FEDERAL COURT OF AUSTRALIA

Pintos v Minister for Immigration & Multicultural Affairs [2001] FCA 1400

MIGRATION – review of MRT decision affirming Minister’s decision to refuse to grant family visa – whether Federal Court only has that jurisdiction to review MRT decision which Migration Act 1958 (Cth) s 486 confers – whether Federal Court has no jurisdiction to review Minister’s decision – whether Wednesbury unreasonableness available as ground of review – whether nature of MRT’s function makes complaint that MRT relied on evidentiary material not before Minister fundamentally misconceived – whether fact that MRT proceeded though applicant unrepresented before it discloses judicially-reviewable error on its part – whether MRT validly exercised power under Migration Act 1958 (Cth) s 366(1)(a) to allow applicant to appear before MRT and give evidence by telephone – whether MRT made judicially-reviewable error in relying on judgment which by then had been reversed on appeal and judgment which by then had not been followed – whether any such judicially-reviewable error immaterial.

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

Wu v Minister for Immigration & Multicultural Affairs (2000) 105 FCR 39 referred to

Narayan v Minister for Immigration & Multicultural Affairs [2001] FCA 789 referred to

Huang v Minister for Immigration & Ethnic Affairs (1996) 71 FCR 95 referred to

Tuamoheloa v Minister for Immigration & Multicultural Affairs (Heerey J, 4 November 1998, unreported) referred to

Wu v Minister for Immigration & Multicultural Affairs [2000] FCA 642 referred to

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 referred to

Nguyen v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 20 referred to

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 8, 16(1)(d)

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 338(2), 366(1)(a), 366A, 475, 476(1), 476(2)(b), 485, 486

Migration Regulations (Cth) regs 1.03, 1.13(a), Sch 2 cll 806.213, 806.221

LUIS ALBERTO PINTOS CHAVES v

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 962 of 2001

KATZ J

SYDNEY

4 OCTOBER 2001

THE COURT ORDERS THAT:

1.      The application be dismissed.

2.      The applicant pay the respondent’s costs of the proceeding.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     There is before the Court an application for review of a decision which was made by the Migration Review Tribunal (“the MRT”) on 30 May 2001.

2                     By its decision, the MRT affirmed a decision which had earlier been made by a delegate of the present respondent, the Minister for Immigration & Multicultural Affairs (“the delegate” and “the Minister” respectively), that the present applicant, Mr Luis Alberto Pintos Chaves, was not entitled to the grant of a family visa.  Mr Pintos, who is a Uruguayan national, had applied to the Minister’s Department for that visa on 27 May 1997.

3                     Despite changes made to migration legislation since the date of Mr Pintos’s application to the Minister’s Department for the grant of a family visa, the present matter has proceeded before me on the basis that, in making their decisions, both the delegate and the MRT were bound both to treat the visa for which Mr Pintos had applied to the Minister’s Department as being still available to be granted and to consider Mr Pintos’s application for the grant of such visa according to those criteria for its grant which had existed at the date of Mr Pintos’s application to the Minister’s Department: compare Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at 478-80, [23]-[29] (McHugh J).

4                     The criteria for the grant of a family visa as they existed at the date of Mr Pintos’s application to the Minister’s Department can conveniently be found reproduced in the reprint, as of 30 November 1995, of the Migration Regulations (Cth) (“the Regulations”), in particular, in that Part of Sch 2 to the Regulations which was headed “Subclass 806 ¾Family”.

5                     For present purposes, it is sufficient to draw attention to certain only of those criteria.

6                     First, cl 806.213 of Sch 2 to the Regulations prescribed, as criteria to be satisfied at time of application to the Minister’s Department for the visa, that:

 “The applicant is … a special need relative of another person who:

(a)   is a settled Australian citizen …; and

(b)   is usually resident in Australia; and

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

7                     Secondly, cl 806.221 of Sch 2 to the Regulations prescribed, as a criterion to be satisfied at time of decision on the visa application, that the applicant continued to satisfy the criteria in cl 806.213 of Sch 2 to the Regulations.

8                     The term “special need relative”, used in the chapeau of cl 806.213 of Sch 2 to the Regulations, was defined in reg 1.03 of the Regulations as follows:

“‘special need relative’, in relation to an Australian citizen usually resident in Australia … means a relative who is willing and able to provide substantial and continuing assistance to the citizen … if:

(a)    the citizen … has a permanent or long-term need for assistance because of … disability, prolonged illness or other serious circumstances affecting the citizen … personally …; and

(b)    the assistance cannot reasonably be obtained from:

(i)                 any other relative of the citizen …, 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….”

9                     It will be obvious that, in order for Mr Pintos’s application to the MRT for review of the delegate’s decision to succeed, it was necessary for the MRT to be satisfied both that Mr Pintos had been, at the date of his application to the Minister’s Department for the family visa, and was, at the date of the MRT’s decision, a “special need relative” of another person.  That other person, according to Mr Pintos, was his son, who had been born to Mr Pintos and his wife on 13 March 1997 and was thus aged about two and a half months at the date of Mr Pintos’s application to the Minister’s Department for the family visa and aged four years and about two and a half months at the date of the MRT’s decision.

10                  It will also be obvious that, in order for Mr Pintos’s application to the MRT for review of the delegate’s decision to succeed, it was also necessary for the MRT to be satisfied both that Mr Pintos’s son had been, at the date of Mr Pintos’s application to the Minister’s Department for the family visa, and was, at the date of the MRT’s decision, “a settled Australian citizen”, “usually resident in Australia”, who “ha[d] nominated the applicant for the grant of the visa”.

11                  In that part of its statement of findings and reasons in which it was setting out its findings, the MRT made no finding on the question whether Mr Pintos’s son both had been, at the date of Mr Pintos’s application to the Minister’s department for the family visa, and was, at the date of the MRT’s decision, a “settled Australian citizen”.  (The notion of being “settled” was defined in reg 1.03 of the Regulations as meaning “lawfully resident in Australia for a reasonable period”.) Further, in that part of its statement of findings and reasons in which it was setting out its findings, the MRT made no finding on the question whether Mr Pintos’s son both had been, at the date of Mr Pintos’s application to the Minister’s Department for the family visa, and was, at the date of the MRT’s decision, “usually resident in Australia”.  Finally, in that part of its statement of findings and reasons in which it was setting out its findings, the MRT plainly proceeded, although without considering possible difficulties in the way of doing so, on the basis that Mr Pintos’s son, aged about two and a half months at the relevant time, “ha[d] nominated the applicant for the grant of the visa”: compare Wu v Minister for Immigration & Multicultural Affairs (2000) 105 FCR 39 at 55, [43] (Heerey, Moore and Goldberg JJ).  (The notion of being a nominator for the purpose of, among other provisions of the Regulations, cl 806.213 of Sch 2 thereto, involved “a person who puts forward … the name of the applicant”: see par 1.13(a) of the Regulations.)

12                  I infer that the reason why the MRT did not, in its statement of findings and reasons, devote as much attention as it could have done to the matters to which I have referred in the preceding paragraph of these reasons for judgment is because of the view, adverse to Mr Pintos, which the MRT took on the question whether Mr Pintos was, at the date of its decision, a “special need relative” of his son.  In its statement of findings and reasons, the MRT described that question as the “principle [sic] issue” before it and, obviously, the MRT’s taking a view adverse to Mr Pintos on that question meant that his application must fail, even if his son both had been, at the date of Mr Pintos’s application to the Minister’s Department for the family visa, and was, at the date of the MRT’s decision, “a settled Australian citizen”, “usually resident in Australia”, who “ha[d] nominated the applicant for the grant of the visa”.

13                  It had necessarily been Mr Pintos’s case before the MRT both that, at the date of his application to the Minister’s Department, 27 May 1997, he had been, and, at the date of the MRT’s decision, he would be, a “special need relative” of his son because he (Mr Pintos) satisfied three cumulative requirements: first, his son had a permanent or long-term need for assistance because of serious circumstances affecting the son personally; secondly, he (Mr Pintos) was willing and able to provide that assistance to a substantial extent and on a continuing basis; and, thirdly, that assistance could not reasonably be obtained from those persons or bodies referred to in par (b) of the definition of “special need relative” in reg 1.03 of the Regulations (compare Narayan v Minister for Immigration & Multicultural Affairs [2001] FCA 789 at [39]-[40] (Sackville J, 28 June 2001, unreported)).

14                  Although the MRT did not deal at all in its statement of findings and reasons with the third of the three cumulative requirements to which I have just referred, it did deal in its statement of findings and reasons with the first and second of those three cumulative requirements, at least so far as concerned the position at the date of its decision, 30 May 2001.  In doing so, the MRT rejected Mr Pintos’s case regarding each of them.

15                  I will first summarise the way in which the MRT dealt with the first of those three cumulative requirements, so far as concerned the position at the date of its decision.

16                  It will be recalled that the definition of “special need relative” requires that the Australian citizen usually resident in Australia have a need for assistance “because of … disability, prolonged illness or other serious circumstances affecting the citizen … personally”.  The MRT, relying on oral evidence given before it by Mr Pintos on 12 April 2001 that his son was then living with his wife and that both were doing well, concluded that Mr Pintos’s son was not, at the date of its decision, affected personally either by disability or by prolonged illness.  At the same time, however, it did refer to certain evidentiary material before it from which it could have inferred that the contrary had been the case at some point in the past.  (It is convenient to note now that, at the date of the MRT’s decision, Mr Pintos and his wife were separated and had been so since late April 1997 and that, since late April 1997, Mr Pintos’s son had been living with Mr Pintos’s wife.)

17                  Given its conclusion on the issues of disability and prolonged illness, the MRT considered that the question for it was thus one of whether Mr Pintos’s son was then affected personally by “serious circumstances” other than either disability or prolonged illness.  As to that question, the MRT stated that Mr Pintos’s,

“… claims appear to be based almost solely [that is, apart from the evidentiary material before the MRT from which it could have inferred that, at some point in the past, Mr Pintos’s son had been affected personally either by disability or by prolonged illness] on the fact of the parent child relationship, that is that the nominator’s extreme youth is of itself a serious circumstance that gives rise to a need for substantial and continuing assistance.

…

As to whether the fact that the nominator is a small child in need of parenting is itself a serious circumstance, the Tribunal notes that the courts have both taken a broad beneficial view of what constitutes a serious circumstance … and a more restricted view….”

18                  The MRT then discussed three Federal Court decisions which had dealt with the meaning of the term “serious circumstances” in par (a) of the definition of “special need relative” in reg 1.03 of the Regulations: Huang v Minister for Immigration & Ethnic Affairs (1996) 71 FCR 95 (Jenkinson, Hill and Lehane JJ); Tuamoheloa v Minister for Immigration & Multicultural Affairs (Heerey J, 4 November 1998, unreported); and Wu v Minister for Immigration & Multicultural Affairs [2000] FCA 642 (Branson J, 17 May 2000, unreported).

19                  It is convenient to mention immediately that the Wu decision which the MRT discussed and to which I have just referred had been reversed before the MRT’s decision by the Wu decision to which I have referred at [11] above and that, in the Wu appeal, the Full Court had refused to follow the earlier Full Court decision in Huang.

20                  Having discussed the three decisions to which I have referred in the next preceding paragraph of these reasons, the MRT then concluded,

“In this case there is no evidence that the nominator suffers from an illness, disability or serious circumstance other than his youth.  The Tribunal has had regard to the cases quoted above and finds that the nominator does not have a disability, prolonged illness or serious circumstance that gives rise to a need for substantial and continuing assistance.”

21                  Having now summarised the way in which the MRT dealt with the first of the three cumulative requirements to which I have referred at [13] above, so far as concerned the position at the date of its decision, I turn to the way in which the MRT dealt with the second of those three cumulative requirements, so far as concerned the position at the date of its decision.  I note that the MRT dealt with that second cumulative requirement both against the prospect that its conclusion as to the first of them was wrong and on the basis that the assistance for which Mr Pintos’s son had a permanent or long-term need because of serious circumstances affecting the son personally was financial, emotional and psychological assistance. In so characterising the assistance which Mr Pintos’s son needed, the MRT was accepting the way in which that matter had been put before it on Mr Pintos’s behalf.

22                  In dealing with the second cumulative requirement, the MRT began by referring to the existence of some evidentiary material before it to the effect that Mr Pintos’s wife had not been able satisfactorily to care for Mr Pintos’s and her son during a period shortly after the son’s birth.  Although the MRT did not refer to it at that point in its statement of findings and reasons, there was also evidentiary material before the MRT, to which it had referred earlier in its statement of findings and reasons, that, during that period, Mr Pintos had cared for the son.  I infer that, by referring to the evidentiary material regarding Mr Pintos’s wife, the MRT was impliedly stating its acceptance of the proposition that Mr Pintos had cared for the son during that short period.

23                  However, that period had certainly terminated no later than the date of the separation of Mr Pintos and his wife in late April 1997, since the MRT plainly accepted that, at that date, Mrs Pintos had, with Mr Pintos’s and her son, left the family home for a women’s refuge.  The MRT next referred to the fact that Mr Pintos’s wife had, at that date, alleged violence by Mr Pintos both against her and against their son and the MRT plainly accepted that Mrs Pintos had subsequently (in May 1997, as the MRT had earlier mentioned) obtained an apprehended violence order against Mr Pintos.

24                  The MRT next accepted that a parenting order had been made by the Family Court (taking effect in December 1997, as the MRT had earlier mentioned), pursuant to which order Mr Pintos had been limited to having contact with his son for two hours every fortnight, under supervision.  However, the MRT also accepted that Mr Pintos was presently unable to exercise even that limited contact right, which involved his visiting the son, since he (Mr Pintos) was “at the time of this decision … being deprived of his liberty”.

25                  The circumstances of that deprivation of liberty were that Mr Pintos was then (as he still is) detained in the Metropolitan Remand and Reception Centre, Silverwater, New South Wales (“the MRRC”).  According to the MRT, in oral evidence which Mr Pintos had given before it on 12 April 2001, “He said that he had been remanded on murder charges five months ago and did not have a date for trial”.

26                  However, not only was Mr Pintos currently unable to exercise his limited contact right under the parenting order, but he had not even attempted, the MRT found, to notify the son why he was not continuing with the contact visits.

27                  Next, the MRT found that Mr Pintos had not maintained those child support payments in respect of his son which he had been making at an earlier time.  It then continued,

“Although the reasons for falling behind were not clear from the visa applicant’s evidence, on his own evidence there was a lengthy period when the payments were not made.  There was no evidence presented to the Tribunal that payments are being made by the visa applicant at the time of this decision.”

28                  Finally, by way of conclusion as to the cumulative requirement presently under discussion, the MRT stated that it found,

“… that the assistance that the visa applicant has given, in the form of emotional and psychological support derived through the visa applicant’s fortnightly contact visits to the nominator and some financial maintenance, is not, at the time of this decision, substantial and continuing.”

29                  I turn now to the application for review which commenced the proceeding presently before the Court.  That application was filed by Mr Pintos in person.  It makes plain at the outset that what Mr Pintos is seeking is review of the MRT’s decision of 30 May 2001.  It identifies, as the purported sources of jurisdiction invoked, s 8 and par 16(1)(d) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), s 39B of the Judiciary Act 1903 (Cth) and s 475 and pars 476(1)(a), (c), (d) and (e) of the Migration Act 1958 (Cth) (“the Act”).  Under the heading “Details of Claim” appear four numbered and four unnumbered paragraphs.  Those eight paragraphs are not all easy to interpret, but, doing the best I can, I do so as follows.

30                  Of the eight paragraphs, three are directed to the delegate’s, rather than to the MRT’s, decision and complain: first, that there was a failure to take into account relevant considerations (that complaint being made twice); and, secondly, that the decision “was not properly made”.  No particulars of those paragraphs appear.  Three of the paragraphs are directed to the MRT’s decision and complain of: first, Wednesbury unreasonableness (of which paragraph no particulars appear); secondly, the MRT’s relying on evidentiary material which had not been before the delegate; and, thirdly, the MRT’s conducting a hearing at which Mr Pintos participated by telephone only.  One of the paragraphs complains of Mr Pintos’s having been unrepresented, which I take to be a reference to his having been unrepresented before the MRT.  The remaining paragraph, which I take to raise no matter additional to Mr Pintos’s complaint of having been unrepresented before the MRT, reads (I quote verbatim),

“The applicant failed because the applicant had the benefit of family and legal adviser’ and” the person concerned has not had the benefit of any advice[.]”

31                  Mr Pintos appeared before me in person on the hearing of his application for review of the MRT’s decision and, as well as suffering from the disadvantage of being unrepresented, he also suffered from the disadvantage of not understanding or speaking the English language.  However, he was able, through a Spanish-English interpreter, to make oral submissions in support of his application.  Not surprisingly, most of those submissions were directed only to the merits of his family visa application, although he did repeat in the course of his submissions the complaint which had appeared in his application for review about having been unrepresented before the MRT.  In those circumstances, I will focus in the first instance on the eight paragraphs of his application for review which I have summarised above.

32                  I mention at the outset that it will be apparent that the combined effect of subs 338(2), pars 475(1)(a) and (2)(c) and s 485 of the Act is that this Court has no jurisdiction to review the MRT’s decision, except such jurisdiction as has been conferred on the Court by s 486 of the Act, and has no jurisdiction to review the delegate’s decision at all.  That means that I am unable to exercise jurisdiction in the present matter under either the Judicial Review Act or the Judiciary Act and am unable to deal with those three of the eight paragraphs in Mr Pintos’s application for review which concern the delegate’s decision.

33                  As to the remaining grounds of Mr Pintos’s application, I note first that Wednesbury unreasonableness is not a ground of review of the MRT’s decision: see, for example, Gummow J’s reasons for judgment in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 648-50, [121]-[127] and note, in any event, the terms of par 476(2)(b) of the Act.

34                  Next, regarding the MRT’s having relied on evidentiary material which had not been before the delegate, that complaint is obviously fundamentally misconceived, given the nature of the MRT’s function.

35                  Next, regarding Mr Pintos’s having been unrepresented before the MRT, for the MRT to proceed in those circumstances discloses no judicially-reviewable error on its part: compare Nguyen v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 20 (Sackville, Marshall and Lehane JJ) and see also s 366A of the Act.

36                  That leaves only Mr Pintos’s complaint that he participated by telephone only at the hearing conducted by the MRT.

37                  Paragraph 366(1)(a) of the Act provides that, for the purposes of the review of a decision, the MRT may allow an appearance before it, or the giving of evidence, by the applicant to be by telephone.

38                  The evidence before me on the matter is that, when an officer of the MRT first became aware that Mr Pintos was detained in the MRRC, she sought to make arrangements with the MRRC authorities for him to appear before the MRT and give evidence by telephone on 12 April 2001.  When Mr Pintos was made aware of those arrangements, he sought an adjournment of the MRT’s hearing “until my matter in the gaol is resolved”.  However, the MRT officer subsequently spoke to him by telephone regarding his adjournment request, at which time Mr Pintos told the officer that he was “able to attend the hearing via telephone”.  Further, according to the MRT officer, “I clarified that he understood that the Tribunal would call him on Thursday morning [12 April 2001] at 9:30 and he agreed”.  In the result, Mr Pintos did appear and give evidence by telephone at the nominated date and time.

39                  In those circumstances, I am satisfied that the MRT acted pursuant to par 366(1)(a) of the Act when Mr Pintos appeared before it and gave evidence by telephone.

40                  Having now disposed of the various grounds set out in Mr Pintos’s application for review, I add that, in light of his circumstances, I have given independent consideration to the question whether the MRT’s statement of findings and reasons discloses judicially-reviewable error by it.  In particular, I have given consideration to the MRT’s approach to the requirements that, at the date of its decision, first, Mr Pintos’s son have a permanent or long-term need for assistance because of serious circumstances affecting the son personally and, secondly, Mr Pintos be willing and able to provide that assistance to a substantial extent and on a continuing basis.

41                  As to the requirement that, at the date of the MRT’s decision, Mr Pintos’s son have a permanent or long-term need for assistance because of serious circumstances affecting the son personally, I have already mentioned at [19] above that the MRT approached that requirement unaware of the decision of a Full Court of this Court in Wu, which decision had both reversed the primary Judge’s decision in that case and refused to follow the earlier Full Court decision in Huang.  The Minister acknowledged before me that, in those circumstances, the MRT’s approach to that requirement could not be supported.

42                  However, it was the Minister’s further submission that, since the requirement that, at the date of the MRT’s decision, Mr Pintos be willing and able to provide to a substantial extent and on a continuing basis that assistance for which his son had a permanent or long-term need because of serious circumstances affecting the son personally was a cumulative one, then, if the MRT had committed no judicially-reviewable error regarding that requirement, any judicially-reviewable error which the MRT may have committed regarding the requirement that, at the date of the MRT decision, Mr Pintos’s son have a permanent or long-term need for assistance because of serious circumstances affecting the son personally would be an immaterial error.

43                  On the question whether the MRT had committed any judicially-reviewable error regarding the requirement that, at the date of the MRT’s decision, Mr Pintos be willing and able to provide to a substantial extent and on a continuing basis that assistance for which his son had a permanent or long-term need because of serious circumstances affecting the son personally, the Minister conceded that the MRT had not, in terms, stated in its statement of findings and reasons, a finding on that requirement.  However, submitted the Minister, a benevolent construction must be given to the reasons of a body like the MRT and, provided one approached its reasons in that way, one would conclude that it had, in substance, found adversely to Mr Pintos regarding that requirement.

44                  I accept that submission made by the Minister. I consider it appropriate to read the passage from the MRT’s statement of findings and reasons which I have quoted at [28] above as expressing, in effect, a conclusion by the MRT that Mr Pintos was not, at the date of its decision, both willing and able to provide the needed financial, emotional and psychological assistance to a substantial extent and on a continuing basis. That was a conclusion well open to the MRT, given the evidentiary material before it and the findings of fact which it had made.

45                  In those circumstances, I will dismiss Mr Pintos’s application, with costs.

Associate:

Dated:              4 October 2001