Tuiloma v Minister for Immigration

[2006] FMCA 1537

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TUILOMA v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1537

MIGRATION – Review of Migration Review Tribunal decision – refusal of a special needs relative visa – sponsor the applicant’s cousin but presented as her “sister” – applicant not meeting visa criteria – no reviewable error by Tribunal – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)

Applicant: SEINI TUBUINASEA TUILOMA

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG2145 of 2006

Judgment of: Driver FM

Hearing date: 16 October 2006

Delivered at: Sydney

Delivered on: 16 October 2006

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Ms Z McDonald
Phillips Fox

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, including any reserved costs, fixed in the sum of $1,900.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2145 of 2006

SEINI TUBUINASEA TUILOMA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application for an order to show cause why relief should not be granted in relation to a decision of the Migration Review Tribunal (“the Tribunal”).  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Change in Circumstances (Residence) (Class AG) visa, commonly known as a Special Needs Relative Visa.  The decision was signed in July 2006 on some unspecified date but was notified to the applicant by letter dated 28 July 2006.

2. These proceedings began with a show cause application filed on 4 August 2006. I accept that the application was filed within time. That application takes issue with the merits of the Tribunal decision but does not on its face assert any jurisdictional error. With that in mind when this matter first came before me on 4 September 2006 I made orders for the filing of additional material and listed the matter for a hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) today.

3. Ms Tuiloma continues to rely upon her application as filed but has augmented it with two affidavits.  The first, filed on 28 September 2006, asserts that her cousin Theresa Begg should properly be regarded as her sister and she seeks the opportunity to remain in this country permanently.  The second affidavit annexes a substantial number of expressions of support from a range of people.  Ms Tuiloma was unsuccessful before the Tribunal because her nominator, Ms Theresa Begg, was her cousin rather than her sister.  The presiding member said on page 110 of the court book:

   The visa application was made on the basis that the visa applicant is the ‘special need relative’ of her nominator (Ms Theresa Begg) who she claimed in the application was her sister. 

   One necessary criterion for a Subclass 806 (Family) visa is that the applicant satisfies the definition of “relative” in Regulation 1.03. 

   The Tribunal has discovered during oral evidence at the hearing that the applicant’s nominator is not her sister but, in fact, is her cousin.  ‘Cousin’ is not contained in the definition of ‘relative’ or ‘close relative’ in Regulation 1.03.  Therefore, the applicant cannot satisfy the requirements of ‘relative’ for any of the Family visa categories where it is a prerequisite that she be required to be a ‘relative’ of her nominator.  She does not, therefore, satisfy Subclass 806.

   It is plain on the face of the Tribunal decision that it was on that basis of reasoning that the Tribunal decision was made.

4. This afternoon the applicant, Ms Tuiloma, appeared without the benefit of a Fijian interpreter.  The interpreter who had been booked failed to attend.  Ms Tuiloma agreed to me proceeding with the hearing without the interpreter.  I was able to satisfy myself that her English is quite good.  She explained to me that there is nothing for her to return to in Fiji, that she has been in this country for 11 years and that she would like to remain here permanently.  She has a useful skill as an assistant nurse and she evidently has significant support within the community, as is evidenced by the expressions of support annexed to her second affidavit.

5. There may well be some alternative basis upon which Ms Tuiloma may apply for permanent residence in Australia, or at least an extended period of residence.  That is something on which she would be well advised to seek advice either from a migration agent of from the Minister’s Department.  If she has skills of value to this country she might qualify for some category of employment visa.  However, I can see no basis upon which she could qualify for the class of visa she applied for which was considered by the Tribunal.

6. It is, I understand, common in Melanesia for the daughter of the sibling of one’s parent to be referred to as one’s sister or cousin‑sister.  I am satisfied that Ms Tuiloma was not being dishonest in describing her nominator as her sister in her visa application.  However, under Australian law a cousin-sister is not a sister but is, rather, a cousin and there was no basis upon which Ms Tuiloma’s cousin could be accepted as her nominator under the relevant regulation.  Ms Tuiloma therefore did not qualify for the visa she was seeking and both the delegate and the Tribunal correctly applied the relevant criteria.

7. I find that the application before the Court does not disclose an arguable case and the application will therefore be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules and I so order.

8. Costs should follow the event in this case.  The Minister seeks an order for costs fixed in the sum of $1,900.  Under the Court scale of costs, costs would normally be $2,500 at this stage of a migration hearing.  The Minister properly seeks a lesser amount. 

9. Ms Tuiloma was concerned about her capacity to pay and sought to explore the possibility of paying by instalments.  That is a matter that she can discuss with the Minister’s lawyers or the Department. 
   I accept that costs of not less than $1,900 have been properly and reasonably incurred on behalf of the Minister to this point.  I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, including any reserved costs, fixed in the sum of $1,900.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  24 October 2006