Faingata'a v Minister for Immigration and Multicultural Affairs
[2001] FCA 937
•20 JULY 2001
FEDERAL COURT OF AUSTRALIA
Faingata’a v Minister for Immigration & Multicultural Affairs [2001] FCA 937
Migration Regulations 1994 Schedule 2 cl 806.21, 806.212, 806.213
Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39 cited
PENI TAUSISI FAINGATA'A v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V 747 OF 1999SUNDBERG J
20 JULY 2001
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 747 OF 1999
BETWEEN:
PENI TAUSISI FAINGATA’A
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
SUNDBERG J
DATE OF ORDER:
20 JULY 2001
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent’s costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 747 OF 1999
BETWEEN:
PENI TAUSISI FAINGATA'A
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
SUNDBERG J
DATE:
20 JULY 2001
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
BACKGROUND
The applicant and his wife are citizens of Tonga. Their daughter is an Australian citizen who nominated her parents for a Family (Residence) (Class AO) visa. One of the subclasses of this class of visa is subclass 806 ‑ Family. The prescribed criteria for this subclass are set out in Part 806 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”). Clause 806.21 specifies the criteria to be satisfied at the time of application. They are:
“806.211 If: (a) the applicant
(i)was in Australia on 1 September 1994; and
(ii)was, immediately before 1 September 1994, a person to whom section 37 of the Act as in force immediately before that date applied; and
(iii)has not been granted a substantive visa on or after 1 September 1994; or
(b)the applicant is a person to whom section 48 of the Act applies;
the applicant:
(c)has not been refused a visa or had a visa cancelled under section 501 of the Act; and
(d)has become an orphan relative, a remaining relative or a special need relative of an Australian citizen, of an Australian permanent resident, or of an eligible New Zealand citizen since last applying for an entry permit or substantive visa.
806.212The applicant
(a)satisfies schedule 3 criterion 3002; and
(b)either:
(i)is the holder of a substantive visa (other than a subclass 771 visa); or
(ii)is not the holder of a substantive visa, and immediately before ceasing to hold a substantive visa, was not the holder of a subclass 771 visa.
806.213The applicant is an orphan relative, a remaining relative or 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.”
The criteria to be satisfied at the time of decision include the requirement that the applicant continues to satisfy the criteria in clause 806.213 (clause 806.221). (The case was conducted on the basis that at the relevant time clauses 806.211‑213 was in the form set out above.)
The expressions “special need relative” and “eligible New Zealand citizen” are defined in reg 1.03. The expressions “orphan relative” and “remaining relative” are defined in reg 1.15. The only definition that need be set out is that of “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.”
The visa application did not indicate the grounds upon which it was based (eg remaining relative or special need relative), or the basis upon which the daughter’s nomination was made. Instead, the applicant filled in the nomination section, nominating himself and his wife, but did not tick the relevant box stating the ground upon which the nomination was made. In a letter accompanying the application the daughter told the Department why she wanted her parents to stay in Australia permanently:
“I came to Australia as an overseas student in 1982 and my parents had been given me all the opportunities that they can offer in order for me to be able to pursue a career in Accounting, in which case, I was successful in my studies and graduated with a degree in Accounting from Charles Sturt University. At the completion of my studies, I was able to meet my husband Tony Motuliki who at that time, an Australian citizen, and after the wedding, he wanted us to reside in Australia, but deep down in my heart, I did want to go home to Tonga to work and repay my debts to my parents because without their help and their unselfishness, I could never become a fully qualified Accountant today. Because of their love and dedication that they gave me when I was unable to help myself, I would like to give them the same love and support now, after being able to establish myself. Now my parents are living with me at the above address, and that is why I am trying now to lodge this application so that they may stay here with me seeing that none of us children are still in Tonga.
I would also like to state here that I will be able to support them financially and meet all their medical needs if any arise. I would also like to mention here that they will not be a burden to the Australian Government.”
On 15 September 1998 an officer of the Department of Immigration and Multicultural Affairs wrote to the daughter enclosing a copy of the nomination page of the application, and asked her to tick the appropriate box. She returned the copy page with a tick beside “a special need relative”. Accompanying the page was a letter which is in part as follows:
“The ground for Peni and Siu’s application is ‑ REMAINING RELATIVE but I would like to state here that the reason why I wanted my parents to stay here, is that, my dad was supposed to have medical operation but he was too frightened, and now, we are waiting on the doctor. Also my mum sometimes have problems with her leg, that she can not get up sometimes, and I just want them to stay longer so that all their health problems can be solved. Because I am the one responsible for my parents, I want to do as much as I can to help them, because if they go back to Tonga, no one can do what I can do to my parents.”
The primary decision maker refused to grant the visa on the ground that the parents did not satisfy the requirements of any of the 806 Family subclass or any of the other subclasses. The applicant applied for review of that decision by the Migration Review Tribunal. In the box headed “The visa decision you want to have reviewed” in the application form he wrote “Regulation 1.15. Remaining relative”, and went on to explain why he claimed to fall within that class. At the end of this exposition he added that although he has close relatives overseas, his main support comes from the daughter ‑ “She is the one who does everything for us”.
The Tribunal affirmed the decision under review. It treated the applicant as relying on the “remaining relative” head, as he had stated in his application for review. The Tribunal found that neither of the parents was a “remaining relative” within the meaning of the definition of that expression, and gave its reasons for so finding. The Tribunal then said:
“The facts of this case do not satisfy the prescribed criteria of the visa subclass for which the Applicant applied. It has not been claimed by the Applicant, nor does it appear from the evidence, that the facts of this case can satisfy this subclass of visa on any other ground, or the criteria of any other subclass of the class of visa for which the Applicant applied.”
It is clear from the context that by “visa subclass for which the Applicant applied” the Tribunal meant the “remaining relative” subclass, by “any other ground” it meant the “orphan relative” and “special need relative” grounds, and by “any other subclass” it meant the “prospective marriage spouse”, “child”, “aged parent” and “close ties” subclasses. The applicant has sought review of the Tribunal’s decision under Part 8 of the Migration Act 1958.
GROUNDS OF REVIEW
The applicants contended that the Tribunal erred in failing to consider whether the applicant met any of the criteria in clause 806.213 other than “remaining relative”, or those in any subclass other than 806 Family. Counsel’s written submissions were as follows:
“While clearly ‘orphan relative’ was inapplicable there was material from which the [daughter] could assert that her parents were ‘special need relatives’ to her in her circumstances. In any event, she was prevented from addressing this issue by the MRT.
The applicant contends the failure of the MRT to appreciate that it should consider all the criteria in sub‑class 806.213 constitutes an error of procedure (within s 476(1)(a) Migration Act), an error of law or an error in the application of the law to the facts (within s 476(1)(e) Migration Act).
The applicant further contends the MRT erred in law in failing to appreciate that the application before it was for one ‘class’ of visa and this required the MRT to proceed as the primary decision‑maker had and consider whether the applicants for the visa satisfied any of the criterion in any of the sub‑classes which constituted the ‘prescribed class’ of visa. The MRT erred in law in failing to do this and by focusing only on one sub‑class of the prescribed class. The applicant contends that this is an error of law within s 476(1)(e) Migration Act.”
“Special need relative”
The assertion that the daughter was prevented from addressing the “special need relative” issue was based on a passage in the Tribunal’s hearing record. The Tribunal member was attempting to ascertain the extent of the applicant’s family in connection with the “remaining relative” ground. He questioned the applicant about his and his wife’s relatives and where they lived. Then he asked the daughter about the relatives. When he had concluded his questions he asked the daughter whether there was anything else she wanted to say. She replied that her parents were totally dependent on her. It was easier for her if they came to Australia than for her to go to Tonga. The Tribunal member said he couldn’t take that into account. In the context in which that comment appears, it is clearly an indication that the parents’ dependency was not relevant to the “remaining relative” ground. The Tribunal was not, as was submitted for the applicant, preventing the daughter from explaining why the applicant was a special need relative. Even if the Tribunal had been considering that ground, the dependency claim would have been equally irrelevant. See par 11 below.
It is not necessary in this case to decide whether the Tribunal was obliged to engage in the process contended for in counsel’s submissions (par 7 above). That is because the Tribunal did what it is contended it was obliged to do and had not done. See par 6 above. Having regard to the way in which the case was presented by the applicant (see par 5 above), it is understandable that the Tribunal dealt in detail with the “remaining relative” ground and considered the other grounds in more general terms. Counsel in effect conceded that there was no need for the Tribunal to spend time explaining why the parents were not “orphan relatives” since there was no material from which it could possibly be claimed that they were. Counsel realistically focused on the definition of “special need relative”, on the ground that, in his submission, there was material from which it could be claimed that the parents satisfied the definition.
In Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39 at 53‑54 a Full Court said that the definition of “special need relative”
“is intended to identify, as a criterion or an element of a criterion, a class of person who might remain in Australia to tend to the needs of a citizen who is unable to care for himself or herself for a lengthy period.
…
The definition of the expression ‘special need relative’ contains several elements …. The citizen must be usually resident in Australia. There must be another person who is a relative of the citizen. ‘Relative’ is also defined in reg 1.03. The relative must be willing and able to provide substantial and continuing assistance to the citizen. The need for the assistance, as identified in par (a), must be permanent or long‑term. ‘Long‑term’ is not defined but it is probably used to signify a need which continues for years. The need must arise because either the citizen or ‘a member of his or her family unit’ is affected in one of four ways ….”
The Court then noted suggestions by the Minister’s counsel of circumstance that might create a need for permanent or long‑term assistance that are not comprehended by the notions of “disability” or “prolonged illness” ‑ depression not falling within any medical or clinical definition of that term, imprisonment, financial ruin and drug addiction. The Court continued:
“In our opinion the word ‘serious’ is simply intended to reinforce the nature of the assistance that is central to the definition, namely assistance which is substantial and continuing in relation to a need for assistance which is permanent or long‑term. That is, the circumstance is sufficiently serious that, in relation to a citizen, it would require assistance of the same sort that would be required if the citizen was suffering from a disability or prolonged illness. In our opinion, if a citizen or a member of the citizen’s family unit is in circumstances which create a need for substantial and continuing assistance of the citizen and the circumstances do not arise because of the death of a member of the family unit or the disability or prolonged illness of either the citizen or the member of the family unit then those circumstances are intended to be comprehended by the expression ‘other serious circumstances’.”
In order to be a “special need relative” it had to be shown, amongst other things, (1) that the daughter has a permanent or long‑term need for assistance, and (2) that that need for assistance was because of “other serious circumstances” affecting her. It was open to the Tribunal to conclude as it did that the applicant was not a special need relative. The case as put to the Department and the Tribunal was always that the parents needed assistance, not that the daughter did. See the daughter’s letter accompanying the visa application (par 3 above), her letter of 15 September 1998 (par 4 above), the application for review of the delegate’s decision (par 5 above) and the record of proceedings before the Tribunal (par 8 above). The material before the Tribunal supported the case that the parents needed assistance. It did not support a case that the daughter did.
Other grounds in family (residence) class
The other subclasses of the Family (Residence) class (ie other than subclass 806) were considered by the Tribunal, though again, understandably, it dealt with them briefly and in a general way. I say “understandably” because it was not submitted, and it could not properly have been submitted, that the parents came within any of them. Even if the Tribunal had failed to consider the other subclasses, and its decision was reviewable on that ground, I would not have quashed its decision and remitted the matter for further consideration. It would have been futile to have done so, for the Tribunal could not, on the material before it, conceivably have concluded that the parents fell within the “child”, “aged parent”, “prospective marriage spouse” or “close ties” subclasses. Counsel for the applicant did not dispute this, though he maintained his contention that the Tribunal had not considered the other Family (Residence) subclasses.
CONCLUSION
The Tribunal did not fail to consider each category in subclass 806.213. On the material before it, it was open to the Tribunal to conclude that the applicant did not fall within any of them, in particular the “special need relative” category. The Tribunal did not fail to consider the other Family (Residence) subclasses. On the material before it, it was open to the Tribunal to conclude that the applicant did not fall within any of them. Indeed it was not suggested that it could have come to any other conclusion. The application must be dismissed with costs.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate:
Dated: 20 July 2001
Counsel for the Applicants: T Hurley Solicitors for the Applicants: Armstrong Ross Counsel for the Respondent: C Fairfield Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 18 July 2001 Date of Judgment: 20 July 2001
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