Betros v Minister for Immigration & Multicultural Affairs [1999] FCA 1539 (22 October 1999)

Last Updated: 18 November 1999

FEDERAL COURT OF AUSTRALIA

Betros v Minister for Immigration & Multicultural Affairs [1999] FCA 1539

MIGRATION - whether the Minister's delegate failed to give adequate reasons - whether the applicant received notification of decision - whether the delegate erred in deciding if the applicant was wholly or substantially financially independent.

Migration Act 1958, s 476(1)(a), 476(c)(e)

Migration Regulations 1994, reg 1.03

Valmeer v The Minister, 9 July 1998, unreported, referred to

HANNA KHAZEN BETROS V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 470 OF 1999

JUDGE: BEAUMONT J.

DATE: 22 OCTOBER 1999

PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 470 OF 1999

BETWEEN:	HANNA KHAZEN BETROS Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	BEAUMONT J.
DATE OF ORDER:	22 OCTOBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application is dismissed, with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 470 OF 1999

BETWEEN:	HANNA KHAZEN BETROS Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	BEAUMONT J.
DATE:	22 OCTOBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

1 Before the Court is an application for an order of review of a decision by a delegate of the Minister who refused to grant a resolution of status (temporary visa) under subclass 450. Two grounds of review are relied upon.

2 The first ground argued is that the Minister did not observe the procedures that were required by the Migration Act 1958 ("the Act") or Migration Regulations to be observed in connection with the making of its decision, in contravention, it is said, of s 476(1)(a) of the Act. On behalf of the applicant, it is here submitted, in essence, that the Minister's delegate did not give adequate reasons for his decision.

3 In order to understand the argument, reference should first be made to some background matters as follows. There are in evidence two letters written by Mr Robert Kitson, Senior Migration Officer, Australian Embassy, Beirut, reporting to inform the applicant that his application for a subclass 450 visa to Australia has been refused. The applicant is a resident of Lebanon, but there is no evidence of his address in Lebanon in any of the material before the Court. What is before the Court is the usual green book of relevant documents prepared by the Department in accordance with the Court's usual protocol in these matters. I have no evidence from the applicant himself. Indeed, I have no evidence from the applicant's side of the record of any kind, although, of course, the applicant does naturally rely upon the material in the green book. The green book, so far as its relates to the applicant, consists of the application for resolution of status (temporary) subclass 850 and resolution of status subclass 851, the two letters from the Australian Embassy, Beirut, that I have mentioned, together with a file note of an interview of the applicant conducted in Beirut.

4 It is true that the first of the two letters written by Mr Kitson, dated 3 February 1999, whilst addressed to the applicant, does not specify the applicant's address. The second letter, dated 21 November 1999, is addressed to the applicant "through Agent Gitani (by hand)". As previously stated, apart from this, there is simply no evidence from the applicant that neither of these letters were received. No reason or explanation has been advanced on behalf of the applicant why the applicant could not have given evidence that these documents were not received by him. I therefore infer that if the applicant had given that evidence it would not have assisted his case.

5 There is also, of course, the usual common law presumption of regularity. In all the circumstances I am not prepared to infer that the applicant did not receive notification of the decision. The two letters I have mentioned did, however, state that the reason for the refusal was that the Minister's delegate had concluded that the applicant was not a dependent child of the sponsor.

6 Both letters were in substantially the same terms, as follows:

"Dear Mr Betros

I am writing to inform you that your application for a subclass 450 visa to Australia has been refused.

An applicant for the 450 visa is required, among other things, to be a member of the immediate family of their sponsor, ie the person has made an application for a Resolution of Status (Temporary) (Class UH) visa in Australia (subregulations 450.211 and 450.221 of the Migration Regulations).

To be a member of the immediate family a person must be the spouse or dependent child of the sponsor or a parent if the sponsor has not turned 18 years of age.

Relevant policy of the Department of Immigration and Multicultural Affairs includes the following guidance in interpreting the term dependence:

`Dependence generally ceases (terminates) in one of three ways:

- when the person gains adult status, in Australian law at 18 years of age;

- on marriage (or commencing a de facto spouse relationship); or

- on taking up employment.'

`A person who is employed (or has been employed) is not regarded as dependent, regardless of whether employed full-time, part-time, on a continuing basis or on a casual basis' (PAM part 1, Div 1.2, reg 1.03 definition of `Dependent').

After considering your application and the information you provided at interview I do not accept that you are a dependent child of the sponsor and therefore you cannot be regarded as a member of the immediate family for the purpose of this visa. Subclauses 450.211 and subclauses 450.221 are not met.

The visa was [sic] therefore been refused 8 January 1999.

A decision to refuse the subclass 450 is not reviewable."

7 In my opinion, those reasons adequately expressed the basis for the refusal of the application.

8 In any event, reliance is placed ( at 12) his Honour noted that by s 66(4) of the Act it is provided that "failure to give notification of a decision does not affect the validity of the decision".

9 In my opinion, the first ground of review is not made out.

10 The second ground of review argued is that the decision involved an error of law, being it is said, an error involving an incorrect interpretation of the applicable law, or an incorrect application of the law to the facts as found by the person who made the decision, contrary, the argument runs, to the provisions of s 476(1)(e) of the Act

11 The evidence on the question of dependence is that the date of birth of the applicant was 5 October 1980, together with some material in the file note previously mentioned. In the file note, under the heading: "Assessment of Dependency", the following appears:

"Assessment of dependency:

Applicant is under 38 years of age and has not seen his parents for many years. They left him and his brother and stayed illegally in Australia. It must be supposed that the daily care and control was delegated and that the sending of money was an indication of support. According to policy: `A person who is employed (or has been employed) is not regarded as dependent, regardless of whether employed full-time, part-time, on a continuing basis or on a casual basis' (PAM part 1, Div 1.2, reg 1.03 definition of `Dependent'. Given that the applicant claims his `work' was training and that he claims not to have done it for over a year and because he is under 17 years I believe we regard him as dependent.

I accept Applicant is dependent. Robert Kitson SNO 241298

I have looked again at the conclusion of my interview notes. I was mistaken in stating that the applicant was under 18 years at the time of my assessment. In fact he had ... tunred [sic] 18 two months previously. The legislation requires that he be dependent at the time of decision as well as at the time of application. As he is over 18 years then the regulations indicate that `dependent' ... `in relation to a person, means wholly or substantially dependent on another person for financial, psychological or physical support;'

The applicant and his brother receive money from Australia but have received no other support from their parents for many years and have looked after themselves with the assistance of an uncle and aunt. The applicant is an 18 year old man, who has been looking after himself for several years. He has been in the paid workforce for three years, 2 employed and one unemployed. [H]e would work full time if the economic circumstances permitted and he intends to work full time if he were to go to Australia. I have reviewed the nature of his employment and have concluded that it cannot be regarded primari[]ly as training as the training e[]lement is secondary to the main activity ie paid employment.

According to policy:

`Dependence generally ceases (terminates) in one of three ways:

- when the person gains adult status, in Australian law at 18 years of age;

- on marriage (or commencing a de facto spouse relationship); or

- on taking up employment.'

And...

`A person who is employed (or has been employed) is not regarded as dependent, regardless of whether employed full-time, part-time, on a continuing basis or on a casual basis' (PAM part 1. Div 1.2, reg 1.03 definition of `Dependent'.

I am not convinced that at the time of interview or at the time of decision that the applicant is dependent on the 850 applicant. [H]e is thus not a member of the immediate family of the 850 applicant and fails to satisfy regulation 450.221.

Refused."

12 In my opinion, the Minister's delegate addressed the correct legal question in this connection. That question was whether the applicant was a "dependent child" within the meaning of subclass 850 - resolution of status (temporary) visa.

13 By regulation 1.03 of the Migration Regulations 1994 ("the Regulations"), the terms "dependent" and "dependent child" are defined for the purpose of the regulations, unless the contrary intention appears, as follows:

"dependent, in relation to a person, means wholly or substantially dependent on another person for financial, psychological or physical support;

dependent child means the natural or adopted child of a person (other than a child who is a spouse or engaged to be married), being a child:

(a) who:

(i) has not turned 18; and

(ii) is wholly or substantially in the daily care and control of that person; or

(b) who:

(i) has turned 18; and

(ii) is dependent on that person; or

(c) who is wholly or substantially incapacitated for work because of a disability of a kind referred to in paragraphs (a) to (g) of the definition of `disability' in subsection 4(1) of the Disability Discrimination Act 1992;"

14 It will be seen, then, that the question for the delegate was whether the applicant was "wholly or substantially dependent on another person for financial, psychological or physical support". It is accepted for the present purposes that the only aspect of dependence that could have been relied upon in the present case was dependence in the form of financial support as has been noted. As has been seen, the test predicates a person who is, "wholly or substantially dependent". (Emphasis added)

15 On behalf of the applicant, particular reliance is placed upon the circumstance that the delegate noted in the file note, that the applicant received money from Australia. However, the file note, as has been seen, went on to state that:

"... but [has] received no other support from [his] parents for many years and [has] looked after [himself] with the assistance of an uncle and aunt. The applicant is an 18 year old man, who has been looking after himself for several years. He has been in the paid workforce for three years, 2 employed and one unemployed. [H]e would work full time if the economic circumstances permitted and he intends to work full time if he were to go to Australia. I have reviewed the nature of his employment and [I] have concluded that it cannot be regarded primari[]ly as training as the training e[]lement is secondary to the main activity ie paid employment."

16 It is true also that the file note, and indeed, the letters of notification of the decision, refer to government policy in this area, which is that:

"Dependence generally ceases (terminates) in one of three ways:

- when the person gains adult status, in Australian law at 18 years of age;

- on marriage (or commencing a de facto spouse relationship) ...; or

- on taking up employment."

17 In my opinion, the delegate did, as I have already indicated, address the correct legal question in the present context. It then became a question of fact (and no doubt of judgment and assessment on the part of the delegate) to decide whether, in truth, there was a relationship of whole or substantial dependence in the present case.

18 The trend of recent authority in the High Court of Australia and, indeed, the provisions of the amendment of the migration legislation made by the Parliament make it clear, beyond question, that, in these matters, this Court's authority and jurisdiction are strictly confined to errors of law. That is to say, that binding authority and that legislation make it clear beyond any question that issues of fact of the kind considered by the delegate in the present matter are exclusively within the authority and jurisdiction of the executive, and thus not of the judicial branch, of government.

19 In my opinion, therefore, it was a matter of fact for the delegate to decide whether the relationship of whole or substantial dependence had been established.

20 I can detect no error of law in the process of reasoning which led the delegate to that conclusion. In those circumstances the application must fail.

ORDERS

21 I order that the application is dismissed, with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate:

Dated: 12 November 1999

Solicitor for the Applicant:	Simon Diab of John H Maait & Co.
Counsel for the Respondent:	Justin Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 October 1999
Date of Judgment:	22 October 1999