PRASAD v Minister for Immigration
[2005] FMCA 702
•10 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PRASAD v MINISTER FOR IMMIGRATION | [2005] FMCA 702 |
| MIGRATION – Migration Review Tribunal – family visa – no error. |
| Federal Magistrates Court Rules 2001 |
| Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39 |
| Applicant: | ANIL PRASAD |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 538 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 10 May 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 10 May 2005 |
REPRESENTATION
| Applicant: | No appearance |
| Counsel for the Respondent: | Mr R.C. Knowles |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed 14 May 2004 be dismissed.
The applicant shall pay the respondent's costs fixed in the sum of $7215.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 538 of 2004
| ANIL PRASAD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this application the applicant seeks to review a decision of the Migration Review Tribunal dated 31 July 2002. The applicant had filed an application in this court on 14 May 2004. In addition, the applicant had filed contentions of fact and law on 15 November 2004. At the time of filing the application and the contentions the applicant was represented by a solicitor. A notice of listing dated 24 November 2004 was sent to the then solicitors acting for and on behalf of the applicant advising that the application was fixed for hearing this day. The applicant's solicitor has subsequently filed in the court a notice of ceasing to act. That notice of withdrawal of practitioner was filed, according to the court stamp, on 22 April 2005. It is noted in passing the document itself appears to be dated 23 April 2005. It is clear though regardless of that error that the notice has been filed as a right and that leave is not required. The notice refers to what is said to be the last known address for service of the applicant in Marrickville, New South Wales. The applicant has not appeared this day.
Counsel for the respondent properly advised the court that the solicitors for the respondent by letter dated 27 April 2004, addressed to the applicant care of the Marrickville address, advised the applicant of the listing of the matter before the court this day. Significantly, the correspondence then provides for what might occur in the absence of the applicant, namely, the application be dismissed with costs. That letter, which I take to be a courtesy letter and a letter appropriately prepared, was sent to the address as indicated in Marrickville but has been returned with the envelope marked, "Return to sender, not at this address, thanks." I am satisfied that in the circumstances the applicant has for many months been aware of this hearing date.
Based upon the assumption which the court is entitled to make that the hearing date would have been advised to the applicant by his then solicitors on record as far back as November 2004, it is clear to me that in any event the solicitors then acting for the applicant have at least gone to the trouble of filing contentions of fact and law in relation to this matter.
There are a number of options which confront the court in dealing with circumstances where there is no appearance for the applicant. The court may simply dismiss the application pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (the Rules). Alternatively, the court may proceed with the hearing generally pursuant to rule 13.03A(d). Counsel for the respondent has invited the court to proceed with the hearing generally under Rule 13.03A(d) and it has been indicated that to do so on the basis of the material would result, if the respondent's submissions are correct, in there being a final decision on the merits of this application, which, although having orders made in the absence of the applicant may lead to an application to set aside the order pursuant to rule 16.05(2)(a), would nevertheless enliven potentially issues of res judicata, issue estoppel and/or Anshun estoppel.
I have carefully read the material provided by the parties in this matter and considered the decision sought to be reviewed. In my view, this is a case where it is appropriate for the court to proceed with the hearing generally pursuant to rule 13.03A(d). I do that for the reason that in circumstances where court time has been allocated to an application and where of necessity the court has considered the material filed and been able to make an assessment of the issues on the basis of that material and perhaps more importantly should in the discharge of its duties endeavour to make a proper assessment by proceeding with the hearing generally, it is desirable to do so. That may enliven, as I have indicated, the doctrine of res judicata and/or issue estoppel and/or Anshun estoppel but nevertheless it seems to me relevant that it should occur at this stage in the circumstances of this application, leaving open perhaps the prospect of the applicant seeking to set aside the order under rule 16.05 but bearing in mind that the applicant in those circumstances would need to persuade the court that the doctrine of res judicata or issue estoppel and/or Anshun estoppel should not apply. In my view, it is appropriate that that task should be visited upon an applicant in circumstances of this application. It is appropriate for me to proceed to hear the matter generally.
The respondent relies upon contentions of fact and law filed 3 December 2004 which appropriately set out the factual background in this matter. That factual background includes the following: that on 6 March 1998 the applicant, who is a Fijian citizen, lodged with the Department of Immigration & Multicultural & Indigenous Affairs (the Department) an application for a family residence class AO visa. The application included the applicant's wife and children. The applicant claimed that on the ground that he was a special need relative of his mother, the nominator, and her adopted daughter, he satisfied the criteria for the grant of a special need relative visa. In his decision dated 12 April 1999 the respondent's delegate refused to grant the applicant a special need relative visa. On 7 May 1999 the applicant lodged an application for review with the Migration Internal Review Office, and on 1 June 1999, as a result of amendments to the Migration Act, the transfer of that review application was made to the Migration Review Tribunal. Material was lodged in support of the application by the applicant's then representative throughout the years 2000 and 2001. A hearing was ultimately conducted on 29 June 2001 and 30 July 2001. Further material was lodged after the hearing concerning medical evidence of the nominator's condition and post hearing written submissions were made. The Tribunal handed down its decision on 31 July 2002 wherein it affirmed the delegate's decision refusing to grant the applicant a special need relative visa.
The application in this matter can only be described as one which is sparse in terms of the statement of grounds. It is not particularly assisted by the applicant's contentions of fact and law for reasons which will become evident. A statement of grounds in the application simply provides as follows:
“1.The Respondent failed to observe the proper procedures with regard to the Applicant and to act in accordance with substantial justice.
2.The Respondent exceeded its jurisdiction.”
I set out the relevant legislation conveniently and appropriately referred to in the respondent's contentions as follows:-
Clause 806.213 of the Migration Regulations 1994
“The applicant is … a special need relative of another person who:
(a)is a settled Australian citizen; and
(b) is usually resident in Australia; and
(c) has nominated the applicant for the grant of the visa.”
Regulation 1.03 of the Migration Regulations 1994
“’special need relative’ in relation to an Australian citizen usually resident in Australia … means a relative who is willing and able to provide substantial and continuing assistance to the citizen if:
(a)the citizen … has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen … personally, or a member of his or her family unit; and
(b) the assistance cannot reasonably be obtained from:
(i)any other relative of the citizen … being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or
(ii)welfare, hospital nursing or community services in Australia.”
It is clear to me that on a proper reading of the Tribunal's decision, that it has appropriately considered the relevant legislation, has taken into account all the factual matters raised by the applicant in support of the application and has otherwise, in my view, correctly reached a decision reasonably open to it on the material.
During the course of its decision‑making, there is no doubt that the Tribunal was required to consider the criteria for the grant of the appropriate visa. It had, as submitted by the respondent, in my view correctly observed that it is necessary for the applicant to satisfy all applicable criteria for the grant of a special need relative visa. It further correctly set out the relevant statutory framework and in particular the applicable criteria to be satisfied by the applicant at the time of the visa application at the time of the Tribunal's decision. In determining the appropriate tests in relation to the definition of special need relative, the Tribunal again correctly referred to and applied the approach taken by the Full Federal Court in Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39.
In my view, whilst it is noted that in the contentions there is some assertion that the Tribunal had acted for and on behalf of the minister, that clearly is a contention which cannot be sustained. The suggestion that the Tribunal exceeded its jurisdiction in wrongly interpreting the relevant legislation again cannot be sustained. The Tribunal, in my view, contrary to the submissions by the applicant, assessed the nominator's need for assistance independently of the assistance actually capable of being provided by the applicant. It otherwise considered in detail the assistance purportedly provided to the nominator by the applicant and his family.
A proper reading of the Tribunal's decision, in my view, also reveals that it considered the medical evidence appropriately. I note it is suggested in the contentions, somewhat curiously, that the Tribunal erred in substituting its own medical findings to those of the various medical experts invoked by the applicants. This is clearly incorrect on a proper reading of the Tribunal's decision.
Overall, it is my concluded view in this matter that the Tribunal has embarked upon its task following a correct assessment of the legislative provisions, applied the correct principles of law and has otherwise undertaken a fact‑finding mission reasonably open to it free of any jurisdictional error. The contentions of fact and law relied upon by the applicant in this case are, in my view, entirely without merit. It is clear to me therefore on the material that it is appropriate for this court, as I indicated earlier, to proceed to hear the matter generally in the light of my assessment of the material currently filed before the court and having regard to the fact that the applicant in this instance has been notified of this hearing at least since November last year.
It follows for those reasons that the application should be dismissed with costs.
I certify that the preceding fourteen paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 10 May 2005
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