Dirckze v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1105

FEDERAL COURT OF AUSTRALIA

Dirckze v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1105

MIGRATION – appeal dismissed – no error disclosed.

Migration Act 1958 (Cth) s 417

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, (2005) 215 ALR 162, referred to

Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194, referred to

GRAHAM JEREMY DIRCKZE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and MIGRATION REVIEW TRIBUNAL

VID 1480 OF 2004

MARSHALL J
11 AUGUST 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1480 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES’ COURT OF AUSTRALIA

BETWEEN:

GRAHAM JEREMY DIRCKZE
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

11 AUGUST 2005

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The Migration Review Tribunal is added as a respondent to the appeal.

2.The appeal is dismissed.

3.The appellant pay the first respondent’s costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1480 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES’ COURT OF AUSTRALIA

BETWEEN:

GRAHAM JEREMY DIRCKZE
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	MARSHALL J
DATE:	11 AUGUST 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Federal Magistrate Bennett given on 18 November 2004. The Federal Magistrate dismissed the appellant’s application for the issue of constitutional writs in respect of a decision of the Migration Review Tribunal (“the MRT”) made on 24 January 2002. The MRT affirmed a decision of a delegate of a predecessor of the first respondent, made on 8 March 2001, not to grant the appellant a Change in Circumstance (Residence) (Class AG) visa, sub-class 806 (Family), (“the special need relative visa”). The MRT has been added as a respondent to the appeal in accordance with the observations of several members of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, (2005) 215 ALR 162.

   Background

2. The appellant is a citizen of Sri Lanka. He entered Australia on 30 January 1995 as the holder of a Close Family Visitor (Short Stay) visa, valid to 30 March 1995. On 29 March 1995 the appellant applied for a protection visa. An application to the Refugee Review Tribunal (“the RRT”) in respect of the refusal of a protection visa was dismissed on 17 May 1996. On 26 June 1996, the appellant applied for a subclass 435 (Sri Lankan) temporary visa, which was granted on 29 July 1996.

3. On 4 April 1997 the appellant requested the first respondent’s predecessor to exercise his discretion under s 417 of the Migration Act 1958 (Cth) (“the Act”) to substitute the decision of the RRT with a more favourable decision. This request was rejected on 6 March 1998.

4. In the meantime on 31 July 1997, and 9 December 1997, the appellant unsuccessfully applied for a subclass 435 (Sri Lankan) visa. On 17 December 1997, the appellant was granted a bridging Visa E.

5. On 31 July 1998, the appellant applied for the special need relative visa on the basis that he was a special need relative to his niece and his nephew, who are permanent Australian residents.

6. In his application form for the special need relative visa, the appellant referred to his sister as being his nominator on behalf of her children (his niece and nephew). The appellant claimed that his niece and nephew required ongoing emotional assistance and that he was the only close relative who was capable of providing such support. The MRT treated the appellant’s niece and nephew as his nominators for the purpose of his application for the special need relative visa.

   The MRT decision

7. The MRT noted that a criterion to be satisfied at the time of the application for the grant of a subclass 806 visa was cl 806.213 of Sch 2 to the Migration Regulations 1994 (“the Regulations”). It observed that the applicant for such a visa must qualify as a “special need relative” at the time of the application and at the time of the MRT’s decision. It set out the definition of “special need relative” as found in reg 1.03.

8. That definition provided, so far as is material, that “a special need relative” in relation to an Australian permanent resident usually resident in Australia, “means a relative who is willing and able to provide substantial and continuing assistance to the…resident if:

   (a)“the…resident has a permanent or long term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the…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…resident, being a relative who is an Australian citizen, an Australian permanent resident…; or

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

9. The MRT first found that the appellant had been nominated by his niece and his nephew, who are his relatives and who are permanent Australian residents for the purposes of reg 1.03.

10. The MRT next considered paragraph (a) of the definition of “special need relative”. It noted the claim of the nominators that they had an emotional dependence on the appellant. However, it was not satisfied that the provision of companionship and guidance to a young adult, and another who is almost a young adult, qualified as “other serious circumstances” within paragraph (a) of the definition.

11. The MRT then considered whether the appellant was a person who was willing and able to provide substantial and continuing assistance to his nominators. The MRT was satisfied that the appellant was willing to provide assistance to the nominators but was not satisfied that the nominators required substantial and continuing assistance.

12. Finally, the MRT considered paragraph (b) of the definition. It found that the paragraph did not apply to the nominators. The MRT found that the appellant did not meet the requirements of the Regulations to qualify as a “special need relative”.

    The judgment below

13. The learned Federal Magistrate considered that the MRT had not committed any jurisdictional error in its reasons for its decision. Her Honour viewed the appellant’s criticisms of the decision of the MRT, made before her, as an invitation to engage in a merits review. The criticisms were as follows:

    ·the MRT failed to take into account the nominators’ strong need for the appellant’s emotional assistance; and

    ·the MRT did not take into account that irreparable harm and extreme prejudice would be caused to the nominators if the appellant were to depart Australia.

14. Her Honour considered that the MRT had taken these matters into account. The first by reference to its discussion of the evidence of a psychologist concerning the emotional needs of the nominators. The second by reference to the same witness’ evidence and that of the appellant concerning the likely effect on the nominators if the appellant left Australia.

15. The learned Federal Magistrate also rejected a submission that the delay from the MRT’s receipt of the application until its decision had prejudiced the appellant. She observed, in that regard, that although the application was received in the MRT on 4 April 2001, a hearing occurred on 3 December 2001, not long before the notification of the decision to the appellant on 24 January 2002.

16. Her Honour further rejected a submission that the mere presence of a relative in Australia amounted to “substantial and continuing assistance”. That submission was rejected as being inconsistent with Full Court authority in this Court, including Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194.

    Issues raised on appeal

17. In written submissions prepared in support of his appeal, the appellant repeated the contentions, which he had put before the Federal Magistrate. The Court rejects those submissions for the reasons advanced by her Honour and summarised above. The appellant did not point to any error of law in her Honour’s reasoning. On the contrary, he sought to re-agitate issues of fact, which were determined adversely to him by the MRT.  He submitted that the primary judge erred in law by not interfering with findings of fact made by the MRT.  That contention misunderstands the role of a Court on judicial review of an administrative decision.  Such a review involves a consideration of whether legal error of a relevant kind occurred and is no occasion to revisit the merits of the decision under review.

18. The appellant, however, sought to raise one new issue, which was not addressed below. He contended that the MRT’s observation that the nominators had declined to come to give evidence before the MRT demonstrated bias. That submission is rejected. The MRT did no more than observe that the nominators had chosen not to attend to give evidence. There is nothing before the Court to indicate that that observation was not an accurate one.

19. The appeal will be dismissed, with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:             11 August 2005

The Appellant represented himself.
Counsel for the First Respondent:		Mr W Mosley
Solicitor for the First Respondent:		Australian Government Solicitor
Date of Hearing:		11 August 2005
Date of Judgment:		11 August 2005