Ong v Minister for Immigration
[2007] FMCA 2120
•18 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ONG & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2120 |
| MIGRATION – Judicial review – remaining relative visa – no jurisdictional error. |
| Migration Act 1958 (Cth) Migration Regulations 1994 (Cth) reg. 1.15; cl. 115.211 |
| Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 |
| Applicant: | SAW EAN SUSAN ONG & ANOTHER |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP & ANOTHER |
| File Number: | PEG 126 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 18 December 2007 |
| Date of Last Submission: | 18 December 2007 |
| Delivered at: | Perth |
| Delivered on: | 18 December 2007 |
REPRESENTATION
| First Applicant: | Ms S E S Ong in person |
| Second Applicant: | No appearance |
| Counsel for the Respondent: | Mr P R Macliver |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The first applicant pay the first respondent’s costs in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 126 of 2007
| SAW EAN SUSAN ONG AND ANOTHER |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOTHER |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript of ex tempore reasons)
This is an application for review by the mother of the visa applicant.
The visa applicant applied to come to Australia on an Other Family (Migrant) Class BO visa on 5 May 2006.
A delegate of the first respondent refused the visa application on 26 May 2006 because the delegate was not satisfied that the visa applicant qualified for a visa as a “remaining relative” under regulation 1.15 of the Migration Regulations 1994 (Cth),[1] because the visa applicant’s spouse’s parents resided in Malaysia.
[1] “MigrationRegulations”.
The delegate’s decision was reviewed, on application, by the Tribunal. The Tribunal affirmed the delegate’s decision finding that:
“information contained in the visa application indicates that the visa applicant’s spouse has near relatives (that is her parents and possibly her brother), who are not Australian citizens, Australian permanent residents or eligible New Zealand citizens, and who do not usually reside in Australia. The information indicates that they reside in Malaysia.
Based on this information the Tribunal finds that the visa applicant does not meet the requirements of paragraph 1.15(1)(c) of the definition of remaining relative and therefore does not satisfy clause 115.211.”[2]
[2] Tribunal Decision, paras 23-24 at Case Book 179.
It is relevant to note that the application did not fail before the Tribunal because the applicant did not inform the Tribunal of a further relative of the spouse who lived in Penang. [3]
[3] See para. 10 below.
Clause 115.211 of the Migration Regulations states:
“(1) The applicant is a remaining relative of an Australian relative of the applicant.
(2) In this clause, “the Australian relative” in relation to an applicant means a relative of the applicant who was an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen.”
The criteria specified by clause 115.211 are criteria to be met at the time the application is made. Regulation 1.15 states 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:
(c) The applicant and the applicant’s spouse, (if any), have no near relatives other than near relatives who are:
(i) usually resident in Australia and,
(ii) Australian citizens, Australian permanent residents or eligible New Zealand citizens”
and regulation 1.15(2) defines “near relative” in relation to an applicant as a person who is a parent or brother, amongst others, of the applicant or of the applicant’s spouse, if any.
It was against those regulations and that criterion that the Tribunal arrived at its decision to affirm the decision of the delegate to refuse the applicant’s visa application.
On 21 June 2007 the applicant applied to this Court to review the Tribunal’s decision.
The grounds of the application simply set out the class of visa applied for and a list of various parts of the Migration Regulations. As grounds of application they allege no jurisdictional error on the part of the Tribunal and are otherwise meaningless. The review applicant filed an affidavit with the application and in that affidavit said as follows:
“(1) That the applicant, my son ..... is deaf and mute. I appeal against the decision of the Migration Review Tribunal on the 24th May 2007. Presiding member erred in not questioning witness on hearing day the 10th of May 2007 one of witness who helped me fill in form for my son in Kuala Lumpur.
(2) I had no intention of misleading presiding member when she asked why question on application form did not indicate the brother of spouse of my son.
(3) I had not much contact with my son’s spouse’s parent or family. I only know that my son doesn’t stay together with the parent-in-law. My son and his wife stay together in Penang, but at a different suburb. Myself have been staying at Christmas Island for the past seven years. Occasionally I do go back to Penang to only visit my son and his wife. When in 2006 my son asked if he can come to Christmas Island to stay, I put in an application to sponsor him. He indicated that he would like to work at my sister’s business and once settled he will eventually like his wife to join him in Christmas Island.”[4]
[4] First Applicant’s Affidavit, affirmed 21 June 2007, paras. 1-3.
That affidavit was affirmed on 21 June 2007 and much of its content was reaffirmed in submissions to the Court today. The affidavit also reaffirms the factual basis for the legal conclusion reached by the Tribunal, namely, that the visa applicant’s spouse’s parents live in Penang Malaysia and therefore the requirements of regulation 1.15(1)(c) and clause 115.211 are not met.
Before the Court today the applicant pleaded the case on very understandable compassionate grounds. The Court does not doubt the sincerity of those grounds as they were put before it in submissions today. However, the applicant clearly did not appreciate that this Court’s role is not a merit review, nor is it a compassionate review, of the case. Given what the applicant said in reply concerning an appeal the Court also notes that no Court to which an appeal might be made can review the application on merit or compassionate grounds. If the applicant seeks that a visa issue on compassionate grounds, there are other provisions of the Migration Act, 1958 (Cth)[5] under which such applications can be made to the Minister. However, the application before the Court today is not such an application.
[5] “Migration Act”.
This Court can only set aside a decision of the Tribunal if the Tribunal made a jurisdictional error. The nature of jurisdictional error was outlined by the High Court of Australia in Minister for Immigration and Multicultural Affairs v Yusuf.[6] It is unnecessary to repeat what was said in Yusuf. It suffices to say that the Tribunal correctly identified and dealt with the issue to be determined, namely whether there was a remaining relative resident outside of Australia. For the purposes of regulation 1.15 and clause 115.211 of the Migration Regulations, the Tribunal committed no error at all, alternatively, no error that ultimately affected the exercise of its power, or which exceeded the authority or powers given to the Tribunal under the Migration Act and Migration Regulations.
[6] (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para. 82 per McHugh, Gummow and Hayne JJ (“Yusuf”).
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: M Hewitt
Date: 21 December 2007
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