SZJYR v Minister for Immigration and Citizenship [2010] FCA 135 (24 February 2010)

Last Updated: 26 February 2010

FEDERAL COURT OF AUSTRALIA

SZJYR v Minister for Immigration and Citizenship [2010] FCA 135

Citation:		SZJYR v Minister for Immigration and Citizenship [2010] FCA 135
Parties:		SZJYR and SZJYS and SZJYT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL
File number:		NSD 1473 of 2009
Judge:		BESANKO J
Date of judgment:		24 February 2010
Date of hearing:	23 February 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	15
Counsel for the Applicants:	The Applicants appeared.
Counsel for the First Respondent:	Ms N Johnson
Solicitor for the First Respondent:	Sparke Helmore Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1473 of 2009

BETWEEN:	SZJYR First Applicant SZJYS Second Applicant SZJYT Third Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	24 FEBRUARY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time within which to file and serve a notice of appeal be refused.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1473 of 2009

BETWEEN:	SZJYR First Applicant SZJYS Second Applicant SZJYT Third Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	BESANKO J
DATE:	24 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time within which to file and serve a notice of appeal from an order made by the Federal Magistrates Court. The application is brought under O 52 r 15(2) of the Federal Court Rules. On 13 October 2009, the Federal Magistrates Court dismissed an application for judicial review with respect to a decision made by the Migration Review Tribunal (“the Tribunal”). The Tribunal’s decision was to affirm decisions of a delegate of the Minister for Immigration and Citizenship not to grant Child (Residence) (Class BT) visas to the three applicants. The application for an extension of time is dated 22 December 2009 and it is accompanied by an affidavit of the first applicant to which a proposed notice of appeal is annexed.
2. The three applicants are not named because they previously applied for protection visas, and, although they were unsuccessful, the federal magistrate considered that s 91X of the Migration Act 1958 (Cth) (“the Act”) operated to prevent the Court from publishing their names.
3. The matters which are relevant to an application for an extension of time are well known. They include the length of the delay, the explanation for the delay, the prejudice to the applicant if time is not extended, the prejudice to the respondent if time is extended, and the merits of the proposed appeal. In this case, I have reached the conclusion that the explanation for the delay is not a satisfactory one, but that that in itself should not lead me to refuse the application. I have reached the conclusion that the proposed appeal has no prospect of success, and in those circumstances, the application for an extension of time should be refused.
4. The first applicant was born on 2 October 1961. He is married to the second applicant who was born on 13 October 1968. The third applicant is the son of the first and second applicants and he was born on 27 May 1991. The person named in the applications as the sponsor was a Mr Toufic Laba Sarkis, who is an Australian citizen.
5. On 19 December 2008, the applicants applied for the relevant visas. The first applicant was the primary applicant and the second and third applicants were secondary applicants. On 15 January 2009, a delegate of the Minister for Immigration and Citizenship decided to refuse to grant such visas to the applicants. The delegate refused the applications on the ground that the first applicant did not satisfy cl 802.212 of Sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) because he was older than 25 years and was not incapacitated for work in the relevant sense.
6. On 12 February 2009, the applicants applied to the Tribunal for review of the delegate’s decisions. On 30 April 2009, the Tribunal wrote to the applicants inviting them to comment on, or respond to, information that the Tribunal considered would, subject to any comments or response they may have, be the reason, or a part of the reason, for affirming the decisions that were under review. The applicants responded to the Tribunal’s letter on 8 June 2009. The Tribunal conducted a hearing on 14 July 2009 and the first and second applicants appeared and were assisted by an interpreter in the Hindi (Indian) and English languages. On 22 July 2009, the Tribunal handed down its decision. As I have said, the Tribunal affirmed the decisions of the delegate not to grant the relevant visas to the applicants.
7. The relevant provisions in the Regulations are as follows:

802.212

(1) The applicant:

(a) is a dependent child of a person who is an Australian citizen, holder of a permanent visa or eligible New Zealand citizen; and

(b) subject to subclause (2), has not turned 25.

(1A) If the applicant is a step-child of the person mentioned in paragraph (1)(a), the applicant is a step-child within the meaning of paragraph (b) of the definition of step-child.

(2) Paragraph (1)(b) does not apply to an applicant who, at the time of making the application, was a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

...

802.214

(1) If the applicant has turned 18:

(a) the applicant:

(i) is not engaged to be married; and

(ii) does not have a spouse; and

(iii) has never had a spouse; and

(b) the applicant is not engaged in full-time work; and

(c) subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australia school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

(2) Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

8. The relevant definitions for present purposes are those of “dependent child”, “dependent” and “adoption”.

“Dependent child”:

the natural or adopted child, or step-child, 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 dependent on that person; or

(ii) is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions
(See reg 1.03.)

“Dependent”:

1.05A(1) Subject to subregulation (2), a person (the “first person”) is dependent on another person if:

(a) at the time when it is necessary to establish whether the first person is dependent on the other person:

(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

(ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

(b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

“Adoption”:

1.04
(1) A person (in this regulation called “the adoptee”) is taken to have been adopted by a person (in this regulation called “the adopter”)if, before the adoptee attained the age of 18 years, the adopter assumed a parental role in relation to the adoptee under:

(a) formal adoption arrangements made in accordance with, or recognised under, the law of a State or Territory of Australia relating to the adoption of children; or

(b) formal adoption arrangements under which the persons who were recognised by law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopter became so recognised; or

(c) other arrangements entered into outside Australia that, under subregulation (2), are taken to be in the nature of adoption.

(2) For the purposes of paragraph (1)(c), arrangements are taken to be in the nature of adoption if:

(a) the arrangements were made in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter; and

(b) the child-parent relationship between the adoptee and any other person or persons, having regard to the nature and duration of the arrangements; and

(c) the Minister is satisfied that:

(i) formal adoption of the kind referred to in paragraph (1)(b):

(A) was not available under the law of the place where the arrangements were made; or
(B) was not reasonably practicable in the circumstances; and

(ii) the arrangements have not been contrived to circumvent Australian migration requirements.

9. A summary of the Tribunal’s principal conclusions is as follows:
   1. The Tribunal found that the first applicant, who was nominated on the visa application form as the child, was 47 years old at the time the visa application was lodged. As he exceeded the age of 25 years, he needed to satisfy the requirement in cl 802.212(2) (that is, he was incapacitated for work due to the total or partial loss of the child’s bodily or mental functions: see definition of dependent child in reg 1.03).
   2. Although the Tribunal accepted that the applicant had been involved in a car accident before he came to Australia, it did not accept that he was incapacitated for work as a result. Based on the pay slips the first applicant had provided, the Tribunal was satisfied that the first applicant was working on a full-time basis and, accordingly, he did not meet the requirements of cl 802.212(2).
   3. The Tribunal considered the applicants’ claim to have been “adopted by” Mr Laba Sarkis. The Tribunal found that there was no evidence that the applicants had been adopted by Mr Laba Sarkis (see the definition of “adoption” in reg 1.04). The Tribunal found that there was no evidence that Mr Laba Sarkis assumed any parental role in relation to any of the applicants before any of them turned 18 years of age.
   4. The first and second applicants did not satisfy the requirement of cl 802.214 because they were married to each other and because the first applicant was engaged in full-time work. In relation to the third applicant, the Tribunal noted that he was 17 years of age at the date of the visa application. Accordingly, cl 802.214 did not apply to him.
   5. Although it was not required to do so, the Tribunal considered whether the third applicant could satisfy the requirements of a primary applicant. He was not caught by cl 802.214 because of his age. However, he could not satisfy the requirements of cl 802.212 because his parents were not Australian citizens and he could not otherwise satisfy the provisions of cl 802.212(1)(a).
10. The Tribunal concluded that the applicants did not satisfy the requirements in cl 802.212 and cl 802.214 and that therefore the decisions to refuse the relevant visas should be affirmed.
11. The federal magistrate found that none of the grounds of the applicants’ application for judicial review were made out and that the appropriate order was that the application be dismissed.
12. The application for an extension of time is approximately 49 days outside the prescribed period. The application is supported by an affidavit of the first applicant. In that affidavit, the first applicant deposes to the fact that he wrote to the Minister for Immigration and Citizenship on 2 November 2009 asking him to intervene in his case. Although it is not expressly stated in his affidavit, it seems that it is by reference to that act that he explains his failure to lodge his appeal within the prescribed period. That is not a satisfactory explanation for the delay: M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293; (2004) 212 ALR 520.
13. The applicants’ draft notice of appeal contains the following grounds:
    1. I am incapacitated and both the Department, Migration Review Tribunal and his Honour failed to accept.
       
    2. His Honour was sympathetic and failed to remit the case.
       
    3. The Tribunal and his Honour failed to take into consideration the claims in the refugee application.
       
14. None of the matters identified in the proposed notice of appeal raise, or arguably raise, a matter of jurisdictional error. There was a good deal of debate about the Tribunal’s finding concerning the first applicant’s capacity for work. No jurisdictional error in relation to that finding was identified. In any event, it must be remembered that that was only one of the requirements that the applicants failed to meet. It seems to me that not only was it open to the Tribunal to find that there was no adoption relationship between Mr Laba Sarkis and the applicants, but it is hard to see how any other finding could be made. Furthermore, the first applicant could not satisfy cl 802.214 because he had a spouse. The third applicant could not satisfy the requirements of the Regulations as a primary applicant because plainly he could not satisfy the requirement in cl 802.212(1)(a).
15. It seems to me that the decision of the Tribunal was plainly right. In those circumstances, the proposed appeal has no prospects of success and the application for an extension of time within which to file and serve a notice of appeal should be refused.
    

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated: 24 February 2010