Narayan v Minister for Immigration and Multicultural Affairs - [2001] FCA 789

FEDERAL COURT OF AUSTRALIA
Narayan v Minister for Immigration & Multicultural Affairs [2001] FCA 789
MIGRATION – whether error of law or improper exercise of power – “special need relative” – whether the Migration Review Tribunal misconstrued definition – whether Tribunal inflexibly adhered to policy.
MIGRATION –“remaining relative” – whether MRT incorrectly applied onus.
Migration Act, ss 31(1), 32(2), 65(1), 65(2), 353(2)(a), 476(1)(d), (e), 476(3)(c).
Migration Regulations 1994 (Cth), rr 1.03, 1.15, schedule 2 sub-class 806.
Statutory Rule 259 of 1999
Statutory Rule 306 of 1998
Re Minister for Immigration and Multicultural Affairs, Ex parte Cohen (2001) 177 ALR 473, applied.
Tuanmoheloa v Minister for Immigration and Multicultural Affairs, (unreported, 4 November 1998), cited.
Succary v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 616, cited.
Hussein v Minister for Immigration and Multicultural Affairs [1999] FCA 1621, cited.
Sanwant Singh (IRT V97/00941, 20 April 1998), cited.
Minister for Immigration and Multicultural Affairs v Hughes (1998) 86 FCR 567, cited.
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1, cited.
Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515, cited.
Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194, cited.
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
Huang v Minister for Immigration and Multicultural Affairs (1996) 71 FCR 95, cited.
Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39, cited.
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, cited.
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189, cited.
Yong v Minister for Immigration & Multicultural Affairs [2000] FCA 1391, cited.
Lal v Minister for Immigration & Multicultural Affairs [2000] FCA 1488, cited.
Cross on Evidence (6^th Aust ed).
Procedures Advice Manual 3
ANNE RAGINI NARAYAN & ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N482 of 2001
SACKVILLE J
SYDNEY
28 JUNE 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 482 of 2001

BETWEEN

ANNE RAGINI NARAYAN
FIRST APPLICANT

FRANCIS DHIRENDRA NARAYAN
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

SACKVILLE J

DATE OF ORDER:

28 JUNE 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicants 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 482 of 2001

BETWEEN:

ANNE RAGINI NARAYAN
FIRST APPLICANT

FRANCIS DHIRENDRA NARAYAN
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

SACKVILLE J

DATE:

28 JUNE 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT
THE PROCEEDINGS

This is an application to review a decision made by the Migration Review Tribunal (“MRT”) on 2 April 2001. The MRT affirmed a decision made by the Minister’s delegate on 25 May 1999 to refuse…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] FCA 789
Decision Date: 28 JUNE 2001

CaseChat Overview and Summary

The applicants in this case, Narayan and her husband, sought to appeal the decision of the Migration Review Tribunal (MRT) which dismissed their application for permanent residence in Australia. The applicants contended that the MRT’s decision was made in an improper exercise of power or involved an error of law, as per sections 476(1)(d) and (e) of the Migration Act 1958. The applicants argued that the MRT did not adequately consider the nature of the relationship between the applicant and the nominator, Ms Swaran Lata Singh, who was an Australian citizen and the applicant’s sister.

The legal issues at hand revolved around whether the MRT correctly interpreted and applied the criteria for a "special need relative" visa under the Migration Act and the Migration Regulations. The court had to determine if the MRT’s assessment of the nominator's need for emotional and psychological support was correct, considering all relevant factors such as the nominator's ability to work, her social connections, and her claims of estrangement from other family members.

The court examined the MRT’s reasoning and found that while the tribunal did not provide a clear explanation for some of its findings, the overall approach was consistent with previous case law. The MRT concluded that the nominator’s primary need was for companionship and emotional support, and this need could be met by others, including friends, colleagues, and estranged family members. The court held that these determinations were factual matters for the MRT to assess and found no basis to interfere with the tribunal's conclusions.

The court dismissed the application and ordered that the applicants pay the Minister's costs. This decision underscores the importance of the MRT’s assessment of the nominator's needs and the availability of alternative sources of support, affirming the tribunal's role in evaluating such visa applications.

Orders

Orders of the court

1. The application be dismissed.

2. The applicants pay the respondent’s costs.

Background

Background to the litigation

The applicants in this Court are the primary visa applicant (“the applicant”) and her husband (the “husband”). The latter was designated by the MRT as a secondary applicant. They contend that the MRT’s decision was on improper exercise of the power conferred by the Migration Act 1958 (Cth) (“Migration Act”) or the Migration Regulations or, alternatively, involved an error of law: Migration Act, s 476(1)(d), (e).BACKGROUND The applicant was born on 30 December 1958 and is a citizen of Fiji. She and the husband made several visits to Australia on several occasions between 1993 and 1996. The applicant and her three children last arrived in Australia on Short Stay (Visitor) visas on 6 December 1997. Those visas expired on 6 March 1998. On 23 December 1997, the husband arrived in Australia on the same visa, which in his case, expired on 23 March 1998. On 5 March 1998, the applicant, the husband and their three children applied for permanent residence on the basis that the applicant was a “special need relative” of an Australian citizen, Ms Swaran Lata Singh (the “nominator”). The nominator, who sponsored the applicant, is the applicant’s sister. The nominator was born on 17 July 1951. She lived in Fiji with the applicant and the husband from 1981 to 1992, when she (the nominator) married and moved to Australia with her husband. The nominator’s husband died in 1996. The nominator had worked since coming to Australia and, at the time of the MRT hearing, was employed by a bank as a customer service officer. The nominator had no children of her own and had little contact with the two children of her late husband’s previous marriage. She had several siblings but claimed to be estranged from them. According to the applicant’s statutory declaration, she and the nominator had been close and emotionally and psychologically dependent on each other since birth. The applicant claimed that the death of the nominator’s spouse in 1996 had made the nominator entirely dependent on her (the applicant) for emotional and psychological support. The applicant also claimed that the nominator suffered from a prolonged illness, by reason of physical and emotional difficulties, and that only she could provide the emotional and psychological support the nominator required. The nominator’s statutory declaration was to similar effect. She claimed, however, that she was afraid to be on her own and that there were times when she felt like giving up and taking her own life.THE LEGISLATION Section 31(1) of the Migration Act provides that there are to be prescribed classes of visas. The regulations may prescribe criteria for a visa or visas of a specified class: s 31(3). After considering a valid application for a visa, the Minister, if satisfied, inter alia, that the criteria prescribed by the Migration Act and the Migration Regulations have been satisfied, is to grant the visa: s 65(1)(a). If not so satisfied, the Minister is not to grant the visa: s 65(1)(b).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

SACKVILLE J

The MRT’s reasoning on this issue was somewhat cryptic. Nonetheless, Mr de Robillard did not criticise the test applied by the MRT, which was consistent with the observations of Burchett J in Fuduche. The MRT’s conclusion again rested on its finding that the nominator’s main need arising from her illness was “companionship and emotional support”. The MRT was also influenced by its finding that the nominator had friends and colleagues, as well as other family members, and was able to work. The significance of these matters was a factual issue for the MRT to assess. It is true that the MRT did not make clear why it regarded the existence of “other family members” as relevant in view of the nominator’s evidence that she had been estranged from them (although the MRT expressed scepticism about the nominator’s claim that she was estranged from other members of her family, it did not expressly reject the nominator’s assertion). But the absence of a clear explanation goes only to the MRT’s reasoning on the factual question it had to resolve.CONCLUSION The application must be dismissed. The applicants must pay the Minister’s costs.

Ratio Decidendi

Legal Principle Established

Established by: SACKVILLE J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 482 of 2001

BETWEEN	ANNE RAGINI NARAYAN FIRST APPLICANT FRANCIS DHIRENDRA NARAYAN SECOND APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	28 JUNE 2001
WHERE MADE:	SYDNEY

JUDGE:	SACKVILLE J
DATE:	28 JUNE 2001
PLACE:	SYDNEY