K.C. v Minister for Immigration
[2013] FCCA 294
•8 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| K.C. v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 294 |
| Catchwords: MIGRATION – Review of decision of Migration Review Tribunal – Child (Residence) (Class BT) visas refused – no jurisdictional error found – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r. 44.12(1)(a) Migration Act 1958 (Cth) Migration Regulations 1994 (Cth), regs. 1.03, 1.05A, Sch 2; cls. 802.212, 802.215, 802.321 |
| Nadesan v Minister for Immigration and Anor [2013] FMCA 152 SZIMG v Minister for Immigration & Anor [2007] FMCA 1724 |
| Applicant: | RADHA K.C. |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1421 of 2012 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 8 May 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 8 May 2013 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Ms Whittemore |
| Solicitors for the First Respondent: | Sparke Helmore |
THE COURT ORDERS THAT:
The Application filed 9 November 2012 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $2,700.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1421 of 2012
| RADHA K.C. |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These proceedings commenced with the Applicant filing an Application on 9 November 2012, in respect of a decision made by the Migration Review Tribunal on 10 October 2012. The grounds as set out in the Application are simply “administrative error”. No particulars nor any legal ground of review is provided in the Application.
A Response was filed on behalf of the First Respondent on 20 November 2012 seeking the dismissal of the Application pursuant to R.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’). The First Respondent claimed in its Response:-
“(1) The application for judicial review does not provide any particulars or any legal ground of review.
(2) The application for judicial review does not establish any jurisdictional error in the decision of the Migration Review Tribunal dated 8 October 2012.
(3) The application for judicial review does not raise an arguable case for the relief claimed pursuant to Part 44.12 of the Federal [Circuit] Court Rules.”
The matter proceeded before Registrar Allaway on 6 February 2013 wherein it was ordered, amongst other things, that:-
“On or before 6 March 2013 the applicant file and serve:
a. any amended application including any additional ground of review with complete particulars of each ground; and
b. any affidavit.”
The orders further provided that both the Applicant and First Respondent may file and serve written submissions prior to the final hearing.
The matter was set down for a show cause hearing this day pursuant to R.44.12 of the Rules. No amended application has been filed by the Applicant, nor are there any written submissions filed and served by either party. The one Affidavit sworn by the Applicant on 9 November 2012, which was filed the same day, essentially annexed the notification of decision and decision record of the Migration Review Tribunal (‘the Tribunal’) of the decision of Mr Thwaites of 8 October 2012.
The First Respondent filed a Court Book on 12 December 2012 which forms part of the evidence in the proceedings.
On the hearing of this matter this day, the Applicant indicated that she had no further documents with her to provide to the Court, and that she had nothing to say, in particular, in relation to enlarging upon her statement that the decision of the Tribunal was accompanied by jurisdictional error.
The Applicant made application for a Child (Residence) (Class BT) Subclass 802 visa by Application lodged at Melbourne on 10 March 2011. That application was refused by a delegate of the First Respondent (‘the delegate’) on 14 October 2011. The delegate refused the visa application on the basis that the Applicant did not satisfy the legal requirements as set out in the Migration Act 1958 (Cth) (‘the Act’) and the Migration Regulations 1994 (Cth) (‘the Regulations’), in particular, the Applicant did not satisfy Clauses 802.212 and 802.215 in Schedule 2 of the Regulations on the date on which the decision was made.
Clause 802.212 of Schedule 2 of the Regulations relevantly states that:-
“802.212
(1) The applicant:
(a) is a dependent child of a person who is an Australian citizen, holder of a permanent visa or eligible New Zealand citizen; and
(b) subject to subclause (2), has not turned 25.
(1A)If the applicant is a step-child of the person mentioned in paragraph (1) (a), the applicant is a step-child within the meaning of paragraph (b) of the definition of step-child .
(2)Paragraph (1) (b) does not apply to an applicant who, at the time of making the application, was a dependent child within the meaning of subparagraph (b) (ii) of the definition of dependent child .”
Clause 802.215 of Schedule 2 of the Regulations relevantly states that:-
“802.215
(1) The applicant is:
(a) a person whose application is supported by a letter of support from a State or Territory government welfare authority; or
(b) sponsored by a person who:
(i) has turned 18; and
(ii) is an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen; and
(iii) is:
(A) the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in paragraph 802.212 (1) (a); or
(B) the cohabiting spouse or de facto partner of the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in paragraph 802.212 (1) (a).”
Regulation 1.03 of the Regulations defines ‘dependant child’ as follows:-
“dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:
(a) has not turned 18; or
(b) has turned 18 and:
(i) is dependent on that person; or
(ii) is incapacitated for work due to the total or partial loss of the child's bodily or mental functions.”
Regulation 1.05A of the Regulations defines ‘dependent’ as follows:-
“Dependent
(1) Subject to subregulation (2), a person (the first person ) is dependent on another person if:
(a) at the time when it is necessary to establish whether the first person is dependent on the other person:
(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person's basic needs for food, clothing and shelter; and
(ii) the first person's reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person's basic needs for food, clothing and shelter; or
(b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person's bodily or mental functions.
(2) A person (the first person ) is dependent on another person for the purposes of an application for:
(d) a Protection (Class XA) visa; or
(e) a Refugee and Humanitarian (Migrant) (Class BA) visa; or
(ea) a Refugee and Humanitarian (Class XB) visa; or
(i) a Temporary Safe Haven (Class UJ) visa;
if the first person is wholly or substantially reliant on the other person for financial, psychological or physical support.”
The delegate refused the visa application because:-
a)the Applicant had not provided evidence that she was incapacitated for work due to total or partial loss of her bodily or mental functions; and
b)the Applicant had made no claims that she was the dependent child of anyone. At the time of her lodgement of the visa application she was 22 years of age.
The secondary applicant, who is the husband of the Applicant in these proceedings and was aged 26 years at the time of lodgement of the visa application, was also refused a visa by the delegate because Clause 802.321 of Schedule 2 of the Regulations precluded family unit members from being granted a visa unless/until the primary applicant was granted a visa.
On 2 November 2011, the Applicant and her husband lodged an application for review of the delegate’s decision with the Tribunal. On 4 September 2012, the Tribunal wrote to the applicants advising that it had considered all the material before it relating to the application, but was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 21 September 2012. The review applicants were advised that if they did not attend the hearing, and a postponement was not granted, the Tribunal may make a decision on their case without further notice. On 11 September 2012, the Tribunal received a response to hearing invitation form indicating that the applicants and their representative would not take part in the hearing scheduled for 21 September 2012. The applicants did not appear before the Tribunal on the day and at the time and place at which the hearing was scheduled. The Tribunal said, in paragraph 22 of its statement of decision and reasons, that in those circumstances, and pursuant to s.362B of the Act, the Tribunal had decided to make its decision on the reviews without taking any further action to enable the applicants to appear before it.
The Tribunal in fact made an error by making reference to the wrong section of the Act, in referring to s.362B of the Act. That however, does not provide grounds for the Court to overturn the decision of the Tribunal (Nadesan v Minister for Immigration and Anor [2013] FMCA 152 per Whelan FM (as Her Honour was then) at paragraph 10). The Court sees no reason to depart from this decision, which followed the decision of Nicholls FM (as His Honour was then) in SZIMG v Minister for Immigration & Anor [2007] FMCA 1724.
The Act provides capacity for the Tribunal to make the decision on review without taking any further action to enable the applicants to appear before it, because the Tribunal had invited them to do so and they had expressly declined that invitation.
The Tribunal in its decision, affirmed the decision not to grant the review applicants a Child (Residence) (Class BT) Subclass 802 visas. In its findings and reasons, the Tribunal relevantly said as follows:-
“(24) The only information before the Tribunal about the first named review applicant’s parents is contained in the Application for Migration to Australia by a Child Form 47CH. This indicates that her parents are residents of Nepal. She has not provided any evidence that she is a dependent child of a person who is an Australian citizen, holder of a permanent visa, or eligible New Zealand citizen. The Tribunal is not satisfied that the first named review applicant is a dependent child of an Australian citizen, holder of a permanent visa or eligible New Zealand citizen as required by cl.802.212 (1)(a).
(25) Accordingly, the Tribunal finds the first named review applicant does not meet the requirements of cl.802.212.
26. LETTER OF SUPPORT / SPONSORSHIP
27. As noted above, cl.802.215 requires that the application be supported by a letter of support from a State or Territory government welfare authority, or, the applicant be sponsored by an Australian citizen, holder of a permanent visa or eligible New Zealand citizen who has certain characteristics set out in cl.802.215(b).
28. Neither of these elements were addressed in the visa application: no letter in support was provided, nor was any sponsorship form completed or any other indication given as to any proposed sponsorship arrangements.
29. Accordingly, the Tribunal is not satisfied the application is supported by a letter of support from a State/Territory welfare authority as required by cl.802.215(a), or that the first named review applicant is sponsored by a person who has turned 18 and is an Australian citizens (sic), a holder of a permanent visa or eligible New Zealand citizen as required by cl.802.215(b).
30. The Tribunal finds that the first named review applicant does not satisfy the requirements of cl.802.215.”
Given the findings relating to the first named review Applicant, the Tribunal found that the second named review Applicant did not satisfy Clause 802.321 of Schedule 2 of the Regulations.
No jurisdictional error attends the decision of the Tribunal. The Court is not satisfied that the application has raised an arguable case for the relief claimed and accordingly dismisses the application. Costs shall follow the event.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Hartnett.
Date: 13 June 2013
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