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

1. The application is dismissed. 

2. 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)

1. 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. 

2. 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”. 

3. 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).

4. 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.

5. 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. 

6. It can be seen that this contains three factual issues for a decision‑maker.  First, whether the visa applicant is “willing and able to provide substantial and continuing assistance” to the nominating resident.  Secondly, whether the nominating resident “has a permanent or long‑term need for assistance” because of one of the specified circumstances of need.  Thirdly, whether assistance for that person “cannot reasonably be obtained” from another relative nor from “welfare, hospital, nursing or community services in Australia”. 

7. The applicant completed a visa application form with the assistance of a migration agent, Mr William Pawa.  It attached documents to establish some elements of the applicant’s entitlement, but did not include any useful information, and no supporting evidence, in relation to these three issues.  The application for a visa was lodged on 23 October 1998. 

8. The delegate refused the application and gave notice of this on about 26 May 1999.  The delegate’s statement of reasons clearly referred to the absence of medical evidence of the grandmother’s medical condition, and that there was no evidence “that the nominator has properly explored the options provided by the Australian health and community services”.  The delegate found that the applicant was not a “special need relative” of the settled Australian resident. 

9. The application for review to the Tribunal was lodged on 28 July 1999.  It indicated that it was prepared with the continuing assistance of Mr Pawa, but was not accompanied by any further relevant evidence.  It said: 

   We are preparing a submission which will include a report by H.S.A recommendation which is a condition required for carer of permanent residence application as from beginning of 1999. 

10. The applicant thus appears to have been aware of the need for relevant medical evidence.  However, no evidence showing a level of assistance required by the grandmother was ever provided, notwithstanding a series of letters sent by the Tribunal to the applicant and her agent inviting the provision of this.  Nor did the applicant attend the two hearings to which she was invited by the Tribunal. 

11. The Tribunal in its statement of reasons indicated that, following the non‑appearance by the applicant at the second hearing, it decided that it was appropriate to make a decision on the review without taking any further action to allow or enable the applicant to appear. It thereby purported to exercise the power available under s.362B(1), which is available if an applicant has been invited under s.360 to appear and does not appear on the day when the applicant was scheduled to appear.

12. Explaining its substantive decision to affirm the delegate’s decision, the Tribunal made findings that it was not satisfied on the evidence before it that the applicant satisfied the first element in the definition of “special need relative” which I have identified above, nor that the applicant’s grandmother satisfied the second and third elements. 

13. The information before the Tribunal did not suggest that any other subcategory of the visa class was available, and it concluded: 

    As the primary visa applicant does not satisfy the primary criteria for the class of visa sought, the members of her family unit who are also visa applicants do not satisfy the secondary criteria for a Class AG visa. 

14. The Tribunal affirmed the decision of the delegate in relation to all of the applicants. 

15. I have considered the reasoning of the Tribunal and am unable to find any error affecting its reasoning.  I consider it has applied the relevant law to the evidence before it, and it was plainly open to it not to be satisfied that the applicant met essential criteria. 

16. The applicant’s application to this Court was brought more than four and a half years after the Tribunal gave its decision, and this delay is the basis for a submission by the Minister that relief should be refused even if jurisdictional error were found affecting the Tribunal’s decision.  However, since I have not found jurisdictional error, I do not need to consider the significance and explanations for the delay.

17. In her application to this Court, the only grounds of review that are stated are:

    The decision of the Migration Review Tribunal involved an error of law being incorrect application of law to the facts as found by the person who made the decision. 

    I am disagree with the M.R.T. decision. 

18. These contentions do not provide any meaningful basis for me to set aside the Tribunal’s decision.  As I have indicated, I am unable to identify any error of law affecting the decision. 

19. In an affidavit filed by the applicant there is an additional assertion: 

    The M.R.T. peoples were not informing me those matters on timely.  I haven’t received documents from the M.R.T. peoples with proper time. 

20. This contention has caused me to consider the Tribunal’s power to proceed under s.362B and, in turn, to consider whether the applicant had been “invited under section 360” according to the formalities required by s.360A and the provisions concerning the posting of documents and their deemed receipt (see ss.379A(4), 379C(4), 379G and reg.4.21).

21. I consider that the prescribed time periods were complied with in relation to the two invitations which were sent. 

22. An additional issue is whether they were posted under s.379A(4)(c) to :

    (i)the last address for service provided to the Tribunal by the recipient in connection with the review; or

    (ii)the last residential or business address provided to the Tribunal by the recipient in connection with the review. 

23. Alternatively, whether they were posted to an authorised recipient for the purposes of s.379G, which refers to a person who is the subject of “written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review”.  If a document is given to that person then s.379G(2) deems: “the Tribunal is taken to have given the document to the applicant”. 

24. The invitation to the first hearing was sent by letter dated 31 August 2000 addressed to the applicant at a residential address in Green Valley, Sydney, which she gave in her application to the Tribunal. No different address was ever given by her to the Tribunal for the purposes of the review. The Tribunal referred at [16] of its reasons to the sending of this invitation, and the failure of the applicant to attend on its appointed hearing date, 7 November 2000. It would seem, therefore, that at that time the Tribunal had statutory power under s.362B(1) to proceed to finalise the review without appointing a further hearing. However, the Tribunal did not then exercise that power, but proceeded to invite the applicant to a rescheduled hearing pursuant to s.362B(2).

25. It is an interesting question whether the s.362B(1) power continued to be available in that circumstance. I am inclined to think that the power might then have lapsed, only to revive if the applicant failed to attend the rescheduled hearing after being given a new invitation complying with the requirements arising under s.360A, at least if a procedural irregularity in relation to notification of the rescheduled hearing was not the subject of request, consent or acquiescence on the part of the applicant. This is the subject of some differences of opinion (c.f. Scarlett FM in SZDQO v Minister for Immigration [2005] FMCA 326, Conti J in SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1026, Barnes FM in SZFKF v Minister for Immigration [2005] FMCA 1152, and my discussion in SZFIH v Minister for Immigration & Anor [2005] FMCA 1847).

26. In the present case, the invitation posted to the applicant was not sent addressed to the applicant at her last address for service and last residential address “provided to the Tribunal by the recipient in connection with the review” as required by s.379A(4). This happened, because the Tribunal had become aware that the Green Valley address appeared no longer to be current. As the Tribunal indicated, it sent its invitation dated 8 November 2000 inviting the applicant to a rescheduled hearing on 19 December 2000 to a Griffith address, which had not been given to it by the applicant nor any of the other applicants for the purposes of the review. Rather, it found the address in an unrelated Departmental file, in which the applicant’s husband indicated that the family was living in Griffith during 2000.

27. However, in the present case, I do not need to decide whether the Tribunal’s posting of the invitation to the Griffith address resulted in the applicant not being validly notified of the rescheduled hearing date, nor, if so, whether this would result in the invalidity of the Tribunal’s substantive decision. This is because, in my opinion, the provisions of s.379G(1) and (2) applied to the second invitation by reason of the letter also being posted to the applicant’s agent, so that it was “taken to have given the document to the applicant”. 

28. In the circumstances in which this issue has arisen in this case, I am prepared to infer that the posting probably happened because the copy of the letter reproduced in the Green Book shows the letter being “cc” to Mr Pawa at his post office box address at Lakemba.  The applicants have not contended that this did not happen nor that he did not receive it.

29. In relation to the scope of his agency, it is clear from the form of application completed by the agent on behalf of the applicants, that they authorised him to be their “representative assisting you” in respect of this application, since this is expressly indicated in the guidelines for Section 5, and in the opening words to Section 5 of the form.  This tends to imply an authority to receive correspondence on their behalf although, unlike other similar forms, it contained no provision for an explicit authorisation of the agent to receive documents in connection with the review.  However, I am prepared to find that such authorisation was given both from the unqualified language in which the agency is given and, significantly, from the fact that under the heading “Address for the service of documents” the application form gave the agent’s post office box number as “the address you would like to have all Tribunal documents sent”. 

30. I am, therefore, satisfied that, by reason of notification sent to the applicant’s agent, and the applicant’s failure to attend at the rescheduled hearing, the Tribunal had power under s.362B(1) to proceed to decide the matter without taking further steps to allow the applicant to appear. It is now well established that it is irrelevant whether, in fact, the applicant actually received notice of the hearings to which she was invited (see VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [14]‑[15]).

31. The applicant and her husband today attended the hearing.  She frankly conceded that she did receive notice of the Tribunal’s hearing, but had been unable to attend.  Her explanation was that the family was “picking oranges at Griffith and was unable to find the time and money to attend a hearing in Sydney”.  I am sure that the applicant now regrets this decision, but it did mean that the Tribunal was left without evidence upon which it could properly address her entitlement to the visa.  Unfortunately, her explanation and regrets do not allow me to order the Tribunal to conduct further consideration of the matter. 

32. A further technical point which was not raised in the applicant’s application to this Court nor her submissions, but was raised by the Minister’s solicitor in her outline of submissions, was whether the Tribunal decision was vitiated by reason of a failure by the Tribunal to serve a written invitation under s.359A inviting the applicant to comment on information which would form part of the reason for affirming the delegate’s decision, and inviting her to comment.

33. The Minister’s solicitor referred to the fact that, in relation to the Tribunal’s finding that there was insufficient evidence before it to be satisfied that the applicant was currently providing assistance to her grandmother, the Tribunal referred to evidence found by it in a Departmental file that “she and her husband apparently moved to Griffith in March 2000”.  I accept that this information was specifically about the applicant, that it was part of the Tribunal’s reasons for being dissatisfied as to the first element in the definition of “special need relative”, and that it was not the subject of a written invitation to comment. 

34. However, I accept submissions by the Minister’s solicitors that the Tribunal provided two independent reasons for affirming the delegate’s decision, additional to its dissatisfaction about that element. These were its dissatisfaction as to the second and third elements in the definition of “special need relative” concerning the health and care for the applicant’s grandmother, which I identified above. In my opinion, Federal Court authorities establish that a non‑compliance with s.359A(1) does not give rise to jurisdictional error vitiating the Tribunal’s decision, where its decision is supported independently by other reasoning addressing separate issues (see for example, VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965 at [33]; Minister for Immigration & Multicultural & Indigenous Affairs v Hettiarchchige [2005] FCA 37 at [67]; and VEAJ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 678 at [53]). The Tribunal’s reference to the information taken from a Departmental file without serving a s.359A(1) invitation when deciding one of the criteria did not, therefore, result in the invalidity of its decision.

35. The applicants were understandably unable to address me on any technical aspect of their case, and were reliant on the Court to identify any argument that might be made in their favour.  I have endeavoured to look for arguments that could win them their case, but am unable to find any. 

36. For the reasons that I have given above I have concluded that the Tribunal’s decision is not affected by jurisdictional error.  It is therefore a privative clause decision and I must dismiss their application.  

37. Before completing my judgment I note that the applicants presented their case to me with impressive honesty, and without attempting to sway the Court by special pleading about their personal circumstances.  They may well have humanitarian reasons for obtaining discretionary intervention by the Minister, but this is not a matter which it is my function to explore nor make findings upon. 

I certify that the preceding thirty‑seven (37) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  3 February 2006