Su v Minister for Immigration - [2006] FMCA 83

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SU & ORS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 83

MIGRATION – MRT decision – visa application claiming special need relative – no evidence on medical and care needs – failure to attend hearing – invitation to rescheduled hearing validly given – Tribunal failed to invite written comments on information obtained from Department file – decision independently supported – no jurisdictional error.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.359A, 359A(1), 360, 360A, 362B, 362B(1), 362B(2), 379A(4), 379A(4)(c), 379C(4), 379G, 379G(1), 379G(2), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
Migration Regulations 1994 (Cth), regs.1.03, 4.21, Sch.2 item 806.21

Minister for Immigration & Multicultural & Indigenous Affairs v Hettiarchchige [2005] FCA 37
SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1026
SZDQO v Minister for Immigration [2005] FMCA 326
VEAJ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 678
VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407
VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965

First Applicant:

JANET SU

Second Applicant:

TALIU TALIU

Third Applicant:

MAIASINA TALIU

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG1930 of 2005

Judgment of:

Smith FM

Hearing date:

18 January 2006

Delivered at:

Sydney

Delivered on:

18 January 2006

REPRESENTATION

Counsel for the Applicants:

First and second applicants in person

Counsel for the First Respondent:

Ms T Quinn

Solicitors for the Respondents:

Phillips Fox

ORDERS

The application is dismissed.
The first and second applicant must pay the first respondent’s costs in the sum of $3,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1930 of 2005

JANET SU

First Applicant

TALIU TALIU

Second Applicant

MAIASINA TALIU

Third Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 21 July 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 5 February 2001 and handed down on that date. The Tribunal affirmed the decision of a delegate refusing to grant a visa, which the Tribunal described as a “Change in Circumstance (Residence) (Class AG)” visa.
The primary application for that visa had been made by the first applicant, Mrs Su, and included her husband and a child as secondary applicants. Mrs Su sought to qualify for the visa under a subcategory which applied to an applicant who met the description of a “special need relative” in relation to an Australian citizen or permanent resident. She claimed that she satisfied that definition in relation to her grandmother, Mrs Namulauulu, an Australian permanent resident. I shall refer to her below as “the applicant”.
The Migration…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] FMCA 83
Decision Date: 18 January 2006

CaseChat Overview and Summary

The matter before the Court is an application for judicial review of a decision made by the Migration Review Tribunal on 5 February 2001. The application, made on 21 July 2005, seeks to overturn the Tribunal's decision to affirm the delegate's refusal to grant a "Change in Circumstance (Residence) (Class AG)" visa to Mrs Su, her husband, and child. The primary applicant, Mrs Su, sought to qualify for the visa as a "special need relative" of her grandmother, Mrs Namulauulu, an Australian permanent resident. The Migration Litigation Reform Act 2005 has since repealed the section of the Migration Act under which this application was made, but the repeal does not affect the continuation of this proceeding.

The Court had to determine whether the Tribunal's decision was affected by a jurisdictional error. The Court's jurisdiction is limited by Part 8 of the Migration Act, which means the Court cannot set aside the Tribunal’s decision and send the matter back to the Tribunal unless it can be satisfied that the decision was affected by such error. The Court also cannot decide whether the applicants qualify for the visas for which they applied. The primary issue was whether Mrs Su met the criteria of being a "special need relative" as defined in regulation 1.03 of the Regulations, which requires the relative to be willing and able to provide substantial and continuing assistance to the Australian citizen or permanent resident if they have a permanent or long-term need for assistance due to death, disability, prolonged illness or other serious circumstances, and such assistance cannot reasonably be obtained from any other relative or welfare services in Australia.

After considering the evidence and arguments presented, the Court found that the Tribunal did not commit a jurisdictional error in affirming the delegate's decision. The Court was satisfied that the Tribunal's decision was based on a proper consideration of the evidence and the applicable criteria. The Court also found that the applicant did not meet the criteria of being a "special need relative". Consequently, the application for judicial review was dismissed.

The Court ordered that the application be dismissed and that the first and second applicants must pay the first respondent’s costs in the sum of $3,200.

Orders

Orders of the court

The application is dismissed.

The first and second applicant must pay the first respondent’s costs in the sum of $3,200.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

This is an application filed on 21 July 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 5 February 2001 and handed down on that date. The Tribunal affirmed the decision of a delegate refusing to grant a visa, which the Tribunal described as a “Change in Circumstance (Residence) (Class AG)” visa. The primary application for that visa had been made by the first applicant, Mrs Su, and included her husband and a child as secondary applicants. Mrs Su sought to qualify for the visa under a subcategory which applied to an applicant who met the description of a “special need relative” in relation to an Australian citizen or permanent resident. She claimed that she satisfied that definition in relation to her grandmother, Mrs Namulauulu, an Australian permanent resident. I shall refer to her below as “the applicant”. The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A, but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8). The Court’s jurisdiction under s.483A is the same as the Federal Court jurisdiction under s.39B of the Judiciary Act 1903 (Cth). It is subject to limitations under Part 8 of the Migration Act, which have the effect that I do not have power to set aside the Tribunal’s decision and send the matter back to the Tribunal unless I can be satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicants qualify for the visas for which they applied or any other visa. The full criteria applicable for the subclass of visa for which the applicant sought to qualify are found in item 806.21 of Sch.2 to the Migration Regulations 1994 (Cth) (“the Regulations”), which is set out in the decision of the Tribunal. As I have indicated, an essential criteria was that the applicant, at the time of application and decision, was a “special need relative” as defined in reg.1.03. This provided: special need relative, in relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or an eligible New Zealand citizen, means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if: (a)the citizen or resident has a permanent or long‑term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and (b)the assistance cannot reasonably be obtained from: (i)any other relative of the citizen or resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or (ii)welfare, hospital, nursing or community services in Australia.