Thapa v Minister for Immigration

[2010] FMCA 507

FEDERAL MAGISTRATES COURT OF AUSTRALIA

THAPA v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 507

MIGRATION – Review of decision of MRT – child residence visa – sponsor not related to applicant.

Migration Regulations 1994

Applicant: SASHI KUMAR THAPA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 631 of 2010

Judgment of: Raphael FM

Hearing date: 8 July 2010

Date of Last Submission: 8 July 2010

Delivered at: Sydney

Delivered on: 8 July 2010

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $1,250.00.

3. I give leave for the applicant to amend his application to seek the necessary leave which I would grant so that the matter can be decided on a final basis rather than on some interlocutory basis involving the refusal of the extension of time.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 631 of 2010

SASHI KUMAR THAPA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. In this matter the applicant seeks a review of a decision of the Migration Review Tribunal made on 8 February 2010 affirming a decision of the Minister's delegate to refuse the applicant a Child (Residence) (Class BT) visa on 10 September 2009.  The delegate refused the visa application on the basis that the applicant did not satisfy clause 802.212 and clause 802.221 of Schedule 2 to the Migration Regulations 1994 (the “Regulations”) because the applicant was not a dependent child of a person who is an Australian citizen or holder of a permanent visa or eligible New Zealand citizen. The migration Tribunal affirmed the decision of the delegate on 8 February 2010 for the same reason that the delegate gave.

2. At [CB 144‑146] the Tribunal sets out the provisions of the relevant regulations.  It notes the definition of "a dependent child" in Regulation 1.03 which relates to a child who has not turned 18 or has turned 18 and is dependent upon the other person.  It also notes what "dependent" means in Regulation 1.05A(1). 

3. Mr Thapa, the applicant, is a young man of 21 years of age.  He came to Australia with his parents who, like him are Nepali citizens, in November 2005.  After their arrival the parents made applications for protection visas.  Those applications were refused and in October 2009 Mr Thapa's father returned to Nepal.  His parents have split up.  Although Mr Thapa was born in Singapore and his parents lived there for a considerable time, he is not a Singapore citizen.  He was 17 years of age when he came to Australia with his parents.  His only alternative to remaining in Australia is to return to Nepal, a country with which he has no real connection.  He says that he does not even speak Nepalese to any great degree.  His mother is no longer in Australia.  Until his father returned to Nepal in October 2009 he supported his son from a pension that he received from Singapore but he now receives no assistance from his father or his mother.  On 6 August 2009 Mr Thapa applied for a child visa.  He was sponsored by one Aruna Pun, who is a family friend from Singapore.  She is not related to Ms Pun and it is not clear from the papers as to whether or not she is even an Australian citizen. 

4. In its findings and reasons, the Tribunal concluded that because the applicant's father supported him financially until October 2009 he was not wholly or substantially reliant on his sponsor for financial support to meet his basic needs for food, clothing and shelter at the time of the application on 5 August 2009.  Because of this the Tribunal found that the applicant was not the dependent child of an Australian citizen, the holder of a permanent visa or eligible New Zealand citizen at the time of application. 

5. The Tribunal found that clause 802.221 requires that at the time of the decision the applicant continues to satisfy the criteria in clause 802.212, or does not continue to satisfy that criteria only because he no longer meets the age requirement.  In the case of an applicant who had turned 18 at the time of application they must also continue to satisfy the requirements of clause 802.214.  The Tribunal found that Mr Thapa had turned 18 at the time of the application but he had not turned 25 by the time of the decision.  However, he was not incapacitated for work due to the total or partial loss of his bodily or mental functions at the time of the decision and he was not in full‑time study.  For those reasons the Tribunal found that the applicant was not the dependent child of an Australian citizen, holder of a permanent visa or eligible New Zealand citizen at the time of the decision and therefore he did not meet the requirements of clause 802.221. 

6. On 23 March 2010 the applicant filed an application for review of that decision from this court.  He gave three grounds.  The first was:

   “The Tribunal did not understand my case.”

   The Tribunal's decision lays out the relevant regulations which the Tribunal had to consider for the purposes of making its decision.  It explains the applicant's position and the evidence which he gave.  It sets out, in sufficient detail, the grounds upon which the Tribunal concluded that the applicant was not a person to whom the relevant regulations apply.  I cannot see how it can be said that the Tribunal did not understand his case. 

7. The second ground of the application is:

   “The Tribunal must apply the law.”

   The applicant does not tell me how he believes the Tribunal misapplied the law and my reading of the decision convinces me that this is not the case.  The applicant was unable to obtain a visa because of a fundamental failure in his application, namely, that the person who was sponsoring him was neither his parent nor an Australian citizen, permanent resident or eligible New Zealand citizen. 

8. The third ground put by the applicant was:

   “The Tribunal failed to understand that I am without parents and am dependent on my sponsor.”

   I think that the Tribunal did understand these matters.  I think some confusion may have arisen because of the finding by the Tribunal that the applicant was not dependent upon his sponsor at the time of application as his father was still supporting him at that time, but it seems to me that the Tribunal has accurately set out the applicant's situation. 

9. Before me today, the applicant repeated these matters and reminded me of his difficult situation.  I explained that the court was sympathetic to that situation and in particular the difficulty he might have should he return to Nepal, a country he hardly knows.  It is unable to find that the Tribunal fell into jurisdictional error in the manner in which it reached its decision.  For those reasons the application must be dismissed.

10. The applicant was approximately eight days out of time in filing his application.  For reasons which the respondent appropriately accepts, to the extent necessary I give leave for the applicant to amend his application to seek the necessary leave which I would grant so that the matter can be decided on a final basis rather than on some interlocutory basis involving the refusal of the extension of time.

11. The respondent has asked for costs in the sum of $4,000.00.  I have little doubt that this is an appropriate figure but I think the court is entitled to take into account the circumstances of the applicant and the likelihood of any recovery.  I order that the applicant pay the First Respondent’s costs assessed in the sum of $1,250.00.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  14 July 2010