Nakad v MIAC - [2013] FMCA 234

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAKAD & ORS v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 234

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether applicants satisfy the definition of “child” for the purposes of satisfying the requirements of subclause 802.212 – no error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 474, Pt.8
Migration Regulations 1994 (Cth), schedule 2, regs.1.03, 1.05A
Family Law Act1975 (Cth), s.4, Part VII

First Applicant:

JULIAN ANTOINE NAKAD

Second Applicant:

MARIA NAKAD

Third Applicant:

JOSEPH ANTOINE NAKAD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1571 of 2012

Judgment of:

Emmett FM

Hearing date:

4 March 2013

Date of Last Submission:

4 March 2013

Delivered at:

Sydney

Delivered on:

4 April 2013

REPRESENTATION

The applicants appeared in person with the assistance of an interpreter

Solicitors for the Respondents:

L. Buchanan (Australian Government Solicitors)

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1571 of 2012

JULIAN ANTOINE NAKAD

First Applicant

MARIA NAKAD

Second Applicant

JOSEPH ANTOINE NAKAD

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 13 June 2012 and handed down on the same day (“the Tribunal”).
The applicants are all minors and are citizens of the United States of America. Neither the applicants nor their parents are Australian citizens.
On 23 August 2012, an Order was made by this Court appointing the applicants’ mother, as the litigation guardian to the first named applicant, born 5 February 2002, the second named applicant, born 31 January 1998, and the third named applicant, born 12 July 2000
The issue in this case is whether the applicants satisfied the definition of “child” for the purposes of satisfying the requirements of subclause 802.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). This issue is considered below in the context of considering whether the Tribunal’s decision is affected by jurisdictional error.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework and a summary of the Tribunal’s review and decision.

Background

The applicants applied to the Department of Immigration and Citizenship for Child (Residence) (Class BT) visas on 7 March 2012. They were sponsored by their uncle, an Australian citizen, with whom they and their parents live.
On 16 March 2012, the Delegate refused the applicants’ applications for a Child (Residence) (Class BT) visas.
On 11 April 2012, the applicants lodged an application for review of the Delegate’s decision by the Migration Review Tribunal.
On 13 June 2012, the Tribunal affirmed the decision of the Delegate.
On 17 July 212, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

The only subclass in respect of which any claims have been advanced is Child (subclass 802) visa. Relevantly, clauses 802.212 and 802.215 of Schedule 2 of the Regulations states:
“802.212
(1) The applicant:
(a) is a dependent child of a person who is an Australian citizen, holder of a permanent visa or eligible New Zealand Citizen; and
(b) subject to subclause (2), has not turned 25.
…
(2) paragraph (1)(b) does not apply to an applicant who, at the time of making the application, was a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.
802.215
The applicant is:
(a) a person whose application is supported by a letter of support from a State or Territory government welfare authority;
(b) sponsored by a person who:
i. has turned 18; and
ii. is an Australian citizen, or a holder of a permanent visa or an eligible New Zealand citizen; and
iii. is:
· the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in paragraph 802.212(1)(a);
·the cohabiting spouse or de facto partner of the Australian citizen holder of a permanent visa or eligible New Zealand citizen mentioned in paragraph 802.212(1)(a).
Regulation 1.03 of the Regulations defines a “dependant child” as follows:
Reg. 1.03 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.”
Regulation 1.05A of the Regulations defines the circumstance in which a person may be “dependant” on another.
The “child” of a person is defined in s.5CA of the Act as follows:
Child of a person
(1)Without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:
(a) someone who is a child of the person within the meaning of the Family Law Act 1975 (other than someone who is an adopted child of the person within the meaning of that Act);
(b) someone who is an adopted child of the person within the meaning of this Act.
(2) The regulations may provide that, for the purposes of this Act, a person specified by the regulations is not a child of another person specified by the regulations in circumstances in which the person would, apart from this subsection, be the child of more than 2 persons for the purposes of this Act.
(3) Subsection (2), and regulations made for the purposes of that subsection, have effect whether the person specified as not being a child of another person would, apart from that subsection and those regulations, be the child of the other person because of subsection (1) or otherwise.
Relevantly, s.4 of the Family Law Act 1975 (Cth) (“the Family Law Act”) defines a “child”. Section 4 refers to Subdivision D of Division 1 of Part VII of the Family Law Act as defining the situations in which a “child” is a “child” of a person or is a “child” of a marriage or other relationship.

The Tribunal’s review and decision

On 27 April 2013, the Tribunal wrote to the applicants informing them that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicants to attend a hearing on 12 June 2012 to give oral evidence and present arguments.
The decision of the Tribunal is accurately summarised by the solicitor for the First Respondent in her written submissions as follows:
“8. The applicants applied to the Tribunal for review of the decision of the delegate on 11 April 2012 (RD 56 - 73). In support of their application they provided a letter from their uncle and sponsor in which their uncle stated that the applicants and their parents are living with him and had been supporting them with accommodation, financial and health expenses since 2007, and had been giving the applicants' mother, Ms Mona Nakad, $200 a fortnight for the expenses of the children (RD 73).
9. Ms Mona Nakad, Mr Bakhos Nakad, a further support person and the applicants attended a hearing of the Tribunal on 12 June 2012 (RD 102). At the hearing, Ms Mona Nakad, spoke on the applicants' behalf and indicated that she did not agree with the decision of the delegate as her children were happy in Australia, did not want to return to the USA, and that their father's family was in Australia. They had previously applied for business and protection visas in the past but these had been refused. Mr Bakhos Nakad also confirmed his relationship with the applicants as their uncle (RD 113 [23]-[24]).
10. In its decision, dated 13 June 2012, the Tribunal found that as the application was not supported by a letter of support from a State or Territory government (RD 113 [26]). The relevant issue for consideration therefore was whether the primary applicant was the dependant child of the sponsor, that is, of his uncle Mr Bakhos Nakad.
11. The Tribunal considered the definitions relevant to determining whether someone is a dependent child for the purposes of the Act as well as Departmental policy explaining the term 'child of a person' in the context of the Act's definitions (RD 110-111, 113). The Tribunal found that no letter of support from a State or Territory welfare authority had been provided with the visa application. The Tribunal then considered whether the applicant met the criteria in cl 802.212 of Schedule 2 to the Regulations. It found that the primary applicant's biological parents are not Australian citizens, permanent residents or eligible New Zealand citizens. It also found that the primary applicant lived with his parents who had legal custody of him and that the sponsor, who declared himself as the applicant's uncle, did not have parental responsibility for him. The Tribunal therefore found that there was no evidence or claim that the applicant was a child of the sponsor within the meaning of the Family Law Act 1975 (RD 113 [29]). The Tribunal was not satisfied that the primary applicant was a child of the sponsor or a dependent child of the sponsor and therefore did not satisfy cl 802.212 of Schedule 2 to the Regulations. Similarly, the second and third applicants also did not satisfy the same criterion (RD 114 [30]).
12. The Tribunal also found that the applicants are not members of the family unit of a holder of a subclass 802 visa and that there was also no evidence that they satisfied the criteria for any other visa subclass (RD 114 [31 - 32]).
13. Accordingly, the Tribunal affirmed the decision under review.”

The proceeding before this Court

The applicants were represented before this Court by their mother as their litigation guardian with the assistance of an Arabic interpreter.
On 23 August 2012, the mother attended a directions hearing before me. I explained to the mother that this Court had no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal. I also explained that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. The mother confirmed that the applicants wished to continue with the application. The applicants were given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.
The mother was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in the Arabic language.
At the commencement of the hearing, the mother confirmed that the applicants relied on the grounds contained in an application filed on 17 July 2012 as follows:
“1. The Tribunal misapplied the law.
2. The department misapplied the applicants as on form 40CH the sponsor is not required to be natural father.”
Each of the grounds was interpreted for the assistance of the mother, and the mother was invited to make submissions in support of each of the grounds and in support of the application generally.
The mother wished to read an affidavit, sworn by her on, 17 October 2012, annexing a copy of the transcript to the Tribunal hearing. It was not an affidavit that complied with the directions of the Court and was objected to by the solicitor for the first respondent, Ms Buchanan. Ms Buchanan objected to the affidavit on the grounds of relevance. I asked the applicant what was the issue to which the transcript may be relevant. The mother answered that she had prepared the affidavit because she thought she was required to do so and that she did not rely on it for any specific issue. On that basis, the affidavit was rejected.
The mother’s submissions in support of the application centred around the complaint that no one had told her that the applicants needed a letter from the authorities to support their application, and that the applicants were dependant on their sponsor uncle for their accommodation and sustenance and therefore were dependant children. Both these complaints are misconceived and neither demonstrates any error on the part of the Tribunal.
Where an application is made for a class of visa, the application must be considered against the criteria for all subclasses within the visa. The relevant subclass to the applicants is subclass 802. The applicants must satisfy the criteria of subclass 802 in order to be granted a visa. The requirements must be satisfied at the time of application.
Relevantly, the applicants were required to satisfy either criteria 802.212 or 802.215 of schedule 2 of the Regulations.
Clause 802.212 of the Regulations referred to an applicant who, relevantly, is a dependant child of a person who is an Australian citizen and who has not turned 25. All the applicants were under the age of 25. Presumably, the Australian citizen upon whom the applicants are said to be dependant is their uncle with whom they live and the litigation guardian.
Clause 802.215 of the Regulations provided that an applicant is a person whose application is supported by a letter of support from a State or Territory government welfare authority. It was not necessary for the applicants to have a letter of support from a State or Territory government welfare authority if they were capable of satisfying clause 802.212. However, if they did not satisfy clause 802.212, without such a letter, they were not capable of satisfying clause 802.215.
Relevantly, reg.1.03 of the Regulations defines a “dependant child” of a person as, the child of the person being a child who has not turned 18 or has turned 18 and is dependant on that person or is incapacitated.
Pursuant to reg.1.03 of the Regulations, “dependant” has the meaning given by reg.1.05A of the Regulations. Relevantly, reg.1.05A(1) of the Regulations defines a “dependant” to be a person dependant on another person where the person has been wholly or substantially reliant on the other person for food, clothing and shelter or is wholly or substantially reliant on the other person for financial support due to the first person’s incapacity for work. Unless any of the applicants satisfy the definition of “child”, it matters not whether they were dependant on the sponsor uncle for food, clothing and shelter.
Section 5 of the Act defines a “child” of a person as having the meaning effected by s.5CA of the Act. Section 5CA of the Act provides that a “child” of a person is a child of a person within the meaning of the Family Law Act.
Section 4 of the Family Law Act defines a “child” as a person to whom Subdivision D of Division 1 of Part VII relates. Subdivision D of Division 1 of Part VII provides for various definitions of “child” depending on particular situations relating generally (inter alia) to the parents in their life. They refer to a child born of a defacto relationship, an adopted child, a child born as a result of artificial conception and children born under surrogacy arrangements.
None of the situations referred to in the Family Law Act has any application or is of any assistance to the applicants in satisfying the relevant criteria. The sponsor of the applicants is their uncle and not their natural, adoptive or step parent. As stated above, the applicants’ biological parents are not Australian citizens.
The Tribunal found that the applicants live with their biological parents who have legal custody of them. The Tribunal found that the sponsor uncle does not have parental responsibility for the applicants and that there is no evidence, or claim, that the applicants are children of the uncle within the meaning of the Family Law Act. For those reasons, the Tribunal was not satisfied that the applicants are the dependant children of the sponsor.
For those reasons, the Tribunal concluded that the applicants do not meet the requirements of clause 802.212 of the Regulations.
The Tribunal’s findings were open to it on the material and evidence before it and for the reasons it gave.
The grounds of the initiating application for judicial review of the Tribunal’s decision also assert that the Department misled the applicants because on the “Sponsorship for a child to migrate to Australia” visa application form, it did not state that the sponsor was required to be the natural father. However, such a complaint is again misconceived and does not demonstrate any jurisdictional error on the part of the Tribunal.
The form to which the mother referred was contained in the bundle of relevant documents filed by the first respondent on 30 August 2012, and marked “Exhibit 1R”. The form is headed “Form 40CH” and seeks various details of the child’s relationship to the sponsor, including whether the child was a nephew or niece.
Given that s.5CA of the Act states that “Without limiting who is a child of a person for the purposes of this Act”, it is possible that in certain circumstances a niece or nephew may be capable of satisfying the definition of a “child”. For example, an uncle may have custody of a niece or nephew. However, such was not the case here. As stated above, the Tribunal found that the applicants’ parents had custody of the applicants and were responsible for them. As stated above, that finding was open to the Tribunal.
In any event, the existence of that possibility or choice on the “Form 40CH” can not by itself demonstrate an error on the part of the Tribunal that goes to its jurisdiction.
Accordingly, the grounds of the application are not made out.
There is no error in the manner in which the Tribunal applied the law in determining whether the applicants met the criteria for the subclass 802 visa for which the applicants were applying.

Conclusion

In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:

Date: 4 April 2013