Vu v Minister for Immigration
[2018] FCCA 3308
•2 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VU & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3308 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for an aged parent visa – Delegate of the Minister for Immigration refused - Migration Act 1958 (Cth) required applicant for review to Administrative Appeals Tribunal to be the aged mother applicant and not the sponsor son – application to Tribunal made by sponsor son – son made application on basis of incorrect advice by Department of the Minister for Immigration – application for judicial review of Administrative Appeals Tribunal decision that it did not have jurisdiction –application for review to Administrative Appeals Tribunal not properly made and not a valid application and Administrative Appeals Tribunal did not have jurisdiction and was correct to so find – unfortunate circumstances and recommended that Minister for Immigration consider position – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.338, 347, 353 Migration Regulations 1994 (Cth) |
| Cases cited: Basbas v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1602 Le v Minister for Immigration and Border Protection [2017] FCCA 2680 |
| First Applicant: | MANH TUAN VU |
| Second Applicant: | THI LIEN NGUYEN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3157 of 2017 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 2 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 2 November 2018 |
REPRESENTATION
| Counsel for the Applicants: | Ms E. Anang |
| Solicitors for the Applicants: | Christopher Levingston & Associates |
| Counsel for the First Respondent: | Ms B. Rayment |
| Solicitors for the First Respondent: | Sparke Helmore |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 12 October 2017 is dismissed.
The Applicants are to pay the First Respondent’s costs of the proceeding in the sum of $5,000.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicants have up to and including 17 December 2018 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3157 of 2017
| MANH TUAN VU |
First Applicant
THI LIEN NGUYEN
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction
This case, unfortunately, has on the face of it a number of regrettable circumstances.
The Second Applicant is a female citizen of Vietnam aged 73 years, having been born on 30 August 1945.
The First Applicant is her adult son, who was the sponsor of the Second Applicant’s application for a Contributory Aged Parent (Residence) (Class DG) (Subclass 864) Migrant visa (Aged Parent visa) for which application was made on 5 May 2016 by the Second Applicant in Australia.
By Application filed in this Court on 12 October 2017, the Applicants seek to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 8 September 2017 that the merits review application lodged with the Tribunal on 10 April 2017 from the Decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 20 March 2017 refusing to grant to the Second Applicant the Aged Parent visa was not properly made, and therefore the Tribunal had no jurisdiction to review the Delegate’s adverse decision.
It is common ground that the Delegate’s decision to refuse the Aged Parent visa was a Part 5-reviewable decision under s.338(2) of the Migration Act 1958 (Cth) (the Act) in that the Aged Parent visa was applied for by the Second Applicant and that it could only be applied for while the Second Applicant was on-shore in Australia being the migration zone, as she was; and she had been immigration cleared, as she was; and s.338(2)(d) of the Act did not apply, which was the case because the Aged Parent visa application did not require an approved sponsor.
Decision of Delegate
By the Decision Record of the Delegate, the Delegate found that at the time of decision, the Second Applicant did not satisfy cl.864.224 of Sch.2 to the Migration Regulations 1994 (Cth) (Regulations) and Public Interest Criterion (PIC) 4005 of Sch.4 to the Regulations because a Medical Officer of the Commonwealth had assessed the Second Applicant as “not meeting the health requirements”, in that a hypothetical person with a disease or condition at the same severity as the Second Applicant would be likely to require health care or community services permanently and the provision of these services would be likely to result in a significant cost to the Australian community in the areas of health care and / or community services. The Delegate therefore refused to grant the Aged Parent visa to the Second Applicant.
At the hearing this morning Ms Anang appeared for the Applicants and Ms Rayment appeared on behalf of the First Respondent. It is probably strictly irrelevant but Ms Anang, on the face of it, offered reasonably persuasive reasons for the decisions of the Delegate having suffered from jurisdictional error in that PIC 4005 was not, in truth and in fact, applicable to the Second Applicant’s Aged Parent visa application but rather that the appropriate PIC was 4007, which contained, as PIC 4005 did not, a waiver provision which could potentially have been availed of by the Second Applicant.
Decision of Tribunal
Unfortunately for the Applicants the application for review lodged with the Tribunal on 10 April 2017 was not in the name of and by the Second Applicant mother, but in the name of and by the First Applicant son.
When one looks at the merits review application form itself, one sees clearly that the details of the person applying for review are clearly those of the First Applicant son in that first, his name is given as the applicant for review, and it is stated that the sponsor is an Australian citizen or permanent resident, which was not the case, as I understand it, with respect to the Second Applicant mother. Further, the date of birth given is presumably the date of birth of the First Applicant son, because it certainly is not the date of birth of the Second Applicant: see [2] above. Further, the gender is given as male and to cap it off, the capacity to apply for review is stated to be that of “sponsor or nominator”.
So it seems to me clear beyond doubt, that the applicant for review to the Tribunal was clearly that of the First Applicant son and not the Second Applicant mother. What has transpired this morning at the hearing is that rather than this mistake being the result of some error of the Applicants themselves or their migration agent, Mr Rodney Dale Godkin, it would seem that this mistake has been engendered by an email dated 20 March 2017 from someone in the Parent Visa Centre in the Department of the Minister which specifically noted that no further assessment of the Aged Parent visa could be taken by the Department, but that:
Your sponsor is entitled to apply for review of this decision to the tribunal within 70 days of the date of the letter.
It is true that the standard form notification of refusal letter, also dated 20 March 2017, sets out properly and correctly that the application is to be by the applicant for the visa, which would be the Second Applicant. Nevertheless, one would normally expect greater weight to be given by the Applicants and their migration agent to the specific email advice of 20 March 2017 to which I have referred and I infer and find that it was that email which engendered the statement and belief of the Applicants’ migration agent expressed in his email of 21 April 2017 to the Tribunal that:
The applicant and the sponsor were under the understanding that an appeal of the decision had to be made by the sponsor.
The Decision Record of the Tribunal finds that the application for review was not properly made and was not a valid application and that, therefore, the Tribunal did not have jurisdiction in the matter. Notwithstanding what appears to be, on the face of it, the unfortunate circumstances of this case, I consider that the decision of the Tribunal was correct and that it was a decision which the Tribunal was bound to come to.
The simple fact of the matter is that s.347(2)(a) of the Act provides that an application for review may only be made by the non-citizen who is the subject of that decision. That clearly was the Second Applicant mother in this proceeding and not the First Applicant son.
Ms Anang has put everything that could be said in support of the Application to this Court. She relies in particular on s.353 of the Act, but in my view she puts too heavy a burden on that section. True it is that s.353 provides that the Tribunal is not bound by technicalities, legal forms or the rules of evidence and shall act according to substantial justice and the merits of each case, but that does not negate or undermine sections of the Act which preclude the Tribunal from having jurisdiction, and in my view, s.347(2) is plain in its terms and is intractable and means what it says, that is, that in the circumstances only the Second Applicant to this proceeding could apply for review to the Tribunal.
My view in that regard is supported by at least two decisions. First, in Basbas v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1602, Gray J, in the Federal Court of Australia, in a slightly different context and obiter, said this:
Section 347(2) of the Migration Act specified the persons who could make application to the Tribunal for review of various kinds of decisions. By a combination of section 347(2)(a) and s 338(2), only Mr Basbas could apply to the Tribunal in respect of a decision refusing him a visa of the kind he sought.
His Honour went on to point out that:
Section 347(2) makes express provision for application to the Tribunal by persons other than the person applying for the visa, in the case of certain kinds of visas.
Whilst that passage from his Honour’s judgment is strictly obiter, I consider that it accurately states the law. Further, in support of her submission that the Tribunal has not been guilty of jurisdictional error in finding that it did not have jurisdiction, Ms Rayment relies on the decision of a Judge of this Court, namely Judge Vasta in the case of Le v Minister for Immigration and Border Protection [2017] FCCA 2680 and that case does, indeed, support the view of the effect of s.347(2) of the Act that I have myself independently come to.
Conclusion
Accordingly, in my view the decision of the Tribunal was correct and unfortunately in the circumstances of this case I have to find that the Application to this Court is to be dismissed. I would urge the Minister to consider any other avenue available which would have the effect of overcoming what appears to have been, no doubt inadvertently, incorrect advice given by his Department to the Applicant.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 26 November 2018
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