Fusi v MIAC
[2012] FMCA 1037
•15 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FUSI v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1037 |
| MIGRATION – Review of decision of the Migration Review Tribunal – whether the Tribunal asked itself the wrong question – whether the Tribunal took into account an irrelevant consideration – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.65, 359AA, 359A, 476 Migration Regulations 1994 (Cth), regs.1.03, 1.05A, Sch.1, Sch.2 Federal Magistrate Court Rules 2001 (Cth), r.44.12 |
| SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 |
| Applicant: | SAMIUELA FUSI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1044 of 2012 |
| Judgment of: | Nicholls FM |
| Hearing date: | 6 November 2012 |
| Date of Last Submission: | 6 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 15 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Hall |
| Solicitors for the Applicant: | McArdle Legal |
| Appearing for the Respondents: | Mr A Markus |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 14 May 2012, and amended on 6 November 2012, is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1044 of 2012
| SAMIUELA FUSI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 14 May 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), and amended on 6 November 2012, seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 10 April 2012, to affirm the decision of the delegate of the respondent Minister to refuse the grant of a Child (Migrant) (Class AH) visa (“the visa”) to Mr Samiuela Fusi’s daughter.
Background
Mr Fusi is the applicant to this Court [referred to by the Tribunal, and in the application to the Court, as “the review applicant”, hereafter, “the applicant”]. On 19 February 1996, his daughter, Ms Pelalina Fusi, applied for the visa. At that time Ms Fusi was under the age of 18 years.
Relevant Legislation
The criteria for the relevant visa are set out in Pt.101 of Sch.1 of the Migration Regulations 1994 (Cth) (“the Regulations”). The “primary criteria” require that, at the time of application, the visa applicant was a “dependent child”.
The phrase “dependent child” was defined in reg.1.03 of the Regulations and, at the relevant time, meant:
“… the natural or adopted child of a person (other than a child who is a spouse or engaged to be married), being a child:
(a) who:
(i) has not turned 18; and
(ii) who is wholly or substantially in the daily care and control of that person; or
(b) who:
(i) had turned 18; and
(ii) is dependent on that person; or
(c) who is wholly or substantially incapacitated for work because of a disability of a kind referred to in paragraphs (a) to (g) of the definition of “disability” in subsection 4(1) of the Disability Discrimination Act.”
[Emphasis added.]
Further, “dependent” was defined, at the relevant time, as “… wholly or substantially dependent on another person for financial, psychological or physical support” (reg.1.03 of the Regulations).
The Delegate
On 12 March 1998, the delegate decided to refuse the grant of the visa. The applicant was relevantly notified of the delegate’s decision by letter dated 23 February 2011 (Court Book – “CB” – CB 9 and Supplementary Court Book – “SCB” – [2] at SCB 2).
The Tribunal
On 1 March 2011, the applicant applied to the Tribunal for review of the delegate’s decision (CB 1 to CB 8).
On 17 January 2012, the applicant appeared at a hearing before the Tribunal and provided evidence in support of Ms Fusi’s application for the visa ([9] at SCB 3). The applicant stated that he needed “… his daughter to look after him” ([12] at SCB 3).
At that time, the Tribunal alerted the applicant to the fact that it needed to be satisfied that “… his daughter is dependent on him, not that he is dependent on his daughter” ([13] at SCB 3). The Tribunal “suggested” that the applicant may wish to receive legal advice and adjourned the hearing to provide him with an opportunity to do so ([14] at SCB 3).
On 20 February 2012, the hearing resumed where both the applicant and Ms Fusi were present and gave oral evidence on that occasion ([14] at SCB 3). The Tribunal alerted the applicant and Ms Fusi to the fact that it was concerned that Ms Fusi was dependent on her immediate family as a whole, as opposed to her father ([22] at SCB 5).
The Department’s file was not available to the Tribunal, nor were any documents or materials in relation to the application ([8] at SCB 2). While the Tribunal had the delegate’s decision before it, given the “… paucity of the materials and the incomprehensible nature of the primary decision record”, the Tribunal could not determine the content of the primary application. Nor the reasons for the delegate’s refusal ([8] at SCB 3). That was made known to the applicant at the hearing ([10] at SCB 3).
Ms Fusi provided several documents to the Tribunal, both before, after, and at the second occasion of the hearing. That included a medical report for the applicant, evidence of the applicant’s wife’s death, submissions by the applicant’s representatives and various statements in support of the application ([14] – [15] at SCB 3 and [25] at SCB 5).
On 11 April 2012, the Tribunal decided to affirm the decision of the delegate. The Tribunal accepted that Ms Fusi was unemployed in both Australia and Tonga, and she was reliant upon her family, including her father, for income ([3] at SCB 6). However, the Tribunal was not satisfied that the applicant was “wholly or substantially financially dependant” on her father, as opposed to other family members ([3] at SCB 6). Further, while it accepted that the applicant and Ms Fusi had a close, supportive relationship, the Tribunal was of the view that that was not, of itself, sufficient to demonstrate “dependence”, as required, at the relevant time, under reg.1.03 of the Regulations.
While the Tribunal acknowledged that evidence had been provided to suggest that Ms Fusi provided “care and support” to her younger siblings and her father in Australia, it was afforded no discretion to grant the visa where Ms Fusi had failed to meet the relevant criteria ([37] – [38] at SCB 7).
The Application to the Court
The original application to the Court contained the following three grounds:
“1. The Tribunal breached Section 353 of the Migration Act 1958 as follows:
A. The Tribunal palpably misused its advantage and arrived at conclusions which were inconsistent with the facts incontrovertibly established by the evidence (Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR at 57)
Particulars
i. Failure to adhere ‘fair’, ‘just’ [subsection 353(1)] and to act according to ‘substantial justice’ and ‘merits of the case’ [subsection 353(2)(b)].
a. Disregard of evidence as to, and finding inconsistent with, the evidence provided to the Tribunal including the record of rent payments made by the review applicant, the record of the review applicant being the lease holder of the property, the contents of the review applicant’s statutory declaration, the bank statements of the visa applicant and the contents of the statements of family members, all procured at the direction of the Tribunal.
b. Findings inconsistent with un-contradicted evidence of the review applicant, visa applicant and family members.
c. The Tribunal made no adverse finding as to the credibility based on the demeanour of the review applicant, not any inconsistency of evidence, but simply declared that the Tribunal is ‘not satisfied’.
d. The Tribunal required the review applicant to provide evidence of the visa applicant’s dependency on the review applicant with regards financial, physical or psychological support. The Tribunal however would not reveal to the review applicant the information she considered relevant to satisfy her as to the visa applicant’s dependency with regards financial, physical and psychological dependent. At hearing on 17 January 2012, the Tribunal Member responded to a question asking her to explain what she meant by psychological and physical dependence as follows:
The psychological dependence and physical dependence, I can’t really explain the laws of these which is why I am hoping you will see the Immigration people and they will give you some advice…
… I need to satisfy the… when I make my decisions, so if you can show me that you were dependent before you came to Australia … years ago… It is quite complicated and I can’t give you any more advice and as I said you should try to get some immigration advice …
[Note: the above [un-italicised] paragraphs are transcribed from the recoding of the hearing of 17 January 2012. The marks ‘...’ indicate words which the person transcribing the recording for the preparation of this document only had difficulty discerning the words said in those sections of the recording.]
e. The review applicant provided evidence to the Tribunal of the visa applicant’s dependency upon him including: details of the review applicant’s income, the payment of rent for a property leased in the review applicant’s name, the review applicant’s bank statement and the visa applicant’s bank statement (detailing no regular income and minimal transactions) an a detailed statements sworn by the review applicant and statements from the review applicant’s two independent children.
f. At paragraph 33 of the decision record (MRT case number 1101891), the Tribunal states:
The Tribunal accepts that the visa applicant… was, and continues to be, reliant on the income she receives from the review applicant (her father)… she resides in her father’s household and has no income other than that provided by her father …
g. The Tribunal held that the fact the review applicant received income from his two other independent children, discredited the visa applicant’s dependency on the review applicant.
B. The Tribunal is not bound by ‘rules of evidence’ but imposed on the Applicant burden of evidence that were greater, not lesser, than those that would pertain if the rules of evidence applied.
Particulars
i. Transcript
ii. Decision
b. The Tribunal required the applicant to prove the truth of his and her sworn evidence, and disregarded evidence on oath as being of value.
Particulars
i. Transcript
ii. Decision
See Sutharsan Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) FCR:
Were we satisfied that the RRT had reached its decision in this case by adopting a procedure which placed on the applicant an onus of establishing that he was truthful, or even a procedure based on the assumption that the purpose of the hearing before it was to discover whether the applicant was a truthful person, we would be satisfied that the procedures adopted by the RRT contravened s.420 of the Act.
2. The Tribunal breached s.359A of the Migration Act 1958 as follows:
A. The Tribunal did not write to the review applicant or his representatives, nor otherwise give clear particulars of any information that the Tribunal considered would be the reason for, or part of a reason, for affirming the decision under review.
Particulars
i. Absence of correspondence to that effect,.
B. The Tribunal did no ensure that the review applicant understood why particular information was relevant to the review and consequences of it being relied on in affirming the decision under review.
Particulars
i. Absence of correspondence to that effect.
C. The Tribunal did not invite the review applicant to comment on or respond to the what the Tribunal considered reasons, or part of the reason, for affirming the decision under review.
Particulars
i. Absence of correspondence to that effect.
3. The Tribunal breached Section 359AA of the Migration Act 1958 as follows:
A. The Tribunal did not inform the applicant, neither orally nor otherwise give clear particulars of any information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review.
Particulars
i. Absence of verbal statement to that effect.
A. The Tribunal did not ensure that the review applicant understood why particular information was relevant to the review and consequences of it being relied on in affirming the decision under review.
Particulars
i. Absence of verbal statement to that effect.
B. The Tribunal did not invite the review applicant to comment on or respond to the what the Tribunal considered reasons, or part of the reason, for affirming the decision under review.
Particulars
i. Absence of verbal statement to that effect.”
[Errors in the original.]
The application included a “Lawyer’s Certification”. On 14 May 2012, “Chris McArdle” had certified “… that there are reasonable grounds for believing that this migration litigation has a reasonable prospect of success”.
Before the Court
On 30 May 2012, the matter first came before the Court for directions. On that occasion, when the matter was first mentioned, Ms D Lum appeared for the applicant and Mr D Nguyen appeared for the first respondent. Ms M Ford, a migration agent apparently connected to McArdle Legal, was granted leave to sit at the bar table for the purpose, it was said, of assisting the applicant’s legal representative.
At that time, I raised my concerns with the grounds as pleaded in the application. I asked for further explanation of the grounds. In particular grounds two and three of the application, as pleaded, had obvious deficiencies. Noting also that, at least, the reference to the rules of evidence in ground one also needed particular explanation. The applicant’s representative, even with the assistance of Ms Ford, was not able to assist the Court.
I was advised by Ms Lum that she did not have carriage of the matter and that Mr McArdle, who was familiar with the matter and the application to the Court, was appearing in another matter at another Court. As such, I adjourned the matter to 1.30pm that afternoon to allow Mr McArdle to appear.
When the matter resumed Mr McArdle appeared for the applicant. Mr D Nguyen appeared for the first respondent. I put to Mr McArdle my concerns with the grounds of the applications as pleaded and sought further explanation. No satisfactory explanation was provided. Nonetheless, to enable the applicant to properly present his grounds, pursuant to r.44.12 of the Federal Magistrate Court Rules 2001 (Cth) the matter was set down for a show cause hearing.
At the show cause hearing, on 18 June 2012, Mr M Hall of counsel appeared for the applicant. Ms L Buchanan appeared for the first respondent.
Despite what was pleaded in the application to the Court, Mr Hall alleged that there were three errors in the Tribunal’s decision. Namely:
1)That the Tribunal, with reference to reg.1.05A of the Regulations, imposed an additional requirement on the grant of the visa. That was said to be that the person supporting the dependent individual (in this case, the applicant) derived the resources used for that purpose from their own resources or wealth, as oppose to from third persons or other family members (in this case).
2)That the Tribunal, with reference to reg.1.05A(1)(a)(ii), failed to go beyond the conclusion that because Ms Fusi was supported by more than one individual she was not primarily supported by the applicant (her father). It was the applicant’s submission that the definition in reg.1.05A(1)(a)(ii) is satisfied provided that Ms Fusi’s reliance on the applicant was greatest. However, the Tribunal, in the applicant’s submissions, wrongly approached the question by considering whether Ms Fusi was dependent on her family as a unit, as oppose to the applicant. It was the applicant’s submission that if the Tribunal was to approach the issue from that (albeit, in the applicant’s view, wrong) perspective, then the Tribunal was obliged to go on and consider the operation of reg.1.05A(1)(a) of the Regulations.
3)Finally, that the Tribunal breached s.359AA of the Act in that it failed to put to the applicant information that was adverse to the applicant and would be a reason for affirming the decision under review. That information was said to be information as to the sources of income of the applicant’s family unit. The applicant submitted that s.359AA of the Act, unlike s.359A of the Act, did not contain an exclusion for information that was provided by the applicant for the purpose of the review. [I raised with the applicant the authority SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 (“SZMCD”) and, after a short adjournment to allow counsel to read the relevant portions of that document, the applicant did not persist in asserting that s.395AA of the Act operates separately from s.359A of the Act.]
When I raised with Mr Hall that the complaints he had raised in his submissions before the Court had not been pleaded, at least clearly or in the manner submitted, in the application to the Court, he indicated that, if leave were granted, it was the applicant’s intention to file an amended application.
In light of that, I put to the respondent that there were two options. First, that the Court proceed with the show cause hearing and determine the application. Or, in the alternate, that the applicant be granted leave to file an amended application and that the matter be set down for final hearing.
The first respondent consented to the latter course of action and, as such, orders were made setting the matter down for final hearing on 6 November 2012. A timetable for the filing of an amended application, evidence by way of affidavit, and written submissions was set. The first respondent sought costs for the show cause hearing and the applicant indicated that he could not object to costs thrown away. Ultimately, the issue of costs was reserved to be determined at the conclusion of the matter.
Subsequent to the making of those orders, the parties contacted my Chambers and sought, by consent, that Orders 3, 4 and 5 of the orders made on 18 June 2012, be amended. That is, that the time in which the applicant had to file and serve an amended application, and any evidence by way of affidavit, be extended to 27 August 2012. Further, that the first respondent have until 24 September 2012 to file and serve any evidence by way of affidavit. Consent orders were made on 7 August 2012 to that effect.
Despite those consent orders, no amended application or further affidavit evidence was filed by the applicant prior to the hearing on 6 November 2012. Further, the applicant failed to provide written submissions, despite orders made on 18 June 2012 requiring that they be filed and served 14 days before the hearing date.
In light of that, the respondents’ written submissions filed on 30 October 2012, in accordance with the set timetable, addressed the grounds of the applicant’s original application to the Court.
When the matter was called Mr M Hall of counsel appeared for the applicant. He sought leave for Ms M Ford to sit at the bar table to assist (which was granted). Mr A Markus appeared for the first respondent.
Mr Hall advised that the applicant sought to rely on an amended application. He also submitted that, while initially he had contemplated seeking an adjournment, the Minister’s agreement to the pressing of such an application meant the case could proceed on that basis.
Nothing in what follows should be taken as any form of criticism of Mr Hall. That is reserved for the applicant’s solicitors. It has now become (unfortunately) common practice in migration matters for legal representatives of applicants to seek to file material near the date of hearing in the face of orders normally made some months in advance setting out a timetable for that purpose.
What occurred in this case however, stands at the extreme end of this practice. Orders were made on 18 June 2012 providing for the filing of an amended application by 26 July 2012. The background to this is important in light of what is set out immediately above. It was clear as at 18 June 2012, and it would have been clear to the applicant’s legal representatives, given submissions by their own counsel on that day that an amended application was necessary.
Before me, on 6 November 2010, Mr Hall submitted that there had been some misapprehension by the applicant’s solicitors as to the need for an amended application to be filed. I reject this. The events of what relevantly occurred on 18 June 2012 were clear. If the applicant’s solicitors were under some misapprehension about their own counsel’s submissions that, in effect, the grounds of the original application, even at best for them, needed some reformulation, then this can only reflect on them.
But what in addition stands against Mr Hall’s submission is that, on 7 August 2012, the Court was approached by both parties to make consent orders which, amongst other matters, extended the time by which the applicant could file his amended application to 27 August 2012.
In all the circumstances I was not initially minded to grant leave for the filing of the amended application. The solicitors conduct, the disdain of the Court’s orders, is, in my view, a factor to be weighed in this equation. However, I was persuaded by submissions from Mr Markus that, in the interests of the administration of justice, the applicant’s, and Ms Fusi’s, situation should be paramount and given precedence over the failings of the applicant’s solicitors.
The Amended Application
Leave was granted for the amended application to be filed and served in Court. The amended application is in the following terms:
“1. The Tribunal failed to apply the criteria set out in Regulation 1.03 and asked itself the wrong question. The Tribunal erroneously introduced into the criterion that the visa applicant be ‘wholly or substantially dependant on another person for financial… support’ the additional requirement that that other person provide the financial support without himself having recourse to others. In so doing the Tribunal made an error of law and exceeded the authority or powers given to it by the Act.
Particulars
i. Decision record at [19], [20], [22], and particularly at [33].
ii. The Tribunal wrongly asked itself whether the review applicant (the visa applicant’s father) provided support solely from his own resources, or relied on help from his other children.
iii. The Applicant repeats particular (f) and (g) from ground 1 of the original application.”
The Submissions
The applicant’s argument was simply, and elegantly, put by Mr Hall. It is as follows. The question that the Tribunal was required to answer was whether Ms Fusi was, at the time of the Tribunal’s decision, “wholly or substantially dependent” on the applicant for, relevantly, financial support.
The applicant says that the Tribunal did not answer that question. Rather, it sought to answer, and therefore posed as the relevant question, the sources of the applicant’s income and how he met his various financial obligations. That inquiry was said to have diverted the Tribunal from focussing on the relationship of dependence between Ms Fusi and the applicant. Wherever the applicant was said to derive his income, or otherwise meet his various financial obligations, was said to be outside the scope of the relevant, and “correct”, question to be asked, and answered, by the Tribunal.
I should note that, in his response the Minister sought to understand the complaint in terms, also, of an allegation that the Tribunal took into account irrelevant considerations. That is, that by making inquiry into the sources, composition and disposition of the applicant’s finances, the Tribunal strayed from matters relevant to its task and took into account irrelevant considerations. That was described by the Minister as the “either side of the same coin”.
That may well be. In one sense it does not matter how the complaint is characterised given that asking the wrong question or relying on irrelevant material, if made out, equally are understood as jurisdictional error invalidating a Tribunal decision (Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ).
However, in another sense, it is important to focus on the complaint as put by the applicant to the Court and on how the argument was developed before the Court.
In this regard, the applicant’s substantive argument derives from the Tribunal’s decision record at [35] (at SCB 7) and as understood in light of [33] (at SCB 6):
“33. … The Tribunal accepts that the visa applicant was unemployed in Tonga and in Australia and that she was, and continues to be, reliant on the income she receives from the review applicant… The Tribunal accepts all of that evidence. However, the review applicant’s evidence to the Tribunal is that his income is approximately $1,000 a fortnight due to his disability and that the family meets its expenses through contributions from various members of the family. For example, he stated that the family rent is paid through Centrelink payments made to his children while his income is used for other expenses. The review applicant also stated that his elder children provide financial support to the family. In these circumstances the Tribunal is not satisfied that the visa applicant is wholly or substantially dependent on her father for financial support, because the Tribunal is not satisfied that it is her father, rather than other family members (or a combination of family resources), that is the source of the visa applicant’s financial support.
…
35. … The Tribunal accepts that the visa applicant resides with her father in the same household and that the review applicant provides her with home and is responsible for the payment of rent and utility bills, the Tribunal does not consider that to be sufficient to establish dependence.”
In short, the argument is that the Tribunal accepted that Ms Fusi resided in the same household as the applicant, that he provided her with a home and that he was responsible for the payment of rent and various utility bills. Further, that acceptance was in the context of also accepting relevant evidence as to the living circumstances of the household, including the family’s income and expenses (see variously at [25] – [26] at SCB 5, and CB 128 and following).
The applicant emphasises that the Tribunal accepted that Ms Fusi was unemployed in Tonga and that she was, and continued to be, reliant on the income she received from the applicant. Further, that she resided in his household and had no income of her own.
The submission is that this should have been sufficient for the Tribunal to have answered the question of whether she was “wholly or substantially financially dependent” on the applicant. The Tribunal should have been satisfied at that point. Instead the Tribunal went on to, erroneously, inquire into the source of the applicant’s funds.
Consideration
It must be said that it is at this very point that the flaws emerge in the applicant’s charge of jurisdictional error against the Tribunal. The Tribunal is statutorily required to reach a requisite level of satisfaction that the criteria relevant to the visa applied for have been met (ss.65 of the Act see also SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22). Here the criteria are relevantly to be found at Pt.101, subcl.101 – Child – of Sch.2 to the Regulations, as that was in force at the time of the application for the visa on 19 February 1996.
In short, and relevantly, the “primary criteria”, at the time of application, required Ms Fusi to be a “dependent child” as that term was defined at that time in reg.1.03 of the Regulations and, relevantly, to be the “dependent child” of the applicant.
The relevant criteria to be satisfied at the “time of decision” required Ms Fusi to continue to meet that definition (other than for her age as she was under 18 years of age at the time of application) (cl.101.221(1) to Sch.2 of the Regulations).
The applicant’s argument is that the Tribunal should have been satisfied that the applicant met the relevant criteria, in effect the definition of “dependent child” on the evidence canvassed, and as referred to above.
It may be that, if the Court were to make findings of fact and to evaluate the evidence before the Tribunal in imitation of the exercise of its jurisdiction and function, the Court may have come to the conclusion pressed by the applicant now at that point of the presentation of the evidence (as referred to at [45] above). However, the trite point here is that, it is not the Court’s view of the evidence before the Tribunal that is relevant. It is for the Tribunal to reach the requisite level of satisfaction on what was put before it. That the Tribunal could not be satisfied in the way pressed by the applicant now is, on its own, a matter for the Tribunal.
The view of the evidence may not be the Court’s view, but such factual findings which inform the Tribunal’s level of satisfaction are for the Tribunal, and not for the Court. A submission to the contrary simply invites impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)). This is so even if it is presented as an allegation of asking the wrong question, or for that matter characterised as taking into account irrelevant considerations.
The applicant sought to illustrate his position by reference to two hypothetical situations. First, the Court was asked to assume that the applicant was employed, his income was derived from his employer, and his income was used to provide for the needs of his household, including Ms Fusi. In these circumstances it was put that there would be no inquiry, or thought, that the employer, and not the applicant provided financial support to Ms Fusi.
Second, the hypothetical situation was to suppose that the applicant had lodgers in his residence and derived income from them. Again, there would be no question of any inquiry as to whether the lodgers, and not the applicant, provided financial support to Ms Fusi.
The analogy here was directly drawn to the circumstances that the applicant was obliged to meet rent and utility commitments as the relevant tenancy agreement, and utility provision agreements, were all in his name. Any financial contribution from his children should be seen as a requirement on them to “pay their keep”. (Hence the analogy with lodgers.)
There are a number of difficulties with this submission. First, as with any instance where hypothetical situations are put forward in matters of this type, they risk obscuring the actual factual situation before, and as found by, the administrative decision-maker, in this case, the Tribunal.
What must be remembered in these types of proceedings, unlike litigation generally, is that the nature of these proceedings is the judicial review of an administrative decision. The proscriptions and limitations on the Court to make findings of fact as to the merits of the claims for the visa before the Tribunal are well established and clear (Wu Shan Liang).
Second, the Tribunal was required to answer the question posed by the relevant regulatory, and statutory, regime. Namely, whether Ms Fusi was “wholly or substantially” (relevantly, in this case, financially) dependent on the applicant.
Any plain reading of the Tribunal’s decision record reveals it well understood the relevant test. The Tribunal was clear in putting this to the applicant at the hearing. For example see at [19] (at SCB 4):
“The Tribunal again noted that it would need to be satisfied that his daughter was dependent on him and that may include financial, psychological or physical support…”
That was consistent with the Tribunal’s reference to the applicable version of the relevant regulations (see at [6] – [7] (at SCB 2) of the Tribunal’s decision record) and the approach taken, consistently, at the hearing:
1)At [12] – “The Tribunal questioned the review applicant about his daughter’s circumstances and her dependence…”
2)At [13] – “… The Tribunal asked him how he is supporting his daughter…”
3)At [13] – “… needs to satisfy the Tribunal that his daughter is dependent on him…”
4)At [16] – “The Tribunal again explained to the applicant the definition of dependence and invited him to explain why his daughter was dependent on him…”
5)At [20] – “… The Tribunal again pointed out that it would need to be satisfied that his daughter was wholly or substantially dependent on him while she appears to be dependent on other family members…”
6)At [22] – “The Tribunal informed the review applicant that it was not satisfied on the material before it that his daughter was dependent on him financially and he may wish to provide further financial records to show his daughter’s dependence. The Tribunal noted that its concern with respect to financial dependence, was that because there were five family members contributing to the family budget, it may not be satisfied that his daughter depends on him rather than the family as a whole.”
[Emphasis added.]
Third, in determining the question of dependence it was plainly open to the Tribunal to explore how Ms Fusi received financial support. That is integral to the question of her dependence. The relevant regulation makes it clear that her dependence had to be “on another person”. In the circumstances of this case, that person was presented as her father.
The Tribunal properly explored her own financial situation. There is no dispute as to the “correctness” of this approach. Implicit, if not explicit, in the concept of her being “wholly or substantially dependent” on the applicant was whether she was dependent, financially, on others. What the applicant now seeks to present as an inquiry into the sources of the applicant’s income is, in context, and as was made plain by the Tribunal at each of the parts of its record referred to above, an inquiry into how Ms Fusi’s financial needs were met and to the extent that they were met by the applicant. There was no dispute that Ms Fusi was not in a position to financially support herself.
In this context it was entirely appropriate, in answer to the question posed by the Regulations, for the Tribunal to explore any other sources of income on which Ms Fusi may have been dependent. The Tribunal found that she was not “wholly or substantially financially dependent” on her father because she was also dependent on other sources of income from other members of the household who contributed financially. That the applicant may have had responsibility as the leaseholder, or the person in whose name the utilities were provided, does not alter the situation that other members of the family contributed financially to the household expenses and, therefore, to Ms Fusi financial circumstances.
That the applicant contributed a certain amount to the financial affairs of the household, and that other family members contributed other amounts, and the details of these various contributions as set out at [33] (at SCB 6) of the Tribunal’s decision record, are all findings of fact which were focussed on the relevant question posed by the Regulations. They represent findings open to the Tribunal on what was before it.
Hypothetical situations, at variance with the facts presented and as ultimately found by the Tribunal, do nothing to reveal that the Tribunal posed the wrong question, or even, that it took into account irrelevant considerations.
The applicant’s approach before the Court of focussing on parts of the Tribunal’s analysis to say it asked, and answered, the wrong question, ignores the context in which that analysis took place, the relevant test in the Regulations, and the evidence presented by the applicant himself and Ms Fusi.
In their submissions to the Tribunal the applicant’s representatives (McArdle Legal), who continue to represent the applicant before the Court, said (at CB 121.9 – CB 122.1):
“… The evidence demonstrates that the household provide (sic) by the review applicant is not entirely financially supported by him. Other family living at their address and who have an income contribute financially to the overall costs of running that household. That does not diminish that the fact that the visa applicant is ‘wholly’ and ‘substantially’ dependent whole upon her father for her financial, psychological and physical wellbeing…”
That the Tribunal accepted the first part, but found contrary to the second, was an exercise of fact finding and conclusion, entirely within jurisdiction. Before the Court the applicant’s representatives are seeking to maintain that position, albeit presented to the Court as some allegation revelatory of jurisdictional error on the part of the Tribunal. Before the Court the applicant really seeks to challenge the Tribunal’s conclusion. That is, classically, an entreaty to merits review (Wu Shan Liang). The challenge, therefore, has not made out the sole ground of the amended application.
Conclusion
It is appropriate, in these circumstances, that the application, as amended, be dismissed. I will make an order accordingly.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 15 November 2012
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