Bekele v Minister for Immigration - [2004] FMCA 395

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BEKELE v MINISTER FOR IMMIGRATION

[2004] FMCA 395

MIGRATION – Visa – Other family class BO visa sub class 115 remaining relative visa – Migration Review Tribunal – review of Migration Review Tribunal decision – applicant an Australian citizen – applicant seeks to bring her brother and sister-in-law into Australia.

Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth) Reg 1.15

Applicant:

SMEGNE A. BEKELE

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 1279 of 2003

Delivered on:

24 May 2004

Delivered at:

Sydney

Hearing date:

24 May 2004

Judgment of:

Scarlett FM

REPRESENTATION

Solicitors for the Applicant:

In Person

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The Application is dismissed.
The applicant is to pay the respondent’s costs assessed at $3,000.00.
Payment of the above costs is stayed for a period of three (3) months and I allow a further eighteen (18) months to pay thereafter.
I require a transcript of my reasons.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1279 of 2003

SMEGNE A. BEKELE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The application before the court is an application by the applicant, Ms Bekele, to sponsor her brother and his wife and child to come and live in Australia. The brother, who is the visa applicant, is applying for a visa called an other family class BO visa. It is a particular type of visa, referred to as a sub-class 115 remaining relative visa.
The applicant, who lives here, is an Australian citizen. She has lived in Australia since 1996. She has two children, aged 4 and 2. She is separated from her husband and it appears that her husband has left Australia and the applicant, therefore, has the task of looking after the two children by herself as a separated single mother. The elder of the two children, both of whom are daughters, is developmentally delayed and is autistic. The applicant has presented a letter to the court from Dr Karima Atire-Soliman who is a medical practitioner with more than

20 years experience in treating psychiatric patients, both in the public sector and private patients.
The applicant was referred to Dr Atire-Soliman by the applicant's general practitioner, and she is under the care of the applicant for severe depression. She is currently taking medication and I am satisfied that she is taking medication of an anti-depressant nature and that that has been prescribed for her by her doctor.
The applicant's parents have both died. What she wants to do is to bring her brother and sister-in-law, and their child, to Australia so that they can provide her with some support in bringing up her own children, and provide her with some support in dealing with the difficulties that she faces.
It is hard not to feel sympathy for the applicant in the desperate plight in which she finds herself. Indeed, Ms Goodman, the solicitor who appeared for the respondent Minister, expressed similar views and pointed out that regrettably the application does not come within the criteria set out by the law to permit the applicant to sponsor her brother to come to live with her in Australia.
The applicant had made the application, which was declined by the delegate Minister. An application was made for a review of that decision by the Migration Review Tribunal. The Migration Review Tribunal handed down its decision on 25 June 2003, affirming a decision not to grant the other family migrant class BO visa.
The applicant, in her application, has provided some handwritten reasons which set out her situation. They go very much towards her personal situation describing how her brother is the last remaining relative, and she has been waiting since 25 June 2003, to have this case heard. She indicated she gave the Tribunal all the evidence including the fact that her parents are dead. She is mindful of the fact that her brother's wife's parents are still alive, and points out that they are separated from each other, and they live a distance from her brother, and they are not able to provide any assistance at all. They cannot provide any financial help.
She sends her brother money from the little money that she can obtain in Australia. She points out that life in Ethiopia is not easy and that the country has been ravaged by drought and famine. She expresses the view that her brother and herself can help each other. Her brother can comfort her and help her everywhere in her life.
The criteria for being classified as a remaining relative under the law are set out in regulation 1.1(5) of the Migration Regulation 1994. Sub-regulation (1) says, and I quote:
An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen if the applicant satisfies the Minister that:
(a)The other person is a parent, brother, sister, step-parent, step-brother or step-sister of the applicant.
(b)The other person is usually resident in Australia.
(c)If the applicant or the applicant spouse, if any, has an overseas near relative:
1. the applicant and the applicant spouse, if any, usually reside in a country not being Australia that is different to the country in which that relative resides: and
2. neither the applicant nor the applicant spouse, if any, have had contact with that relative within a reasonable period before making the application.
(d)The applicant and the applicant spouse, if any, together have not more than three overseas near relatives.
(e)If the applicant is a child, who has not turned 18, and has been adopted by an Australian citizen at the time of making the application, the adoptive parent has been residing overseas for a period of, at least, 12 months.
“Overseas near relative” is defined in sub-regulation (2). It means a person who is a parent, brother, sister, step-parent, step-brother or step-sister of the applicant or of the applicant's spouse, if any. Those then are the criteria.
The situation here is that the applicant, Ms Bekele, is definitely an Australian citizen. The Migration Review Tribunal found that she is, at least, the step-sister of her brother, although the evidence would appear that they are, in fact, brother and sister. It is also clear that the applicant's brother and brother's wife usually reside in Ethiopia, which is obviously outside Australia.
The difficulty that arises is that set out in regulation 1.1(5)(c)(1). The brother, and the brother's wife, do have people who are classified as near relatives. They are the brother's mother and father. The Migration Review Tribunal found that the mother and father were still alive, but that they reside in Ethiopia. The requirement is that the overseas near relatives must reside in a country not being Australia, that is difficult to the country in which that relative resides. That is set out in regulation 1.1(5)(1)(c)(i).
Unfortunately, in this case, the brother's wife's parents reside in Ethiopia, even though they are separated from each other, and the brother's wife's father is a sick man. Again, neither of them is in a financial position to provide any assistance either to the brother or their own daughter, let alone for the applicant out here.
The primary criteria that must be satisfied are that the person who is applying for the visa, in this case, the brother must be a remaining relative, an Australian relative of the applicant, the applicant has to have turned 18, and is a settled Australian citizen. Certainly, the applicant, Ms Bekele, here has turned 18, she is 36 years of age; she is certainly a settled Australian citizen; and her brother is quite clearly a person who comes within the criteria.
The fact, however, that his relatives, the near relatives, are his parents-in-law creates the difficulty and indeed an insurmountable difficulty in that they both reside in Ethiopia.
The applicant has produced no evidence to show that the review by the Migration Review Tribunal was conducted otherwise than properly. She was invited to the hearing. She attended, and indeed, an interpreter was provided for her. Her personal situation is most unfortunate and it would be highly desirable for her if she had other family members nearby in Australia who would provide her with physical and emotional support, and obviously her brother would meet that category. Indeed, it could well be beneficial for her brother and his family if they did reside in Australia so they could be near the applicant.
Unfortunately, the Federal Magistrates Court has no power on a review application to review the facts although, as I said, there appears to be no reviewable error, but only to decide whether there has been an error of law that amounts to a jurisdictional error. There is no evidence of any denial of procedural fairness and, indeed, the applicant does not complain of any denial of procedural fairness. Her application appears to have been dealt with fairly along the line and certainly there is no criticism of the way in which the Migration Review Tribunal approached its task, only that it did not accede to the application.
The Migration Review Tribunal on the evidence before has not made any jurisdictional error, and whilst as I began, it is hard not to have some sympathy for the applicant, I am of the view that there is no reviewable error and there is no alternative but to dismiss the application.
This is a matter where the applicant has been unsuccessful in her application to sponsor her brother and his wife and child to obtain a visa to come to Australia. There is nothing to suggest that the application was other than a sincere application and, indeed, there are strong compassionate grounds for the applicant to seek to have her brother and his family living with her in Australia. Those compassionate grounds would relate to her brother, and his family, and their situation in Ethiopia, which is a country that has been ravaged by drought and famine, but they also relate to the applicant herself, who has two children to bring up as a single mother, and her marriage has come to an end as she and her husband have been separated for a number of years, and it appears that he has left Australia.
The applicant's parents are deceased and have been for a number of years and there are no other siblings. The applicant has failed because the applicant's brother does not come within the somewhat narrow guidelines of a remaining relative, in that his parents-in-law are still alive and reside in Ethiopia, the same country where the applicant's brother resides. It is for this reason, and for this reason alone, that her application has been unsuccessful.
The applicant's financial situation is that she is the sole supporter of her two young children, out of income that she receives from Centrelink. She also applies a significant amount of her income, $150 per month, to send over to Ethiopia, to assist her brother and his family. Her brother's wife has the obligation to support her mother, who is separated from her own husband who, in any event, is a sick man, on the evidence before me, and is not able to support the applicant's brother's mother-in-law.
There is an application for costs, and costs follow the event in this jurisdiction, and so I am obligated to make an order for costs. Ms Goodman, for the respondent, has applied herself to this unpalatable task and sought the sum of $3000 and, in my view, the amount that she seeks is perfectly justified by the Federal Magistrate's Court Rules.
I am satisfied, therefore, that I should make an order for costs in that sum. The applicant's financial situation is not of itself a ground for refusing a successful party an order for costs. At the same time, however, I am satisfied that the applicant is just not in a position to meet a sum of $3000 or anything like that amount, at this stage. She just does not have the funds, she does not have the income. It is unlikely that she will have those funds available to her in the near future.
It is for this reason that I propose to stay the payment of costs for a period of three months from the date of this order, and I propose to allow a lengthier period of time thereafter to pay those costs than I otherwise would. It may well be that the respondent's solicitors give consideration to whether or not the respondent should, in fact, seek to enforce this costs order at all because the effect of it would be quite draconian on the applicant who appears to me to be a person of good character, whose entire motives have been brought about in order to assist her family and, indeed, herself. That is, of course, a matter for the respondent Minister in the long run to decide, although I would go so far as to recommend that the respondent might give serious consideration about not seeking to enforce the order.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: 23 June 2004