THOMPSON v Minister for Immigration - [2009] FMCA 1210

FEDERAL MAGISTRATES COURT OF AUSTRALIA

THOMPSON & ORS v MINISTER FOR IMMIGRATION

[2009] FMCA 1210

MIGRATION – Whether the applicants were member’s of the primary applicant’s family unit – whether the applicants were members of the primary applicant’s household in circumstances where the applicants lived in Sierra Leone and the primary applicant lived in England – whether the applicants satisfy reg.1.12(e)(ii) of the Migration Regulations 1994.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.66(2)(c); 66(3); 65; pt.8 div.2
Migration Regulations 1994, reg.1.12; 1.12(e)(ii); 175.311

Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S154/2002 (2003) 201 ALR 437

First Applicant:

SONIA THOMPSON

Second Applicant:

ONESIMUS THOMPSON

Third Applicant:

QUINTIN REYNOLD PEACOCK

Fourth Applicant:

ALVANUS FELIX THOMPSON

Fifth Applicant:

MOSES WILLIAMS

Sixth Applicant:

EUSTACE OLU THOMAS

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

SYG 1807 of 2009

Judgment of:

Emmett FM

Hearing date:

17 November 2009

Date of Last Submission:

17 November 2009

Delivered at:

Sydney

Delivered on:

7 December 2009

REPRESENTATION

Solicitors for the Applicant:

Mr M. Jones

Counsel for the Respondent:

Mr D. Godwin

Solicitors for the Respondent:

Ms K. Hooper, DLA Phillips Fox Lawyers

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1807 of 2009

SONIA THOMPSON

First Applicant

ONESIMUS THOMPSON

Second Applicant

QUINTIN REYNOLD PEACOCK

Third Applicant

ALVANUS FELIX THOMPSON

Fourth Applicant

MOSES WILLIAMS

Fifth Applicant

EUSTACE OLU THOMAS

Sixth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of a delegate of the Department of Immigration and Citizenship dated 3 July 2009.
The applicants are all citizens of Sierra Leone and claim to be dependent members of the family unit of Mr Cecil Marke.
On 28 September 2007, Mr Marke lodged an application for a (Class VE, subclass 175) skilled migration visa with the Department of Immigration and Citizenship (“the Department”) under the Act. Mr Marke stated that the purpose of his journey was “skilled migration”. Mr Marke is an accountant in London and also a citizen of Sierra Leone. Mr Marke moved to the United Kingdom in May 1996, where he has resided in London until the present time.
The applicants were included in Mr Marke’s application under Part G “Details of migrating family members”. The applicants were identified as dependents over the age of 18 years. The first named applicant is the niece of Mr Marke, the second and sixth applicants are his half brothers, the third and fifth applicants are his cousins and the fourth applicant is his nephew.
Each of the applicants gave the same residential address in Wellington, Freetown, Sierra Leone. Each of the applicants identified Mr Marke as their main source of financial support. Each of the applicants confirmed that they did not live at the same address as Mr Marke. The first, third, fourth and fifth applicants stated that the support they received from Mr Marke was for “money for food, education, clothing”. The second and sixth applicants stated that the support they received from Mr Mark was for “subsistence allowance”.
On 27 October 2008, the Department wrote to Mr Marke seeking information, inter alia, about his English skills and various other information relating to changes in circumstances and identifying various booklets and websites that may be of assistance to the Mr Marke in relation to the sort of information he should provide in support of his application. The letter also identified various forms that must be completed by Mr Marke.
On 11 December 2008, the Department wrote again to Mr Marke seeking further information of evidence of dependency in respect of each of the applicants and his own wife and child. The letter gave examples of the sort of matters that such evidence should include. The letter informed the Mr Marke that, other than unmarried children under 18 years of age living with the family unit, the onus is on the applicant to show that such other relatives are dependent on the applicant.
Mr Marke responded to that letter providing various documents and information. Mr Marke informed the Department that none of the applicants was able to live independently. He stated that four were students and have no other source of income, whilst, two were made redundant and are now engaged in casual jobs and retraining. Mr Marke stated that, in relation to the four student applicants, he is solely responsible for their “subsistence, education and medical”. In relation to the other two applicants, Mr Marke stated that they “are substantially dependent on the money I send them to survive”. Mr Marke provided various documents showing various transfers of funds to the applicants as well as birth certificates in respect of the applicants.
On 3 July 2009, the Department wrote to Mr Marke informing him that the applicants’ applications, included in his own application, for Class VE, subclass 175 Skilled – Independent visas had been refused. A copy of the decision of the decision maker dated, 3 July 2009, was enclosed with the Department’s letter.
The decision record correctly stated that the applicants must be members of Mr Marke’s family unit, pursuant to regulation 175.311 of the Migration Regulations 1994 (“the Regulations”).
Regulation 1.12 of the Regulations defines “Member of the family unit” relevantly, as follows:
“(1) For the definition of member of the family unit in subsection 5 (1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head ) if the person is:
…
(e) a relative of the family head or of a spouse or de facto partner of the family head who:
(i) does not have a spouse or de facto partner; and
(ii) is usually resident in the family head's household; and
(iii) is dependent on the family head.” [Emphasis added]
The decision maker found that the applicants did not meet regulation 1.12(e)(ii) of the Regulations and therefore were not members of the family unit of Mr Marke. Accordingly, they were refused Class VE, subclass 175 Skilled – Independent visas.
Whilst the decision maker gave a written decision, that decision does not contain the reasons why the decision maker concluded that the applicants did not meet regulation 1.12(e)(ii). However, because the applicants were not in the migration zone at the time the applications were considered and made, s.66(3) of the Act exempts the decision maker from the obligation of giving written reasons why the criterion was not satisfied.
The applicants’ solicitor, Mr Jones, appeared for the applicants at the proceeding before this Court.
Mr Jones confirmed that the applicants relied on the grounds of the application as follows:
“The delegate erred by misinterpreting the meaning of the expression “usually resident in the family head’s household” in Migration Regulation 1.12(e)(ii).”
At the heart of Mr Jones’ submission in support of the application to this Court for judicial review of the decision maker’s decision, was a submission that the decision maker had erred in reaching his decision by failing to consider whether or not the applicants were members of Mr Marke’s “household”. Mr Jones submitted that the Court should infer from the written requests made by the decision maker to Mr Marke for further information in respect of his English and evidence in respect of the dependency of the applicants, that the decision maker had regard only to the differing residential addresses of Mr Marke and the applicants in finding that the applicants are not usually resident in Mr Marke’s household.
Mr Jones submitted that it is possible to have more than one household, as it is to have more than one residence. Mr Jones submitted that persons who reside at different addresses, even if over a long period of time, can at the same time be members of the same household. Mr Jones submitted that it was open to the decision maker to find that Mr Marke was the head of the household of which the applicants were members and that the address of the applicants in Freetown was “a domestic establishment which included both the primary applicant (Mr Marke), as family head, and the secondary applicants.” Mr Jones submitted that a worker residing even for many years in a foreign country may nevertheless still belong to, and head, a household in his country of origin.
However, Mr Jones conceded that, beyond the money that Mr Marke periodically sent to the applicants, there was no evidence provided by Mr Marke to the Department as to whether or not Mr Marke was the head of a household of which the applicants were members; or the reason why he may be head of such a household.
True it is that the decision maker did not make any mention in the decision record of the notion of “household”. As stated above, Mr Jones submits that the Court should infer that the decision maker did not mention “household” because it equated household with residence; and, that, because the residential addresses of Mr Marke and the applicants differed, the Tribunal concluded that they were not members of the same household.
Counsel for the First Respondent, Mr Godwin, submitted that Mr Jones was asking the Court to speculate what may or may not have been in the mind of the decision maker. Mr Godwin submitted that where there was evidence and material before the decision maker to conclude that the applicants were not usually resident in Mr Marke’s household, and there was no evidence to suggest otherwise, it should not be inferred that the decision maker had not turned its mind to the broader meaning of “household” for the purposes of satisfying regulation 1.12(e)(ii).
Certainly, there is nothing in the decision record to support the conclusion that the decision maker considered whether Mr Marke could have a household in Sierra Leone and a household in London. Similarly, in my view, there is no reason to infer that the decision maker had not considered that Mr Marke’s household was in England, where he lives with his wife and child, and that the applicants did not make up another household, of which Mr Marke was head. Certainly, the applicants were not “usually resident” in Mr Marke’s household in England.
In my view, Mr Jones’ submission that the Court should draw the inference that the decision maker did not turn his mind to the notion of “household” simply because it asked the Applicant for additional information in respect of certain matters only, cannot be made out. Mr Jones conceded that there is no duty on the decision maker to make enquiries. It is for an applicant to satisfy the decision maker that the applicant meets the criteria required for the visa applied for (Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57]).
Having regard to the fact that Mr Marke has been resident in the United Kingdom since 1996 and continues to reside there with his wife and child, I readily infer that, on the balance of probabilities, the decision maker was of the view that Mr Marke’s household was in England. As stated above, plainly the applicants were not resident in that household headed by Mr Marke in England. In the circumstances, I do not infer that the Tribunal equated the notion of “household” with Mr Marke’s address in England.
Accordingly, the decision maker’s finding that the applicants were not usually resident in Mr Marke’s household was a finding of fact that was open to the decision maker on the evidence and material before him.
I accept that s.65 of the Act requires the decision maker to consider all of the criteria relating to the application whether or not s.66(2)(c) and s.66(3) apply. However I do not accept the applicants’ submission that, because the decision maker did not request further evidence on the question of residence of Mr Marke’s household, that it must be inferred that the decision maker considered the evidence in Mr Marke’s application forms to be sufficient to reach a conclusion on that point.
Accordingly, the decision maker’s decision is not affected by jurisdictional error. The application before this Court should be dismissed with costs.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 7 December 2009