Thompson v Minister for Immigration
[2009] FMCA 1043
•28 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| THOMPSON v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1043 |
| MIGRATION – VISA – Extended Eligibility (Temporary) (Class TK) visa – review of Migration Review Tribunal decision – visa applicant a citizen of China – credibility – whether the Tribunal misconstrued the definitions of “dependent child” and “dependent” in Migration Regulations 1994 (Cth) regs.1.03 and 1.05A – whether the Tribunal failed to ask the correct question – whether the Tribunal misapplied Migration Regulations 1994 regs.1.03 and 1.05A – whether the Tribunal failed to take a relevant consideration into account – no jurisdictional error. WORDS & PHRASES – “Dependent” – “dependent child”. |
| Migration Act 1958 (Cth), ss.349, 359, 359A, 476 Migration Regulations 1994 (Cth) Reg.1.03, 1.05A, Schedule 2, Part 445 |
| SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 followed. Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 200 ALR 359 Huynh v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 576; [2006] FCAFC 122 followed SZMNF v Minister for Immigration and Citizenship [2008] FMCA 983 |
| Applicant: | BRIAN ROLAND THOMPSON |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1859 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 24 September 2009 |
| Date of Last Submission: | 24 September 2009 |
| Delivered at: | Sydney |
| Delivered on: | 28 October 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gormly |
| Solicitors for the Applicant: | Austin Haworth & Lexon Legal (Sydney) |
| Counsel for the Respondents: | Mr Smith |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $6500.00 and I allow 4 months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1859 of 2009
| BRIAN ROLAND THOMPSON |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application to review a decision of the Migration Review Tribunal that affirmed the decision not to grant the visa applicant an Extended Eligibility (Temporary) (Class TK) visa.
By an amended application filed on 10th September 2009 the applicant seeks the following orders:
a)A writ of certiorari quashing the Tribunal decision made on 1st July 2009;
b)A writ of mandamus ordering that the Applicant’s application for review of the delegate’s decision be heard and determined according to law by the Tribunal differently constituted;[1] and
c)Costs.
[1] The Full Court of the Federal Court has expressed doubt that this Court has the power, when making an order remitting a matter to the Tribunal, to order that the Tribunal be differently constituted (SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107)
Background
The visa applicant is Miss Piao Zhang, a citizen of China, who was born on 16th January 1985. She was born in Shanghai and currently resides there.[2] She is the daughter of Ms Jin Zhu Gu, who is married to the review applicant, Mr Thompson.
[2] Court Book at page 2
Ms Zhang was originally included in her mother’s application for a Partner visa in August 2007, but this application was later withdrawn.
This application was made on 12th January 2009. In a statutory declaration accompanying the application, Mr Thompson declared that he and his wife had decided that Ms Zhang should study hairdressing in Australia. To this end, Ms Zhang commenced working temporarily at a hairdressing salon in Shanghai. She was asked to leave after a few days and was not paid. After that employment ceased, the visa applicant returned to her studies at the Shanghai Mai Ke Ting International Commerce College. Mr Thompson declared:
Therefore, from the beginning to the end, my wife provides all the living expenses for her daughter, including food, clothes, accommodation and tuition fees.[3]
[3] Court Book at 29
The visa applicant attended an interview with a departmental officer at the Australian Consulate General in Shanghai on 25th February 2009.
The application for a visa was refused on 6th April 2009.[4] The delegate’s reasons were stated to be;
I am not satisfied that the applicant is a dependent of her visa holding parent. In her mother’s subclass 309 Spouse (Provisional) visa application, both the sponsor and the applicant’s mother stated that the applicant was in paid work and was not a dependent. A completed Form 47A supported these claims. As a result of these claims, the current applicant was found not to be a dependent of her mother. At no time during the processing of the applicant’s mother’s Subclass 309 Spouse (Provisional) visa application did the applicant’s mother or the sponsor try to correct these earlier claims. I find that the applicant fails to meet Regulation 1.05A(1)(a), and therefore fails to meet Regulation 445.222.[5]
[4] Confusingly, the letter advising the review applicant was dated “26 Novembre 2008.”
[5] Court Book 48
Application to the Migration Review Tribunal
On 8th April 2009 the review applicant applied to the Migration Review Tribunal for review of the delegate’s decision.
By a letter dated 7 May 2009, the Tribunal invited the review applicant to comment on or respond to information that the Tribunal considered would, subject to any comments or response he made, be the reason, or a part of the reason, for affirming the decision under review.
The particulars of the information were:
· The visa applicant stated that she was born on 16 January 1985.
· The visa applicant applied for the Extended Eligibility Class TK visa on 12 January 2009.
· When the visa applicant’s mother applied for a partner visa in August 2007 Ms Zhang was initially included in that application but later withdrew that application.
· Both the review applicant and Ms Gu said at an interview at the Australian High Commission in 2007 that Ms Zhang was working and Ms Zhang provided that same information.
The Tribunal’s letter went on to say:
This information is relevant because it may cause the Tribunal to reject the claim that Miss Zhang is a dependent child of Ms Gu. The Tribunal may then not be satisfied that the visa applicant meets cl.445.211 and cl.445.222 and she may not be entitled for the grant of the visa for which she had applied.[6]
[6] Court Book 75
The Tribunal’s letter invited the review applicant to provide further information, being:
· Evidence of the visa applicant’s expenses for food, clothing and shelter for a substantial period before the application was made and at present;
· Evidence of all money transfers or remittances from yourself to the visa applicant for a substantial period before the application was made and at present;
· A detailed statement from the visa applicant setting out all her income and expenses for a substantial period before the application was made and at present.[7]
[7] Court Book 76
The Tribunal’s letter was intended to comply with ss.359 and 359A of the Migration Act. The letter asked the review applicant to provide his comments or response by 4 June 2009. A copy of the text of Regulation 1.05A was attached to the letter.
The review applicant replied to that letter by an undated letter that refers in its text to “this day 7th May 2009”.[8]
[8] Court Book 78
The letter said (inter alia);
My wife received her visa to immigrate here in Nov 2007 and since then we have been sending $800 per month for all but one month when we sent $1,100 for our daughter to live on! IE pay rent, buy food and clothe herself, she does not have any employment in China…I feel that our daughter qualifies under Regulation 1.05A as she is not and has never been gainfully employed from the first time I met her in June 2007 until this day 7th May 2009.[9]
[9] Ibid
The Tribunal invited Mr Thompson to appear before it at a hearing on 26th May 2009. He attended the hearing, accompanied by his wife and his migration agent, Ms Amy Lee. Miss Zhang gave evidence by telephone from China with the assistance of a Mandarin interpreter. He provided to the Tribunal copies of various mail transfer documents showing regular transfers of money to Zhang Piao.[10]
[10] Court Book 90-105
He also provided documents in Chinese with English translations being:
a)A certificate from the Shanghai MKT International Business College stating that Ms Zhang was a full-time student there; and
b)A certificate from Shanghai Maxim Corporation saying:
This is to certify ZHANG Piao (female, born on 16th Jan. 1985) used to be employed at our company as a reception operator apprentice in August 2007. Through one week’s test, she could not reach the requirements of this position according to the agreement of the employment. The employment was ended without any condition. Through mutual agreement, during the period of her apprentice, our company only provide the food for her.[11]
[11] Court Book 106-107
The Tribunal invited the review applicant to attend a further hearing on 17th June 2009.[12] Again, the review applicant and his wife attended, accompanied by their migration agent. Ms Zhang gave evidence by telephone.[13]
[12] Court Book 112
[13] Court Book 121-123
The review applicant provided a statutory declaration to the Tribunal on the day of the hearing.[14] He also provided a document in Chinese with an English translation, headed “An Explanation Regarding the Information Given in Form 47A”. The author of the document described himself as Gu YuPing, the nephew of the review applicant’s wife, Gu Jin Zhu.
[14] Court Book 124-125
The Tribunal made its decision on 1st July 2009, affirming the decision not to grant the visa applicant an Extended Eligibility (Temporary) (Class TK) visa.
The Migration Review Tribunal Decision
The Tribunal stated that the issue was whether the visa applicant was a dependent child of the visa holding parent, her mother, both at the time of application and at the time of decision. The Tribunal stated:
The visa applicant argues that she is fully financial dependent on her mother. She provided to the Tribunal evidence of regular monetary transfers from the review applicant to her, for the period between January 2008 and May 2009. The Tribunal accepts, on the basis of this evidence, that the review applicant, or Ms Gu, had been providing funds to the visa applicant. However, the Tribunal must also consider whether the visa applicant is dependent on her mother and, in particular, whether her reliance on her mother for basic needs is greater than her reliance on any other source.[15]
[15] Court Book 148 at [61]
The Tribunal went on to find:
The Tribunal acknowledges that the mere fact of the visa applicant’s employment does not preclude her from being dependent on her mother. The Tribunal has considered the evidence relating to the regular transfers from the review applicant or his spouse to the visa applicant. The Tribunal accepts that the review applicant and his spouse had been sending between $800 and $1100 a month for the visa applicant’s expenses and the Tribunal also accepts that this amount was considerable greater than the amount of the visa applicant’s income from her employment. However, the issue before the Tribunal is not merely whether the support the visa applicant receives from her mother is greater than the support she has from other sources. Rather, the issue is whether the visa applicant is wholly or substantially reliant on her mother for her basic needs for food shelter and clothing. While the review applicant argues that the money sent to the visa applicant covers her rent, food and clothes, there is no probative evidence before the Tribunal that this is so. The visa applicant and Ms Gu had indicated that the visa applicant pays RMB 1000 a month in rent and RMB 1500 for other expenses but no probative documentary evidence has been provided to the Tribunal in support of these claims. The Tribunal is not satisfied that the visa applicant and the review applicant have been truthful in their evidence to the Tribunal and the Tribunal does not accept their assertion that the funds transferred by the review applicant or by Ms Gu covered the visa applicant’s rent, clothing and food. There is little other probative evidence before the Tribunal concerning the nature of the visa applicant’s dependency on her mother.
The Tribunal is not satisfied, on the limited evidence before it, that the visa applicant was wholly or substantially reliant on her mother for financial support to meet her basic needs for food, clothing and shelter either at the time of application or for a substantial period before that time. It follows that the Tribunal is not satisfied that the visa applicant was, at the time of the application, a dependent child of her mother, the visa-holding parent. The Tribunal is not satisfied that the applicant meets cl.445.211(a) and cl. 425.211.[16]
[16] Court Book 149-150 at [65]-[66]
The Tribunal affirmed the delegate’s decision not to grant the visa.
Application for Judicial Review
The Applicant applied to this Court on 4th august 2009 for review of the Tribunal’s decision. The grounds of review are set out in the amended application filed on 10th September 2009. The Applicant claims that the decision of the Tribunal was affected by jurisdictional error in two ways:
i)Ground 1 – The Tribunal misconstrued the definitions of “dependent child” and “dependent’ in regs.1.03 and 1.05A Migration Regulations 1994 (the Regulations) respectively.
ii)Ground 2 – The Tribunal failed to ask itself the correct question concerning the said definitions of “dependent child” and “dependent’ and as a result misapplied regs.1.03 and 1.05A of the Regulations.
iii)The Tribunal failed to make findings on or take into account the following relevant considerations in deciding visa eligibility.
The particulars of the first two grounds are:
a)The issue before the Tribunal was whether the visa applicant was a “dependent child” as that term was defined in the Regulations;
b)A “dependent child” who is over 18 years is defined in reg.1.03 (at sub paragraph (b)(i) of the definition) as one who is “dependent” on another person as that term is defined in reg.1.05A. In this case, the visa applicant’s mother is the relevant other person as “a visa holding parent”;
c)Reg.1.05A provides that one person is “dependent” on another when that person “has been for a substantial period”…”wholly or substantially reliant on the other person for financial support” to meet basic needs and this reliance was greater than any other reliance to meet the same needs;
d)The Tribunal found the visa applicant received amounts from her mother and the review applicant for her living expenses which were considerably greater than amounts the visa applicant received from her employment;
e)The Tribunal nevertheless went on to misconstrue the word “reliant” as if it had the same ordinary meaning as the word “dependent”, thereby implying an additional requirement of necessity to “reliant” as that word is used in reg.1.05A;
f)As a result the Tribunal misapplied reg.1.05A and asked itself the wrong question: whether the visa applicant was a dependent child with the ordinary implication of necessity, rather than whether the visa applicant was “dependent” within the meaning of reg.1.05A, i.e. without the implication of necessity;
g)In so misapplying reg.1.05A and asking itself the wrong question, the Tribunal took into account an irrelevant consideration by requiring proof that the visa holder show that her mother’s financial support “covered” the visa applicant’s basic needs over the visa applicant’s ability to meet those costs from her own income;
h)The Tribunal also asked itself the wrong question by saying that “the issue before the Tribunal is not merely whether the support the (visa) applicant receives from her mother is greater than the support she has from other sources” and then interpreting the issue of reliance in terms of dependence in its ordinary meaning.
The particulars of the applicant’s third ground are that the Tribunal failed to take into account evidence of the length of time that the visa applicant received financial support from her mother.
The Applicant’s Submissions
Counsel for the Applicant, Mr Gormly, submitted that, whilst the Applicant did not admit the truth of the Tribunal’s finding that the information in the form 47A accurately reflected the visa applicant’s circumstances in November 2007, that she was working and receiving 450 Yuan per week, even so, that finding does not render the application before the Court futile, even if a similar finding were to be made by another Tribunal upon remittal. More important, he submitted, is the Tribunal’s acceptance that the review applicant and the visa applicant’s mother sent her $800.00 to $1,100.00 per month for expenses, which amount was considerably greater than the income she received from her employment.[17]
[17] Court Book 149 at [65]
The submission is that the Tribunal fell into jurisdictional error by misconstruing regulations 1.03 and 1.05A. This is a failure to exercise jurisdiction, which is a jurisdictional error (Lobo v Minister for Immigration and Multicultural and Indigenous Affairs[18]at [43] and [62]).
[18] (2003) 200 ALR 359
The proper construction of regulations 1.03 and 1.05A was decided by the Full Court of the Federal Court in Huynh v Minister for Immigration and Multicultural and Indigenous Affairs[19]. In that decision, Lander and Rares JJ held:
There is no apparent reason why an implication of the existence of a need, as opposed to an objective state of affairs, that the child be reliant on the parent should be made when the legislation remains silent on the point…[20]
In our opinion, the words of the Regulations, on their proper construction do not carry with them any implication of there being a necessity to provide relevant support by the parent for the child to qualify as “a dependent child”…[21]
The question which the Regulations require to be addressed is in our opinion simply whether the child is, as a matter of fact, relying for support, rather than, having to rely for support…[22]
[19] (2006) 152 FCR 576; [2006] FCAFC 122
[20] (2006) 152 FCR 576; [2006] FCAFC 122 at [33]
[21] (2006) 152 FCR 576; [2006] FCAFC 122 at [39]
[22] (2006) 152 FCR 576; [2006] FCAFC 122 at [44]
Mr Gormly submitted that this finding by the Tribunal satisfies the reliance tests in reg. 1.05A(a)(i) and (ii):
The Tribunal accepts that the review applicant and his spouse had been sending between $800 and $1100 a month for the visa applicant’s expenses and the Tribunal also accepts that that this amount was considerably greater than the amount of the visa applicant’s income from her employment.[23]
[23] Court Book 149 at [65]
However, he submitted that the Tribunal went on to qualify the test by saying:
However, the issue before the Tribunal is not merely whether the support the visa applicant receives from her mother is greater than the support she has from other sources. Rather, the issue is whether the visa applicant is wholly or substantially reliant on her mother for her basic needs for food shelter and clothing.[24]
[24] Ibid
The submission is that the Tribunal is investing the word “reliance” with meanings of necessity, equating “reliant on” with the ordinary meaning of dependence and, in so doing, is misconstruing the meaning of “dependent” as defined in the Regulations.
Mr Gormly further submitted that the Tribunal appears to have followed the instruction in the Department’s PAM3 at 7.3, which imports considerations of necessity to the degree of reliance in the sense rejected by the Full Court in Huynh.[25] He referred to the decision of Smith FM in SZMNF v Minister for Immigration and Citizenship[26] where his Honour (following Huynh) said at [9]:
…the concept of ‘reliant upon’ in reg 1.05A(1) does not carry implications of necessity requiring that the dependent must “have a lack of choice” as to his or her need for financial support…
[25] supra
[26] [2008] FMCA 983
As to Ground 3 of the Applicant’s amended application, Mr Gormly submitted that, because of its erroneous formulation of the issue, the Tribunal did not consider and made no finding on whether the period of the mother’s financial support was a “substantial period” within the meaning of reg.1.05A(1)(a)(i).
The First Respondent’s Submissions
Counsel for the First Respondent, the Minister for Immigration and Citizenship, submitted that the critical issue before the Tribunal was whether the visa applicant was a “dependent child” of her mother within the meaning of regulation 1.03. To meet the definition of “dependent” in regulation 1.05A, the visa applicant had to show that she was:
a)Wholly or substantially reliant on her mother for financial support to meet her basic needs for food clothing, clothing and shelter; and
b)Her reliance on her mother was greater than any reliance by her on any other person, or source of support, for financial support to meet her basic needs for food, clothing and shelter.
Whilst the Applicant argued that the Tribunal proceeded on the basis that the word “reliant” in regulation 1.05A imports a notion of necessity, relying on the decision of the Full Court in Huynh, that case is authority for the proposition that the regulations do not require a child to have a lack of choice before he or she can be said to be reliant.[27] Counsel for the Minister submitted that the question posed is whether, as a matter of fact, the child relies on his or her parent for financial support for basic needs.
[27] (2006) 152 FCR 576; [2006] FCAFC 122 at [43]
In this case, it was submitted, the Tribunal was not satisfied that, as a matter of fact, the visa applicant was wholly or substantially reliant on her mother for financial support for her basic needs. This conclusion was not arrived at because the Tribunal found that the visa applicant could have supported herself but chose not to, but because it found that the visa applicant was working and earning money, and it was satisfied that this money did not meet her basic needs. The Tribunal found that that the visa applicant, her mother, and the review applicant had lied and it did not believe their evidence. Thus, counsel for the Minister,
Mr Smith, submitted that the Tribunal had addressed the correct question and did not fall into jurisdictional error.
Mr Smith asked the Court to find that, in respect of the Tribunal’s decision, it did not rely on PAM3, because it made no reference to that document at all. In any event, he submitted that PAM3 is not incorrect.
As to the Applicant’s Ground 3, that the Tribunal did not consider evidence of the length of time the visa applicant received support from her mother, Mr Smith submitted that the Applicant’s written submissions put the ground differently, that the Tribunal did not consider whether the mother’s financial support was for a substantial period of time. The Tribunal expressly addressed this question, stating that there was no relevant reliance either at the time of the application or for a substantial period before that time.
As Mr Smith submitted, once it is accepted that the Tribunal properly understood the requirement of reliance in fact rather than out of necessity, the Applicant’s third ground must fail.
The Relevant Law
There was at the time of application for the visa only one subclass for the Extended Eligibility (Temporary) (Class TK) visa – Subclass 445 Dependent Child visa. The criteria for a Subclass 445 visa are set out in Part 445 of Schedule 2 to the Migration Regulations. At the time of application, the visa applicant must be a dependent child of an Australian citizen, the holder of a permanent visa or an eligible New Zealand citizen, who has not turned 25 years of age.
The term “dependent child” is defined in reg.1.03:
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.
The word “dependent” is defined in reg.1.05A:
(1)Subject to subregulation (2), a person (the “first person”) is dependent on another person if:
(a)at the time when it is necessary to establish whether the first person is dependent on the other person:
(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or
(b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.
Conclusions
The Tribunal in this matter correctly stated that the issue was whether the visa applicant was a dependent child of her mother, the visa holding parent.[28]
[28] Court Book 139 at [13]
The decision of the Full Court of the Federal Court in Huynh makes it clear that the words of the Regulations do not carry with them any implication that there is a necessity for the parent to provide the child with financial support in order for the child to be a “dependent child” within the meaning of the Regulations. What is necessary to be shown is that the child is in fact reliant on the parent for financial support for his or her basic needs:
There is no apparent reason why an implication of the existence of a need, as opposed to an objective state of affairs, that the child be reliant on the parent should be made when the legislation remains silent on the point.[29]
[29] (2006) 152 FCR 576; [2006] FCAFC 122 per Lander and Rares JJ at [33]
Lander and Rares JJ also said at [43] and [44]:
By leaving the question of dependence or reliance to be a question of fact untrammelled by the implication of the notion of necessity, the Regulations will be able to be interpreted across the broad range of circumstances to which they relate. In our opinion on their proper construction it is not the case that the child must have a lack of choice before he or she can be said to be wholly or substantially dependent or reliant on the parent for the relevant support.
…The question which the Regulations require to be addressed is in our opinion simply whether the child is, as a matter of fact, relying for support, rather than, having to rely for support (emphasis added).[30]
[30] (2006) 152 FCR 576; [2006] FCAFC 122 at [43]-[44]
Besanko J in that same decision agreed that the appeal should be allowed, saying:
I agree that the concept of necessity should not be imported into the definition of “dependent’ and “dependent child” in regs 1.03 and 1.05A of the Migration Regulations 1994 (Cth).[31]
[31] (2006) 152 FCR 576; [2006] FCAFC 122 at [47]
His Honour also said at [53]:
Subject to the other requirements of the present regulations, there is no need to prove more than reliance in fact.[32]
[32] (2006) 152 FCR 576; [2006] FCAFC 122 at [53]
The Tribunal accepted that the review applicant or the visa applicant’s mother had been providing funds to the visa applicant and said (correctly):
However, the Tribunal must also consider whether the visa applicant is dependent on her mother and, in particular, whether her reliance on her mother for basic needs is greater than her reliance on any other source.[33]
[33] Court Book 148 at [61]
The Tribunal also found that the issue was not merely whether the support the visa applicant received from her mother was more than she received from other sources, but whether the visa applicant was “wholly or substantially reliant on her mother for her basic needs for food shelter and clothing”.[34] In the end, the Tribunal was not satisfied that this had been proved. The Tribunal found that there was no probative evidence that the money sent by the mother covered the visa applicant’s rent, food and clothes. The Tribunal was not satisfied that the visa applicant and the review applicant had been truthful in their evidence and so it did not accept their assertions that the funds transferred to the visa applicant covered the visa applicant’s rent, clothing and food.
[34] Court Book 149 at [65]
This was a factual finding and it was one that was open for the Tribunal to make on the evidence before it. Incidentally, the adverse credibility finding made by the Tribunal appears only to have been made against the review applicant and the visa applicant.
The Tribunal understood that what had to be shown was that the visa applicant was in fact reliant on her mother and/or the review applicant. Consequently, it did not misconstrue reg.1.03 or 1.05A. It made a factual finding that the visa applicant was working and was therefore in receipt of income.
The Applicant’s grounds of review have not been made out. As to the Applicant’s Ground 3, the Tribunal did make a finding that it was not satisfied on the evidence before it:
…that the visa applicant was wholly or substantially reliant on her mother for financial support to meet her basic needs for food, shelter and clothing either at the time of the application or for a substantial period before that time.[35]
[35] Court Book 150 at [66]
Thus Ground 3 has not been made out.
All three of the Applicant’s grounds of review have not been made out. The Applicant has not demonstrated jurisdictional error on the part of the Tribunal. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision and is not subject to orders in the nature of certiorari or mandamus (Migration Act, s.474)
The application will be dismissed with costs.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 26 October 2009
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