Pandaram v Minister for Immigration and Multicultural Affairs

[2000] FCA 1557

FEDERAL COURT OF AUSTRALIA

Pandaram v Minister for Immigration & Multicultural Affairs [2000] FCA 1557

IMMIGRATION – certain unlawful non-citizens visa – requirement that formative years be spent in Australia – applicant had not spent formative years in Australia – children had not turned 18 years of age – no grounds identified.

JEAN MARIE PANDARAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V 479 of 2000

GOLDBERG J
2 NOVEMBER 2000
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 479 of 2000

BETWEEN:	JEAN MARIE PANDARAM Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	GOLDBERG J
DATE OF ORDER:	2 NOVEMBER 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 479 of 2000

BETWEEN:	JEAN MARIE PANDARAM Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	GOLDBERG J
DATE:	2 NOVEMBER 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction

1. The applicant applies to the Court pursuant to Pt 8 of the Migration Act 1958 (Cth) (“the Act”) to review the decision of the Migration Review Tribunal (“the Tribunal”) on 8 June 2000. The Tribunal affirmed the decision of the Department of Immigration and Multicultural Affairs to refuse the application of the applicant and her two children for a Change in Circumstance (Residence) (Class AG) Visa (subclass 833) Certain Unlawful Non‑Citizens Visa (“the visa”).

2. The applicant lodged an application for the visa on 7 March 2000.  It was refused by the Department on 6 April 2000.  On 27 April 2000 the applicant lodged an application for review of the decision with the Tribunal which held a hearing on 24 May 2000 at which the applicant and an officer of the Salvation Army gave evidence.

   Background

3. The applicant is a female citizen of Sri Lanka born on 1 November 1954.  She has two children, a daughter born on 5 October 1983 and a son born on 15 November 1985.  The applicant came to Australia on 14 April 1995 on a Visitor (Other) (Short Stay) Visa, subclass 674.  She was granted permission to remain in Australia until 14 July 1995.  The applicant’s children arrived in Australia on 9 December 1995 on Tourist (Short Stay) Visas, subclass 676 and were granted permission to remain in Australia until 9 March 1996.  On 27 November 1995 the applicant was granted a Sri Lankan (Temporary) Visa, subclass 435 which was valid until 31 July 1996.  Her two children were granted similar visas on 12 December 1995 which were valid until 31 July 1996.  Thereafter the applicant and her children were granted Sri Lankan (Temporary) Visas, subclass 435 which were valid until 31 July 1997.  On 22 July 1997 the applicant and her children were refused a Protection Visa subclass 866.  They were refused Sri Lankan (Temporary) Visas, subclass 435 on 11 August 1997 and on 24 December 1997 the Immigration Review Tribunal affirmed that decision.

4. The applicant is a single mother, having separated over fifteen years ago.  The applicant has supported her children on her own and as she found it hard to obtain work in Sri Lanka, due to her husband being Tamil, she has worked in a number of countries.  The children have attended school in Australia and the applicant believes they have become part of the community. 

   Reasoning of the Tribunal

5. The Tribunal identified applicable legislation and relevant principles of law and set out the evidence relating to the applicant and her two children, to which I have referred. The Tribunal observed correctly that because the applicant did not hold a substantive visa and had been refused a substantive visa since last entering Australia, she was limited in the categories of visa for which she was eligible to apply. This situation results from an application of s 48 of the Act and reg 2.12 of the Migration Regulations 1994 (“the Regulations”). The Tribunal considered the classes of visa prescribed by reg 2.12 and concluded that the only visa which could be considered on the facts as presented by the applicant was the Change in Circumstance (Residence) (Class AG) Visa.

6. The Tribunal noted that the purpose of the visa is to allow applications by adults who have spent their formative years in Australia.  The Tribunal correctly pointed out for an applicant to obtain such a visa the applicant must satisfy all the conditions of the visa which included the requirement in subcl 833.211(d) that an applicant meet the requirements of cl 833.212 since last applying for a substantive visa.  At the time the matter was before the Tribunal cl 833.21 was in the following terms:

   “833.21Criteria to be satisfied at time of application

   833.211          If:

   (a)       the applicant:

   (i)        was in Australia on 1 September 1994; and

   (ii)was, immediately before 1 September 1994, a person to whom section 37 of the Act as in force immediately before that date applied; and

   (iii)has not been granted a substantive visa on or after 1 September 1994; or

   (b)the applicant is a person to whom section 48 of the Act applies;

   the applicant:

   (c)has not been refused a visa or had a visa cancelled under section 501 of the Act; and

   (d)has become a person who meets the requirements of clause 833.212 since last applying for an entry permit or substantive visa.

   833.212          An applicant meets the requirement of this clause if he or she:

   (a)       has turned 18; and

   (b)before turning 18, ceased to hold a substantive visa; and

   (c)immediately before ceasing to hold a substantive visa, did not hold a Subclass 771 (Transit) visa; and

   (d)before turning 18, spent the greater part of the period that the Minister regards as the applicant’s formative years in Australia.”

   The Tribunal analysed the content of the requirement in subcl 833.212(d) and concluded that as the applicant was aged forty when she arrived in Australia and was aged forty‑five at the date of the application, and as her children were still under the age of eighteen years, they did not meet the requirements of subcl 833.212(b) and subcl 833.212(d) and, by reference, subcl 833.211(d).  It followed that the applicant and her children did not meet the criteria for the grant of a Change in Circumstance (Residence) (Class AG) Visa, subclass 833.

   Reasoning

7. In her application for an order of review the applicant specified the grounds of the application as being:

   “Review of a Tribunal Decision on grounds under section 476 of the Migration Act 1958. (Amended application to be forwarded).”

   No amended application was filed. 

8. The task of the Court upon a review under Pt 8 of the Act of a judicially‑reviewable decision, is limited to a consideration of whether any of the grounds set out in s 476 of the Act are made out. The applicant has not identified any of the grounds contained in s 476 upon which she relies. Nevertheless, I have considered the reasoning of the Tribunal to determine whether I can discern any ground contained in s 476 of the Act which might be relied upon by the applicant in support of her application for review. I have been unable to find any such ground, nor have I been able to find any error in the reasoning of the Tribunal.

9. What is clear and uncontested is that the applicant was forty years of age when she arrived in Australia and, no matter what content is given to the expression “formative years in Australia” in cl 833.212(d), the applicant did not meet, and cannot meet, the criteria in that subclause. Further, the applicant did not cease to hold a substantive visa before turning eighteen years of age, as required by subcl 833.212(b) of the Regulations.

10. The applicant’s two children are in no better situation as they were both under the age of eighteen years when they first arrived in Australia and are still under eighteen years of age. 

11. The applicant appeared in person at the hearing.  I asked the applicant whether she could point out any errors made by the Tribunal or any aspects of the procedure of the Tribunal of which she complained.  She said she could not do so.  When I asked the applicant what was the case she wished to present, she said, in substance she could not return to Sri Lanka because there was a lot of trouble there and that it would be hard for her children who had been educated in Australia over the past four or five years.  These matters do not bear upon the issues which were before the Tribunal in relation to the visas for which the applicant and her two children have applied. 

12. The application will be dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated:             2 November 2000

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Ms H Riley
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	2 November 2000
Date of Judgment:	2 November 2000