Djebbar v Minister for Immigration & Anor
[2006] FMCA 1441
•14 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DJEBBAR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1441 |
| MIGRATION – MRT decision – ‘special need relative’ visa – failure to provide additional information when requested – no invitation to hearing – whether procedures correctly followed – no material jurisdictional error established. |
Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.359(2), 359A, 359A(1), 359A(4), 359B, 359C(1), 360(1), 360(2), 360(3), 363A, 379A, 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
Migration Regulations 1994 (Cth), regs.1.03, 4.17(4), 5.03, Sch.2 items 806, 806.211(d), 806.213, 806.221(a)
Joshi & Anor v Minister for Immigration & Multicultural Affairs (2001) 116 FCR 87
Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73
Minister for Immigration & Multicultural & Indigenous Affairs v Sun [2005] FCAFC 201, (2005) 146 FCR 498
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
Sun v Minister for Immigration [2004] FMCA 582
SZDPB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 110
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214
SZEVE v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 390
SZFBO v Minister for Immigration & Multicultural Affairs [2006] FCA 291
| Applicant: | ABDUL DJEBBAR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG1356 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 14 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 14 September 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms S Kaur-Bains |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The Tribunal is included as second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1356 of 2005
| ABDUL DJEBBAR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 22 May 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 27 August 2001. The Tribunal affirmed a decision of a delegate made on 14 February 2000 refusing to grant a special need relative visa to the applicant.
The Court’s jurisdiction under s.483A was repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).
The Court’s jurisdiction under s.483A is the same as the Federal Court’s jurisdiction under s.39B of the Judiciary Act 1903 (Cth). Both are subject to limitations under Part 8 of the Migration Act, which have the effect that I cannot set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for the visa which he sought nor for any other permission to stay in Australia.
The significant delay between the Tribunal’s decision and the commencement of this proceeding was briefly referred to in an affidavit of the applicant. For this, as with the inadequacies of the case which was presented to the Department of Immigration and the Tribunal, the applicant blames his migration agent for not informing him about correspondence sent to the agent’s address. He claims not to have received notice of the Tribunal’s decision until taken into immigration detention in late 2004.
This explanation was not explored in cross‑examination of the applicant, although the Minister gave notice of a contention that the Court should refuse relief for unwarranted delay even if jurisdictional error were found. This was because I decided that the hearing would be conducted more efficiently if I addressed the substance of the application, before considering the evidence and submissions going to discretion. As will appear, it has not been necessary for me to enter into that issue.
The applicant came to Australia from Indonesia at the request of his sister and her husband, who were respectively a permanent resident and a citizen of Australia. They needed his assistance as a result of the brother‑in‑law becoming a victim of an unprovoked attack while travelling by train to work. Medical evidence presented to the Department from social workers, rehabilitation experts and medical specialists, confirmed extensive head and brain injury as a result of an assault which occurred on 12 June 1998.
The evidence included a report from September 1998 that the brother‑in‑law was undergoing a rehabilitation program which “will continue for several months”. A social worker reported:
It would seem that Mr Djebbar has taken an active role in assisting the Ravasia family and is considered to be a major support network for his sister, Rahima, who is at present distressed and anxious. Mr Djebbar has also taken on responsibility for the care and welfare of Mrs Ravasia’s two small children (aged 2 and 3 years old) and assists with maintaining a stable home environment.
On 6 November 1998 a migration agent, Mr Bimal Bhattarai, trading as Naosams Migration Services, lodged with the Department an application for permanent residence seeking to invoke a class of visa which was then available, known as a special eligibility (residence) (class AO) visa, the requirements of which were covered by subclass 806.
A relevant criterion to be satisfied at the time of application was:
806.213The applicant is … a special need relative of another person who:
(a) is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and
(b) is usually resident in Australia; and
(c) has nominated the applicant for the grant of the visa.
This criterion also applied at the time of decision, since item 806.221(a) required that the applicant “continues to satisfy the criterion in clause 806.213”.
The definition of “special need relative” was at that time found in reg.1.03 of the Migration Regulations 1994 (Cth) (“the Regulations”):
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.
I note that by reason of the definitions of “relative” and “close relative”, the applicant needed to rely upon his sister rather than his brother‑in‑law as the person who was his “special need relative”, or as the forms referred, “nominator”. However, the definition of “special need relative” encompassed such a person having a need arising from the disability of a member of that person’s family unit.
The migrant agent enclosed with the visa application documents from Westmead Hospital, including those which I have referred to above, but subsequently forwarded no further evidence to the Department. Moreover, no response was given to requests by the Department sent to the applicant at his agent’s address, dated 7 December 1999 and 21 January 2000, seeking further details about his brother‑in‑law’s disability, treatment, prognosis and needs of assistance.
The delegate therefore refused the application on 14 February 2000 for the short reason:
Based on the information before me, I am not satisfied that the applicant’s sister and her family have a permanent or long‑term need for assistance because of Mr Ravasia’s illness/incapacity.
The applicant has not disputed that he received notice of that decision, which was sent to the agent’s address. On 13 March 2000, within the prescribed period, an application for review was lodged with the Migration Review Tribunal by a different agent. It is signed by the applicant.
The application was supported only by a brief statement:
The submission was not submitted by the previous agent. The letters from hospital are now submitted.
Mr. Ravasia (nominator) still has the significant impairment which affected his ability to carry out activities and take on responsibilities. He requires some assistance. His spouse also has some medical problem (the Dr’s certificate will be forwarded soon) and need assistance from Mr. Abdul Djebbar.
Basically with applicant’s existent in their home make life easier for both of Mr. Ravasia and his spouse.
The only supporting document given to the Tribunal was a report from a specialist in rehabilitation medicine dated 6 January 2000. This said:
As a result of his brain injury, Mr Ravasia has been left with significant cognitive impairment which has affected his ability to carry out activities and take on responsibilities which he was performing prior to his assault. Mr Ravasia has impairment of memory function and high level executive function resulting from his brain injury.
Mr Ravasia is able to carry out basic instrumental tasks of daily living such as taking care of his own personal care and hygiene as well as performing simple tasks such as preparing simple meals, buying items at a local food store, and carrying out laundry tasks.
However, tasks which require higher responsibilities such as managing financial affairs and parental responsibilities are skills which have been affected by his brain injury. He requires some assistance carrying out these tasks successfully.
Despite a lengthy rehabilitation programme, it is unlikely that the situation for Mr Ravasia will change significantly in the future. It is felt that his condition has stabilised since his injury and he will no longer benefit from any ongoing rehabilitation. Therefore he is currently not engaged in any active programme.
As a result of his injury Mr Ravasia has been unable to return to gainful employment and has been unable to return to driving a car. It is highly unlikely that he will be able to return to any of these activities in the future.
It is my understanding that Mr Ravasia’s brother‑in‑law Mr A. Djebbar, is providing Mr Ravasia and his family with assistance in managing all their affairs. He provides transport for the family as no‑one in the family is able to drive a car. This is required for carrying out activities such as shopping, attending appointments and visiting friends.
It is clear to me that Mr Djebbar is playing a significant role in ensuring that Mr Ravasia and his family continue to function successfully as a family unit in the community setting. Obviously the assistance that he is providing in assisting with managing financial affairs as well as assisting Mrs Ravasia with the care of the children and domestic chores is maintaining the family unit which would otherwise be put at risk. It is likely that his degree of assistance required by the Ravasia family will be a permanent situation.
The application for review contained provision for the applicant to specify an address for the service of documents, which invited the applicant to “please indicate the address you would like to have all Tribunal documents sent”. That part of the form was filled out with the name of the new agent and that agent’s post office box. The form was also completed to identify this agent as “a representative assisting you in respect of this application”.
The Tribunal sent a letter dated 19 June 2001 to the applicant addressed to him at his address for service. I am satisfied by evidence on affidavit that this letter was probably posted on the date of the letter, being 19 June 2001, and that a copy was probably sent on the same day addressed to the agent at the same postal address.
The letter is framed as a request for additional information pursuant to the provisions of s.359(2) of the Migration Act as it then stood, and I accept submissions by counsel for the Minister that it complied with the requirements of s.359B, including by providing the requisite prescribed period for response.
Under then s.379A the Tribunal was authorised to give an invitation under s.359(2) by sending the letter to “the last address for service provided by the applicant in connection with his or her application for review”, and where that procedure was followed, the document was “taken to be duly given to an applicant for review”.
No provision of the Act at that time deemed a date of receipt for such a letter, but reg.5.03 of the Regulations deemed receipt seven days after the date of the document, if it had been sent within three days after the date of the document. That condition was satisfied as I have found above. The validity of reg.5.03 in the form which then stood was upheld by Emmett J in Joshi & Anor v Minister for Immigration & Multicultural Affairs (2001) 116 FCR 87, in a judgment where his Honour distinguished opinions of the Full Court as to the invalidity of that regulation in an earlier form.
I am satisfied that by reason of the service provisions of the Act and Regulations as they then stood, the applicant was deemed to have received the request for additional information on 26 June 2001, and that pursuant to reg.4.17(4) he then had 28 days to respond. The Tribunal’s letter allowed him that time, and it is clear that the Tribunal did not decide the case until that time had elapsed.
The letter asked for the following information:
·Documentary evidence, such as birth certificates, to demonstrate the relationship between you and the nominator.
·A completed ‘Further statement by Visa Applicant’ together with the requested documents.
·A completed ‘Further statement by Nominator’ completed by Ms Rahima Banu.
I infer that it enclosed forms containing interrogatories, but they are not in evidence before me.
In its statement of reasons, the Tribunal referred to the procedural history of the matter and to its request for information. It said:
15.The visa applicant was invited by a letter dated 19 June 2001 to provide information that the Tribunal considered would be of assistance to it in reaching its decision. The visa applicant has failed to provide the information requested nor responded to the Tribunal’s letter.
16.Accordingly the Tribunal has proceeded to deal with this matter pursuant to the provisions of Section 359C and based its decision on the material already before the Tribunal.
It thus appears that the Tribunal has followed the provisions of ss.359C(1), 360(1), (2) and (3), and s.363A:
SECT 359C
Failure to give additional information or comments
(1)If a person:
(a)is invited under section 359 to give additional information; and
(b)does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the additional information.
SECT 360
Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2)Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c)subsection 359C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
SECT 363A
Tribunal does not have power to permit a person to do something he or she is not entitled to do
If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.
It was held in Minister for Immigration & Multicultural & Indigenous Affairs v Sun [2005] FCAFC 201, (2005) 146 FCR 498 at [50], accepting reasoning of Walters FM in Sun v Minister for Immigration [2004] FMCA 582, that “s 363A would appear to disempower the Tribunal from allowing [an applicant] to appear before the Tribunal”, where the preconditions in paragraphs (a) and (b) of s.359C(1) were satisfied.
On that authority, in my opinion the Tribunal had no discretion to invite the applicant to appear at a hearing. Although it had a discretion to make further inquiries by following other procedures, it also had power under s.359C(1) to “make a decision on the review without taking any further action to obtain the additional information”. The Tribunal has exercised that discretion. Although it has not explained its full reasoning, a decision to proceed to make a decision might appear readily justified in the absence of any apparent interest in the matter by the applicant and his agent.
In its statement of reasons the Tribunal did address the merits of the matter, as shown on the material before it. It identified three elements of the definition of “special need relative”, which it addressed separately.
In relation to the element of whether the applicant’s brother‑in‑law and sister had a “permanent or long‑term” need for assistance due to the disability of the brother‑in‑law, the Tribunal identified the most recent evidence from the specialist’s report in January 2000, but concluded: “The Tribunal does not have before it current medical evidence to ascertain the present situation”.
In my opinion, although the medical evidence before the Tribunal suggested a degree of stability in the condition of the brother‑in‑law, it was open to the Tribunal to take the view that it needed up‑to‑date evidence of the condition of the brother‑in‑law, before it could decide this issue. The contrary is not contended in any of the documents presented by the applicant.
The second element of the definition which the Tribunal addressed was “whether the visa applicant is willing and able to provide substantial and continuing assistance to the nominator”. The Tribunal said:
The visa applicant arrived in Australia on 8 August 1998 on a medical treatment visa. It is claimed that the visa applicant provides assistance and support to his sister, which allows her to play a more active role in the nominator’s rehabilitation programme. It is claimed that the visa applicant has taken on care and responsibility for the nominator’s two small children (aged 2 and 3) and is a major emotional support network for his sister as well as providing financial, legal and English language assistance (D1, f. 5: 15).
The visa applicant applied for permission to work and on was granted a subclass 010 bridging visa. A letter was sent to the visa applicant on 7 December 1999 requesting details of the type and hours worked by visa applicant and nominator’s wife (D1, ff. 41‑42). There was no response and a further letter was sent on 21 January 2000 (D1, f. 44). The visa applicant has a spouse and three children, the eldest of whom is 9 years old, residing in Indonesia. The Tribunal considered his ability to provide substantial and continuing assistance to the nominator in view of his financial and emotional responsibilities to his family and finds that it is unlikely be able to provide the assistance that would be required. (D1, f; 24).
Counsel for the Minister accepts that some information used by the Tribunal when making an adverse finding on this element came from documents which the Tribunal had received from the Department, rather than information “that the applicant gave for the purpose of the [review] application” within s.359A(4)(b). I shall return to this issue further below.
The Tribunal also addressed a third element in the definition of “special need relative”: “whether the assistance cannot reasonably be obtained from another relative or welfare, hospital, nursing or community services”. It said:
The evidence is that the nominator has sought extensive hospital and nursing care (T1, ff. 2‑3). The nominator and his wife have also been receiving assistance from social workers. It is claimed the nominator and his wife do not have any other relatives in Australia (D1, f. 20:24). The Tribunal does not have before it more current information to ascertain the degree and kind of assistance required to ascertain whether the assistance can be reasonably obtained from another relative or welfare, hospital, nursing or community services.
I note that this finding also was based on the absence of sufficient and up‑to‑date relevant information. Here too, although there was evidence before the Tribunal pointing to the possibility that the applicant might satisfy this element, I consider it was open to the Tribunal to decide that it was unable to be satisfied on the material before it.
The Tribunal then, relying on its three separate adverse conclusions, made a finding: “The Tribunal finds that the visa applicant was not a ‘special need relative’ at the time of the visa application”. It said it was not necessary to consider whether he was such a person at the time of decision and concluded: “The visa cannot be granted unless cl.806.213 is satisfied”.
I have carefully considered whether I can identify jurisdictional error affecting the Tribunal’s decision, taking into account the present unrepresented state of the applicant. However, I have not been able to identify any such error.
The applicant’s original application filed while he was in detention contained only the one ground:
I have never received MRT’s decision nor I attend the hearing.
This concern was then more fully explored in an amended application which was filed on 1 August 2005 by his solicitor. The amended application identifies four grounds of jurisdictional error.
The first ground is:
i.[The Tribunal] misconstrued section 359C(1) of the Migration Act by regarding the applicant’s failure to provide the requested additional information by the period prescribed by section 359B(2) and Regulation 4.17 of the Migration Regulations as preventing it from conducting a hearing in any circumstances.
However, as I have indicated above, on current authorities binding upon me the Tribunal was prevented by s.363A from conducting a hearing, as a result of the failure of the applicant to respond to the request for additional information which had been duly served.
Grounds two and three are:
ii.[The Tribunal] misconstrued section 395C(1) of the Migration Act by regarding the applicant’s failure to provide the information requested under section 359 as entitling it to avoid the obligations imposed by section 359A of the Migration Act.
iii.[The Tribunal] failed to comply with section 359A of the Migration Act.
These grounds rely upon the failure by the Tribunal, which is conceded, to serve a notice under s.359A(1) inviting the applicant to comment upon information taken by the Tribunal from the Department files. As I have indicated above, it relied upon this when making the adverse finding that “it is unlikely [sic: that he would] be able to provide the assistance that would be required” so as to meet the requirement of “substantial and continuing” assistance.
However, although a failure to serve a notice would provide error affecting this part of the Tribunal’s reasoning, I accept the submission of counsel for the Minister that the Tribunal’s findings on the other two elements of the definition of “special need relative” provided “an independent basis” for the Tribunal’s decision, within [233] of Allsop J’s judgment in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 (see also SZFBO v Minister for Immigration & Multicultural Affairs [2006] FCA 291 at [24]‑[28], and SZEVE v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 390 at [15]‑[16]).
I therefore do not consider that the grounds of review relying upon s.359A(1) provide jurisdictional error vitiating the Tribunal’s ultimate decision. It is not necessary for me to examine whether the Tribunal itself misconstrued its obligations under s.359A, since it is accepted by counsel for the Minister that on the High Court’s view in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162, the Tribunal would have been under a duty to invite written comments.
Ground 4 contends:
iv.[The Tribunal] failed to take into account relevant considerations.
The particulars provided are:
The Tribunal had before it evidence from social workers, a rehabilitation registrar, a medical practitioner and a rehabilitation specialist corroborating the nature and extent of the disability or other serious circumstance under which the nominator laboured. That evidence referred to nominator’s significant cognitive impairment affecting his ability to carry out activities and impairment of memory function and high level executive function. This situation was found to be unlikely to change. The relevance of this independent and corroborative evidence is not diminished by the effluxion of time. In failing to make a finding as to the nominator’s permanent or long term need for assistance upon the basis of a lack of current medical evidence the Tribunal ignored relevant material.
However, on the reasons of the Tribunal I would not find that the Tribunal failed to address relevant considerations. It quoted and plainly considered the most recent evidence as to the situation of the applicant and his sister’s family, which was contained in the specialist’s report. I think it unlikely that it failed to consider the earlier information which had accompanied the visa application. As I have indicated above, I consider it was open to the Tribunal to consider that further and more recent evidence was needed, and that its decision can be explained on that basis. I would not draw an inference from the absence of more detailed examination of the earlier material that it was overlooked.
The applicant appeared today and was assisted by an interpreter, but understandably did not understand the legal issues which I have addressed above. His affidavit and submissions drew attention to the fact that he claimed never to have received notice of the requests for additional information given firstly to his first agent by the Department officers, and secondly to his second agent by the Tribunal.
I am prepared to accept that this may be true. However, he has not presented any evidence which suggests that the Tribunal was aware that he did not receive its request for information, or which otherwise calls into question its decision to proceed under s.359C(1) without taking further steps to obtain additional information. On current authorities, the Tribunal’s express powers to proceed summarily, such as was conferred by s.359C(1), exhausts the relevant requirements of procedural fairness (c.f. Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39], and SZDPB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 110 at [17]).
For the above reasons I have not been satisfied that the Tribunal’s decision was affected by jurisdictional error. It is therefore a privative clause decision within s.474(1) of the Migration Act, and I must dismiss the application.
I certify that the preceding fifty‑one (51) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 6 October 2006
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