particular, the Tribunal considered and set out the evidence of the Centrelink social worker: Tribunal Decision, CB 91, para 9 (fourth dot point). Ultimately, having regard to all of the available evidence, the Tribunal reached a view not necessarily consistent with the view expressed by the social worker. That was the Tribunal’s task, and it reveals no discernible error reviewable by this Court.
Ground 2 suggests that the Tribunal ought to have:
(1)contacted the social worker to “verify” her evidence; or
(2)requested “a proper Health Service Australia” examination.
The suggestion misconceives the Tribunal’s role. Where:
(1)the evidence of a social worker and the Nominator’s medical practitioner was put before the Tribunal in support of the application: Tribunal Decision CB 90-92, para’s 9-10;
(2)the Applicant requested that the Tribunal have regard to the evidence of medical practitioners (Drs Latif and Sakla), which the Tribunal did: CB 74 (Request for Hearing) and Tribunal Decision CB 90-92, paras 9-10; and
(3)the Applicant and Nominator were questioned about the medical evidence relied upon: Affidavit of Nesbit sworn 11 October 2006, Attachment A (Tribunal Hearing Record – Attachment pages 7 & 10-14 of Affidavit),
the Tribunal has no duty to inquire in the manner suggested: Azzi & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 195 ALR 166 at 187-189 per Allsop J; [2002] FCA 24 at paras 102-114 per Allsop J; Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at 21-22 per Gummow & Hayne JJ (Gleeson CJ agreeing at 13); [2004] HCA 32 at paras 42-43 per Gummow & Hayne JJ (Gleeson CJ agreeing at para 1). There is therefore no reviewable error arising from a lack of inquiry by the Tribunal.
In so far as this ground seeks to re-agitate the application’s merits, that is not permissible.
This ground fails.
Ground 3
Ground 3 alleges that Applicant had been a nurse in Lebanon and believed that the Tribunal failed to assess the seriousness of the Nominator’s condition and the effect on the Nominator and her children without the emotional, physical and psychological support of the Applicant.
The Tribunal noted that the Applicant, “had been a nurse in Lebanon and knew what her daughter had been through was a nasty situation”: Tribunal Decision, CB 94, para 24. The Tribunal assessed whether the Nominator had “a permanent or long term need for assistance because of … disability, prolonged illness or other serious circumstances affecting” the Nominator: Migration Regulations, 1994 (Cth) reg 1.03.
The Tribunal considered:
(1)the health of the Nominator’s sons: Tribunal Decision, CB 94-95, para 28; and
(2)the health of the Nominator, and in particular:
i)that at the time of the birth of her third child she had a need for some short-term assistance, which need had been met by the Applicant: Tribunal Decision, CB 95, paras 29-30;
ii)that her overall health had improved, that she had some “residual problems from varicose veins” but that her “physical assistance is not such as to warrant substantial assistance” (whilst noting that she provided domestic assistance to her father-in –law): Tribunal Decision, CB 95, para 30;
iii)that “evidence of the present extent of her depression or inability to cope is limited” Tribunal Decision, CB 95, para 31;
iv)that the need for the Applicant’s companionship, and domestic assistance, and the need to overcome maladjustment and homesickness, arising from migration to Australia were not “other serious circumstances” under the definition of “special need relative”: Tribunal Decision, CB 95-96, para 31; and
v)that the evidence suggested the need for short-term assistance to meet psychological (as well as domestic) demands: Tribunal Decision, CB 56, para 32.
In those circumstances, because it seeks to do no more than re-argue merit, which is not permissible, the ground must fail.
Section 359a matter raised by the Minister
At hearing the Minister’s Counsel, Ms Clegg, raised, quite properly, and submitted, in a manner both fair and helpful to the Court, the possibility that there existed a matter under s.359A of the Migration Act 1958 (Cth), requiring compliance with the obligations thereunder.
Section 359A relevantly provides as follows:
(1)Subject to subsection (2), the Tribunal must:
(a)give to the Applicant, in the way the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the Applicant understands why it is relevant to the review; and
(c)invite the Applicant to comment on it; and
(2)…
(3)…
(4)This section does not apply to information:
(a) that is not specifically about the Applicant or another person and is just about a class of persons of which the Applicant or other person is a member; or
(b) that the Applicant gave for the purpose of the application; or
(c) that is non-disclosable information.
Section 359A came into operation on 1 June 1999: see Migration Legislation Amendment Act (No.1) 1998 (Cth) s.3 and Sch. 1. The Tribunal Decision is dated 1 December 1999.
The relevant sub-sections of s.359A of the Migration Act are identical to certain sub-sections of s.424A of the Migration Act. Hence, judgments on those sub-sections of s.424A are applicable precedents in relation to s.359A matters: Cui v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1266 at para 32 per Barnes FM.
The cases in relation to ss.359A and 424A make it clear that:
(1)strict compliance with the section is necessary, and it is a denial of natural justice and an error going to jurisdiction not to strictly comply, which error invalidates the decision being reviewed: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162, at 183 per McHugh J; [2005] HCA 24 at para 77 per McHugh J; ALR at 203 per Kirby J; HCA at para [173] per Kirby J; ALR 211 per Hayne J; HCA at para 203 per Hayne J. (“SAAP”); SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 at 253 per Weinberg J; [2006] FCAFC 2 at para 163 per Weinberg J, (“SZEEU”); SZCNG v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 503 at paras 62-64 per Barnes FM (“SZCNG”);
(2)the question to be asked is “whether the information in question was a part (that is any part) of the reason for affirming the decision” SZEEU FCR at 262 per Allsop J; FCAFC at para 215 per Allsop J;
(3)the whole of the reasons need to be considered in context to ascertain the reason(s) for the decision, and whether any particular information was a part of the reasoning for the decision: SZEEU FCR at 262 per Allsop J; FCAFC at para 216 per Allsop J;
(4)the fact that the information was known to the review Applicant is irrelevant, what matters is the review Applicant’s understanding of why the information is relevant to the review, and that the review Applicant is invited to comment on that information: s.259A(1)(b) and (c), Migration Act, SZCNG at para 41 per Barnes FM;
(5)the fact that the information is given to the Tribunal by a person called by the review Applicant, and/or that the information is conveyed to the Tribunal by a person called in the presence of the review Applicant, does not alleviate the Tribunal’s obligation to give the information to the review Applicant : SAAP, ALR 178 per McHugh J; HCA at para 63 per McHugh J; ALR 203-204 per Kirby J; HCA at paras 175-176 per Kirby J; ALR at 204-207 per Hayne J; HCA at paras 182-191 per Hayne J; Applicant M164 of 2002 v Minister for Immigration &Multicultural & Indigenous Affairs [2006] FCAFC 16 at paras 99-101 per Lee J; SZCNG at paras 42-64 per Barnes FM (and in particular at para 64: “information is not given by the Applicant where it is given orally by a third party in response to questioning at a Tribunal hearing”);
(6)mere information or adoption of evidence by the review Applicant is not a giving of the information by the Tribunal: SZCNG at paras 65-66 per Barnes FM (and cases there cited); see also SAAP, ALR at 203 per Kirby J; HCA at para 175 per Kirby J illuminating practical reasons for the existence of such a rule; and
(7)the affirmation of specific facts by an Applicant in response to specific questions from the Tribunal is the giving of information by an Applicant (which will be covered by the exclusion in s 359A(4)(b) (or s424A(3)(b))): SZEEU, FCR at 242 per Moore J; FCAFC at para 91 per Moore J, FCR at 254 per Weinberg J; FCAFC at para 173 per Weinberg J; FCR at 268 per Allsop J; FCAFC at para 264 per Allsop J.
The Minister notes that in reaching its conclusion that the Nominator did not have a long term requirement as required under the definition of a special need relative, the Tribunal arguably relied upon information relating to the ages of the Nominator’s children to enable the Tribunal to find that “the first two children should be at school in a little over three year’s (sic) time”: Tribunal Decision CB 96, p ara 32; Minister’s Submissions, para 18.
The Minister also concedes that “that information might not have been given to the Tribunal by the [A]pplicant for the purposes of the review”: Minister’s Submissions, para 19.
The Court notes that the Tribunal Decision actually sets out the birth dates of the first two children (29 July 1996 and 22 August 1997), and the fact that the Nominator was 6 months pregnant with a third child Tribunal Decision; CB90 para 9 (first dot point). That information is acknowledged in the Tribunal Decision as being information contained in the Applicant’s visa application form dated 12 June 1998 : Tribunal Decision; CB90 para 9 (first dot point). An analysis of the Tribunal’s findings makes it clear that the Tribunal specifically relied on the information provided by:
(1)the Department to the Tribunal as to the children’s birthdates; or
(2)the Nominator,
to arrive at findings, concerning the childrens’ ages, essential to its reasons for affirming the decision under review. The Nominator, in her evidence to the Tribunal said, in response to direct questioning that she required the Applicant’s “help” until “one of” the children went to school, and went on to say that the children were “1 yr 1 mth, 2yr 2 mths, 3 yrs 3 mths”: Affidavit of Andrea Jane Nesbitt, sworn
11 October 2006, page 14 (Migration Review Tribunal, Hearing Record Attachment, Point 406). In particular, the Tribunal’s finding that:
“[The Nominator”] now has three small ‘noisy’ but healthy children (aged one, two and three)”: Tribunal Decision CB 95, para 30 (underlining added); and
“All the evidence before the Tribunal suggests that … [the Nominator’s] need is essentially to help her to cope with the psychological and domestic demands of a young family. Based on the ages of the children, the first two should be at school in a little over three years [sic] time. It is policy that ‘long-term’ be regarded as meaning ‘ a period of at l east 5-10 years. [The Nominator] … has a short-term need to help her cope with a difficult period in raising her three small boys … the Tribunal is not satisfied that any need for assistance that …[the Nominator] has is permanent or long-term as is required under the definition of special need relative.”: Tribunal Decision, see CB 96, para 32, (underlining added),
make it reasonably apparent that the Tribunal used information not provided by the Applicant as part of the reason for affirming the decision under review, without complying with the s 359A requirement to “give” the Applicant “particulars of … information”, and without ensuring the Applicant understood the relevance of the information to the review, or giving the Applicant an opportunity to comment upon the information. Thereby, the Tribunal seemingly committed jurisdictional error. The First Respondent, however, argues otherwise, and it is necessary to consider those arguments before finally concluding that there was jurisdictional error.
The Minister says that the Applicant gave the Tribunal information that the Nominator had “3 very young sons” when she tendered at hearing a letter from Dr M J Simcock to Dr A Sakla : see CB80, letter from Dr Simcock to Dr Sakla, 12 July 1999. The Minister submits that this snippet of information contains sufficient detail to support the conclusion by the Tribunal that the two eldest children would be a school in a little over three years time; and, hence there is no breach of s. 359A of the Migration Act because the information was given to the Tribunal by the Applicant for the purposes of the review: Minister’s Submissions, para 20. The information disclosed by the Applicant discloses no more than there were three “very young sons”. No age, or age range, is specified for any one or more of the sons. It is impossible to tell from the information provided how old the sons are: “very young sons” imparts a range of possibilities and different meanings dependent upon context. It might be possible that there were three sons under 2 years (say one month, 12 months and 23 months), in which case the Tribunal conclusions that the two eldest would be at school in “a little” (whatever that somewhat imprecise phrase means) over three years would be incorrect. Further, it is objectively impossible to determine what Dr Simcock meant by “three very young sons”: “very young sons” might mean different things to different doctors, and different things to doctors aged 30, 40 or 60! In the circumstances this part of the Minister’s submission fails.
The Minister goes on to submit that:
“21. If the Court is against the Minister on this, then Minister relies on the evidence of the Tribunal hearing which indicates that this issue arose in questioning by the Tribunal of the nominator (see annexure to affidavit of Andrea Nesbitt at folio 30, point 406). The fact that this information was provided in response to questioning does not prevent it from falling into the exception in s.359A (4)(b) of the Act SZCJD v MIMIA [2006] FCA 609 per Heerey J at [41] – [43] and SZDPY v MIMIA [2006] FCA 627 per Kenny J at [35] – [36].
22. However the issue here is whether in those circumstances, information provided by the nominator (as opposed to the review Applicant) when giving evidence to the Tribunal amounts to ‘information given by the Applicant for the purposes of the review’. This issue was canvassed thoroughly by Branson J in SZECG v MIMIA [2006] FCA 733 and by Barnes FM in SZCNG v MIMIA [2006] FMCA 505. Both of these cases support the view that evidence given by a relative in visa applications is not evidence given by the Applicant for the purposes of the review.
23. The Minister submits that the above authorities can be distinguished in the circumstances of this case. This is because unlike SZCNG, SZECG, and SAAP v Minister for Immigration and Multicultural Affairs (2005) 215 ALR 162 and other like cases which have established a breach of s 424A, the evidence given by the nominator about the precise age of her children, was consistent with evidence given by the Applicant about their ages for the purposes of the review (see paragraph 20 above). It is submitted that section 359A has no application in such circumstances.”
In SZJCD and SZDPY
(1)the Applicant did not establish that the information allegedly not given was the reason, or a p art of the reason, for the Tribunal’s decision: SZCJD at para 30 per Kenny J;
(2)the Applicant specifically gave the relevant specific information to the Tribunal, in response to the Tribunal’s questioning, thereby affirming specific facts: SZCJD at paras 7 (which para indicates a series of specific questions and specific answers predicated upon a specific question in the Applicant’s protection visa application, to which he was specifically taken by the Tribunal) and 42-43 per Heerey J; SZDPY at paras 30 and 35-36 per Kenny J.
SZJCD and SZDPY are distinguishable on the facts of this case, because:
(1)it is clear that the children’s ages, and (by inference from the time at which children start school) their specific ages, was information which constituted part of the reason for the Tribunal’s decision: see para 35 above; and
(2)at no stage did the Applicant give specific information to the Tribunal about the Nominator’s children’s ages, whether in response to questioning from the tribunal or otherwise.
For these reasons SZJCD and SZDPY are not of assistance in the disposition of the Amended Application.
The Minister then argues, correctly in the Court’s view, that SZECG and SZCNG, “support the view that evidence given by a relative in visa applications is not evidence given by the Applicant for the purposes of the review” : Minister’s Submissions, para 22. The Minister however goes on to submit that s.359A has no application because the evidence given by the Applicant to the Tribunal, namely Dr Simcock’s letter: see CB 80, is consistent with evidence by the Nominator about the precise age of the Nominator’s children, and that SZCNG, SZECG and SAAP are therefore distinguishable. The Court does not agree with that submission. The Applicant was entitled, under s.359(1)(a) to be given particulars of information as to:
(a) the age of the children;
(b) their being of school age at a particular time; and
(c) the consequence of (b) being that the Applicant’s help would no longer be required.
For the reasons given at para 36 above, (a) and (b) are not information which flows from Dr Simcock’s description of “three very young sons”. As to (c), that was information used by the Tribunal in its reasoning which was simply not given to the Applicant.
The failure by the Tribunal to give the Applicant the information in each of (a), (b) and (c) was a breach of s.359A(1), and therefore a jurisdictional error.
The question now arises as to whether relief, and if so what relief, ought to be granted.
Delay
The Application in this matter was filed on 8 April 2005; that is, five years, four months and one week after the Tribunal Decision was handed down on 1 December 1999 The Applicant was advised o the Tribunal Decision by the same day: CB 85 – Letter, Deputy Registrar, MRT to Applicant, 1 December 1999; CB 86-97 – Decision, MRT Presiding Member Barnes, 1 December 1999.
Counsel for the Minister submitted that the Minister was aware that the Applicant had sought the Minister’s intervention in the period between the Tribunal Decision and the making of the Application, and that she had joined her husband in an application for a protection visa: Minister’s Submissions, para 26. The outcome of the applications for Minister’s intervention and for a protection visa are not in evidence, and were not the subject of any submissions by any party. There was, as the Minister’s Submissions make apparent, a failure to account for the inordinate delay in the bringing of the Application: Minister’s Submissions, para 27.
The relevant time limit for the Application has always been 28 days (now extended to 84 days in certain circumstances): Migration Act s.477.
The Applicant has not applied to extend time nor explained the delay.
The failure to apply to extend time is fatal and must result in the dismissal for want of prosecution: SZICO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1803 at paras 10 and 11 per Tamberlin J.
In any event, there could be no extension of time in this case, where the Applicant applies to this Court more than five years out of time. Delay militates against prerogative and discretionary relief: Applicant M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132 (“Applicant M70”); Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491; [2000] HCA 67 (“Marks”); Gararth v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 316 (“Gararth”).Other than in the most extraordinary circumstances, an extension of time in the face of a delay of more than five years would be contrary to:
(1)the public interest requiring litigation concerning administrative decisions to come to an end: Marks ALR at 495 per McHugh J; HCA at para 15 per McHugh J;
(2)the legislative intent expressed by s.477 of the Migration Act, 1958 (Cth) prescribing a time limit which the Applicant has not complied with; and
(3)the Respondent’s vested right to retain the fruits of the decision with effect from the time the decision is effective: Marks ALR at 496 per McHugh J; HCA at para 17 per McHugh J.
Counsel for the Minister submitted that the Minister was aware that the Applicant had sought the Minister’s intervention in the period between the Tribunal Decision and the making of the Application, and that she had joined her husband in an application for a protection visa: Minister’s Submissions, para 26. The outcome of the applications for Minister’s intervention and for a protection visa are not in evidence, and were not the subject of any submissions by any party. There was, as the Minister’s Submissions make apparent a failure to account for the inordinate delay in the bringing of the Application: Minister’s Submissions, para 27.
In all the circumstances the delay is fatal to the relief sought. By reason of the delay alone the Application (including the Amended Application) must be dismissed.
Conclusions
The Court concludes that
(1)the grounds advanced by the Applicant in the Amended Application fail;
(2)that the Tribunal committed jurisdictional error under s.359A(1) by failing to give to the Applicant information used to affirm the decision under review;
(3)failure to make the Application within time meant that the Court was without jurisdiction to hear the Application and Amended Application;
(4)in any event, the lengthy and unexplained delay means that the discretionary relief available for jurisdictional error ought not be g ranted.
Orders
The Court makes the following Orders:
(1)That the Application, as amended, be dismissed.
(2)That the Applicant, Antoinette Bachir, pay the First Respondent’s costs.
(3)That the name of the First Respondent be amended to read “Minister for Immigration and Citizenship”.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: Maryna Hewitt
Date: 19th February 2007
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