Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - Review of Migration Review Tribunal's decision affirming a delegate's refusal of a visa on the ground that the applicant was a "special need relative" - no reviewable error found.

Foolchand v Minister for Immigration [2004] FMCA 563 (15 September 2004)

Foolchand v Minister for Immigration [2004] FMCA 563 (15 September 2004)
Last Updated: 14 October 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FOOLCHAND v MINISTER FOR IMMIGRATION
[2004] FMCA 563



MIGRATION - Review of Migration Review Tribunal's decision affirming a delegate's refusal of a visa on the ground that the applicant was a "special need relative" - no reviewable error found.



Migration Act 1958

Federal Magistrates Court Rules 2001

Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10

NAAV v MIMIA [2002] FCAFC 228

R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134/2002 [2003] HCA 1

Aung v Minister for Immigration and Multicultural Affairs [2000] FCA 1562

Grichtchenko v Minister for Immigration & Multicultural Affairs [2001] FCA 1482

Abebe v The Commonwealth (1999) 197 CLR 510

Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182

Kioa v West (1985) 159 CLR 550

Minister for Immigration v Eshetu (1999) 197 CLR 611

Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181

Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321

Waterford v The Commonwealth (1987) 163 CLR 54

Commission v Mount Isa Mines (1997) 187 CLR 297

Applicant:
PRAKASH ROSS FOOLCHAND



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


MZ 879 of 2002



Delivered on:


15 September 2004



Delivered at:


Melbourne



Hearing date:


19 March 2003



Judgment of:


Walters FM



REPRESENTATION

Counsel for the Applicant:


Mr Krohn



Solicitors for the Applicant:


Lex Lawyers



Counsel for the Respondent:


Mr Fairfield



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) The application be dismissed.

(2) Pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001, the applicant do pay the respondent's costs of these proceedings fixed in the sum of $4,250.00.

(3) Pursuant to rule 21.15 of the Federal Magistrates Court Rules 2001, the Court certifies that it was reasonable for the respondent to employ and advocate.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


MZ 879 of 2002

PRAKASH ROSS FOOLCHAND


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
Introduction

1. This is an application to review the decision of the Migration Review Tribunal ("the Tribunal") made on 27 June 2002. 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, subclass 806. Relevantly, the Tribunal concluded that the applicant is not a special need relative of his sister, who was his nominator.

2. I accept the following statement of background facts contained in paragraphs 2 to 7 (inclusive) of the written submissions prepared on behalf of the respondent:

2. The applicant is a citizen of Mauritius who was born on 16 December 1973, and arrived in Australia on 14 January 1998 as the holder of a Class TR subclass 676 tourist (short stay) visa, which was valid until 14 April 1998 [CB92.2].

3. On 13 March 1998, the applicant applied for a Class AO subclass 806 Family (Residence) visa, as a special need relative of his sister, Ms Yantee Rahiman (the 'nominator') and her spouse. In his visa application, the applicant stated that the nominator needed assistance because of a 'permanent disability' (a congenital defect involving a missing thumb on her right hand) and his brother-in-law needed assistance due to 'illness' and 'various problems' (including pancreatitis, alcohol abuse, diabetes, hypertension and depression) [CB11]. He stated that the assistance he provided to the nominator and her spouse was 'transportation to medical and hospital appointments', 'household duties such as cooking and cleaning' and 'if allowed to work, would help financially also' [CB11].

4. In October 2001, the nominator separated from her spouse, and since then has lived together with the applicant [CB67].

5. On 19 December 200 1, a delegate of the respondent refused to grant a visa to the applicant [CB39-49]. The delegate found that the nominator had a 'disability' and that her spouse had a 'prolonged illness' for the purposes of the definition of 'special need relative' contained in reg.l.O3 of the Regulations [CB43.8]. However, the delegate also found that the assistance provided by the applicant was not 'substantial and continuing', and that the applicant was not a 'special need relative' within reg. 1.03 [CB44.6]

6. On 14 January 2002, the applicant applied for review to the Migration Review Tribunal ('the Tribunal') [CB52-57].

7. On 27 June 2002, the Tribunal affirmed the delegate's decision [CB90-102]. The Tribunal found that the applicant was not a 'special need relative' of the nominator at the time of application, and therefore did not satisfy clause 806.213 of the Regulations [CB101.4]. The key findings of the Tribunal may be summarised as follows:

(a) The Tribunal was satisfied that the nominator's spouse suffered from a 'prolonged illness' at the time of application [CB97.8]. However, it was not satisfied that the nominator's spouse required substantial assistance at that time [CBlOO.5].

(b) The Tribunal found that the nominator was not suffering from a disease or prolonged illness at the time of application [CB98.4]. After considering a psychiatric report from Dr Leslie Chester, the Tribunal found that, although the nominator had personality problems such as low self-esteem and low self-confidence, she was of normal intelligence and cognitive function and there was no evidence that she was suffering from any mental illness, mental deterioration or infirmity [CB98.3, see also CBlOO.8].

(c) The Tribunal found that the nominator did not suffer from a serious illness or disability and was not affected by 'other serious circumstances' at the time of application [CB1OO.9]. It was not satisfied that the nominator was incapable of attending to her daily needs by reason of the congenital absence of her right thumb or by reason of her upbringing [CB1OO.7]. There was insufficient evidence that, at the time of application, the nominator required substantial assistance for herself or to assist her spouse [CB1OO.8].

(d) Accordingly, neither the nominator nor her spouse required substantial and continuing assistance at the time of application.

Grounds for Review

3. The applicant's amended application for review (filed 25 October 2002) contains the following grounds for review:

(a) the failure of the Tribunal to take relevant matters into account in making the decision being:

(i) the evidence before the original decision maker that the Applicant's sister and/or the Applicant's sister's' spouse suffered from a disability within the meaning of the Migration Regulations and required substantial assistance at the time of the application and the finding to that effect;

(ii) the combined effect of the Applicant's sister's physical limitation, upbringing and psychological condition at the time of the application and at the rime of the Decision;

(b) denial of procedural fairness or denial of natural Justice or an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal in that the Tribunal:

(i) did not comply with the requirements of s.353 of the Migration Act in that the Tribunal should have advised the Applicant that the Tribunal would not be accepting the findings of the original decision maker;

(ii) erred in concluding that the Tribunal was not required to advise the Applicant that the Tribunal would be considering whether or not the Applicant's sister suffered from a disability within the meaning of the Migration Regulations;

(iii) erred in concluding that the Applicant and his sister were not disadvantaged at the hearing by the Tribunal's failure to advise them that the Tribunal would not be accepting the findings of the original decision maker.

(c) there was no evidence or other material to justify the making of the Decision because the Tribunal based the Decision on the existence of particular facts being that the Applicant's sister was of normal intelligence and cognitive function and was not suffering from any illness when that fact did not exist.

(d) The Tribunal acted without jurisdiction in basing its decision on conclusions not open on the evidence.


PARTICULARS
It was not open on the evidence, notably the applicant's letter dated 13 March 2001 (CB 32.33), his sister's letter of the same date (CB 34), medical reports (CB35-36, 64, 73-74, 80-83), and also in submissions made by the applicant's solicitors and migration agents, notably submission sent to the Tribunal under letter dated 17 April 2002 (CB67-72) and supplementary submissions sent under letter dated 24 May 2002 (CB85-87), for the Tribunal to have done other than to conclude that at the time of application for visa:

(i) the nominator, given the combination of psychological, emotional and personality factors was affected by "disability, prolonged illness or other serious circumstances" pursuant to Regulation 1.03 at the time of application, being both her own personal situation and also the effect upon her of her husband's prolonged illness and its consequences;

(ii) the nominator and her husband did have a "permanent or long term need for assistance" pursuant to Regulation 1.03;

(iii) such assistance, including the important emotional and personal support of the applicant for his sister, could not reasonably have been obtained from the other sources mentioned in Regulation 1.03.

(iv) therefore the applicant was a special need relative within the meaning of Regulation 1.03.

(e) The Tribunal acted without jurisdiction in interpreting the applicable law.


PARTICULARS
The Tribunal misinterpreted the terms of Regulation 1.03 shown by the findings it made and failed to make in relation to the matters set out in the particulars to Grounds (c) and (d) herein.

(f) The Tribunal acted so unreasonably in making its decision that no reasonable Tribunal could so have acted.


PARTICULARS
The applicant refers to and relied on the matters set out in the particulars to the other Grounds herein.

4. An additional ground (alleging that the relevant decision was "not made by the respondent or his lawful delegate") was abandoned at the hearing.

"Special Need Relative" -- The Regulations

5. The effect of the Regulations is summarised in paragraphs 8 to 11 (inclusive) of the respondent's written submissions. I accept that summary:

8. At the time that the visa application was lodged, [1] clause 806.213 of the Migration Regulations set out a primary criterion applicable to visa subclass 806 (Family)[2]:

The applicant is an aged dependant relative, an orphan relative, a remaining relative or a special need relative of another person who:

(a) is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and

(b) is usually resident in Australia; and

(c) has nominated the applicant for the grant of visa.

9. Clause 806.221(1)(a) required the applicant to continue to satisfy the above criterion at the time of decision.

10. Accordingly, both at the time of application and the time of decision, the applicant was relevantly required to be a 'special need relative' of an Australian citizen who is usually resident in Australia, and who has nominated the applicant for the grant of the visa.

11. The definition of 'special need relative' was set out in reg. 1.03:

special need relative, in relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or an eligible New Zealand citizen, means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:

(a) the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and

(b) the assistance cannot reasonably be obtained from:

(i) any other relative of the citizen or resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

(ii) welfare, hospital, nursing or community services in Australia.

The Law

6. Pursuant to s.483A of the Migration Act, this Court has the same jurisdiction as the Federal Court in relation to a matter rising under the Act. Under s.475A, it has jurisdiction in relation to a "privative clause decision" that is a decision made on a review by the Tribunal. "Privative clause decision" is defined in s.474(2) and (3) of the Act. Section 474(1) of the Act limits review by the Court of privative clause decisions as follows:

A privative clause decision:

a) is final and conclusive;

b) must not be challenged, appealed against, reviewed, quashed or called into question in any Court; and

c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court on any account.

7. In NAAV v MIMIA [2002] FCAFC 228, the Full Court of the Federal Court held that s.474 must be construed in the same manner as the kind of privative clause considered in the decision R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598. In other words, there were said to be three conditions which, if met, would ordinarily mean that a decision the subject of a provision such as s.474 would be valid. These are:

a) the decision is a bona fide attempt by the decision-maker to exercise its power;

b) the decision relates to the subject matter of the legislation; and

c) the decision is reasonably capable of reference to the power conferred on the decision-maker.

8. There was also broad agreement in NAAV that the purported exercise of power must not be one that contravenes an inviolable limitation on the operation of the Act.

9. In Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, the High Court held that as a matter of construction the expression `decision... made under this Act' in s.474(2) "must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act."[3] If there has been a jurisdictional error, then the decision cannot properly be described as a decision made under this Act -- and is thus not a privative clause decision as defined in s.474(2) and (3). Further, a decision flawed due to failure to comply with the principles of procedural fairness was also said not to be a privative clause decision within s.474(2).

10. If there is no jurisdictional error affecting the Tribunal's decision, then the decision would be a privative clause decision and protected by s.474(1) -- unless it could be shown that one of the Hickman provisos had not been met.

11. In Plaintiff S157/2002, the High Court confined itself to a general statement of principle in relation to jurisdictional error, and the particular issue of jurisdictional error by reason of a denial of procedural fairness as asserted by the applicant in that case. The precise scope of the notion of jurisdictional error in this context, and the determination of which provisions in the Migration Act constitute inviolable limitations or restraints, may raise some complex issues[4] - but there is no need to consider such issues in the proceedings before the Court.

First Ground for Review: Jurisdictional Error (Failure to Consider Relevant Material)

12. Counsel for the applicant (Mr Krohn) submitted that, although the Tribunal considered whether the nominator had a disability or other serious condition (and concluded that she did not), and considered that although the nominator's husband had a prolonged illness, he was not in substantial need of assistance, it "... did not consider as required by Regulation 1.03, whether the husband's prolonged illness may have resulted in the nominator requiring substantial and continuing assistance".

13. In my opinion, Mr Krohn's submission in this regard is without merit. In paragraph 43 of its Reasons, the Tribunal wrote:[5]

There is insufficient evidence before the Tribunal that, at the time of application, the nominator required substantial assistance for herself or to assist her spouse (emphasis added).

14. It follows that the Tribunal did give consideration to the effect upon the nominator of her spouse's prolonged illness. Further, the Tribunal's finding in this regard is consistent with its findings in relation to the type of assistance required by the nominator's spouse at the time of the application.[6]

15. In any event, and as submitted by Mr Fairfield on behalf of the respondent, the question whether the nominator required assistance at the time of the application due to her husband's prolonged illness was not a relevant consideration -- because the nominator had separated from her husband (and was no longer living with him) at the time of the Tribunal's decision.

16. In further support of this ground, Mr Krohn drew the Court's attention to various pieces of evidence contained in the court book. The effect of Mr Krohn's submission in this regard, however, was to invite the Court to involve itself in impermissible merits review.

Second Ground: Denial of Procedural Fairness

17. The context in which this ground is said to arise is as follows:

a) The delegate's decision is dated 19 December 2001. In it, the delegate made a finding to the following effect:

Based on the information presented, I find that the nominator has a "disability" and her spouse has a "prolonged illness" within the meaning of migration Regulation 1.03.[7]

b) On 14 January 2002, the applicant's solicitors wrote to the Tribunal enclosing the application for review. In their letter, they wrote:

We are in the process of collecting the evidence for the matter and we expect to have additional material for you in due course.

In order that we do not incur additional expense to our client, we would ask you to confirm that the only issue in dispute is whether or not the assistance provided by the applicant to his sister is of a substantial and continuing nature.

Our evidence and submissions will be directed only to this issue and, if there are additional issues that you will be reviewing, we request at least 6 weeks notice of the nature of the issues in order to prepare our client's case properly.[8]

c) By letter dated 25 February 2002 to the applicant's solicitors, the Tribunal acknowledged receipt of the application for review, and invited the applicant to provide certain specified information (pursuant to s.359(2) of the Migration Act). As well, the Tribunal stated that it would consider any other written submissions that the applicant may wish to provide.

d) It is clear that, in its letter of 25 February 2002, the Tribunal did not respond to the invitation contained in the letter from the applicant's solicitors dated 14 January 2002. Relevantly, the Tribunal did not "confirm that the only issue in dispute is whether or not the assistance provided by the applicant to his sister is of a substantial and continuing nature".

e) On 12 April 2002, the applicant's solicitors wrote to the Tribunal regarding "further extension of time to provide a proper legal submission as well as the full set of supporting documents...". The Tribunal did not agree to the extension beyond 17 April 2002.[9]

f) On 17 April 2002, the applicant's solicitors wrote to the Tribunal enclosing a number of documents in support of the applicant's case. One of the documents was described as the applicant's "Submission".[10]

g) On the first page of the Submission, and under the heading "Findings" appears the following:

It has been accepted by (the Department) that (the nominator) has a disability within the meaning of Migration Regulation 1.03. The basis of the preparation of the applicant's case before the Tribunal assumes that the above finding is accepted by the Tribunal.

The only findings that are in dispute are:

(A) The assistance provided by the applicant is not of a "substantial and continuing nature".

(B) The nominator did not provide compelling reasons for being incapable of utilising the services provided by government and private agencies.

(C) The applicant is not a "special need relative" within the meaning of migration Regulation 1.03.

The above are the findings by the Department...that appear on the face of the decision record and are disputed by the applicant. The applicant proposes to deal only with these findings and assumes that there are no other outstanding issues that the Tribunal requires proved, with the exception of the health and character requirements.

h) At the hearing on 10 May 2002, the Tribunal advised the applicant's solicitor that it would not be accepting the delegates finding that the nominator suffered from a disability. According to the applicant's solicitor, "... this was the first time despite all of the correspondence... that the Tribunal had advised me this was the case".[11]

18. The applicant argued that the Tribunal's failure, despite "a reasonable and timely request" to give the applicant notice that it was not accepting the delegate's finding of the nominator as having a disability prejudiced the applicant -- because of the lack of time to obtain evidence of his sister's overall situation at the time of the application for the visa.

19. At the hearing before me, Mr Krohn argued that, although the Tribunal has power to conduct a review de novo, that power was not exercised fairly vis-a-vis the applicant. Mr Krohn submitted that the Tribunal should have responded to the original letter from the applicant's solicitors, advising them that all findings could be reviewed. Alternatively, the Tribunal could have advised the applicant's solicitor at the hearing that "everything is in issue", and then asked (in effect): "how much time do you need?"

20. In my opinion, the respondent's written submissions provide an complete and persuasive response to this ground. I accept the arguments contained in paragraphs 25 to 30 of the respondent's submissions, which are in the following terms:

25. The applicant properly concedes that the Tribunal has the power to conduct a de novo review of the delegate's decision: see s.349 of the Act. However, the Tribunal has not only the power, but a duty to conduct a de novo merits review of all findings made by the delegate, and to conduct such a review on all of the material available to the Tribunal at the time of its decision[12]. Thus, it would be an error for the Tribunal to adopt one or more findings made by the delegate without considering for itself whether the material supported such findings; in other words, the Tribunal is not permitted to reach a finding simply on the basis that the delegate had so found.[13]

26. It is not open to an applicant to attempt to narrow the scope of the Tribunal's review by purporting to require the Tribunal to notify him or her if it proposes to depart from particular findings made by the delegate.

27. Nor do the requirements of procedural fairness impose any such obligation on the Tribunal. Generally speaking, delegate's findings do not give rise to any legitimate expectation that, in so far as the findings are favourable to an applicant, the Tribunal will make the same findings, or will not depart from the delegate's favourable findings without first giving a warning to the applicant. The function of the Tribunal is to provide de novo review of the de1egate's decision, and for that purpose the Tribunal exercises all the powers and discretions conferred on the delegate (ss.348, 349). It is the responsibility of the applicant to present to the delegate and to the Tribunal any information or material on which he or she relies in support of his or her application.[14]

28. In the present case, the Tribunal did nothing to mislead the applicant as to the scope of issues for determination upon its review of the delegate's decision. On the contrary, the Tribunal alerted the applicant at the hearing that it did not propose to accept the delegate's findings on the question of whether the nominator suffered from a 'disability' within the meaning of the Regulations, and gave the applicant 14 days in which the provide a written submission on that question [CB94.5]. The applicant took advantage of this opportunity [CB85-87]. It cannot be said that the applicant was denied procedural fairness. (Emphasis added)

29. In particular, the claim that the applicant was prejudiced 'because of the lack of time to obtain evidence of his sister's situation at the time of application; (paragraph 40 of the applicant's contentions) is fanciful. The applicant had already been required to provide evidence on this issue to the primary decision-maker. The Tribunal gave the applicant and his adviser two weeks from the date of the Tribunal hearing to present further evidence and arguments directed to this question. Finally, as the Tribunal noted in its reasons [CB101-102], any questions relevant to the existence and nature of any disability were closely related to questions in relation to the need for substantial and continuing assistance.

30. Neither s.353 nor s.360 of the Act contains any implied obligation to notify the applicant of a proposed departure from the delegate's findings. Provisions such as s.353 of the Act are 'intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals'.[15]...

21. I also note the following:

a) The subject was dealt with by the Tribunal in paragraphs 49 to 51 (inclusive) of its Reasons.[16] A careful reading of those paragraphs reveals that the applicant's assertion that the rules of procedural fairness were not complied with is without merit.

b) The letter from the applicant's solicitors dated 14 January 2002[17] asks the Tribunal "to confirm that the only issue in dispute is whether or not the assistance provided by the applicant to his sister is if of a substantial and continuing nature". The Tribunal provided no such confirmation.

c) The fact of the matter is that the applicant was granted two weeks from the date of the hearing to make a supplementary submission to the Tribunal for the purpose of addressing issues raised during the hearing on 10 May 2002. The supplementary submission appears at CB85-7. It records that the applicant "takes issue with the Tribunal's decision that it would not accept the findings of (the delegate) in relation to whether or not the nominator had a disability". It then proceeds to set out three objections to the Tribunal's decision in that regard. After listing the objections, the applicant's solicitors wrote:

...it is our view that the Tribunal should be able to come to a decision in the applicant's favour based on the material before it.

22. As Mr Fairfield (for the respondent) submitted, that concession is "the end of the story" insofar as the applicant's procedural fairness argument is concerned.

Remaining Grounds: Jurisdictional Error (No Evidence, Conclusion not open on the Evidence and Error in Interpreting the Law)

23. These grounds comprise little more than a miscellany of complaints regarding the conclusions reached by the Tribunal. The applicant's submissions in relation to the grounds appear at paragraphs 41 to 46 (inclusive) of Mr Krohn's written submissions. They were only faintly argued by Mr Krohn at the hearing before me.

24. Once again, I am of the view that the respondent's written submissions provide a complete and persuasive answer to the applicant's argument. The relevant paragraphs are paragraphs 33 to 35 (inclusive):

33. These grounds of review are no more than an attempt to obtain merits review of the Tribunal's factual findings. There was evidence to support each of the Tribunal's findings. It is not the role of this Court to re-assess the evidence before the Tribunal on the relevant factual issues[18], irrespective of whether or not a 'wealth of evidence' or even the 'overwhelming weight' of evidence would have supported different findings.

34. The expressions 'disability' and 'other serious circumstances' are used in reg 1.03 in their ordinary, non-technical sense, and the ordinary meaning or common understanding of such expressions is a question of fact entrusted to the Tribunal.[19] It cannot be said that the Tribunal erred in law in applying the terms of the Regulations to the particular facts of the present case.

35. While the making of findings and the drawing of inferences in the absence of evidence is an error of law,[20] it is not possible to challenge an administrative decision on the ground that the findings made by the decision maker were 'not open on the evidence'. The grounds on which this Court can review the Tribunal's findings of fact are limited. It is not in itself an error of law for the Tribunal to make an incorrect finding of fact, at least where there is some material before the Tribunal to support the finding.[21]

Final Ground: Decision "Unreasonable"

25. The applicant also argued that the Tribunal's decision was "so unreasonable that no reasonable Tribunal could so have decided". Reference was made to the principles in Associated Provincial Picture House Ltd v Wednesbury Corporation (1948) 1 KB 223. I do not agree with the submission. In any event, and as the respondent submitted, the Wednesbury unreasonableness ground of review is only established in rare and extreme circumstances. It does not provide what amounts to an excuse for the Court to re-examine the merits of the Tribunal's decision.

Conclusion

26. 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.

27. I have re-read 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 capably 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.

28. Further, and as I have stated above, there is no apparent breach of procedural fairness which could amount to jurisdictional error.

29. In my opinion, the Tribunal conducted an objective inquiry into whether the condition precedent for the grant of the visa applied for had been established. Its conduct of the inquiry was unexceptional.

30. In my view, the findings of fact contained in the Tribunal's decision, and the conclusions drawn from those facts, were reasonably open to it.

31. For the preceding reasons, these grounds for review must fail, and the application must be dismissed with costs (which I shall fix in the sum of $4,250.00).

I, Paul O'Halloran, certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Walters FM

Associate:

Date: 3 September 2004


--------------------------------------------------------------------------------

[1] The law applicable to the applicants' visa application is the law as in force at the time that the application was lodged on 13 March 1998: Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10 at para [28] per McHugh J.

[2] The criterion was required to be satisfied at the time of application.

[3] at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ, and also see [19] per Gleeson CJ and [163] per Callinan J.

[4] see, for example, Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134/2002 [2003] HCA 1 -- in relation to s.65 of the Migration Act.

[5] See CB100.

[6] See paragraph 42 of the Tribunal's Reasons.

[7] CB43.

[8] CB50.

[9] CB62

[10] CB65

[11] See affidavit of JM Woods, sworn 23 July 2002, paragraph 5.

[12] Compare Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182 at [37] per Spender, North and Merkel JJ.

[13] See Aung v Minister for Immigration and Multicultural Affairs [2000] FCA 1562 at [7] per Katz J; Grichtchenko v Minister for Immigration & Multicultural Affairs [2001] FCA 1482 at [43] per Katz J.

[14] Abebe v. The Commonwealth (1999) 197 CLR 510 at 576 (para.[ 187]) per Gummow and Hayne JJ; see also Kioa v West (1985) 159 CLR 550 at 587 per Mason J; Minister for Immigration v Eshetu (1999) 197 CLR 611 at 673 (para.[195]).

[15] Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [49] per Gleeson CJ and McHugh J.

[16] CB101-2.

[17] CB50.

[18] Compare Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 at [31]-[32].

[19] Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10 at [36] per McHugh J.

[20] See Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321 at 355-357 per Mason CJ; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 654 (para.[138]) per Gummow J.

[21] Waterford v. The Commonwealth (1987) 163 CLR 54 at 77-78 per Brennan J; Australian Heritage Commission v. Mount Isa Mines (1997) 187 CLR 297 at 303.
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia