Raczynski v Minister for Immigration

[2014] FCCA 2420

FEDERAL CIRCUIT COURT OF AUSTRALIA

RACZYNSKI v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2420

Catchwords:
MIGRATION – Application for judicial review of decision of the Migration Review Tribunal – application for secondary visa as consequence of filial dependency – MRT concluded that applicant was not substantially dependent upon primary visa applicant at operative time – finding of fact – was finding illogical or irrational – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.351, 360(1), 474, 476(1)

Migration Regulations 1994: rr.1.05A, 1.12; 1.15AA

Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] 128 FCR 553
Plaintiff 157/2002 (2003) 211 CLR 476
Craig v South Australia (1995) 184 CLR 163
Kioa v West (1985) 159 CLR 550
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprise Pty Ltd [1993] 43 FCR 280
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Huynh v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 122
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALE59
Attorney-General (NSW) v Quin (1990) 170 CLR 1

Applicant: MICHAL ADAM RACZYNSKI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 179 of 2014

Judgment of: Judge Brown

Hearing date: 26 September 2014

Date of Last Submission: 26 September 2014

Delivered at: Adelaide

Delivered on: 24 October 2014

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondents: Mr d’Assumpcao

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed 22 May 2014 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of six thousand six hundred and forty-six dollars ($6,646.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 179 of 2014

MICHAL ADAM RACZYNSKI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Michal Adam Raczynski “the applicant” instituted proceedings, in this court, on 22 May 2014, seeking to review a decision of the Migration Review Tribunal “the MRT” not to grant him an Other Family (Residence) (Class BU) Visa “the visa”, pursuant to the provisions of the Migration Act 1958 (Cth) “the Act”.

2. The applicant was born in Poland on 24 December 1989.  He arrived in Australia, in November 2010, in the company of his mother, Beata Losowska and his father, Mariusz Losowski.  His maternal grandmother, Zuzanna Maria Sowa, who was born on 3 August 1935, holds dual Australian/Polish citizenship and is a resident of Australia.

3. Mrs Sowa is widowed.  She is also in poor health, as she suffers from severe dementia.  Ms Losowska came to Australia to provide care for her elderly mother.  She was accompanied to this country by her husband, Mr Losowski and the applicant himself, who had previously been a student in Poland. 

4. In these circumstances, Ms Losowska applied to the Department of Immigration & Citizenship[1] for a Carer (Residence) Visa, so she could provide nursing and emotional support for Mrs Sowa, within the confines of Mrs Sowa’s home.  The applicant in the current proceedings also applied for a visa to remain in Australia, on the basis that he was a dependant and family member of Ms Losowska.

   [1]  As the Department of Immigration & Border Protection was previously known

5. On 7 August 2013, a delegate of the Minister for Immigration & Citizenship declined to grant Ms Losowska the carer’s visa for which she had applied.  Essentially, it was determined that Mrs Sowa could reasonably obtain the care, which she required, from services available to her from nursing and hospital facilities within Australia. 

6. As a consequence of this decision, both Mr Losowski and the applicant were also refused the visas for which they had each applied.  Each of their applications depended on the success of Ms Losowska’s application as the primary visa applicant. 

7. Following the delegate’s decision, Ms Losowska, Mr Losowski and the applicant applied to the MRT to review the decision not to grant them the visas for which they had applied.  These applications came before the MRT on 24 April 2014, when the following decision was made:

   “The Tribunal remits the applications of Mrs Losowska and Mr Losowski for Other Family (Residence) Class BU) visas for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

   cl.836.221 of Schedule 2 to the Regulations

   The Tribunal affirms the decision not to grant Mr Raczynski an Other Family (Residence) (Class BU) visa.”

8. It is the latter aspect of this decision, which is the subject of the current application for judicial review.  As is self-apparent, Ms Losowska and Mr Losowski’s respective applications for visas remain alive, whilst that of their son, the applicant in these proceedings, has been declined. 

9. The sole ground of the application to review the decision of the MRT is as follows:

   “The MRT Member made an error of law by misunderstanding and misapplying relevant provisions of the Migration Regulations 1994. The Tribunal Member had to determine whether or not Michal Raczynski was a member of the family unit of the primary applicant (in the MRT decision). The MRT Member wrongly interpreted and applied the term ‘dependent child’ according to the Regulations, and therefore erred in making her decision.”

10. However, in his more recent submissions, filed the day prior to the current hearing, the applicant appears to have raised a further, albeit inchoate,  ground of appeal, namely:

    “Furthermore, at the MRT hearing, I was never given the opportunity to present my case in front of the MRT member.  The member only took evidence from my mother (the primary applicant), and I was not question nor provided the opportunity to speak.  Now it is my case that is in question.”

11. This statement seems to assert that the applicant was denied the right to present arguments before the MRT and was thus denied both natural justice and procedural fairness. It is also, I think, impliedly suggested by him that the Tribunal has breached its statutory obligations arising under section 360(1) of the Act, which reads as follows:

    (1)     The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

12. The import of the applicant’s submission appears to be that, although he was physically present at the hearing before the MRT, he was not given a proper opportunity to address the concerns raised by the Tribunal, in its ultimate decision, regarding his financial circumstances, particularly his dependency on his mother.

13. As such, the invitation offered to him, pursuant to section 360(1) was a token one, rather than a proper opportunity for him to advance arguments before the Tribunal.[2]  In addition, it appears to be implicit in the applicant’s case that he was not given a proper opportunity to comment on the adverse inference the Tribunal had drawn regarding his current means of financial support, as a consequence of his recent employment.

    [2]  See Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] 128 FCR 553 at 560

14. One of the difficulties arising from this late submission is that it is unsupported by any examples from the proceeding before the MRT.  I have not been provided with a transcript of those proceedings.

The conditions relating to the visa in question

1. In order to satisfy the grant of the visa, for which she had applied, Ms Losowska was required to establish that she was a “carer” for Mrs Sowa.  The expression carer is defined by regulation 1.15AA of the Migration Regulations 1994. 

2. Ultimately, after considering the evidence available to it, including the level of impairment of Mrs Sowa and other factors relating to the situation of other of her relatives living in Australia, the Tribunal found that Ms Losowska satisfied the statutory definition of carer of Mrs Sowa, who was her Australian relative and sponsor. 

3. Accordingly, the MRT found that Ms Losowska satisfied the criteria provided by clause 836.221 of Schedule 2 to the Regulations.  No challenge is made to this finding.  She was found to be a carer of Mrs Sowa, who was her Australian relative. 

4. It is convenient to regard Ms Losowska as the primary visa applicant and Mr Raczynski as a secondary applicant, required to meet additional criteria before he could be granted the visa for which he had applied. 

5. As a consequence of the decision to grant Ms Losowska the primary visa, it was then necessary to determine whether Mr Raczynski satisfied the necessary criterion attaching to the visa for which he had applied.  This criterion is primarily contained in clause 836.311 of Schedule 2. 

6. Pursuant to clause 836.311 Mr Raczynski must establish he is a member of Ms Losowska’s family unit, at the time she applied for the primary visa in question, namely the carer’s visa.

7. In addition, there is a further or secondary criterion, arising from clause 836.321.  Pursuant to this clause, the applicant must also satisfy the relevant decision-maker that he or she continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 836 visa.  This clause appears under the heading criteria to be satisfied at time of decision.

8. Essentially, Mr Raczynski must satisfy the Minister’s delegate that he was a member of Ms Losowska’s family unit at the time of her application for a carer’s visa and continues to be one at the time of the grant of the visa. 

9. The expression member of the family unit is defined by section 5 of the Act.  It carries the definition given by any requisite regulation.  According to the definition provided by regulation 1.12, a person is a member of the family unit if, amongst other things, he or she is a dependent child of the family head or of a spouse or de facto partner of the family head. 

10. The expression dependent child is defined in regulation 1.03.  It means a child who is not yet eighteen years of age or is over eighteen but is dependent or incapacitated for work due to either a total or partial loss of bodily or mental functions.  As the applicant is over eighteen, the fact finding exercise, confronting the MRT, concerned whether he was to be regarded as dependent upon Ms Losowska.

11. The issue of whether a child is dependent, on the head of the family, of which he or she forms a part, turns on definitions provided by regulation 1.05A of the Regulations.  This regulation provides as follows:

    1.05A Dependent

    (1) Subject to sub-regulation (2), a person (the first person) is dependent on another person if:

    (a) at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

12. In this case, it is the applicant’s contention that the MRT has misconstrued or misapplied the provisions contained in regulation 1.05A(1) to his circumstances, particularly his level of dependency on Ms Losowska.

13. In this regard, the applicant makes the following submission:

    “When assessing my dependence on my mother/parents the MRT focused almost exclusively on the period immediately before the hearing when I had just got my first employment and not the “substantial period immediately before” both the visa refusal date and the MRT hearing date which contradicts the relevant legislation (and procedures).  In that sense in my view the deliberations and the decision of the Department and the MRT is a gross misrepresentation of the relevant legislation, and hence the judicial error.”[3]

    [3]  See Applicant’s written submissions dated 25 September 2014 at page 1

14. It is the applicant’s contention, I think, that the MRT has erroneously concentrated its deliberations on the period around the time of its decision concerning Mr Raczynski’s dependency, when the evidence indicated that he had been able to obtain part time employment as a cleaner.

15. This employment had only been obtained by Mr Raczynski about three weeks prior to the hearing before the MRT.  Prior to that time, the applicant had not been in employment and had had no independent sources of income.  By necessary implication, it appears to be his position that as he was not capable of providing his own essential financial support, therefore he must have been dependent on his parents.

16. The hearing took place on 26 February 2014.  Mr Raczynski arrived in Australia, in the company of his parents, on 26 November 2010.  In the applicant’s submission this period is a substantial period of time, during which the evidence available to the MRT indicated that he was dependent upon his mother and family in the sense envisaged by regulation 1.05A(1).

The findings of the MRT

1. The Tribunal record indicates that it took evidence from Ms Losowska, Mr Losowski, Mr Raczynski and Mrs Sowa’s son, Mr Grezegora Sowa.  As previously indicated, I have not been provided with a transcript of the proceedings.  Accordingly, I do not know specifically what, if anything, the applicant was asked by the Tribunal and what opportunity he was given to advance any arguments.

2. The Tribunal summarised its fact finding task, in regards the question of Mr Raczynski’s dependency on his mother, as follows:

   “The term ‘dependent’ is defined in r.1.05A.  It requires that at the relevant time, and for a substantial period immediately before that time, the person who is claiming to be dependent (the ‘first person’) must be wholly or substantially reliant on the other person for financial support to meet their basic needs for food, clothing and shelter.  Further, the first person’s reliance on the other person must be greater than their reliance on any other person or source of financial support to meet those basic needs: r.1.05A(1)(a)(ii) and (ii).  Alternatively, the first person must be wholly or substantially reliant on the other person for financial support because they are incapacitated for work to the total or partial loss of their bodily or mental functions: r.1.05A(1)(b).[4]

   [4]  See Case Book at page 105 [39]

3. The only statutory considerations relevant to the issue of whether Mr Raczynski was or was not dependent upon his mother are contained in regulation 1.05A.  This requires consideration of the circumstances of the person concerned both at the relevant time and a substantial period of time beforehand. 

4. This follows from the phraseology contained in placita (i) of the regulation, which indicates the requirement that the person sought to be classified as dependent is (present tense) and has been (past perfect tense) reliant on the principal visa holder in order to supply basic financial needs.  The two concepts are conjoined.  Accordingly both must be satisfied to establish dependency.  Essentially, the concept has both a historical dimension and a requirement for contemporaneous dependency.

5. There is no controversy arising in this case that Mr Raczynski is in any way physically incapacitated for work.  In this context, the Tribunal posed itself the following question:

   “In issue is whether he [Mr Raczynski] is wholly or substantially dependent on his [sic] Mrs Losowska or his father for financial support to meet his basic needs of food, clothing and shelter, and has been for a substantial period both before the application and the time of this decision.”[5]

   [5]  Ibid at page106 [41]

6. In posing this question, it seems to me, that the Tribunal considered the present as well as the period of the contiguous substantial past.

7. As a consequence  of the evidence led before it, the Tribunal made the following findings of fact regarding the applicant:

   ·He had arrived in Australia, at the age of twenty, in the company of his parents, on 26 November 2010;

   ·It was impliedly accepted that the applicant did not speak English at the time and had been a student in Poland beforehand;

   ·On arrival in Australia, Mr Raczynski had lived in Mrs Sowa’s house with his parents and maternal grandmother;

   ·Mrs Sowa had paid the rent on the premises by way of a direct debit from her social security entitlements to the SA Housing Trust;

   ·Mr Losowski and Ms Losowska had brought savings with them from Poland, which they utilised to pay other living expenses;

   ·In the period following the applicant’s arrival in Australia,  his parents had paid for electricity, telephone, water and Polish television;

   ·The balance of Mrs Sowa’s pension was used to pay for medication, nappies, clothing and creams, utilised by Mrs Sowa;

   ·Mr Losowski, Ms Losowska and Mr Raczynski lived modestly.  When Mr Losowski and Ms Losowska had depleted their savings, they had borrowed money from Mr Sowa;

   ·Mr Sowa had purchased food for both his mother and the applicant and his parents;

   ·Mr Raczynski had obtained a job, as a cleaner, in a nursing home, three weeks prior to the hearing.  He wanted to study and only wanted to earn enough to do so;

   ·The applicant was currently working part time, up to 20 hours per week and was earning $800.00 per fortnight;

   ·Mr Losowski and Ms Losowska indicated to the Tribunal that they would continue to provide food and general care for Mr Raczynski, as he would work only enough to pay his school expenses;

   ·Mr Losowski was doing work experience with a carpentry company but had not as yet earned any money.  It was anticipated that he might experience difficulty in obtaining work due to a lack of English;

   ·In these circumstances, the Tribunal found that neither Mr Losowski nor Ms Losowska had any income or financial resources, at the date of the hearing;

   ·Mr Sowa gave evidence that rent on his mother’s home and electricity consumed there were paid for from Mrs Sowa’s bank account;

   ·Mr Sowa further deposed that Ms Losowska paid for telephone and food and was living on her mother’s pension and his support;

   ·Mr Sowa said he had loaned his sister, Ms Losowska the sum of $10,000.00;

   ·Mr Sowa said he bought Mr Raczynski’s clothes and gave him pocket money.

8. From these findings of fact, the Tribunal concluded as follows:

   “The Tribunal finds that the time of this decision, Mrs Sowa is meeting the costs of accommodation.  Mrs Losowska says she and Mr Losowski are meeting costs of electricity, television and water.

   Mrs Losowska acknowledges their savings have run out.  The Tribunal finds that the income for the household is comprised of Mrs Sowa’s pension and Mr Raczynski’s wage, supplemented by money from Mr Sowa.  In these circumstances, the Tribunal does not consider Mr Raczynski is wholly or substantially reliant on Mrs Losowska for financial support to meet his basic needs for food, clothing and shelter.”[6]

   [6]  See Case Book at page 107 [49] – [50]

1. This finding led the Tribunal to conclude that Mr Raczynski could not be classed as being dependent on either his mother or his father, as they had no income.  Both Ms Losowska and Mr Sowa acknowledged that Mrs Sowa’s pension was integral to the financial support of the family unit, supplemented by monies supplied by Mr Sowa. 

2. Inferentially, the Tribunal also concluded that Mr Raczynski’s wage, as a cleaner, must also be contributed to the household’s budget.  There is no direct evidence to support this conclusion.  The only evidence of Mr Raczynski’s income came from Ms Losowska.  She did not have any relevant wage slips. 

3. In the absence of a transcript, I am unable to ascertain whether Mr Raczynski was asked specifically what he did with his wages or for how long he intended to work.  The only evidence provided in this context was that he wished to earn enough to pay for his studies.  A reading of the decision, indicates that this evidence, as summarised by the Tribunal, was provided by Ms Losowska:

   “Mrs Losowska said Mr Raczynski has now found a job and wants to study, but needs to earn money in order to study.  She said she and her husband are going to provide food and general care and that Mr Raczynski will only work enough to pay his school expenses.” [7]

   [7]  Ibid at page 106 [45]

4. Taken literally, this statement indicates that Ms Losowska’s evidence to the Tribunal was that she and her husband would continue to provide food and some other unspecified items of care for the applicant, regardless of his new found employment, as it was proposed that he would utilise his income only for his studies. 

5. The logical difficulty arising from this evidence is that Ms Losowska had also indicated to the Tribunal that she had no income and no savings and nor did her husband.  Accordingly, in these circumstances, it seems inevitable that the Tribunal would have to turn its mind to the issue of how otherwise Mr Raczynski could be financially supported.

6. After hearing evidence form Ms Losowska, concerning her husband’s work experience situation, the Tribunal concluded as follows:

   “Mrs Losowski (sic) provided a pamphlet on Redom Carpenters and Builders and said Mr Losowski was working there for experience, but is not about to start work as finding a job is not due to his lack of English (sic).  The Tribunal finds the Mr Losowski and Mrs Losowska currently have no income and no financial resources.” [8]

   [8]  Ibid

7. Mr Sowa was also questioned, by the Tribunal, in regards to how household bills at his mother’s home were paid.  He said rent and electricity was directly debited from her bank account.  During this evidence, Ms Losowska injected and said she personally paid for telephone and food.

8. Mr Sowa’s evidence, in respect of his sister’s financial situation was summarised as follows:

   “On being asked the source of his sister’s money, he said she had brought some money from Poland and now lives on his mother’s pension and that he is supporting them,  Mr Sowa said he buys clothes for Mr Raczynski and gives him pocket money.  He said Mr Raczynski is now working.  He said his brother-in-laws (sic) helps him at his house and he pays him $50 to $100 when he helps.  He said he has loaned his sister $10,000, and has not asked for any repayment of his loan, but one day she will give it back.”[9]

   [9]  Ibid [48]

9. In essence, the intellectual process followed by the Tribunal seems to be that, if Ms Losowska and Mr Losowski had no income and their financial resource had been expended, at the time of the hearing, Mr Raczynski could not be either wholly or substantially dependent upon them for his needs for food, clothing and shelter. 

10. By necessary implication, some other source or person must be supplying these needs.  By inference, this could only be Mrs Sowa’s pension, the gifts of Mr Sowa or Mr Raczynski’s own income or a combination of all these sources. 

11. Therefore, the Tribunal concluded that Mr Raczynski did not meet the secondary criterion, relating to the grant of the visa contained in clause 836.321, namely that he continued to be a member of the family unit of the primary visa holder.  The necessary emphasis provided by the clause being that dependency must be both current and contiguous with a substantial prior period.

The legal framework

1. Pursuant to section 476(1) of the Migration Act, the Federal Circuit Court has “the same original jurisdiction in relation to migration decisions as the High Court under section 75(v) of the Constitution”.

2. However, this jurisdiction is qualified by section 474 of the Act, which stipulates that a wide variety of decisions made under the Act, which are of an administrative nature are “privative clause decisions”.

3. The decision of the MRT, which the applicant seeks to review in this case, is such a “privative clause decision” as defined by section 474 of the Act.

4. Pursuant to the section, privative clause decisions are final and conclusive and as such are not open to being challenged, appeal against, reviewed, quashed or called in question in any court and as a consequence, they are not to be subject to any prerogative writ. 

5. However, the High Court has held that the provisions of section 474 do not prevent the review of decisions made by the Tribunal, which are affected by jurisdictional error of have been made in bad faith.[10]

   [10]  See Plaintiff 157/2002 (2003) 211 CLR 476

6. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the tribunal’s power.[11]

   [11]  See Craig v South Australia (1995) 184 CLR 163

7. It is also clear that a failure to afford natural justice may also amount to a jurisdiction error under the Act. The requirements of natural justice, pertaining to the case in question, are to be determined within the relevant statutory context, which in this case includes section 360(1).[12]

   [12]  See Kioa v West (1985) 159 CLR 550

8. An error which goes to the jurisdiction of an administrative body was described in these terms by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf:[13]

   “What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”

   [13]  See Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

9. This hearing is directed towards the legality of the MRT’s decision, not its merits.  It is the role of the Tribunal to make any necessary findings of fact, on which its decision is predicated, from the evidence which was properly available to it.  It is not the function of this court to substitute its own findings of fact in respect of that evidence.

10. Jurisdictional error is a complex concept.  It does not entail a merits review or a re-hearing of the facts of the case concerned.  In addition to the matters listed above, it can also encompass a breach of procedural fairness or a denial of natural justice, including bias or the appearance of bias.

11. In Collector of Customs v Pressure Tanker Pty LtdandPozzolanic Enterprises Pty Ltd,[14] the Full Court of the Federal Court, in respect of the Administrative Appeals Tribunal, characterised the nature of an appeal, restricted to a question of law, from a fact finding and decision making tribunal as follows:

    “… the nature of the task of this court is clear.  It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law.”

    [14]  Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprise Pty Ltd [1993] 43 FCR 280

12. The comments are apposite to applications, such as the present one, made in respect of privative clause decisions arising under the Migration Act. I have no authority to conduct my own fact finding exercise in respect of the matters agitated before the MRT.  My function is only to determine whether any aspect of those proceedings was vitiated by any species of jurisdictional error.

13. The emphasis in judicial review cases is on what is a fair hearing, according to law, not on what is a fair outcome in the perception of the reviewer concerned.  As the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs:

    “It is, therefore, not to the point to ask whether the Tribunal’s factual conclusions were right.  The relevant question is about the Tribunal’s processes, not its actual decision.”

14. In a case, such as the present one, I can readily understand why a lay observer might think it axiomatically unfair that different decisions have apparently been made, by the Tribunal, in respect of Ms Losowska, Mr Losowski on the one hand and Mr Raczynski on the other hand, when they are all members of the same family and indeed the same household.

The applicant’s submissions

1. Mr Raczynski has summarised what he categories as key facts in the case.   For the reasons outlined above, I must be careful not to fall in to the error of becoming a de facto fact-finder in the matter – that task falls solely within the remit of the MRT. 

2. However, it is necessary to outline the applicant’s view of the fact to explain why he contends the MRT fell into jurisdictional error.  In any event, the applicant’s view of facts does not appear to be overly controversial.

3. These facts can be summarised as follows:

   ·The applicant was a student in Poland in 2010.  As he had no income and no personal savings, he was totally financially dependent upon his parents;

   ·The illness of his grandmother compelled his mother to come to Australia to care for her;

   ·The applicant accompanied his parents to Australia.  Upon his arrival, he remained financially dependent upon them;

   ·On arrival in Australia, the applicant had no right to work in this country;

   ·His parents came to this country with $25,000.00 in savings.  When this sum ran out, his mother borrowed a further $10,000.00 from her brother. 

   ·These sums were used to support the family, which included him.  In this sense, he was dependent upon his mother to provide his essential financial needs;

   ·Mrs Sowa receives a pension of $350.00 per week, from which $89.00 is deducted for rent on her accommodation;

   ·Mrs Sowa is severely disabled and has significant medical expenses, which are paid for, on her behalf, from her pension.  As such, she is not in a position to save. 

   ·Accordingly, Mr Raczynski asserts he has not been supported, directly or indirectly by his grandmother;

   ·This is particularly so, given the rent on Mrs Sowa’s property has been re-calculated upwards to reflect its shared occupation by not only Mrs Sowa but also the applicant and his parents;

   ·The applicant commenced employment only shortly prior to the MRT hearing;

   ·In this context, the applicant asserts his employment was casual and therefore his mother continued to support him financially, as his “savings from this casual work were kept for my studies and not as means of my self-sufficiency”.[16]

   [16]  See Applicant’s written submissions at paragraph 19

4. This latter assertion, regarding the alleged garner of the applicant’s wages to supply future educational expenses, was put to the Tribunal by Ms Losowska and does not seem to have been specifically rejected.  It is unclear to me whether Mr Raczynski was either given or took the opportunity to address the Tribunal about this issue.  The decision record is silent in respect of this matter.

5. In this context, Mr Raczynski submits that:

   “It was bluntly wrong for the MRT to reach a conclusion that ‘the income for the household is comprised of Mrs Sowa’s pension and Mr Raczynski’s wages, supplemented by money from Mr Sowa” (my uncle) and on that basis consider me as a non-dependent on my mother.”[17]

   [17]  Ibid at paragraph 21

The Minister’s submissions

1. The Minister’s submissions are simple.  Reliance is placed on the well-known dicta of Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [18] that a jurisdictional error will only arise if it can be established that a relevant decision-maker has failed to take into account a consideration which he or she is bound to take into account in making that decision.

   [18]  Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39

2. In the current case, counsel for the Minister contends that, in Mr Raczynski’s matter, there were two considerations which the Tribunal was so bound to consider, namely whether:

   ·Was the applicant, at the time of the application, a member of the relevant family unit – clause 836.311;

   ·Did the applicant, at the time of the decision, continue to be a member of that family unit – clause 836.321.

3. In this context, in his written submissions, Mr d’Assumpcao contends as follows:

   “…the Applicant needed to overcome both cl 836.311 and 836.321 to be eligible for the visa.  The Tribunal, as it was entitled to, focussed on the latter requirement in cl 836.321, being a ‘time of decision criterion’.  The short point is that a failure to meet that requirement resulted in an inexorable conclusion on the part of the Tribunal that an essential criterion for the grant of the visa was not met.  Put another way, if the Tribunal was not satisfied that a relevant criterion was not met, it was bound to refuse to grant the visa: s 65(1)(b) of the Act.”

4. It is implicit, I think, in Mr d’Assumpcao’s submission that it was part of the Tribunal’s fact finding task to consider the issue of the applicant’s dependency or otherwise on his mother, as the primary visa holder.  The Tribunal considered this issue, as it was bound to do, in the discharge of its jurisdictional function.

5. On the basis of the evidence available to it, the Tribunal concluded that Mr Raczynski could not be dependent on his mother, at the time of the hearing, because she had no income or financial resources, which was in marked contrast to the applicant himself. 

6. In these circumstances, Mr d’Assumpcao submits that such a finding was consistent with the evidence led before the Tribunal and, as such, the applicant is unable to point to any error in the Tribunal’s stream of reasoning, notwithstanding the fact that he disagrees with its conclusion.  As a consequence therefore, the Tribunal properly acquitted the jurisdictional task allotted to it and the application for review must fail.

7. Essentially, it is submitted that the Tribunal had the authority to make the decision in question because it applied the appropriate considerations, prior to making it, particularly in regards to the applicant’s situation at the time of decision. 

8. As such, this court is not authorised to conduct its own fact finding exercise, particularly in regards to what the applicant did or did not do with his earnings, from the employment secured by him in the three weeks or so immediately prior to the hearing.

9. The implication of this submission being that it is implicit that the Tribunal must have rejected, as it was entitled to do, the evidence of Ms Losowska that Mr Raczynski’s wage was only going to subsidise his studies and she and Mr Losowski would continue to provide his (the applicant’s) food and general care.

Conclusions

1. The Full Court of the Federal Court considered the issue of dependency, arising from the construction of regulation 1.05A(1) in Huynh v Minister for Immigration & Multicultural & Indigenous Affairs.[19] Lander and Rares JJ said as follows:

   “The Minister argued that if the construction of reg 1.05A(1) did not involve a requirement that the ‘dependent’ required, rather than chose, to be ‘reliant’, it would facilitate contrived claims of dependence.  However, reg 1.05A(1)(a)(i) requires the child to have been ‘reliant’ on the parent ‘for a substantial period’ before the time at which the question of dependence is determined by the decision-maker.  Such a criterion is likely to have been set in order to ensure that claims of dependence were genuine, rather than contrived.  It also focuses attention on the fact that the child has relied on the parent more than on any other source for the relevant financial support as a matter of objective fact.  These factors do not provide any textual support for the Minister’s submission and we reject it.

   By leaving the question of dependence or reliance to be a question of fact untrammeled by the implication of the notion of necessity, the Regulations will be able to be interpreted across the broad range of circumstances to which they relate.  In our opinion on their proper construction it is not the case that the child must have a lack of choice before he or she can be said to be wholly or substantially dependent or reliant on the parent for the relevant financial support. 

   For various reasons parents choose to send their children to educational institutions, even when the child does not want to go.  A child may be able bodied and able to work, notwithstanding that he or she wishes to pursue an educational opportunity or opportunities.  The question which the Regulations require to be addressed is in our opinion simply whether the child is, as a matter of fact, relying for support, rather than, having to rely for support.”  (citation removed)

   [19]  Huynh v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 122

2. Accordingly, the issue to be determined, by the Tribunal, was whether, as a matter of fact, Mr Raczynski was relying on Ms Losowska for support, in the sense envisaged by regulation 1.05A(1), as construed by  the Full Court it in Huynh. 

3. In these terms the Tribunal was not entitled to consider the matter only on the basis of whether it considered Mr Raczynski lacked a degree of choice, as to whether or not he would be dependent on Ms Losowska and determine the issue of his dependency by reference to the absence or otherwise of such a choice.  

4. Rather the question the Tribunal was required to ask itself was or was not Mr Raczynski financially dependent, on his mother, at the relevant times.  The relevant times being the period prior to and at the date of application and at the time of determination.

5. Accordingly, an argument theoretically open to the applicant is that the Tribunal has not approached the issue of Mr Raczynski’s financial dependency in purely factual terms.  Rather, it has erroneously approached the matter by considering whether or not he had a choice to be financially dependent upon his mother and has thereafter wrongly concluded that he does have such a choice, at least in theoretical terms, because he has had access recently to an income.   Essentially the error being that the Tribunal should have considered how Mr Raczynski was utilising his income, not merely that he had one.

6. As the Full Court recognised in Huynh an individual child may, in practical terms, be dependent upon another person, even if in good health and having an obvious income earning capacity.  The example being given, in the case, was of a child who was supported to attend at university or other educational institution.  Such a child remained dependent, in practical terms, although theoretically able to work and support him or herself. 

7. To extend the analogy, many university students may work part time or in university vacations and still remain financially dependent upon a parent.  Such a student may have a theoretical choice to use his or her earnings to achieve financial independence but choose not to, with the acquiescence of the supporting parent concerned, because he or she wishes to uses the funds raised in other ways.

1. The thrust of Ms Losowska’s evidence was that, in practical terms, the applicant remained financially reliant upon her because he was using his wage for his future educational expenses and she continued to provide his food and some other unspecified general expenses, albeit from a source of income, which she did not readily articulate and after she herself had given evidence that she currently did not have an income and had otherwise exhausted her financial resources.

2. Accordingly, Ms Losowska’s evidence was that Mr Raczynski had been and remained dependent upon her to supply his basic needs certainly for food and some other necessities of life.  Placita (ii) of regulation 1.05A(1)(a) also indicates a requirement that the level of financial support so provided is greater than that forthcoming from any other sources.

3. The evidence available to the Tribunal indicated that Mr Raczynski received financial support, for basic necessities, from sources other than his mother.  These sources included his grandmother, who at least, in part, provided his shelter and his uncle, who had purchased clothing for him.  No attempt was made to quantify these expenses and determine whose were the greater, other than the Tribunal found that Ms Losowska had no income and therefore inferentially could not contribute.

4. Having conducted this analysis of the reasoning of the Tribunal, in respect of this discrete but important issue from the applicant’s point of view, I am reminded of the well-known statement from the High Court in in Minister for Immigration & Ethnic Affairs v Wu Shan Liang[20] namely:

   “… the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which reasons are expressed.  In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the decisions-maker, upon proper principles into a reconsideration of the merits of the decision.”

   [20]  Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272

5. In my view, I must be careful not to be unduly zealous in my evaluation of the reasons provided by the Tribunal, in respect of the issue of Mr Raczynski’s dependency on his mother.  Of itself, it is not a complicated factual issue.

6. The Tribunal made reference to the relevant considerations, relating to dependency discussed in Huynh, summarising the issue as “whether as a matter of fact, the first person is relying on such other person for support.”[21]  In my view, the Tribunal did analysis the issue of Mr Raczynski’s dependency, on his mother, from such a factual perspective.

   [21]  See Case Book at page 106 [40]

7. Mr Raczynski’s circumstances are unusual.  It cannot be said that his current financial circumstances are the product of any artificial contrivance on his part.  On any view, since his arrival in this country, he and his family have lived in circumstances of the most extreme frugality.  It is to Mr Raczynski’s credit that he was recently able to obtain employment and of further credit to him that he wishes to study in Australia.

8. The relevant consideration required the Tribunal to consider the factual situation confronting the applicant and his mother.  The evidence indicated that Ms Losowska did not have any income or financial resources.  The applicant is not in a position to establish that this finding is an obviously factually flawed conclusion.  The important relationship of dependency is that existing between the applicant concerned and the primary visa holder. 

9. The former must establish, to the satisfaction of the Tribunal concerned, that he is dependent upon the latter, at two distinct stages, according to two distinct regulatory criteria – which arise pursuant to clause 836.311 and clause 836.321 respectively.  Firstly, at the time of application by the latter for the applicable visa (836.311) and secondly, he continues to be so, at the time of the grant of the visa.

10. Regulation 1.05A recognises the necessity for the concept of dependency to be evaluated at different times.  It prefaces the definition of dependent with the expression at the time when it necessary to establish [the issue of dependency].  It goes on to utilise the present tense is and the past perfect tense has been for a substantial period before that time in respect of the issue of dependency, which is also quantified and classified – the dependency be wholly or substantial and it must be in respect of basic needs for food, clothing and shelter.

11. The evidence available to the MRT supported the contention that Mr Raczynski was dependent on his mother, when he first arrived in Australia and for a substantial period thereafter.  He had no source of income and no savings.  Mr Losowski and Ms Losowska had savings, which they utilised to support the family.

12. However that was not the end of the Tribunal’s fact finding responsibility.  It had to consider whether Mr Raczynski continued to be a member of Ms Losowska’s family unit at the time when she was granted the primary visa, in the sense of the date when it was found she had satisfied the criteria relating to the grant of the carer’s visa to her.

13. In the applicable regulations, the concept of membership of a family unit is defined in terms of financial dependency.  The MRT was required to consider this concept at the time of the grant of the carer’s visa to Ms Losowska.  In my view, it considered this issue.

14. In terms of the applicable definition, the nexus of the dependency connection had to be either whole or substantial and relate to basic needs.  In its findings, it is apparent that the MRT approached the issue inferentially.  It found that Ms Losowska had no source of income herself and nor did her husband and that their savings had been exhausted.  Given this was the effect of their evidence, this finding cannot be criticised.

15. The Tribunal further found that Mr Losowski and Ms Losowska were meeting the costs of electricity, television and water in the household they shared with Mr Raczynski.  Again this is a finding consistent with their evidence.  Clearly water is a basic need. 

16. The Tribunal made no specific finding in respect of food consumed in the household, the most basic human need of all and how Mr Raczynski was provisioned in this regard.   Ms Losowska is recorded to have said that she and her husband would continue to provide his food and general care for the applicant.[22]  In addition, in an interjection, reported in the decision, Ms Losowska apparently said to the Tribunal she paid for food. [23] 

    [22]  See Case Book at page 106 [45]

    [23]  Ibid at [47]

17. Mr Losowski is reported as having indicated that Mr Sowa at times paid for food.  The Tribunal did not specifically comment on this evidence, apart from reporting it.  No other comment is made on the source of funds for the necessary purchases of food.

18. The Tribunal further found that Mrs Sowa met the cost of accommodation for the family, including herself.  Again, although this finding is not consistent with later submissions made by the applicant, it is a finding consistent with its summary of the evidence provided by Ms Losowska that “rent is debited directly from Mrs Sowa’s pension.”[24]

    [24]  Ibid at [43]

19. It also found that Mr Sowa had assisted the applicant by purchasing clothing for him.  It is also appears to be uncontroversial that Mr Raczynski has recently obtained employment for himself, although how he allocates his income from this employment is controversial.  In this context, the Tribunal noted Ms Losowska indicated that Mr Raczynski intended to utilise his income for his future studies.

20. In these circumstances, the Tribunal found that the only sources of income coming into the household concerned, at the relevant time of the decision, were Mrs Sowa’s pension; money advanced by Mr Sowa; and Mr Raczynski’s income.  Given the evidence available, it is my view that this finding was clearly open to the Tribunal.  Such a finding was part of its fact finding responsibility.  As both Mr Losowski and Ms Losowska said they had no income, it cannot be characterised as an irrational or capricious finding.  In my view, it was a finding, which was inferentially open to the Tribunal.  In these circumstances, in my view, what was said by Mason CJ in Australian Broadcasting Tribunal v Bond is applicable to this finding:

    So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.[25]

    [25]  See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [356]

21. The operative finding, so far as regulation 1.05A is concerned, is as follows:

    “…the Tribunal does not consider Mr Raczynski is wholly or substantially reliant on Mrs Losowska or Mr Losowski for financial support to meet his basic needs for food, clothing and shelter.”[26]

    [26] Ibid at page 107 [50]

22. In my view, this statement followed from the jurisdictional question the Tribunal was required to answer in its determination of whether the applicant satisfied the criterion stipulated by clause 836.321.  By its use of the present tense, the Tribunal considered this question at the necessary time.  It follows logically from the Tribunal’s conclusions regarding the sources of income coming into the household as a whole.

23. The Tribunal did not directly consider upon whom, if anyone, Mr Raczynski was dependent.  In my view, it was not required to.  The only relevant question of dependency was that between the applicant and Ms Losowska, which the Tribunal considered.   It concluded Mr Raczynski could not be substantially reliant on his mother.

24. Mr Raczynski categories it as being bluntly wrong for the Tribunal to conclude that the income for the household consisted of Mrs Sowa’s pension and Mr Raczynski’s wages, supplemented by money from Mr Sowa.  However, the decision identifies no other sources of income.  In any event, even if this finding is wrong, in my view, it does not undermine the core finding of fact that Mr Raczynski was not substantially reliant on his mother.

25. I appreciate that Mr Raczynski vehemently disagrees with this finding.  The substance of his criticism appears to stem from the Tribunal’s implied disavowal of his mother’s evidence that she would continue to provide his food and other items of general care on the basis he would allocate his income to his future study costs. Therefore inferentially, he would not be providing his own basic needs, his mother would be.

26. It has been said that to describe reason as irrational or unreasonable may merely be an emphatic way of disagreeing with it.[27]  In addition, in order to establish jurisdiction error an applicant needs to establish something more than some “faulty inference of fact”.[28]   

    [27]  See Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALE59 at 61 per Gleeson CJ

    [28]  Ibid at 62

27. It might be said that the Tribunal was precipitate in concluding that the applicant’s income was necessarily part of the overall income of the household in question, given Ms Losowska’s evidence.  However, in my view, this conclusion does not derogate from the Tribunal’s substantive determination that Mr Raczynski was not substantially dependent on his mother, in circumstances where her evidence was that she had no income or financial resources.  The Tribunal thereafter had no obligation to consider and make findings upon whom, if any one, Mr Raczynski was financially dependent.

28. In my view, the Tribunal did undertake a proper, genuine and realistic evaluation of the applicant’s level of dependency upon Ms Losowska.  This was it is jurisdictional function.  It carried out an evaluation of the evidence available to it and on the basis of that evidence concluded that Mr Raczynski was not substantially dependent upon her.  In my view, this was a finding of fact which was logically and rationally available to it.

29. In those circumstances, it cannot be said, in my view, that it amounted to a jurisdictional error for the MRT to conclude that, at the time of decision, the applicant was not dependent upon his mother, in the sense envisaged by the regulation in question.

30. Mr Raczynski has made an inchoate complaint to the effect that the proceedings before the MRT were vitiated by a denial of procedural fairness in the sense that he was not given an opportunity to present evidence or make submissions.  This complaint is not the subject of a specific ground of appeal.

31. In the absence of a transcript of the proceedings before the MRT I am not in a position to ascertain the truth or otherwise of this submission, which is not particularised.  In these circumstances, I am unable to take action in regards to it.

32. For all these reasons, I have come to the conclusion that the application for review should be dismissed and the applicant should pay the first respondent’s costs, as assessed pursuant to the schedule attached to the Federal Circuit Court Rules, which allows an amount of $6,646.00.

33. However, that is not an end to the matter.   Earlier, in these reasons for judgment, I commented that I could understand why a dispassionate observer might think it fundamentally unfair that different decisions have been made concerning Ms Losowska, Mr Losowski on the one hand and Mr Raczynski on the other hand, when they are all members of the same family and indeed the same household and have lived in shared and modest financial circumstances for a significant period of time.

34. In this context, as I have already pointed out, I am not in a position to substitute an outcome in the case, for that of the MRT, which I personally consider to be fair or appropriate.  Rather, my function, which is judicially based, is to determine whether the applicable legislative considerations have been properly applied and considered, which I consider they have been.[29]

    [29]  See Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 37 per Brennan J

35. I remind the applicant, that the Minister, in the exercise of administrative power, has the authority, pursuant to section 351 of the Act, to substitute a decision which is more favourable to him, given the reality of the applicant’s family ties in this country. I do not have such authority.

36. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:                  24 October 2014

[15]  SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 160