Drayi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 192
•16 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Drayi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 192
File number(s): SYG 2278 of 2021 Judgment of: JUDGE VASTA Date of judgment: 16 January 2024 Catchwords: MIGRATION – review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed. Legislation: Migration Act 1958 (Cth) Cases cited: Huang v Minister for Immigration and Multi-Cultural and Indigenous Affairs [2007] FMCA 720 Division: Division 2 Family Law Number of paragraphs: 48 Date of last submission/s: 16 January 2024 Date of hearing: 16 January 2024 Place: Brisbane Counsel for the Applicant: Mr Godwin Counsel for the Respondents: Mr Barrington Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
SYG 2278 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FATME DRAYI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
16 JANUARY 2024
THE COURT ORDERS THAT:
1.The application filed on 9 December 2021 as amended on 5 December 2023 and 13 December 2023 be dismissed.
2.The Applicant pay the First Respondent’s cost of and incidental to the application fixed in the sum of $6,100.
IT IS NOTED THAT:
A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Ex tempore)JUDGE VASTA
On 2 September 2021, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision not to grant the Applicant, Fatme Drayi, a family (residents)(Class BU) visa.
On 9 December 2021, the registry accepted an application by the Applicant to have this Court review that decision. Whilst it may seem, on the face of it, that this application was out of time, once certain investigations were made as to when the Applicant lodged the matters with the Court, it was discovered that the late filing was not the true fault of the Applicant, as the registry did not accept the application within the 35-day time period.
For that reason, on 9 January 2024, by consent, I ordered that the time in which the Applicant had to file an application for review be extended.
This meant that the hearing today has solely focused on the merits of the review.
The background to the matter is that the applicant is, or was at the time of the AAT decision, a 76-year-old widow from Lebanon. Her husband had died in October 2015. She never remarried nor took on any other form of common law marriage. Her daughter, who is an Australian citizen, had sought to sponsor the Applicant to come out and live her remaining years with her, and her children, in Australia on an aged dependant visa. That application was made on 9 March 2017.
The subclass 838 aged dependant relative visa had a few prerequisites that needed to be satisfied.
Firstly, there were two aspects to the visa. There were criteria that needed to be satisfied at time of application. The important criteria here was that the Applicant was an aged dependant relative of an Australian relative. The other prerequisites were well and truly satisfied.
The next aspects were criteria that needed to be satisfied at time of decision. Those criteria seem to have been satisfied as well.
The question is whether the particular criteria of cl.838.21.221 were satisfied. This criterion is that the Applicant continues to satisfy the criteria in cl.838.212; that is, that she is an aged dependant relative.
An aged dependant relative is defined in reg 1.03. That regulation is that the aged dependant relative does not have a spouse or a de facto partner, has been dependent on the sponsor for a reasonable period, and remains so dependent, and is old enough to be granted an aged pension under the Social Security Act 1991 (Cth).
The question here is, whether the Applicant had been dependent upon the sponsor for a reasonable period and remains so dependent. This criterion is what needed to be satisfied at the time of application and then also at time of decision.
In this matter, the facts were that, from 1 December 2013 to 30 November 2016, the Applicant had received a deal of financial support to meet her basic needs of food, clothing and shelter.
There were about 15 bank transfers from the husband of the sponsor to the Applicant, or to the sponsor’s brother, who is also the son of the Applicant, for her expenses of food, clothing and shelter. Between December 2015 and March 2016, the Applicant lived with the sponsor in Dubai. For that three-to-four-month period, the sponsor covered all of the Applicant’s expenses and gave her extra cash.
From March 2016 to June 2016, the Applicant lived with another daughter in Qatar. The sponsor said that she gave the applicant $2,000 in US currency in cash during this period whilst the other sister provided accommodation and food.
Between June 2016 and the end of July 2016, the applicant lived with her son in Australia, who looked after her accommodation and food, with the Applicant still having some of the cash that had been given to her by the sponsor to look after other expenses.
The sponsor returned to Australia at the end of July 2016. Since late July 2016, the sponsor has covered the Applicant’s expenses, and she provides accommodation and food.
The evidence also disclosed that the Applicant had property in Lebanon and had resided in that property until the end of 2015 and has subsequently lived “rent free” at other family-owned properties. The Tribunal accepted that, since the sponsor arrived in Australia in late July 2016, the Applicant has been wholly or substantially reliant upon sponsor.
The questions for the Tribunal to consider, then, were whether this dependency had been for a “reasonable” period at the time of application, and then, whether the dependency is continuing and has continued for that reasonable period, at the time of the decision.
The Departmental policy had been that, in looking at what would constitute a “reasonable period”, a period of three years would be considered to be reasonable. However, the Departmental policy is not law, and it is not for the Tribunal, or any other decision maker, to slavishly follow that policy. As was said by Judge Cameron in Huang v Minister for Immigration and Multi-Cultural and Indigenous Affairs [2007] FMCA 720, what constitutes a “reasonable period” depends upon looking at all of the circumstances. At paragraph 44 of that judgment, His Honour said:
By contrast, “a reasonable period” need not be lengthy. In order to test whether the applicant and the nominator do have a real and enduring relationship of dependency, a lengthy period of dependency may not be a reasonable thing to require. For instance, were the applicant to have been widowed in the Philippines one year before the application in circumstances where the nominator was her only child and had been supporting her since the death of her husband, and where she was less and less capable of caring for herself, a one year period of dependence might meet the test of “a reasonable period.” Individual circumstances will affect what amounts to a reasonable period, ignoring for the moment, the three year period stated by Departmental policy to be a reasonable period.
The Tribunal, in working out what it considered to be a reasonable period, took into account what the Court had said in Huang (Supra) and then said this at paragraph 26:
In the specific circumstances of this case, and on the basis of the evidence before it, the tribunal has considered the evidence submitted in the period of up to three years prior to the lodgement of the application in March 2017. The tribunal has considered the period of up to three years prior to the lodgement of the application due to what it considers is the lack of satisfactory documentary evidence of the support provided to the applicant prior to the lodgement of the visa application.
The tribunal notes the claim by the applicant that she was dependent upon the sponsor to meet her basic needs for food, clothing and shelter well prior to the death of her husband in October 2015, despite the fact she owned her property and had previously been reliant on her husband and his business. The evidence before the tribunal of the support being provided to the applicant to meet her basic needs for food, clothing and shelter prior to her arrival in Australia is, in the tribunal’s opinion, both vague and sparse.
For the tribunal to gain, what it considers, an accurate insight into the support being provided to the applicant for “a reasonable period” prior to the lodgement of the application the tribunal has considered a “reasonable period” is up to three years prior to the application. The tribunal considers such an approach is consistent with existing judicial authority and represents a period of time in the circumstances of not more substantial than a “reasonable period”.
At paragraph 30 the Tribunal said this:
With respect to dependence, the applicant stated at the hearing she now lives with the sponsor who is fully responsible for her financial needs. The applicant claims that, since the sponsor arrived in Australia in late July 2016, the sponsor has provided everything for her and covers all her needs, including her basic needs for food, clothing and shelter. The tribunal accepts that, since the sponsor arrived in Australia in late July 2016, the applicant has been wholly or substantially reliant upon her daughter, the sponsor. However, the applicant was residing in Australia with the sponsor for about eight months prior to lodging her visa application in March 2017. The tribunal is not satisfied that this period of eight months itself constitutes a reasonable period.
The Tribunal went on to speak of the circumstances of the Applicant prior to her coming to Australia, including the fact that she did have other children and, to use my words, leaned upon those children, as well as the fact that she did have her own property which could also have netted her an income. The Tribunal spoke of its interpretation of the evidence of money transfers and what it could take from that. The Tribunal said that, at the hearing, they had asked the Applicant about support provided to her by her other four children and the Tribunal said that they found the responses of the Applicant to be vague and, in some ways, evasive. The Tribunal noted at paragraph 47:
At the hearing the sponsor stated that she and the applicant have a very special bond. The sponsor stated that she knows all of her mother’s needs. The sponsor claimed that her support commenced in mid-2013 after her father became unwell.
The Tribunal accepted that the sponsor provided some financial support to the Applicant and her father during this period, but the Tribunal did not consider that support indicative of the Applicant being wholly or substantially reliant on the sponsor for financial support to meet the basic needs of food, clothing and shelter for a substantial or reasonable period prior to the lodgement of the visa application.
The Tribunal, in effect, found that, in the three years prior to the lodging of the application, the Applicant was dependent upon her daughter for the eight months prior to the lodgement of the application; that is, from July 2016 to March 2017. This was an eight-month period which the Tribunal found was not a “reasonable period”, therefore the Applicant did not satisfy the “at time of application” criteria.
For that reason, the Tribunal affirmed the decision not to give the Applicant the visa.
By a further amended application, that was filed on 13 December 2023, the Applicant has argued the following two grounds of application.
1. The Tribunal failed to complete the review in accordance with the applicable law.
2. The Tribunal’s conclusion that up to 3 years of dependency before filing the visa application was legally unreasonable.
The particulars for both of these grounds were exactly the same. They read as follows:
In assessing what is a reasonable period of time to establish that the nominator and applicant do have a real and enduring relationship of dependency within the meaning of the definition of aged dependent relative in regulation 1.03 of the Regulations the applicable law required the tribunal to take into account the applicant’s particular circumstances. In this case the tribunal accepted that the applicant had been dependent upon the sponsor for four and a half years since lodging her visa application, but did not take this into account when assessing what period of time was reasonable for the applicant to have been dependent on the sponsor prior to the visa application being lodged.
The applicant submitted in her written submissions that, in the present case, the Tribunal accepted that the applicant had been dependent on the sponsor since filing the application in March 2017. The Tribunal made its decision in September 2021. This is a period of four and a half years. However, the Tribunal made no reference to this period in assessing the reasonable period of dependence required prior to the application being lodged. Given the purpose of clause 838.212, continued dependence for a long time after filing the visa application is highly probative of whether the applicant was dependent on the sponsor for a reasonable time at the time of application. In the absence of any reference to that period it should be inferred that it was not considered relevant, having regard to the requirements of section 368 of the Act.
This argument was further developed quite fluently by Mr Godwin when he appeared before me today. The gravamen really is that, if one looked at what has happened since the applicant began to live with the sponsor in July 2016, it is clear that the relationship is one of dependence. The Tribunal itself acknowledged that the applicant was dependent upon the sponsor.
All of the circumstances point, then, even though the period was eight months between the dependence coming into existence and the lodging of the visa application, to those eight months as being, therefore, a reasonable period. For that not to have been considered, therefore, is a jurisdictional error.
The issue I have had with this argument is twofold.
Firstly, it assumes that the Tribunal did not take that circumstance into account. The applicant says that the Tribunal could not have taken that into account because it did not mention it. This is incorrect. As I have recited at paragraph 30, the Tribunal acknowledged that the applicant has been dependent upon the sponsor since July 2016. The time of the decision of the Tribunal was September 2021. This is an acknowledgement by the Tribunal that the applicant has been dependent upon the sponsor for over five years.
The Tribunal perhaps mentioned it and then said in the next sentence:
However, this means that there was only eight months between the time of the dependency originating and the lodging of the application, and that the eight-month period was not a reasonable period.
Having mentioned this, it is obvious that the Tribunal did take it into account. The applicant’s argument is, realistically, that “if they had taken it into account, then there would have inevitably been a different conclusion”. The argument then proceeds in this way: that the fact that Tribunal concluded that the eight months was not a reasonable period, obviously means that they did not take it into account. That sort of reasoning is quite illogical. What the submission really amounts to is “The Tribunal did not find in my favour and therefore could not have taken into account this aspect.” It is clear that such an aspect was taken into account.
The second problem is that, for the conclusion to be unreasonable, there could not have been any other conclusion that could have been arrived at by the Tribunal.
It seems to me that the argument for the applicant is not truly that the decision of the Tribunal to look at a three-year period was wrong, it is that the conclusion at paragraph 30 (that is, the finding of non-satisfaction that the period of eight months was not a reasonable period) was not open.
It seems to me that such a conclusion was open to the Tribunal. That is not to say that another decision-maker may not have come to a different conclusion. I can envisage other decision-makers having a look at this evidence and coming to a conclusion that eight months would be a reasonable period. The fact is that this Tribunal did not come to that conclusion, or was not satisfied that that was so, and that was within its fact-finding function.
The argument of the applicant is that the period of over five years being broken up as to eight months between the commencement of the dependency and the lodgement of the application, and then the four and a half years from lodgement of the application to a decision should lead to each of those periods e influencing the other; that is, what the situation is at time of decision should be influencing the characterisation of what the situation is at time of application and vice versa.
However, it seems to me that such an exercise ends up melding the two periods such that there is no clear distinction then between what the situation is at time of application and what the situation is at time of decision. The legislature made it very clear that there were two distinct assessments to be performed: one at time of application and one at time of a decision.
This was also made clear in Huang at paragraph 37 when Judge Cameron explained that:
The clear purpose of the Regulations is to ensure that the nominator has a genuine responsibility to support the applicant and has been doing so for long enough prior to the application to demonstrate that the alleged relationship of dependence is real and enduring.
I accept the submission of the Minister that the purpose of the criterion in clause 838.212 is therefore not simply to show that the dependency is real and enduring in and of itself, but, rather, it is to show that it was real and enduring for long enough prior to the application.
I also accept that, if this were not so, then there would be no reason to look at what is the situation at time of application and then again at time of decision. It would simply be enough to ask a decision-maker to consider what is the situation at the time of decision only.
I understand that coming to this conclusion leads to an unfortunate result and consequence for the applicant.
Counsel for the applicant had described this as “an absurd decision”, given the relationship that was obviously in place at the time of decision, but these are decisions that must be made in accordance with the legislation as it is, and not as we would like it to be. The Court cannot torture the legislation so as to enable a result that is far more palatable than would be the case if the legislation were complied with, as it is obviously meant to be complied with.
What happens from here is for others to look at. All I must look at is as to whether or not the decision of the Tribunal has been infected by a jurisdictional error.
For the reasons I have given, I am of the view that the Tribunal did not fail to complete the review in accordance with the applicable law.
I am of the view also that the Tribunal’s conclusion that up to three years of dependency before filing the visa application was not legally unreasonable; that is, I am of the view that such a decision was open.
Having found that there is no jurisdictional error that infects the decision, the only conclusion I have is to dismiss the application with costs.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 16 January 2024
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