Dirckze v Minister for Immigration
[2005] FMCA 1790
•21 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DIRCKZE v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1790 |
| MIGRATION – VISA – Migration Review Tribunal – application for review of decision of the Migration Review Tribunal to affirm a decision not to grant a Resolution of Status (Temporary) (Class UH) visa or a Resolution of Status (Residence) (Class BL) to the Applicant. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.417
Ji v Minister for Immigration and Multicultural Affairs [2001] FCA 904
NABE v Minister for Immigration [2004) FCAFC 263
SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 301
SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364
Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 389
| Applicant: | EDWARD BRIAN ANTHONY DIRCKZE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File No: | SYG 824 of 2004 |
| Delivered on: | 21 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 21 November 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Gerkens |
| Solicitors for the Applicant: | FCG Legal |
| Counsel for the Respondent: | Mr Jordan |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Leave to join the Migration Review Tribunal as Second Respondent.
That there be an order in the nature of certiorari to quash the decision of the Migration Review Tribunal made on 25 February 2004
That there be an order in the nature of mandamus requiring the Migration Review Tribunal to review according to law the decision made by a delegate of the Minister on 24 September 2001 to refuse a Resolution of Status (Temporary) (Class UH) visa and a Resolution of Status (Residence) (Class BL) visa to the Applicant.
That the First Respondent pay the Applicant’s costs fixed in the amount of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 824 of 2004
| EDWARD BRIAN ANTHONY DIRCKZE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Migration Review Tribunal made on 25th February 2004. A copy of that decision was forwarded to the Applicant's then solicitor under cover of a letter dated 25th February 2004.
The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs finding that the Applicant was not entitled to the grant of a Resolution of Status (Temporary) (Class UH) visa or a Resolution of Status (Residence) (Class BL) visa.
Background
The Applicant is a citizen of Sri Lanka. He arrived in Australia on 22nd January 1988 on a visitor visa. He was granted Temporary Entry Permits which allowed him to stay in Australia first for 6 months, and then until 22nd November 1988. He left Australia on 20th November 1988 and returned to Sri Lanka.
The Applicant applied for Concessional Family visas on 8th February 1990 and 31st January 1991, but these were both refused. He obtained a visitor visa on 10th July 1995 and entered Australia on 16th August 1995. On 15th November 1995 he obtained a Sri Lanka visa, subclass 435. He obtained further subclass 435 visas in 1996 and 1997.
On 30th April 1996 the Applicant applied for a protection visa, but this application was unsuccessful. His application to the Refugee Review Tribunal was also unsuccessful, as was a request to the Minister to exercise his discretion under s.417 of the Migration Act 1958.
The Applicant made a combined application for a Resolution of Status (Temporary) (Class UH) visa and a Resolution of Status (Residence) (Class BL) visa on 30th March 1998. A delegate of the Minister refused that application on 24th September 2001.
On 27th September 2001 the Applicant sought a review of that decision from the Migration Review Tribunal. The Applicant attended a hearing of the Tribunal on 29th January 2004 and gave oral evidence.
He told the Tribunal that he returned to Sri Lanka in November 1988 to look after his mother who was ill and depressed. He stayed with his mother and looked after her until she moved to Australia in 1995. He said that he kept in touch with his two sisters after they moved to Australia by letters and telephone. He also provided certain documentary evidence in the form of statutory declarations and letters.
Refugee Review Tribunal’s Decision
The decision of the Tribunal was to affirm the decision under review which was a finding that the Applicant was not entitled to the grant of either a Resolution of Status (Temporary)(Class UH) visa or a Resolution of Status (Residence) (Class BL) visa.
The criteria for obtaining such a visa are set out in clause 850.214 in Schedule 2 to the Migration Regulations 1994. That clause requires the Tribunal to be satisfied in relation to the following criteria:
(1) The applicant was in Australia for a period that is or for periods that total not less than 90% of the period that began on the date when the applicant entered Australia, as mentioned in clause 850.212, and ended on the date of the making of the application;
(2) For the purpose of sub-clause (1), when the applicant was not in Australia for 90% of the period, the Minister may include periods when the applicant was outside Australia if:
(a) the applicant has maintained close business, cultural or personal ties in Australia and
(b) the Minister is satisfied that compelling or strongly compassionate circumstances exist that explain why the applicant was outside Australia during those periods.
There is no issue for the purpose of the matter before me that the Applicant did to meet the criterion of having spent not less than 90 per cent of the relevant period of time in Australia. Indeed he conceded that he had been in Australia for only 34 per cent of that period and therefore did not meet the requirement in sub-clause 850.214(1).
Consequently, as counsel for the Respondent pointed out, the Applicant could not succeed before the Tribunal unless he satisfied each of the requirements with the exception in subclause 850.214(2). The Tribunal was not satisfied that the requirements for the exception in that subclause had been established. At page 119 of the Court Book at paragraph 25 the Tribunal said:
There is no evidence or suggestion that the visa applicant has business or cultural ties in Australia and accordingly he must satisfy the requirement of personal ties. The evidence from the visa applicant is that he corresponded once or twice a month and he used the telephone sometimes. The Tribunal is not satisfied that this meets the requirement of close personal ties.
The Tribunal went on to say in paragraph 25 that the applicant also had to satisfy the other requirement by saying this:
The visa applicant must also satisfy the requirement that compelling or strongly compassionate circumstances exist to explain why the visa applicant remained outside Australia for such a long period of time. The visa applicant has given a number of explanations, including his mother's health, for his absence. But the Tribunal is not satisfied that those explanations constituted compelling or strongly compassionate circumstances. The visa applicant had two brothers and a sister residing with his mother or close by who were able to provide the assistance which the visa applicant provided to his mother.
It was for those reasons that the Tribunal affirmed the decision under review.
It is of some relevance that the Applicant now has two sisters residing in Australia and his mother has resided in Australia since 1995. The Applicant of course has been in Australia since he entered on a visa in 1995 and seeks to remain.
In a further Amended Application filed on 11th October 2005 the Applicant claims that the decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction. There are three particulars which for convenience I will follow the lead of counsel for the Respondent, Mr Jordan, and refer to them as grounds 1, 2 and 3.
(1) The Second Respondent, i.e. the Tribunal, failed to take into account a relevant consideration in that it failed to consider and determine the claim made by the Applicant that he maintained close cultural ties with Australia during his absence.
(2) In determining whether there were compelling or strongly compassionate circumstances explaining why the Applicant was outside Australia the Second Respondent failed to take into account a relevant consideration in that it failed to consider and determine the claim made by the Applicant that as the head of the family following his father's death he was personally obliged in terms of Sri Lankan culture to answer his mother's request and to return to Sri Lanka to ensure the safety of his mother in relation to the JVP insurrection.
(3) The Second Respondent failed to take into account a relevant consideration in that it failed to consider and rule on claims made by the relatives of the Applicant in Australia concerning the degree of contact between them and the Applicant whilst he was in Sri Lanka.
Mr Gerkens conceded that the Applicant needed to succeed on ground 2 and either of grounds 1 and 3 in order for his application to be successful. This point was also made by Mr Jordan for the Respondent.
Turning to ground 1, which is failing to take into account a relevant consideration, the submission is that the Tribunal failed to consider a clearly raised claim which was a claim not just that the Applicant has maintained personal ties in Australia over the relevant period, but that he had maintained cultural ties. The evidence for this, i.e. the evidence for that claim having been made, comes from pages 59 and 62 of the Court Book. First of all, on page 59 the Department of Immigration and Multicultural Affairs, as it was in those days, wrote to the Applicant on 26th November 1999 and drew his attention to the requirement set out in subclause 850.214 of the Migration Regulations.
In particular, his attention was drawn to paragraph 2 and the letter went on to say:
Please provide written details of any "close business, cultural or personal ties" which you maintained in Australia between 20 November 1988 and 16 August 1995 and of any "compelling or strongly compassionate circumstances" which may exist to explain why you were outside Australia during this period.
The Applicant's then solicitors applied and made a number of statements on the Applicant's behalf. On page 62 in the final paragraph they said:
That in response we would submit that there were compelling or strongly compassionate circumstances for the absence of the applicant from Australia and that whilst he was absent from Australia he maintained close cultural and personal ties with Australia.
Similarly, at page 96 of the Court Book the Applicant's then solicitors wrote to the Migration Review Tribunal in a letter beginning on page 95. In the final paragraph on page 96 the solicitors say:
The review applicant has a commendable respectable position in his Sri Lank community. His cultural and social activities among his community should be also considered as a ground for the resolution of his status.
The cultural situation was also referred to, albeit obliquely, in other communications. The position of the eldest son in Sri Lankan cultural on evidence before me occupies a specific place and there are certain responsibilities placed on the eldest son. The Applicant's mother in her statutory declaration at page 98 of the Court Book referred to asking her son to return to Sri Lanka in November 1988 mainly due to her depression and ill health and goes on to say:
Edward is my eldest son. When he left for Australia in January 1988 he was in constant touch with me by letters and by telephone.
Similarly, the Applicant's sister Deanna Anne Francis in a statutory declaration made on 21st January 2004 in the third paragraph says:
My brother returned back to Sri Lanka in November 1988 to be with his mum on the advice of our family doctor and other family members since my brother was the eldest son in the family.
The Applicant had also tendered a letter from Dr (Mrs.) D.D. Weerasekera, a medical practitioner from Sri Lanka, addressed to the Department of Immigration and Multicultural Affairs saying:
This letter is to certify that Mr Edward B.A. Dirckze, who is the eldest son of Mrs Minnett H. Dirckze, was requested by myself to return to Sri Lanka in November 1988. She was my patient and was very sick due to the unrest going on in Sri Lanka.
The doctor goes on to mention certain symptoms which perhaps are not relevant to these proceedings.
The material from the mother, the sister and the doctor all refer to the Applicant's situation as eldest son. Mr Gerkens for the Applicant submits that this evidence goes to show that there was a clear claim of cultural pressure on the Applicant as an eldest son.
For the Respondent, Mr Jordan submits that that evidence is not sufficient. All that it is an assertion and refers the Court to a decision of Merkel J in Ji v Minister for Immigration and Multicultural Affairs [2001] FCA 904 which relates to an application under this very subclause and also to NABE v Minister for Immigration [2004] FCAFC 263, also reported in (2004) 144 FCR 1. In Ji's case the applicant had also sought a Resolution of Status (Temporary) (Class UH) visa, sub-clause 850. Again it was a situation that over the relevant period the Applicant had been absent from Australia for some 1156 days between 1993 and 1996. He in fact on the brief facts available from the case had also returned to China to assist his mother because his mother was in fact looking after the applicant's children.
Merkel J pointed out that the first issue was whether the applicant had maintained close business, cultural or personal ties in Australia notwithstanding his absence from Australia. The second issue was whether the Tribunal was satisfied that compelling or strongly compassionate circumstances exist to explain why the applicant was outside Australia during the relevant period. His Honour went on to say at paragraph 4:
The Tribunal found against the applicant on both of these questions of fact.
At paragraph 5 his Honour said:
The issues before the Tribunal involved questions of fact and their evaluation.
Certainly, in my view, his Honour's decision is persuasive and that both of these matters quite clearly are questions of fact.
What the Applicant submits, however, is not a challenge to the factual finding, but the fact that the Applicant's claim of a cultural tie was just not considered. In reply to a submission by Mr Jordan that the Court would not be satisfied there was any claim of cultural ties made, Mr Gerkens submitted that whether there are ties or not is a question of fact, but it is not a question of fact whether a claim was raised. That is the issue, in my view, that distinguishes this first leg of the submission from the situation in Ji v MIMIA (supra). On Mr Gerkens' submission it may well be that the evidence to support a claim of cultural ties would not be sufficient to persuade the Tribunal that such a claim had been made out. But the Tribunal in this case did not consider that claim. Again the first sentence of paragraph 25 makes that quite clear:
There is no evidence or suggestion that the visa applicant has business or cultural ties in Australia and accordingly he must satisfy the requirement of personal ties.
Was there in fact a claim made that there were cultural ties? I look at the decision of NABE v Minister for Immigration (supra), to which Mr Jordan has referred the Court. Mr Jordan referred me to [55], in particular:
Where the Tribunal fails to make a finding on a ‘substantial clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 108 at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95]).
Mr Jordan submitted, and rightly so, with respect, that the paragraphs beginning at [52] through to [55] provided a very good summary of the law in this area. Indeed that is so. Paragraph [52] says:
The question that arises in the present case is whether and to what extent a factual error on the part of the Tribunal may evidence or constitute a failure to carry out its review function or otherwise amount to a failure of jurisdiction amendable to the writ of certiorari and/or mandamus or prohibition.
At paragraph [53] the Court goes on to say:
It is desirable, first, to restate the uncontroversial proposition that mere factual error by the Tribunal will not grant judicial review unless it relates to the jurisdictional fact or is a manifestation of some error of law substantive or procedural which constitutes jurisdictional error and thereby vitiates the purported decision.
In fairness, Mr Jordan referred the Court to [58], which he said, again quite correctly, is a paragraph often referred to this Court which begins:
The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it.
Further on in that paragraph the Court says:
It has been suggested that the unarticulated claim must be raised squarely on the material available to the Tribunal before it has a statutory duty to consider it. The use of the adverb "squarely" does not convey any precise standard, but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on a constructive or creative activity by the Tribunal.
The Court went on at [59] to refer to SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 301 and qualified that by saying:
That decision, however, turned upon particular circumstances. Its correctness is not in contention here. It does not establish a general rule that the Tribunal in undertaking a review can disregard a claim which arises clearly from the materials before it.
The Court went on to refer to the decision of the late Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 where his Honour referred to the observations by Kirby J in Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (supra). In paragraph [60] of NABE their Honours quote Selway J as noting the Full Court in Dranichnikov, saying:
The Tribunal must of course deal with the case raised by the material and evidence before it. An asylum claimant as being a refugee case does not have to pick the correct Convention label to describe his or her plight, but the Tribunal can only deal with the claims actually made.
Their Honours said in this case:
His Honour, in our view, correctly stated the position when he said at [18], "The question ultimately is whether the case put by the appellant before the Tribunal has sufficiently raised the relevant issue that the Tribunal should have dealt with it." This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated which do not clearly arise from materials before it.
Taking those matters into account, in my view, the Applicant has raised a claim of cultural ties. Whilst it may be that the claim does not go far beyond assertions and that the evidence may be seen as sparse, that is a question of fact. As Mr Gerkens put it, it is not a question of fact whether a claim has been raised. In my view, there was a claim raised and the Tribunal fell into jurisdictional error when it did not deal with that claim.
It has been conceded, however, that the Applicant must also succeed in respect of ground 2, which relates to compelling or strongly compassionate circumstances. Having established ground 1, it is not necessary for the Applicant to succeed on ground 3, and in my view, the Applicant has not succeeded on ground 3. The issue is whether he has succeeded on ground 2 relating to what is the exercise of a discretion in finding strongly compassionate circumstances.
As Merkel J pointed out in Ji's case, this requirement is again a question of fact. It is for the primary decision-maker, the Tribunal, to decide whether on the facts the decision-maker could be satisfied that compelling or strongly compassionate circumstances exist that would explain why the Applicant was outside Australia during those periods.
What Mr Gerkens for the Applicant submits is that whilst this is a discretionary question, when exercising a discretion there is an obligation on the person exercising that discretion to do so in the light of all of the circumstances surrounding the case. If the strong cultural reasons as to why the Applicant had to leave Australia to look after his mother were not taken into account, then the submission is that the discretion had not been exercised appropriately because all the circumstances surrounding the case had not been taken into account.
In my view, this question depends very much on ground 1. For the Respondent, Mr Jordan submits that the Applicant has not succeeded in this because it could not be said that the Tribunal had ignored that evidence. Page 118 of the Court Book points out that it was the Applicant's mother's wish that the Applicant should be the one who looked after her and again that the evidence of the cultural significance of the Applicant looking after the mother was one covered by sparse evidence.
In my view, the Applicant has established the strong significance of being the eldest son. The specific references by the mother, the sister and the doctor to the eldest son, to my mind, can carry the inference that they understood the cultural significance of duties placed on the eldest son and that as that was something within their knowledge and the responsibilities that went with it the need to explain it would not occur. It may well be that when considering that situation a Tribunal, primary decision-maker, would not be satisfied that the evidence was sufficient for that to be made out. But, in my view, that has not been taken into account.
The reference by the Tribunal at paragraph 25 on page 119 that:
The visa applicant had two brothers and a sister residing with his mother or close by who are able to provide the assistance which the visa applicant provided to his mother –
is to my mind an indication the cultural significance of the eldest son, the applicant in this case, providing that assistance had not been considered by the Tribunal. It was not just a case of the mother's wish that the eldest son, the Applicant, look after her; there was a cultural reason why he was required to do so. If the Tribunal did not consider that in exercising the discretion, then the discretion has not been properly exercised.
In my view, the Applicant succeeds in grounds 1 and 2 which is necessary for the Applicant to establish his case. I propose to make the following orders according to the schedule.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 2 December 2005
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