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

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 319 OF 2002

BETWEEN: FATIMA ISSA

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 19 JULY 2002

WHERE MADE: 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.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 319 OF 2002

BETWEEN: FATIMA ISSA

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 19 JULY 2002

PLACE: SYDNEY

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."