FEDERAL COURT OF AUSTRALIA

Issa v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 933

FATIMA ISSA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 319 OF 2002

EMMETT J

19 JULY 2002

SYDNEY

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                     The applicant (“the Review Applicant”), is the mother of a national of Syria (“the Primary Applicant”).  The Primary Applicant, with her husband and two children, applied for Other Family (Migrant) (Class BO) visas on 19 April 2000.  A delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”), decided to refuse to grant the visas on 10 July 2001.  On 10 September 2001 the Review Applicant lodged an application for review of that decision by the Migration Review Tribunal (“the Tribunal”).  On 20 March 2002 the Tribunal affirmed the delegate’s decision. 

2                     On 18 April 2002 the Review Applicant filed an application to this Court saying:

“The applicant is appealing against a decision made by the Migration Review Tribunal dated 20/3/2002 and received 27-3-2002. “

That, of itself, indicates a misconception of the nature of the proceeding before this Court. 

3                     The decision of the Tribunal is a “privative clause decision” within the meaning of s 474(2) of the Migration Act 1958 (Cth) (“the Act”).  Accordingly, by the operation of s 474(1), it is final and conclusive, must not be challenged, appealed against, reviewed, quashed, or called in question in any court, and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.  Despite such language, such a provision will be construed as permitting a challenge to the decision, if the decision is not reasonably referrable to the power pursuant to which it was purportedly made, or if it was not made in good faith. 

4                     The Review Applicant has been represented before me today by her solicitor, who has made written submissions in support of the application.  In essence, the Review Applicant seeks to avoid the operation of s 474(1) by inviting the Court to conclude that the decision of the Tribunal was attendant with bad faith.  In order to explain the contention, it is necessary to say something about the Tribunal’s decision. 

5                     Clause 116.221 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) must be satisfied at the time of the making of a decision by the Tribunal.  That clause provides that the Primary Applicant must be a carer of the Review Applicant.  Regulation 1.15AA(1) defines the term “carer” relevantly in the following terms:

“(1)     An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australian, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:

(a)        the applicant is a relative of the resident,

(b)       according to a certificate that meets the requirements of subregulation 2:

(i)                 - a person (being the resident or member of the family unit of the resident) has a medical condition; and

………………………

(iv)       because of the medical condition, the person has and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and

………………………

(e)        the assistance cannot reasonably be obtained:

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

6                     As I have said, the Primary Applicant is the daughter of the Review Applicant and satisfies paragraph 1.15AA(1)(a).  A certificate was before the Tribunal indicating that the Review Applicant met the requirements for a carer.  The Tribunal also concluded that the Primary Applicant satisfied other relevant paragraphs of clause 1.15AA(1).

7                     The issue before the Tribunal was whether the direct assistance required by the Review Applicant in attending to the practical needs of daily life cannot reasonably be obtained from any other relative resident in Australia or from welfare, hospital nursing or community services.  The Tribunal found that the Review Applicant lives with her husband.  The Tribunal accepted the evidence of the Review Applicant that her husband has health problems.  However, the Tribunal was satisfied, based on the Review Applicant’s evidence, that her husband is able to drive her to appointments, to the doctor and to do the shopping, including obtaining medication from a pharmacy.

8                     In addition, the Tribunal made findings concerning two sons of the Review Applicant.  The first son to whom reference was made, lives at Punchbowl in a three bedroom townhouse with his wife and four children aged between seven months and nine years.  He visits his parents once a week or fortnight.  The Tribunal found that, if he had time, he would probably help his parents if they asked.  Another son lives at Bass Hill in a three bedroom house with his wife and two children, aged five years and one year.  He sometimes sees his parents each week, but sometimes it is possibly up to three weeks.  The Tribunal found that, if the Review Applicant asked for help, the second son would help her.  It takes up to half an hour to drive from his place to his parents.

9                     The Tribunal found that the Review Applicant has four adult children living in Australia and accepted the evidence provided by the Review Applicant and her first son that relations between her and her husband and their daughter had been strained since their daughter left her marriage.  The Tribunal also accepted evidence of the Review Applicant and her second son that relations between the Review Applicant and her husband and another son have also become strained in recent times.  The Tribunal accepted the evidence of the Review Applicant and two of her sons that, when her husband was unable to drive the Review Applicant during his hospitalisation, her sons were able to do so.  One son drove the Review Applicant to the hearing.  The Tribunal accepted the evidence of the Review Applicant and her two sons that they visit their parents regularly and that, while they currently do not provide assistance during those visits, they would provide assistance if she asked.  The Tribunal found that both lives close to their parents. 

10                  The Tribunal also noted the desire of the Review Applicant to have her daughter, the Primary Applicant, reunited with her family.  The Tribunal found that the depression of the Review Applicant has impaired her ability to attend to the practical aspects of daily life.  However, the Tribunal was satisfied, that the direct assistance required by the Review Applicant in attending to the practical aspects of daily life is currently provided by her husband.  He is able to drive her to her doctor’s appointments and shopping and he is able to be present when she is washing.

11                  The Tribunal observed that the Review Applicant was able to explain the medication she was taking, its purpose and frequency.  It found that her husband is present at home to assist her in remembering to take medication at the appropriate times.  It found that her husband is present to assist her in remembering to turn off appliances.  The Tribunal was also satisfied that any additional assistance needed, in the purchase or preparation of food or household chores, could be provided by the two sons who gave evidence, in their regular visits to their parents.

12                  The Tribunal made no finding as to whether direct assistance could be provided by the Review Applicant’s six brothers and four sisters or their families or whether assistance could be obtained from welfare, hospital nursing or community services.  However, the Tribunal was not satisfied that the direct assistance needed by the Review Applicant in attending to the practical aspects of daily life could not reasonably be obtained from the Review Applicant’s husband and sons, who are her relatives as defined in Regulation 1.03.  Accordingly the Tribunal concluded that the Primary Applicant does not satisfy paragraph 1.15AA(1)(e)(i) and therefore does not satisfy Clause 116.221 of Schedule 2 to the Regulations. 

13                  The decision of the Tribunal is clearly referable to the power conferred upon it by the Act.  The only possible exception to the application of s 474 of the Act is the assertion that the decision was made in bad faith.  The Review Applicant contended that the Tribunal made the same mistake that was made by the delegate and that the question that should have been considered was what services the Review Applicant was actually in need of and whether the Review Applicant could actually acquire those services from her family or the community.  The contention was that the Tribunal’s finding that, on the hypothetical assumption that the family of the Review Applicant have an obligation or resources to offer to the Review Applicant the services she needs, it reached a wrong conclusion. 

14                  The submissions on behalf of the Review Applicant assert that neither her family, nor the community, have the available resources to cater for the Review Applicant’s needs.  The assertion was that, despite the confirmation by the Review Applicant’s family of that fact, the Tribunal insisted that the Review Applicant’s daughter has some obligation and could help the Review Applicant in that there are services available in the community should the need arise.  I do not understand the basis of that assertion in the light of the findings that I have summarised above.

15                  The Review Applicant’s written submissions assert that the Tribunal intentionally misdirected itself and that, accordingly, its findings on a series of facts or hypothetical assumptions were erroneous or wrong in law.  The final assertion is that such “intentional and persistent misdirection” showed the Tribunal member’s bad faith and disregard for the applicant’s needs.  There does not appear to me to be any substance in those assertions.  The Tribunal summarised the evidence upon which its decision was based and gave its reasons for reaching the conclusions of fact that it reached.  It is not for me to speculate as to whether or not the conclusions were right or wrong.  Even if the Tribunal did make a mistake in a finding of fact, that of itself, is not sufficient to constitute bad faith. 

16                  There is nothing in the material to which I have been taken, and to which I have referred already, to support the assertion that the Tribunal intentionally and persistently misdirected itself.  In the light of s 474 of the Act I consider that this Court has no power to interfere with the decision of the Tribunal and that the application should be dismissed.

17                  The respondent seeks an order for costs of the proceeding.  That order was resisted on the basis that the Review Applicant and her husband are pensioners and have no funds.  That circumstance may be unfortunate.  However, I indicated to the Review Applicant when the matter first came before me for directions that the consequence of persisting with the claim could be that the Court would order her to pay the Minister’s costs.  In the circumstances I am not persuaded there is any reason to depart from the normal rule and I propose to order the Review Applicant to pay the Minister’s costs.

Associate:

Dated:              25 July 2002