Devi v Minister for Immigration & Anor [2009] FMCA 209 (9 March 2009)

Last Updated: 12 March 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DEVI v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 209

MIGRATION – Application for review of MRT decision – where visa applicant’s grandmother applied to the Court for review – where visa applicant’s father granted a carer’s visa – whether visa applicant was a “dependent child” of her father – whether Tribunal correctly understood meaning of “dependent” – where family advised of preferable course of action.

Migration Regulations 1994

NABE v Minister for Immigration & Anor [2004] FCAFC 263

Applicant:

RAM KALI DEVI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2852 of 2008

Judgment of:

Raphael FM

Hearing date:

9 March 2009

Date of Last Submission:

9 March 2009

Delivered at:

Sydney

Delivered on:

9 March 2009

REPRESENTATION

For the Applicant:

In person

Counsel for the First Respondent:

Mr T Reilly

Solicitors for the First Respondent:

DLA Phillips Fox

ORDERS

(1) Application dismissed.
(2) Applicant to pay the First Respondent's costs assessed in the sum of $5,000.00, such sum to be paid by the Applicant's litigation guardian, Mr Raj Kumar Verma.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2852 of 2008

RAM KALI DEVI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 3 October 2008, the Migration Review Tribunal published its decision upon an application by Mrs Ram Kali Devi for a visa to be granted in favour of her granddaughter, Ms Pooja Verma in the class of Other Family (Migrant) (Class BO) visa. The decision of the delegate which the Tribunal was reviewing was that the visa applicant did not satisfy clause 116.311 and clause 116.321 of Schedule 2 to the Migration Regulations 1994 (the “Regulations”). The Tribunal concluded that the visa applicant did satisfy clause 116.311 in that at the time of application Ms Verma was a member of the family unit, but concluded that at the time of decision she was not.
2. Ms Devi, the review applicant, is an elderly lady who has a permanent right to remain in Australia. It would appear that for some considerable time her son, Mr Raj Kumar Verma, and daughter-in-law and their family have also been in Australia. An application was made for another son of hers, Mr Basant Kumar, and his wife to enter Australia under the visa class Other Family (Migrant) (Class BO) so that Mr Basant Kumar could look after the elderly Ms Devi. This visa was eventually granted. During the period that the application for the visa was being made, Ms Pooja Verma, Mr Basant Kumar's daughter, was living in India. At all material times Mr Basant Kumar has been unemployed. Whilst he was in India, he received money from his brother. Some of that money was used to supplement Ms Pooja Verma, who appears to be a young lady in her twenties with some qualifications in teaching. After Mr Basant Kumar and his wife were granted their visa to come to Australia to look after the mother, Ms Pooja Verma remained in India.
3. In the transcript of the hearing before the Migration Review Tribunal, which is annexed to an affidavit of Mr Sarkis, the following exchange takes place at [T4-5]:
   • “A: She [Pooja Verma] is living with her cousin and crying all the time.
   • M: Who is paying for the accommodation and her food and clothing?
   • A: My son sends the money.
   • M: So that is her uncle is that correct?
   • A: He is the uncle, father's brother.
   • M: As far as you are concerned, it is your son, Raj Kumar, who is providing financial support for your granddaughter?
   • A: Yes.
   • M: To meet definition of being dependant your granddaughter would need to be dependant on your [her] father for her basic financial needs.
   • A: Her father himself is not employed and not financially, he does not have any money.
   • M: And is the money from Raj Kumar your granddaughter's main source of financial support?
   • A: Raj Kumar is only one sending money and she relies on this money.”
4. It is trite law that a Court dealing with judicial review of a decision of the Migration Review Tribunal is only able to provide relief where there has been a jurisdictional error committed by the Tribunal. In order to come to a view as to whether or not a jurisdictional error has occurred, one must look at the relevant jurisdictional fact. The relevant jurisdictional fact in a case of this nature is whether or not the visa applicant (the granddaughter) is a dependent child of Mr Basant Kumar, her father. A dependent child is defined in regulation 1.03 of the Regulations as:
   • “dependent child means the natural or adopted child, or stepchild, of a person (other than a child who has a spouse or is engaged to be married), being a child who:
     • (a) has not turned 18; or
     • (b) has turned 18 and:
       • (i) is dependant on that person; or
       • (ii) is incapacitated for work due to the total or partial loss of the child's bodily or mental functions.”

“Dependent” is defined in regulation 1.03 as having the meaning given by regulation 1.05A. That meaning is set out in the Tribunal decision at [CB 295].

5. If the Tribunal correctly understands the jurisdictional fact, then even if it makes an error in the conclusion it reaches upon that jurisdictional fact, it will have made only an error within jurisdiction and not a jurisdictional error itself. For example, in this particular case the Tribunal found at [CB 29-30] that it was satisfied that at the time of application the visa applicant was substantially reliant on her father for financial support to meet her basic needs for food, clothing and shelter, and had been for a substantial period immediately before that time. The evidence given to the Tribunal which permitted it to come to this conclusion was that her father received a regular pension from his brother. It would have been possible for the Tribunal to have come to the conclusion that this did not qualify as reliance upon the father for financial support. Rather, it was reliance upon the uncle. Such a view would not have been a jurisdictional error because the jurisdictional fact was understood and properly considered by the Tribunal. Thus, when at paragraph 31 [CB 297] the Tribunal said:

“However, at the time of decision, the applicant continued to be a member of the family unit of her father. The Tribunal is not satisfied that the visa applicant continues to be substantially reliant on her father for financial support to meet her basic needs for food, clothing and shelter. The Tribunal is satisfied that since her parents left India, she has been reliant on her uncle, Raj Kumar Verma, directly for financial support to meet her basic needs for food, clothing and shelter. Her uncle transfers money to the visa applicant directly and she uses the money to pay her cousin for accommodation and to pay for her food and clothing. She receives no financial support from her father as he is not working and relies on his brother, Raj Kuma Verma, for his financial support.”

6. The Tribunal was coming to a factual determination upon a jurisdictional fact which it understood correctly. In this case, the facts found by the Tribunal were based upon the evidence as given in the extract from the transcript adumbrated above. Perhaps the matter has been put more authoritatively by the Full Court, Black CJ, French and Selway JJ in NABE v Minister for Immigration & Anor [2004] FCAFC 263 at [53]:
   • “It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision. This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act. If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351-352 per McHugh, Gummow and Hayne JJ). An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact:
     • ‘Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.’
       
       Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10; (2001) 177 ALR 473 at 481 [35] per McHugh J.”
7. Before me today the visa applicant's grandmother, Ms Devi, was represented by her son, Mr Raj Kumar Verma. He did not attempt to resile from any of the evidence which had previously been given. He did tell me that since the Tribunal decision, money has been sent to the visa applicant directly by her father from funds made available to him from Centrelink. That is not a matter which I am entitled to take into account in deciding this case. He accepts that at the time the decision was made the money was being provided by himself and, as he explained to me, he was the engine pulling a large number of carriages, all of which belonged to members of his family, including his niece.
8. In the application which was made to this Court seeking review of a Tribunal decision on 4 November 2008, the applicant argued that the Tribunal had erred in law in understanding, interpreting and applying the definition of “dependency”. As I have said, if the Tribunal did misunderstand or misinterpret the definition of “dependency”, that would indeed have been a jurisdictional error. But there is no evidence before me that that has occurred. The Tribunal decision is clear, as are the grounds for it. There is no suggestion that the jurisdictional fact was misinterpreted.
9. The second ground of application was that the Tribunal failed to consider that the visa applicant was dependant financially, emotionally, physically and psychologically. The ground does not suggest who the visa applicant was dependant upon, and Mr Raj Kumar Verma told me that there was no suggestion made to the Tribunal that she might have been a person who fell within that part of the regulation dealing with a person suffering from a disability.
10. The third ground of application was that the Tribunal failed to understand that Ms Verma was the only daughter of the family and never had a permanent job or sufficient income to meet her basic needs. I do not think that this is correct. I think that the Tribunal clearly understood the situation of Ms Verma, but in any event the failure to do that would not affect the application, because not having a permanent job or sufficient income is not the criteria that is to be applied.
11. Finally, the applicant argues that the Tribunal committed a jurisdictional error by failing to consider the applicant's claim and by ignoring the uncontested evidence submitted in support of her claim. The Tribunal misapplied and misunderstood the definition of “dependency”. The evidence given in support of the applicant's claim was, in fact, fatal to the claim itself, as I have already explained. I have also concluded that the Tribunal did not misapply or misunderstand the definition of “dependency”.
12. This is an unfortunate case. The applicants may well have been advised to take a different course to the one they have adopted. There are avenues open to it other than applications to this Court and appeals to the Federal Court which may achieve the result they had hoped for. This application must be dismissed. The applicant must pay the respondent's costs which I assess in the sum of $5,000.00, such sum to be paid by the applicant's litigation guardian, Mr Raj Kumar Verma.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 12 March 2009