Marya v Minister for Immigration

[2013] FCCA 2332

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARYA v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2332

Catchwords:
MIGRATION – Review of a decision of the Migration Review Tribunal – application for a Child (Residence) (Class BT) Subclass 802 visa – no jurisdictional error – application dismissed.

Legislation:

Federal Magistrate Court Rules 2001 (Cth), r.13.03C(1c)

Migration Act 1958 (Cth), ss.65, 351

Migration Regulations 1994 (Cth), cls.1.03, 1.05A; Sch 2 cls.802.212(1)

Applicant: EVE SANSITHAVI MARYA
(BY HER LITIGATION GUARDIAN DILEK MARYA)

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 510 of 2012

Judgment of: Judge Hartnett

Hearing date: 23 December 2013

Delivered at: Melbourne

Delivered on: 23 December 2013

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Ms Whittemore

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The name of the First Respondent be changed to ‘Minister for Immigration and Border Protection’.

2. The Application filed 4 November 2013 is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $1,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 510 of 2012

EVE SANSITHAVI MARYA
(BY HER LITIGATION GUARDIAN DILEK MARYA)

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court this day is an Application in a Case filed on behalf of the Applicant on 4 November 2013.  In that Application the orders sought are set out as follows:-

   “(1) Decision to be re-reviewed by MRT

   (2) Costs awarded to be deemed invalid

   (3) Order made by Federal Magistrate Hartnett to be set aside that was made on 4/09/ 2012.”

2. In support of that Application is an Affidavit sworn by the Applicant’s father and litigation guardian, Mr Dilek Marya, on 4 November 2013 and filed the same date.  In that Affidavit the Applicant’s father claimed that there was new information to support the application.  Otherwise, it contained no factual material of relevance or assistance in the proceedings.  The First Respondent sought that the application be dismissed and that costs follow the event.

3. As the Applicant’s father failed to include in his evidentiary sworn material any evidence as to his failure to attend earlier on the hearing date of 4 September 2012, when his application was before the Court and the Court ordered, pursuant to r.13.03C(1c) of the then Federal Magistrate Court Rules 2001 (Cth) that the Application filed 2 May 2012 be dismissed and further that the litigation guardian pay the costs of the First Respondent fixed in the sum of $2,000, the Court invited the Applicant’s father to enter the witness box and give sworn evidence this day as to his failure to attend on the earlier hearing of the matter, some 15 months ago. 

4. The Applicant’s father gave sworn evidence that at that time of the earlier hearing his wife was 32 weeks pregnant and was suffering from depression.  He claimed that his wife gave birth (subsequently and in November 2012) and that at the time of the hearing he was, as a result of his wife’s condition, required to look after both his wife and their two year old daughter.  No evidence was provided - around the time of hearing of 4 September 2012, nor in the intervening period, nor on the hearing this day - of medical corroboration of the Applicant’s father’s claims made in the witness box on this hearing. 

5. No communication has ever been had either to the Court or to the First Respondent (and by the Applicant) as to any health difficulties of the Applicant father’s wife, or any family commitments of the Applicant’s father which prevented him from attending the hearing on 4 September 2012. The Applicant’s father failed to satisfy the Court that his failure to attend the hearing was for the reasons as claimed by him. When asked as to why it was that jurisdictional error attended the decision of the Migration Review Tribunal (‘the Tribunal’), the Applicant’s father gave evidence that his daughter was stateless for a six month period and that his daughter was now a citizen of India, as was he, whilst his wife was a citizen of Sri Lanka. None of this evidence supported a claim that the decision of the Migration Review Tribunal of 30 March 2012 contained jurisdictional error, or that there was any substantial merit to the application of the Applicant. It would simply be futile to reinstate the Applicant’s earlier application to review the decision of the Tribunal. The Tribunal affirmed a decision not to grant the Applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (Cth).

History

1. The Applicant applied to the Department of Immigration and Citizenship (as it then was) for a Child (Residence) (Class BT) Subclass 802 visa (‘the visa’) on 1 August 2011.  The Delegate of the Minister for Immigration and Citizenship (‘the Delegate’) refused to grant the visa on 5 August 2011.  The Delegate’s refusal was on the basis that the Applicant did not satisfy cl.802.212(1) of Sch.2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) because neither of the Applicant’s parents was an Australian citizen, the holder of a permanent visa, or an eligible New Zealand citizen.  The Applicant applied to the Tribunal on 5 September 2011 for review of the Delegate’s decision. 

2. At the time the visa application was lodged, the Child (Residence) (Class BT) visa contained Subclass 802 (child) and Subclass 837 (orphan relative): item 1108A of Sch.1 to the Regulations. The only subclass in respect of which any claims were advanced by the Applicant was Subclass 802 (child). The criteria for a Subclass 802 visa were set out in part 802 of Sch.2 to the Regulations. At least one member of the family unit must satisfy the primary criteria. In the facts of this case, the primary criteria required that at the time of application, the visa applicant must be a dependent child (as defined in Regs.1.03 and 1.05A of the Regulations) of an Australian citizen, the holder of a permanent visa, or an eligible New Zealand citizen (clause 802.212(1)(a)). The visa applicant must not have turned 25 years of age, although there were exceptions. “Dependent child” was defined in Reg.1.03 of the Regulations and is set out herein:-

   ““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.”

3. “Dependent” was defined in Reg.1.05A of the Regulations and is set out herein:-

   “(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.”

4. The Applicant was born in Australia on 26 August 2010.  She is an Indian citizen.  Her father, the Applicant’s litigation guardian in these proceedings, is an Indian citizen, and her mother is a Sri Lankan citizen.  Accompanying the visa application was a letter dated 21 July 2011 from the Applicant’s representative stating, in part, that:-

   “It is further submitted that this application may eventually fail because she (the visa applicant) does not satisfy some of the criteria set out in Schedule 2. Eve, through her parents, understands this situation. Therefore, the further purpose of this application is to place Eve’s (and her parents) case eventually before the Minister to seek his compassion pursuant to s351 of the Migration Act.”

5. The Applicant and her parents appeared before the Tribunal on 14 March 2012 to give evidence and present argument.  The Tribunal told the Applicant’s parents that it appeared that the Applicant could not satisfy the requirements of the visa sought for the reason that she was not a dependent child of an Australian citizen, permanent resident or eligible New Zealand citizen, and nor did she meet the requirements of paragraph (b) of the definition of “step-child” in Reg. 1.03 of the Regulations.  The Applicant’s parents told the Tribunal at the time of the hearing they were both presently the holders of bridging visas.  They had come to Australia as the holders of student visas but later, as a result of bad advice, applied for protection visas, which were refused.  The Applicant’s parents told the Tribunal that they considered their case might appropriately be referred to the Minister for Immigration and Citizenship (‘the Minister’) (as he then was) for consideration, on the basis that it was not possible for the family to settle permanently in either India or Sri Lanka.  As they could not live as a family in either India or Sri Lanka, they wished to remain in Australia.

6. At the time of application and at the time of the Tribunal decision, the Applicant was not the dependent child of an Australian citizen or of a holder of a permanent visa or of an eligible New Zealand citizen. She therefore did not satisfy cls.802.212(1) or 802.221(1) of Sch.2 of the Regulations. No material was before the Tribunal which would permit it to make a finding that the Applicant met prescribed criteria for the visa sought in respect of the other visa subclasses of the visa class sought. The Tribunal considered the Applicant’s submissions that the matter was one which might appropriately be referred to the Minister for the exercise of ministerial discretion pursuant to s.351 of the Act. However, there was independent country information before the Tribunal which ran contrary to the Applicant’s submissions, and in particular, indicated that the Applicant’s father could apply for residence in Sri Lanka. The Tribunal concluded that the case did not fall within the ministerial guidelines relating to the discretionary power, as set out in Procedures Advice Manual 3 (‘PAM 3’), as an appropriate case to refer to the Minister for the Minister to determine whether to exercise his discretion to intervene pursuant to s.351 of the Act.

7. No jurisdictional error attends the decision of the Tribunal and there is no merit in the Applicant’s application. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 6 February 2014