TOPORKOV v Minister for Immigration
[2003] FMCA 211
•30 May 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TOPORKOV & ANOR v MINISTER FOR IMMIGRATION | [2003] FMCA 211 |
| MIGRATION – Review of decision of the Migration Review Tribunal application for Family Residence class AO visa, subclass 806 – criteria at time of application – not satisfied – application dismissed. |
Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth)
Migration Regulations 1994
Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473
Craig v South Australia [1995] 184 CLR 163
Minister for Immigration & Multicultural & Indigenous Affairs v Yusef (2001) 180 ALR 1 at 21
S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Minister for Immigration &Multicultural Affairs v Eshetu (1999) 197 CLR 611
Narayan v Minister for Immigration & Multicultural Affairs (2001) FCA 789
Koulaxazov v Minister for Immigration & Multicultural Affairs (2002) FCA 554
Chow v Minister for Immigration & Multicultural Affairs (2003) FCAFC 88
| Applicant: | BORIS TOPORKOV NINA TOPORKOV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 941 of 2002 |
| Orders made: | 30 May 2003 |
| Delivered at: | Melbourne |
| Hearing Date: | 20 May 2003 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicants: | Mr T. Hurley |
| Solicitors for the Applicants: | Armstrong Ross |
| Counsel for the Respondent: | Mr W. Mosley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDER
The Court orders that:
The application is dismissed.
The applicant pay the respondent's costs pursuant to the Federal Magistrates Court Rules 2001 Part 21 Rule 21.10.
It is certified that pursuant to Rule 21.15 of the Federal Magistrates Court Rules2001 this matter reasonably required the attendance of counsel as advocate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 1197 of 2002
| BORIS TOPORKOV & NINA TOPORKOV |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicants filed an application to review a decision of the Migration Review Tribunal (“MRT”) under s.39B of the Judiciary Act 1903 (Cth) and Part 8 of the Migration Act 1958 (Cth) (“the Act”), such application being filed on 17 September 2002. The applicants sought orders in the nature of prohibition, mandamus and certiorari claiming the decision of the MRT was infected by jurisdictional errors as set out in paragraph 3 of the application as follows:
“(3) …
(a)The MRT did not make a bona fide attempt to exercise their power. In particular the delegate was conferred with the task of assessing the applicant’s claims against the regulation 1.03(a) but failed to discharge this obligation by failing to consider whether the applicant fell within the definition of ‘special need relative, namely did the evidence establish a permanent or long term need for assistance because of ‘prolonged illness’ or ‘serious circumstances’ affecting the citizen or resident personally, or a member of his or her family unit.
(b)The MRT erred in law in failing to properly apply the criterion in Clause 806.213 of the Regulations because in considering whether the applicant as a visa applicant satisfied the criterion as at the date of application on 13 December 1996 the MRT erred in limiting its enquiry to the whole of the definition of regulation 1.03 rather than determining that the circumstances were such that the nominator had a ‘prolonged illness’ or a ‘serious circumstance’. The MRT must address each aspect of the definition when considering whether the visa applicant is a Special Need Relative.
(c)The MRT erred in law in not considering the term ‘other serious circumstances in paragraph (a) of the definition of ‘special need relative’ in Regulation 1.03 of the Migration Regulations (1994) by failing to determine whether the nature of the need for assistance was ‘serious’.”
History
The firstnamed applicant (“the visa applicant”) is a 66 year old citizen of Ukraine. The secondnamed applicant (“the visa applicant’s wife”) is a 59 year old citizen of Ukraine and is the spouse of the visa applicant. On 15 September 1996 the applicants entered Australia. On entry, they were the holders of Short Stay (Visitor) (Class TR) subclass 676 visas which were valid for 3 months.
On 13 December 1996 the visa applicant applied for a Family (Residence) (Class AO) subclass 806 – Family (Special Need Relative) visa. The visa applicant claimed that he was a ‘special need relative’ in relation to his daughter, Inga Meerovych. The visa applicant’s wife was included in the application as a family member (CB5-19).
Inga Meerovych is a 36 year old Australian permanent resident ordinarily resident in Australia who entered Australia from the Ukraine on 27 September 1994 with her husband and daughter who are now aged 45 and 16 respectively. On 22 June 2000 Mrs Meerovych gave birth to twin daughters. Mrs Meerovych nominated the visa applicant as a special need relative (CB16-19). The nomination included the visa applicant’s wife as a member of the family unit of the visa applicant.
In his application of December 1996, the visa applicant stated that he assisted his daughter to face strong depression and psychological pain by providing emotional, physical and psychological support (CB15).
Ms Miriam Orlansky (a social worker with the Jewish Community Services) by report of 22 March 2001 stated that the nominator had required 24-hour supervision and support following the birth of her twins and that such support was not available from other sources. She gave a like report on 30 November 2001 (CB77, 78). The nominator’s family doctor (Dr Vasily Lebeden) by report dated 19 March 2001 outlined the nominator’s health issues (CB38, 39).
Further medical reports were provided by Dr Kopp of 20 March 2001 (CB37) and Dr Michael Levenda of 7 March 2001 (CB40).
A clinical psychologist (E. Kleynhans) provided reports of 2 April 2001 (CB43-51) and a further report of 8 January 2002 (erroneously dated 8 January 2001) (CB79-85).
The visa applicant outlined, by letter dated 28 March 2001 the assistance that he was able to provide the nominator (CB41-42).
On 20 July 2001 a delegate of the respondent refused to grant the visa (CB52-62). Application for review of that decision was made to the MRT on 9 August 2001.
The MRT conducted a hearing on 16 January 2002. On 22 August 2002 it affirmed the decision under review (Supp CB4-13). Evidence was given at that hearing by the applicants, the nominator and Mr Kleynhans.
Legislative scheme
The criteria for the grant of a subclass 806 visa were set out in Part 806 of Schedule 2 to the Regulations. Part 806 was repealed by SR 259 of 1999 reg 4 and Sch 2. The criteria in force at the date of the application (including the definition of ‘special need relative’) continue to apply to the application: Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at 478-480, per McHugh J. The criteria included criteria to be satisfied both at time of application and at time of decision. One of the criteria to be satisfied at time of application for the grant of a subclass 806 visa is cl 806.213, which required that a visa applicant is a special need relative of another person who has nominated the visa applicant for the grant of the visa. Clause 806.221 provided that a visa applicant must continue to satisfy cl 806.213 at time of decision. Clause 806.213 provided:
“806.213
The applicant is an aged dependent relative, an orphan relative, a remaining relative or a special need relative of another person who:
(a)is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and
(b)is usually resident in Australia; and
(c)has nominated the applicant for the grant of the visa.”
Regulation 1.03 defined the expression ‘special need relative’:
“special need relative, in relation to an Australia citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or an eligible New Zealand citizen, means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:
(a)the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and
(b)the assistance cannot reasonably be obtained from:
(i)any other relative of the citizen or resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or
(ii)welfare, hospital, nursing or community services in Australia.”
The MRT’s decision is a ‘privative clause decision’ within s.474(2) of the Act.
The phrase ‘privative clause decision’ in s.474(1) is defined in s.474(2) so as to mean, relevantly, a “decision … made under this Act”. A decision will not be regarded as made under the Act if it involves a failure to exercise jurisdiction or an excess of jurisdiction. An administrative tribunal exceeds its power and thus commits a jurisdictional error if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material. Or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power (Craig v South Australia [1995] 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This list is not exhaustive. Those different kinds of error may well overlap (see Minister for Immigration & Multicultural & Indigenous Affairs v Yusef (2001) 180 ALR 1 at 21). Whatever the scope or extent of jurisdictional error of law I must determine the matter in accordance with the law as set out in S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.
The Migration Review Tribunal hearing
The Tribunal found the nominator was an Australian permanent resident at the time of the application and daughter of the applicants. This satisfied the definition of ‘relative’ prescribed by the Migration Regulations 1994 (Cth) and the requirement for the nominator to be ‘usually resident in Australia’ as required by Regulation 806.213.
The Tribunal accepted that the nominator suffered from endometriosis and from stress related to her inability to conceive a second child, which caused her to develop anxiety, depression and constant migraines. The Tribunal noted that there was reference to these conditions developing during the five years from 1995 although the evidence did not establish for the Tribunal whether all conditions were all present at the time of application, nor did it establish the extent to which they were present at time of application. The Tribunal found, consequently, that the type of assistance needed at time of application was not clear, apart from three operations on dates not revealed on the abdomen due to the endometriosis which followed and medication to stabilise the other conditions. The Tribunal referred to the Procedures Advice Manual which advised that companionship in the absence of other factors was not regarded as constituting a permanent or long-term need. The Tribunal noted that the nominator was working part-time from 1995 through until her pregnancy (with the twins) (CB011).
The Tribunal concluded that although the nominator had a need for long-term assistance following the birth of the twins in June 2000 she did not have a permanent or long-term need for assistance at the time of application.
The Tribunal then considered that even had it found to the contrary that the nominator did have such a need for assistance because of disability, prolonged illness or other serious illness at the time of application, the visa applicant and his wife had shortly after arrival applied for permission to work and as a consequence the visa applicant had been in full-time employment since February 1997. Thus the Tribunal was not satisfied that at the time of application the visa applicant was both willing and able to provide substantial and continuing assistance to the nominator. Even had the Tribunal been so satisfied, it went on to say that it was not satisfied that the assistance needed at the time of application could not reasonably have been obtained from a combination of the nominator’s husband and daughter or from welfare, hospital, nursing or community services in Australia (CB012).
The MRT determined there was no need to consider whether the visa applicant satisfied the criteria necessary at time of decision given its conclusion as to matters at the time of application.
Consideration
The MRT considered the evidence adduced in support of the applicant’s claim. Amongst that evidence was the nominator’s own evidence as follows:
“The nominator said that she requires moral and physical support, having two small children and being unable to lift things because of her back problem since after the labour. She said that she attends Dr Lebedev every week and either drives herself or a friend drives her for appointments. When asked if she attends any other doctors or professionals she said that she also sees Mr Kleynhans twice a month and then corrected this to once in two months. She said that her mother helps her with anything physical. She said that she can cook but it is difficult to mind the children. She said that she has a back problem and numbness in the arm. She said that her husband and the visa applicant do the shopping. When asked for how long she has been in her current condition she said mainly since giving birth
Whether or not the Tribunal was able to be satisfied that the visa applicant was a ‘special need relative’ involved a question of fact for the Tribunal to determine and not for this Court provided only that it approached such process correctly as a matter of law.
It was clearly open on the evidence before it, including that of the nominator above, for the Tribunal to find that at the time of application the nominator did not have a permanent or long-term need for assistance because of identified medical conditions. As the applicants concede, there was no direct evidence as to the circumstances of the nominator on the date of the application being 5 December 1996. It was also open, on the evidence before the Tribunal, to conclude that to the extent the nominator may have required any such assistance it was able to be provided by the husband, her daughter or from welfare, hospital, nursing or community services in Australia, none of whom (external agencies) were ever approached by the nominator (CB009).
Counsel for the applicants submitted to the Court that as the nominator suffered from endometriosis and as a consequence between 1995 and pregnancy had 3 operations, “logic would indicate that she was in the first year of a five year problem and that problem would be significant”. These were matters solely for the Tribunal and within its jurisdiction. It cannot be said that the satisfaction of the Tribunal was based on findings or inferences of fact not supported by some probative material or logical grounds [Gummow J in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at (145)]. It has not been established by the applicants that the Tribunal’s conclusions were manifestly unreasonable. Such an assertion as to what logic might dictate is a request to review the merits. Likewise is the assertion by the applicants that “if the nominator underwent surgery she may be expected to have a ‘special need’”. This is also speculative and in the nature of a review of the merits of the case.
If the MRT construed the definition of ‘special needs relative’ as incapable of applying to a person whose principal need is emotional support then that construction would constitute an error of law. However, it did not do so. The MRT’s noting of the content of the Procedures Advice Manual is included in many MRT decisions. It was referred to in the context of the applicants claim of the provision of emotional support for the nominator. Its inclusion is referrable to an awareness by the Tribunal that it could depart from policy if there were cogent reasons for doing so (CB005), see Narayan v Minister for Immigration & Multicultural Affairs (2001) FCA 789 (53-54). It is not essential for the Tribunal to set out in its reasons why it has determined that there are no cogent reasons for departure from policy as a specific matter to be addressed as seemingly required by the submissions made on behalf of the applicants. It is implicit in the Tribunal’s reasons as a whole and on a fair reading of such reasons that it accorded the policy its proper weight and did not find any cogent reasons to depart from policy.
The applicants claimed that the evidence before the MRT focused on the circumstances of the nominator in 2000-2001. It must be remembered that this was the evidence provided by the applicants. The applicants contend the MRT should have requested specific information as to the circumstances of the nominator in 1996. In particular, that she had a permanent or long-term need for assistance. There is no requirement in the Act compelling the Tribunal to do so. It was a matter for the applicants to adduce evidence in support of the claim that they satisfied the relevant criteria for the grant of the visa. In particular, but not addressed by them, the matters pertaining to the nominator’s circumstances at the time of application which satisfied the definition of ‘special need relative’. It is the Tribunal’s function to then determine, on the material before it, whether that claim is made out. The Tribunal did so after a proper consideration of the material placed before it. The applicants claimed that the MRT should have first considered whether ‘death, disability, prolonged illness or other serious circumstances’ was applicable to the nominator before proceeding to a consideration of ‘permanent or long-term need for assistance’. That in failing to do so, the MRT committed jurisdictional error. This is clearly not supportable. The Tribunal was required to consider whether the nominator had a ‘permanent or long-term need for assistance’ and then to inquire into the cause of the need. The MRT did so [see Koulaxazov v Minister for Immigration & Multicultural Affairs (2002) FCA 554, O’Loughlin J (paragraph 20); and Chow v Minister for Immigration & Multicultural Affairs (2003) FCAFC 88 (paragraph 23)].
I accept Counsel for the respondent’s submission that having found that the nominator did not have a permanent or long-term need for assistance at the date of application, it was not strictly necessary for the Tribunal to consider other aspects of the definition at all (Koulaxazov v Minister for Immigration & Multicultural Affairs (2002) FCA 554 para 25). The Tribunal however did so. The Tribunal’s findings were findings of fact open to it on the material before it – that material relating generally to the period past the birth of the nominator’s twins in June 2000.
There is no demonstrable error of law on the part of the MRT such as to vitiate its decision. I shall dismiss the application.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: L.M.Dorian
Date: 30 May 2003
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