Wei v Minister for Immigration
[2004] FMCA 1106
•30 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WEI v MINISTER FOR IMMIGRATION | [2004] FMCA 1106 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a current Child (Residence) (Class BT) visa. |
Migration Act 1958 (Cth), s.575A
Prahalapan v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FMCA 731
| Applicant: | FU JING WEI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 1282 of 2004 |
| Delivered on: | 30 November 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 30 November 2004 |
| Judgment of: | Riethmuller FM |
REPRESENTATION
| Counsel for the Applicant: | No appearance |
| Counsel for the Respondent: | Mr Wee |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant do pay the respondent’s costs fixed in the sum of $2,600.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1282 of 2004
| FU JING WEI |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision under the Migration Act by the applicant.
A history of the matter and the issues is set out in the affidavit of Mr Brereton filed on 24 November 2004 by the Minister in the following terms:
2. The applicant is a citizen of the Peoples’ Republic of China who arrived in Australia on a subclass 672 Visitor visa on 9 October 1995. The applicant applied for a protection visa on 16 July 2001 and this application was refused on 23 October 200t Now produced, shown to me and marked MJB-1 is a copy of the protection visa application.
3. The applicant applied to the Refugee Review Tribunal in respect of this refusal. The Refugee Review Tribunal affirmed the decision on 9 May 2002. Now produced, shown to me and marked MJB-2 is a copy of the decision of the Refugee Review Tribunal.
4. As the applicant has been refused a protection visa, section 48 of the Migration Act 1958 (the Act) prevents the applicant from applying for further visas other than those prescribed in Regulation 2.12 of the Migration Regulations 1994 (the Regulations).
5. The applicant applied for the current Child (Residence) (Class BT) visa on 20 April 2004. The application did not contain any sponsorship application, a necessary criterion for the grant of the visa. Now produced, shown to me and marked MJB-3 is a copy of the application for the current visa dated 20 April 2004.
6. On 20 April 2004 the application was refused by a delegate of the Respondent. Now produced, shown to me and marked MJB-4 is a copy of the Decision Record dated 20 April 2004.
7. On 18 May 2004 the Migration Review Tribunal received an Application for Review in respect of the decision of the delegate dated 20 April 2004. Now produced, shown to me and marked MJB-5 is a copy of the Application for review to the Migration Review Tribunal.
8. On 9 September 2004 the Migration Review Tribunal affirmed the refusal to grant the applicant the visa sought. Now produced, shown to me and marked
MJB-6 is a copy of the Migration Review Tribunal Decision Record dated 9 September 2004.
The Visa Conditions
9. The conditions relating to the grant of the subclass 802 (Child) visa are contained in Schedule 2 to the Regulations. Now produced, shown to me and marked MJB-7 is a copy of Clause 802 to the Regulations as at 20 April 2004.
10. As section 48 of the Act applied to the applicant, paragraph 802.211(d) of the Regulations requires that the applicant has become a dependant child of an Australian citizen, the holder of a permanent visa or art eligible New Zealand citizen since last applying for a substantive visa.
11. ‘Dependant child” is defined in Regulation 1.03 to mean the natural, adopted or step child of a person who (as relevant here) has turned 18 and is dependant on that person or is incapacitated for work due to the total or partial loss of bodily or mental functions. Now produced, shown to me and marked MJB-8 is a copy of Regulation 1.03 as at 20 April 2004.
12. At the time of the application the applicant was 61 years old. In her previous applications she had indicated that her mother was deceased and her father was resident in China. There was no claim made that she was dependant on any person in Australia, or that she was incapacitated for work in any way.
13 The applicant must also satisfy sub-paragraph 802.214(1)(a). To satisfy this sub paragraph an applicant over the age of 18 cannot be engaged to be married, married or previously married. The applicant has indicated in her previous applications that she is married.
14 The applicant must also satisfy clause 802.215 which provides that an applicant for this subclass be sponsored by an Australian citizen, permanent resident or eligible New Zealand citizen. There was no sponsorship lodged in support of the visa application.
15.The applicant made no claims in respect of the other subclass in this category, subclass 837 (Orphan Relative). In any event the evidence provided by the applicant was that her father is still alive and living in China, and there was no sponsorship lodged in support of the visa application.
The Minister asked that the matter be summarily dismissed on the basis that the case is hopeless. The Minister points out that it is hopeless for three specific reasons:
i)The applicant is not a dependent child in that she is not a person under 18 years of age, nor is she a person who has turned 18 and is dependent upon another due to incapacity for work or loss of bodily or mental functions. The applicant is in fact a 61‑year‑old woman who looks young for her age and comes before the court without apparent disability;
ii)The minister points out that the applicant is not able to fulfil another visa criteria for a child visa, namely that she not have been married or previously married, and in this case she was previously married;
iii)That the applicant for the child visa must have a sponsor. In this case there is no sponsorship.
It has been made clear by the Federal Magistrates Court in a decision of Prahalapan v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FMCA 731 where Bennett FM pointed out that there is no point remitting matters that are futile or hopeless. Her Honour there gives a good summary of the relevant authorities at paragraphs 44 to 47 in the following terms:
44.It is submitted by the respondent that there is a general principle of law that, notwithstanding that a ground for review of an administrative decision maker’s decision may be demonstrated, the Court has a discretion to refuse to grant relief if the applicant for review is unable to show there would be any utility in an order directing that the Tribunal carry out the review proceeding again. Any discretion must be exercised judicially and with care.
45.In Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 at 213-214 Justice Merkel considered whether or not the Court should remit proceedings back to the (then) Immigration Review Tribunal. His Honour approved of the decision of Justice Sackville in Rahim v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 223 at 238 that it was a proper exercise of the discretion conferred by s481(1) (as it then existed) in the Migration Act 1958 (Cth) to decline to grant relief and to affirm a decision of the Tribunal, notwithstanding that it has erred in law, if the Tribunal’s findings of fact preclude the applicant from satisfying the criteria upon which the fate of the application depends (see too Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Toohey and Gaudron JJ at 384).
46.More recently, in S115/00A v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 180 ALR 561, Justice Finn usefully summarised some of the case law in relation to futility. At [26] His Honour said:
“It can, of course, be a proper exercise of the discretion conferred on this Court by s 481(1) of the Act, to decline to grant relief and to affirm a Tribunal decision notwithstanding an error infecting it, where it would be futile to remit the matter to the Tribunal for reconsideration: Rahim v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 223 at 238. Illustrative of circumstances where the “futility principle” may properly be applied are (i) where notwithstanding the Tribunal’s error, the decision arrived at was clearly correct on the material before it: see Morales v Minister for Immigration and Ethnic Affairs (1998) 88 FCR 206 at 213-214; see also Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 301. But where it is possible for reasons of change of mind, reappraisal of the evidence, or otherwise that a different result could ensue, the Court should be slow to exercise its discretion to shut an applicant out of relief on the basis of futility: Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540.”
47.Although in Rahim, Nguyen and S115/00A related to s.481(1) (which is no longer in the Migration Act) the principles enunciated in the cases remain apposite. In Nguyen (supra), Justice Merkel noted at 213-214 that even without a provision such as s.481(1) there is a discretion in the Court to decline to grant relief if the administrate body on the remitter would be “bound in law” to arrive at the same decision, as the case that could be put for any other decision was “hopeless”. Certainly the principles enunciated in the above cases are not confined to migration cases. They apply to all matters of judicial review (see for example: Peacock v Human Rights & Equal Opportunity Commission [2002] FCA 984 at [29] where the Court adopted referred to Finn J in S115/00A (supra)).
In this case it appears abundantly clear that the applicant's case is hopeless and that she can never succeed before the Tribunal. It makes the judicial review proceedings pointless. It is appropriate in these circumstances that I dismiss the application.
I therefore dismiss the applicant's application. I order that the applicant pay the respondent's costs fixed at $2600.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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