Na Ta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 976
•20 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Na Ta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 976
File number: PEG 33 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 20 May 2021 Catchwords: MIGRATION – Aged Parent visa – decision of the Administrative Appeals Tribunal – whether Tribunal overlooked circumstances – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), s 476
Migration Regulations 1994 (Cth), regs 1.03, 1.05, cl 802.214 of Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
MZXHY v Minister for Immigration & Citizenship [2007] FCA 622
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Number of paragraphs: 63 Date of hearing: 7 May 2021 Place: Perth Applicant: In person Counsel for the First Respondent: Ms J Tran Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 33 of 2021 BETWEEN: THI NA TA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
20 MAY 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
REASONS FOR JUDGMENT
JUDGE KENDALL:
INTRODUCTION
The applicant is a citizen of Vietnam (Court Book (“CB”) 13). Her daughter lives in Australia and is an Australian citizen (CB 124-125).
On 15 September 2015, the applicant lodged an Aged Parent (Residence) (class BP) (subclass 804) visa (the “visa”) (CB 10-51). She was sponsored by her daughter.
On 12 August 2016, the then Department of Information and Border Protection asked the applicant to provide “further information” deemed relevant for her visa application (CB 63-70). On 16 September 2016, the applicant (via her daughter) provided further information (CB 78-85).
On 25 January 2019, the Department of Home Affairs invited the applicant to comment on the following information (CB 87-91):
On 15 September 2015 an application for a PARENT (Class BP) PARENT (Subclass 804) visa was lodged successfully by the applicant.
On 12 August 2016 the Department sent to you a request to complete Form 47PA question 58 which had not been completed when submitted to the Department.
On 16 September 2016 you sent the Department an email containing documents that included a completed question 58 from form 47PA. Under the section titled “Your children (including step-children from both current and previous marriages/relationships and the child sponsoring this application)” you listed 5 persons:
•Tren ngoc Le born [omitted] resident in USA
•Tracy Nhung Ngoc Nguyen Le born [omitted] resident of Australia
•Tran Thuy Thi Le born [omitted] resident of Vietnam
•Tuyen Ngoc Le born [omitted] resident of Vietnam
•Trang Phuong Dang born [omitted] resident of Vietnam
Of the 5 persons listed, Tracy Nhung Ngoc Nguyen Le is a permanent resident of Australia and therefore classified as an eligible child under Reg 1.05(2)(a)(ii). All other children are resident overseas and classified as illegible children under Reg 1.05(2)(b).
Number of eligible children: 1
Number of illegible children: 4
As the number of illegible children is greater than the number of eligible children, Reg 1.05(2C) is not satisfied.
This invitation to comment provides you an opportunity to dispute the findings provided above, and/or to introduce new evidence to show that the applicant meets clause 804.214 prior to a decision being made on the application.
On 20 February 2019, the applicant provided various supporting documents from the applicant’s grandchild’s “therapy provider”, a parish priest and various medical practitioners (CB 92-114).
On 6 May 2019, the Department again invited the applicant to comment on the same information outlined above at [4] (CB 115-119).
On 31 May 2021, the applicant provided further documents. Some of these documents had been provided previously (CB 120-130).
On 28 August 2019, a Ministerial delegate refused to grant the applicant the visa (CB 136-143). The delegate was not satisfied that the applicant met cl 802.214 of the Migration Regulations 1994 (Cth) (the “Regulations”) as “the number of children lawfully resident in Australia was less than the number of children resident overseas” (CB 142).
On 16 September 2019, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (CB 144-154).
On 19 January 2021, the applicant appeared at a hearing before the Tribunal (CB 182-185).
The Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 188-192).
On 19 February 2021, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal fell into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is 5 pages long and spans 15 paragraphs. Two pages comprise of extracts of the relevant legislative provisions.
The Tribunal began by identifying the type of visa under review. The Tribunal then explained the basis upon which the delegate had refused the visa and confirmed that the applicant had appeared before the Tribunal to give evidence and present arguments (at [1]-[4]).
The Tribunal noted that the visa application was made on the basis that the applicant is the sponsor’s “parent” (at [6]).
The Tribunal then summarised the relevant legislative provisions as follows:
7. With limited exceptions not relevant in the present case, cl.804.214 requires at the time of the application the applicant must satisfy the balance of family test, as defined in r.1.05 (see attachment to this decision).
8. An applicant satisfies the balance of family test if the number of his or her eligible children is either: greater than or equal to the total number of ineligible children: r.1.05(2C); or greater than the greatest number of ineligible children who are usually resident in a particular overseas country: r.1.05(2D).
9. ‘Children’ for these purposes includes all natural, adopted and step-children (as defined in r.1.03) of either the parent or the parent’s current spouse or current de facto partner: r.1.05(1)(a). However, no account is to be taken of certain children as specified in r.1.05(3). If the whereabouts of a child of the visa applicant is unknown, the child is taken to be resident in the child’s last known usual country of residence: r.1.05(1)(b).
The Tribunal then reasoned:
10. The applicant informed the Tribunal that she has 5 children.
•Tran Ngoc Le - DOB [omitted] 1972 USA citizen
•Tracey Nhung Ngoc Nguyen – DOB [omitted] Australian citizen
•Tran Thuy Thi Le – DOB [omitted] Vietnam citizen
•Tuyen Noc Le – DOB [omitted] Vietnam citizen
•Trang Phuong Dang – DOB [omitted] Vietnam citizen
11. The applicant has five listed children. Tracy Nhung Ngoc Nguyen is an Australian citizen and is the only eligible child that meets r.1.05(2)(a)(i). The remaining four children, Tran Ngoc Le, Tran Thuy Thi Le, Tuyen Noc Le and Trang Phuong Dang are deemed illegible children under r.1.05(2)(b).
12. Therefore, there is only one eligible child, Tracy Nhung Ngoc Nguyen and four illegible, Tran Ngoc Le, Tran Thuy Thi Le, Tuyen Noc Le and Trang Phuong Dang. As the number of illegible children, 4, is greater than the number of eligible children, 1, r.1.05(2C) is not satisfied.
13. On the basis of the findings above, the applicant does not meet the balance of family test in r.1.05 and therefore does not satisfy cl.804.214
On the basis of the above the Tribunal refused to grant the applicant the visa (at [14]-[15]).
PROCEEDINGS IN THIS COURT
The applicant’s judicial review application dated 19 February 2021 contains the following “grounds of review”:
1. The Administrative Appeals Tribunal (Tribunal) is affected by jurisdictional error on the following grounds:
2. The Tribunal constructively failed to exercise its jurisdiction by failing to consider, properly or at all, the Applicant’s compelling and compassionate grounds that she has been providing care for the grandson, who is affected by an autism spectrum disorder.
3. New evidence to be introduced of the therapy reports for the Applicant’s grandson Gerard Nguyen-Le (date of birth [omitted]).
4. The Applicant’s daughter is a widow, as her husband and the father of her children has passed away.
5. The Applicant provides valuable support to her daughter in taking care of her son Gerard Nguyen-Le, who is the Applicant’s grandson.
6. The Applicant’s daughter will not be able to manage without the Applicant’s assistance, and the child Gerard Nguyen-Le will be affected by the loss of the Applicant’s presence.
The applicant was given an opportunity to file an amended application, any supporting affidavits and an outline of written submissions.
An affidavit dated 16 February 2021 was filed by the applicant. Unfortunately, that affidavit is irrelevant. As is evident by [4] of that affidavit, the purpose of the affidavit is to seek a fee waiver or reduction of the Court filing fee. It does not relate to any jurisdictional error in the Tribunal’s decision.
The materials before the Court thus include those referred to above, a Court Book numbering 192 pages (marked as Exhibit 1) and an outline of written submissions filed by the Minister on 30 April 2021.
The applicant appeared before the Court without legal representation. She was assisted by a Vietnamese interpreter and was accompanied by her daughter. With the consent of the applicant and the Minister, the Court allowed the applicant’s daughter to assist her and, if necessary, speak to the Court. The Court confirmed that the applicant had received a copy of the Court Book and the Minister’s written submissions.
Noting that the applicant was unrepresented, the Court gave her an opportunity to elaborate on, and further particularise, the grounds of review in her application and to outline any other concerns she might have with the Tribunal’s decision. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa she seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant explained that “the Tribunal did nothing wrong legally”. However, she was hopeful that the Court would do something that would “allow the applicant to stay in Australia with her daughter and her maternal grandchildren”.
The applicant’s daughter also provided oral submissions. She was clearly distressed and it is evident that her life of late has been extraordinarily difficult. She explained how much her mother means to her and outlined the assistance that she provides her family. She pleaded with the Court to assist her in what can only be described as incredibly unfortunate personal circumstances.
LEGISLATIVE PROVISIONS
The visa that the applicant applied for allows a parent of an Australian citizen or permanent resident to remain in Australia as a permanent resident. However, certain legislative criterion need to be met before the visa can be granted. These are detailed in Part 804 of Schedule 2 of the Regulations.
Relevant to this case, the applicant was found not to meet cl 804.214 in Schedule 2 of the Regulations, which provides:
804.2—Primary criteria
Note:The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.
…
804.21—Criteria to be satisfied at time of application
…
804.214
If the applicant is not the holder of a substituted Subclass 600 visa, the applicant satisfies the balance of family test.
In effect, cl 804.214 stipulates that, unless an applicant is the holder of a substituted Subclass 600 visa at the time of the application, they must satisfy the “balance of family” test.
A “substituted Subclass 600” visa is defined in reg 1.03 of the Regulations as follows:
substituted Subclass 600 visa means:
(a) a Subclass 600 (Visitor) visa that was granted following a decision by the Minister to substitute a more favourable decision under section 345, 351, 417 or 501J of the Act; or
(b) a Subclass 676 (Tourist) visa that was granted, before 23 March 2013, following a decision by the Minister to substitute a more favourable decision under section 345, 351, 417 or 501J of the Act.
There is no evidence that the applicant has a substituted subclass 600 visa as per the above definitions. Nor does she claim that she holds that visa.
Accordingly, the applicant was required to satisfy the “balance of family test”.
The “balance of family test” is defined in reg 1.05 as follows:
1.05 Balance of family test
(1) For the purposes of this regulation:
(a) a person is a child of another person (the parent) if the person is a child or step‑child of:
(i) the parent; or
(ii) a current spouse or current de facto partner of the parent; and
(b) if the whereabouts of a child of the parent are unknown, the child is taken to be resident in the child’s last known usual country of residence.
(2) For this regulation:
(a) a child of the parent is an eligible child if the child is:
(i) an Australian citizen; or
(ii) an Australian permanent resident usually resident in Australia; or
(iii) an eligible New Zealand citizen usually resident in Australia; and
(b) any other child of the parent is an ineligible child.
(2A) An ineligible child is taken to be resident overseas.
(2B) The overseas country in which an ineligible child is taken to reside is:
(a) the overseas country in which the child is usually resident; or
(b) the last overseas country in which the child was usually resident; or
(c) if the child no longer has a right of return to the country mentioned in paragraph (a) or (b)—the child’s country of citizenship.
(2C) A parent satisfies the balance of family test if the number of eligible children is greater than or equal to the number of ineligible children.
(2D) However, if the greatest number of children who are:
(a) ineligible children; and
(b) usually resident in a particular overseas country;
is less than the number of eligible children, then the parent satisfies the balance of family test.
(3) In applying the balance of family test, no account is to be taken of a child of the parent:
(a) if the child has been removed by court order, by adoption or by operation of law (other than in consequence of marriage) from the exclusive custody of the parent; or
(b) if the child is resident in a country where the child suffers persecution or abuse of human rights and it is not possible to reunite the child and the parent in another country; or
(c) if the child:
(i) is resident in a refugee camp operated by the United Nations High Commissioner for Refugees; and
(ii) is registered by the Commissioner as a refugee.
To summarise, in order to satisfy the “balance of family test”, the number of the applicant’s eligible children must be greater than or equal to the number of ineligible children: the Regulations, reg 1.05(2C). A “child” is an “eligible child” if the child is an Australian citizen, an Australian permanent resident usually resident in Australia or an eligible New Zealand citizen usually resident in Australia. Any other child of the parent is an “ineligible child”.
The Court notes that the Tribunal uses the term “illegible”. This should be “ineligible” as per the language of the Regulations. Nothing, however, turns on the use of this incorrect term. It represents no more than a typographical error.
CONSIDERATION
The first “ground” of the application for judicial review provides:
1.The Administrative Appeals Tribunal (Tribunal) is affected by jurisdictional error on the following grounds:
This ground does not actually identify a jurisdictional error. It merely prefaces the grounds that follow (which the Court will now consider in turn).
The second ground provides:
2.The Tribunal constructively failed to exercise its jurisdiction by failing to consider, properly or at all, the Applicant’s compelling and compassionate grounds that she has been providing care for the grandson, who is affected by an autism spectrum disorder.
Unfortunately, there is no discretion on the part of the Tribunal to consider compassionate and compelling circumstances when determining whether to grant the applicant the visa in question.
Clause 804.214 is clear in its terms. It requires that an applicant meet the balance of family test. Here the applicant did not do so. While the applicant’s personal circumstances here are certainly compelling, they were not relevant to the Tribunal’s task. Nor are they relevant in relation to the judicial review application before this Court.
Ground 2, accordingly, fails.
Ground 3 provides:
3.New evidence to be introduced of the therapy reports for the Applicant’s grandson Gerard Nguyen-Le (date of birth [omitted]).
The applicant refers to “new evidence”. The Court can only receive new evidence on judicial review if that evidence is probative to establishing jurisdictional error. For example, a court transcript is often instructive in this regard. However, new evidence cannot be provided for the purposes of inviting the Court to engage in impermissible merits review: MZXHY v Minister for Immigration & Citizenship [2007] FCA 622.
Here, the “new evidence” appears to be a report related to the applicant’s grandson. This evidence could not, in any way, assist in establishing jurisdictional error. The information is, for the Court, and would have been, had it been provided to the Tribunal, irrelevant to the determinative issue in the Tribunal’s decision. Accordingly, it has no bearing on whether there is any jurisdictional error.
Ground 3 is, accordingly, dismissed.
Grounds 4-6 provide:
4. The Applicant’s daughter is a widow, as her husband and the father of her children has passed away.
5. The Applicant provides valuable support to her daughter in taking care of her son Gerard Nguyen-Le, who is the Applicant’s grandson.
6. The Applicant’s daughter will not be able to manage without the Applicant’s assistance, and the child Gerard Nguyen-Le will be affected by the loss of the Applicant’s presence.
At its highest, these grounds could be seen to be suggesting that the Tribunal failed to take “relevant matters” into account. However, for the reasons given in ground 2, these matters were not relevant to the Tribunal’s task. The Tribunal was confined to determining whether the applicant met the balance of family test. The circumstances which led to the applicant seeking the visa and the valuable support that the applicant was providing were not matters that the Tribunal could consider.
The Court has no reason to doubt what is detailed in grounds 2-6. The Court sympathises and notes the negative consequences for this family if the visa is not granted. Unfortunately, what is detailed and what will result do not assist in relation to the sole issue before the Court – that is, whether the Tribunal fell into jurisdictional error.
Grounds 4-6 are, accordingly, dismissed.
The Court notes that it has considered for itself whether any error arises in the Tribunal’s decision as per the decision in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392. No error has been identified.
FUTILITY
A critical problem the applicant also faces in these proceedings is that remitting the matter back to the Tribunal would be futile.
Clause 804.214 is a “time of application” criterion.
At the time of the application, the applicant had five children of whom only one was an “eligible child”. On her own evidence, the applicant had one child resident in Australia at the time of application and four children outside of Australia. The applicant cannot alter this fact and the Tribunal has no discretion to waive the requirement of the balance of family test.
It follows from the above that, on remittal, the Tribunal would be bound to again find that the applicant did not meet cl 804.214.
Remittal would thus be futile in the circumstances of this case.
MINISTERIAL INTERVENTION
The circumstances of this case are, on almost every conceivable level, tragic. The applicant’s daughter has had an extraordinarily difficult life. She arrived in Australia and married her husband. She had three children. One son has autism spectrum disorder. Her husband then passed away from terminal cancer. The applicant’s daughter then, understandably, required extensive psychological help and social services assistance. She has, in her own words, “lost hope” and worries about what life will be like for her and her children without ongoing help and support from her mother.
It is clear that the applicant is the primary source of care and support for her daughter and her grandchildren.
The applicant and her daughter pleaded with the Court for a favourable outcome. The Court’s jurisdiction is, however, limited and, without evidence of jurisdictional error on the part of the Tribunal, the Court cannot assist the applicant.
However, the Court again stresses that the circumstances here are compelling. While the Court has no power or ability to compel or indeed ask the Minister to exercise one of his discretionary powers, the Court notes that the Minister does have the option of doing so.
CONCLUSION
The application for judicial review dated 19 February 2021 fails to identify any jurisdictional error. The Court is otherwise satisfied that the Tribunal has not fallen into jurisdictional error.
The applicant’s application for judicial review is dismissed.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 20 May 2021
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