Szczepaniak v Minister for Immigration and Multicultural Affairs

[2000] FCA 302

FEDERAL COURT OF AUSTRALIA

Szczepaniak v Minister for Immigration & Multicultural Affairs [2000] FCA 302

MIGRATION – review of decision by Migration Review Tribunal – application for Preferential Relative (Migrant) visa – “remaining relative” – “non-dependent child” – whether Court should express view on adequacy of immigration information sheet.

Migration Regulations (Cth), r 1.15, Sch 2, c 104.211(2)

EUGENIUSZ SZCZEPANIAK v
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 1186 OF 1999

KATZ J

17 MARCH 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1186 of 1999

BETWEEN:	EUGENIUSZ SZCZEPANIAK APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	KATZ J
DATE OF ORDER:	17 MARCH 2000
WHERE MADE:	SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.The application for review be dismissed.

2.The applicant pay the respondent’s costs of the proceeding.

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 1186 of 1999

BETWEEN:

EUGENIUSZ SZCZEPANIAK

APPLICANT

AND:

MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:	KATZ J
DATE:	17 MARCH 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. There is before the Court an application for review of a decision made by the Migration Review Tribunal (“the Tribunal”) on 20 September 1999.  By its decision, the Tribunal affirmed a decision which had been made on 23 September 1998 by a delegate of the Minister for Immigration and Multicultural Affairs (“the delegate” and “the Minister” respectively) to refuse to grant an application by Mr Robert Wieslaw Szczepaniak (“the son”) for a Preferential Relative (Migrant) visa.  However, the applicant before the Court is not the son, who, at all relevant times, has been a Polish citizen and resident. It is instead Mr Eugeniusz Szczepaniak (“the father”), an Australian citizen and resident who is the father and was the sponsor for that visa of the son.  No question arises as to the father’s standing to seek review of the Tribunal’s decision.

2. The criteria for a Preferential Relative (Migrant) visa at the time at which the son applied for it and at the times of the delegate’s and the Tribunal’s decisions were set out in Pt 104 of Sch 2 to the Migration Regulations (Cth) (“the Regulations”).

3. At the times to which I have just referred, one could apply for such a visa on the ground (among others) that one was a “remaining relative” (see subc 104.211(2) of the Regulations as it was at the relevant times). The term “remaining relative” was then defined in subreg 1.15(1) of the Regulations as including a visa applicant who had a parent who was an Australian citizen, “unless the applicant is disqualified under subregulation (2)”. Subregulation 1.15(2) of the Regulations then provided that an applicant was disqualified if he or she “usually resides in the same country, not being Australia, as an overseas near relative”. Subregulation 1.15(3) of the Regulations then provided that an “overseas near relative” included a “non-dependent child” of the applicant.

4. The son’s visa application was refused, both by the delegate and by the Tribunal, solely on the basis that he usually resided in the same country, not being Australia, as a non-dependent child of his.

5. According to the Tribunal’s statement of findings and reasons ([1999] MRTA 246),

   “9. The visa applicant married in about 1985 and his daughter Agata was born on 3 November 1987.  He separated from his wife in 1991 and divorced in 1996.  His wife has the daily care and control of his daughter and the custody of that child.  Pursuant to the court order he has access to his daughter for a half day once every two months.  He has no other contact with his child.  He pays maintenance for this child.
   …
   13. In a decision of the Full Federal Court Jankovic v Minister for Immigration, Local Government and Ethnic Affairs (56 FCR 474) the term ‘non-dependent child’ in the virtually identical context under the Migration Regulations 1989, was considered.  The Court decided that the term ‘non-dependent child’ for the purposes of the definition of ‘overseas near relative’, should utilise the definition in the Regulations of ‘dependent child’.  The applicant in that case had two children under 18 years of age, resident in the same country in which the applicant was usually resident, and in the custody and substantial daily care and control of their mother from whom the applicant was divorced.  The appeal in Jankovic was dismissed on the basis that the applicant’s children were not dependent on him in the terms defined in the Regulations.  Therefore the expression ‘non dependent child’ included these children and had the effect of disqualifying the applicant as a ‘remaining relative’.
   14. I find that the child of the visa applicant is a non-dependent child and thus he does not meet the criterion for Subclass 104 on the grounds of ‘last [sic] remaining relative’.”

6. Although the father’s application for an order of review nominated, as the decision of which he sought review by this Court, the Tribunal’s decision of 20 September 1999, in fact, as he made plain to me on the hearing of his application, he does not submit that the Tribunal made any reviewable error in the course of making that decision, nor did his application seek to identify any such reviewable error made by the Tribunal.  (I should say that the father appeared in person before me.)  He accepted that the correct decision to be made in the circumstances was that the son did, at all relevant times, “usually reside[ ] in the same country, not being Australia, as” his “non-dependent child”.

7. Instead, his grievance is about a different matter than the Tribunal’s decision.  The nature of that grievance was encapsulated in his application for an order of review, which (I infer) he prepared without legal assistance.

8. On that part of the application form where an applicant is to state why he, she or it is aggrieved by the decision of which review is sought, the father wrote the following material, which I quote verbatim:

   “My son lodged his first application for immigration to Australia in 1997.
   Based on the information sheet (Form 957i, issued before March 1998) he believed he had sufficient grounds for a positive reply.
   As it turned out the information was not clear and it did not keep me and my son away from lodging an application form and avoiding unnecessary expenses such as: travelling, applications fee as well as lost hope, change for the wose in my health and humiliation from Warsaw’s Australian Embassy staff.
   (my son was subject to humiliating meddlesome inquires)
   I wonder whay Australian Embassy staff in Warsaw made believe that they do not know immigration rules, whay did they accept his an application, and whay did they called him for an interview?
   Was it for his advantage, disadventage or bribe?”

9. Then, on that part of the application form where an applicant is to state the orders claimed, the father wrote the following material, which I again quote verbatim:

   “In result of evidence of abusing of power by Department of Immigration and infringement of human rights, I demand compensation for all my and my son measurable and incommensurable losses (about $200,000,- or let my son reunite with family in Australia”

10. Reading the material which I have quoted above from his application form, one might gain an unfavourable impression of the father, but I should emphasise my belief that such an impression would be unfair to him.  His English is by no means perfect (although he spoke and plainly understood English during the hearing and an earlier directions hearing, there was an interpreter present both times, whose services he required on a number of occasions); he is a man advancing in years (about 65) and the son is his only son and the only member of his immediate family not with him in Australia; and the son’s first visa application, referred to in a part of the father’s application to this Court which I have already quoted above, was made close to three years ago.  I attribute the tone of the things which I have quoted from his application and, indeed, of certain other correspondence from the father which was before me and of certain things said by him before me to his great distress caused by his inability to achieve his son’s migration to Australia.

11. It may be appropriate for me to say something now of the circumstances in which the son came to make successive applications for a Preferential Relative (Migrant) visa. The son’s first visa application was made on 17 June 1997 and refused by a Ministerial delegate on 21 August 1997. No application for administrative review of that decision was made. Instead, the father sought directly from the Minister the grant of a visa for his son. On 18 July 1998, following earlier correspondence between them, the Minister wrote to the father, stating that he (the Minister) had no power in the circumstances to grant the son a visa. However, the Minister did say that, if the son were to make a fresh visa application which was refused and the decision in respect of which was affirmed on administrative review, then an application could be made to the Minister for the exercise of such a power. The Minister was there plainly referring to the power conferred on him by subs 351(1) of the Migration Act 1958 (Cth) (“the Act”). It was in those circumstances that the son, just a short time after that letter, made his second visa application. (I understand, incidentally, that, following the Tribunal’s adverse decision of 20 September 1999, the father did seek the exercise of the Minister’s power under subs 351(1) of the Act, but that that request has not yet been determined by the Minister. Having seen, both at the hearing of this matter and at the earlier directions hearing, the father’s great distress to which I have referred above, I can only hope, for his sake, that his request to the Minister will be viewed favourably, although, of course, that is a matter entirely for the Minister.)

12. I should also say that, in the materials before me, there is a suggestion that the father’s grievance about the terms of the information sheet which his son apparently received before making his first visa application was accepted as having some substance by the Minister.

13. On 20 December 1997, the father wrote to the Minister, asking why the relevant information sheet had not stated that a ten-year old child (the age of his son’s daughter) could be a “non-dependent child” for relevant purposes.  On 20 January 1998, the Minister replied to that letter, pointing out, in effect, the necessity to strike a balance in producing information sheets between covering every possible circumstance which might arise and preserving readability.  He then continued,

    “For this reason, the information is general in nature and designed to address the most commonly encountered situations in migration matters.  A Remaining Relative applicant with a non-dependent child under the age of 18 is not a case which is generally encountered in family migration.
    However, from time to time, clients will bring to my attention issues which could nevertheless be addressed in greater detail in the information sheets.  …an examination of the form has been undertaken and it is considered that an expanded reference to non-dependent child is warranted.  It is proposed that information sheet 957i will explain that ‘non-dependent child’ includes not only adult children but also children under the age of 18 when such children are not in the custody of the parent making the application.”

14. In the result, the explanation proposed in that letter to be added to the information sheet  was not added, but, instead, an amended version of the information sheet now says, “Note: A child under 18 may not be dependent if they are not in the custody of the parent applying”.

15. Nonetheless though the father’s sense of grievance about the original information sheet apparently received by the son before the son’s first visa application may be thought to have been accepted by the Minister to be justified to some extent, the question obviously arises what role, if any, this Court may perform in determining whether that information sheet was defective in some way.

16. As the case was conducted before me, the father did not make any reference to the relief which he had originally sought in his application, namely, damages or an order requiring the Minister to grant the son a visa.  In any event, I would obviously have had no jurisdiction in the circumstances of the present proceeding to grant relief of the sort to which I have just referred.  Instead, as the father told me during the hearing, the only thing which he sought to obtain by pursuing his application for review was a pronouncement by this Court on the question whether “the immigration rules were clear when my son was lodging an application [that is, the first application]”.  I take that desire to be a desire that I should express a view on whether the information sheet at the relevant time was or was not defective.

17. It is, however, apparent that, in circumstances in which my jurisdiction is limited only to reviewing the decision made by the Tribunal on 20 September 1999 and in which the father has conceded that that decision involved no reviewable error, the question of whether the information sheet at the relevant time was or was not defective in some way, even assuming that there existed some circumstances in which that question could arise for judicial determination, is not one on which I can properly express a view.

18. In the circumstances, the application for review must be dismissed.  As to the question of costs, no reason appears why they should not follow the event and, indeed, a positive reason appears why they should.  That positive reason is that at the directions hearing which preceded the hearing of his application, I explained to the father at considerable length the nature of the jurisdiction which this Court could exercise in the circumstances and the possible consequences in costs if he should persist with his application and fail.  I will therefore order the applicant to pay the respondent’s costs of the proceeding.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz.

Associate:

Dated:             17 March 2000

The applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 March 2000
Date of Judgment:	17 March 2000