Youssef v Minister for Immigration - [2003] FMCA 221

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YOUSSEF v MINISTER FOR IMMIGRATION [2003] FMCA 221

MIGRATION – Review of decision of the Migration Review Tribunal application for Family Residence Class AO visa subclass 806 – application dismissed.
Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth)
MIEA v Wu Shan Liang (1996)
Narayan v Minister for Immigration & Multicultural & Indigenous Affairs (2001) FCA 1745
Minister for Immigration & Multicultural Affairs; Ex parte Cohen (2001)
Junv Minister for Immigration & Multicultural & Indigenous Affairs (2000)

Applicant: FARAJ MAROUN YOUSSEF

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MZ 659 of 2002

Orders made: 4 June 2003

Delivered at: Melbourne

Hearing Date: 21 May 2003

Judgment of: Hartnett FM
REPRESENTATION

Counsel for the Applicant: Mr J. Gibson

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondent: Mr C. Fairfield

Solicitors for the Respondent: Clayton Utz
ORDER
The Court orders that:
(1)The application is dismissed.
(2)The applicant pay the respondent's costs pursuant to the Federal Magistrates Court Rules 2001 Part 21 Rule 21.10.
(3)It is certified that pursuant to Rule 21.15 of the Federal Magistrates Court Rules2001 this matter reasonably required the attendance of counsel as advocate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE
MZ 659 of 2002

FARAJ MAROUN YOUSSEF
Applicant
And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Respondent
REASONS FOR JUDGMENT

This matter was transferred by order of Sundberg J on the 4 July 2002 from the Federal Court of Australia to this court.
On 12 June 2002 the applicant filed an application for review under Part 8 of the Migration Act 1958 (Cth) (the Act) and Section 39B of the Judiciary Act 1903. The application sought writs of prohibition and certiorari and for injunction and a declaration, in respect of a decision made by the Migration Review Tribunal dated the 16 May 2002 refusing the applicant a Family (Residence) Class AO) subclass 806 visa.
History
The applicant, a male national of Lebanon, now aged 38 years, entered Australia on 19 December 1995 as the holder of a subclass 676 Tourist (Short Stay) visa valid until 19 March 1996. The applicant subsequently obtained extension on his visa valid until 18 December 1996.
On 18 December 1996, he applied for a Family (Residence) (Class AO) visa, subclass 806 (CB 1-15). His application was made on the basis that he is the ‘special need relative’ of his sister Josephine Nasr (“the nominator”), who at all relevant times was an Australian citizen. She and her husband and four adult children are all Australian citizens.
On 25 July 2001, a delegate of the respondent refused to grant the subclass 806 visa (CB 68-77), and by application received on 16 August 2001, the applicant sought review of that decision before the Migration Review Tribunal (“MRT”) (CB 78-82).
The applicant provided written material in support of his application. He also attended a hearing before the MRT on 23 April 2002 at which he gave evidence. Evidence was also given…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] FMCA 221
Decision Date: 4 June 2003

CaseChat Overview and Summary

The case of Youssef v Minister for Immigration involved the applicant, Youssef, contesting a decision by the Minister for Immigration to refuse his application for a partner visa. The nature of the dispute centred on the applicant's claim that he provided substantial and continuing assistance to his partner, who suffered from a prolonged illness. The matter was heard in the Federal Magistrates Court of Australia. The court was tasked with determining whether the Minister's decision was legally sound and whether the applicant's claims of providing substantial and continuing assistance to his partner were substantiated.

The central legal issues before the court were whether the Minister's decision was based on a lawful consideration of the relevant criteria and whether the Tribunal had correctly interpreted and applied the provisions of the Migration Regulations. Specifically, the court needed to examine if the Tribunal properly assessed whether the applicant's assistance to his partner was substantial and continuing, and if the Tribunal's findings were supported by the evidence provided. The court also needed to determine if the Tribunal correctly interpreted the concept of "substantial and continuing assistance" and whether the applicant's assistance was unique in a way that could not be reasonably provided by others.

The court found that the Tribunal had correctly assessed the applicant's claims and the evidence presented. It was determined that the Tribunal's findings were well-reasoned and supported by the evidence, particularly regarding the nature and extent of the assistance provided by the applicant. The Tribunal had correctly considered the availability of alternative sources of assistance, such as family members and community services, and had concluded that the applicant's assistance did not meet the threshold of "substantial and continuing assistance" required under the regulations. The court upheld the Minister's decision, finding that the Tribunal's decision-making process was lawful and that the Minister's refusal of the visa application was justified.

In conclusion, the court dismissed the applicant's appeal against the Minister's decision. The court ordered that the applicant pay the respondent's costs in accordance with the relevant provisions of the law. This outcome upheld the integrity of the visa assessment process and reinforced the importance of demonstrating a unique and irreplaceable role in providing substantial and continuing assistance to a partner with a prolonged illness.

Orders

Orders of the court

(1) The application is dismissed.

(2) The applicant pay the respondent's costs pursuant to the

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I shall dismiss the application.I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Hartnett FMAssociate: T A JonesDate: 2 June 2003

Ratio Decidendi

Legal Principle Established

The MRT found:-a)the nominator was an Australian citizen and relative of the visa applicant as defined in Reg 1.03;b)the nominator suffered from a prolonged illness by reason of her suffering from depression associated with significant Diabetes Mellitus and high blood pressure and obesity (CB 154);c)the visa applicant assisted with household chores and provided emotional support. Not only did such assistance, in the opinion of the Tribunal, not meet the definition but the Tribunal considered that assistance could reasonably be provided by (others) (CB 156);d)the assistance provided by the visa applicant to the nominator was not ‘substantial and continuing assistance’;e)the assistance provided by the visa applicant could reasonably be obtained together by family members of the nominator supplemented by the use of community services and resources. The Tribunal noted that both the nominator and her husband had been assessed by Health Services Australia as capable of part-time light work and whilst they each asserted they were not capable of such work there was no medical evidence before the Tribunal to contradict the assessment of Health Services Australia (CB 156);f)the four adult children of the nominator all lived at home and it was reasonable to expect them to provide assistance to the nominator. In addition, the Tribunal found that there were a wide range of services available that could assist the nominator including community, welfare and medical services. The Tribunal noted the claim made by the visa applicant and nominator that welfare agencies could not provide the care needed but said that such statement was not supported by the evidence. I note that earlier reference that the nominator, on her own evidence, had not sought help from groups like the Lebanese Welfare Association nor from welfare or community services (CB 152);g)While the assistance of the visa applicant was obviously helpful to the nominator and a preferred source of support, especially emotional support it had not been made clear that family members or a community services could not provide assistance (CB 156).Consideration The MRT did not state in its reasons a concise finding that the nominator had a permanent or long-term need for assistance because of a prolonged illness. Rather, it considered that need and its extent in the context of the claim made by the visa applicant that the assistance he provided was both emotional and physical and inclusive of companionship, companionship not being absent other factors. It considered each of the matters put by the visa applicant as to the “assistance” provided by him to the nominator consequent upon the need for assistance and its duration as set out in the various medical reports relied upon and as contained in the other evidence given to the Tribunal hearing. The MRT’s reasons are required to be read fairly and as a whole; MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291. Although in this case the reasons are not as clearly stated as they could have been it cannot be said on a reading of the reasons as a whole that the Tribunal failed to deal with the nominator’s claimed need for assistance.