LOTAWA & MINISTER FOR IMMIGRATION - [2005] FMCA 906

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LOTAWA & MINISTER FOR IMMIGRATION

[2005] FMCA 906

MIGRATION – Visa – 802 Child (Residence) (Class BT) visa – Migration Review Tribunal – application for review of decision of the MRT affirming a decision of a delegate of the Minister not to grant the applicant a 802 Child (Residence) (Class BT) visa – applicant suffers from a number of congenital deformities – applicant a citizen of Fiji – applicant’s father a permanent resident of Australia.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.351

Applicant:

ASINATE NADU LOTAWA

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 3558 of 2004

Judgment of:

SCARLETT FM

Hearing date:

20 June 2005

Date of Last Submission:

20 June 2005

Delivered at:

SYDNEY

Delivered on:

20 June 2005

REPRESENTATION

Counsel for the Applicant:

Mr Churchill

Counsel for the Respondent:

Mr Wigney

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $4,500.00 and I allow six (6) months to pay.
Order one (1) is stayed for a period of three (3) months.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3558 of 2004

ASINATE NADAU LOTAWA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision by the Migration Review Tribunal.
The decision was made on 8 November 2004 and the decision of the Tribunal was to affirm that the decision under review at that time, which was a finding that the Visa Applicant was not entitled to be granted a Child (Residence) (Class BT) Visa.
The applicant is a young woman who is a citizen of Fiji. She was born on 25 May 1982. On 11 January 2002 she applied for a Child (Residence) (Class BT) Visa. Her father resides in Australia and the applicant wishes to live with her father who has been providing her with full financial support since 2001.
She has some physical disability which makes it difficult for her to obtain employment. She has lost all her fingers and thumb on her right hand and misses two fingers on her left hand. She has never been married. She has never been engaged to be married. She has not worked either full time or part time. She left school in Fiji after year 11. Since then she has not done any study or attended any educational institution. She has never applied for a job nor received any vocational guidance or assistance. She lives with her father. She does not require any assistance with self care. She sometimes has difficulties in chopping vegetables and lifting heavy pots when cooking. She can operate a computer. Her main everyday difficulty is cooking and her hands are the problem stopping her from working.
The father is a permanent resident of this country. He supports the applicant totally. He pays for her accommodation, food and clothing. He wishes to continue to do so.
The applicant was born with various deformities and has had operations for a restructure of the face. She confirmed that she had not worked or sought employment. She cannot do heavy lifting of any sort. She was embarrassed in Fiji about her appearance but does not feel so embarrassed in Australia. She has had treatment from a Doctor Phillip Conroy, who suggested she could do training that might assist her to get a job.
The difficulty that the applicant faces is that as she has reached the age of 18 years, clause 802.214 applies and the situation means that she is seeking to be classified as a dependent child of the father.

The definition of dependent child in Regulation 1.03 is this:
The natural or adopted child or step-child of a person other than a child who has a spouse or is engaged to be married, 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.
The applicant is not engaged. She is not married. She is over the age of 15. She is not engaged nor has she been engaged in full-time work. She underwent several procedures for facial and limb deformities in 1991. There has been some medical evidence provided in respect of her claim.
Dr Phillip Conroy, a treating doctor, provided a report dated

11 October 2004. The Tribunal also spoke to Doctor Conroy by telephone seeking evidence from him. There is also evidence from Doctor Robert Gates, a plastic and reconstructive surgeon, dated

9 December 2002. Doctor Gates' report, which is now somewhat old, refers to his examination of her and the history that she gave to him that she could feed, clean and clothe herself and even use a computer. He goes on to say:
I think she would need a formal report either for occupational therapist or a doctor of rehabilitation medicine. They would be able to do a much more formalised assessment of her functioning. Any of the major hospitals in Sydney would have these personnel but I am not sure whether you have some contacts through your organisation that may be able to do such an assessment for her without cost
The only other medical evidence is the evidence of Doctor Conroy. His evidence is more recent, as I said, 11 October 2004. He sets out a document headed: "Letter Regarding Employment Potential".
The fact that the applicant has multiple congenital defects, including forearm - amputation of an arm, the deformity and shortening of the thumb on the left hand, missing a left index finger and long finger, deformities of the ring finger and little finger, good movement of three digits with limited function due to weakness and deformity. She was born with a significant cleft deformity of her face. Facial reconstruction was carried out by the unit from Adelaide. She does not require any assistance with self-care. She completed year 11 in Fiji. She has not had paid employment in either Fiji or Australia.
The relevant parts of the letter I will quote in full:
Potential for employment. Asinate Nadu Lotawa will find considerable difficulty in gaining employment in the open market due to her upper limb deficits. Any employment will have to consider her cognitive ability and her retraining potential as she does not have any work skills. If the Tribunal wishes, I can organise an assessment by a psychologist to assist in the decision making. Further, Ms Lotawa reports problems due to her physical appearance much more in Fiji than in Australia.

She feels that in Fiji people constantly stare at her because of her appearance.
That is all the medical evidence that was before the Tribunal. Unfortunately, no assessment from a psychologist is made available to the Tribunal, which is unfortunate, as I note that Doctor Conroy suggested that would be an appropriate step to take. It is particularly important, noting Doctor Conroy's report, that the applicant feels less embarrassment about her appearance here in Australia than she did when she was in Fiji.
The Tribunal contacted Doctor Conroy by telephone and there is a summary (pages 104 and 105 of the Court book, paragraph 24) of his evidence:
The Tribunal had contacted Doctor Conroy by telephone and he gave evidence by telephone that can be summarised as follows:
The visa applicant faces real limitations in employment and would require higher level cognitive skills and most employers would not take her on as an employee. She would need a sympathetic and supportive employer. In his view, she could not be categorised as being incapacitated for work and some employment might be found for her. Her educational skills and experience and her cognitive skills would have to be assessed for the purpose of seeing whether she could be effectively trained for work.
It is unfortunate that such an assessment was not available to the Tribunal. I note that not only did Doctor Conroy suggest it in his oral evidence but Doctor Gates made a similar suggestion in his letter of

9 December 2002. Unfortunately, that material was just not available to the Tribunal.
Paragraph 36, the beginning of the second line, the Tribunal said:
The evidence from Doctor Conroy was that in his view she could not be described as incapacitated for work due to the total or partial loss of her bodily or mental functions. The Tribunal put that issue directly to Doctor Conroy. His evidence was that she might very well find it difficult to find work and her employment prospects were limited due to her upper limb deficits, lack of work skills, limited education and perhaps limited cognitive skills. However, he could not say that she was incapacitated for work. The evidence from the visa applicant and the nominator also indicates that the visa applicant has mobility, does not require assistance with self-care, could operate a computer and could perform a variety of functions including aspects of cooking.
The Tribunal found that the applicant could not satisfy clause 8202.214 and therefore was not entitled to the child (Residence) (Class BT) visa.
The concern I have is that the evidence from Doctor Conroy leads to a very hard decision indeed for the applicant. It is not of course the function of the Court in exercising jurisdiction under the Migration Act to re-hear the matter on the facts or make any merits review. Unfortunately for the applicant, the very issue as set out in the regulation, was put to Doctor Conroy and he replied that whilst the applicant might very well find it difficult to find work and her employment prospects were limited, he could not say that she was incapacitated for work.
Mr Churchill for the applicant has submitted that the Tribunal has either misconstrued the evidence or taken it out of context. Unfortunately, I am not prepared to follow that view. It does appear to me, from paragraph 36, that the Tribunal took the very question set out in Regulation 1.03(b) to Doctor Conroy and he replied directly.

He could not say that the applicant was incapacitated for work which must mean, due to the fact that he was asked that, that - he could not say she was incapacitated for work due to the total or partial loss of her bodily or mental functions.
There are two matters that concern me. One; the paucity of the evidence lead by the applicant from a medical point of view does not assist her. The assessment by a psychologist, as suggested by Doctor Conroy, could well have assisted or a formal report, either from an occupational therapist or a doctor of rehabilitation medicine may have assisted. As it is, the finding that harms her case is taken from the evidence of Doctor Conroy that whilst the applicant might very well find it difficult to find work, he could not say that she is incapacitated for work due to the total or partial loss of her bodily or mental functions.
The question that perhaps should be asked – and I have turned my mind to this – is whether, bearing in mind that the person concerned is a national of another country, is whether the doctor should have been asked whether, to his knowledge, the applicant would be able to obtain work in Fiji rather than in Australia. Whilst I accept that Mr Wigney of counsel submits that being incapacitated for work is an absolute, in my view, the difference between the societies in countries such as Australia and Fiji might well mean that a person who could possibly find some form of work with a sympathetic employer and the technological assistance in Australia, might have, in reality, no chance at all of finding that work in a country such as Fiji.
This thought is speculative and with regret I cannot decide, from the material before me, that that rather generous interpretation of the regulation is the one that is correct. Nevertheless, to my mind the likelihood of being able to obtain work that a person could do in their country of origin, to which they would be required to return, rather than in Australia where they are seeking to stay, is a matter that, in cases of this nature, should well be considered.
Whether the Full Court takes this view or another view on appeal; it is not for me to even attempt to predict.
The other concern that I have is that if the applicant's legal proceedings are ultimately unsuccessful, as they have been before me today, and in due course she is required to return to Fiji, she would indeed find life hard. There is certainly evidence which would indicate that she felt better about her personal appearance in Australia than she did in Fiji and felt that people were not staring at her as apparently happens back in Fiji. As I said; it would have been helpful to have psychological evidence of that.
The other concern is that the situation for people who are employing people with a disability in Fiji would be less than a large and advanced country such as Australia. Fiji also is a country that has very little in the way of social services and an applicant who may have been able to obtain some form of work with a sympathetic employer in Sydney may be condemned to a life of permanent unemployment in Fiji.
Those issues however are perhaps issues that might more properly be dealt with by a submission to the Minister under s. 351 of the Migration Act.
The Court should allow some time for the applicant's solicitor, who of course has not been in the case from the beginning, but had to run the case as best he could when so much of the material had already been put in place, to allow time for the applicant's solicitor to obtain a copy of the transcription of the reasons for this decision and to allow time for the applicant's solicitor to consider what is an appropriate step to be taken for the welfare of his client, I consider it appropriate that I stay the operation of the orders for a period of three months. I do not propose to stay them indefinitely. To my mind a three month stay will at least allow the applicant and her solicitor to get together and work out a strategy which should help this young lady to get the best possible case before a decision maker who is considering her application.
Unfortunately, on my reading of the law, the applicant cannot be successful on the material before me. I am obliged to dismiss the application.
On the question of costs; normally in this jurisdiction, costs follow the event, that the applicant has not been successful today. It has been put to me that she is not in employment and has no funds and her likelihood of obtaining employment is relatively low. It has been held that impecuniosity is not a ground as such in this jurisdiction for the Court to exercise its discretion not to make an order for party and party costs. In my view, that is the situation, although I accept the fact that the Court cannot ignore that an applicant without funds is going to find a costs order of the nature contemplated here to be extremely difficult. I am also mindful of the fact that the applicant has her own legal costs to pay. She has the services of Mr Churchill who is certainly doing the best that he can do in her interests but even he cannot expect to work for nothing.
It is a matter where I should make an order for costs. I would assess costs on a party and party basis. I will allow time to pay those costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: 29 June 2005