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 decision of the Migration Review Tribunal application for Family Residence Class AO visa subclass 806 - application dismissed.

Youssef v Minister for Immigration [2003] FMCA 221 (4 June 2003)

Youssef v Minister for Immigration [2003] FMCA 221 (4 June 2003)
Last Updated: 11 June 2003

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)

Jun v 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 Rules 2001 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

1. This matter was transferred by order of Sundberg J on the 4 July 2002 from the Federal Court of Australia to this court.

2. 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

3. 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.

4. 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.

5. 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).

6. 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 by the nominator, the nominator's husband and the nominator's four children. An oral submission was received from the applicant's representative.

7. By a decision, handed down on 16 May 2002, the MRT affirmed the primary decision (CB 147-157). The applicant was notified of that decision.

8. In these proceedings, the applicant detailed his claim (as set out in paragraphs 1 and 2 of the application for review) as follows:

1. The decision was made in breach of an indispensable condition or an essential pre-condition to the jurisdiction of the Tribunal, or an imperative duty or an inviolable limitation or restraint upon the power conferred upon it under s65, because it failed to deal with an essential criterion to the exercise of its power being whether the nominator had a permanent or long term need for assistance in the form of companionship, emotional support and domestic assistance (including physical support).

2. The decision was made without jurisdiction or is affected by an error of jurisdiction.

PARTICULARS

i) the Tribunal failed to deal with an essential criterion to the exercise of its power being whether the nominator had a permanent or long-term need for assistance in the form of companionship, emotional support and domestic assistance (including physical support);

ii) the Tribunal proceeded on the basis that emotional support and companionship could not as a matter of law amount to `substantial and continuing assistance';

iii) the Tribunal conflated the tests imposed by regulation 1.03 and 1.03 (b) involving the requirement of ability to provide substantial and continuing assistance and the question whether the assistance cannot reasonably be obtained from another relative or services in Australia;

iv) the Tribunal misunderstood the requirement imposed by regulation 1.03 (b) by interpreting the term assistance therein to mean the assistance actually provided or capable of being provided rather than the assistance needed by the nominator;

v) the Tribunal misunderstood the requirement imposed by regulation 1.03 (b) and asked the wrong question when it found that the children should reasonable be expected to assist their parents.

9. The applicant also relied upon written contentions of fact and law filed 7 March 2003. Those contentions replaced earlier ones filed 4 October 2002. The respondent filed contentions of fact and law on the

25 October 2002 and the court book on the 12 August. I am grateful to each of Counsel whom appeared before me for their thoughtful analysis of the matters necessary to put before this Court.

Legislative Scheme

10. The criteria of the grant of a subclass 806 visa were set out in Part 806 of Schedule 2 to the Regulations. Part 806 was repealed by SR 259 of 1999 reg 4 and Sch 2. The criteria in force at the date of the application (including the definition of `special need relative') continue to apply to the application: Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at 478-480, per McHugh J. The criteria included criteria to be satisfied both at time of application and at time of decision. One of the criteria to be satisfied at time of application for the grant of a subclass 806 visa is cl 806.213, which required that a visa application is a special need relative of another person who has nominated the visa applicant for the grant of the visa. Clause 806.221 provided that a visa applicant must continue to satisfy cl 806.213 at time of decision. Clause 806.213 provided:

"806.213
The applicant is an aged dependent 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 the visa."

11. Regulation 1.03 defined the expression `special need relative':

"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 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 this 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 Migration Review Tribunal hearing

12. Essentially, the applicant argued before me that the MRT failed to deal with the pivotal issue of whether the nominator had a long-term need for assistance (in Regulation 1.03) in the form of companionship, emotional support and domestic assistance (including physical support). It was submitted by the applicant that this failure as alleged constituted a jurisdictional error of law not protected by s.474 of the Act. It was put on behalf of the applicant that the Tribunal could not be said to be, or not be, satisfied within the terms of s.65 of the Act if effect is not given to consideration of relevant criteria because they have been misconstrued, misunderstood or overlooked, or consideration has not been given to the case as presented by the applicant. Such an error would be to identify the wrong issue or a failure to take into account relevant material.

13. The nominator's need for assistance was presented to the Tribunal as one of need for emotional and physical support and companionship as evidenced by the expert medical reports and the evidence of the applicant, the nominator and her family (CB 149-153).

14. The MRT noted that its task was to consider whether the visa applicant was a `special need relative' at the time of the visa application (in December 1996) and whether the visa applicant remained a `special need relative' at the time of the decision.

15. 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

16. 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.

17. 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.

18. The MRT made an implicit finding that assistance was needed by the nominator in the form of the performance of household chores and in the provision of emotional support. It adopted, by way of reasoning, the language used in Narayan v Minister for Immigration & Multicultural & Indigenous Affairs (2001) FCA 1745.

19. The kind of assistance able to be provided by the visa applicant and indeed provided was considered in relation to the need for assistance of the nominator. Having considered the inter-relationship of those two elements of the definition of "special need relative" it is implicit from the MRT's reasons at (35) to (38) that the Tribunal found the nominator did not have a permanent or long-term need for assistance because of her prolonged illness.

20. It is also implicit and explicit in the adoption of the language used in Narayan v Minister for Immigration & Multicultural & Indigenous Affairs (2001) FCA 1745 as apposite to the matter before it that the Tribunal turned its mind to the satisfaction of the criterion that the assistance provided must be `substantial and continuing' and the Tribunal expressly found as a factual finding open to it on the evidence, to the contrary (CB 156). It is in this matter albeit as a generalised finding that the Tribunal addressed each element necessary for it to address of the definition. It considered each of the nominator's needs for emotional support and companionship, domestic assistance and physical support. The evidence given as to these matters was contained in the reasons and the Tribunal come to a conclusion as to this factual material before it. It is not a matter for this court to review the merits of such fact finding.

21. Contrary to that asserted by the applicant I do not find that `emotional support and companionship' was considered by the Tribunal as not capable of amounting to substantial and continuing assistance. The Tribunal considered the evidence and adopted the language used in Narayan.

22. I accept the submissions made by counsel for the respondent that the MRT set out its understanding that the `substantial and continuing assistance' which the applicant was willing and able to provide was referable to, and a qualification of, the "assistance" needed, as referred to in reg 1.03 (a). (see Jun v Minister for Immigration & Multicultural & Indigenous Affairs (2000) FCA 867). What assistance was needed by the nominator was explored and described by the Tribunal on the evidence presented to it. The Tribunal concluded that the applicant did not qualify as a `special need relative' upon a determination of the facts and upon a proper approach to Regulation 1.03 as a matter of law. This included the determination by the Tribunal that any assistance found to be necessary by the nominator could reasonably be obtained from the nominator's four adult children, her husband and welfare, hospital, nursing or community services in Australia. These were findings of fact open to the Tribunal.

23. 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 FM

Associate: T A Jones

Date: 2 June 2003
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia