Nisha v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 222

FEDERAL COURT OF AUSTRALIA

Nisha v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 222

SOFIA SHAINAZ NISHA & PAYAL PRIYANKA NARAYAN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, MEMBER, MIGRATION REVIEW TRIBUNAL & PRINCIPAL MEMBER, MIGRATION REVIEW TRIBUNAL

S 661 of 2003

MANSFIELD J
4 MARCH 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 661 OF 2003

BETWEEN:

SOFIA SHAINAZ NISHA & PAYAL PRIYANKA NARAYAN
APPLICANTS

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

MEMBER, MIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER, MIGRATION REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

4 MARCH 2004

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.Application dismissed.

2.Applicant to pay to first respondent costs of application.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 661 OF 2003

BETWEEN:

SOFIA SHAINAZ NISHA & PAYAL PRIYANKA NARAYAN
APPLICANTS

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

MEMBER, MIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER, MIGRATION REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	MANSFIELD J
DATE:	4 MARCH 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application instituted in the High Court and remitted to this Court on 11 June 2003 for further hearing and determination. The application was under s 75(v) of the Constitution for prerogative orders, in essence to quash a decision of the Migration Review Tribunal made on 29 January 2003 and to direct the Tribunal to hear and determine according to law an application for review of a decision of a delegate of the respondent made on 9 November 2000. The decision of the delegate concerned an application made by the applicant on 20 October 2000, shortly after her latest visit to Australia, for an Other Family (Residence) (Class BU) visa, commonly called a ‘remaining relative’ visa.

2. The applicant is a young woman from Fiji.  She has had no contact with her father for many years.  At the time of the application her mother and brother and two younger sisters were resident in Australia.  Her mother and two younger sisters at the time were in Australia only under a Temporary Entry visa.  On 28 November 2000, some five or so weeks after the application for the remaining relative visa, the mother (through her marriage to an Australian citizen) and her two younger sisters were granted permanent entry visas into Australia.  The applicant had left her family at the age of 17 to marry, but the relationship with her husband had come to an end.  She came to Australia intending to live with her family in Australia.  She herself has no ties in Fiji.

3. To be eligible to be granted the visa, the applicant was required to satisfy cl 835.212 of Sch 2 to the Migration Regulations 1994 (Cth) at the time the application for the visa was made. By reason of cl 835.221 she was required to continue to satisfy that criterion at the time of the decision. For reasons which appear, she did not satisfy that criterion at the time of the application but she did satisfy that criterion at the time of the decision. The criterion is in the following terms:

   ‘The applicant is the remaining relative of an Australian relative.’

4. Regulation 1.03 states that ‘remaining relative’ has the meaning set out in reg 1.15.

5. Regulation 1.15 provides, so far as relevant, as follows:

   ‘(1)An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:

   (a)the other person is a parent, brother, sister, step-parent, step-brother or step-sister of the applicant; and

   (b)the other person is usually resident in Australia; and

   (c)if the applicant or the applicant's spouse (if any) has an overseas near relative:

   (i)the applicant and the applicant's spouse (if any) usually reside in a country, not being Australia, that is different to the country in which that relative resides; and

   (ii)neither the applicant nor the applicant's spouse (if any) have had contact with that relative within a reasonable period before making the application; and

   (d)the applicant and the applicant's spouse (if any) together have not more than 3 overseas near relatives; and

   (e)if the applicant is a child who:

   (i)has not turned 18; and

   (ii)has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (the adoptive parent) while overseas —

   at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months.

   (2)In this regulation:

   overseas near relative, in relation to an applicant, means a person who is:

   (a)a parent, brother, sister, step-parent, step-brother or step-sister of the applicant or of the applicant's spouse (if any); or

   (b)a child (including a step-child) of the applicant or of the applicant's spouse (if any), being a child who:

   (i)has turned 18 and is not a dependent child of the applicant or of the applicant's spouse (if any); or

   (ii)has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or of the applicant's spouse (if any) —

   other than a relative of that kind who:

   (c)is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (d)is usually resident in Australia.

   (3)For the purposes of paragraphs (1) (c) and (d), an overseas near relative is taken to reside in his or her last known country of residence unless the applicant satisfies the Minister that the relative resides in another country.’

6. The Tribunal found that at the time of her visa application the applicant had overseas near relatives, being her two sisters and her mother.  It said:

   ‘At the time of the visa application which is the subject of this review, the primary visa applicant had overseas near relatives, being her two sisters and mother.  While each was in Australia at the time when the visa application was made none was an Australian permanent resident, Australian citizen or eligible New Zealand citizen for the purposes of regulation 1.15.  On 20 October 2000 each held a temporary visa permitting stay in Australia for a specified period.  As a result none held a permanent visa under section 30 of the Act and none was an Australian permanent resident.  Each of these three people therefore are considered an overseas near relative of the primary visa applicant.’

7. As noted, those persons each became Australian permanent residents within five weeks or so of the application and so by 28 November 2000 ceased to be overseas near relatives. However, cl 835.212 of Sch 2 to the Regulations is directed to the time of the application. In addition, the Tribunal found the applicant's father also to be an overseas near relative. There was some evidence that he is deceased, but the Tribunal did not accept that in the light of all the evidence. It is plain that, wherever he may be living, he is not a permanent resident of Australia. Consequently, the application failed because the applicant had more than three overseas near relatives, at least until 28 November 2000. By reason of s 65(1) of the Migration Act 1958 (Cth) (the Act), that criterion for the grant of the visa not being satisfied at the time of the application, the delegate of the respondent and, on review, the Tribunal were obliged to refuse the application.

8. The orders sought on the application can only be made if the Tribunal is shown to have committed jurisdictional error.  See Plaintiff S157/2000 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2.

9. The solicitors for the applicant instructed to bring this application have remained on the file.  There is evidence that they have made extensive efforts to contact the applicant and her migration agent since 24 November 2003.  They have been unable to do so.  Consequently, those solicitors did not engage counsel nor appear themselves to make submissions on behalf of the applicant at the hearing today.  There is no foundation for thinking that the applicant has not had an opportunity through her solicitors to give instructions to them or to make such submissions as she wishes to make to the Court today.  Why she has not given further detailed instructions to her solicitors is unclear.

10. I am not satisfied that any jurisdictional error on the part of the Tribunal is made out.  The grounds of complaint set out in the initial application are general in nature.  In broad terms they assert a lack of procedural fairness in the making of the decision by the Tribunal or error of law on its part.

11. I do not see there is any scope for asserting a lack of procedural fairness on the part of the Tribunal.  It had regard to the material before it.  It conducted a hearing on 26 September 2002.  It gave the applicant the opportunity to put additional material to it.  At the hearing, evidence was given by the applicant, her mother and her brother, as well as one other person.

12. The other category of complaint, if one can discern a refined complaint from the generality of the grounds of review specified in the initial application, appears to relate to a matter of law.  In my judgment there is nothing shown which might indicate any error of law on the part of the Tribunal in understanding the regulations applicable to the grant of the visa or in applying them, or in the conclusions which it reached in relation to them.

13. In my judgment no jurisdictional error on the part of the Tribunal is made out.  Accordingly, the application should be dismissed.

14. I wish to make some additional comments.

15. Firstly, the timing of the application for the visa was unfortunate.  Within a few weeks, the applicant's mother and two younger sisters had become Australian permanent residents.  Had the application been made after 28 November 2000, the applicant would apparently have satisfied the criterion for a remaining relative visa upon which her application stumbled.  Counsel for the respondent has indicated that he is not aware of any other reason why the applicant would not have met the other criteria applicable to the grant of the visa.  In a sense, it is an accident of timing that the applicant did not qualify for the visa.

16. I note the avenue which may be available to the applicant to seek from the respondent the exercise of her power under s 351 of the Act to substitute for a decision of the Tribunal a decision that is more favourable to the applicant.  As the Tribunal found, she has no family ties in Fiji and her mother and siblings are all now permanent residents of Australia.  She has had no contact with her father for many years.  Although she was married young, she now has no contact with her husband.  Whether the respondent chooses to consider the exercise of that power and, if so, how the exercise of that power is to be made, is of course a matter entirely for the respondent.

17. The timing of the application has a further consequence. It might be thought that, given the permanent entry status now of her mother and two younger sisters, she could simply apply again for a remaining relative visa. I do not think that is available to her. Section 48 of the Act provides that:

    ‘A non‑citizen in the migration zone who

    (a)does not hold a substantive visa, and

    (b)either:

    (i)after last entering Australia, was refused a visa, …

    … subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class.’

18. As I understand the Migration Regulations, the applicant would now be unable to again apply whilst in Australia for a remaining relative visa. Regulation 2.12 prescribes classes of visas for the purposes of s 48 of the Act. The remaining relative visa is not in the prescribed class. Consequently, whilst the applicant remains in Australia under her present bridging visa, she is ineligible to again apply for a remaining relative visa. If she were to leave Australia (other than being removed from Australia under s 198), she may be eligible to apply again for such a visa, being then a non‑citizen outside the migration zone.

19. The formal orders are:

    1.        Application dismissed.

    2.        Applicant to pay to first respondent costs of application.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             11 March 2004

Counsel for the Applicant:	M W Clisby
Solicitor for the Applicant:	Mark Clisby
Counsel for the Respondents:	K Tredrea
Solicitor for the Respondents:	Sparke Helmore
Date of Hearing:	4 March 2004
Date of Judgment:	4 March 2004