Sasawatpan, Narapan v Minister for Immigration & Multicultural Affairs [1998] FCA 1754

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 379 of 1998

BETWEEN: Narapan Sasawatpan

Applicant

AND: Minister for Immigration and Multicultural Affairs

Respondent

JUDGE: justice Tamberlin

DATE OF ORDER: 24 December 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. 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 NG 379 of 1998

BETWEEN: Narapan Sasawatpan

Applicant

AND: Minister for Immigration and Multicultural Affairs

Respondent

JUDGE: justice Tamberlin

DATE: 24 December 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT Before the court is an application for an order of review of a decision of the Immigration Review Tribunal ("the IRT"), refusing to grant a Class AO subclass 802 (child) visa to Ms Narapan Sasawatpan ("the Visa Applicant"). The IRT reasons for decision are dated 31 March 1998. The application for review was filed on 27 April 1998. For a subclass 802 (child) visa to be granted, the requirements set out in the Migration Regulations ("the Regulations") must be met. The relevant requirements are as follows: 802.21 Criteria to be satisfied at the time of application 802.211 (1) If: (a) The applicant: (i) was in Australia on 1 September 1994; and (ii) was, immediately before 1 September 1994, a person to whom Section 37 of the act as in force immediately before that date applied; and (iii) has not been granted a substantive visa on or after 1 September 1994; or …. The applicant: (c)… (d) has become a dependent child of an Australian citizen, of an Australian permanent resident or of an eligible New Zealand citizen since last applying for an entry permit or a substantive visa. 802.212 The applicant is: (a) a dependent child of a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and (b) nominated for the grant of the visa by that person. The issue before the IRT was whether the visa applicant was a dependent for the purpose of regulation 802.21. The terms "dependent" and "dependent child" are defined in Regulation 1.03 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;…" In the present case, the IRT found that the visa applicant was not a dependent child as defined in the Regulations, and it is from this finding that the visa applicant now seeks review. The grounds of review specified in the application for review are as follows: 2.1 The decision involved an error of law, being an error involving an incorrect interpretation of the applicable law. Particulars 2.1.1 The Respondent, in determining as a question of fact the "dependency" of the applicant as required by clause 802.212 set out in Part 802 of the Second Schedule of the regulations and Regulation 1.03 erred in determining that the applicant was not dependent by reason of her age and secondly, the fact that she presented to the Tribunal as "healthy, intelligent, and self assertive…working and living on her own". 3. The decision involved an error of law being an incorrect application of the law to the facts as found by the Respondent. Particulars 3.1 The Respondent, in determining as a question of fact the "dependency" of the applicant as required by clause 802.212 set out in Part 802 of the Second Schedule of the Regulations and Regulation 1.03 erred in determining that the applicant was not dependent by reason of her age and secondly, the fact that she presented to the Tribunal as "healthy, intelligent, and self assertive…working and living on her own". 4. There was no evidence or other material to justify the making of the decision. Particulars 4.1 The Respondent in determining that the applicant was in his opinion not a dependent necessarily went behind the opinion of an expert witness whose evidence was before him. 5. The procedures that were required by this Act arising under Section 420(2)(b) were not observed in connection with the making of the decision. Particulars 5.1 The Respondent in determining that the applicant was not a dependent in terms of the requirements of subclause 802.212 and Regulation 1.03 did not act according to substantial justice and the merits of the case. 5.2 The Respondent in substituting his opinion for that of an expert opinion did not give the applicant substantial justice or a genuine consideration of her case on its merits.