Landers v Minister for Immigration
[2006] FMCA 167
•10 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LANDERS & ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 167 |
| MIGRATION – Special need relative – application after rejection of earlier application for a substantive visa – whether applicant became a special need relative after failed earlier application – finding by Tribunal that applicant did not become a special need relative during relative period – review application dismissed. |
| Migration Regulations 1994, reg.103 & 212 Judiciary Act 1903, s.39B Migration Act 1958, ss.48, 474(2), 474(3) & 474A |
| Plaintiff S 157/2002 v Commonwealth of Australia (2003) 211 CLR 476 SHJB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 502 |
| First Applicant: | CLIFFORD HAYSON LANDERS |
| Second Applicant: | THERESE SUDHARSHINI LANDERS |
| Third Applicant: | CLERA SHADWERLYNE LANDERS |
| Fourth Applicant: | CLEYON HAYSON LANDERS |
| Fifth Applicant: | CLEYRON CLIFFORD LANDERS |
First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG397 of 2005 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 7 November 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 10 February 2006 |
REPRESENTATION
| Counsel for the Applicants: | Mr Livermore |
| Solicitors for the Applicants: | Ambi Associates |
| Counsel for the Respondent: | Mr Mosley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the Migration Review Tribunal be joined as Second Respondent.
That the Application for Review filed on 15 April 2005 and amended by an amended application filed on 1 September 2005 is dismissed with costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG397 of 2005
| CLIFFORD HAYSON LANDERS |
First Applicant
| THERESE SUDHARSHINI LANDERS |
Second Applicant
| CLERA SHADWERLYNE LANDERS |
Third Applicant
| CLEYON HAYSON LANDERS |
Fourth Applicant
| CLEYRON CLIFFORD LANDERS |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision of the Migration Review Tribunal (the Tribunal) of 16 March 2005 whereby the Tribunal affirmed an earlier decision of the first respondent’s delegate that the applicants were not entitled to the grant of Change in Circumstance (Residence) (Class AG) visas; namely ‘special need relative’ visas under subclass 806.
Background
The first-named applicant (the applicant) is a male Sri Lankan citizen. He arrived in Australia on 11 December 1995 as the holder of a Short Stay (Visitor) (Class TR) subclass 676 visa, valid until 11 March 1996. He was accompanied by the secondnamed applicant who is his spouse, and the thirdnamed applicant who is their child. The fourth and fifthnamed applicants are further children of the applicant and his spouse, born after their arrival, on 23 October 1996 and 10 January 1998, respectively.
On 1 March 1996, the applicant and his spouse and child were granted Sri Lankan (Temporary) (Class T) subclass 435 visas, valid until
31 July 1996. They were subsequently extended until 31 July 1997.
On 11 April 1996, the applicant applied for the grant of a Protection (Class AZ) subclass 866 visa. The applicant’s family were included as secondary applicants. This was refused on 19 September 1996 and finally determined on 12 March 1997.
On 1 August 1997, the applicant applied for a further subclass 435 visa. The applicant’s family were included as secondary visa applicants. This was refused on 7 August 1997.
On 30 July 1998, the applicant applied for a Change of Circumstance (Residence) (Class AG) subclass 806 Family (Special Need Relative) visa (the visa application). The applicant’s family were included in the application as secondary visa applicants.
It was a criterion for the grant of the subclass 806 visa that the applicant be nominated for permanent residence in Australia. The applicant was nominated by his brother Victor Michael Landers. The nominator had arrived in Australia as the holder of a visitor visa Class V12 on 22 December 1988. He became a permanent resident on
10 November 1994.
In the visa application it was claimed that the nominator and his spouse, Rohini Landers, needed assistance in the care of their son Lance Anthony Warren Landers (born, 25 July 1989), who was suffering from an intellectual disability and other problems.
Various medical and other reports were provided regarding the disability. It was further claimed that some assistance was required with the nominator’s daughter Stacey Landers (born, 27 February 1986).
On 7 February 2002, a delegate of the first respondent refused the grant of the visa. Application for review of the decision was made to the Tribunal on 5 March 2002.
The Tribunal conducted a hearing on 21 June 2002 and on 16 July 2002, it affirmed the decision under review.
On 9 August 2002, the applicant made application to the Federal Court for review of the Tribunal’s decision, in proceeding MZ 801/2002. On 18 June 2003, Walters FM set aside the decision and remitted the application to the Tribunal. The first respondent appealed. However, the appeal was dismissed by Heerey J on 15 December 2003.
The reconstituted Tribunal conducted a hearing on 29 November 2004, and on 16 March 2005, it again affirmed the decision under review.
The applicants made application to this Court for review of the Tribunal’s decision on 15 April 2005. An amended application was filed on 1 September 2005. The application seeks relief under s.475A of the Migration Act 1958 (the Act), and under s.39B of the Judiciary Act 1903.
Legislative framework
Section 48 of the Act restricts the types of visas which a non-citizen can apply for if the non-citizen is without a substantive visa and has previously been refused a visa, other than a bridging visa, for which s/he had applied. Subsection 48(1) provides that:
“(1) A non-citizen in the migration zone who:
(a) does not hold a substantive visa; and
(b) either:
(i) after last entering Australia, was refused a visa, other than a bridging visa, for which the non-citizen had applied (whether or not the application has been finally determined); or
(ii) …
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class”
The applicant had previously applied for and been refused a visa, and he did not hold a substantive visa at time of the visa application. Therefore under s48 of the Act he could only apply for a visa of a class prescribed for the purposes of the section. Regulation 212 of the Migration Regulations 1994 (the Regulations) prescribes as one of those classes of visa, a subclass 806 visa, for which the applicant applied.
Subclause 806.21 (now repealed) set out the relevant criteria to be satisfied by an applicant at the time of application for the visa. Subclause 806.211 relevantly provided:
“806.211 If:
(a) ...: or
(b) the applicant is a person to whom section 48 of the Act applies; the applicant:
(c) has not been refused a visa or had a visa cancelled under section 501 of the Act; and
(d) has become ... a special need relative of ... an Australian permanent resident ... since last applying for an entry permit or substantive visa.”
The applicant last applied for a substantive visa on 30 July 1997, which was receipted by the respondent’s department on 1 August 1997.
The issue identified by the Tribunal was whether the applicant had become a special need relative during the period from 1 August 1997 to 27 July 1998. That is, between the date he applied for the grant of the subclass 435 visa, and the date he applied for the grant of the subclass 806, special need relative visa. The applicants in their contentions to the Court identified this as the critical issue.
Regulation 1.03 defined the expression ‘special need relative’:
“special need relative, in relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or an eligible New Zealand citizen, means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:
(a) the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and
(b) the assistance cannot reasonably be obtained from:
(i) any other relative of the citizen or resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or
(ii) welfare, hospital, nursing or community services in Australia.”
Privative clause
The Tribunal’s decision is a ‘privative clause decision’ as defined in s474(2) and (3) of Act. The operation of the privative clause was the subject of judicial explanation by the High Court in Plaintiff
S 157/2002 v Commonwealth of Australia (2003) 211 CLR 476; 195 ALR 24 and Re Minister for Immigration and Multicultural and Indigenous Affairs;Ex parte Plaintiff S134 (2003) 211 CLR 441; 195 ALR 1. In order for the applicants to succeed, they must show thats.474 of the Act does not apply to the decision made by the Tribunal.
The Tribunal’s findings
The Tribunal made the following relevant findings:
(i)the applicant had already applied for and been refused a visa;
(ii)the applicant did not hold a substantive visa when he lodged the visa application;
(iii)under s.48 of the Act, the applicant was restricted to making the visa application for a subclass 806 visa;
(iv)that clause 806.21 set out the criteria which have to be satisfied at the time of the visa application and that 806.211(b) stated that if the applicant is a person to whom s.48 of the Act applied, he must satisfy subclause 806.211(d) which requires that he had become a special need relative since last applying for an entry permit or substantive visa;
(v)the applicant last applied for a substantive visa on 30 July 1997 but the receipt on the Departmental file is dated 1 August 1997;
(vi)the issue for the Tribunal was identified was “whether in the period 1 August 1997 to 27 July 1998 he became a ‘special need relative’ of the nominator”
(vii)that as the subject visa was a change of circumstance visa, a change of circumstances was required in the stated period;
(viii)that the nominator was a relative who was also an Australian permanent resident;
(ix)the nominator’s son has a disability within the meaning of reg. 1.03;
(x)the applicant has provided substantial and continuing assistance to the nominator in assisting the nominator’s son’s care at the time of the visa application and at the time of the Tribunal hearing;
(xi)
the critical issue for the Tribunal to determine was whether the circumstances changed in the period from 1 August 1997 to
27 July 1998, so that in that period the applicant became a special need relative of the nominator;
(xii)whilst acknowledging that the applicant and his spouse may have taken on more caring responsibilities because of the departure of the applicant’s mother from Australia, the Tribunal was unable to find that because of that changed circumstance, the applicant became at that time a ‘special need relative’;
(xiii)the applicant had, prior to that changed circumstance, indeed, since December 1995, provided care for the nominator’s son;
(xiv)the amount and kind of care arising from the applicant’s mother’s departure from Australia did not change “to any great degree” from that provided by the applicant before his mother left;
(xv)the applicant did not become a special need relative in the required period from 1 August 1997 to 27 July 1998; and
(xvi)as the applicant is unable to satisfy the criteria in subclause 806.21 the secondary visa applicants (the applicant’s spouse and children) are unable to satisfy subclause 806.311.
Applicant’s contentions
The applicant contended that considerable material was tendered and evidence given to establish the degree and type of assistance provided by the applicant and his spouse to the children of the applicant’s brother and that there was a change in that assistance following the death of the applicant’s father and the decision of his mother to relocate in August 1997. This meant, it was contended, that the degree and nature of assistance required of, and provided by, the applicant and his spouse changed from 14 August 1997.
The applicant argued that the Tribunal did not apply the statutory criteria to the circumstances of the case either prior to 14 August 1997 or post 14 August 1997.
The applicant asserted that the Tribunal, having observed, in general terms that the nature of the assistance changed from 14 August 1997 said, without analysis or explanation, that:
“The type and amount of care did not change to any great degree in the relevant period. This means that the visa applicant did not become a special need relative of the nominator in the required period from 1 August 1997 to 27 July 1998.”
This finding demonstrates, the applicant contended, an error in the legal test applied by the Tribunal. Even if the type of care did not change, the applicant contended, the applicant could have become a special need relative by virtue of the operation of reg.1.03(b) when his mother left.
The applicant rather dismissively categorised this finding as “bland” and alleges the Tribunal failed to address the case put by the applicant and demonstrates a misunderstanding by the Tribunal of the nature of the legal test to be applied. The legal test required, the applicant argues, an analysis of the type of assistance required from time to time, the type of assistance provided from time to time, the capacity and intention of the applicant to provide assistance in the future and whether the assistance required could be obtained from another relative or community services.
The applicant highlights that the Tribunal found the applicant provided substantial and continuing assistance at the time of the visa application and at the time of the hearing, but draws criticism of the Tribunal for then finding that the applicant did not become a special need relative during the relevant period, suggesting that the Tribunal erroneously believed that because assistance was provided before the start of the relevant period, the applicant could not become a special need relative later during the relevant period.
The applicant relies upon the assertion that the Tribunal did not address the statutory criteria that could have resulted in the applicant becoming a special need relative during the relevant period because, for example (assuming all other aspects of the test were satisfied), the assistance required by the nominator could no longer sensibly be provided by the applicant’s mother when she left on 14 August 1997.
The applicant asked the Court to draw the inference from the Tribunal’s reasons that the Tribunal appeared to have considered that the statutory test could not be satisfied if, prior to 1 August 1997 the applicant and his spouse had given assistance to the nominator. This, the applicant contends, misunderstands the legal test.
Determination
The applicant’s contentions focus on the fact that the degree and nature of assistance provided by him changed following the return of his mother to Sri Lanka in August 1997. However, the Tribunal found as a fact, that the ‘type and amount of care provided did not change to any great degree in the relevant period.’ In my view, that was a finding of fact open to the Tribunal. The nominator had given evidence that nothing had changed in the level of assistance given, but now he had more confidence in the applicant and the applicant’s spouse to look after his two children. The Tribunal did not, to my mind, misunderstand the criteria to be satisfied. It considered the evidence but was not satisfied that subclause 806.211(d) was met. It was accordingly required to refuse to grant the visa. The question was one of fact. Even if the Tribunal had erred in assessing the evidence, that does not give rise to jurisdictional error: NAFL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 297 per Hely J at [14]. As Selway J said in SHJB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 502:
“15 Ms Maharaj for the respondent submitted that even if there were errors in the reasoning of the Tribunal none of these constituted a ‘jurisdictional error’. In particular, Ms Maharaj submitted to me that if there were any errors, they were errors of tact, or errors in factual reasoning and analysis, and these were errors that were within the jurisdiction of the Tribunal.
16 I have considered all of the matters put to me. The relevant principle is clear enough. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal in analysing the factual material before it, the assessment of that material was a matter for the Tribunal, not for this Court. The applicant has asked the Court to undertake a review on the merits of the decision of the Tribunal. The Court has no jurisdiction to do so. As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146]:
‘A tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999) 197 CLR 611]...at paras 40, 44-45 per Gleeson CJ and McHugh J 138 per Gummow ‘ and cf para 159 per Hayne J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ with whom Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Roads Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543 (FC)...I agree with the remarks of Katz J in Zuway [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal’
This needs to be qualified at least to the extent that where the factual conclusion is so unreasonable that no reasonable person acting within jurisdiction and according to law could have reached it then there may be jurisdictional error: see Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] KB 223 at 230; Minister for Immigration and Multicultural Affairs v Eshetu (1999)197 CLR 611 at [39]-[53, [100]-[103], [122]-[147], [183-[194. However, there is no such error in this case, whatever might be thought of the analysis by the Tribunal. Plainly there was material before it that justified its conclusion. Whatever might be said about the reasoning of the Tribunal there is no basis for doubting its conclusion. It certainly could not be said that the conclusion is so unreasonable that no reasonable person could reach it.”
Moreover, this Court cannot set aside a decision merely because it regards the Tribunal as having followed a process of logic or reasoning which does not commend itself to this Court. The process of reasoning of the Tribunal leading to a finding of fact is not reviewable simply because the Court may disagree with it, or with the weight given by the Tribunal to the various factors relevant to the decision, or even if it considers that it was illogical or unreasonable to attribute weight to that factor at all.
The Tribunal found that the nominator’s son had a disability within the meaning of reg 1.03 and that the applicant, both at the time of application and decision, provided ‘substantial and continuing assistance’ to the nominator in respect thereof. The applicant therefore satisfied the special need relative definition. However, the relevant critical question which the Tribunal identified, was whether the applicant only became a special need relative after his mother left in August 1997. It was not satisfied that the applicant met this criterion. It found the type and amount of care that the applicant provided did not change to any significant degree in the relevant period and accordingly the applicant did not become a special need relative in that period.
The applicant’s contentions, in my view, are an attack on, and rise no higher than a disagreement with, the Tribunal’s process of reasoning and findings on issues of fact, and are an invitation to a merits review of the decision.
The applicant contends that the Tribunal did not address the case put to it. However, it is patent from a fair reading of the Tribunal’s decision that it took account of all the evidence presented, but was not satisfied that the relevant criterion was met. The Tribunal was not required to weigh or discuss each piece of evidence before it in order to complete its jurisdictional task. The Tribunal was certainly not required, as the applicant contends, to conduct ‘an analysis of the type of assistance required from time to time, the type of assistance provided from time to time, the capacity and intention of the applicant to provide assistance in the future and whether the assistance required could be obtained from another relative or community services.’ Although the Tribunal recognised that after the departure of the applicant’s mother, the applicant and his wife took on more responsibilities towards Lance’, it concluded that ‘the type and amount of care provided by the applicant did not change to any great degree in the relevant period. Accordingly, it did not fail to give consideration to whether the care provided had changed after the applicant’s mother returned to Sri Lanka in August 1997, as the applicant contends.
Contrary to the applicant’s submission, the Tribunal’s findings address the critical issue before the Tribunal. The Tribunal accepted that the applicant met the relevant special need relative requirements at the time of application for the visa in July 1998. However, it found that the applicant and his wife began their assistance from the time they arrived in Australia in December 1995 and the type and amount of care did not change to any great degree in the relevant period. It could not be satisfied that the applicant only first met those requirements since last applying for a substantive visa in August 1997. Accordingly subclause 806.211(d) was not met and the visa could not be granted.
Conclusion
In my view the Tribunal made findings of fact which were open to it on the evidence and which further, when applied to the legislative imperative, justified the conclusion reached by the Tribunal that the applicant did not become a special need relative during the relevant time. There has not been a jurisdictional error on the part of the Tribunal. Accordingly, the Tribunal’s decision is afforded protection under s.474 of the Act and the application, as amended, should be dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Associate: Anna French
Date: 9 February 2006
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