SZJYR v Minister for Immigration

[2009] FMCA 1034

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJYR & ORS v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1034

MIGRATION – Visa – Child (Residence) (Class BT) visa – applicant over 25 at time of application and not incapacitated – meaning of ‘dependent child’ – applicant married with spouse – no reviewable error.

Migration Act 1958 (Cth), ss.91X, 359A, 476
Migration Regulations 1994, cl.802.212, 802.214

SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107
SZJYR & Ors v Minister for Immigration & Another (2007) FCA 1796
SZJYR v Minister for Immigration & Citizenship (2008) FCA 337

First Applicant: SZJYR

Second Applicant: SZJYS

Third Applicant: SZJYT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG1974/2009

Judgment of: Scarlett FM

Hearing date: 13 October 2009

Date of Last Submission: 13 October 2009

Delivered at: Sydney

Delivered on: 13 October 2009

REPRESENTATION

Solicitors for the Applicants: In person

Solicitors for the Respondents: Ms Johnson, Sparke Helmore

ORDERS

1. The titles of the first, second and third applicants are SZJYR, SZJYS and SZJYT respectively.

2. The application is dismissed.

3. The applicants are to pay the first respondent’s costs fixed in the sum of $3700.00 and I allow 8 months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1974/2009

SZJYR

First Applicant

SZJYS

Second Applicant

SZJYT

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

1. The application before the court is an application to review a decision of the Migration Review Tribunal made on 22 July 2009 affirming the decisions of a delegate of the Minister for Immigration and Citizenship not to grant the three applicants Child (Residence) (Class BT) Visas.  The first matter to be dealt with is the title or description of the applicants.  They are not legally represented in these proceedings and have apparently not had any legal assistance in preparing their application. 

2. They have commenced these proceedings in their own names. That is the usual procedure where applicants seek review of the decision of the Migration Review Tribunal. In this case, however, the applicants have previously applied for protection visas. Whilst those applicants were ultimately unsuccessful, the fact remains that they had applied for protection visas and section 91X of the Migration Act operates to prevent the court from publishing the names of applicants for protection visas. 

3. The solicitor for the Minister for Immigration and Citizenship in this matter, Ms Johnson, also had carriage of the Minister’s case in the applications for review of the decision of the Refugee Review Tribunal and the subsequent appeal[1]. She has advised the Court that the applicants were previously allocated the pseudonyms SZJYR, SZJYS and SZJYT.  I propose to make an order that the titles of the first, second and third applicants in this proceeding are SZJYR, SZJYS and SZJYT, respectively. 

   [1] See SZJYR & Ors v Minister for Immigration & Another (2007) FCA 1796, SZJYR v Minister for Immigration & Citizenship (2008) FCA 337

4. The description of the file in this court will be altered accordingly and the reasons for decision will be released showing the pseudonyms of the applicants and not their real names, in order to comply with section 91X of the Act.

Background

1. The background to this particular matter is that the three applicants, who are husband, wife and now adult son, applied for Child (Residence) (Class BT) Visas on 19 December 2008.  A delegate of the Minister for Immigration & Citizenship refused their application on
   15 January 2009. 

2. The first applicant is the husband.  He has given his date of birth as
   2 October 1961, which makes him 48 years of age.  The second applicant was born on 14 October 1968 and the third applicant was born on 27 May 1991, so he is now 18 years of age.  As is necessary for a visa of this type, a sponsorship form was filled in and the sponsor was a gentleman called Toufic Laba-Sarkis.  In the answer to question 9 in the form, in answer to the question:

   Child’s relationship to you?

   The box marked “other” was ticked and the description was given:

   Community volunteer.

3. Mr Laba-Sarkis was also appointed as the authorised recipient of the applicants for the purpose of their dealings with the department[2].  On 15 January 2009, a delegate of the Minister refused the application for a visa[3]. In the delegate’s decision record, the delegate set out the criteria contained in clause 802.212 of schedule 2 of the Regulations. The delegate noted that the applicant had to be a dependent child of a person who is an Australian citizen holding a permanent visa or eligible New Zealand citizen and subject to sub-clause 2 has not turned 25.

   [2] See Court Book at page 25

   [3] See Court Book at page 43

4. If the applicant was a step-child of the person mentioned in paragraph 1(a), the applicant had to be a step-child within the meaning of the definition of “step-child”.  That paragraph does not apply to an applicant who at the time of making the application was a dependent child within the meaning of subparagraph (b)(ii) of the definition of “dependent child”.  The delegate stated:

   The term “dependent child” is defined in Regulation 1.03 as:

   Dependent child

   means the natural or adopted child or step-child of a person, other than a child who has a spouse or is engaged to be married, being a child who:

   (a)     has not turned 18; or

   (b)     has turned 18; and

   (i)      is dependent on that person; or

   (ii)     is incapacitated for work due to the    total or partial loss of the child’s bodily or mental functions. 

   At the time of application, the applicant was aged 47.  There has been no evidence provided to suggest that the applicant is incapacitated for work.  I am not satisfied that at the time of application the applicant was incapacitated for work due to the total or partial loss of their bodily or mental functions.  As the applicant does not meet sub-clause 802.212(2), they must not have turned 25 at the time of application.  As the applicant was aged 47 at the time of application, they fail to meet sub-clause 802.212(1)[4].

   [4] See Court Book at page 47

RRT Decision

1. After the visa was refused, the applicants applied to the Migration Review Tribunal for a review of that decision.  That application was delivered by hand to the Tribunal on 12 February 2009[5]. Again, Mr Toufic Laba-Sarkis was nominated as the authorised recipient[6].  The applicant provided some financial documents, including bank statements and printouts from automatic teller machines, along with a telephone bill from Telstra, an electricity account, a tenant trust ledger report showing the payment of rent, a pay slip and payroll advice from the first applicant’s employer.  The Tribunal wrote to the applicants on 30 April 2009 inviting them to comment on or respond to information that the Tribunal considered would, subject to any comments or response they made, be the reason or a part of the reason for affirming the decisions under review.  The information upon which comments were sought included the following:

   [5] See Court Book at page 48

   [6] See Court Book at page 52

   ·    On the visa application form lodged on 19 December 2008 you give your date of birth as 2 October 1961, which means that at the time the visa applicant was lodged you were aged 47.  You also provided payroll advice slips to the Tribunal which indicate that you are employed. 

   ·    On the visa application form, you have also listed your wife and your son, who are the secondary visa applicants as your dependents. 

   ·    You arrived in Australia on 27 March 2006 as the holder of a subclass 676 visa and you currently holding a bridging E visa. 

   This information is relevant as it may lead the Tribunal to find that you are aged more than 18 at the time the visa application was lodged and that you are not incapacitated for work due to the total or partial loss of bodily or mental functions. 

   This information may also lead the Tribunal to find that neither you, your wife nor your son are the dependent child of a person who is an Australian citizen, holder of a permanent visa or eligible New Zealand citizen and that none of you are sponsored by a person who has turned 18 and is an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen. 

   The Tribunal might also find that you are working and that you are married.

   If the Tribunal makes these findings, it may then find that none of the applicants meet the definition of “dependent child” set out below and that none of the applicants satisfy the requirements of clause 802.212, clause 802.214 and clause 802.215, which are set out below. If the Tribunal makes these findings, it will have no alternative but to affirm the decision to refuse the visas[7].

   [7] See Court Book at page 73

2. The applicants, through their authorised recipient forwarded a letter to the Tribunal dated 8 June 2009. It is clearly a response to the Tribunal’s letter, which was sent under the provisions of 359A of the Migration Act. In that letter, the first applicant said, inter alia:

   I accept that the information put to me that I was born on 2/10/1961 and that I provided a payroll advice slip to the Tribunal and that I am married and that I listed my wife and my son as my dependent.  It is also true that I was over 18 years of age, but I invite the Tribunal that even though I was not incapacitated for work but I do suffer mental as well as psychological disability as a result of tragic accident which crippled me and also the persecution I suffered at the hands of the Muslims in my country of origin. 

   I invite the Migration Review Tribunal to look at my refugee review decision, especially to listen to the record of interview, which will lead you to accept that I am mentally disabled and traumatised and my wife and son did most of the talking but not myself[8].

   [8] See Court Book at page 78

3. The applicant went on to say in the letter that he knew he was dependent because he had lost the ability to decide and had not made any decision since he was harassed in India, which had left incurable wounds on him due to his sufferings and his genuine fear of persecution which affected him emotionally and psychologically very badly.

4. The Tribunal wrote to the applicant on 11 June 2009 inviting him to attend a hearing scheduled to take place at 11.30 am on 14 July 2009.  The first and second applicants indicated that they wished to take part in the Tribunal hearing on the response to hearing invitation[9]. Their son did not. The first applicant appointed his wife, the second applicant, as his representative or authorised recipient for the purpose of the proceedings. The first and second applicants attended the Tribunal hearing, the third applicant did not.  They were accompanied by a representative and Mr Laba- Sarkis as a support person.

   [9] See Court Book at page 83

5. The Tribunal made its decision on 22 July 2009 affirming the decisions not to grant the applicants Child (Residence) (Class BT) visas. It set out the applicant’s claims and set out in full the Tribunal’s section 359A letter of 30 April 2009. The Tribunal set out at paragraph 22 of the decision a summary of the applicant’s response and it also set out a summary of the evidence given to the Tribunal. The Tribunal noted that the second applicant asked to speak on behalf of herself and her husband, stating that he had been badly affected by the harassment that he had experienced from Muslim people in India and his intellect had been affected.

6. The Tribunal set out at paragraph 26 the Tribunal’s concerns that on the informant that the applicants had provided, they appeared not to meet the requirements for the visa:

   The Tribunal explained to the applicants that the regulations require an application to be the dependent child of a person who is an Australian citizen, holder of a permanent visa or eligible New Zealand citizens.  It did not appear that any of the applicants is the dependent child of a person who is an Australian citizen, holder of a permanent visa or eligible New Zealand citizen. 

Also, an applicant must be either less than 18 years of age or if more than 18, the applicant must be dependent and incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.  Furthermore, applicants aged more than 18 must not be married.  The Tribunal drew the applicant’s attention to the Tribunal’s letter of 30 April 2009[10].

[10] See Court Book at page 97 at para 26

1. The Tribunal recorded the second applicant’s statements, particularly the claim that her husband has migraine pain from his experiences and is not mentally fit.  The second applicant referred to the refusal of the protection visa and the subsequent court proceedings and also to an unsuccessful request for ministerial intervention.  She also claimed that the three applicants had fallen into the wrong hands as their previous agent has misled them.  She then went on to say:

   However, they have now been “adopted” by Mr Laba-Sarkis.  When asked how he had adopted them, the second-named applicant stated that Mr Laba-Sarkis adopted them by lending them money for additional expenses and giving them a helping hand[11].

   [11] See Court Book at page 97

2. In the Tribunal’s findings and reasons, the Tribunal referred to the criteria for the granting of a visa in clause 802.212. The Tribunal was satisfied that the first applicant was born on 2 October 1961 and was therefore aged 47 at the time the visa application form was lodged. The Tribunal stated that as the first applicant was aged more than 25, he had to meet the requirements of clause 802.212(2), which states that paragraph (1)(b) does not apply to an applicant who, at the time of making the application was a dependent child within the meaning of sub-paragraph (b)(ii) of the definition of “dependent child”.

3. The Tribunal stated that sub-paragraph (b)(ii) requires an applicant to be incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.  The Tribunal in respect of that requirement said:

   The applicants have given evidence that the first-named applicant has been employed in Australia for 2.5 years.  He works full-time for 40 hours per week and earns about $600 per week[12].

   [12] See Court Book at page 98

4. The Tribunal noted the medical evidence the first applicant had been involved in a car accident but was not satisfied that he was incapacitated for work and was satisfied that he was working on a full-time basis. Accordingly, the Tribunal found that he did not meet the requirements of clause 802.212. The Tribunal then looked at clause 802.214 which requires that if at the time of application the visa applicant has turned 18, he or she must also not be engaged to be married, must not have or ever had a spouse, must not be engaged in full-time work, etcetera.

5. The Tribunal noted that the first applicant had given as his dependents the second applicant, who he identified as his wife and the third applicant, who he identified as his son.  The Tribunal went on to say:

   However, the Tribunal finds that both the first-named and second-named applicants are aged more than 18 at the time of application and that they are married to each other. The Tribunal finds that the first and second-named applicants do not satisfy the requirements of clause 802.214[13].

   [13] See Court Book at page 99

6. The Tribunal then went on to consider the applicant’s claim to have been adopted by Mr Laba-Sarkis, who gave them assistance, including financial assistance. The Tribunal looked at the definition of “adoption” set out in Regulation 1.04.  The Tribunal went on to find:

   There is no evidence before the Tribunal that Mr Laba- Sarkis assumed a parental role in relation to any of the applicants before any of the applicants turned 18 under formal adoption arrangements made in accordance with or recognised under the law of a state or territory of Australia relating to the adoption of children or via formal adoption arrangements made in accordance with the law of another country being arrangements under which the persons who are recognised by law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopter became so recognised or under any other arrangements entered into outside Australia that under sub-regulation (2) are taken to be in the nature of adoption.  The tribunal is not satisfied that any of the applicants is the adopted child of Mr Laba- Sarkis[14].

   [14] See Court Book at page 99 at para.37

7. The Tribunal found that the applicants did not satisfy the requirements of clause 802.212 and 802.214. In respect of the other visa subclasses of a particular visa that they sought, the Tribunal found that there was no material or claim that would permit a finding they met the prescribed criteria for the visa and affirmed the decision not to grant the applicants Child (Residence) (Class BT) visas. The applicants commenced proceedings in this court by filing an application and an affidavit in support on 18 August 2009. The affidavit annexes a copy of a Tribunal decision. The application seeks the following orders:

   1.  The decision by the Tribunal be quashed.

   2.  The Migration Review Tribunal to be reconstituted and a new hearing date be given.

8. It was explained to the applicants that in order to grant the relief that they seek in this application the court would need to be satisfied that the Tribunal decision was affected by jurisdictional error.  It was also made clear to the applicants that if the court were to make an order remitting the matter to the Migration Review Tribunal it would not make an order as to the constitution or reconstitution of the Tribunal as the court is not satisfied that it has the power to do so.  The constitution of the Tribunal for a particular review is a matter for the principal member[15].  There are three grounds in the application.  The first ground says:

   [15] See SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107

   The Tribunal failed to consider the incapacitated function of the applicant.

9. The second ground says:

   The Tribunal failed to take into consideration the evidence given at the Refugee Review Tribunal.

10. The third ground is problematic, because the final word cannot be deciphered.  The application is handwritten and it looks as if the final word has been written so that it goes off the page. What can be ascertained are the words:

    The Tribunal failed to consider the matter according to definition of…

11. Neither I nor the solicitor for the Minister have been able to identify what the obscured word is and the second applicant was unable to shed any light on that particular matter.  The second applicant spoke on behalf of all three applicants.  She confirmed that they had received the outline of submissions prepared by the lawyers for the Minister.  She told the court the Tribunal had not accepted that her husband is incapacitated and did not see that he was mentally and psychologically incapacitated. 

12. She said that he does not talk because of the attack on him that occurred in India.  He is not able to reason things out.  She confirmed she has to organise to bring her husband home from work.  She also complained that the Tribunal did not consider the evidence provided in support of the refugee application. 

13. The solicitor for the Minister, Ms Johnson, prepared and submitted a detailed and comprehensive outline of submissions covering the matters which are the subject of review. 

14. Her submission is that the Tribunal clearly considered the applicant’s claim to be incapacitated in the context of determining whether he met the requirements of clause 802.212(2) and that it noted that he had been employed in Australia for two and a half years, that he worked full-time for 40 hours a week and earned approximately $600 a week. Whilst the Tribunal acknowledged the medical evidence provided relating to the injuries that he sustained in the accident, the Tribunal was not satisfied that the applicant was incapacitated for work and found that he was working on a full-time basis.

1. Ms Johnson’s submission was that the applicants were in fact asking the court to undertake a review of the merits of the Tribunal’s decision and its assessment of their factual claims.  She submitted that it was beyond the power of the court to conduct merits review and certainly there is no error of law, let alone a jurisdictional error in the Tribunal making a wrong finding of facts[16]. 

   [16] See  Abebe v Commonwealth (1999) 197 CLR 510 at paragraph 137.

2. As to the second ground, which is an allegation that the tribunal failed to take into account evidence given to the Refugee Review Tribunal, Ms Johnson submitted that the applicants had not identified the evidence which the Tribunal had allegedly failed to take into account and there was indeed no obligation on the tribunal to search out material provided to the Refugee Review Tribunal in relation to another review proceeding. 

3. It was for the applicants to place whatever material was necessary to persuade the Tribunal of their claims before it and the Tribunal did not have any duty to make any further inquiries[17].  She also submitted that it did not appear that the Tribunal had failed to consider any of the evidence put to it by the applicants. 

   [17] See Minister for Immigration & Multicultural Affairs v SGLB (2004) 207 ALR 12

4. As to the third ground, Ms Johnson submitted that whilst the ground was unclear, the Tribunal applied the correct criteria in determining whether the applicants were eligible for the grant of a Child (Residence) (Class BT) Visa.  The findings by the Tribunal that the applicants did not satisfy clauses 802.212 and 802.214 were factual findings which were open to the Tribunal and the material before it.

5. The applicants have applied for a Child (Residence) (Class BT) visa.  The Tribunal identified the criteria for the visa, in particular, the definition of “dependent child” in Regulation 1.03 of the Regulations.  It identified the definition of “dependent” in Regulation 1.05A of the Regulations.  It considered the requirements set out in clauses 802.212, 802.214 and 802.215.  It put to the applicants in its letter of 30 April 2009 the concerns that it had about the information that they had provided which would indicate that they were not eligible for the visa and sought their comments. 

6. As this material had all come from the applicants, it may well be that it was strictly unnecessary under the requirements of section 359A of the Act for the Tribunal to do so. Nevertheless, the Tribunal succinctly put those concerns to the applicants, allowed them an opportunity to reply in writing and considered the material put in reply. It referred to that material in the decision.

7. The Tribunal considered the applicants against the requirements of the various criteria.  In effect, the Tribunal considered the first applicant had to show that he was incapacitated for work due to the total or partial loss of his bodily or mental functions.  The Tribunal was satisfied that the applicant was not incapacitated for work for that reason notwithstanding the incapacitation that he does suffer.  The Tribunal noted that the applicant is engaged in full-time employment of 40 hours per week. 

8. It was a factual finding, therefore, that the first applicant was not incapacitated for work and did not meet the requirements of clause 802.212. The Tribunal considered the requirement of clause 802.214 that if an applicant at the time of application has attained the age of 18 the applicant must not be engaged to be married, must not have or ever have had a spouse, as well as not being engaged in full-time work.

9. The fact is, the first and second applicants both have a spouse. They are married to each other. The Tribunal identified that point and the applicants agreed that they were married to each other and the Tribunal found, therefore, that the first and second applicants did not satisfy the requirements of clause 802.214. That was a factual decision made by the Tribunal and it was open to the Tribunal to find that on the evidence before it.

10. The Tribunal considered the claim by the applicants that they had been adopted by Mr Laba-Sarkis who had given them assistance including financial assistance. The Tribunal considered the definition of “adoption” in Regulation 1.04 and found there was no evidence that
    Mr Laba-Sarkis had adopted the applicants.  That was a factual finding.  It was open to the Tribunal on the evidence before it.  There is no jurisdictional error that can be discerned. 

11. The Tribunal, invited the applicants to a hearing and provided them the opportunity at the hearing to give evidence and present arguments. The first and second applicants did attend the hearing and the second applicant spoke on behalf of the two of them. The Tribunal put its concerns to the applicants in writing before the hearing in its section 359A letter of 30 April and the applicants replied by letter dated 8 June 2009 and the Tribunal considered that.

12. The eligibility of the applicants for the visa in that they did not meet the various criteria was a matter that was in issue from the start because the delegate had made that very finding.  Thus, the applicants would have been under no doubt from the Tribunal’s letter before the hearing and from the concerns expressed by the Tribunal member at the hearing about their ineligibility to meet the Regulations at paragraph 26[18]. 

    [18] See Court Book at page 97

13. In my view, there is no failure by the Tribunal to provide procedural fairness. There is no jurisdictional error. It is unfortunate that the applicants have applied for the wrong visa. The Tribunal found that they had applied for a visa for which they were not and could not be eligible because they did not meet the requirements. The fact that there is no jurisdictional error means that the Tribunal decision is a privative clause decision, as defined by sub-section 474(2) of the Migration Act.

14. As it is a privative clause decision, it is final and conclusive and not subject to orders in the nature of certiorari or mandamus, which are the orders that the applicants are seeking.  The application will be dismissed.

15. There is an application for costs on behalf of the first respondent Minister in the sum of $3700. The applicants have been unsuccessful in their claim and costs usually follow the event. What that means is that an unsuccessful party can be required to make a contribution towards the legal costs of the successful party, if that party is represented. The amount that is sought is $3700. It is a figure significantly below the figure provided by the scale of costs in the Federal Magistrates Court Rules.

16. On my perusal of the file and my knowledge of the progress of this matter, which has been in my docket since the first court date, it is an appropriate figure.  However, the applicants ask the court not to make an order for costs.  They do this on the basis of financial hardship, that whilst the husband is in full-time employment, his income is not high.  It is approximately $600 per week.  They have significant expenses, including rent and the support of their son who, whilst he is now 18 years of age is a student. 

17. An order for costs in the sum of $3700 would be an extremely difficult amount for them to pay.  It is not a reason for not making a costs order.  It is a reason for the court to give serious consideration to allowing a considerable amount of time to pay.  In my view, it is appropriate, taking the parties’ financial situation into account, to allow eight months to pay.

I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  22 October 2009