Tumelty v Minister for Immigration
[2004] FMCA 139
•5 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TUMELTY v MINISTER FOR IMMIGRATION | [2004] FMCA 139 |
| MIGRATION – Review of MRT decision – where applicant 89-year-old UK citizen applying for a Returning Resident’s visa – where applicant’s son is an Australian citizen and applicant has no living relatives in the UK – where applicant resided in Australia for 25 years – where applicant left Australia at wife’s insistence to keep his marriage together – where Tribunal did not consider this to be a compelling reason for the applicant’s prolonged absence from Australia – whether Tribunal misconstrued the meaning of the regulation and thus fell into jurisdictional error – whether Tribunal reached a decision based on non-existent facts – where Minister encouraged to exercise her discretion. |
Re MIMA; Ex parte Cohen (2001) 177 ALR 473
NAMF v MIMIA [2004] FCA 189
WAAF v MIMIA [2003] FCAFC 316
| Applicant: | ERIC DUNCAN TUMELTY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 614 of 2003 |
| Delivered on: | 5 March 2004 |
| Delivered at: | Sydney |
| Hearing date: | 5 March 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Craddock Murray Neumann |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
The applicant to pay the respondent's costs assessed in the sum of $2000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 603 of 2003
| ERIC DUNCAN TUMELTY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant in this case is a man of 89 years of age. He is a citizen of the United Kingdom. He was born on 24 February 1915. In 1941 he married Ms Vivien Burnett. They had a son Stewart who was born in 1948. In 1952, doubtless enticed by the newspaper advertisements and newsreel excerpts that were common in those days and having just recovered from one of the most severe winters known in the United Kingdom, he migrated to Australia where he joined the Postmaster- General’s Department. Twenty-six years later he retired at the age of 63.
Unfortunately for Mr Tumelty, like many members of his generation he did not obtain Australian citizenship. He remained at all times what is now known as a permanent resident.
In about 1977 Mrs Tumelty decided to return to the United Kingdom to visit her relatives. Mr Tumelty went with her and returned to Australia to complete matters before his retirement. Mrs Tumelty returned by ship. There was apparently an incident in the Port of Perth relating to her ability to land in Australia. This upset Mrs Tumelty who decided then and there that she wished to return to the United Kingdom. She informed her husband and it would appear made it clear to him that if he wished their marriage to continue (by then it had been going some 37 years) he would also have to return to the United Kingdom. Mr Tumelty reluctantly agreed. He settled his affairs in Australia and moved.
Mr and Mrs Tumelty left behind their son Stewart who became an Australian citizen in 1981.
In the intervening years Mr and Mrs Tumelty returned to Australia for short periods. They did this in 1988, 1993 and 1997. In 2001 Mrs Tumelty died. Mr Tumelty was left in the United Kingdom with no relations and as a man of approximately 87 years of age.
Not unnaturally, Mr Tumelty turned to his son who offered him the opportunity to come and live back in Australia, the country Mr Tumelty had voluntarily emigrated to, had served faithfully as an officer in the Australian Public Service and to which he contributed as a member of the community and a taxpayer.
Mr Tumelty arrived in Australia with a visitor’s visa. The son and he made application for a resident return visa which is found in the migration regulations, schedule 2, Part 155. This application was made on 18 January 2002. The provisions for a grant of that visa require the applicant to be a former Australian permanent resident and to meet the requirements of subclauses (2) (3) (3A) of regulation 155.212(1). Subclause (3A) says that the applicant meets the requirements of the subclause if the applicant is in Australia and the Minister is satisfied that the applicant
(a)Has substantial business cultural employment or personal ties with Australia which are of benefit to Australia; and
(b)Has not been absent from Australia for a continuous period of five years or more since
(i)The date of grant of the applicant's most recent permanent visa unless there are compelling reasons for the absence. (emphasis added)
A delegate of the Minister who decided the first application took the view that Mr Tumelty's return to the United Kingdom in order to save his marriage of 37 years was not a compelling reason and so he sought review from the Migration Review Tribunal. The Tribunal offered Mr Tumelty the opportunity to appear before it and he was represented by a migration agent. His son gave evidence.
The Tribunal was able to find that Mr Tumelty complied with the requirement of subclause 155.21 (3A)(a) in that he had substantial personal ties with Australia which were of benefit to this country. But it was not so sanguine about his having compelling reasons for having remained outside it.
At paragraph 26 of its decision at [CB 87] the Tribunal says:
“The terms "compelling" is not defined in the legislation. The Macquarie Dictionary (Third Edition) defines the word "compel" to mean: to force or drive, especially to a course of action; to secure or bring about by force.”
Policy examples of compelling reasons set out in MSI356 include, but are not limited to:
“...severe illness or death of an overseas family member; the applicant or the applicant’s accompanying family members have acute medical conditions requiring the treatment and preventing travel; the applicant has been involved in legal proceedings such as a sale of property, custody or contractual obligations and the timing was beyond the applicant's control; or the applicant has been caught up in a natural disaster, political uprising or other similar events beyond their control (MSI356).”
MSI356 also states:
4.4.29: applicants who meet the substantial ties requirements but have been absent from Australia for more than five years must have compelling reasons for their absence. There is no limit on how long a person may be outside Australia, but it is expected that it will become increasingly difficulty for clients to maintain eligibility over an extended period of time.
4.4.30: the actual assessment of compelling reasons for absence varies according to whether the applicant is applying in Australia or overseas.
The Tribunal accepted the applicant's reason for his leaving Australia and that he would have preferred to remain here. At paragraph 27 of its reasons it states:
“The issue for the Tribunal is whether the visa applicant's desire to continue in his long-standing relationship with his wife is a "compelling" reason for the visa applicant's absence from Australia. The policy examples convey the sense of a lack of choice as to whether an applicant returns to Australia, and of events being beyond the applicant's control. Mr Stewart Tumelty stated that the visa applicant needed the strong organising presence of his late wife, and the Tribunal accepts that the visa applicant and his wife have a long and close relationship. On balance, however, the Tribunal is not satisfied that the visa applicant's circumstances had that element of lack of complete control over the events that is common in the policy examples set out above and suggested by the dictionary meaning of the word "compelling".
...the Tribunal is not satisfied that the visa applicant had compelling reasons for his absence from Australia, and he does not satisfy subclause 155.212(3A).”
Mr Karp seeks review of that decision of the Tribunal on the basis that the Tribunal misconstrued the meaning of the regulation. He says that this occurred firstly because the Tribunal defined "compelling" through the definition of the word "compel" and did not define "compelling" itself. Mr Karp has produced an extract from the New Oxford Dictionary of English which has a definition of "compelling", it being an adjective evoking interest, attention or admiration in a powerfully irresistible way. It is also defined as, "not able to be refuted; inspiring conviction; not able to be resisted; overwhelming".
Mr Karp said that what the Tribunal did was really to define the policy examples and to utilise those in its decision as to whether or not the applicant came within the meaning. He says that by doing that the Tribunal misconstrued the meaning of the regulation, which he believed added very much more subjective focus so that one looked at the reasons from the point of view of the applicant as opposed to making some objective decision as to whether what the applicant did constituted a compelling reason.
I am unable to accept Mr Karp's interpretation. Whilst I think that the Tribunal could have defined "compelling" in a manner less forceful, I take the view that to the extent that it fell into error in this manner, the error was not a jurisdictional one. In Re MIMA; Ex parte Cohen (2001) 177 ALR 473 at [35] McHugh J says:
“The Tribunal understood the question that it had to answer. Even if it applied an erroneous precedent, it did not commit a jurisdictional error. The expressions, "disability" and "other serious circumstances" were used in regulation 1.03 in their ordinary, non-technical sense. The ordinary meaning or common understanding of a non-technical word is generally a question of fact. Leaving aside questions of jurisdictional fact, an administrative Tribunal will ordinarily not commit a jurisdictional error unless it has made an error of law. A factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact. Courts should be slow to find that an erroneous finding of fact, or an error of reasoning in finding a fact, made in the course of making a decision demonstrates that and an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.”
I am of the view that the Tribunal clearly understood the task that was before it. It made a decision, which Mr Karp does not suggest was made other than in good faith, based upon its views as to the importance of the preservation of a 37 year old marriage. It is not for this court to intervene in such a decision.
Mr Karp also raises an interesting point concerning the Tribunal's use of the words "on balance" in the extract from paragraph 27 set out above. Mr Karp argues that there are no facts which are being weighed in the balance referred to by the Tribunal because all the facts which the Tribunal had to consider were found in favour of the applicant. I am afraid that I do not read the Tribunal's decision in quite that way. I think that the Tribunal was balancing whether or not the facts, which it had found, were sufficient to fall within the definition of compelling facts. It might also be referring discretely to the one particular fact that the applicant “needed the strong organising presence of his late wife” and whether that constituted a compelling reason. Whatever the answer might be I do not think that the use of the word indicates that the Tribunal came to a decision based upon non-existent facts, which is what Mr Karp would wish me to believe.
If the circumstances which I have just set out are distressing and disturbing they are more than adequately trumped by a second decision of the Tribunal which, I have to say, cannot be faulted in law. It would appear that Mr Tumelty could have been entitled to obtain residence in this country as a dependent relative. The Tribunal found that Mr Tumelty satisfied all the criteria for this visa but one. That criteria was the criteria of indigence. It would appear that because Mr Tumelty is the beneficiary of Commonwealth of Australia superannuation and a United Kingdom pension and because he has at least £7801.71 in the bank he is a person who is not able to comply with the criteria of a dependent relative.
Section 417 Migration Act gives the Minister power to substitute a more favourable decision for the decision of the Tribunal if she should so wish. The Minister is frequently asked to undertake this course on what is described as “compassionate grounds”. Compassionate grounds might well include what appears to be a harsh or oppressive decision forced upon a Tribunal or a delegate by the wording of the regulations which are otherwise made for the benefit of all Australians and those wishing to come to our shores. The Minister may well consider that if ever there was a case in which she should utilise her powers this might be it. She may feel that it would be an appropriate indication of her compassion to prevent an 89 year old man from being forced to return to the United Kingdom where he has no relations and no support when in this country he has his only son and can live here on his Australian public service superannuation and United Kingdom Government pension without requiring any social security assistance. I do not make this as a recommendation because I am sensible of the injunction imposed upon that course of action by Beaumont J in NAMF v MIMIA [2004] FCA 189 on appeal from a judgment of this court and therefore binding. However, I do note that in WAAF v MIMIA [2003] FCAFC 316 a Full Bench of the Federal Court said at [35]:
“However, this Court shares the concern of the learned Magistrate that in the present case, the process may have miscarried, having regard to the additional material which has been placed before the Magistrate and before this Court. As noted above, this is material that could substantiate the appellant’s case. However, due to a combination of circumstances, and apparent communication difficulties, the material did not come to the attention of the RRT. This is not a case where an applicant has suggested that time is required to obtain the material that would be of doubtful assistance to the appellant. In this case, the material is clearly relevant and important. This is a circumstance in which it is appropriate for the Minister to consider the exercise of the discretion under s 417 of the Act to substitute a more favourable decision.”
I dismiss the application. I order that the applicant pay the respondent's costs which are assessed in the sum of $2000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrate’s Court Rules.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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