Dirckze v Minister for Immigration - [2004] FMCA 826

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DIRCKZE v MINISTER FOR IMMIGRATION

[2004] FMCA 826

MIGRATION – Review of Migration Review Tribunal decision affirming a delegate’s refusal of a Change of Circumstances (Residence) visa – disputed findings of fact – no reviewable error found.

Migration Act 1958 (Cth); ss. 486A, 474, 474(2), 484
Migration Regulations 1994; Part 806 of Sch. 2, reg. 1.03, 10.03
Migration Legislation Amendment (Judicial Review) Act 2001; Sch. 1

Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2
R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1
Hussein v Minister for Immigration & Multicultural Affairs [1999] FCA 1621
Fuduche v Minister for Immigration & Ethic Affairs (1993) 45 FCR 515
Teo v Minister for Immigration & Ethnic Affairs (1995) 57 FCR 194
Shan E. Huang v Minister for Immigration & Ethnic Affairs [1996] 1040 FCA 1 (29 November 1996)
Palaisasa Tuamoheloa v Minister for Immigration & Multicultural Affairs [1998] 1406 FCA (4 November 1998)
Minister for Immigration & Multicultural & Indigenous Affairs, Re; Ex parte Applicants S134/2002 [2003] HCA 1

Applicant:

GRAHAM JEREMY DIRCKZE

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 805 of 2003

Delivered on:

18 November 2004

Delivered at:

Melbourne

Hearing date:

2 June 2004

Judgment of:

Bennett FM

REPRESENTATION

Applicant appeared in person.

Counsel for the Respondent:

Ms S. Burchell

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

That the application be dismissed.
That the applicant pay the respondent’s costs of and incidental to the application.
That costs be fixed at $6,000 by agreement.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 805 of 2003

GRAHAM JEREMY DIRCKZE

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Graham Jeremy Dirckze (“the applicant”) seeks review of a decision of the Migration Review Tribunal (“the Tribunal”) handed down on

24 January 2002 (“the decision”), affirming the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) made on 8 March 2001. The delegate refused to grant a Change of Circumstances (Residence) (Class AG) visa, subclass 806 (Family).
The applicant had applied for the Change of Circumstances visa on

31 July 1998. It is the Tribunal’s 24 January 2002 decision to affirm the refusal, which is the subject of these review proceedings before this court.
The applicant’s application is governed by the provisions of the Migration Act 1958 (Cth) (“the Act”), and the Migration Regulations 1994 (“the Regulations”). In particular, reg.1.03 (the definition of “special need relative”), and Part 806 of Schedule 2 to the Regulations, are applicable to this application.
The applicant filed an application seeking writs of certiorari and prohibition in the High Court on 21 June 2002, outside of the 35-day time limit stipulated by s.486A of the Act. The applicability of that time limit is contingent upon whether or not the Tribunal’s decision is deemed to be a privative clause decision within the meaning of s.474 of the Act.
The jurisdiction of the Federal Court to hear an application for judicial review of the decision is established by s.484 of the Act. It was submitted by the respondent and I accept that the Tribunal’s decision in this matter is a privative clause decision within the terms of s.474(2) of the Act.
The applicant’s visa application was made on 31 July 1998 on the basis that the applicant was a special need relative of his niece and nephew, Venetia Arif born 18 August 1982 and Ramon Arif born 14 April 1984. In his application the applicant claimed that his niece and nephew require emotional assistance and that he is the only person who is close to them and who can provide ongoing emotional support.
At the hearing before me, the applicant recast his case somewhat. His contentions of fact and law filed on 9 July 2003 refer to his sister as his “sponsor”. His contentions set out the basis of his application as being that his sister is in a situation of long term need, in particular, ongoing emotional support of her son and daughter. At paragraph 11 of the applicant’s contentions of fact and law, the applicant characterises his sister’s predicament as “serious circumstances”.
I will deal with the facts asserted by the applicant before the Tribunal and me because the facts are the same. Belatedly the applicant has referred to the sponsor as being his sister rather than his niece and nephew.
The applicant’s sister separated from her husband in 1986, as a result of her husband deserting her. She was left with looking after two children of the marriage, namely a girl, Venetia and a boy Ramon who were then aged four and two respectively. She had no financial support from the father of the children. She left the child Venetia with her mother and the brother, the applicant, and then within a short period left the boy Ramon with the applicant and his mother and they have been the with applicant and his mother ever since then.
These two children became part of the applicant’s family and they were treated like a brother and sister of the applicant. That the applicant was responsible for bathing the children, clothing the children, playing with them, taking them to school, feeding the children, disciplining the children and generally being a male role model for the two children. The surnames of the two children were changed to Dirckze, which was the sponsor’s maiden name (and the name of the applicant).
It was submitted for the applicant to the Tribunal that these children formed a close nurturing relationship with the applicant such that when the sponsor decided to migrate to Australia in 1990 she left behind the two children in the care of her mother and the applicant. Subsequently for approximately five years the children’s primary care givers were the applicant’s mother and the applicant. It was submitted that as the two children got older, the applicant took a greater interest in their schooling and would attend a number of school functions and given they had no father, the applicant would fill that role.
In January 1995, the children departed Sri Lanka and came to Australia under the sponsorship of their mother. The principal accompanied the two children to Australia.
That the two children reside with the applicant and his mother and not their mother. The children’s mother has remarried and currently has a young child. The applicant and the children have maintained the close bond and relationship that they had in Sri Lanka and the applicant claims that he is responsible for meeting a number of their emotional needs. The applicant’s contention was that the children do not identify with their mother’s new husband and he is not their father figure. The young boy Ramon recently experienced trouble at school and it has been the principal who has been responsible for taking the boy into hand and disciplining him.
The applicant’s case is that given this extremely close relationship that exists between the parties, there was a great degree of depression, anxiety and stress when the applicant’s application for refugee status was rejected by the respondent’s department. Further, that the thought of having their uncle leave them and they be separated from him for the first time in their lives, was a cause of great concern to the two children and depression set in.
It was submitted by the applicant that, given the emotional assistance that the two children require, they have a constant need for assistance and it is essential this assistance could only be provided by a person who was very close to the two children and can provide them with a high level of ongoing emotional support.
The applicant’s case is that he is willing and able to provide substantial and continuing assistance to the two children and there is no doubt that this assistance could not reasonably be obtained from another source within Australia.
[11]. At the time of the initial application, the visa applicant submitted a report from a psychologist dated 23 July 1998 commenting on the mental state of the nominators who he met along with the visa applicant on 20 July 1998. He met separately with the visa applicant on 18 July 1998. The psychologist, Doug Wright, in his assessment report, indicated that the two nominators had grown up with their maternal grandmother and uncles including the nominator and that it is a credit to them that the children have a “well developed sense of self in keeping with their age and display appropriate maturity for their ages.” He indicated that the nephew of the visa applicant, then aged fourteen, presented as a bright and articulate youth whilst the niece of the visa applicant, then aged sixteen, presented as a happy girl who was somewhat reserved and shy. The mother of the nominators, who had earlier migrated to Australia and remarried, sponsored them to migrate to Australia in 1995. However, the two nominators live with the visa applicant and their grandmother although they maintain contact with their mother. It is stated in the assessment report that the nominators have a positive relationship with their mother but that they prefer not to live with her or their stepfather. The psychologist states that it is crucial that the nominators continue to have the visa applicant’s involvement in their lives (and their mother’s) during the time when they are going through adolescence.
The Tribunal noted that at the time of the psychologist’s report the applicant’s niece and nephew were aged 16 and 14 respectively and at the time of the Tribunal hearing they were aged 19 and 17 years respectively.
[14]. The Tribunal asked the visa applicant about what his nominators were now doing and why they were not giving evidence about their need for assistance from the visa applicant when he had nominated them as witnesses when responding to the Tribunal’s invitation to attend a hearing. The visa applicant said that his niece could not come as she had exams. He said she is studying Bio Science at Monash University. He was not sure if she was doing second or third year. He said that he sometimes drops her off at the university. The Tribunal queried the nature of the exam as to its knowledge there are few university exams scheduled in December in undergraduate courses and asked what time the exam had been scheduled for. The visa applicant said that this niece had been asleep when he left home to attend the Tribunal. He had asked her to come with him but she said that she could not as she had exams. The applicant’s nephew left school after Year 8 or 9 after being expelled. The visa applicant said that his nephew has been in some trouble such as fighting and that he needs to be here in Australia to guide him as they have a close connection with each other. After the bashing in October 2001, his nephew had needed 15 stitches and it was the visa applicant whom his nephew rang after the incident. The visa applicant said it could have turned out worse had a car not arrived in the car park where the bashing took place. His nephew is doing some casual work at a factory cutting cartons. The visa applicant’s brother in law, the brother of his sister Penny who has applied for permanent residence, works there and had arranged the job for his nephew. The visa applicant said that he had asked his nephew to come to the hearing but his nephew said that he was not feeling well and the visa applicant said that he had not been well since the assault although he was not under going medical treatment for injuries sustained.
The Tribunal accepted that the applicant’s nominators were permanent Australian residents.
The Tribunal did not accept that the nominators, or either of them, had a permanent or long term need for assistance because of death, disability, prolonged illness or other serious circumstance. The Tribunal noted, as follows:-
[23] The nominators are now aged 19 years 5 months and 17 years 9 months respectively, the former an adult and the latter, almost an adult. They would not be considered to be adolescents. Their uncle said that he had asked them to come to the Tribunal to give evidence as to their needs for assistance but both declined to come. There have been no professional assessments to show the nominators have a permanent or long term need for assistance because of death, disability or prolonged illness. The visa applicant stated that his nephew is now in even greater need for his support than in 1998 because he was the victim of an assault in October 2001. His nephew was released from Dandenong Hospital after receiving some stitches and whilst the visa applicant has stated that he has not been well since, no medical evidence was provided to indicate this.
[30] While it would appear that the definition of a ‘special need relative’ is applicable to a person whose principal need is “emotional support”, it is open to the Tribunal to make an objective assessment of the emotional support that an applicant proposes to provide; Narayan v Minister for Immigration & Multicultural Affairs [2001] FCA 789 and Succary v Minister for Immigration & Multicultural Affairs (1997) 48 ALD 616. In the current case, it is claimed by that the nominators that they have an emotional dependence on the visa applicant. It was claimed that the nominators would become depressed if the visa applicant returns to Sri Lanka and that the nephew nominator needed guidance from the visa applicant. Whilst the opinion of the psychologist in July 1998 was that the nominators would benefit from contact with the visa applicant and also their mother with whom they have limited contact during their adolescence, person of the ages of the nominators would no longer be considered adolescents. The Tribunal accepts that the family would prefer to be together and that the nominators would be saddened at their uncle’s return to Sri Lanka. However, the Tribunal is not satisfied that the situation in which an uncle provides companionship and some guidance to a young adult and another who is almost a young adult can be considered as ‘other serious circumstances’ as required in regulation 1.03 and as articulated in Hussein’s case.
The Tribunal did not accept that the nominators require substantial and continuing assistance. The Tribunal reasoned thus:-
[31] The procedures Advice Manual provides advice as to the meaning of ‘substantial and continuing assistance’. Companionship is not regarded, in the absence of other factors, as constituting a permanent or long-term need. Such a need is usually intended to cater for situations such as the death or serious illness of a spouse leaving a partner with ongoing and significant problems in both bringing up very young children and coping generally; or an incapacitating illness or disability creating a need for physical assistance in the home.
[32] The nominators have cited emotional support in respect of the nature of the care provided. However, it would appear that the relationship between the visa applicant and the nominators is companionship and that they individually hold each other in high esteem. The Tribunal is satisfied that the visa applicant is willing to provide assistance to the nominators but it is not satisfied that the nominators require substantial and continuing assistance.
The Tribunal was not satisfied that the assistance available from the applicant was not available from elsewhere in the community. I find that the Tribunal addressed the case put by the applicant.

The Law

At the time the visa application was lodged, Change in Circumstance (Residence) (Class AG) contained a number of subclasses. The only subclass in respect of which any claims have been advanced is subclass 806, and then only in respect to the ‘special need relative’ ground.
A criterion to be satisfied at time of application for the grant of a subclass 806 visa is clause 806.213. This clause provides in part, that the visa applicant is a ‘special need relative’ of another person who has nominated the visa applicant for the grant of the visa. Clause 803.221 provides that the visa applicant must continue to satisfy the criterion in clause 806.213 at time of decision.
The term ‘special need relative’ is defined in reg.10.03:
‘special need relative’ in relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or an eligible New Zealand citizen, means a relative who is 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:
(i)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
(ii)welfare, hospital, nursing or community services in Australia.
The Tribunal was required to consider whether the visa applicant was a ‘special need relative’ at the time of the visa application and whether the visa applicant remains a ‘special need relative’ at the time of decision.
It is submitted by the respondent that in order to succeed, the error or errors contended for by the applicant must be of such a kind as to attract relief under s.484 of the Act. I accept that proposition. The Court’s inquiry must focus upon deciding whether the Tribunal’s approach was such as to render its decision invalid; that is, whether an error has been committed, of a kind affecting the Tribunal’s exercise of its jurisdiction.
This inquiry further requires the Court to assess the decision

in terms of the scope of Part 8, and in particular s.474 of the Act. This application was lodged after the commencement of Schedule 1 to the Migration Legislation Amendment (Judicial Review) Act 2001, and is therefore subject to the amended Part 8 of the Act, and accordingly the privative clause regime. It was conceded by the respondent, and

I agree, that the rule set down in R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598, 616 per Dixon J, remains the authoritative standard governing the Court’s jurisdiction to review the Tribunal’s decision.
In Hickman, His Honour articulated the three situations in which a privative clause will not protect the exercise of a decision-making power by a Tribunal. They are:
a)where the decision-maker did not make a bona fide attempt to exercise his power;
b)where the decision does not relate to the subject matter of the legislation; or
c)where the decision is not reasonably capable of reference to the power conferred by Parliament upon the decision-maker.
These grounds have been frequently re-stated by the High Court. The High Court most recently re-stated the applicability of the Hickman principles to s.474 of the Act, in Plaintiff S157 v Commonwealth of Australia [2003] HCA 2. In their joint judgment, Gummow, Kirby and Hayne JJ held (at [64]) that:
“…it is inaccurate to describe the outcome in a situation where the (Hickman) provisos are satisfied as an “expansion” or “extension” of the powers of the decision makers in question.”
I accept that it follows that the original decision-maker will have exceeded his or her jurisdiction if any of the three Hickman grounds have been transgressed. As their Honours put it in Plaintiff S157:
“…the position is that the “protection” which the privative clause “purports to afford” will be inapplicable unless those provisos have been satisfied.”

Equally, it was held in PlaintiffS157 that s.474 validly precludes the grant of certiorari for non-jurisdictional error of law. The High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 held that s.474 purports to confer the protection of privative clause status upon a decision made “under this Act.” As was pointed out by the High Court in Plaintiff S157 (at paras 75-76), this expression:
“must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction, nor an excess of the jurisdiction conferred by the Act…an administrative decision which involves jurisdictional error is regarded in law as no decision at all.”
I accept the respondent’s submission that, where there has been no jurisdictional error such as would take the decision outside of the parameters set by the words “under this Act”, then the decision remains a “privative clause decision” as defined in s.474(2), and retains the protection of the privative clause to the extent permitted by Hickman.
The respondent first submitted that the applicant’s application for writs of prohibition and certiorari is time-barred by the operation of s.486A of the Act, and should not be allowed to proceed.
The respondent also submitted that the applicant’s contentions may be summarised as alleging only the “other serious circumstances” criterion in reg.1.03. No suggestion was advanced amongst the applicant’s application or contentions to the effect that the other criteria, death, disability or prolonged illness, have any relevance.
I accept the submission of the respondent that, in order to be reviewable, each of the purported errors alleged by the applicant would have to amount to, or to have led the Tribunal into, jurisdictional error of a type which would obviate the protection extended to the Tribunal’s functions by the operation of s.474 of the Act. This would be necessary both to circumvent the protection afforded to the decision by the privative clause, and to overcome the time limit imposed upon applications for review by s.486A of the Act.
The respondent contended that the contentions filed by the applicant in this application are largely comprised of reiteration of earlier factual claims which do not disclose allegations of legal error on the part of the Tribunal. I agree.
The following matters are presented in the contentions as amounting to legal errors committed by the Tribunal:
a)That the two nominators have a strong need for applicant’s emotional assistance, and the applicant is the only person close enough to them to provide that support. The Tribunal is said to have failed to take this consideration into account. However, the Tribunal’s consideration of the emotional needs of the two nominators is demonstrated by its analysis of the psychological evidence of Mr Doug Wright. The Tribunal noted that the psychological material was three and a half years old at the time of hearing. Even having accepted Mr Wright’s evidence, the Tribunal found that their emotional dependence was related to their adolescence. They are now 20 and 19 years old respectively; “the former an adult and the latter almost an adult”.
b)That “the Department of Immigration and Ethnic Affairs delay in assessing the principal’s application has only exacerbated matters”. I note that the applicant’s application for review in the Tribunal was received on 4 April 2001. A hearing was held in the matter on 3 December 2001, and the decision was notified to the applicant on 24 January 2002. It was submitted by the respondent before me that the delay occasioned to the applicant was neither excessive nor demonstrably a source of prejudice to the applicant’s case for review. The only available expert evidence about the nominators’ emotional dependency had concluded that their dependency was related to their adolescence. As time elapsed, that dependency should therefore have lessened, not intensified. I agree that, in the circumstances of this case, the applicant has failed to make out that the delay constitutes a jurisdictional error on the part of the Tribunal.
c)That “irreparable harm and extreme prejudice” would be caused to the two nominators if the applicant were to leave Australia, and that the Tribunal did not take this matter into account. In this respect the respondent submitted that the rule in Hussein v Minister for Immigration and Multicultural Affairs [1999] FCA 1621 applies, and indeed was applied (in paragraphs 26-29 of the decision) by the Tribunal member: the mere presence of a person does not amount to “substantial and continuing assistance”. It is submitted that, if the problem apparently being averted by the applicant’s presence would simply re-emerge upon his departure, then he cannot be said to have been a special needs relative in the first place. It is submitted by the respondent that the evidence given by the applicant to the Tribunal, and also by the psychologist, was precisely to that effect. I agree with the contention of the respondent that, in this context, the interpretation of the reg.1.03 test urged upon me by the applicant appears to be based upon the “broad and generous construction” advocated in Fuduche v Minister for Immigration and Multicultural Affairs (1993) 45 FCR 515. That approach has since been discarded in favour of a more austere approach by the Full Federal Court in Teo v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 194, Huang v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, Full Court, 29 November 1996), and Tuamoheloa v Minister for Immigration and Multicultural Affairs [1998] 1406 FCA.
d)Finally, it was submitted by the respondent that the Tribunal’s detailed discussion of these principles at paragraphs 24-28 of the decision demonstrates that the emotional effect upon the nominators of the applicant’s potential departure had been considered both as an issue of fact and of law.
I accept all of the respondent’s submissions which I have recited.
It was also submitted by the respondent that further aspects of the Tribunal’s decision should be noted as addressing the applicant’s allegations of error:
a)The Tribunal made a factual finding that the applicant’s nephew could not be demonstrated by evidence to have any particular medical or psychological need for the applicant’s assistance in the aftermath of the assault which he had suffered in October 2001.
b)The Tribunal made a factual finding that the applicant’s niece was assisted by the applicant only to the extent of “driving her around and accompanying her to social activities”.
c)In respect of both nominators, the Tribunal found, upon analysis of the evidence, that they could obtain assistance of the kind being provided by the applicant, from other community sources and relatives. This conclusion disqualifies the applicant as a “special needs relative”, by reference to sub-reg.1.03 (b)(i) and (ii).
I accept these submissions. The Tribunal concluded that it was
“not satisfied that the situation in which an uncle provides companionship and some guidance to a young adult and to another who is almost a young adult can be considered as “other serious circumstances” as required in reg.1.03 and as articulated in Hussein’s case”.
I accept that this formulation by the Tribunal demonstrates that the Tribunal referred its consideration back to the applicable legal test in affirming the delegate’s decision and, thereby, exercised its jurisdiction within stipulated limits.
I accept the respondent’s submission that the recent High Court decisions Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2 and Minister for Immigration & Multicultural & Indigenous Affairs, Re; Ex parte Applicants S134/2002 [2003] HCA 1 actively discourage, intervention by the courts in pursuance of complaints about the fact-finding processes of migration tribunals or the merits of their decisions: see Callinan J in Plaintiff S157, especially at [111], [112], [118], [123], [159] and [160], and the majority judgment in Applicants S134 at [35], [36] and [43]. I accept the respondent’s contention that the criticism adverted to by the applicant in his contentions, as to the Tribunal’s method of interpreting and applying reg.1.03, is an invitation to exactly this sort of intervention.
I will not interfere with the fact finding function of the Tribunal.

Conclusion

I find that there has been no demonstrable failure to deal with a legislative ground, or individual criterion, or element thereof, such as could constitute a jurisdictional error in the Tribunal’s decision making function.
I find that none of the grounds of the application have been made out.
In the circumstances, I will dismiss the application.
I am satisfied that an order for costs should be made. In the circumstances of this matter, I will order that the applicant pay the respondent’s costs and disbursements of and incidental to the application and I will hear submissions as to quantum.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Bennett FM

Associate: R. Campbell

Date: 18 November 2004