Belir v Minister for Home Affairs and Anor

[2020] FCCA 1566

FEDERAL CIRCUIT COURT OF AUSTRALIA

BELIR v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 1566

Catchwords:
MIGRATION – Application for adjournment – where the applicant sought an adjournment in order to obtain legal representation – where the matter was set down for hearing almost a year ago – application dismissed.

MIGRATION – Application for judicial review of the decision of the Administrative Appeals Tribunal to refuse a Remaining Relative visa – whether the AAT erred in determining the applicant does not satisfy the “remaining relative” criteria – where not satisfied there has been any error or misunderstanding by the AAT – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth) reg.1.15(1), sch.2 cl.835.21

Applicant: KRIS PAULINE BELIR

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 95 of 2018

Judgment of: Judge Young

Hearing date: 4 June 2020

Date of Last Submission: 4 June 2020

Delivered at: Darwin

Delivered on: 4 June 2020

REPRESENTATION

The Applicant in person: Ms K. P. Belir

Counsel for the first Respondent: Ms N. Milutinovic

Solicitors for the first Respondent: Sparke Helmore

ORDERS

1. The application for adjournment is dismissed.

2. The application be dismissed.

3. The applicant pay the first respondent’s costs in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

No. ADG 95 of 2018

KRIS PAULINE BELIR

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Adjournment Application

1. This is an application for adjournment by the applicant of her application for a judicial review of a decision of the Administrative Appeals Tribunal (“AAT” or “the Tribunal”) made on 15 February 2018 refusing her a Remaining Relative visa.

2. The applicant filed her application for a judicial review on 15 March 2018.  She has not been legally represented at any point during the two years and almost three months since she filed her application.  Today she said she sought an adjournment in order to obtain legal representation. 

3. She said that she has been employed until relatively recently as a cleaner but because of the COVID-19 pandemic she has lost her employment and she said that she would need at least six months in order to save money to pay for lawyers.

4. I accept what the applicant says.  It was not contested and the truth of what she said is not in doubt.  However, I refuse the application for adjournment for the following reasons.  The matter had a mention before the Registrar on 20 April 2018 soon after being filed.  It was then listed for a directions hearing on 28 June 2019.  It is unclear when the matter was set down for hearing today.  Ordinarily I would have expected it to be set down for hearing at the directions hearing on 28 June 2019 but it is not apparent to me from the court file when it was in fact set down for hearing

5. The matter was, I am told by counsel for the Minister and the applicant agrees with this, set down for hearing on 28 June 2019 for 6 July 2020.  For reasons that are unclear to me the matter was taken from another Judge’s docket and placed in mine and at a somewhat earlier date, that is, today 4 June 2020.  So the application was made more than two years ago and the matter was set down for hearing almost a year ago.

6. Ms Belir has not explained to me why, if she was going to get legal advice, she could not have got legal advice or representation in that period.  She said that she has not been able to afford a lawyer over that period and I accept that but that does indicate to me, as she says, that she would need a considerable time, she said six months, in order to obtain enough money to pay a lawyer.

7. Given that this is a busy court, the matter was set down a long time ago, any adjournment in all probability would need to be a long one and because of pressure of other business, I consider that the explanation that Ms Belir offers for her adjournment, even though I accept the truth of what she says, is not satisfactory. 

8. The second point is that having read the materials I do not consider that there appears to be a strongly arguable case for the applicant.  I also take that factor into account in refusing the adjournment application.

Judicial Review Application

1. This is an application for judicial review of a decision of the AAT made on 15 February 2018. The decision under review was a decision in relation to an application by the applicant for a Remaining Relative visa. The criteria for a Remaining Relative visa is set out in the submissions of the Minister. Essentially under clause 835.21 of schedule 2 of the Migration Regulations an applicant for a Remaining Relative visa, that is a “remaining relative” of an Australian relative, must satisfy at the time of the decision criterion 835.212.  “Remaining relative” is defined in regulation 1.15(1) as follows:

   (1) 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-brother or step-sister of the applicant; and

   (b) the other person is usually resident in Australia; and

   (c) the applicant, and the applicant’s spouse or de facto partner (if any) have no near relatives other than near relatives who are:

   (i) usually resident in Australia; and

   (ii) Australian citizens, Australian permanent residents or eligible New Zealand citizens;

2. A “near relative” is defined in sub regulation (2) as follows:

   near relative, in relation to an applicant means a person who is:

   (a) a parent, brother, sister, step-brother or step-sister of the applicant or the applicant’s spouse or de facto partner (if any)  or

   (b) a child (including a step-child) of the applicant or of the applicant’s spouse or de facto partner (if any) being a child who:

   (i) has turned 18 and is not a dependent child of the applicant or of the applicant’s spouse or de facto partner (if any);  or

   (ii) has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or of the applicant’s spouse or de facto partner (if any).

3. The applicant is a citizen of the Philippines.  It appears from the materials that were before the Tribunal and appears at court book page 100 and thereafter that the applicant is 33 years old.  She has a son, Martin, who was also born in the Philippines and is a Philippine citizen, I assume, who is presently 10 years old.  Ms Belir is a single mother.  She no longer lives with the father of Martin.  They separated some years ago.  Ms Belir is the daughter of Mrs McKay.

4. Mrs McKay her mother and Mr McKay, that is the applicant’s step-father, migrated from the Philippines in 2008, so the applicant’s mother, step-father and siblings left the Philippines in 2008 and migrated to Australia.  As I understand it they are all Australian citizens. 

5. Ms Belir, because she was pregnant at that stage or expecting a child – she would have been only 22 years old at the time – decided to remain behind in the Philippines.  This is a decision that is easy to understand but one that she now says she regrets and I have no doubt that she does regret that decision.

6. In retrospect it is easy to see that the decision she made, which while entirely understandable, has somewhat worked to her disadvantage.  I have a deal of sympathy for Ms Belir, her position and that of her son, which appears to me to be easily understood. 

7. The difficulty for her is that her biological father, not her step-father, is apparently still alive and resident in the Philippines.  He deserted the applicant and her mother when the applicant was a child or at least a teenager.  The applicant told the Tribunal this, and Ms Belir repeated the same matters in submissions, and those matters were accepted by the Tribunal as truthful. 

8. Even though I am not a finder of fact, I have heard from Ms Belir and I have no doubt she is telling the truth and is entirely truthful about her position.  Nevertheless, the fact that she apparently has a biological father alive in the Philippines, who would fall into the definition of parent under “near relative” in the above clause, would appear on the face of it to mean  she does not satisfy the criterion in regulation 1.15(1).

9. So she does not satisfy the “remaining relative” criterion.  She satisfies the first two parts of the test in regulation 1.15(1), that is the other person, her mother, in Australia is a parent and the other person, her mother, is usually resident in Australia, but she does not satisfy (c) that the applicant have no near relatives other than those in Australia, because she has a parent, her biological father, apparently in the Philippines.

10. Ms Belir, in her application for judicial review, asserted that the error of the Tribunal was:

    The member of the AAT has not taken into account that the Applicant has attempted to locate her father’s whereabouts and that under the Privacy Law in the Philippines it is not a straightforward process to obtain a person’s death certificate.

11. I do not accept the factual assertion.  It is apparent from a reading of the Tribunal’s decision that it accepted Ms Belir’s claim that she had attempted to ascertain the whereabouts of her father but had been unable to do so. 

12. Ms Belir’s argument, as I understand it from reading the materials, was not that her father was dead but rather that her father was estranged from her, which the Tribunal accepted, and was in all probability living in another part of the country and did not wish to have any contact with Ms Belir or her mother.  Indeed, there was some suggestion in the Authority’s decision that the applicant’s biological father may have re-partnered and he may have had children.  But that is not necessary to pursue. 

13. I am not satisfied that the Tribunal has misunderstood what Ms Belir has said to it.  The Tribunal appears to have accepted everything she said as truthful, as I have done, to the extent that is relevant.  However, the Tribunal did not accept and as far as I can see was not asked to accept that Ms Belir’s biological father was in fact dead.  She did not assert that was the case and I would have thought if it was the case, it would be possible for a child to obtain a death certificate of a person in the Philippines, particularly a parent.  While I have looked at the correspondence between the applicant and the Philippine authorities there is no evidence of a direct attempt to obtain a death certificate for the applicant’s biological father, presumably because there is no evidence that he is in fact deceased.

14. I am not satisfied that there has been any error or misunderstanding by the AAT in the way that Ms Belir has put her case – I think it has been understood.  That being the case I am not satisfied there is any jurisdictional error in the decision and the application must be dismissed. 

15. I should say however, as I have already noted, that I think this is a matter where the Minister may wish to consider giving compassionate consideration to Ms Belir’s situation.  The applicant in many ways satisfies the spirit of the provision for a Remaining Relative visa.  Her only real contacts are in Australia.  Her mother, siblings and step-father are all Australian citizens.  It is not in question that she has had no relationship with her biological father for the past 15 years, that she has not seen him for the past 15 years and that he effectively deserted her and her mother when she was a teenager.  There is no evidence that she has any support in the Philippines, certainly no family support, and apart from her estranged biological father there is no evidence of any near relative.

16. I consider that the decision she made as a 22 year old not to accompany her family to Australia is easily understandable in all the circumstances.  It has proved disadvantageous to her and has resulted in a very real separation between her and immediate family, which is on humane grounds alone very regrettable.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Young.

Associate: 

Date: 12 June 2020