ERC17 v Minister for Immigration - [2020] FCCA 3460

FEDERAL CIRCUIT COURT OF AUSTRALIA

ERC17 & ORS v MINISTER FOR IMMIGRATION

[2020] FCCA 3460

Catchwords:
MIGRATION – Refugee and Humanitarian (class XB – subclass 200) visa – review of the Delegate’s decision – where the Applicants are the children of the proposer for the visa – where their mother and two siblings were granted visas – where the Delegate found that the Applicants did not satisfy clauses 200.311 of Schedule 2 of the Migration Regulations 1994 – dependency criteria and compelling circumstances criteria – question of whether the Delegate considered evidence – whether the Delegate asked itself the wrong legal question – whether the Delegate acted unreasonably or irrationally – context of the Delegate not required to provide reasons for decision – no jurisdictional error established – Application dismissed.

Legislation:
Migration Act 1958, s.5
Migration Regulations 1994, reg. 1.05A, 1.12AA, cl. 200.222, 200.311 of Schedule 2

Cases cited:

CVV16 v Minister for Home Affairs and Anor [2019] FCA 1890
Kumar v Minister for Immigration & Anor [2020] FCAFC 16
Mendonca v Tax Practitioners Board [2019] FCA 1757
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] 258 CLR 173
XA v Minister for Home Affairs [2019] FCAFC 166

First Applicant:

ERC17

Second Applicant:

ERD17

Third Applicant:

ERE17

Fourth Applicant:

ERF17

Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

File number:

MLG 2256 of 2017

Judgment of:

Judge Blake

Hearing date:

5 October 2020

Date of last submission:

5 October 2020

Delivered at:

Melbourne

Delivered on:

18 December 2020

REPRESENTATION

Counsel for the Applicants:

Mr Tran

Solicitors for the Applicants:

Russell Kennedy Solicitors

Counsel for the Respondent:

Ms Symons

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Pursuant to s.477(2) of the Migration Act 1958 the time for the Applicants to file an application in respect of the decision of the Respondent dated 14 May 2017 be extended to 19 October 2017.
The application filed on 19 October 2017 and amended on 14 September 2020 be dismissed.
The Applicants pay the Respondent’s costs of the proceeding fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2256 of 2017

ERC17

First Applicant

ERD17

Second Applicant

ERE17

Third Applicant

ERF17

Fourth Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for a review of a decision made by a delegate of the Respondent (‘Delegate’) on 14 May 2017. In that decision, the Delegate refused to grant the applicants Refugee and Humanitarian (class XB) (subclass 200) visas (‘visas’).

Background

The applicants are the four eldest children of the proposer for the visas (‘Applicants’). The proposer is their father. The proposer is a permanent citizen of Australia who arrived in Australia in 2013 as a holder of a visa.
On 15 August 2014, the Applicants lodged an offshore application for the visas. The applicant for the visas was their mother. The Applicants and their two younger siblings were dependent secondary applicants.
On 14 May…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 3460
Decision Date: 18 December 2020

CaseChat Overview and Summary

The applicants sought judicial review of a decision by the Minister for Immigration to refuse them a Refugee and Humanitarian (class XB – subclass 200) visa. The applicants were the children of the proposer for the visa, and their mother and two siblings had been granted visas. The Delegate found that the applicants did not satisfy the dependency and compelling circumstances criteria under clause 200.311 of Schedule 2 of the Migration Regulations 1994. The matter came before Judge Blake in the Federal Circuit Court of Australia.

The court was required to determine whether the Delegate considered all relevant evidence, whether the Delegate asked itself the correct legal question, and whether the Delegate's decision was unreasonable or irrational. The applicants also sought an extension of time to file their application for judicial review, which was not opposed by the Minister.

Judge Blake found that while the Delegate was not required to provide detailed reasons for the decision, the evidence indicated that the Delegate had considered the relevant criteria under clauses 200.222 and 200.311 of the Regulations. The court noted the definitions of "dependent" and "member of the immediate family" as provided in the Regulations. Ultimately, the court concluded that no jurisdictional error had been established.

The application for an extension of time was granted. However, the substantive application for judicial review was dismissed. The applicants were ordered to pay the Respondent's costs of the proceeding.

Orders

Orders of the court

ORDERS

1. Pursuant to s.477(2) of the Migration Act 1958 the time for the Applicants to file an application in respect of the decision of the Respondent dated 14 May 2017 be extended to 19 October 2017.

2. The application filed on 19 October 2017 and amended on 14 September 2020 be dismissed.

3. The Applicants pay the Respondent’s costs of the proceeding fixed in the sum of $7,467.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 14 May 2017, the Delegate refused to grant the Applicants the visas (‘Decision’). The Delegate was not satisfied, inter alia, that the Applicants met the requirements contained within clause 200.311 of Schedule 2 to the Migration Regulations 1994 (‘Regulations’). On 10 July 2017, the mother of the Applicants and their two younger siblings were granted visas. On 19 October 2017, the Applicants filed the application in this Court for judicial review of the Decision. Two affidavits were filed in support of the application – an affidavit of the proposer (the Applicants’ father), affirmed on 17 October 2017, and an affidavit of Kate Vanrenen, the Applicants’ lawyer, affirmed on 18 October 2017. At the hearing before me, the Applicants relied on an Amended Application filed on 14 September 2020, written submissions and an affidavit of a solicitor, Arti Chetty, filed on 14 September 2020. The Minister filed a Court Book on 19 October 2018, and written submissions on 28 September 2020. The Application, as initially filed, sought orders for an extension of time to file the application with this Court. The Application was supported by an affidavit from the Applicants’ solicitor. The application for the extension of time was not opposed by the Minister. I am satisfied that I should make an order that the time for the making of the Application be extended. Relevantly, for the purposes of the present matter, the Delegate was required to assess the Applicants against criteria set out in clauses 200.222 and 200.311 of Schedule 2 to the Regulations. Relevantly, clause 200.311 provided as follows: ‘The applicant:(a) is a member of the family unit of, and made a combined application with, a person who meets, or has met, the requirements of:(i) paragraphs 200.211(1)(a) or (aa); or(ii) paragraph 200.212(a); or(b) is a member of the immediate family of, and made a combined application with, a person who meets, or has met, the requirements of paragraph 200.211(1)(b).’ For the purposes of the clause above, ‘member of the immediate family’ was defined in regulation 1.12AA, and the word ‘dependent’ was defined by regulation 1.05A of the Regulations, which both stated as follows:‘1.05A Dependent(1) Subject to subregulation (2), a person (the first person) is dependent on another person if:(a) at the time when it is necessary to establish whether the first person is dependent on the other person:(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and(ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or(b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.(2) A person (the first person) is dependent on another person for the purposes of an application for:(d) a Protection (Class XA) visa; or(ea) a Refugee and Humanitarian (Class XB) visa; or(i) a Temporary Safe Haven (Class UJ) visa;if the first person is wholly or substantially reliant on the other person for financial, psychological or physical support.1.12AA Member of the immediate family(1) For these Regulations, a person A is a member of the immediate family of another person B if:(a) A is a spouse or de facto partner of B; or(b) A is a dependent child of B; or(c) A is a parent of B, and B is not 18 years or more.’

Ratio Decidendi

Legal Principle Established

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