Prosad v Minister for Immigration
[2005] FMCA 583
•5 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PROSAD v MINISTER FOR IMMIGRATION | [2005] FMCA 583 |
| MIGRATION – Review of MRT decision – meaning of “remaining relative” under regulation 1.15 – whether applicant’s husband had two brothers – application of s.474(1) – decision quashed. |
| Migration Act 1958 (Cth) |
| Scargill v MIMIA (2003) FCAFC 116 Videto v MIEA (1985) 69 ALR 342 Ou Yang v MIMIA (2003) FCAFC 258 Plaintiff S157 v Commonwealth of Australia (2003) 195 ALR 24 |
| Applicant: | VEENA DEVI PROSAD |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | BZ 508 of 2003 |
| Judgment of: | Baumann FM |
| Hearing date: | 9 March 2004 |
| Date of Last Submission: | 9 March 2004 |
| Delivered at: | Brisbane |
| Delivered on: | 5 May 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Boccabella |
| Solicitors for the Applicant: | Stephens & Tozer |
| Counsel for the Respondent: | Mr Steel |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That an order of certiorari issues quashing the decision of the Migration Review Tribunal made that affirmed the decision of the delegate for the Respondent Minister.
That an order of mandamus issue directing the Migration Review Tribunal to determine the application for review according to law.
That the Respondent pay the Applicant’s costs of the Application as agreed, and failing agreement as fixed by the Court upon the consideration of written submission to be delivered within 21 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRZ 508 of 2003
| VEENA DEVI PROSAD |
Applicant
And
| MINISTER FOR IMMIAGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application to review a decision of the Migration Review Tribunal (“MRT”) made on 30 June 2003. The learned member affirmed the decision of the delegate of the Minister that the Applicant was not entitled to the grant of an Other Family (Residence) (Class BU) visa. The Applicant had applied for the visa on the basis that she was a “remaining relative” of her sister RINA JOSEPHINE RICHARDS (also known as VIMLA DEVI), Australian citizen.
It is not disputed that the Applicant’s Application was validly made on 27 September 2001. Four family members were included in the Applicant’s visa application – her husband MAHENDRA (aged 46); her daughter MOREEN (aged 21) and her son SHELVIN (aged 18). Section 65(1) of the Act provides that the Minister (or on reviews the MRT) must grant the visa if satisfied as to the matters started in a valid application, including the criteria prescribed by the Act or the Regulations for the kind of visa for which Application is made (s.65(1)(a)(ii)).
The Migration Regulations in force at the time of the Applicant’s Application (and at the time of the delegate’s decision) prescribed criteria for the relevant visa in Schedule 2, Subclass 835. There are certain primary criteria that must be met in order for an Applicant to be eligible for a Subclass 835 visa, and relevantly included (835.212) that:-
“The Applicant is a remaining relative of a person who:-
(a)is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and
(b)is usually resident in Australia; and
(c)has nominated the Applicant for the grant of the visa.”
“Remaining relative” is defined in Regulation 1.15 of the Regulations and relevantly provides:-
(1)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); and
(b)(5) a child (including a step-child) of the Applicant or of the Applicant’s spouse (if any), being a child who:
(iii)has turned 18 and is not a dependent child of the Applicant or of the Applicant’s spouse (if any); or
(iv)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, and 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.
I agree that the relevant findings of the MRT were accurately summarised at paragraph 12 of the Respondent’s submissions to this Court as:-
(a)“Together, the Applicant and her husband had a total of five overseas near relatives who resided in a country other than Australia. That would be the case even if the MRT accepted the Applicant’s contention that her parents resided in India.
(b)The MRT gave little weight to the letters relating to the residence of the Applicant’s parents in India. That was because:
ii)One of the letters appeared to be altered or tampered with;
iii)The letters had not been provided to the delegate;
iv)The evidence of SURJIT KALIR DILLON was not satisfactory evidence that the Applicant’s parents were no longer resident in Fiji;
v)There was no indication as to who translated one of the letters and whether the translation was reliable.
(c)The onus of proof is on the Applicant to show the regulations have been satisfied.
(d)At the time of her Application, the Applicant had two overseas near relatives who resided in Fiji;
(e)The Applicant did not meet the requirements in Regulation 1.15 (1) (c) and (d) because the confirmed number of overseas relatives for the Applicant and her husband was five in total”.
The Applicant contends that the MRT fell into error of law in the following respects:-
(a)By failing to apply the correct test of “usually resides” as defined in Scargill v MIMIA (2003) FCAFC 116; and
(b)By finding that the Applicant and her husband had 5 overseas near relatives, as a result of the alleged confusion (and inconsistency) between the Application and the evidence given by the Applicant’s husband.
Background
It is common ground between the parties that the Applicant legally entered into Australia, with her family, in May 1998. They have remained in Australia since the Applicant’s visa Application; dated
24 September 2001 was submitted on 26 September 2001 and is being processed. The Applicant is a Fijian national of Indian ethnicity.
In the said Application, the Applicant noted that both her parents resided in Fiji. The Applicant’s husband, in the Application did not disclose the existence of any “brothers” in New Zealand or elsewhere. It is accepted that for the purpose of Regulation 1.15 (2) (a) a brother is a sibling born to the same biological parents. The definition provides for step-brothers. The husband, in his Affidavit filed 10 February 2004 in these proceedings, deposes that:-
“6.I am the only child of my parents.
7.I do not have brothers residing in New Zealand.
8.At the Migration Review Tribunal, on my unsworn evidence, I made reference to two brothers in New Zealand. As is our custom, our first cousins are referred to as our brothers. This was the reference that I had made to the Tribunal. We also sometimes refer to our first cousins as “cousin brothers”.”
The Test of Residence
It is clear that the Member found that the Applicant’s residence was Fiji (see paragraph 25 of MRT Reasons). Such a finding is consistent with the Member’s statement that:-
“Okay, alright, the reason why the visa was refused was because the delegate said that you did not fit the definition of last remaining relative. In other words you still have parents who reside or whose usual place of resident (sic) the delegate found to be Fiji and that is the same place that is your usual place of resident (sic) although you live in Australia you are still considered to be a usual resident of Fiji…” (Emphasis added).
It was open to the Member to find, as she did, that the Applicant’s parents usually resided in Fiji. That was clearly a question of fact. The MRT was entitled to reject the evidence submitted by the Applicant seeking to persuade the Member that her parents had moved permanently to reside in India. It is not a finding of fact open to the Court to disturb.
The Applicant submits that the Member, in finding the Applicant was usually residing in Fiji like her parents, failed to address the proper meaning of “usually resides” and reached a conclusion that was incapable of supporting the finding. It is said, similarly to the error identified by the Full Court in Scargill, that the Member did not and could not have considered the fact that the Applicant had been lawfully present in Australia since 1998, in coming to its conclusion on this issue.
The Respondent says in their submissions, on this issue, that:-
“…a careful reading of the reasons of the MRT shows that the MRT did not apply the test of residence imputed to it on behalf of the Applicant. The MRT said, in effect, that although it could not be certain that the move to India was permanent, the requirements of Regulation 1.15 (1) (c) – (d) were not met because the Applicant had a total of five overseas near relatives”.
At paragraph 23 and 24 of the Member’s reasons, the reliance on the Delegates finding end the need to refer to “PAM 3P” suggests to me that the Member was turning her mind to paragraph 5.2 namely:-
“5.2.If the Applicant lives in the same country as their overseas near relative(s)
5.2.1.Regulation 1.15 (1) (c) requirements cannot be met (or their spouse, if applicable) usually resides in the same country as an overseas near relative…
5.2.2.The Regulation is worded so that the onus of proof is on the Applicant to show that they (and their spouse) reside in a country different from that of any overseas near relatives”.
Furthermore, the Tribunal found (at paragraph 34) that the visa Applicant is “unable to meet the criteria set out in Regulation 1.15 (1) (c) and (d) and clause 835.212 of Schedule 2 to the Regulations” (emphasis added).
I have taken the view that the Member did make a determinative finding that the Applicant was a usual resident in Fiji, and by so doing asked herself the wrong question, instead of applying the test as propounded in Scargill (at paragraphs 30 and 31).
In no doing it failed to consider according to law whether it was satisfied that the criteria prescribed by the regulations have been satisfied.
The Issues of Whether the Applicant’s Husband had Two Brothers
It is clear that the Member, based on the evidence available to this Court, made an error of fact in finding the Applicant’s husband had two brothers (within the meaning of that description in Regulation 1.15 (2) (a)) and that therefore the Applicant and her husband had more than 3 overseas near relatives – a matter which amounted to a failure to satisfy the criteria set out in Regulation 1.15 (1) (d).
The transcript of evidence reveals the following exchange between the Member and the husband of the Applicant:-
“MEMBER:Okay now your father is living in New Zealand?
APPLICANT’S HUSBAND: No my mother’s there.
MEMBER: Your mother is in New Zealand?
APPLICANT’S HUSBAND: Yes, my mother and two brothers I do believe.
MEMBER:You have two brothers do you?
APPLICANT’S HUSBAND: Yes, but they don’t communicate with me and haven’t written to me so I don’t know.
MEMBER:So they should have been declared regardless of whether you have or haven’t communicated, it says under the Application form your spouse’s brothers and sisters including full, half, step and adopted brothers and sister but I note there is nothing there. Anyway, so you have 2 brothers there as well.
APPLICANT’S HUSBAND: Yes.”
The Applicant says this exchange, coupled with the fact that the Applicant’s were unrepresented (and there being no contradictor), meant the MRT, as an inquisitional body, had a duty, to further enquire of the Applicant’s husband (eg. “the names of the brothers, their ages, dates of birth, their addresses”). Such a disclosure would have been required at item 57 of the visa Application. The argument is that if “obvious” questions had been asked, then it would have become apparent to the Member that the Applicant’s husband was confused about the term “brother”.
The Applicant says this was a case of “obvious omission or obscurity” and “a decision-maker should adopt the simple expediment of requiring further information from the Applicant” (see Videto v MIEA (1985) 69 ALR342 at 335 applied in Ou Yang v MIMIA (2003) FCAFC 258).
The questioning by the Member was appropriate and in the circumstances where the Applicant’s husband gave such unequivocal response, it seems to me the Member can not be said to have an obligation to go further.
At best the error was an error of fact which does not amount to jurisdictional error.
Does Section 474 (1) Protect the Tribunal’s Decision from Review
The Full Court in Scargill, dealing with a similar error as I have earlier detected relating to the interpretation of the words “usually resident”, concluded post the High Court’s discussion in Plaintiff S157 v Commonwealth of Australia (2003) 195 ALR 24, that:-
“…the Tribunal fell into error in the consideration of that question and, in the result, there was a constructive failure to exercise the jurisdiction vested in it. In our opinion, that error makes this case a plain one where the decision was not made ‘under this Act’, thus it is not a decision protected by s 474 (1)”.
I am bound by that reasoning which is plainly correct.
In my view there is also name merit in the Applicant’s final written submission that “even if one considers that parent issue only then there has been an error. It would not be futile to remit the matter back to the MRT because there is evidence that the decision would be different if that evidence was properly agitated”.
Whilst I am not saying the decision “would” be different it certainly “could” be different.
There should be an order for certiorari to quash the Tribunal’s decision and mandamus directed to the Tribunal to decide the case according to law. The Respondent should pay the Applicant’s costs of this Application as agreed, and failing agreement as fixed by me after receipt of written submissions filed and served within 21 days.
I will so order.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
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