Vyjantimala v Minister for Immigration
[2005] FMCA 1198
•28 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VYJANTIMALA v MINISTER FOR IMMIGRATION | [2005] FMCA 1198 |
| MIGRATION – Review of Migration Review Tribunal’s decision confirming a delegate’s refusal to grant a Family (Residence) (Class AO) visa – disputed findings of fact – no reviewable error found. |
Migration Regulations 1994
Migration Amendment Regulations (No 13) 1999
Disability Discrimination Act 1992
Jankovic v Minister for Immigration and Ethnic Affairs (1995) 56 FCR 474
Oldfield v Secretary, Department of Primary Industry (1988) 78 ALR 718
Bromby v Offenders’ Review Board (1990) 22 ALD 249 at 266-267
LisafaHoldings Pty Ltd v Gaming Tribunal (No 3) (1992) 26 NSWLR 391
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85
Re F: Litigants in Person Guidelines [2001] FLC 93-072
| Applicant: | VYJANTIMALA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG24 of 2004 |
| Delivered on: | 28 June 2005 |
| Delivered at: | Melbourne |
| Hearing date: | 28 June 2005 |
| Judgment of: | Walters FM |
REPRESENTATION
| Applicant | In Person |
| Counsel for the Respondent: | Mr Allanson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant do pay the respondent’s costs of the proceedings fixed in the sum of $3,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
SYG 24 of 2003
| VYJANTIMALA |
Applicant
And
| MINISTER FOR IMMIGRATION A& MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”) made on 21 November 2003. The Tribunal affirmed the decision of a delegate of the Minister to the effect that the applicant is not entitled to the grant of a Family (Residence) (Class AO) visa.
I accept the following statement of background facts and information contained in paragraphs 1 to 6 (inclusive) of the written submissions prepared by Mr Allanson on behalf of the respondent:
The issue
1.The applicant has 3 daughters. All were adult at the time of the MRT decision. None of them worked. The two older children did not work because the applicant had directed them not to. Were those children wholly or substantially dependent on the applicant for financial support, or were they “non-dependent” children.
The background
2.The applicant is a citizen of Fiji.
3.The issue arises on the application for the grant to her of a Family (Residence) class AO visa. The application was made on 22 May 1998. The applicant was sponsored by her brother, an Australian citizen. The relevant ground for the application was that the applicant was a remaining relative for the purposes of clause 806 (now repealed) of the Second Schedule to the Migration Regulations 1994. Criteria to be satisfied at the time of the application included clause 213, that the visa applicant is a remaining relative of the person who has nominated her. That criterion was required to be satisfied also at the time of the decision.
4.To be a remaining relative, the applicant was required to meet the definition in regulation 1.15. In particular, the applicant was disqualified if the applicant “usually resides in the same country, not being Australia, as an overseas near relative.” (reg 1.15(2)(i)). By reg 1.15(3) “overseas near relative” means a person who is:
(a) a parent, brother, sister or non-dependent child.[1]
5.Reg 1.03 at the relevant time[2] defined dependent and dependent child in these terms:
dependent, in relation to a person, means wholly or substantially dependent on another person for financial, psychological or physical support.
dependent child means the natural or adopted child of a person (other than a child who is a spouse or engaged to be married), being a child:
(a) who:
(i)has not turned 18; and
(ii)is wholly or substantially in the daily care and control of that person; or
[1] At the relevant time the term "non-dependent child" was not defined in the regulations. In Jankovic v Minister for Immigration and Ethnic Affairs (1995) 56 FCR 474, the Full Court held, that whether a child is a non-dependent child is determined by ascertaining whether he or she falls within the definition of "dependent child". If he or she did not then they are a "non-dependent child".
[2] The regulation was amended by Migration Amendment Regulations (No 13) 1999, No 259 of 1999, Schedule 2 items [2102] and [2103]. By reg 5, those amendments do not apply to an application made before 1 November 1999. By that same amendment, Part 806 was omitted from Schedule 2, but continued to apply to applications made before 1 November 1999.
(b) who:
(i)has turned 18; and
(ii) is dependent on that person; or
(c) who is wholly or substantially incapacitated for work because of a disability of a kind referred to in paragraphs (a) to (g) of the definition of disability in subsection 4 (1) of the Disability Discrimination Act 1992.
6.The applicant’s parents are dead and her siblings all live in Australia. She is divorced. The question was whether her three daughters, still resident in Fiji, were non-dependent children. The evidence on this issue, apart from what was said at the hearing, is found in the letter sent on behalf of the applicant to the tribunal in response to a notice under s359 …. The applicant claimed the children were dependent on the basis that female children stayed at home and were totally supported by their parents until marriage. The applicant said she supported her children financially. There was neither evidence nor a claim of physical or psychological support; rather the evidence was that the oldest daughter was responsible for her sisters in their mother’s absence.
I also accept the following summary of the Tribunal’s decision as contained in paragraphs 7 to 10 (inclusive) of Mr Allanson’s submissions:
7. There is no transcript of the hearing, although evidence and findings are set out at CB 117-118. The ultimate findings of the tribunal are set out at CB 119-120[45]. In particular the tribunal found at the third dot-point:
The visa applicant usually resides in the same country, not being Australia, as an overseas near relative.
8.The facts and findings are set out in more detail from CB 116. In particular, the tribunal sets out discrepancies in the applicant’s evidence about:
8.1 the rent paid for the house where her children lived;
8.2 how many bank accounts her daughters had in Fiji;
8.3 whether her children had always lived together and where they had lived; and
8.4 whether the second daughter had worked.
9 On the evidence the tribunal found:
9.1 the visa applicant usually resides in Fiji, the same country as her daughters;
9.2 the applicant’s evidence was unreliable and in conflict with independent objective evidence;
9.3 the applicant’s two older daughters (aged 27 and 23) had elected, at the request or direction of the applicant, to not work. The younger of the two had given up her employment at her mother’s request or direction.
10.On those findings the tribunal held that neither of the two older daughters could “lawfully claim” to be a dependent child of the applicant. Although the finding is expressed in these terms, it is in substance a finding of fact –the children were not dependent on the applicant for financial support because it was by their own choice, at the request or direction of the applicant, that they were not working.
The grounds of the application and discussion
Once again, I accept the following summary as contained in paragraphs 11 to 17 (inclusive) of Mr Allanson’s submissions:
11 The grounds of the application are expressed in general terms, with no particulars given to identify the errors alleged.
12.Ground A asserts breach of natural justice. The applicant has the onus to establish such a breach.[3] There is nothing to support this claim.
13.Ground B, D, and F claim that the tribunal applied the wrong principles of law to the facts (including a wrongful admission or rejection of evidence), improperly exercised its power, and that the decision was “otherwise contrary to law.” Again, there is nothing to support any of these grounds. The applicant identifies no error of law, and does not say what evidence was wrongly admitted or rejected. The finding that the applicant’s children did not work by choice, because she told them not to, is supported by the evidence set out at CB 117-118.
14.Ground C asserts error in acting or wrong principle. This ground contains some greater particularity in claiming failure to give enough weight to the applicant’s children who, it is said, are true dependents. There is, however, no question that the tribunal did have regard to the position of the children – indeed at CB 116[30] it states that whether they were and continue to be dependent children is the central issue in the case.
15.It found, however, as a fact that the two older daughters were not dependent. While they did not work, that was a matter of choice at the request of the applicant. Both had completed study, the oldest had been trained in office and computer skills and the second in fingernail treatments. The second had (on the evidence of the applicant’s sister) worked until her mother forced her to stop. There had been no claim presented of any other relevant dependence – physical or psychological.
16.The finding of the tribunal on this evidence is, in effect, that the older daughters are able to support themselves financially but have been told not to. They are not reliant on the applicant for financial support. That, if wrong, is an error of fact not law.
17.Ground E claims there was no evidence to justify the making of the decision. The evidence set out at CB 117-118, and the findings made on it, support the ultimate finding made.
[3] The applicant bears the onus of establishing the factual foundation for a claim of a breach of natural justice: see Oldfield v Secretary, Department of Primary Industry (1988) 78 ALR 718 at 721; Bromby v Offenders’ Review Board (1990) 22 ALD 249 at 266-267; LisafaHoldings Pty Ltd v Gaming Tribunal (No 3) (1992) 26 NSWLR 391 at 408-410; VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117.
The applicant is unrepresented
The applicant was not represented at the hearing before me. That being the case, I was conscious of the general principles governing the role of a judicial officer in proceedings involving an unrepresented litigant. In particular, I was conscious of the principles discussed in Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85 at paragraphs 26 to 29, including that –
a)a judicial officer should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation; and
b)notwithstanding (a) above, the boundaries of legitimate intervention are flexible, and will be influenced by the need for intervention to ensure a fair and just hearing.
I was also conscious of the guidelines set out (in the context of Family Law proceedings) in Re F: Litigants in Person Guidelines [2001] FLC 93-072. In particular, I did my best to ensure that procedural fairness was afforded to the applicant, and I attempted to clarify the substance of her submissions.
The applicant was present with an interpreter. Before hearing from the applicant in any formal sense, and having regard to the fact that she had not filed written submissions, I stood the matter down to enable the interpreter to translate Mr Allanson’s written submissions. The hearing did not recommence until I was satisfied that the applicant understood the nature of the proceedings in this court and the case that the respondent had made in answer to her application.
During the course of the hearing, I invited the applicant (through her interpreter) to put to me anything that might assist in identifying a legal – or, relevantly, a jurisdictional – error. Apart from reiterating her dispute with certain findings of fact made by the Tribunal, however, she was unable to expand upon the grounds contained in her application.
I gave the applicant a further opportunity to address me after Mr Allanson had summarised his submissions. The applicant’s interpreter was present at all relevant times, and everything that was said by either the Bench or Counsel was interpreted for the applicant. Similarly, everything that she had to say was duly interpreted.
Conclusion
I accept Mr Allanson’s submission that the applicant failed to identify any relevant error of law. The finding that the daughters are not dependant children was available on the material before the Tribunal, and there is no apparent error in reaching that finding. Further, once that finding was made, the two daughters must be considered to be overseas near relatives of the applicant, and the applicant was “disqualified” by Regulation 1.15(2).
In my opinion, it is apparent from an examination of the Tribunal’s decision that it gave careful consideration to the applicant’s assertions and concerns.
I have reread the Tribunal’s decision carefully. I am unable to identify any basis upon which the Tribunal’s decision can be interfered with. It acted in good faith, its decision is reasonably capable of reference to the power given to it, its decision relates to the subject matter of the legislation and there can be no suggestion that any relevant constitutional limits were exceeded.
Further, in my opinion there has been no apparent breach of procedural fairness which could amount to jurisdictional error.
The Tribunal conducted an objective inquiry into whether the conditions precedent for the grant of the visa applied for had been established. Its conduct of the inquiry was unexceptionable.
In my opinion, the findings of fact contained in the Tribunal’s decision, and the conclusions drawn from those findings, were reasonably open to it.
For the preceding reasons, the grounds for review (to the extent that they can be identified from the material now before the court) must fail, and the application must be dismissed with costs.
I, Barbara Mendleson, certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Walters FM
Associate:
Date: 23 August 2005
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