Reddy v Minister for Immigration
[2007] FMCA 764
•10 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| REDDY v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 764 |
| MIGRATION – Migration Review Tribunal – spouse visa – where applicant did not attend the Tribunal hearing – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.424 |
| Purcell & Rix (No.1) [2002] FMCAfam 65 SZHCJ v Minister of Immigration & Multicultural Affairs [2007] FCA 205 SZDXC v Minister of Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 SZBKB v Minister of Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 SBBF v Minister of Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 SBBS v Minister of Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 SZIRO v Minister of Immigration & Citizenship [2007] FCA 260 SZBVM v Minister of Immigration& Citizenship [2007] FCA 332 |
| Applicant: | EDWARD NERANDRA REDDY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG192 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 May 2007 |
| Date of last submission: | 10 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 10 May 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Johnson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $5,000.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 192 of 2007
| EDWARD NERANDRA REDDY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Migration Review Tribunal. The decision was signed on 28th November 2006 and handed down on 22nd December 2006. The Tribunal affirmed the decision of a Delegate of the Minister not to grant the Applicant an Extended Eligibility (Temporary) (Class TK) visa or a General (Residence) (Class AS) visa.
By means of an application filed on 19th January 2007 the Applicant seeks an order in the nature of certiorari setting aside the decision of the Migration Review Tribunal and an order in the nature of mandamus remitting the Applicant to the Tribunal for the purpose of reconsideration according to law.
The second order sought by the Applicant is one that the Court cannot grant. The order sought is that the Applicant be granted a Bridging visa until a decision is made by the Federal Magistrates Court. The Court has no power to grant visas; visas are granted by the Minister for Immigration and Citizenship or the Minister's Delegate. In any event the decision in this matter is being made today.
As was set out in the Tribunal decision the Applicant applied for an Extended Eligibility (Temporary) (Class TK) visa on 17th May 1999. The visa was refused on 23rd July 2002. The Applicant sought a review of that decision from the Migration Review Tribunal and on 14th April 2004 the Tribunal affirmed the decision of the Delegate not to grant the visa which was sought.
The Applicant then sought a judicial review of that decision from the Federal Magistrates Court. On 22nd March 2006 the Court made orders by consent quashing the decision of the Tribunal and remitting the case to the Tribunal for reconsideration. The Applicant was advised of that by letter from the Tribunal on 22nd May 2006. The Tribunal then wrote to the Applicant on 7th June 2006 inviting him to attend a hearing which was scheduled for 9:00am on 1st August 2006.
The Tribunal was not able to conduct a hearing on that day as it realised beforehand and wrote to the Applicant's authorised recipient, one Toufic Laba Sarkis on 10th July 2006. The letter invited the Applicant to attend a face to face hearing at 2:00pm on 2nd August 2006. The explanation was that due to circumstances beyond the Tribunal's control the Presiding Member was unable to conduct the hearing on 1st August.
The Applicant's authorised recipient wrote to the Tribunal on 12th July 2006. In that letter the authorised recipient, Mr Sarkis, attached a copy of his submission to the then Minister dated 18th January 2005. That was a submission seeking a discretionary intervention on the part of the Minister. The letter went on to say the following and I will quote it directly:
The important issue now is that the couple are still living together and will continue to live together and taking into consideration the age factor and the problems with the Department they are both in a disturbed state and have asked me to ask you to consider the information on file and put any adverse information you may have in writing to enable them to reply and both indicated that that this stage they are not comfortable to come again to the hearing on 1 August 2006.[1]
[1] See Court Book, p.339.
It said 1st August 2006 and it should be the 2nd. The Tribunal wrote to the Applicant's authorised recipient on 25th July 2006 replying to that letter. The letter relevantly said the following:
The Presiding Member is unable to make a favourable decision on the evidence available and is requesting that you and your wife attend the hearing scheduled for 2 August 2006. Please respond to this letter by close of business on 26 July 2006 indicating your attendance at the hearing.
On 1st August the Tribunal noted that a Tribunal officer received a telephone call from the Applicant's daughter-in-law who advised that her father-in-law was unwell and could not attend the hearing scheduled for the following day. The Tribunal file note shows that the person concerned advised the daughter-in-law that the Tribunal required a medical certificate. A medical certificate was indeed faxed to the Tribunal indicating that a doctor at Marickville Metro Medical Centre had examined the Applicant on 1st August and formed the opinion that he was suffering from "a medical condition" and would be unfit for work up to and including 2nd August 2006.
The Tribunal then wrote to the Applicant care of his authorised recipient on 3rd August inviting the Applicant to attend before a re-scheduled hearing at 9:00am on 5th September 2006. Again a file note was made a copy of which appears at page 350 of the Court Book from a Tribunal officer and the note was made on the afternoon of 30th August. The file note said, relevantly:
I called Mr Sarkis and was advised by him that the applicant did not wish to attend the hearing as he is old. I advised him that the member is unable to make a favourable decision and has requested their presence at a hearing to discuss the issues relating to the case. He then said that a lot of Members ask too many silly questions that have no bearing on the case, such as who like tea or coffee.
The balance of the note is irrelevant to these proceedings. The Applicant's authorised recipient wrote to the Tribunal officer that same day and the letter was faxed the following day to the Tribunal. The authorised recipient said:
I should be grateful if the Presiding Member is able to invite comments or any particulars of any information needed by the Tribunal in order to assess the application. The couple are not comfortable to attend the hearing and both appreciate any request in writing for any further information.
On 31st August the Applicant's daughter-in-law forwarded a letter by fax on behalf of the Applicant in which she said inter alia:
They are both not happy or comfortable to attend the hearing and both would appreciate if you can consider their situation and forward them any request in writing.
Consequently no hearing was held on 5th September. The Tribunal wrote to the Applicant's authorised recipient on 10th September with an invitation to provide information under the provisions of sub-section 359(2) of the Migration Act. A copy of that letter can be found at pages 355 and 356 of the Court Book. Some material was forwarded to the Tribunal including photographs, statutory declarations from the Applicant and others. The material included photocopies of certificates of Australia citizenship of adult members of the Applicant's family.
The Tribunal prepared its decision and handed that decision down on 22nd December 2006. A copy of the decision can be found at pages 408 to 417 of the Court Book. The Tribunal sets out a summary of the claims and evidence including references to the correspondence to which I have previously referred on page 411 through to 413.
The Tribunal’s findings and reasons
The Tribunal's findings and reasons can be found at pages 413 through to 418. The Tribunal was not satisfied on the basis of the material before it that the Applicant was that the time of decision the spouse of the sponsor within the meaning of r.1.15A of the Regulations.
The Tribunal then set out a brief history and referred to the Tribunal's consideration as to whether the visa applicant and the sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others. The findings and reasons are then divided into various headings on such matters as the financial aspects, the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons' commitment to each other.
The Tribunal went on to say at page 416 that it was not satisfied that at the time of decision the Applicant and the sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship was genuine and continuing and that therefore they did not satisfy the requirements of r.1.15A(1A)(b)(i) and r.1.15A(1A)(b)(ii) for a married relationship.
The Tribunal found that the Applicant and the sponsor did not live together at the time of the decision and accordingly they did not satisfy the requirements of r.1.15A(1A)(b)(iii) for a married relationship.
The Tribunal concluded that it was not satisfied that the Applicant and sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others and that their relationship was genuine and continuing and that the Applicant and the sponsor were living together or not living separately and apart on a permanent basis. The Tribunal was not satisfied that the Applicant continue to be the sponsor's spouse within the meaning of the regulation and therefore the Applicant could not satisfy clause 820.221(1) and could not be granted a Subclass 820 visa.
The Tribunal found that it followed that the Applicant did not meet the criteria for a (Class AS) visa which requires the visa applicant to be the holder of a Subclass 820 visa and accordingly the Tribunal affirmed the decision not to grant the Applicant an Extended Eligibility (Temporary) (Class TK) Visa or a General (Residence) (Class AS) visa.
The application for judicial review
The Applicant has sought a review of that decision by means of the application filed on 19th January 2007. There are seven ground set out.
1. That the Tribunal failed to have regard to all the circumstances of the relationship, including the age factor, the length of the relationship and the continuity of the relationship since 1999 which was ignored as strong evidence in a genuine and continual relationship.
2. That the Tribunal, while accepting that the couple were married on 20 March 1999, and invited them to a hearing to provide further evidence, the Tribunal erred in law by ignoring the mental disturbances of the couple who were previously interviewed at length by the investigation section and the Tribunal failed to request further material in addition to what was given in reply to a letter dated 15 September 2006.
3. That the Tribunal failed to comply with the obligation to invite the applicant and his Australia sponsor who suffered stress from the migration process associated with the spouse visa to comment on further information in addition to the uncontested evidence supplied to the Tribunal. The failure on the part of the MRT to consider the medical condition and not to ask for further comment on missing information, if any, constitutes jurisdictional error.
4. That the Australia sponsor is on a pension, the visa applicant is unemployed and the Tribunal erred in law by putting weight on financial resources which in the case of the married couple, cannot be expected to have joint assets or any joint liability which can be established by young working married couples.
5. That the Tribunal had evidence before it, listed on page 5 of the decision which establishes the financial nature of the relationship, the nature of the household, the social aspects of the relationship, the nature of the commitment. The Tribunal erred in law by stating that the visa applicant and his sponsor lacked commitment as husband and wife to the exclusion of all others. This was described as extremely unreasonable and a denial of natural justice.
6. That the Migration Review Tribunal's expectation and decision is irrelevant for an application for an Extended Eligibility (Temporary)(Class TK) visa.
7. That the Migration Review Tribunal ignored that the visa applicant is the last remaining person in Australia, he is entitled to apply to remain in Australia, supported by all his Australia children and the inference that his spousal relationship is not genuine and continuing is legally wrong and the Tribunal overlooked the important facts and relevant material which would lead her to accept the marital relationship. The Tribunal did not explain and justify the significance of the information it considered.
The Applicant is not legally represented and it is quite clear that he has not been legally represented at any time during the proceedings. Certainly the application does not indicate that it was prepared by anyone with legal qualifications, quite the reverse. At the hearing today the Applicant was not legally represented but his daughter-in-law, Susan Reddy, appeared and tendered a submission which apparently she had prepared. She of course is not a lawyer and is not the holder of a practising certificate and as such has not right of appearance before the Court.
The Federal Magistrates Court is a Court that exercises the judicial power of the Commonwealth of Australia and as such people who do not hold a practising certificate of a legal practitioner have no entitlement to appear. My colleague Federal Magistrate Driver dealt with this issue in some detail in the decision of Purcell & Rix (No.1) [2002] FMCAfam 65. In any event I was satisfied that the submission had been prepared with the knowledge and approval of the Applicant and I allowed the filing of that submission in Court and clearly the Applicant relies on it.
The Respondent lawyers have prepared an outline of submissions filed on 7th May, drafted by Mr Johnson of counsel and I am satisfied that the Applicant received a copy of that submission and was aware of its contents. The Applicant's submission begins with the drafter's hope that her unprofessional appearance would lead her to assist the family personally as unrepresented applicants. I should make it clear that a Court cannot provide assistance to one party at the expense of the other. It is the function of the Court to decide the case impartially, although it is quite clear that a party who is legally represented is usually in a better position to put his or her case than a party who is not legally represented.
It has been said that being unrepresented before the Court is not a privilege but in fact a misfortune. Nevertheless it does not mean that the Court should not consider the material in the submission and it does mean that errors or misunderstanding should be dealt with on the basis that the document was prepared by someone who is not legally qualified. The submission points out that the Applicant is not in a financial position to be legally represented and goes on to refer to the fact that the Applicant at the time of application would have been entitled to remain permanently in Australia as all his children were permanent residents and citizens of this country.
However, he did not apply under this category but applied under spouse grounds because his relationship with his wife and sponsor was genuine and the evidence submitted with the original application was listed on page 42 of the Court Book. It is of course not a function of the Court to speculate as to why a party should apply for a visa under one heading if the party has an entitlement for a visa under another. One would have thought that if the Applicant had had the benefit of the services of a migration agent then a competent migration agent would have advised the Applicant as to the appropriate visa that the Applicant should apply for.
The submission sets out a chronology of events. It refers to the decision of the Migration Review Tribunal originally constituted and refers to unreasonable comments made by the Tribunal Member. I should point out that the original Tribunal decision was set aside by the Court. It is of no assistance in judicial review of the second Tribunal decision. The submission claims that the Tribunal failed to understand the relationship between the Applicant and his wife was genuine; it makes complaints about conduct of officers of the Minister's Department and refers to the Applicant and his sponsor as having appeared at the first Tribunal hearing, which is then the subject of some criticism, and sets out:
And as a result of such they were reluctant to attend the latest hearing and frankly speaking, both were sick psychologically and physically and the Tribunal was asked by our good friend, the authorised recipient, Mr Laba Sarkis to put any further request in writing and to the best of my knowledge we attended to the request of the information.
The submission refers to correspondence; first the criteria for a Subclass 820 Visa and refers to the evidence which is submitted and complains:
The decision of the Migration Review Tribunal is extremely unreasonable as it denies the evidence and support contained which confirmed the relationship.
It also complains:
The MRT in its second decision also was biased because it based the decision on the raid of officers to the house which brought a lot of confusion to the sponsor as well as to her husband who both feel that the Tribunal did not consider the dignity of the relationship and the dignity of each of them as well as the circumstances such as illness, and old age which prevents them from being more accurate and from meeting the expectation of the Department.
I would comment in passing that the documentation indicates at page 173 of the Court Book that the Applicant was born on 1st December 1944. At the time the Tribunal decision was handed down he had only recently reached his 62 birthday. The submission complain that the decision is unreasonable and says that:
The couple are still living together and will continue to live together.
I have read the submissions prepared by counsel for the Respondent which replies in detail to the seven grounds. It does not reply to the written submissions on behalf of the Applicant, that document was not available until the hearing today. Counsel for the Minister, properly in my view, did not seek to address the Court on the basis that he was happy for the matter to be decided upon submissions. There are a few things that need to be mentioned. The lawyers for the Minister contend that the grounds of review in the application go to what is known as merits review.
The difficulty that applicants for judicial review are often unable to overcome is that decisions on the facts are made by the administrative decision maker that the process of a decision for a visa on an application and review of the decisions involves two stages and two stages only where factual decisions are made. The first stage is in the decision of the Delegate. If the matter goes to a Tribunal whether it is the Refugee Review Tribunal or in this case the Migration Review Tribunal that then is what is known as a merits review.
In other words the Tribunal which is independent from the Department of Immigration and Citizenship again considers the factual evidence and indeed invites the Applicant to provide more factual evidence. Now this can be done in three ways:
a)by the Applicant attending and giving oral evidence and answering questions from the Tribunal;
b)by producing documentary evidence;
c)by asking the Tribunal to hear evidence from witnesses who may be able to give relevant evidence about the Applicant's case.
However, if an applicant is not successful and the matter goes to judicial review the Court does not, and indeed does not have the power, to conduct a further hearing on the factual merits of the case. That particular issue was discussed by Gyles J in the Federal Court in SZHCJ v Minister of Immigration & Multicultural Affairs [2007] FCA 205 at [3] where his Honour said:
Insofar as the Federal Magistrates Court is concerned, it has no role to second guess the Tribunal on matters of fact or judgment. The Federal Magistrates Court can only correct the Tribunal if jurisdictional error is revealed.
Jurisdictional error is an error that goes to the legalities of the case; whether the decision maker followed the law in making the decision and applied the law correctly to the case before it. That could mean a decision as to whether or not the Tribunal followed the procedures set out by the Act or regulations or applied the various sections of the Act in dealing with the factual matters, but so long as the there is evidence upon which a Tribunal can make a factual finding there is no interference in the factual decision by the Court it does not matter if the particular Court, on looking at the factual evidence were to form the view that if the Court were deciding the matter on the facts then the Court may well make a different decision.
So long as the decision is capable of being made on the evidence before the Tribunal then the Court cannot interfere in factual matters. In other words, the Court cannot conduct merits review. The Applicant, as I said, was not represented by a migration agent at the time of the Tribunal hearing and is not legally represented in these proceedings. This is a case where the Applicant chose not to attend a Tribunal hearing. There is a considerable amount of authority and appellant decisions as to the wisdom in a decision not to attend a hearing.
In SZDXC v Minister of Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306, which is a decision on appeal relating to the Refugee Review Tribunal but the facts are the same, Hely J said at [16]:
The RRT made it pellucidly clear in its letter of 12 March 2004 that it was unable to make a decision in the appellant’s favour on the basis of the information before it, and as the Full Court observed in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287, when the appellant failed to accept the opportunity to elaborate on that information at the scheduled hearing, the inevitable consequence was the rejection of his application.
Similar comments were made by Bennett J in SZBKB v Minister of Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811.
It is clear that the Applicant's authorised recipient presumably acting on the instructions of the Applicant told the Tribunal that the Applicant did not wish to appear. The Tribunal itself wrote to the Applicant reminding the Applicant that the Tribunal was not able to make a decision in the Applicant's favour on the basis of the material before it. If the Tribunal has material before it on which it considers that it can make a decision in the Applicant's favour then the Tribunal's duty under the Migration Act is to grant the application without the need of a hearing.
The Tribunal will only invite the Applicant to attend a hearing if the Tribunal does not feel that the information before it is sufficient to enable it to make a decision in favour of the Applicant. It may well be that an applicant attends the hearing and gives evidence which clears up points that are unclear, or provides further information which can then serve to persuade the Tribunal that the applicant does meet the criteria for the relevant visa.
The Applicant's submission refers to the failure by the Tribunal to take into account circumstances of illness and of age. Whether or not one agrees that a person aged 62 is old or not there is very little evidence that the Applicant was at any time sick, other than a brief doctor's certificate indicating that he was suffering from a medical condition and would be unable to attend the hearing on 2nd August. The Tribunal adjourned the matter; it postponed the hearing for a month, for over a month.
If it is the case that the Applicant is sick psychologically and physically as is submitted there should have been evidence presented to the Tribunal in the form of medical evidence. The way one proves sickness to a Court or a Tribunal is to provide evidence from a medical practitioner. The medical certificate provided on the only occasion one appears to have been provided, was sketch to say the least and not at all illuminating. The submission also refers to bias on the part of the Tribunal.
I am mindful of the fact that the Applicant is not legally represented and the submission was not prepared by a lawyer. It is a very serious matter to make an allegation of bias against a Tribunal Member. The Full Court of the Federal Court has looked at such matters in SBBF v Minister of Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 and SBBS v Minister of Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361. In SBBS, Tamberlin, Mansfield, Jacobson JJ, in each case made it clear at [43] – [44] that:
An allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. The allegation is not to be lightly made and must be clearly alleged and proved.
The circumstances in which the Court will find an administrative decision maker has not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review.
The fact is that there is no evidence of bias. I will turn now to the grounds in the application of which there are seven. The first ground alleges that the Tribunal failed to have regard to all the circumstances of the relationship, including the age factor, the length of relationship and the continuity of the relationship. I cannot see that that ground has been made out, that certainly on a reading of the decision the Tribunal did consider the material that was before it.
The fact that it came to a conclusion that was not favourable to the Applicant's application is certainly unfortunate but is not evidence of a failure to consider material. The ground has been criticised correctly, in my view, by Mr Johnson of counsel in his submission as, amongst other things, doing no more than seeking merits review. The weight to be given to material that is presented is purely a matter for the Tribunal.
The second ground refers to the Tribunal having erred in law by ignoring the mental disturbances of the couple who were previously interviewed at length. There is, as I said, no medical evidence of any mental disturbance which if there was some mental or psychological mental disorder or psychological condition one would have expected to have been provided to the Tribunal. The ground also refers to a failure to request further material in addition to what was given in reply to a letter dated 15th September 2006.
I think it is well established in a number of decisions, including SZIRO v Minister of Immigration & Citizenship [2007] FCA 260 at [11] and SZBVM v Minister of Immigration& Citizenship [2007] FCA 332 at [16], but whilst the Tribunal has power to seek further evidence it does not have an obligation to do so. It is up to the Applicant to provide the Tribunal with evidence sufficient to satisfy the Tribunal that the Applicant meets the necessary criteria for the granting of a visa. It is not up to the Tribunal to make an applicant's case for them.
The third ground complains about a failure by the Tribunal to comply with an obligation to invite the Applicant and his sponsor to comment on further information. It is clear that there is no obligation of the type mentioned. The Tribunal considers the material before it. If the Tribunal is not satisfied that the material put before it by a party does not allow it to reach the requisite satisfaction, or level of satisfaction that the Applicant meets the criteria for a visa then the Tribunal has no alternative but to refuse the visa. (See s.65 of the Migration Act).
Ground four alleges an inappropriate weight being placed by the Tribunal on financial resources. This is described by Mr Johnson as cavilling at the merits of the decision. It is a challenge to the Tribunal's factual finding. Provided there is evidence upon which the Tribunal can make a finding then no jurisdictional error has been made out. The fifth ground refers to evidence before the Tribunal and stated that:
The Tribunal erred in law by stating that the visa applicant and his sponsor lacked commitment as husband and wife to the exclusion of all others.
This is not an error of law. Provided that there is material before the Tribunal on which it is possible to make such a finding then no error in law appears. The Applicant describes this as ‘extremely unreasonable and a denial of natural justice’. It is not unreasonable for a Tribunal to give different weight or less weight to the Applicant's case, or parts of an applicant's case than the Applicant would, provided the Tribunal considers the material. There is no evidence of denial of natural justice.
Again, natural justice appears to be a concept that is often misunderstood. The Applicant was invited to attend the hearing and give evidence. The Applicant chose not to attend. The Applicant's authorised recipient wrote to the Tribunal in a misconceived letter inviting the Tribunal to indicate what evidence it required and then certain evidence was provided. The Tribunal did, on 15th September, after the Applicant had declined to attend the hearing, write to the Applicant and specify certain information that the Tribunal wanted.
The Tribunal was under no obligation to do that, no obligation to do that at all. There is no evidence of denial of natural justice. A denial of evidence given by an Australia citizen in support of a relationship, which is also alleged, is no more than a challenge to the Tribunal's factual finding. As to the sixth ground which alleges that the Tribunal's expectation and decision is relevant for an application for an Extended Eligibility (Temporary) (Class TK) visa, there is no legal error there. The Tribunal did say at page 416 of the Court Book that:
The Tribunal would expect parties who have been married for seven years and living in a genuine spousal relationship would be able to provide to the Tribunal a great deal more evidence of the genuine nature of the relationship at the time of decision, than what has been provided by the applicant.
That does not appear to be irrelevant; it is a statement made by the Tribunal when dealing with factual matters and seeking evidence upon which factual decisions can be made. It is for the Tribunal to be satisfied that the evidence before it reaches the requisite standard to show that the Applicant is entitled to a visa.
The seventh ground claims that the visa applicant is the last remaining person in Australia; he is entitled to remain in Australia supported by all his Australia children, is not a ground for review.
If the Applicant intended to rely on those grounds rather than applying for a spouse visa, he has apparently applied for the wrong visa. It is not a criterion for the grant of a spouse visa that a person is the last remaining person in Australia because the person has children in Australia who are Australian citizens. That may well represent some reason for applying for a different sort of visa but that is not the visa for which the Applicant applied.
It is not up to the Tribunal to decide what visa an applicant should get, it is up to the Applicant to apply for an appropriate visa. The Minister when exercising discretionary power, which is entirely in the power of the Minister, may decide that a person be granted a particular visa other than the visa for which they applied, the Tribunal does not have that power. In effect ground seven is a challenge to the merits of the Tribunal decision.
It is unfortunate the Applicant is not legally represented and has not had the advice of a migration agent. The decision by the Applicant not to attend the Tribunal hearing when offered the opportunity and indeed urged by the Tribunal to attend is, to my mind, represents a major misconception of the nature of the Tribunal hearing. It is unlikely that the Applicant would have received that advice if he had been represented by a competent migration agent or a competent lawyer at that stage in the proceedings.
The submission that the Tribunal in some way should indicate what evidence that it wants, again is a fundamental misconception of the role and obligations of the Tribunal under the Act. If the Applicant had been represented by a competent migration agent or a competent lawyer, it would be unlikely that submission would be made. If it is the fact that the Applicant meets the criteria for a visa other than the visa for which he has applied then a competent migration agent would have been able to advise the Applicant as to which visa was the appropriate visa to apply for. It is not up to the Tribunal to decide that for the Applicant.
Finally, if the Applicant was unable to attend a hearing for medical or psychological reasons then if the Applicant had been properly advised he would have produced medical evidence or psychological evidence to support that contention. It is quite clear that the Applicant is in an unfortunate situation. I accept the fact that he is a man of 62, there is no evidence before me to indicate that he is in any way in ill health.
I accept the fact that all his family are here and that he wants to stay in Australia. Unfortunately the Court, as I indicated earlier, can only set aside the Tribunal decision if the Court is satisfied that the Tribunal has fallen into jurisdictional error. There is no jurisdictional error. I read through the decision independently of the Applicant's submissions and independently of the Applicant's application. I am not able to discern any jurisdictional error into which the Tribunal fell, whether it has been referred to by the Applicant in his documents or not.
As there is no jurisdictional error the Tribunal decision is a privative clause decision which is defined in sub-s.424(2) of the Migration Act. A privative clause decision is final and conclusive and is not subject to order in the nature of certiorari or mandamus which the applicant seeks. It follows, unfortunately for the Applicant, that the application must be dismissed.
There is an application for costs, the Applicant is not working at the moment, he may not have the funds to meet a costs order, whilst that is not a ground for not making an order for costs I will take it into account in considering time to pay. The amount sought is $5,000.00 which is well within the scale.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 6 June 2007
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