Lim v Minister for Immigration & Anor
[2007] FMCA 1127
•27 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LIM v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1127 |
| MIGRATION – Application for Preferential Relative (Migrant)(Class AY) visas – review of decision of Migration Review Tribunal – remaining relative – contact with overseas near relatives – no evidence – relevant and irrelevant considerations – mala fides – natural justice – application dismissed. |
| Federal Magistrates Act 1999, s.3 Migration Act 1958 Migration Regulations 1994, reg.1.15, Schedule 2 subclass 104 Federal Court Rules, O.62 Federal Magistrates Court Rules 2001, r.103, Div 21.2, rule 44.15, item 1 of Part 2 of Schedule 1 |
| Elliott v Minister for Immigration & Multicultural Affairs (2007) 156 FCR 559 Minister for Immigration & Ethnic Affairs v Pochi (1980) 44 FLR 41 Minister for Immigration & Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 NAKF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 412 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397 VAAW of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 202 |
| Applicant: | BAK VENG LIM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SZ 1718 of 2004 |
| Judgment of: | Mowbray FM |
| Hearing dates: | 31 May, 21 June, 5 August 2005 29 March 2006 |
| Date of last submissions: | 10 April 2007 |
| Delivered at: | Canberra |
| Delivered on: | 27 July 2007 |
REPRESENTATION
| Advocate for the Applicant: | Mr R C Turner |
| Solicitors for the Applicant: | McMahons National Lawyers |
| Counsel for the First Respondent: | Ms R A Pepper |
| Solicitors for the First and Second Respondents: | Sparke Helmore |
ORDERS
The name of the first respondent be amended to Minister for Immigration and Citizenship.
The application be dismissed.
The applicant pay the first respondent’s costs and disbursements, other than those for 5 August 2005, as agreed or taxed under Order 62 of the Federal Court Rules and calculated at 85 per cent of the costs payable under those Rules.
Each party bear its own costs for 5 August 2005.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
SZ 1718 of 2004
| BAK VENG LIM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this matter the applicant, Mr Bak Veng Lim (the review applicant), seeks judicial review of a decision of the Migration Review Tribunal of 28 April 2004. That decision affirmed a decision of a delegate of the Minister to refuse Preferential Relative (Migrant)(Class AY) visas to Ms Lim Bac Chou (the visa applicant), the review applicant’s sister, her husband and three of their children.
Background
The review applicant is an Australian citizen and the brother and sponsor of the visa applicant and her family who are citizens of Cambodia. The visa applicant’s family consists of herself, her husband and her three Cambodian children. At the time of the application for the visas the three children were all minors. There is also a daughter of the family who came to Australia with the visa applicant’s sister. This daughter is an Australian citizen.
An application for the visas was lodged on 12 March 1997. The application was based on the visa applicant being the “remaining relative” of her brother, the review applicant, who sponsored her for the grant of the visa. The visa applicant stated in the visa application that her parents were deceased and her two siblings lived in Australia and were Australians. She also stated that her spouse’s parents were deceased as was his brother, Mr Chhour Kong Eav.
The delegate was subsequently provided with information which suggested that the visa applicant had two sisters living in France and that her spouse’s brother, Mr Chhour Kong Eav, was married and living in Cambodia. The delegate consequently refused the application on
11 December 2000.
An application for review was lodged with the Tribunal on 9 March 2001. On 28 April 2004 the Tribunal affirmed the delegate’s decision. On 4 June 2004 the review applicant sought judicial review of that decision.
Tribunal consideration
The Tribunal’s findings and reasons have been accurately summarised in the first respondent’s submissions filed on 26 May 2005:
10.The Tribunal found that the primary visa applicant satisfied subclause 104.211(2)(b) of the Migration Regulations 1994 (Cth) (“the Regulations”) as she was sponsored by an Australian relative as defined in reg 1.03 (CB 164.8).
11.It then considered whether the primary visa applicant met the definition of “remaining relative” contained in reg 1.15 of the Regulations. The Tribunal found that the primary visa applicant satisfied paragraphs 1.15(1)(a) and (b) of the Regulations because at the time of the application she was the sister of the review applicant and the review applicant usually resided in Australia (CB 165.3 – 165.4).
12.However, the Tribunal further found that the primary visa applicant and her spouse usually resided in Cambodia, that the primary visa applicant’s spouse had an overseas near relative, namely, his brother, who was alive (CB 167.3). It did not accept that the overseas near relative had died and found, on the basis of information from the Marriage and Death Registration office in Phnom Penh, that one of the death certificates submitted in support of this claim was fraudulent (CB 166.3). It noted that it was unable to be satisfied that the second death certificate submitted in support of this claim was genuine in circumstances where the Australian Embassy had advised that it contained “significant irregularities” (CB 166.3). It also found it implausible that the primary visa applicant was unaware of her spouse’s brother’s death when she lodged her application for a visitor visa in October 1996 as her husband was aware of the death in August 1996 (CB 166.6 – 167.2).
13.Accordingly, the Tribunal found that the primary visa applicant and her spouse usually resided in the same country as an overseas near relative and did not satisfy subparagraph 1.15(1)(c)(i) of the Regulations (CB 167.4).
14.Further, the Tribunal found that it was not satisfied that the primary visa applicant had not had any contact with her two sisters in France for a reasonable period before the date of the application (CB 168.7). It did not accept that she had omitted to include their details in her visa application because of her alleged lack of contact with them for a sustained period of time (CB 168.6).
15.These findings therefore meant that the primary visa applicant could not satisfy the necessary criteria for the grant of a visa.
Issues
The application for review lodged on 4 June 2004 relied on two grounds – denial of natural justice and irrelevant considerations. This was followed by two amended applications, the second of which has the following grounds:
1. The Applicant was denied natural justice
(a)failing to provide relevant information and documents to the Applicant
(b)The Tribunal failed to base it’s findings on reasonably probative evidence
PARTICULARS
(i)There was no reasonably probative evidence on which the Tribunal could base it’s finding that the visa applicant had contact with any overseas near relative for a reasonable period.
(ii)There was no reasonably probative evidence on which the Tribunal could base it’s finding that the visa applicant had two sisters living in France.
2. The Tribunal relied upon irrelevant material
(a)The Tribunal, at paragraph 42, relied upon the fact that the forms were written in both Khmer and English and the Khmer corresponded with the English.
(b)There was evidence before the Tribunal, paragraph 22, that the Visa Applicant did not know Cambodian script and asked someone to fill the Khmer section on her behalf.
3. The Tribunal failed to have regard to relevant material
(a) that the visa applicant did not read English or Khmer.
4. The Tribunal failed to carry out its statutory obligation in a bona-fide manner.
5. The Tribunal’s finding was based on a particular fact, that the visa applicant had contact with her two sisters living in France within a reasonable period, and that fact did not, on the evidence before the Tribunal, exist.
6.The Tribunal made an erroneous finding and reached a mistaken conclusion in finding that the visa applicant had contact with her two sisters in France within a reasonable period.
The Tribunal found two bases for finding that the visa applicant was not a “remaining relative” and therefore not entitled to a visa:
·it was not satisfied that the visa applicant’s spouse’s brother, Mr Chhour Kong Eav, was dead at the time of application. It found that he resided in Cambodia at the time of the application
·it was not satisfied that the visa applicant had not had contact with her two sisters in France, Lim Kim Chov and Lim Bak Choung, for a reasonable period before the date of the application.
Both parties accept that it is necessary for the applicant to demonstrate that both these bases are invalid due to legal error for the applicant to succeed in these proceedings. It would not be sufficient for only one to be found to be unsound. If one were to stand and the other to fall, the visa applicant would still not meet the essential test for a “remaining relative”.
Relevant legislation
To be eligible for the particular visa the visa applicant must satisfy the requirements of Subclass 104 set out in Schedule 2 to the Migration Regulations 1994 as they stood at the time of the visa application. Subclause 104.211 required the visa applicant to be, relevantly, a “remaining relative” of the review applicant, her sponsor at the time of her application, March 1997.
Regulation 1.15 which contains the definition for a “remaining relative” relevantly provides:
(1)An applicant for a visa is a “remaining relative” of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:
(a)the other person is a parent, brother, sister, step-parent, step-brother or step-sister of the applicant; and
(b)the other person is usually resident in Australia; and
(c)if the applicant or the applicant’s spouse (if any) has an overseas near relative:
(i)the applicant and the applicant’s spouse (if any) usually reside in a country, not being Australia, that is different to the country in which that relative resides; and
(ii)neither the applicant nor the applicant’s spouse (if any) have had contact with that relative within a reasonable period before making the application; and
…
(2)In this regulation: overseas near relative, in relation to an applicant, means a person who is:
(a)a parent, brother, sister, step-parent, step-brother or step-sister of the applicant or of the applicant’s spouse (if any); or
…
other than a relative of that kind who:
(c)is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(d)is usually resident in Australia.
Two sisters in France
As I have indicated at [9] above the applicant has to satisfy the Court that both “remaining relative” bases for the Tribunal’s decision are invalid if he is to be successful.
I therefore propose to consider first those grounds which relate to the finding about contact with the two sisters in France.
Tribunal reasoning
It is useful to set out in full the Tribunal’s reasons on this aspect of the case:
45. For the sake of completeness the Tribunal has also considered the evidence regarding the primary visa applicant’s 2 other overseas near relatives, her sisters Lim Kim Chov and Lim Bak Choung. The last stated country of residence of Lim Kim Chov and Lim Bak Choung is France. The Tribunal is therefore satisfied that the 2 sisters usually reside in France, which is a different country from the one in which the primary visa applicant usually resides. On that basis, subparagraph 1.15(1)(c)(i) is satisfied in respect of Lim Kim Chov and Lim Bak Choung. The Tribunal has therefore considered whether the primary visa applicant has had contact with the 2 sisters in France within a reasonable period (under policy, 3 years) prior to making the application.
46. The primary visa applicant has claimed that she has not had contact with the 2 sisters since they were separated from each other during the Pol Pot regime. She told the Tribunal that she found out from the review applicant that they had gone to live in France, after she lodged her visa application that is the subject of this review. The review applicant told the Tribunal that although he obtained information when he was in the UN camp that the 2 sisters had gone to France, he did not know that he could seek assistance from organisations such as the UNHCR to try to locate them. He stated that when he visited France in 1990 or 1992 he relied on making enquiries with people who knew the sisters.
47. The review applicant’s representative has also submitted that the primary visa applicant has never denied that she has 2 sisters in France, but has consistently stated that she has had no contact with them for well over 5 years.
48. The Tribunal is not satisfied that the primary visa applicant and the review applicant have provided accurate or reliable evidence in regard to the 2 sisters residing in France, and whether the primary visa applicant has had contact with them in a reasonable period prior to making the application. The Tribunal finds that if the review applicant discovered that his sisters were in France when he was in the UN camp, then he would reasonably have known or obtained information about how agencies such as the UNHCR could help in locating them.
49. The Tribunal is not satisfied that the primary visa applicant would not have received information from the review applicant about his attempts to locate the 2 sisters in France, prior to lodging her visa application, particularly if the review applicant had travelled to France to try to locate them as he had claimed.
50. The Tribunal notes the evidence that the review applicant completed the Class AY visa application form on behalf of the primary visa applicant in early 1997. The Tribunal is not satisfied that the review applicant would not have reasonably known that the relevant question in the application form requested details of all the primary visa applicant’s brothers and sisters, and that there was no qualifying instruction to omit details of siblings if the primary visa applicant had not had contact with them for a certain period.
51. The Tribunal is also not satisfied that when the primary visa applicant completed the family composition form as part of her visitor visa application lodged in October 1996, she would not have reasonably known that she should provide details of all her siblings, whether they were alive or dead or missing. The form was in English and Khmer, and the Tribunal is satisfied that even if the primary visa applicant received assistance from another person in completing the form, she would have reasonably known what information was being requested in the form. The Tribunal does not find it credible that the primary visa applicant stated that she did not know all the details of what the form requested and had asked someone to help her, but seemed to understand that she should not provide details of her sisters if she did not have contact with them.
52. Based on the evidence before it the Tribunal is not satisfied that the primary visa applicant has not had contact with the 2 sisters in France (Lim Kim Chov and Lim Bak Choung) for a reasonable period before the date of application. The Tribunal finds that the requirements of subparagraph 1.15(1)(c)(ii) are not satisfied in respect of the overseas near relatives Lim Kim Chov and Lim Bak Choung. Accordingly, the primary visa applicant does not satisfy the definition of remaining relative in respect of the evidence relating to her sisters Lim Kim Chov and Lim Bak Choung.
No evidence
The grounds put by the applicant are grounds 1(b), 5 and 6.
In VAAW of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 202 the Full Court said:
24 There is reference in the reasons for decision of the primary Judge to Curragh Queensland Mining Ltd v Daniel(1992) 34 FCR 212 and in particular, to the observations of Black CJ (with whom Spender and Gummow JJ agreed), at 220-221, as follows:
" ... A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious and immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion." (Emphasis added)
25 In Rajamanikkam Gleeson CJ at [33] applied this approach: see also [43]. In that decision Gaudron and McHugh JJ made the following observations at [56]-[58]
"... And when regard is had to the requirement that the decision be `based ... on ... a particular fact', the paragraph, in our view, is to be understood as referring to a finding of fact without which the decision in question either could not or would not have been reached. In this sense, it is, in our view, appropriate to speak of a `fact critical to the making of the decision'.
Whether a decision could or could not have been reached without a particular factual finding may depend either on logic or on the law to be applied. To the extent that a decision could not have been reached without a particular factual finding because of the law to be applied, there may have been some overlap between paras (a) and (b) of s 476(4) although, of course, para (a) imposed a less stringent test.
Whether a decision would or would not have been made without a particular factual finding depends on indications to that effect in the decision, the reasons for decision or the decision making process. And unless it is possible to say on a proper analysis of the decision, the reasons for the decision or the decision making process that, had a particular finding not been made, the decision in question would not have been reached, it is, in our view, impossible to say that the decision was based on that finding." (Emphasis added) (footnotes omitted)
Mr Turner for the applicant also referred me to the following passage from Deane J in Minister for Immigration & Ethnic Affairs v Pochi (1980) 44 FLR 41 at 67-68:
I respectfully agree with the conclusion of Diplock L.J. that it is an ordinary requirement of natural justice that a person bound to act judicially "base his decision" upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined. … Implicit both in Diplock L.J.'s conclusion and in that well-established principle are both the requirement that findings of material fact of a statutory tribunal must ordinarily be based on logically probative material and the requirement that the actual decision of such a tribunal must, when relevant questions of fact are in issue, ordinarily be based upon such findings of material fact and not on mere suspicion or speculation.
Particular (ii) of ground 1(b) asserts that there was no reasonably probative evidence on which the Tribunal could base its finding that the visa applicant had two sisters living in France. Initially Mr Turner also pursued this in oral submissions. However he later conceded that there was evidence to support this factual finding. He really had no choice. The applicant’s agent put to the Tribunal on at least a couple of occasions that “the applicant has never denied she has had two sisters in France”.
The essential points in the no evidence claim as put by Mr Turner concern the contact issue:
·the Tribunal made a positive finding that there are two sisters in France
·the visa applicant gave evidence that she had had no recent contact with the two sisters from whom she had been separated during the Pol Pot regime
·the review applicant said he had obtained information when he was in a UN camp that the two sisters had gone to France. He went to France more than ten years ago but could not find them
·the Tribunal did not believe the visa applicant
·but there was not “a scintilla of evidence of contact”
·the Tribunal made a finding “based on a particular fact, that the visa applicant had contact with her two sisters living in France within a reasonable period” (ground 5)
·“that fact did not, on the evidence before the Tribunal, exist.”
The argument is misconceived. The Tribunal did not make a positive finding “that the visa applicant had contact with her two sisters living in France within a reasonable period”. Rather it found “[b]ased on the evidence before it the Tribunal is not satisfied that the primary visa applicant has not had contact with the 2 sisters in France … for a reasonable period before the date of application.”
Under regulation 1.15(1) it was for the applicant to satisfy the Tribunal that the visa applicant had had no contact with the relative within a reasonable period. The Tribunal is not required to make a positive finding of contact. It made no such finding here. Rather its finding was a lack of satisfaction. The applicant had not persuaded the Tribunal there had been no contact.
This finding of the Tribunal was one available to it on the material before it, including:
·the evidence of both the visa applicant and the review applicant of no contact
·the review applicant’s evidence of discovering the location of the sisters when he was in the UN camp
·the failure to mention the sisters in the current visa application and in the 1996 visitor visa application
·the failure to mention the two sisters until it was revealed by the UNHCR document.
It is clear that the Tribunal found the evidence of the visa applicant and review applicant not to be credible on this issue. It was “not satisfied that [they] have provided accurate or reliable evidence …”. It rejected the evidence and the associated explanations for no contact. It therefore was not able to reach the required satisfaction on whether contact had occurred. This conclusion was open to it on the material before it. To suggest that I should find otherwise would be asking me to engage in merits review, something I am unable to do.
In my view the Tribunal has not breached the no evidence rule as explained in Curragh or Rajamanikkam, nor the natural justice requirement expounded by Deane J in Pochi.
Relevant/irrelevant considerations
Grounds 2 and 3 claim that the Tribunal relied on irrelevant material, namely certain family composition forms, and failed to have regard to the fact that the visa applicant did not read English or Khmer.
The Tribunal had before it a number of forms the provenance of which was not always clear, containing details on family composition:
·a form which appears to have been attached to the 1996 visitor visa application (CB 58)
·a partly readable UNHCR bio-data form (CB 72)
·a form from the review applicant’s migration application (CB 73)
·a form in Khmer the origin of which was uncertain, but it may be the reverse of CB 58 (CB 76)
·a “Details of Relatives” form which appears to come from a 1994 departmental file which had been destroyed (CB 135).
The applicant contended in his written submissions that the form at CB 135 was irrelevant. This seemed to be broadened during oral submissions to cover some of the other forms. It became very confusing at times to follow which forms were the subject of the challenge.
Mr Turner said the CB 135 form was irrelevant because:
·it was not completed by the visa applicant as the handwriting differed from the handwriting in other documents in the Court Book
·the visa applicant did not read or write English or Khmer
·it is not signed by the visa applicant as the signature differed from that appearing elsewhere in the Court Book
·it is not dated
·there is no evidence that an application was made in 1994
·if the file was destroyed why was one form retained.
I agree with the first respondent that the applicant’s submissions are without merit:
·the applicant is confused about the forms and it is unclear to which he is referring
·there is no evidence before the Court that these forms were not completed for or on behalf of the visa applicant or review applicant
·there is no evidence that the visa applicant did not understand what was required by the forms
·the Tribunal did not say that because a form was in two languages – English and Khmer – the visa applicant must have understood it. It was merely noting a matter of fact.
But of critical importance is that these forms provide information on the composition of the relevant family. This is at the heart of the question the Tribunal was required to consider. The question of family composition is thus highly relevant.
Furthermore Mr Turner has confused relevant considerations with evidence going to those considerations. The forms contain evidence. The relevant consideration is family composition. The Tribunal was free to accept or reject the various pieces of evidence and give the weight to each which it thought appropriate.
The applicant also asserts that the Tribunal failed to take into account a relevant consideration – “[t]hat the visa applicant ‘did not know Cambodian script’ and ‘did not know English’.”
As the first respondent says the Tribunal clearly took these matters into consideration – see for example [22] at CB 163, [42] and [51] of the reasons for decision.
Mala fides
The applicant contends that the “Tribunal failed to carry out its statutory obligation in a bona-fide manner.” He relies on a number of alleged failings in the Tribunal’s consideration of the death or otherwise of the visa applicant’s spouse’s brother as evidence of this, as well as the Tribunal handling of this case in its totality.
The applicant also asserts “[t]here is no basis in such findings for the Tribunal’s assumption that the visa applicant had had any contact with those two sisters in the last three years.” This is conduct he says which evidences mala fides.
I have already dealt in some detail with the contact issue. Needless to say the applicant’s submissions do not accurately reflect the Tribunal’s findings.
In SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397 at [19] the Full Court said:
An allegation of bad faith is a very serious one. Bad faith in this context implies a lack of an honest or genuine attempt to undertake the task and involves a personal attack on the honesty of the decision maker.
Gyles J concluded in NAKF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 412 at [24]:
Bad faith cannot be constituted by recklessness in the sense of negligence, no matter how gross the negligence. A tribunal member cannot blunder into bad faith, no matter how stupid and careless the tribunal member is, any more than a person can blunder into deceit …. What is required to make out this case is to find that the tribunal member was recreant to his duty by wilfully and deliberately making the impugned decision without attempting to carry out the statutory duty lying upon him – tossing a coin without reading the file, allowing in every third applicant, or allowing in applicants from various countries in rotation might be examples. (references omitted)
Mr Turner has also referred me to the passage in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 at [18] where the Full Court mentions “a lack of an honest attempt to perform the relevant statutory function”. He says that this case is one where there is such a lack of an honest attempt.
Nothing put to me on behalf of the applicant about the Tribunal’s conduct – whether concerning the visa applicant’s spouse’s brother, the two sisters in France or in totality – comes close to meeting the high test for lack of bona fides. Using the words of Gyles J in NAKF at [32]:
By no stretch of the imagination could any of them, alone or in combination, establish bad faith or lack of good faith.
Elliott
The applicant’s lawyers recently referred me to the decision of the Full Court in Elliott v Minister for Immigration & Multicultural Affairs (2007) 156 FCR 559, a decision on the “remaining relative” provisions of the Regulations.
I have not found this decision of any great assistance. The facts are not particularly similar and much of the decision centred on the Tribunal’s application of relevant government policy in PAM 3. The Court found that the Tribunal had misconstrued the requirements of PAM 3 and had therefore “failed to have effective regard to those considerations which it was bound to take into account in applying reg 1.15(1)(c)(ii)”([37]). There is no allegation of misapplication of government policy in the case before me.
Further in Elliott the Tribunal did not express any reservations about the credibility of the parties (see [28] and [33]). This was central to the Tribunal’s decision in this case (see [48]-[51] of the reasons for decision).
Conclusions
All of the grounds challenging the Tribunal’s findings on the two sisters in France have failed.
For the reasons given at [8] – [9] it is unnecessary to consider the other grounds which relate solely to the visa applicant’s spouse’s brother. In these the applicant asserted that he had been denied natural justice because of an alleged misrepresentation of information from Cambodian officials about a death certificate for that brother and because of the failure of the Tribunal to provide further particulars requested by the review applicant. For completeness I note that I would have rejected both these complaints. The review applicant was provided with the substance of the adverse material for comment. There is also no obligation on a tribunal to provide further and better particulars of the nature requested by the review applicant.
The applicant cannot succeed in this matter. The Tribunal’s finding that she does not satisfy the test for a “remaining relative” resulting from its consideration of the two sisters in France is not legally flawed. Consequently its alternative reasoning for finding that she does not satisfy the test for a “remaining relative” based on its examination of the alleged death of the visa applicant’s spouse’s brother is no longer relevant, although as briefly noted above I would have rejected the challenge to this also.
I am not satisfied that the Tribunal made any legal error going to jurisdiction.
I find that the decision of the Tribunal is a privative clause decision having regard to the High Court’s decision in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
In addition, the decision of the Tribunal was a bona fide attempt to exercise its power. It clearly related to the subject matter of the Migration Act 1958 and to the powers conferred on the Tribunal.
The application must be dismissed. The applicant must pay the first respondent’s costs.
Rule 44.15 and item 1 of Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 provide for costs orders in a normal migration case. I intend to dispense with this rule as this has been a somewhat unusual case, extending for three half days of hearing plus a listing which was vacated due to an administrative error.
Division 21.2 of the Rules allows me to set a method by which costs should be calculated and to refer the costs for taxation under Order 62 of the Federal Court Rules. I consider that this is the appropriate course in this case. Having regard to the objects set out in section 3 of the Federal Magistrates Act 1999 – see also rule 1.03 – these costs should be calculated at 85 per cent of the scales applied on taxation in the Federal Court.
I have already ordered that each party bear its own costs for 5 August 2005.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Mowbray FM.
Associate: Hal Tilemann
Date: 27 July 2007
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