Durzi v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 1767

FEDERAL COURT OF AUSTRALIA

Durzi v Minister for Immigration and Multicultural Affairs [2006] FCA 1767

LAWRENCE DURZI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND MIGRATION REVIEW TRIBUNAL
NSD 619 OF 2006

LANDER J
19 DECEMBER 2006
ADELAIDE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 619 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

LAWRENCE DURZI
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	LANDER J
DATE OF ORDER:	19 DECEMBER 2006
WHERE MADE:	ADELAIDE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 619 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

LAWRENCE DURZI
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	LANDER J
DATE:	19 DECEMBER 2006
PLACE:	ADELAIDE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. The appellant was born on 5 April 1960 and is a national of Jordan.  He entered Australia on 3 October 1998 on a Subclass 676 (Visitor) (Short Stay) visa which was valid until 3 January 1999.

2. On 21 December 1998 the appellant was granted a further Subclass 676 visa which was valid to 18 March 1999.  On 18 March 1999 the appellant was granted a Subclass 686 (Visitor) (Long Stay) visa which was valid to 15 June 1999.  On 15 June 1999 the appellant was granted a further Subclass 686 visa which was valid until 18 September 1999.

3. The appellant did not leave Australia when that visa expired.  Instead, on 1 November 1999 the appellant lodged an application for a Subclass 835 (Remaining Relative) visa and was immediately granted a Bridging C visa pending the disposal of that application.

4. The criteria for eligibility for a Subclass 835 (Remaining Relative) visa includes establishing that the applicant is a remaining relative of an Australian relative and that the applicant is sponsored by that Australian relative: 835.212 and 835.213.

5. The appellant was nominated for the grant of the visa by his brother, Christian Durzi who is an Australian citizen and usually resident in Australia.  In that regard, the appellant satisfied that criteria.

6. The term ‘remaining relative’ is defined in reg 1.15 which, at the relevant time, provided:

   ‘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.’

7. It was a further condition therefore of eligibility for a Subclass 835 (Remaining Relative) visa that the applicant have not more than three overseas near relatives as defined in reg 1.15(2).

8. The appellant would have more than three overseas near relatives if he had a parent, sibling or non-dependant child over 18 who resided in a country other than Australia or a child who has not turned 18 and is not wholly or substantially in the daily care and control of the appellant.

9. On 19 November 2001 the Family Court of Australia granted a decree nisi of dissolution of the appellant and his wife’s marriage which became absolute on 20 December 2001.  At the time of his divorce, his wife was resident in Cyprus with his two sons, Valentino and Oliver.  His former wife had acquired citizenship in Cyprus.  His two sons were born in Cyprus and are citizens of that country.  The appellant also had the following relatives residing overseas: his mother who was thought to be in Lebanon; his brother Carlos in Lebanon; and his sister Yolanda in Saudi Arabia.  His mother and his two siblings comprised three overseas near relatives.  If his two sons resident in Cyprus, with his former wife, were under the age of 18 and not wholly or substantially in the daily care and control of the appellant, then the appellant would not be a remaining relative of his Australian resident brother because the appellant would have more than three overseas near relatives.

10. On 7 March 2003 a delegate of the first respondent, the Minister for Immigration and Multicultural Affairs, refused the appellant’s application for grant of a Subclass 835 (Remaining Relative) visa on the ground that the appellant’s sons were not wholly or substantially in the appellant’s daily care and control.

11. He gave as his reasons:

    ‘I find from the information provided by the applicant on file that (a) he is the father of two young boys in Cyprus, (b) he left his sons in the care and control of their mother in Cyprus when he left Cyprus to come to Australia, (c) he has not been able to support them “wholly or substantially” since he left Cyprus, and (d) the present “daily care and control” of his sons lies with their mother, his ex-spouse.

    I therefore find that the applicant does not meet the requirements of the following regulation clauses:
    1.15(1)(c)(i)     because the applicant and his sons usually reside in Cyprus,

    1.15(1)(c)(ii)because the applicant was with and had contact with his sons up until he left Cyprus, and

    1.15(2)(b)(ii)   because his sons have not been “wholly or substantially” in his “daily care and control” since he left Cyprus.

    As the applicant does not meet requirements in regard to the legal meaning of “a remaining relative”, he is not a “remaining relative.  I find that he thereby does not meet all the requirements of regulation clauses 835.212 and 835.221 and so I am unable to grant him a subclass 835 (remaining relative) visa.’

12. On 17 April 2003 the appellant applied to the Migration Review Tribunal (the Tribunal) for a review of the delegate’s decision.

13. On 1 September 2003 the Tribunal wrote to the appellant advising, inter alia:

    ‘You are invited to comment, in writing, on the following information:

    ●Information provided by you indicates that you have 4 “overseas near relatives”, these being your brother, Carlos J. Durzi (resident of Lebanon), your sister Yolanda J. Durzi (resident of Saudi Arabia), and your sons Valentino Laurence Durzi (resident in Cyprus) and Oliver Laurence Durzi (resident in Cyprus).

    ●Your sons are both less than 18 years of age.  It does not appear from the material contained on the Departmental and Tribunal files that they are wholly or substantially in your daily care and control, or that they are wholly or substantially incapacitated for work, and hence they are “overseas near relatives”.

    This information is relevant to the review because regulation 1.15 of the Regulations defines as a “remaining relative” an applicant who, among other things, satisfies the Minister that he or she has not more than 3 overseas near relatives, or that he or she usually resides in a country, not being Australia, that is different to the country in which their “overseas near relatives” reside.

    If the Tribunal finds that you have more than 3 “overseas near relatives”, or that you resided in the same country as any of your “overseas near relatives”, it may find that you do not meet the definition of “remaining relative” and affirm the Department’s decision.  A copy of the relevant regulations is attached to this letter.’

14. On 22 October 2003 the appellant’s migration adviser, Waratah Migration Pty Ltd, responded on behalf of the appellant:

    ‘We refer to the above matter and your letter f (sic) under section 359A of the Migration Act 1958.

    We are instructed by Mr Durzi that he sends money to his children and his former wife and that he has regular contact with them and is involved in decisions regarding their day to day care and that the children are substantially in his daily care and control.  The children are therefore not overseas near relatives but are dependent children.

    Mr Durzi is obtaining evidence of this and it will be submitted as soon as it is available together with detailed submissions.’

15. On 1 December 2003 the appellant’s migration adviser wrote:

    ‘We refer to the above matter and your letter of (sic) under section 359A of the Migration Act 1958.

    As previously advised we are instructed by Mr Durzi that he sends money to his children and his former wife as he is able and that he has regular contact with them and is involved in decisions regarding their day to day care and that the children are substantially in his daily care and control.  The children are therefore not overseas near relatives but are dependent children.

    We advise that he has sent money by Western Union and on occasion he has sent money with a relative.

    Mr Durzi has provided us with copies of money transfer receipts and numerous phone cards to demonstrate this.  We have just received these and the money transfers are not of a quality that would enable them to be copied and then sent by facsimile whilst remaining readable.  We will therefore copy and post them.’

16. On 5 December 2003 the appellant’s migration adviser forwarded certified copies of money transfer receipts and phone cards, and a statutory declaration from the appellant’s brother and sponsor, Mr Christian Durzi.

17. Those money transfers showed money being sent by the appellant in Australia to Antoinette Sveir on various dates in 1999 and 2003 amounting to $2,950 and phone cards to the value of $571.

18. In the accompanying statutory declaration, Mr Christian Durzi declared that he had supported the appellant after the appellant’s arrival in Australia.  He said that the appellant had lived with him for the first three years of his time in Australia and thereafter with their aunt until the appellant moved into his own flat.

19. He said that during the time that the appellant lived with him he witnessed the appellant receiving many phone calls from his former wife and children which concerned financial problems and his son’s well-being.  He declared:

    ‘From Lawrence’s part as a parent he keeps in touch with his children by phone, also never misses sending gifts on special occasions such as birthdays Easter Xmas, etc.  Along with these gifts cards and letters are included.’

20. He continued:

    ‘Lawrence helps financially when possible.  I know this because October 1998 the first transfer of $1000 dollars was made by Lawrence and myself from ANZ Bank Wollongong.

    I’m aware of further transfers being made when finances allow, my brother is a very hard working family orientated man.  I’m sure if and when finances and his situation in Australia changes this will allow him to provide more, I’m willing to give my ongoing support to my brother which I believe that in the future Lawrence will endeavour to succeed in whatever he undertakes in life.’

21. On 19 February 2004 both the appellant and his brother gave evidence before the Tribunal.

22. On 12 March 2004 the Tribunal handed down its decision affirming the delegate’s decision.

23. The Tribunal addressed the question as to whether the appellant’s two children resident in Cyprus with his former wife were overseas near relatives for the purpose of reg 1.15(2).  It said:

    ’40.     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.

    41.      The Tribunal is satisfied that at the time of application and at the time of this decision being made, the review applicant has had the following overseas near relatives, who have been residing as indicated:

    ØNadia Burchi (mother), resident of Lebanon;

    ØCarlos J. Durzi (brother), resident of Lebanon;

    ØYolanda J. Durzi (sister), resident of Saudi Arabia;

    ØValentino Laurence Durzi (son), resident of Cyprus; and

    ØOliver Laurence Durzi (son), resident of Cyprus.

    42.      Subparagraph 1.15(1)(d) requires that the review applicant has not more than 3 overseas near relatives.  The Tribunal is satisfied that at relevant times the review applicant has had five overseas near relatives.  It follows that the review applicant does not come within the definition of “remaining relative” either at the time of application or at the time of this decision being made.  Neither of clauses 835.212 or 835.221 in Schedule 2 have been met.  The delegate’s decision must be affirmed.  It is unnecessary for the Tribunal to make findings about contact between the review applicant and his relatives, and the review applicant is not a person who has not turned 18 and who has been adopted.’

24. Thus it was that the Tribunal affirmed the delegate’s decision.

25. On 6 April 2004 the appellant applied in this Court under s 39B of the Judiciary Act for a review of the Tribunal’s decision which was given on 12 March 2004.  On 17 May 2004 Hely J ordered that the proceeding be transferred to the Federal Magistrates Court.  On 6 August 2004 the appellant filed an amended application in the Federal Magistrates Court asserting as grounds for the relief sought:

    ‘1.The delegate and MRT applied the wrong test in determining whether Valentino Laurence Durzi and Oliver Laurence Durzi (the “children”) were wholly or substantially in the daily care and control of the review applicant, and as such incorrectly determined that the children were “overseas near relatives” and not “dependant children” for the purposes of the Migration Act and Regulations. The failure to apply the correct test and conversely applying the incorrect test gave rise to a jurisdictional error as the delegate had no power not to issue the visa and therefore the MRT erred in failing to so hold and in failing to set aside the purported the (sic) decision of the delegate refusing to issue the applicant within BU 838 (Remaining Relative Visa).’

26. At the hearing, the appellant was given leave to file a further amended application with further additional grounds which are set out below without the particulars except for ground 4 which does include the particulars:

    ‘1.The Applicant seeks leave to rely on ground 1 in the Amended Application dated 6 August 2004 and re-pleads that ground in this further amended application.

    2.The Tribunal committed a jurisdictional error of law by failing to conduct a review of the delegate’s decision according to substantial justice and merits of the case and failing to record its decision in accordance with the Migration Act 1958 (the “Act”).

    Particulars

    a.  While finding the Applicant had overseas near relatives – viz., the Applicant’s mother, his brother Carlos and sister Yolanda, the Tribunal nevertheless failed to:

    i.  set out the reasons for that decision;

    ii.  set out the findings on any material questions of fact, and

    iii.  refer to the evidence or any other material on which the findings of fact were based.

    b.  It is further asserted the Tribunal failed to act in accordance with substantial justice and merits of the case in finding that the Applicant’s mother, sister and brother were overseas near relatives in circumstances where the evidence before the Tribunal was that the Applicant had not contacted any of these alleged overseas near relatives for a reasonable period before making the application.

    3.The Tribunal further committed a jurisdictional error of law by failing to take relevant considerations into account.

    Particulars

    a.  The Tribunal and the delegate failed to take into account the fact that the Applicant had not contacted his mother or overseas siblings for a reasonable period before making the application.

    b. According to regulations and the Act, the Tribunal and the delegate were required to take the same into account.

    4.The Tribunal also committed a jurisdictional error by affirming the decision of the delegate of the First Respondent in circumstances where the Applicant’s legitimate expectations arising out of the Procedures Advice Manual 3 (“PAM3”) were defeated by the delegate’s failure to interrogate the Applicant in accordance with PAM3.

    Particulars

    a.  According to PAM 3 (Div 1.2. Reg 1.15 (18.6) an officer of the First Respondent “should interview the applicant/s (and where considered appropriate, the Australian relative) with a view to establishing the nature and degree of contact made with ONR/s”.

    5.The Tribunal further committed a jurisdictional error by failing to afford the Applicant procedural fairness in circumstances where he was not given an opportunity to respond to adverse findings in accordance with the mandatory obligations in section 359A of the Migration Act 1958.

    Particulars

    a.  The reason or part of the reason why the Tribunal was not satisfied that the Applicant satisfied the remaining relative criteria was because he had more than three overseas near relatives.

    b.  The Applicant’s brother gave evidence at the hearing that neither himself nor the Applicant were certain of the whereabouts of the Applicant’s mother.

    c. Notwithstanding, the Applicant was not given notice in accordance with section 441A of the Act of particulars of any information given by the Applicant’s brother that was the reason or part of the reason for affirming the delegate’s decision with regards the Applicant’s mother.’

1. On 21 February 2006 Driver FM dismissed the appellant’s application and ordered the appellant to pay the Minister’s costs.  It is from those orders that this appeal is brought.

2. It was argued before the Federal Magistrate that there was no evidence before the Tribunal that the appellant’s mother, brother and sister were overseas near relatives.  His Honour rejected that ground holding that the finding made by the Tribunal was clearly open on the evidence before him, including oral evidence given by the appellant’s brother about the probable whereabouts of their mother.

3. In particular, the Federal Magistrate reasoned that the Tribunal had not fallen into error in not considering whether the applicant had had any contact with those relatives within a reasonable period before making the application.

4. In that regard, the Federal Magistrate was correct.  In order to satisfy the Minister that a person is a remaining relative of another person, the first person must satisfy the Minister of all of the matters contained in reg 1.15(1).

5. If the applicant does have more than three overseas near relatives, then that by itself disqualifies the applicant from bringing himself or herself within the meaning of ‘remaining relative’.  The criteria in reg 1.15(1) are cumulative and each must be satisfied.  Once it is established that the applicant has more than three overseas near relatives, then paragraph (c) in reg 1.15(1) has no application.

6. It was contended, as ground 4 shows, that the delegate had failed to interview and interrogate the applicant in accordance with PAM3.  The Federal Magistrate rejected that contention on the basis that even if that were the case any error on the part of the delegate was remedied by the Tribunal who had interrogated both the appellant and his brother.

7. The Federal Magistrate rejected the fifth ground which was put upon the basis that the appellant’s brother gave evidence at the hearing that neither himself nor the appellant were certain of the whereabouts of the appellant’s mother.  The Federal Magistrate found that assertion misrepresented the evidence given by the appellant’s brother at the hearing.  Indeed, the evidence showed that the appellant’s brother said that to the best of his knowledge the appellant’s mother was in Lebanon.

8. The last matter dealt with by the Federal Magistrate was the appellant’s complaint that the Tribunal had fallen into error by having regard to the definition of ‘dependant child’ in [40] of the Tribunal’s reasons in a consideration of the question of overseas near relatives.  The Federal Magistrate found that the question as to whether or not the appellant’s two sons came within the definition of ‘dependant child’ was irrelevant.  The question before the Tribunal was whether they were overseas near relatives having regard to reg 1.15(2)(b).  However, the Federal Magistrate found, rightly in my opinion, that because the issue of dependency was entirely irrelevant and because the Tribunal had in fact addressed the right question, it could not be said that the Tribunal fell into error.

9. The appellant’s notice of appeal originally filed in this proceeding was unhelpful.  At the hearing the appellant sought to rely on an amended notice of appeal which was further amended during the hearing.

10. In the end result, I gave leave to the appellant to file the amended notice of appeal in Court and to address each of the grounds in that amended notice of appeal even though it was ultimately conceded by Dr Azzi that grounds 2(b), 3 and 4 had not been ventilated before the Federal Magistrate.

11. The amended notice of appeal was in the following form:

    ‘AMENDED NOTICE OF APPEAL

    1.  The appellant appeals from the whole of the judgment of Driver FM in DURZI v MIMIA [2006] FMCA 240 delivered on 3 March 2006 at Sydney.

    GROUNDS:

    1.  His Honour erred in finding that “there was no error on the part of the MRT in dealing with” the issue of daily care in control (sic) in circumstances where the Second Respondent failed to apply the correct test and/or follow department guidelines.

    Particulars

    a.The Second Respondent found the Appellant had more than three overseas near relatives (“ONRs”)

    b.The Second Respondent found the Appellant’s two sons “do not meet the definition of ‘dependent child’ and are therefore considered to be ‘overseas near relatives’ of the [Appellant]”.

    c.The Second Respondent further found the Appellant’s two sons constituted ONRs because it could not accept “the two sons had been wholly in their father’s daily care and control” (emphasis in original) because “they live with their mother in Cyprus” notwithstanding that the Appellant:

    i.     maintained regular contact with his two sons;

    ii.had sent his sons and their mother money from time to time as required and to the extent of the Appellant’s financial means;

    iii.is familiar with his sons’ lives; and

    iv.is called upon from time to time to offer advice and give guidance.

    2.  His Honour erred in upholding the decision of the Tribunal in circumstances where:

    The Second Respondent committed a jurisdictional error by affirming the decision of the delegate of the First Respondent in circumstances where the Appellant’s legitimate expectations arising out of the Procedures Advice Manual 3 (“PAM 3”) were defeated by the Second Respondent’s failure to establish compliance with PAM 3 by the delegate of the First Respondent.

    Particulars

    a.According to PAM 3 (Div 1.2. Reg 1.15 (18.6) an officer of the First Respondent “should interview the applicant/s (and where considered appropriate, the Australian relative) with a view to establishing the nature and degree of contact made with ONR/s”.

    b.According to PAM 3 “[i]t is not necessary for children to reside with their parents in order to be under the parent’s daily care and control” such that ‘daily care and control’ can be delegated without compromising the rights of the parent”.

    3.  The Second Respondent committed a jurisidictional error by failing to have regard to a relevant consideration

    Particulars

    a.The Tribunal considered “relevant to this review ... Departmental Policy PAM3 – Regulation 1.15 – Interpretation – Remaining Relative”

    b.In its decision however the Tribunal did not have real regard to Departmental Policy contained in PAM3 – Regulation 1.15 – Interpretation – Remaining Relative – in relation to the third and fourth requirements mentioned by the Tribunal – ie claim 21 of PAM3.

    4.  The Second Respondent committed a jurisdictional error in circumstances where the appellant’s legitimate expectations were defeated by the Tribunal’s failure to have regard to a relevant consideration

    Particulars

    a.The appellant repeats particulars in 3b to Ground 3.’

12. The first ground raised again [40] of the Tribunal’s reasons. In part, it made the same complaint as the last ground dealt with by the Federal Magistrate. I can deal with that quickly. It is right that the Tribunal dealt with an irrelevant issue in the last sentence of [40]. The question whether the appellant’s children came within the definition of ‘dependant child’ was irrelevant. However, [40] makes it plain that the Tribunal did deal with the relevant question which was to be determined and that is whether the appellant’s two sons were overseas near relatives and, in that regard, whether they were wholly or substantially in the daily care and control of the appellant, there being no argument that they were not under the age of 18 years.

13. The appellant claimed that the Tribunal fell into error in finding that the appellant’s two sons had not been wholly in their father’s daily care and control because they lived with their mother whilst their father has been in Australia.  It was put that the evidence supported a finding that they were wholly in the appellant’s daily care and control.

14. In my opinion, that submission is untenable.  The undisputed evidence was that the appellant’s two sons lived with their mother in Cyprus whilst the appellant lived in Australia.  It could not be said, in those circumstances, that the two sons were wholly in the appellant’s daily care and control.  It had to be that they were at least partly in the daily care and control of the appellant’s former wife.

15. Next, it was put that the Tribunal was wrong to conclude that the two boys were not substantially in the appellant’s daily care and control.  That was a matter for the Tribunal to determine upon the evidence before it.  It had regard to the appellant’s evidence of his contact by telephone with his two sons.  It recognised that the appellant had sent his former wife and his two sons money from time to time as required.  It also accepted that the appellant was familiar with what was happening in his sons’ lives and from time to time was called upon to offer advice and give guidance.  It had regard to the appellant’s brother’s evidence.

16. It was a matter then for the Tribunal to decide whether it was satisfied that the appellant’s sons were substantially in the daily care and control of the appellant.  It formed a judgment which it was entitled to do that they were not.  Any complaint about that finding in reality seeks a merit review which is impermissible.  The first ground must be dismissed.

17. Ground 2, in my opinion, is misconceived.  It claims that the Tribunal fell into jurisdictional error in affirming a decision of the Minister’s delegate where the appellant’s legitimate expectations were defeated by the Tribunal’s failure to establish compliance with PAM3 by the Minister’s delegate.

18. It is not a function of the Tribunal to have the Minister’s delegate establish compliance with PAM3.  The Tribunal’s function is to review in all respects, including the merits, the decision of the Minister’s delegate.  The Tribunal is entitled, as it did in this case, to take evidence from the appellant and the appellant’s brother.  It was obliged to come to a decision for itself as to whether or not the appellant was entitled to a Subclass 835 (Remaining Relative) visa.  It had to decide for itself whether the appellant had more than three overseas near relatives.

19. In that regard, it interviewed the appellant by taking evidence from the appellant.  Even if PAM3 had raised some legitimate expectation with the appellant as to what the delegate might do, it was not a legitimate expectation which remained relevant after the Tribunal interviewed the appellant.

20. I cannot understand ground 2b.  I am not sure how that raises any legitimate expectation which could be relied upon by the appellant at all.

21. Assuming PAM3 says what is asserted, it takes the appellant’s case nowhere.  It is clear that the Tribunal proceeded upon the basis that it was not necessary that the appellant’s sons reside with him in order to be under the appellant’s daily care and control.  The Tribunal had regard to all the relevant evidence in determining whether or not the children were under the appellant’s daily care and control and found, as I have said, as a matter of judgment that they were not.

22. PAM3 is a document which is reissued from time to time which provides guidelines in relation to ‘the interpretation’ of reg 1.15. It does not have the force of a ministerial direction which might be given under s 499 of the Migration Act 1958 (Cth).

23. It was submitted by counsel for the appellant that PAM3 construed reg 1.15 and it was to PAM3 which the Minister’s delegate and the Tribunal needed to go to determine the appropriate questions to be asked and answered.  That submission must be rejected.  PAM3 is simply a document which brings a number of relevant facts to the attention of the decision maker to which the decision maker may or may not have regard in considering whether an applicant has brought himself or herself within the criteria required in reg 1.15.  It has no legislative effect.  It does not construe reg 1.15.  A decision maker is not bound to have regard to it or if a decision maker has regard to it the decision maker commits no error.

24. Grounds 3 and 4 suggest that the decision maker was obliged to have regard to PAM3 and, in particular, paragraph 21.5 of PAM3 which deals with ‘minor children and daily care and control’.

25. Paragraph 21.5 of PAM3 brings to the attention of the decision maker circumstances which may be relevant in considering whether a child is under the care and control of an applicant.  It suggests that a child need not be in the custody of a person to be in the person’s care and control.  It also suggests that the care and control of a child can be delegated without compromising the rights of the parent and, in that regard, it is not necessary for children to reside with their parents in order to be under the parents’ daily care and control.  It gives as an instance children at boarding school who are considered to be within the daily care and control of their parents.

26. As I have already said, the Tribunal proceeded upon the basis that the mere fact that the appellant’s children were not in his custody and were living apart from him did not disqualify the appellant from claiming that they were substantially in his daily care and control.  In that regard, the Tribunal’s approach was consistent with PAM3 (paragraph 21.5).  However, the Tribunal found that on the facts adduced the children were not in the daily care and control of the appellant.

27. The appellant’s case failed on its merits.  In my opinion, grounds 3 and 4 must be dismissed.

28. The appeal must be dismissed.  The appellant must pay the first respondent’s costs.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:
Dated:        19 December 2006

Counsel for the Appellant:	Dr Azzi
Counsel for the First Respondent:	Ms Kaur-Bain
Solicitor for the First Respondent:	Blake Dawson Waldron
Date of Hearing:	7 November 2006
Date of Judgment:	19 December 2006