Jajo v MIBP
[2013] FCCA 1554
•4 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JAJO v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2013] FCCA 1554 |
| Catchwords: MIGRATION – Review of a decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision was affected by jurisdictional error – whether Migration Review Tribunal properly construed reg.1.15AA(1)(e)(i) of the Migration Regulations 1994 (Cth) – whether s.23 of the Acts Interpretation Act 1901 (Cth) was displaced by a proper construction of reg.1.15AA of the Migration Regulations 1994 (Cth) – whether Migration Review Tribunal was correct to find that reference to “a relative” in reg.1.15AA(1)(e)(i) of the Migration Regulations 1994 (Cth) included more than one relative – whether decision affected by jurisdictional error – no jurisdictional error – application dismissed. |
| Legislation: Legislative Instrument Act 2003 s.13 |
| Cases cited: Lin v The Minister for Immigration Multicultural & Indigenous Affairs [2004] FCA 606. Naidu vThe Minister for Immigration Multicultural & Indigenous Affairs [2004] FCA 1692. |
| Applicant: | KURJEA JAJO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2941 of 2012 |
| Judgment of: | Judge Emmett |
| Hearing date: | 11 September 2013 |
| Date of Last Submission: | 11 September 2013 |
| Delivered at: | Sydney |
| Delivered on: | 4 October 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Ray Turner Turner Coulson Immigration Lawyers |
| Counsel for the Respondents: | Mr Martin Smith |
| Solicitors for the Respondents: | Ms Arunima Lal Sparke Helmore |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2941 of 2012
| KURJEA JAJO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 7 November 2012 and handed down on 8 November 2012 (“the MRT”).
The applicant is the Australian citizen sponsor of her son and his dependent sister (“the Review Applicant”), in their application to migrate from Syria to Australia under Other Family (Migrant) (Class BO) visas, subclass 116. The Review Applicant’s son and dependent sister are the Visa Applicants (“the Visa Applicants”).
The issues in this case are whether MRT properly construed reg.1.15AA(1)(e)(i) of the Migration Regulations 1994 (Cth), whether s.23 of the Acts Interpretation Act 1901 (Cth) was displaced by a proper construction of reg.1.15AA, whether the MRT was correct to find that reference to “a relative” in reg.1.15AA(1)(e)(i) of the Migration Regulations 1994 (Cth) includes more than one relative, such that relatives collectively can provided relevant assistance to the Review Applicant. These issues are considered below in the context of considering whether the MRT’s decision was affected by jurisdictional error.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a visa and the decision of the delegate of the first respondent (“the Delegate”), and a summary of the MRT’s review and decision.
Background
The Review Applicant is an elderly female Australian citizen, who was born in 1942 in Iraq. She emigrated from Iraq to Australia in 2003 and became an Australian citizen on 3 March 2006. The Review Applicant suffers from a range of health problems, including heart disease, asthma, back pain, and early dementia.
The Review Applicant is married to Mr Dawood Koreaeel, with whom she has eight children, five of whom reside in Australia, one resides in France, and two – the Visa Applicants – reside in Syria.
The two children who presently reside in and are citizens of Syria, are Mr Faez Koreaal (“the Son”) and his sister, who claims to be a dependant of the Son. The Son is the main visa applicant and his sister’s application is dependent on that of the Son.
On 31 March 2010, the Son applied to the (then) Department of Immigration and Citizenship for an Other Family (Migrant) (Class BO) visa on the basis that the Son would be the Review Applicant’s carer.
On 28 November 2011, the Delegate refused the Visa Applicants’ applications for visas.
On 21 December 2011, the Review Applicant lodged an application for review of the Delegate’s decision by the MRT.
On 7 November 2012, the MRT affirmed the decision of the Delegate not to grant the visas.
On 12 December 2012, the Review Applicant filed an application in this Court seeking judicial review of the MRT’s decision.
Legislative framework
At the time the visa applications were lodged, the Other Family (Migrant) Class BO visa contained, relevantly, subclass 116 (Carer). The Carer visa permits an Australian citizen, who has a medical condition that requires direct assistance in attending to practical aspects of daily life, to sponsor a relative to provide the care needed.
The primary criteria to be satisfied at the time of application are that the visa applicant must be a “carer of an Australian relative of the visa applicant” (see cl.116.211(1) of the Migration Regulations 1994 (Cth) (“the Regulations”)); and the visa applicant must be sponsored at the time of application by the Australian relative (see cl.116.212 of the Regulations).
It is common ground that the Review Applicant is an “Australian relative” of the Son as defined in reg.1.03 of the Migration Regulations.
“Carer” is defined in reg.1.15AA of the Regulations as follows:
“(1) An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident ) if:
(a) the applicant is a relative of the resident; and
(b) according to a certificate that meets the requirements of subregulation (2):
(i) a person (being the resident or a member of the family unit of the resident) has a medical condition; and
(ii) the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and
(iii) the impairment has, under the Impairment Tables, the rating that is specified in the certificate; and
(iv) because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and
(ba) the person mentioned in subparagraph (b) (i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(c) the rating mentioned in subparagraph (b) (iii) is equal to, or exceeds, the impairment rating specified by Gazette Notice for this paragraph; and
(d) if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b) (iv); and
(e) the assistance cannot reasonably be:
(i) provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or
(ii) obtained from welfare, hospital, nursing or community services in Australia; and
(f) the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b) (iv) or paragraph (d), as the case requires.” (Emphasis added)
The Son’s application for a Carer’s visa
In support of his application for a Other Family (Migrant) (Class BO) visa, the Son provided the following documentation:
a)A Health Services Australia Statement of Care, dated 27 January 2010, which confirms the Review Applicant has a medical condition which causes her physical impairment and that she requires continuing direct assistance in attending to practical aspects of daily life.
b)Statutory declarations, made by the five children of the Review Applicant who reside in Australia and the Review Applicant’s husband, state that they are all unable to provide appropriate care to the Review Applicant.
c)A statement prepared by one of the Review Applicant’s sons, state that he has been unable to locate a community service provider who can provide appropriate care to the Review Applicant.
The Delegate’s decision
On 29 November 2011, the Delegate refused the Visa Applicants’ applications on the basis that the Son has not satisfactorily demonstrated that he is a carer for the Review Applicant.
Relevantly, the Delegate noted that a child of the Review Applicant who presently resides with her, Mr Fady Koreel, had been receiving carer payments and a carer allowance in respect of the Review Applicant since 23 October 2009. The Delegate noted:
“Fady continues to be in receipt of benefits to care for [the Review Applicant], his mother. From statements on file and obtained from the applicant, it appears likely that Fady is the primary care giver for his mother and has been so for some time. Whilst he has made indication that this is likely to change, the situation has not changed and there is no strong evidence on file [to] indicate it will change outside Fady’s own statements made in February 2010 and August 2011… I also accept that [the Review Applicant’s] spouse is an elderly man however in conjunction with his two sons residing along with him and his wife there is no evidence to support that he is not capable of providing residual support and other physical and emotional support to be expected of a spouse in these circumstances.”
The MRT’s review and decision
On 21 December 2011, the Review Applicant lodged an application for review of the Delegate’s decision by the MRT.
On 11 July 2012, the Review Applicant’s migration agent provided further documents in support of the review application.
On 6 September 2012, the MRT wrote to the Review Applicant informing her that the MRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Review Applicant to attend a hearing on 23 October 2012 to give oral evidence and present arguments.
On 11 October 2012, the Review Applicant’s migration agent provided submissions to the MRT in support of the review application.
On 23 October 2012, the Review Applicant attended the MRT hearing and gave evidence. The MRT was unable to contact the Visa Applicants.
On 2 November 2012, the Review Applicant’s migration agent provided the MRT further written submissions in support of the application for review by the MRT.
The MRT noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The primary issue before the MRT was determining whether the Visa Applicants met the requirements of reg.1.15AA(1)(e) of the Regulations, namely whether the assistance to the Review Applicant could not reasonably be provided by an Australian relative of the Review Applicant or reasonably obtained from welfare or community services or similar.
The MRT noted that the Review Applicant has numerous relatives, including her husband and five adult children, all of whom are Australian citizens. The MRT accepted that a family conflict had resulted in one of the Review Applicant’s children ceasing contact with the family. However, the MRT found that this still left four other adult relatives who either live near or with the Review Applicant who could provide the Review Applicant with assistance.
The MRT noted the medical evidence before it which indicated that the Review Applicant required constant supervision and assistance in some tasks. It further noted that the Review Applicant’s son, Fady, drew a Carer’s pension, although had aspirations of marriage and moving out of the family home. It also noted that one of the Review Applicant’s daughters lived close by and was able to render occasional assistance.
The MRT found that the Review Applicant’s family as a collective could reasonably provide assistance to the Review Applicant, even taking into account their respective commitments and health problems. The MRT accepted that, with the exception of Fady, it would be difficult for any one particular individual in the family to provide all of the Review Applicant’s needs. However, given the major part of the assistance required was supervision, the MRT did not accept that this could not be reasonably provided by the other relatives, even accounting for Fady’s aspirations.
The MRT noted the representative for the Review Applicant’s submission that a proper reading of reg.1.15AA(1)(e)(i) is that the paragraph refers to a single family member, and that assistance could not be provided collectively.
The MRT found that a collective interpretation of “a relative” in reg.1.15AA(1)(e)(i) was open to it by inference or otherwise.
In the circumstances, the MRT was not satisfied that the assistance to the Review Applicant could not reasonably be provided by her relatives in Australia. Accordingly, the MRT found that the Son did not satisfy the criterion in reg.15AA(1)(e)(i) and therefore affirmed the decision under review.
The proceeding before this Court
The Review Applicant was represented before this Court by Mr Raymond Turner, solicitor.
Mr Turner confirmed that the Review Applicant relied on the grounds contained in her application filed on 12 December 2012 as follows:
“1. The Tribunal applied the wrong test.
Particulars
a. The relevant criteria is found at the Migration Regulations r.1.15AA at (1)(e)(i)
“(e) the assistance cannot reasonably be
(i) provided by any other relative of the resident being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or
(ii) obtained from welfare, hospital, nursing or community services in Australia. ”
b. The Tribunal found, para 57
“…it is open to a decision maker to find that an application does not satisfy r.1.15AA (1)(e)(i) if there are a number of Australia relatives who can reasonably provide the assistance, as opposed to identifying one relative who can reasonably provide the assistance.”
c. The correct test is whether the assistance can reasonably be provided by a single Australian citizen relative.”
On behalf of the Review Applicant, Mr Turner contended that the MRT had applied the wrong test in considering whether reg.1.15AA(1)(e)(i) is satisfied because the MRT applied a test of whether, collectively, the Review Applicant’s family members could provide assistance. Mr Turner submitted that the criterion in reg.1.15AA(1)(e)(i) is in the singular and that relevant assistance is to be assessed in relation to a single relative only. Mr Turner referred in particular to the statement made by the MRT as follows:
“It is open for a decision maker to find that an applicant does not satisfy reg.1.15AA(1)(e)(i) if there are a number of Australian relatives as who can reasonably provide the assistance, as opposed to identifying one relative who can reasonably provide the assistance.”
Mr Turner also submitted that the cases to which the MRT referred in support of that proposition do not in fact support the MRT’s proposition. However, I understand that Mr Turner conceded that, even if the cases referred to did not support the proposition, the use by them by the MRT in support does not amount to an error going to the MRT’s jurisdiction. I accept the correctness of that concession.
The cases referred to in Mr Turner’s submissions to the MRT, Lin v The Minister for Immigration Multicultural & Indigenous Affairs [2004] FCA 606 and Naidu vThe Minister for Immigration Multicultural & Indigenous Affairs [2004] FCA 1692 predated the version of reg.1.15AA(1)(e)(i) being considered by the MRT. They were concerned with whether assistance could reasonably be “obtained” from a relative. It is common ground that it is those cases that prompted the amendments to reg.1.15AA(1)(e)(i) to require that assistance may be reasonably “provided” by a relative, rather than reasonably “obtained”. The Explanatory Statement to the amending legislation makes clear that the purpose of the amendments is to ensure that it is open to decision makers to conclude that assistance could reasonably be provided by relatives residing in Australia even in circumstances where those relatives residing in Australia claim to be unwilling or unable to provide assistance.
Mr Turner contended that a proper construction of reg.1.15AA(1)(e)(i) requires that the provision of assistance by an Australian relative of the Review Applicant be provided by a single relative only; and, that it is a jurisdictional error for the MRT to find that such assistance could be rendered by relatives collectively.
Counsel for the First Respondent , Mr Smith, submitted that assistance in the construction of reg.1.15AA(1)(e)(i) can be found in Azzi v Minister for Immigration and Multicultural Affairs (2002) 120 FCR 48 (“Azzi”).
In Azzi, Allsop J was considering the definition of a “special need relative” in reg.1.03, which stated as follows:
“‘Special need relative’
in relation to an Australian citizen usually resident in Australia… means a relative who is willing and able to provide substantial and continuing assistance to the citizen… if:
(a) The citizen … has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen… 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.”
In Azzi, the MRT found that assistance could be reasonably obtained collectively from the review applicant’s relatives and was not confined to assistance that could be reasonably obtained from only one other relative of the nominator. Allsop J noted that the definition of “special need relative” focuses on the nominator’s needs and how they might reasonably be met and that the MRT was required to be satisfied that the assistance could not reasonably have been obtained from sources other than the visa applicant.
In making that finding, Allsop J had regard to s.23 of the Acts Interpretation Act 1901 (Cth) in considering whether there existed a contrary intention to limit the provision of assistance by “any other relative” to one relative only, rather than a combination of relatives from whom assistance could reasonably be obtained for the nominator.
Mr Smith contended that the Explanatory Statement that accompanied the introduction of reg.1.15AA(1)(e)(1) supported the First Respondent’s submissions. The Explanatory Statement, relevantly, stated as follows:
“New subparagraph 1.15AA(1)(e)(i) provides that an applicant for a visa will only be a carer when the assistance cannot reasonably be provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
The purpose of this amendment is to ensure that it is open to decision-makers to conclude that assistance could reasonably be provided by relatives residing in Australia even in circumstances where those relatives residing in Australia claim to be unwilling or unable to provide assistance.”
Section 2 of the Acts Interpretation Act 1901 (Cth) states that its provisions apply to all Acts, including legislative instruments and other instruments made under an Act, referring to s.13(1) of the Legislative Instrument Act 2003 and s.46(1) of the Acts Interpretation Act 1901 (Cth). It is common ground that the criterion in reg.1.15AA of the Migration Regulations is a legislative instrument.
Section 2(2) of the Acts Interpretation Act 1901 (Cth) states that the application of the Act is subject to a contrary intention.
Section 13(1) of the Legislative Instruments Act 2003 (Cth) states that the Acts Interpretation Act 1901 (Cth) applies to any legislative instrument unless the contrary intention appears.
In particular, s.23 of the Acts Interpretation Act 1901 (Cth) states that words in the singular number include the plural, and words in the plural include the singular. In the circumstances, s.23 of the Acts Interpretation Act 1901 (Cth) applies to the construction of reg.1.15AA(1)(e)(i), unless, on a proper construction, reg.1.15AA evinces a contrary intention, such that s.23 is displaced.
Mr Turner, submitted that a proper construction of reg.1.15AA(1)(e)(i) does evince a contrary intention and that reference to “a relative” does not therefore include the plural, however, he did not elaborate further.
In Azzi, Allsop J held that the MRT did not err in law in holding that the criterion in relation to a “special need relative” is met if a combination of relatives could reasonably assist the nominator.
Mr Turner submitted that there is a distinction between a carer’s visa and a special relative’s visa, such that the Court in this case is not assisted by Azzi in construing “a relative” in reg.1.15AA(1)(e)(i).
However, I am not persuaded that the distinction between a carer’s visa and a special need relative’s visa is relevantly different such that the construction applied by Allsop J in Azzi is not of assistance in construing similar words used in reg.1.15AA(1)(e)(i) .
It is common ground that this Court is not bound by Azzi because Azzi was considering the construction of reg.1.03(b)(i) in relation to assistance for the nominator being obtained from “any other relative” in an application for a special needs visa; whereas the case before this Court involves the proper construction of assistance being provided to the Review Applicant by “a relative” in reg.1.15AA(1)(e)(i) in relation to an application for a carer’s visa.
However I am not persuaded that there is any relevant difference in the approach to construction of the language in relation to whether assistance can be provided by one relative or several.
Azzi is of significant persuasive value to this Court. In construing whether “a relative” includes the plural in reg.1.15AA(1)(e)(i), I can find no reasonable justification to depart from the construction given by Allsop J. There is no apparent intention in reg.1.03 in the use of the singular “any other relative” in considering a special needs visa as opposed to a carer’s visa, to suggest that the singular does not include the plural. There is no relevant distinction in the language or construction to be placed on reg.1.03(b)(i) and reg.1.15AA.(1)(e)(i) in terms of the use of the language in suggesting that either evinces an intention that the singular should not include the plural.
Accordingly, I find that s.23 of the Acts Interpretation Act 1901 (Cth) is not displaced by reg.1.15AA.
In the circumstances, the MRT’s conclusion that assistance to the Review Applicant could be derived from a number of relatives and was not required only to be provided by one relative, was open to it on the evidence and the material before it and for the reasons it gave. The MRT’s decision record makes clear that it considered the Review Applicant’s submission to the contrary.
In the circumstances the MRT’s finding that reg.1.15AA(1)(e)(i) is not satisfied because assistance to the Review Applicant can reasonably be provided by her relatives in Australia was open to it on the evidence and material before it and for the reasons it gave.
Accordingly, the decision of the MRT was not affected by jurisdictional error. The proceeding before this Court, commenced by way of application filed on 12 December 2012, should be dismissed with costs.
I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 4 October 2013
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