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MIGRATION - Review of decision of Migration Review Tribunal - whether applicant a `special need relative' - emotional needs of the nominators - `other serious circumstances' to be construed in light of `death, disability and prolonged illness' - future need not a need of the defined type - necessary for need to be an existing one - application dismissed.

Dirckze v Minister for Immigration & Ors [2004] FMCA 614 (16 September 2004

Dirckze v Minister for Immigration & Ors [2004] FMCA 614 (16 September 2004)
Last Updated: 14 October 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DIRCKZE v MINISTER FOR IMMIGRATION & ORS
[2004] FMCA 614



MIGRATION - Review of decision of Migration Review Tribunal - whether applicant a `special need relative' - emotional needs of the nominators - `other serious circumstances' to be construed in light of `death, disability and prolonged illness' - future need not a need of the defined type - necessary for need to be an existing one - application dismissed.



Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

S157 v Commonwealth (2003) 211 CLR 476

Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39

Hussein v Minister [1999] FCA 1621

Applicant:
MAXWELL KENNETH DIRCKZE



First Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



Second Respondents:


MS JOY WHITAKER, sitting as the MIGRATION REVIEW TRIBUNAL; MS REGINA PERTON in her capacity as Senior Member of the MIGRATION REVIEW TRIBUNAL



File No:


MLG 778 of 2003



Delivered on:


16 September 2004



Delivered at:


Melbourne



Hearing date:


1 September 2004



Judgment of:


Hartnett FM


REPRESENTATION

Counsel for the Applicant:


Ms Tran



Counsel for the Respondents:


Mr Mosley



Solicitors for the Respondents:


Australian Government Solicitor



ORDER

(1) The application is dismissed.

(2) The applicant pay the costs of the respondent fixed in the sum of $7,500.00.

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

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


MLG 778 of 2003

MAXWELL KENNETH DIRCKZE


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




First Respondent

And

MS JOY WHITAKER, sitting as the MIGRATION REVIEW TRIBUNAL; MS REGINA PERTON in her capacity as Senior Member of the MIGRATION REVIEW TRIBUNAL




Second Respondents


REASONS FOR JUDGMENT

1. The visa applicant, his wife and daughter entered Australia on 9 November 1995 as the holder of a short stay (visitor) (class TR) visa valid until 9 February 1996. On 20 February 1996 the visa applicant and his family were granted Sri Lankan (Temporary) (class TT) (subclass 435) visas valid until 31 July 1996. These visas were subsequently extended until 31 July 1997. On 30 April 1996 the visa applicant applied for the grant of a protection (class AZ) (subclass 866) visa. That application was refused by the Department on 21 August 1996 and the Department's decision was affirmed by the Refugee Review Tribunal on 17 January 1997. On 2 May 1997 the visa applicant lodged an application for Ministerial Intervention but the Minister determined on 30 July 1998 not to exercise his discretion. An application for a further subclass 435 visa lodged on 31 July 1997 was refused by the Department on 4 August 1997 and affirmed by the Migration Internal Review office on 7 October 1997. Since applying on 30 July 1998 for a subclass 806 visa, the subject of the review before the Migration Review Tribunal (MRT) which is the decision under review in this Court, the visa applicants have held bridging visas granted on the basis of that application.

2. The second child of the visa applicant was born in Australia on 21 November 1996.

3. The visa application was made on 30 July 1998 on the basis that the visa applicant is the special need relative of his niece, Venetia Therese Richardson and nephew Ramon Santino Richardson (the nominators). The nominators both arrived in Australia as holders of extended eligibility (Temporary ) (Class TK) (Subclass 445) visas on 31 January 1995 and became permanent residents on 29 April 1996. Venetia Therese Richardson was born on 18 August 1982 and Ramon Santino Richardson was born on 14 April 1984. At the time of application they were aged almost 16 and 14 years of age respectively.

4. On 1 March 2001 a delegate of the respondent refused the grant of the visa. Application for review of that decision was made to the MRT on 27 March 2001. The Tribunal conducted a hearing on 16 January 2002 and on 6 February 2002 it affirmed the decision under review.

5. The applicant made application to the Federal Court for review of the Tribunal's decision on 26 February 2002. On 13 May 2002 that application was transferred by order of Finkelstein J to this Court and on 25 May 2002 the applicant advised the Court that he had decided not to proceed with that application and wished to withdraw "due to unavoidable circumstances". On 29 May 2002 the Court accepted the notice and confirmed that "this matter has been finalised".

6. On 26 June 2002 the applicant made an ex parte application for Constitutional writ relief in the High Court filing an affidavit in support sworn 24 June 2002 to which was exhibited a draft order nisi. The draft order nisi contained the same grounds as those in the withdrawn proceeding.

7. On 7 February 2003 Hayne J ordered that the further proceedings in the application be remitted to the Federal Court of Australia. In the Federal Court the proceedings were given number V293 of 2003.

8. On 19 May 2003 the respondent filed a notice of objection to competency on the basis that the application was made outside the time limits provided for in section 486A of the Migration Act 1958 (Cth) ("the Act"). That section sets a maximum period of 35 days within which a privative clause decision may be challenged in the High Court. In light of the interpretation given to the phrase �privative clause decision' in S157 v Commonwealth (2003) 211 CLR 476 the Court cannot determine whether the proceedings are barred by s 486A without first determining whether the decision was affected by jurisdictional error. In any event, the respondent does not proceed with that argument concerning time limitations.

9. On 15 July 2003 the application was transferred to this Court by Kenny J and proceeded to be heard on 1 September 2004.

Legislative framework

10. Section 65 of the Act provides that where the Minister is satisfied that the relevant criteria for a particular class of visa are satisfied the Minister is to grant the visa and if not so satisfied is to refuse to grant the visa. The criteria for the grant of a subclass 806 visa was set out in Part 806 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Part 806 was repealed by SR259 of 1999 Regulation 4 and Schedule 2. The criteria in force at the date of the application (including the definition of "special need relative") continue to apply to this application: Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at 478-480. The criteria included criteria to be satisfied both at time of application and at time of decision. It was necessary for the applicant to meet the applicable criteria both at time of application and time of decision. Relevantly the criteria to be satisfied at time of application included clause 806.211 and 806.213. They provided:

806.211 if;

a) ...,;

b) the applicant is a person to whom s 48 of the Act applies

c) ...; and [the applicant]

d) has become...a special need relative of an Australian citizen, of an Australian permanent resident, or of an eligible New Zealand citizen since last applying for an entry permit or substantive visa.

806.213

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 the visa.

Time of decision criteria included, relevantly, clause 806.221 which provided

806.221 the applicant continues to satisfy the criteria in clause 806.213.

11. The term "special need relative" was defined in Regulation 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.

12. As a non-citizen who had been refused a visa the applicant was a person to whom s 48 of the Act applied. Section 48 limits the classes of visa for which application may be made by such a person.

The decision of the MRT

13. The Tribunal considered whether the visa applicant was a special need relative at:

a) any time between 30 April 1996 and the time of application;

b) at the time of the visa application; and

c) at the time of decision.

In order to satisfy the requirements for the grant of the visa the Tribunal was required to be satisfied that the applicant was a special need relative at the prescribed times. Apart from the material which was before the delegate there was no other evidence or material before the Tribunal other than the evidence given at the Tribunal hearing by the applicant himself notwithstanding an invitation by the Tribunal to the applicant to provide such further information. Thus when the Tribunal came to consider the matter in February 2002 it had only that material before it namely the report of the psychologist, Doug Wright dated 23 July 1998 and the original statement of substance made in 1998. It was for the applicant to provide what material in support of his application that he sought to put before the Tribunal.

14. The question of whether a person is a special need relative is essentially a question of fact for the decision maker. It is not for this Court to conduct a merits review. The Tribunal is required to approach its task correctly as a matter of law. Otherwise the assessment of material before the Tribunal is a matter for the Tribunal and not for this Court. It is open to the Tribunal to make an objective assessment of the emotional support said to be provided.

15. The Court is to read the reasons of the Tribunal fairly and as a whole (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291).

16. The applicant claimed that he was responsible for assisting in meeting a number of the emotional needs of the nominators. After reference to the July 1998 report of the psychologist, Mr Wright, the Tribunal noted that there was no evidence that the nominators had at any stage sought further specialised treatment for depression, anxiety or behavioural problems. It referred to the evidence indicating a significant attachment between the visa applicant and the nominators and it accepted that there was a bond between them and that the applicant's presence satisfied some emotional need.

17. The Tribunal did consider the relevant criteria both at the time of application and the time of decision. It made a very clear distinction between the time of application criteria and the current needs of the nominators as at time of decision for assistance.

18. The visa applicant was asked why the nominators had a need for assistance at the time of application and noted that the visa applicant effectively described himself as a second father to the nominators and that their need for assistance was said to be his presence. The nominators' need for assistance as at the time of hearing appeared limited in nature, being in the main that his niece came to him with her problems with university and that he had helped her look for a car and that when she was sick she would call him to take her to the doctor. He drove her to Sri Lankan dances and took her to the movies with his own children a few weeks earlier. He had also dropped her at university some times. In relation to his nephew's need for assistance at the time of application, the applicant said that he took the initiative to see the principal once a month and to take his nephew out socially or for drives and to buy him clothes and shoes when asked. In regard to the assistance provided to his nephew at the time of hearing the visa applicant stated that he enrolled Ramon at an employment agency and that he sometimes took him to work if it was too far for him to travel on his bike and there was no public transport. He had purchased a bike for Ramon. Ramon came to him for money. He provided advice to Ramon because of the danger of drugs. At the time of hearing the niece was commencing her third year at university and Ramon was soon to turn 18 years of age. The visa applicant stated that if he returned to Sri Lanka the nominators could be psychological and emotional wrecks. When asked about the absence of the nominators at the hearing the visa applicant stated the nominators had chicken pox. The Tribunal noted that a request for an adjournment with supporting medical certificate was never requested.

19. The Tribunal found there to be no evidence at the time of application or at any stage since then that the nominators sought specialised treatment for depression, anxiety or behavioural problems. The Tribunal noted with respect to Ramon that although it was suggested he was mischievous and backward in his studies, he was at the time of hearing in employment.

20. The Tribunal was not satisfied that the emotional needs of the nominators constituted `other serious circumstances' within the terms of the definition. It considered the evidence on the extensive involvement of the nominators' grandmother in the nominators' care and the psychologist's comment on their positive relationship with their mother. It commented in the context of the psychologist's observations regarding the nominators' adolescent needs that they were now aged 19 years and 5 months and 17 years and 9 months and that one was in third year university and the other in the work force. It found no evidence of any financial need of the nominators which constituted `other serious circumstances' within the terms of the definition. In accordance with authority it rejected any future need of the nominators based on any future possibility of depression, confusion or abandonment if the applicant were absent (Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39). It further found there was no evidence of a need for assistance because of death, disability or prolonged illness. The Tribunal concluded that it was not satisfied that the nominators had at any relevant time a permanent or long term need for assistance because of death, disability, prolonged illness or other serious circumstances.

Consideration

21. The question to be determined is whether the MRT has committed jurisdictional error of law.

22. It is clear that the MRT was cognisant of the fact that emotional needs could constitute `other serious circumstances' but found, on the facts of this case, that they did not. Had the MRT construed to definition of `special need relative' as incapable of applying to a person whose principal need is emotional support then that construction would constitute an error of law. The Tribunal found, having considered all of the integers of the claim before it, that the nominators did not have at any time between 30 April 1996 and at the time of application and at the time of decision a permanent or long term need for assistance because of death, disability, prolonged illness or any other serious circumstances. Thus the definition was not met. The Tribunal considered `serious circumstances' in the context of death, disability and prolonged illness. What constitutes `other serious circumstances' must be construed in light of the other relevant identifiers �death, disability and prolonged illness'. The Tribunal did so (see Emmett J in Hussein v Minister [1999] FCA 1621 at [16]).

23. The Tribunal did not misunderstand the nature of the relationship between the applicant and the nominators, accepting that there was a bond between them and that the applicant's presence satisfied some emotional needs of the nominators. It correctly recognised that what constitutes �other serious circumstances' must be construed in light of the other three identifiers, death, disability and prolonged illness, but it was not satisfied on the evidence that the emotional needs of the nominators amounted to �other serious circumstances'. That was a factual finding open to the Tribunal on the basis of the evidence and material before it. It found correctly that the definition of �special need relative' did not contemplate some possible future need. In Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39 the Full Court said (at 17):

Counsel for the Minister submitted that because the definition of `special need relative' refers to a situation where the citizen �has a permanent or long term need', it is necessary for the need to be an existing one. That is, the definition does not comprehend situations where the need might arise in the future but does not presently exist. We agree with this submission. Plainly consideration of the future arises because of the reference to �permanent or long term' in the definition. Nonetheless the definition proceeds on the basis that there is an existing need and that the existing need will endure. A future need of the type identified in the appellant's contentions is not, in our opinion, a need of the defined type [emphasis added].

24. Section 48 of the Act applies to the applicant and the consequence of that is that there is superimposed an additional requirement that he must have become a special need relative since he last applied for a substantive visa. The applicant's last application for a substantive visa was that for a 435 visa. The Tribunal however looked at a greater period, that is, it went further back in time because the date of application for a protection visa was 30 April 1996, when in fact the date of application for the further 435 visa which was the substantive visa, was 31 July 1997. So really the Tribunal should have said, but did not, that the applicant became a special need relative from 31 July 1997. In any event nothing turns on that mistake.

25. There is no demonstrable error of law on the part of the MRT. The application should be dismissed with costs. I thank counsel for the applicant who appeared in a pro bono capacity.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate: Sophie Killen

Date: 17 September 2004
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