JEAN-JAQUET v Minister for Immigration - [2005] FMCA 259

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JEAN-JAQUET v MINISTER FOR IMMIGRATION
& ANOR

[2005] FMCA 259

MIGRATION – Visa – family (Residence) (Class AO) visa – application for review of decision by the Migration Review Tribunal affirming a decision not to grant the Applicant a Family (Residence) (Class AO) visa – Applicant a citizen of the Philippines – objection to competency.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474, 477

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) 2004 FCA FC 263
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Scargill v The Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA FC116

Applicant:

GEORGETTE JEAN-JAQUET

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File No:

SYG 2320 of 2004

Delivered on:

24 February 2005

Delivered at:

Sydney South

Hearing date:

24 February 2005

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Smith

Solicitors for the Applicant:

Parish Patience Immigration

Counsel for the Respondent:

Ms Henderson

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That a writ of certiorari is to issue removing into this Court to be quashed the decision of the Migration Review Tribunal made on
21 May 2004.
That a writ of mandamus is to issue directed to the Migration Review Tribunal requiring the Migration Review Tribunal to rehear and
re-determine the Applicant’s application for review according to law.
That a writ of prohibition is to issue directed to the First Respondent preventing her or her agents or delegates from acting upon or giving effect to or enforcing the decision of the Migration Review Tribunal made on 21 May 2004.
Time to lodge an appeal is not to run until publication of written reasons for decision.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2320 of 2004

GEORGETTE JEAN-JAQUET

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application which I heard this morning. I have considered the submissions, re-read material over the lunch adjournment and I propose now to give a decision which is indeed an ex-tempore decision although I will order a transcript of my reasons and when edited that transcript will form the reasons for this decision.
It is certainly my view that wherever possible the Court should give speedy decisions in respect of the matters that come before it and those decisions should be more or less short and to the point.
The application is an application for a review of a decision of the Migration Review Tribunal which was made on 21 May 2004. In their decision, the Tribunal affirmed a decision by a Review Officer of what was then the Migration Internal Review Office made on 8 October 1997. That decision affirmed the decision of a delegate of the Respondent Minister made on 5 June that year to refuse to the grant to the Applicant a Family Residence (Class AO) visa for which he applied on 13 December 1996.
The Applicant is a national of the Philippines who was born on

15 February 1967 notwithstanding her French name.
On 13 December 1996 she applied to the Department of Immigration for a visa which contained four sub-classes, 831, prospective marriage spouse, 802 child, 806 family and 832 close ties.
The Delegate of the Minister refused to grant the application and the matter went through the Migration Internal Review Office through the Migration Review Tribunal and is now before the Court.
In the application which seeks either a declaration of what is described as the purported decision of the Migration Review Tribunal is null and void or in the alternative, writs of mandamus, certiorari prohibition.
The Applicant, in the application, gave five grounds for an application for review relating first of all to:
i)That the Migration Review Tribunal misconstrued the definition of the remaining relative in Migration regulations.
ii)That the Migration Review Tribunal considered the asthma, osteoarthritis and tendonitis could not be illnesses within the meaning of the regulations.
iii)That the Migration Review Tribunal misconstrued the meaning of special need relative in the Migration Regulations.
iv)That the Migration Review Tribunal failed to make a finding as to whether the Applicant’s step-father suffered from any prolonged illnesses and was affected by some other serious circumstances and failed to consider relevant considerations.
v)That the Migration Review Tribunal did not consider the claim that the Applicant’s mother required assistance because of her husband’s illness or other serious circumstances on 24 hour basis.
Those grounds are said to be a constructive failure to exercise jurisdiction, a failure to exercise relevant considerations and in respect of grounds (i) and (iv) and (v), a denial of natural justice.
The Respondent opposes the applications and amongst other things has filed a notice of objection to competency. In that notice the Respondent objected to the jurisdiction of the Court to try the application on the grounds:
b)The decision is a privative clause decision.
c)That contrary to s.477 (1)(a) of the Migration Act the application was not lodged within 28 days of the applicant being notified of the decision of the Migration Review Tribunal and
d)By virtue of s.477 sub-section(2) of the Federal Magistrates Court Rules and must not make an order allowing – or which has the effect of allowing an applicant to lodge an application outside the period specified in s.477(1)(a).
I would comment that at the time these proceedings were commenced, which was some while ago, there was no Federal Magistrates Court. Indeed, this matter has had quite a lengthy history of hearings before the Migration Review Tribunal and review by the Federal Court.
As far as the objection to competency is concerned, if the Applicant can establish that there has been constructive failure to exercise jurisdiction or denial of natural justice or a similar error, then of course the decision will not be a privative clause decision and s.477(1)(a) would not apply. What this means however is that I must consider substantive application and indeed the case was argued before me on that basis.
Both the Applicant and the Respondent, through their counsel, have been good enough to provide well argued written submissions. I have also heard oral submissions from counsel for both parties. In the outline of submissions submitted by Mr Smith of counsel for the Applicant, he refers to the criteria for grant of particular subclasses of visas which are set out in Schedule 2 of the Migration Regulations. In respect of sub-class 806 family the criteria is set out in clauses 806.1 and following and he recites 806.213 which refers to:
The applicant is an aged dependent relative, an orphaned relative, a remaining relative or a special needs relative of another person who:
(a)Is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand resident and
(b)Is usually resident in Australia.
The Applicant’s mother said she has nominated the Applicant for the grant of a visa. She submitted that the Applicant could meet that relevant criterion by falling within any one of the descriptions contained in that clause. However, the Tribunal, she submits, only considered whether the Applicant satisfied the definition of special need relative. That is to say, the Tribunal did not consider whether the Applicant was a remaining relative. Failing to do so, the Tribunal constructively failed to exercise its jurisdiction. This is either because she misunderstood the criteria for the grant of that visa or because she did not understand that the Applicant made claims that he could satisfy that criterion and therefore misunderstood her claims. He referred to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) 2004 FCA FC 263. I note that Ms Henderson of counsel for the Respondent also referred me to the decision in NABE.
I would first of all take issue with the submission by Mr Smith of counsel where he says that the Applicant could meet the relevant criteria in 806.213 by falling within any one of the descriptions contained in that clause. Bearing in mind the Applicant’s date of birth, I find it hard to classify her as an aged, dependent relative. And as the person who was the settled Australian citizen, usually resident in Australia and has nominated the Applicant was and is the Applicant’s mother, I find it difficult to describe the Applicant as an orphaned relative.
Putting that to one side, the real issue in respect of this point is Mr Smith made it quite clear in his oral submission, is that whilst the Tribunal considered the criterion of being a special need relative, the Tribunal did not, he submits, consider whether the Applicant was a remaining relative. That, he said, was a constructive failure to exercise jurisdiction.
The Applicant’s mother is an Australian citizen usually resident in Australia. Those facts were found by the Migration Review Tribunal and he submits, he has raised as an accepted fact but clearly not considered. Mr Smith referred me to Regulation 1.15 which contains disqualifying factors. In sub-regulation 2 an applicant is disqualified if:
a)The applicant or the spouse of the applicant:
i)Usually resides in the same country, not being Australia, as an overseas near relative or
ii)Has had contact with an overseas near relative during a reasonable period preceding the application.
The factors in b) and c) are clearly not relevant and I do not recite them.
At the time of the application the Applicant had in fact been living in Australia for getting on for nine months and the question as to whether the Applicant was a remaining relative was just never asked.
The situation of being a remaining relative was in fact, in Mr Smith’s submission, just not referred to in the Tribunal’s decision and he submits it is clear that the Migration Review Tribunal did not turn its mind to that particular question.
Dealing with that point, which to my mind is an important point, Ms Henderson for counsel, as I said, also refers to the Full Court Decision of NABE v the Minister. In her submission she pointed out and correctly, with respect, that a constructive failure to exercise jurisdiction may or will arise where there is either failure to deal with a clearly articulated argument relying upon established facts or a failure to deal with a case raised by the material or evidence in a case which is apparent on the face of the material before the Tribunal.
She went on to submit that the Full Court also confirmed in NABE that the Tribunal is not required to engage in constructive or creative activity in order to expose a claim. This is paragraph 58. And the Tribunal is not required to deal with claims that are not articulated and do not clearly arise from the material before it. Ms Henderson submitted that the Applicant has never claimed to be a remaining relative, though she has had ample opportunity to do so. She has had the benefit of legal representation since June 1997. There was no mention of a remaining relative claim in any of her earlier applications for review or in any of the letters referred to or in any other correspondence sent by either in terms of solicitors whom she has instructed.
She submits that the material before the Tribunal did not raise a case that the Applicant may be eligible for remaining relative visa. If anything, she submits, it indicated the contrary because it included evidence of contact with overseas near relatives. The Applicant said, in her visa application, she had married relatives resident overseas. Two sisters, younger than herself, were described in the application as living in the Philippines. The Applicant told Dr Dinnen, a psychiatrist, that she had lived with the maternal grandparents in the Philippines and maintained contact with her siblings. She said at the first Tribunal hearing that she had taken care of her younger brothers and sisters and was like a bridge to the younger generation.
In short, Ms Henderson submitted that there was no substance in the Applicant’s contention that the Tribunal ought to construe her case as not involving a remaining relative claim. Ms Henderson in her oral submission to the Court enlarged upon that theme. She submitted that it was not apparent that the Applicant was making out a remaining relative case. The material before the Tribunal did not point to the conclusion that an application was in fact for remaining relative visa. But she submitted that the Applicant’s case had always been put on the basis of special needs case.
I have considered the Tribunal decision and the application in the light of the conflicting and the opposing submissions and I have considered the decision in NABE and Minister for Immigration and Multicultural and Indigenous Affairs. To my mind, it was apparent, on the face of the material before the Tribunal, that the Applicant had at least an arguable case to be considered as a remaining relative and that consideration did not require the Tribunal to engage in constructive or creative activity in order to expose a claim and the Tribunal would not have been – was not being required to deal with a claim that certainly was not in any way articulated and in my view, from the materials and it was open to the Tribunal to do so. That, to my mind, does constitute a constructive failure to exercise its jurisdiction.
The other submissions on behalf of the Applicant; whilst I have recited the way in which they have been described in the application, to my mind are somewhat artificially delineated. They fall, in effect, into two categories. Matters relating to the health of the Applicant’s mother being one and matters relating to the Applicant’s step-father, i.e. the Applicant’s mother’s husband being the other. Dealing with the question of the health of the Applicant’s mother; Mr Smith of counsel submitted that the first issue that the Tribunal considered was whether, at the time of the application, the Applicant’s mother had any prolonged illness or whether there was some serious circumstance. But the only matters he submitted that the Tribunal considered were those relating to the mother’s depressive illness. And that is set out in pages 306 and 309 of the Court Book.
Mr Smith submitted that the Tribunal appeared to have accepted that the Applicant’s mother at the time of the application suffered from tendonitis and asthma and did not make any findings in respect of those matters, particularly whether or not they amounted to serious circumstances or prolonged illness. The absence of any findings in this respected, it is submitted, entitled the Court to infer that these matters were not considered by the Tribunal to be material and I am referred to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.
The submission is that that was a mistaken view and that tendonitis and asthma could be found to be illnesses within the ordinary meaning of the word. Mr Smith submitted that the Tribunal could be said to have simply failed to deal with a claim that was clearly and expressly made by the Applicant. That was a misconstruction of the Applicant’s claim which meant that the Tribunal fell into jurisdictional error. Again, the reference to that is in NABE.
Ms Henderson of counsel disagreed and drew my attention to the fact in her oral submission that the Applicant’s case was always put on the basis that the mother had a rolled up set of conditions and the Tribunal in fact put it the same way. There was a reference to osteoarthritis and there was a reference to reports of general practitioner, Dr Delaney and as far as a diagnosis is concerned, Ms Henderson reminded the Court that an account from a doctor of a patient history was no stronger than a patient’s own statement as to his or her medical history. The account does not become any stronger just because it is written in a medical report. It is no more a history given by a patient. It is not a diagnosis as such.
Mr Smith for the Applicant submits that whilst there are references to the Applicant’s mother suffering from osteoarthritis at pages 304 and 305 of the Court Book, the Applicant’s mother suffering from chronic asthma at page 305, that throughout the Tribunal’s finding all that the Tribunal really – the decision maker turned his mind to was whether or not the Applicant’s mother suffered from a depressive illness as diagnosed by Dr Dinnen.
The short answer to that is that I do not agree with that submission on behalf of the Applicant. True it is that the balance of the discussion relates to the reports by Dr Dinnen of the Applicant’s mother’s depression and they were certainly considered by the Tribunal. It is not, however, appropriate to say that the Tribunal was made aware of the other physical complaints of the Applicant’s mother and I did not consider those.
The Tribunal did refer to Dr Delaney’s certification of osteoarthritis requiring episodic physical therapy. He did refer to the Applicant’s mother’s claim of chronic asthma and what happened is that at page 307 of the Court Book the Tribunal states, at about point seven:
For those reasons the Tribunal is unable to place much weight upon the reports of Dr Delaney as objective evidence that the nominator had a permanent or long term need for assistance at the time of application.
The evidence of Dr Delaney is not, as Mr Smith sought to press upon me, relating solely to the depressive condition for which the Applicant was seen by Dr Dinnen. Dr Delaney’s evidence is largely relating to the other physical illnesses. To my mind, at Court Book page 308 of the Court Book, the Tribunal correctly identified:
However, the critical issue of this facet of the case is whether at the time of application the nominator had a permanent or long-term need for assistance arising out of her claimed disability or prolonged illness.
That is, as to my mind Ms Henderson correctly submitted a description of the fact that the Applicant’s mother had claimed a variety of ailments, some physical, some relating to depression. The evidence of Dr Dinnen largely went to depression. The evidence of Dr Delaney went to the other aspects.
At page 309 of the Court Book, at about point five, the Tribunal has dealt with both of those aspects of the illness or disability in this way:
Accordingly the Tribunal finds that the evidence Dr Dinnen as to the condition of the nominator as at the date of application, whilst genuinely given by Dr Dinnen, is such that it would be unsafe for the Tribunal to accept that evidence without reservation. The evidence of Dr Delaney is critical for the period leading up to the date of application. He is unable or unwilling to provide conclusive evidence that supports the claim of the nominator in the crucial period leading up to the date of application which he had a permanent or long term need for assistance arising out of her claimed disability or prolonged illness. For those reasons the Tribunal finds that the nominator did not have a permanent or long-term need for assistance arising out of her claimed disability or prolonged illness as at the date of application.
It follows therefore that the Applicant’s contention that the Tribunal did not consider all aspects of the Applicant’s mother’s medical condition has not been made out and in my view the Tribunal did consider it.
The third issue relates to the health of the Applicant’s mother’s husband, Mr Hermsen. For the Applicant, Mr Smith submitted that the Tribunal was unclear in its findings as to whether it accepted that the gentleman concerned did suffer from disabilities referred to on a continuing basis. He also submitted that the Tribunal did not consider the aspect of the claim that the Applicant’s mother was required to provide care for her husband, not just during working hours, but on a continuing and 24 hours basis.

He submitted that the Tribunal’s comments about Mr Hermsen indicating at one stage that he was still able to obtain work – this is on page 310 of the Court Book – that the nominator, i.e. the Applicant’s mother, had gone to work in May 1996 to support her husband and son and the inconsistency that the Tribunal saw between the evidence of the husband that he was capable of finding work and the Applicant’s mother that she had to go to work to support him. As a result, the Tribunal found that at the time of application the nominator, i.e. the Applicant’s mother, did not have a permanent or long term need for assistance due to her husband’s claimed disability or prolonged illness.
Ms Henderson of counsel took issue with that in her submissions. She denied that the Tribunal’s finding was unclear. She said the findings were straightforward and that the Applicant has misinterpreted them. She submitted that the Tribunal concluded that at the time of the visa application the Applicant’s mother did not have a permanent or long term need for assistance due to her husband’s claimed disability or prolonged illness. And that was after considering Dr Delaney’s report of 2 February 1998 which was the only evidence of Mr Hermsen’s medical condition at the time of the application, about the absence of any information in Dr Dinan’s reports regarding Mr Hermsen’s condition as at the time of the visa application and the inconsistency between the evidence, as I have referred to, given by Mr Hermsen, the Applicant and Mrs Hermsen, about Mr Hermsen’s employment or work capacity around the time the visa application was lodged.
She submitted that the Tribunal was entitled to determine, on the material which it cited, that at the relevant time Mr Hermsen did not have a permanent or long term need for assistance which impacted upon Mrs Hermsen and accordingly she submitted that the applicant had failed to identify any jurisdictional error in the Tribunal’s finding.
In his submission in reply, Mr Smith of counsel submitted that the Respondent appeared to be saying that to qualify to be a special needs person, one must be so sick that one cannot go to work at all. What he submitted is that the quality of the need is confirmed by temporal consideration. In other words, as he submitted, a paraplegic may be able to work but need assistance in a variety of things outside the work sphere. He submitted that all the Tribunal had to ask was; what was the temporal nature of the need of Mr Hermsen. And that was a question the Tribunal would not ask.
To my mind, there is force in that submission and there too I am satisfied that the Tribunal was, if you like, distracted by details of the employment and failed to consider the nature of the Applicant’s claim in respect of her step-father, that therefore is a jurisdictional error and accordingly I am satisfied that for those reasons, but for no others, that I must grant the application. Therefore I intend to make these orders.
I would add, by the way, just two things. The notice of objection to competency therefore must fail because I have found jurisdictional error and therefore the matter is not a privative clause matter.
Secondly, I was referred by counsel for the Applicant to the decision of Scargill v The Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA FC116. I must say that I did not find that the Scargill decision was as helpful to the case as counsel for the Applicant impressed upon me. To my mind it is not a helpful decision so far as arriving at my conclusions were concerned.
Certainly costs follow the event and I see no reason why I should not make an order for costs in those circumstances. I said earlier that this is a matter that has been well-prepared and well argued on both sides and counsel for the Applicant and the Respondent did what is expected in the Federal Magistrates Court, which is to get on with it, argue their case and then leave it at that. As I said, the quality of the written submissions was good but I just do not see that there has been any additional time taken. The matter got on when it should have. There have been no interlocutory applications or any adjournments. To my mind $4500 would seem appropriate.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V Lee

Date: 11 March 2005