Nguyen v Minister for Immigration
[2006] FMCA 874
•8 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NGUYEN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 874 |
| MIGRATION – MRT decision – dependent child residence visa – applicant over 25 at time of application and not incapacitated – no legal error made by Tribunal. |
Migration Act 1958 (Cth), s.483A
Migration Regulations 1994 (Cth), reg.1.03, Sch.2 subclass 802, cll.802.212, 802.214
| Applicant: | THI KIM THOA NGUYEN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG3356 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 8 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 8 June 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr G Kennett |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3356 of 2005
| THI KIM THOA NGUYEN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) filed in this Court on 16 November 2005. It seeks orders by way of judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) affirming a decision of a delegate that the applicant was not entitled to the grant of a Child (Residence) (Class BT) visa. The applicant was born on 4 June 1973 and has two infant children and a de facto spouse in Australia, but she was the sole applicant to the Tribunal and Court.
The Tribunal’s reasons set out the statutory criteria applicable to this visa, and identify several problems with the applicant’s ability to satisfy those criteria. Most plainly, she was unable to meet a requirement that at the time of application, on 8 October 2004, she should be under the age of 25 or should be medically incapacitated for work.
It was uncontested in the information presented by the applicant to the delegate, and again to the Tribunal on her application for review and subsequent communications, that she was 31 at the time of application. To neither the delegate nor the Tribunal did she present any claim, and certainly no evidence, that she was incapacitated for work “due to the total or partial loss of [her] bodily or mental functions”.
Counsel for the Minister has succinctly explained why these facts were significant in a written submission which was served on the applicant and has been read to her again today. I attach his submission as a Schedule. It would not serve any purpose for me to repeat his explanation of why the Tribunal’s decision was in law and fact the only decision which was open to it on the material before it, and I adopt counsel’s argument as my reasons for upholding the Tribunal’s decision.
The documents filed in the Court by the applicant, and the submissions made on her behalf today by her de facto spouse, did not attempt to address and find error in this essential conclusion reached by the Tribunal. Nor was any attempt made to identify any procedural error on the part of the Tribunal which could provide jurisdictional error.
The submissions presented to me were essentially that the applicant deserved to receive a visa notwithstanding her inability to satisfy this particular criterion. In effect, this was a submission that the Tribunal and now the Court should overlook the plain effect of the migration laws. However, neither the Tribunal nor this Court has the function of dispensing people from the requirements of law. The Minister has such a power, and the applicant would be better served by presenting her arguments to the Minister rather than to the Court.
I consider that, even if error could be found in the Tribunal’s procedures or decision, it would be manifestly futile to remit the matter to it for its further consideration. I shall therefore dismiss the application.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 21 June 2006
SCHEDULE
The decision under review
The Applicant, a citizen of Vietnam, arrived in Australia as a student on 12 July 1998. Since the expiry of her student visa she has held a series of bridging visas.[1]
[1] See Relevant Documents (RD) 75 [9].
On 24 October 2004 the Applicant applied for a Child (Residence) (Class BT) visa. The application was refused by a delegate of the Minister on 24 November 2004, and on 23 December 2004 she applied for review of that decision by the Migration Review Tribunal.[2]
[2] RD 74 [1].
The Tribunal made its decision, affirming the decision of the delegate, on 12 October 2005.[3]
[3] RD 73.
Class BT contained two sub‑classes, but the only one in respect of which the Applicant made any claims was Subclass 802 (Child). One of the criteria for that sub‑class, which needed to be satisfied at the time of application, was:
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”.
“Dependent child” was defined in reg.1.03 of the Migration Regulations, as follows:
dependent child means the natural or adopted child, or step‑child, of a person (other than a child who has a spouse or is engaged to be married), 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.
Another criterion which needed to be satisfied at the time of application was cl.802.214(1) of Schedule 2 to the Regulations which required, in the case of an applicant aged over 18, that the applicant not be in a spousal relationship or in full time employment.
The Applicant was born in 1973 and was thus 31 years old when she made her visa application. She had a 14 month old daughter. The nature of her relationship with her daughter’s father was not very clear, but the Tribunal was prepared to find that she was in a de facto relationship and thus did not meet cI.802.214(1)(a).[4]
[4] RD 78 [25].
Further, while the Applicant had claimed to be financially dependent on her mother (who was an Australian citizen), she did not provide any evidence to satisfy the Tribunal on that point. Nor had she provided any evidence that she was incapacitated for work. The Tribunal therefore concluded that she did not meet cl.802.212(1)(b) and (2).[5]
[5] RD 78 [25].
Issues in the Application
The Application does no more than restate the assertions that the Applicant is dependent on her mother, and her mother is an Australian citizen. It does not identify any error by the Tribunal.
The Tribunal’s decision was inevitable, in the light of the material before it.
In order to meet cl.802.212(1), the Applicant had to:
a)be under 25; or
b)be within sub‑para.(b)(ii) of the definition of “dependent child”.
The Applicant had given her birth date as 4 June 1973 in her primary visa application[6] and in her application to the Tribunal.[7] The Tribunal expressly noted that she was 31 years old at the time of application.[8]
[6] RD 2.
[7] RD 42.
[8] RD 78 [25].
Sub‑para.(b)(ii) of the definition of “dependent child” refers to a person who is incapacitated for work by a loss of physical or mental function. There was nothing in the material to suggest that the Applicant fell into that category. She told the Tribunal that she had not worked since coming to Australia because her visa conditions had prevented it.[9] The Tribunal held that there was no evidence that she was incapacitated for work.[10]
[9] RD 65.
[10] RD 78 [25].
In these circumstances, it was not possible for the Tribunal to conclude that the Applicant satisfied c1.802.212(1) (the requirements of paras (a) and (b) being cumulative).
There was no need for the Tribunal to consider whether the Applicant actually was financially dependent on her mother, or whether the father of her child was her “spouse” in the relevant sense. Its remarks on these issues were obiter.
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