Berhardt v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 283

FEDERAL COURT OF AUSTRALIA

Berhardt v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 283

BERNADINE ROMAINE BERHARDT & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

No S 849 of 2003

FINN J
ADELAIDE
18 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 849 OF 2003

BETWEEN:	BERNADINE ROMAINE BERHARDT APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FINN J
DATE OF ORDER:	18 MARCH 2004
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application for leave to extend time in which to file and serve a notice of appeal be dismissed. 

2.        The applicant pay the respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 849 OF 2003

BETWEEN:	BERNADINE ROMAINE BERHARDT APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	FINN J
DATE:	18 MARCH 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application for an extension of time to file and serve a notice of appeal in relation to a judgment of a judge of this Court delivered on 21 November 2003.  The application was filed on 16 December 2003.  The principles to be applied on such an application (under O 52 r 15(2) of the Federal Court Rules) are well established.  “Special reasons” must be shown for leave to be granted.  Insofar as is presently relevant what those special reasons would require of the applicant is that she explain the delay and that she demonstrate that the case is one in which there is an arguable case. 

2. The respondent Minister opposes the application on the second of these grounds, i.e. that there is no arguable case demonstrated.  The draft Notice of Appeal accompanying the application is unyielding of anything that would demonstrate there is an arguable case.  The two grounds stated in that notice are: 

   “2.The Court erred in failing to hold that the respondent had not complied with the provisions of Section 424A(1) of the Migration Act.

   3.The Court erred in failing to hold that the respondent had not complied with the Section 430A(1) of the Migration Act.”

3. Given that the decision appealed from is one of the Migration Review Tribunal one can only assume that the relevant references were intended to be s 359A of the Migration Act 1958 (Cth) and s 368A of the Act. What is clear is that these unparticularised grounds do not raise issues argued at first instance before the primary judge and they have no apparent merit.

4. The application that was heard by the primary judge was for orders of mandamus, prohibition and certiorari in relation to a decision of the Tribunal.  Having considered the Tribunal’s decision, the primary judge concluded that no jurisdictional error had been identified.  The matter in issue was whether the applicant, a Sri Lankan citizen, should be granted permanent residency on the basis that she was a “special needs relative” of a settled Australian citizen.  A visa criterion to be satisfied by the applicant was that she be a relative of an Australian citizen usually resident in Australia and that she was:

   “… willing and able to provide substantial and continuing assistance to the citizen or resident if:

   (a)the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit;  and 

   (b)the assistance cannot reasonably be obtained from:

   (1)any other relative of the citizen or resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;  or 

   (2)welfare, hospital, nursing or community services in Australia.”

5. The Tribunal had concluded that the applicant had failed to meet the relevant criteria in three respects:  her brother did not have a long-term need for assistance by reason of a disability, prolonged illness or other serious circumstance;  that the assistance provided by the applicant to her brother did not constitute substantial and continuing assistance;  and that any assistance needed by the applicant’s brother could also be provided by other relatives.

6. That decision was challenged before his Honour on several grounds.  The first was that the Tribunal failed to give proper consideration to medical evidence.  The primary judge characterised this as “simply incorrect” which, with respect, it clearly was.  A further challenge on the ground of failure to take a relevant consideration into account was simply misconceived, as the trial judge indicated.  Insofar as the Tribunal’s findings in relation to the criteria were concerned his Honour noted that no objection was taken to two bases for the Tribunal’s decision:

   “… namely that the support provided by the applicant is not ‘substantial and continuing assistance’ and that the other relatives of the brother who are present in Australia could provide any necessary support.  The last of these bases is enough, by itself, to sustain the ultimate conclusion.  That, by itself, would require that the application be dismissed.”

7. His Honour’s conclusion in relation to the last of these is clearly correct.  When the matter came on for hearing before me today counsel for the applicant quite properly conceded that he could not advance a submission that there was an arguable case.  In light of his Honour’s conclusion this was an entirely proper and appropriate concession to make. 

8. For this reason I dismiss the application for leave to extend time in which to file and serve a notice of appeal and I order the applicant to pay the respondent’s costs of the application. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated:             18 March 2004

Counsel for the Applicant:	B Levet
Solicitor for the Applicant:	Bharati Solicitors
Counsel for the Respondent:	K Tredrea
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	18 March 2004
Date of Judgment:	18 March 2004