Mohammed v Minister for Immigration and Multicultural Affairs
[2000] FCA 277
•1 MARCH 2000
FEDERAL COURT OF AUSTRALIA
Mohammed v Minister for Immigration & Multicultural Affairs [2000] FCA 277
MIGRATION – application for permanent visa - application for review of a decision of the Migration Review Tribunal (“the Tribunal”) – whether Tribunal observed procedures required by the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth) to be observed in connection with the making of the decision – whether Tribunal provided to the applicant information required to be given under s 359A of the Act – whether Tribunal required to provide information to the applicant as to the standard to be satisfied for the grant of a visa – whether Tribunal required to provide information to the applicant as to the issues
WORDS & PHRASES – “particulars of information”
Migration Act 1958 (Cth), ss 359A & 476(1)(a)
Migration Regulations 1994 (Cth), reg 1.03
FAIZAL MOHAMMED v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 1448 OF 1999
EMMETT J
1 MARCH 2000
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N1448 OF 1999
BETWEEN:
FAIZAL MOHAMMED
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RespondentJUDGE:
EMMETT J
DATE OF ORDER:
1 MARCH 2000
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1448 OF 1999
BETWEEN:
FAIZAL MOHAMMED
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE:
EMMETT J
DATE:
1 MARCH 2000
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant is a citizen of Fiji. On 15 February 1998 he arrived on a visitor’s visa, sub-class 676, which authorised him to remain in Australia for one month. On 24 August 1998 he applied for an AG Change in Circumstances (Residence), sub-class 806 Family, visa. The basis for that application is that the applicant is a special need relative of his brother Mohammed Ayas.
A decision refusing to grant the visa was made on 29 April 1999. An application was made to what is now the Migration Review Tribunal (“the Tribunal”) for review of that decision on 27 May 1999. On 15 July 1999 the applicant was invited to attend a hearing. The hearing was set down for 21 September 1999. The applicant did not attend the hearing, nor did he advise the Tribunal that he would not be attending. On 15 November 1999 the Tribunal affirmed the decision under review to refuse to grant the visa applied for.
The applicant now applies to this court for an order of review of the decision of the Tribunal. The grounds specified in the amended application are as follows:
“1.S. 476(1)(a) of the Migration Act 1958 as amended which requires that the procedures required by that Act or the regulations to be observed in connection with the making of the decision was not observed.
2. Particulars:
(i)S 359A(1) requires the Tribunal to give to the applicant particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review and ensure, as far as reasonably practicable, that the applicant understands why it is relevant to the review and invite the applicant to comment on it.
(ii)The Tribunal erred in law by confining its obligation to inviting the applicant to attend a hearing without in any way having regard to the provisions contained in S. 359A(1), namely the obligation to particularise the matters which would be the reason for affirming the decision under review.”
It is common ground that in order to satisfy the criteria for the grant of the visa the applicant would have to satisfy the definition of special need relative in regulation 1.03 as it was relevantly in force. The term “special need relative” was relevantly defined as follows:
“‘Special need relative’, in relation to an Australian citizen usually resident in Australia…means a relative who is willing and able to provide substantial and continuing assistance to the citizen…if:
(a)the citizen…has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen…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…; or
(ii)welfare, hospital, nursing or community services in Australia;”
The basis of the application is that the applicant is a “special need relative” of his brother, Mohammed Ayas who is an Australian citizen. In his original application, the applicant stated the circumstances that led to his brother needing assistance in the following terms:
“My brother is in the process of a separation and I would like to give emotional and psychological support for him”.
In response to an inquiry as to the support that would be given, or the assistance that would be given, the applicant responded as follows:
“1. Emotional support.
2. Psychological support.
3.My brother had an accident and he is severely sick, so he need [sic] special care.”
The application stated that the assistance would be required permanently. In support of the application, a statutory declaration was made by the applicant saying, inter alia, as follows:
“Please note that my brother, Mohammed Ayas, has had an accident and he needs my assistance to be with him in Australia.
I request your compassionate consideration and I should be grateful for permitting me to stay in Australia to help my brother, an Australian citizen.”
In support of the application, the applicant furnished two medical certificates under Work Cover, one dated 18 June 1998 and the other dated 22 June 1998. Each was a certificate by a registered medical practitioner that the applicant’s brother was unfit for work, in one case from 18 June 1998 until 21 June 1998 and in the second case from 22 June 1998 to 13 July 1998.
The first certificate stated that the applicant’s brother was suffering from “soft tissue injury, left knee” and the treatment program specified was physiotherapy and analgesia. The second certificate described the applicant’s brother as suffering from “lateral meniscus left knee” and that the treatment program was physiotherapy.
The applicant was furnished with a copy of the decision of the Minister’s delegate. The conclusion of the delegate was as follows:
“I have noted the medical certificates, issued to the nominator, that were submitted at the time of lodgement and which comment on a soft tissue injury to the left knee; an authorised period of absence from work from 18/6/98 to 13/7/98; recommended treatment of physiotherapy.
I am not persuaded by the medical evidence that a situation of ‘special need’ as defined in the Migration Regulations exists in this case whereby the nominator is in need of permanent or long term need for substantial assistance in his day to day living.
In response to the claim that the applicant has provided emotional support to the nominator when he separated from his spouse, I have no doubt that the presence of the applicant has been welcome. However, the nominator has an Australian citizen sibling resident in Australia from whom he could no doubt seek support. If the situation was such that the nominator required professional counselling, then he could access such support.”
In its reasons, the Tribunal referred to the applicant's statement that he needed to remain in Australia because his brother had had an accident and needs assistance. The Tribunal’s reasons also refer to the two medical certificates under Work Cover stating that the brother had suffered soft tissue injury to his left knee. The Tribunal also referred to the claim that the applicant's brother requires his assistance because he is in the process of separating from his spouse.
The passage of the Tribunal’s reasons, which gives rise to the applicant’s complaint, is as follows:
“There was no evidence before the Tribunal nor was it contended that the Nominator or a member of his family had a ‘permanent or long-term need for assistance because of death, disability, prolonged illness, or other serious circumstance.’”
The Tribunal concluded that “accordingly” the application must fail. As appears from the grounds that I have already stated, reliance is placed on section 359A of the Migration Act 1958 (Cth) (“the Act”). Section 359A relevantly provides as follows:
“(1) Subject to subsection (2), the Tribunal must:
(a)give to the applicant ... particulars of any information that the Tribunal considers would be the reason, or a part of the reason for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.
…
(4)This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of whom the applicant, or another person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.”
On behalf of the applicant, it was contended that the object of section 359A is to ensure that an applicant would not be placed in a position where he is taken by surprise, that he should understand why a particular matter is relevant and his comments should be invited. Two contentions were based on that asserted object.
First, it was said that information should have been given to the applicant as to the standard which has to be satisfied in relation to the visa in question, namely the permanent, or long term nature of the need for assistance. Secondly, it was contended that the section requires the Tribunal to make it “crystal clear” to an applicant what the issues before the Tribunal are. I consider that the contentions are misconceived.
Some light is thrown on what is intended by the term “information”, by the surrounding provisions of the Act. For example, section 359(1) provides that “[i]n conducting the review, the Tribunal may get any information that it considers relevant” and “[i]f the Tribunal gets such information, it must have regard to that information in making the decision on the review”. The reference to information in section 359A(1)(a) must be understood in the light of that use of the term “information”.
That use indicates, in my view, that information signifies matter or facts or data which can be obtained from some source and which would not otherwise be available to a Tribunal member. It does not signify the words of the statute or the regulations pursuant to which a decision is being made. For what it is worth, the meaning of information in the Macquarie Dictionary that appears to be relevant, is as follows:
“1.Knowledge communicated or received concerning some fact or circumstance; news.
2. Knowledge on various subjects however acquired.”
Further light is thrown on the meaning of “information” and the object of section 359A itself by the exceptions contained in sub-section (4). The exception in sub-section (4)(a) indicates that the section is concerned with facts or data or matters relating to the applicant or some other specific person. Sub-section 4(b) indicates that “information” may consist of something given to the Tribunal by the applicant. It is quite inapt in my view to speak of the criteria contained in the regulations as being “information”.
In addition, as I have said, the applicant contended that the object of 359A is to ensure that an applicant is aware of the issues. If that had been intended effect of section 359A, it would have been much less obscure to state that the Tribunal is required to specify the issues. The exceptions in sub-section (4) make it perfectly clear that that is not the object of section 359A(1). When the legislature had in mind a requirement to refer to issues arising in relation to the decision, it used that expression. For instance section 358(1) provides that an applicant for review by the Tribunal may give to the Tribunal:
“(a)a written statement in relation to any matter of fact that the applicant wishes the Tribunal to consider; and
(b)written arguments relating to the issues arising in relation to the decision under review.”
Thus, section 358 itself provides express permission for an applicant to make submissions relating to “the issues”. It would therefore be surprising if the object of section 359A is to require the issues to be stated by the Tribunal, when there is no reference to that concept in section 359A itself.
In the present case, the Tribunal’s reason for affirming the decision under review is that there was no evidence before the Tribunal that the applicant’s brother had a permanent or long term need for assistance because of death, disability, prolonged interest, illness or other serious circumstance.
In so far as there was information that the Tribunal considered would be “the reason for affirming the decision”, that information was contained in the medical certificates and statutory declaration furnished in support of the application. That information is clearly information that the applicant gave for the purpose of the application within the meaning of section 359A(4)(b).
I do not consider that the ground relied on in the application has been made out. The application should be dismissed.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate:
Dated: 14 March 2000
Solicitor for the Applicant: Mr M Newman for Newman & Associates Counsel for the Respondent: Ms S McNaughton Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 1 March 2000 Date of Judgment: 1 March 2000
4
0
0