Samarasekera v Minister for Immigration and Multicultural Affairs

[2001] FCA 1335

FEDERAL COURT OF AUSTRALIA

Samarasekera v Minister for Immigration & Multicultural Affairs [2001] FCA 1335

UDENI SHARMINI PATRICIA SAMARASEKERA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 623 OF 2001

HILL J
3 SEPTEMBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 623 OF 2001

BETWEEN:	UDENI SHARMINI PATRICIA SAMARASEKERA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	3 SEPTEMBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application be dismissed.

2.   The applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 623 OF 2001

BETWEEN:	UDENI SHARMINI PATRICIA SAMARASEKERA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	3 SEPTEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, Mrs Samarasekera, applies to the Court for judicial review under s 476(1) of the Migration Act 1958 (Cth) (the “Act”) of a decision of the Migration Review Tribunal (the “Tribunal”) affirming a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse a grant to her of a Resolution of Status (Temporary) (Class UH) visa, subclass 850.

2. Subdivision 850.21 of Schedule 2 to the Migration Regulations 1994 (Cth) sets out the criteria to be satisfied at the time such a visa application is made. Clause 850.214 provides that one such criterion is that:

   “(1)     The applicant was in Australia for a period this is, or for periods that total, not less than 90%  of the period that began on a date when the applicant entered Australia as mentioned in clause 850.212 and ended on the date of the making of the application. 

   (2)      For the purposes of subclause (1), where the applicant was not in Australia for 90% of the period, the Minister may include periods when the applicant was outside Australia if:

   (a)the applicant has maintained close business, cultural or personal ties in Australia; and

   (b)the Minister is satisfied that compelling or strongly compassionate circumstances exist that explain why the applicant was outside Australia during those periods.” 

3. The applicant first arrived in Australia on 30 April 1993.  Her application for the visa was made on 14 October 1997.  Accordingly, the relevant period for consideration under clause 850.214 is the period from 30 April 1993 to 14 October 1997, a total of 53.5 months.  It is not in contest that in 29 of those months the applicant was either in Australia or being outside of Australia during the relevant period satisfied the Minister of the matters in clause 850.214(2) such that she was taken to be in Australia.

4. There are, however, three occasions, during which time the applicant was outside Australia in the relevant periods (and not by operation of clause 850.214(2) taken to be in Australia) for an aggregate total of 24.5 months, which were in issue before the Tribunal.  The three occasions are respectively:

   (1) the period 1.12.93 to 8.7.94;

   (2) the period 1.1.95 to 30.6.95; and

   (3) the period 1.7.95 to 15.6.96. 

   Unless each one of these periods is counted as being presence in Australia, the application has to fail as any one occasion involves an absence for a period that is more than 10% of the relevant period. 

5. The Tribunal first considered the question whether in these periods of absence the applicant had maintained close business ties in Australia.  It noted that in 1993 the applicant had made an initial investment in the business of her aunt, but that there was no other evidence of involvement in the conduct of that business in the period 1993 to 1996, during which time the three periods of absence occurred.  It found that she did not maintain close business ties in Australia during the three periods.

6. The applicant submits, however, that the Tribunal had not taken into account evidence which she gave orally before the Tribunal, in which she referred to promoting her aunt’s business in Sri Lanka.  However, it is clear from the statutory declaration which was filed in the Tribunal, and about which the Tribunal member questioned the applicant, that this related to a period before 1993 and accordingly did not assist the applicant’s case. 

7. The Tribunal next considered whether the applicant had maintained close cultural or personal ties in Australia.  It found that there was no evidence of close cultural ties.  It noted the claim by the applicant in her application and oral evidence that she had a close relationship with her brother and had assisted him with some personal problems in 1996, but found that there was no other evidence of continuing communication between them during the period in question or, for that matter, of close ties with other relatives. 

8. Implicitly at least, the Tribunal rejected any suggestion that the applicant had maintained close cultural or personal ties in Australia.  This, together with the finding that the applicant did not maintain close business ties, alone would have disentitled the applicant to succeed before the Tribunal.  However, the Tribunal continued to consider whether there were “compelling or strongly compassionate circumstances” which explained the relevant periods in which the applicant was outside Australia. 

9. In the first of these periods, the Tribunal was of the opinion that there was no evidence that the applicant was required to be away from Australia.  This is contested on behalf of the applicant who points to evidence before the Tribunal that she had given birth to a child in July 1994.  She said that she had had a series of miscarriages and was advised not to travel. This may be so, but she did not give evidence to this effect before the Tribunal.  The only evidence before the Tribunal was the fact of pregnancy.  In respect to some of this period, it is obvious that before the Tribunal could decide whether there were compelling or strongly compassionate circumstances preventing return to Australia and so explaining her absence from the country, it would need to have considered the question whether it was possible for the applicant so to travel.  It is pretty much common knowledge that at least for some period of time airlines will not permit pregnant women to travel.  In my view, there is a strong argument in favour of the view that failure to consider whether travel was at all possible would be a failure on the part of the Tribunal to exercise its jurisdiction or, alternatively, would involve an error or law in the sense discussed by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1.

10. However, for reasons which will appear, it is ultimately unnecessary to decide that question. 

11. It is perhaps significant to note here that the applicant submits that in respect of each of the matters discussed in my reasons, the Tribunal erred in law by not asking additional questions of her or by not advising her that her evidence was not sufficient, in order, presumably, to give her the opportunity to present further and more cogent evidence on the particular matter. It may well be that in some cases at least, failing to give an applicant an opportunity to present more evidence where the evidence on that point is inadequate might constitute a failure to afford procedural fairness. However, natural justice or failure to afford to an applicant procedural fairness is not a ground of review open to this Court under s 476 of the Act. There is no ground of review available in this Court when considering an application under s 476 of the Act which would permit an applicant to have a decision of the Tribunal set aside on the basis that the Tribunal failed to advise the applicant that the applicant’s case was not strong enough unless additional evidence is given, nor is the Tribunal obliged to ask additional questions to elicit further evidence. Its failure to do so does not constitute a ground of review under s 476 of the Act.

12. The second period is that commencing 1 January 1995.  Of this period, the Tribunal said that there was no evidence that the applicant was required to be away from Australia from January 1995.  It is submitted that there was such evidence and that was evidence that the applicant’s mother-in-law had been operated upon and discharged from hospital on 10 December 1994.  It appears from evidence before the Tribunal that there was an operation for a hernia problem and a gall bladder operation.  The mother-in-law was very old and when discharged required attention because she could not walk.  In oral evidence, the applicant said that she had to do everything for her mother-in-law despite her need to attend to the small child that the applicant then had.  There was no evidence as to how long the incapacity of the mother-in-law lasted.  One might have thought it was quite likely that it lasted at least until some time in January 1995.  The Tribunal seems merely to have ignored the question although no doubt it is literally true that there was no evidence that the applicant was required to stay away from Australia from January 1995, however desirable it may have been that the applicant assist her mother-in-law convalesce after the operation.

13. The third period was one in which the applicant’s absence from Australia was attributed by the applicant both to high cholesterol on the part of her husband and the need for him to have a special diet.  Reliance was placed also on ongoing asthma attacks suffered by her child.  Of these matters the Tribunal said:

    “There is no evidence that the asthma attacks suffered by the older child from July 1995 prevented the visa applicant from returning to Australia.  There is no evidence that the decision by the visa applicant's husband to accept employment in the United Arab Emirates from 28 December 1995 prevented the visa applicant from travelling to Australia ... There is no medical evidence of her husband’s high cholesterol or that such a condition and the need for a special diet is a serious illness that would constitute strongly compassionate circumstances.”

14. Again, what the Tribunal says is no doubt literally true.  There was evidence, but not medical evidence, that the husband had a cholesterol problem.  There was no evidence that any cholesterol problem he had was such as to prevent the applicant returning to Australia.  There seems no doubt that the child did have asthma.  Apparently the reason that the applicant preferred to stay in Sri Lanka for the benefit of the child was that in Australia she had no medical insurance to meet medical costs which presumably she did not have to meet in Sri Lanka or, in any event, not to the extent which would have been required in Australia. 

15. As I have already noted, failure to satisfy the Tribunal in respect of any one of these periods operated to disentitle the applicant to the visa she sought.  In my view, the Tribunal did not commit any reviewable error in respect of the last of those periods, that is to say between 1.7.95 and 15.6.96, and probably did not commit any reviewable error in respect of the second of the periods, that being between 1.1.95 and 30.6.95.  It is for that reason that I do not think it is necessary to conclude finally whether the Tribunal erred in a reviewable manner in failing to address the question of the applicant’s inability to travel in the first period. 

16. It follows, subject to a submission based on bias, that the applicant has not made out any reviewable error on the part of the Tribunal either in respect of the test of failure to maintain close business, cultural or personal ties or in respect of the test of compelling or strongly compassionate circumstances.  Both these tests are cumulative and, accordingly, the application must fail. 

17. The applicant raised, as well, the ground of actual bias.  Reference was made in the course of argument to a passage in the transcript.  In essence, the Tribunal indicated in that passage that it had all the information necessary to make a decision and that there was no need for a written submission.  To succeed in showing actual bias, an applicant must demonstrate that the Tribunal member, in essence, approached the review with a closed mind.  An allegation of actual bias would succeed if it could be demonstrated that a Tribunal member had, without hearing evidence or submissions for that matter, already made up his or her mind.  However, in the present case, there is nothing at all in the transcript which would suggest even that a reasonable person might infer that the Tribunal member was biased let alone demonstrate that the Tribunal had not approached the review with an open mind.  The claim of bias must, in accordance with the authorities, fail.  I would accordingly dismiss the application and order the applicant to pay the respondent’s costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             18 September 2001

Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	R J Bromwich
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	3 September 2001
Date of Judgment:	3 September 2001