Durzi v Minister for Immigration
[2006] FMCA 240
•3 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DURZI v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 240 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a family residence visa – issue of number of overseas near relatives the applicant had – apparent error by the MRT in dealing with the issue of dependency – error not determinative – no jurisdictional error. |
| Migration Act 1958 (Cth), s.359A Migration Regulations 1994 |
| SZGKO vMinister for Immigration [2005] FMCA 1254 Minister for Immigration v Rajalingam (1999) 93 FCR 220 |
| Applicant: | LAWRENCE JOSEPH DURZI |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG1454 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 21 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 3 March 2006 |
REPRESENTATION
| Counsel for the Applicant: | Dr J Azzi |
| Solicitors for the Applicant: | Abrahams and Associates |
| Counsel for the Respondent: | Mr J D Smith |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant shall pay the first respondent’s costs and disbursements of and incidental to the proceedings, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1454 of 2004
| LAWRENCE JOSEPH DURZI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
MIGRATION REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (“the MRT”) made on 12 March 2004. The applicant was notified of the decision by letter of the same date (court book, page 163). The MRT affirmed a decision of a delegate of the Minister not to grant the applicant a sub class 835 remaining relative visa[1].
[1] The class of visa is more properly referred to as an Other Family (Residence) (Class BU) visa
The background to this matter is adequately set out in the Minister’s written submissions in paragraphs 3-8.
The applicant is a citizen of Jordan who arrived in Australia on a visitor visa on 3 October 1998. On 1 November 1999, the applicant lodged an application for an Other Family (Residence) (Class BU) visa on the basis that he met the criteria for the grant of that visa under subclass 835, namely that he was a remaining relative. The applicant was nominated for the grant of that visa by his brother, Christian Durzi, who is an Australian citizen and usually resident in Australia. At the time of the application the applicant had the following relatives who resided in the following countries: his mother - Lebanon; his brother, Carlos Durzi, - Lebanon; his sister, Yollanda Durzi, - Saudi Arabia and his two sons, Valentino and Oliver - Cyprus.
At the time of the application it was a criterion for the grant of the visa that the applicant be a remaining relative of a person who was a settled Australian citizen who was usually resident in Australia and who had nominated the applicant for the grant of the visa: Clause 835.212 in Schedule 2 of the Migration Regulations1994 (“the Migration Regulations”)[2]. The term “remaining relative” was defined in Regulation 1.15. The relevant definition of that term is set out in the MRT’s decision: court book, page 169-170:
[2] This provision was added to the Migration Regulations by Statutory Rule 259 of 1999 with effect from 1 November 1999.
1.15(1) An applicant for a visa is a “remaining relative” of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:
a)The other person is a parent, brother, sister, step-parent, step-brother or step-sister of the applicant; and
b)The other person is usually resident in Australia; and
c)If the applicant or the applicant’s spouse (if any) has an overseas near relative:
i) the applicant and the applicant’s spouse (if any) usually reside in a country, not being Australia, that is different to the country in which that relative resides; and
ii) neither the applicant nor the applicant’s spouse (if any) have had contact with that relative within a reasonable period before making the application; and
d)the applicant and the applicant’s spouse (if any) together have not more than 3 overseas near relatives; and
e)if the applicant is a child who:
i) has not turned 18; and
ii) has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (“the adoptive parent”) while overseas – at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months.
(2) In this regulation:
“overseas near relative”, in relation to an applicant, means a person who is:
a)a parent, brother, sister, step-parent, step-brother or step-sister of the applicant or of the applicant’s spouse (if any); or
b)a child (including a step-child) of the applicant or of the applicant’s spouse (if any), being a child who:
i) has turned 18 and is not a dependent child of the applicant or of the applicant’s spouse (if any); or
ii) has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or of the applicant’s spouse (if any) –
other than a relative of that kind who:
c)is an Australian citizen, and Australian permanent resident or an eligible New Zealand citizen; and
d)is usually resident in Australia.
3) For the purposes of paragraphs (1)(c) and (d), an overseas near relative is taken to reside in his or her last known country of residence unless the applicant satisfies the Minister that the relative resides in another country.
Critically, in order to be a remaining relative the applicant must not have more than 3 overseas near relatives. Overseas near relative is defined in Regulation 1.15(2) and includes a parent, brother and sister as well as any child who has not turned 18 and who is not wholly or substantially in the daily care and control of the applicant or the applicant’s spouse. Since the applicant was divorced from the mother of his children the question for the MRT was whether the two children living in Cyprus were wholly or substantially in the daily care and control of the applicant. Importantly, the Family Court at Wollongong had granted the divorce, notwithstanding that it was not satisfied that proper arrangements for the care, welfare and development of the children had been made[3]. The applicant presented no evidence of any parenting orders being made by a court exercising family law jurisdiction.
[3] court book, page 109
The delegate made a decision refusing to grant the visa on 7 March 2003. He found that the applicant’s sons were not wholly or substantially in the applicant’s daily care and control since the applicant had left Cyprus: court book, page 118.
On 17 April 2003 the applicant lodged an application with the MRT for review of the delegate’s decision. By letter dated 1 September 2003, the MRT wrote to the applicant giving him particulars of information which it considered might be the reason or part of the reason for its decision: court book, page 129. In that letter it noted that the information provided by the applicant indicated that he had four overseas near relatives being a brother, sister and two sons. It further indicated that both the sons were less than 18 years of age and that they were not wholly and substantially in the applicant’s daily care or control. It noted the importance of the information as being that it indicated that he might not satisfy the definition of “remaining relative” as he had more than three overseas near relatives who do not usually reside in Australia.
The applicant responded by his advisor to say that he had in fact been sending money to his children overseas and also that he had regular contact with them. The applicant also relied upon a statutory declaration made by his brother Christian to the effect that the applicant, while living at his home, had received many telephone calls from his former wife and children to discuss financial problems or any concerns about his sons: court book, page 155. The applicant and his brother, Christian, gave evidence at a hearing conducted by the MRT on 19 February 2004.
The MRT considered all of the applicant’s evidence in support of the claim that his sons were wholly and substantially in his daily care and control; however, it concluded that they were not, either at the time of the application or at the time of the decision being made: court book, page 173.2. On this basis, together with the fact that the applicant’s mother, a brother and sister were resident overseas, the MRT concluded that at the relevant times the review applicant has had five overseas near relatives and for that reason that neither Clause 835.212 or 835.221 in Schedule 2 were been met. For that reason the MRT was not satisfied the applicant met the criteria for the grant of the visa and so affirmed the decision under review.
The judicial review application and submissions
The applicant relied upon a further amended application filed in court by leave on 21 February 2006. I received that further amended application over the objections of Mr Smith, for the Minister. That application restates, among other grounds, the sole ground of review contained in an amended application filed on 6 August 2004. At the time he prepared his written submissions, Mr Smith was only aware of the original judicial review application filed on 6 April 2004 but anticipated the argument raised in the amended application. The amended application asserts that the MRT (and the delegate) applied the wrong test in determining whether the applicant’s children were wholly or substantially in his daily care and control and incorrectly determined that the children were “overseas near relatives” and not “dependent children” for the purposes of the Migration Act 1958 (Cth) and Migration Regulations.
Apart from adopting that ground, the further amended application raises the following additional grounds:
a)the MRT failed to conduct a review of the delegate’s decision according to substantial justice and the merits of the case and by failing to record its decision in accordance with the Migration Act;
b)the MRT failed to take relevant considerations into account;
c)the MRT defeated the applicant’s legitimate expectation arising out of the Procedures Advice Manual 3 (“PAM 3”) by affirming the decision of the delegate who had failed to interrogate the applicant in accordance with PAM 3;
d)the MRT breached s.359A of the Migration Act.
Dr Azzi, for the applicant, expanded upon these grounds in his oral submissions. Over the objections of Mr Smith, for the Minister, I also listened to a portion of the tape recording of the hearing conducted by the MRT, in which the applicant’s brother was questioned by the presiding member. That portion of the sound recording became an exhibit. The applicant’s brother is recorded as telling the presiding member that, although he had no recent knowledge, as far as he knew the applicant’s mother resided in Lebanon and the applicant had not had recent contact with either his mother or his sister.
In the course of oral argument I indicated to Dr Azzi that I saw no merit in the grounds contained in the further amended application, although I saw some merit in the ground in the amended application. In his oral submissions, Mr Smith stated that he agreed with my reasoning in seeing little merit in the grounds in the further amended application and sought to explain the determinative factors in the MRT decision so as to avoid a conclusion of jurisdictional error, based upon the ground in the amended application.
Reasoning
There is no merit in the grounds contained in the further amended application, with the exception of the first ground restated from the amended application, to which I shall return. In the second ground the applicant asserts that the MRT failed to review the delegate’s decision according to substantial justice and the merits of the case and failed to record its decision in accordance with the Migration Act in relation to the issue of whether the applicant’s mother, his brother Carlos and sister Yollanda were “overseas near relatives”. The same errors are asserted in relation to the issue of whether the applicant had or had not contacted those persons in a reasonable period before making the visa application.
The criteria for the visa sought by the applicant are set out on page 169 of the court book. Regulation 1.15 is set out on pages 169 and 170. That is, for present purposes, the relevant regulation. In paragraph 31 of his decision (court book, page 171) the presiding member interpreted that regulation:
The definition of “remaining relative” in regulation 1.15 sets out five requirements, which must be met by a review applicant. The onus is on the review applicant to satisfy the Minister that these requirements are met. The first requirement is that the review applicant has a relative who is a brother, sister, parent, step-brother, step-sister or step-parent and is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen. The second requirement is that this relative is usually resident in Australia. The third requirement is that if the review applicant or the review applicant’s spouse has an overseas near relative (defined in subregulation 1.15(2)), then the review applicant and their spouse must live in a country different to that overseas near relative and they must not have had contact with that near relative within a reasonable period before making the application. The fourth requirement is that the review applicant and the review applicant’s spouse must together not have more than three overseas near relatives. There is a further requirement relevant to applicants who have not turned 18 and have been adopted.
In paragraph 41 of his decision (court book, page 173) the presiding member found that the applicant had five overseas near relatives, they being his mother resident in Lebanon, a brother resident in Lebanon, a sister resident in Saudi Arabia and two sons resident in Cyprus. The finding made by the presiding member was clearly open to him on the material before him (including the oral evidence provided by the applicant’s brother about the probable whereabouts of his mother) and nothing more needed to be said. No finding was made on the issue of contact and, in the absence of a finding, the issue could not be determinative. The evidence provided by the applicant’s brother to the MRT was that the applicant had not had recent contact with his mother or sister. In paragraph 42 of his reasons (court book, page 173), the presiding member found that it was unnecessary to make findings about contact between the applicant and his relatives. The presiding member was correct in so finding. The requirements that must be met in order to qualify for a visa pursuant to regulation 1.15 are cumulative. The reasons of the MRT concentrate on the fourth requirement that the review applicant must not have more than three overseas near relatives. Having found that the applicant did not meet that criterion it did not matter whether or not the applicant had had recent contact with his overseas relatives.
Ground two in the further amended application fails.
The applicant also asserts in ground 3 that the MRT failed to take a relevant consideration into account by failing to take into account that the applicant had not contacted his mother or overseas siblings for a reasonable period before making his visa application. That ground also has no merit for the same reasons in respect of ground 2. Ground 3 in the further amended application also fails.
The applicant also asserts in ground 4 jurisdictional error by the MRT affirming the decision of the delegate in circumstances where the applicant had a legitimate expectation arising out of PAM 3 which was defeated by the delegate’s failure to interrogate the applicant in accordance with PAM 3. The particulars are directed at the proposition derived from PAM 3 that the Minister should interview the applicant, and where considered appropriate, the Australian relative in relation to the visa application about the nature and degree of contact made with overseas near relatives. It is far from clear that a failure to follow PAM 3 (assuming the version quoted to me was the applicable version) could constitute a jurisdictional error. Even if it could, however, any error on the part of the delegate was “cured” by the decision of the MRT because, on review, the decision of the delegate is subsumed in the decision of the MRT[4]. Further, the MRT interrogated both the applicant and his brother who was sponsoring his visa application. That interrogation, at least in relation to the brother, extended to the issue of the degree and nature of contact the applicant had with his overseas near relatives. I reject ground 4 in the further amended application.
[4] SZGKO vMinister for Immigration [2005] FMCA 1254
The fifth ground in the further amended application must also be rejected. In the first place, it misrepresents the evidence given by the applicant’s brother at the hearing. The particulars assert that the applicant’s brother gave evidence at the hearing but neither he nor the applicant were certain of the whereabouts of the applicant’s mother. The portion of the tape played to me records the applicant’s brother telling the presiding member that, to the best of his knowledge, the applicant’s mother was in Lebanon. Secondly, the evidence given by the applicant’s brother was not in any sense determinative. The presiding member accepted that the applicant’s overseas near relatives (apart from his children) did not live in Cyprus where the applicant had formerly resided. That conclusion was favourable to the application and was not determinative in the unsuccessful outcome. Neither, as I have already found, was the issue of contact with the adult relatives. There is no evidence before me of any determinative information being given by the applicant’s brother to the MRT that would have required disclosure to the applicant pursuant to s.359A.
The first ground of review, which is the ground of review in the amended application, requires closer consideration. The allegation is that the MRT applied the wrong test in determining whether the applicant’s two sons resident in Cyprus were wholly or substantially in his daily care and control and incorrectly determined that the children were overseas near relatives and not dependent children for the purposes of the Migration Act and Migration Regulations. After reviewing the apparently relevant regulations and the available information, the presiding member said, at paragraph 40 of his decision (court book, pages 172-173):
There is no evidence on file to suggest that the review applicant’s children are wholly or substantially incapacitated for work because of a disability. The review applicant’s children are both under the age of 18, and the question arises as to whether they are wholly or substantially in the daily care and control of the review applicant. The Tribunal accepts that the review applicant has maintained regular contact with his two sons, and that he has sent them and their mother money from time to time as required and to the extent the review applicant has been able. The Tribunal also accepts that the review applicant is familiar with what is happening in his sons’ lives and that from time to time he will be called upon to offer advice and give guidance. It is clear to the Tribunal that it could not be said at the time of application or at the time of this decision being made that the two sons have been wholly in their father’s daily care and control. This is because they are young persons (born 1990 and 1993) who live with their mother in Cyprus whilst their father has been in Australia. From the evidence contained in the above files and presented at the hearing, the Tribunal is not satisfied that the two boys have been substantially in their father’s daily care and control, either at the time of application or at the time of this decision being made. The review applicant’s children do not meet the definition of “dependent child” and are therefore considered to be “overseas near relatives” of the review applicant.
The presiding member was strictly correct in saying that the review applicant’s children did not meet the definition of “dependent child”. They were both under the age of 18 and hence could not satisfy the definition of “dependent child” in the Regulations. However, the presiding member was incorrect in stating that because the applicant’s children did not meet the definition of “dependent child” they were considered to be “overseas near relatives” of the review applicant. It is clear from the terms of sub-regulation of 1.15(2) that the question of whether the applicant’s children were dependent children or not was irrelevant. The issue of dependency was only relevant in respect of children who had turned 18. The relevant issue, in respect of children who had not turned 18, was whether the children were wholly or substantially in the daily care and control of the applicant. If they were not in the applicant’s daily care and control on a whole or substantial basis then they counted as overseas near relatives. If they were at least substantially in the applicant’s daily care and control they did not so count. The issue of dependency was irrelevant.
Decisions of review tribunals should be given a beneficial construction[5]. The presiding member clearly considered the relevant issue in paragraph 40, with the exception of the last sentence. In paragraph 42 of his decision (court book, page 173) the presiding member made a determinative finding on the basis of the reasoning in paragraphs 40 and 41 that would remain determinative if the last sentence in paragraph 40 were deleted. On a fair reading, in my view, the last sentence in paragraph 40, while unfortunately expressed, can be taken to simply be a recognition by the presiding member that the applicant’s children were under the age of 18 and hence could not be dependent children. It followed that the MRT needed to consider the issue of daily care and control which was the determinative issue in the decision. There was no error on the part of the MRT in dealing with that issue.
[5] Minister for Immigration v Rajalingam (1999) 93 FCR 220 at [67]
I find that the decision of the MRT is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will do so.
Costs should follow the event in this case. On a party/party assessment, in my view, fair recompense for the Minister would be an award of costs fixed in the sum of $5,000. I will so order.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 3 March 2006
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