FEDERAL COURT OF AUSTRALIA Ganzon v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1628 ISAIAS GANZON v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 65 of 2002 GRAY J 12 DECEMBER 2002 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 65 of 2002 BETWEEN: ISAIAS GANZON APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: GRAY J DATE OF ORDER: 12 DECEMBER 2002 WHERE MADE: MELBOURNE 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 VICTORIA DISTRICT REGISTRY V 65 of 2002 BETWEEN: ISAIAS GANZON APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: GRAY J DATE: 12 DECEMBER 2002 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This is an application with respect to a decision of the Migration Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of the delegate of the Minister for Immigration and Multicultural Affairs, who is now the Minister for Immigration and Multicultural and Indigenous Affairs (in both cases, "the Minister"). The delegate refused to grant to the applicant the visa that he sought pursuant to the Migration Act 1958 (Cth) ("the Migration Act"). The application, which was filed on 4 February 2002, is in the form of form 56 in the schedule to the Federal Court Rules, which was a form appropriate for use under Pt 8 of the Migration Act, in the form in which Pt 8 stood before significant amendments that came into operation on 2 October 2001. The form is no longer appropriate but I am prepared to treat the application as invoking the jurisdiction of the Court pursuant to s 39B of the Judiciary Act 1903 (Cth). 2 The applicant is a citizen of the Philippines. He entered Australia on 13 February 2000 with a short stay visa. He was granted permission to remain until 13 March 2000 and then several further extensions of the visa, the last of which expired on 12 January 2001. On 12 January 2001 the applicant made an application for a kind of visa described as an Other Family (Residence) (Class BU) visa, subclass 836 (Carer). The basis of the application was that the applicant was a carer for his sister, Marita Schumann, an Australian citizen, who nominated him for the grant of the visa. The criteria for a visa of that kind are found in item 836 of the second schedule to the Migration Regulations 1994 (Cth) ("the Migration Regulations"). By item 836.221 a criterion to be satisfied at the time of decision is that an applicant for the visa be a carer of a person who is a settled Australian citizen, usually resident in Australia, who has nominated the applicant for the grant of the visa. For the purposes of that criterion the word "carer" is defined in reg 1.15AA of the Migration Regulations as follows: "(1) An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if: (a) the applicant is a relative of the resident; and (b) according to a certificate that meets the requirements of subregulation (2): (i) a person (being the resident or a member of the family unit of the resident) has a medical condition; and (ii) the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and (iii) the physical impairment has, under the Impairment Tables, the rating that is specified in the certificate; 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 (c) the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified by Gazette Notice for this paragraph; and (d) if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); 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; or (ii) from welfare, hospital, nursing or community services in Australia; and (f) the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires. (2) A certificate meets the requirements of this subregulation if: (a) it is a certificate in relation to a medical assessment carried out on behalf of Health Services Australia that is signed by the medical adviser who carried it out; or (b) it is a certificate issued by Health Services Australia in relation to a review of an opinion in a certificate mentioned in paragraph (a) that was carried out by Health Services Australia in accordance with its procedures". The only other aspect of this regulation that needs to be considered is the definition in subreg (4) of "Health Services Australia". That expression is defined to mean "the government business enterprise Health Services Australia Ltd". 3 From the reasons of the Tribunal, it appears that an appointment was made for Ms Schumann to attend at Health Services Australia Ltd, to be assessed for a certificate, on 18 April 2001. Ms Schumann did not keep that appointment. She told the delegate of the Minister on 2 May 2001 by telephone that the applicant had gone to Melbourne to visit other relatives and that Ms Schumann did not attend on 18 April 2001 because her daughter was sick and there was no-one to look after the daughter while Ms Schumann was gone. 4 Prior to conducting a hearing of the applicant's application to review the delegate's decision, in accordance with ss 359 and 359A of the Migration Act the Tribunal sent to the applicant a letter dated 11 October 2001. The relevant parts of that letter were as follows: "The Migration Regulations require that an applicant for a carer visa must satisfy the requirement of a carer. Migration regulation 1.15AA requires, among other things, that the health condition of the relative for whom care is required be evidenced by a satisfactory carer's certificate (that is a certificate that meets the requirements of subregulation 1.15AA(2)) issued by Health Services Australia (HSA). A copy of Migration Regulation 1.15AA is enclosed. As you failed to submit the above carer certificate … for whom care is required, it would appear that you are unable to satisfy the requirements for a carer visa. You are invited to comment, in writing, on the information, as it is relevant to the issue of whether you are able to satisfy the requirements for a carer visa, and indicates that your application may be unsuccessful … In addition, section 359 of the Migration Act allows the Tribunal to invite a person to give it additional information that it considers relevant to the review of a migration decision. Accordingly the Tribunal invites you to provide the following information: · a satisfactory carer's certificate in respect of your sister, Mrs Marita SCHUMANN, issued by Health Services Australia (HSA). · in the event of a satisfactory carer's certificate for your sister being issued by HSA, compelling reasons why the assistance required cannot reasonably be provided by other relatives, or from welfare, hospital, nursing or community services in Australia … Your written comments and the information requested should be provided within 28 calendar days of … notification of this invitation. As this letter has been posted, you will be considered to have been notified of this invitation to comment and submit information 7 working days after the date of this letter … If you are unable to provide comments within this period, you may request in writing that you be allowed additional time in which to respond … If the Tribunal does not receive any comments within the period allowed, it may, under section 359C of the Act, make a decision on the review without taking any further action to obtain your comment. In addition, you will not be entitled to appear before the Tribunal." The last paragraph I have quoted from that letter appears in bold type in the letter. 5 The applicant has conceded to me that he received that letter. In any event, as the letter said, by s 379C(4) of the Migration Act he would have been taken to have received the letter seven working days after the date of posting. That date was 11 October 2001. Notwithstanding the warnings contained in the letter, no step was taken to obtain a certificate from Health Services Australia Ltd in respect of Ms Schumann. Despite this, the Tribunal invited the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to his application for review. By letter dated 22 November 2001 the Tribunal issued this invitation. The letter notified the applicant that the hearing had been fixed for 1.30 pm on Thursday, 13 December 2001 at Level 13, 628 Bourke Street, Melbourne. It invited the applicant to confirm whether he wished to appear by completing and returning a form attached to the letter. The letter then warned the applicant: "If you fail to appear before the Tribunal at the scheduled time, s362B of the Migration Act 1958 allows the Tribunal to make a decision on the review without taking any further action to allow you to appear. If you cannot attend the hearing you should advise the Tribunal as soon as possible of the reasons and the Tribunal will consider whether the hearing should be rescheduled." 6 The applicant did not complete and return the attached form. As the reasons for decision of the Tribunal record, he did not attend the hearing at the appointed time. From a file note of a Tribunal officer, it appears that telephone contact was made with the applicant, who advised that he would not attend the hearing at 1.30 pm, that he wanted another hearing and that he did not have the documents. The file note bears the time 1.38 pm. In accordance with s 362B of the Migration Act, the Tribunal exercised its discretion to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. 7 In a written decision, accompanied by written reasons, dated 8 January 2002, the Tribunal affirmed the decision under review, finding that the applicant was not entitled to the grant of an Other Family (Residence) (Class BU) visa, subclass 836. The reasons of the Tribunal make it clear that the Tribunal found that, at the time of decision, the applicant was not a carer as required by item 836.221, as he failed to meet the definition of carer in reg 1.15AA of the Migration Regulations. This finding was based on the failure of the applicant to provide a carer's certificate in compliance with reg 1.15AA(1)(b) and (2). 8 The application filed in the Court is completed in handwriting. It states that the applicant is aggrieved by the decision of the Tribunal because: "I would like to submit a substantial information to the tribunal to support my visa application. I ask for the extension of time for the because [sic] I am not prepared of the documents needed." 9 The grounds of the application were: "I would like to remain permanently in Australia because my sister Marita needs a life time assistance from me. Because the husband is working fulltime. My sister Marita could not ask help from my relatives in Australia because they have their own family to look after." 10 The relief claimed by the applicant was: "I would like the court to give me a chance to attend the hearing so that I can submit a substantial information and to give oral evidence to the tribunal to support my visa application." 11 On 14 March 2002, the respondent filed a notice of motion, seeking that the application be dismissed summarily. At a directions hearing on 8 April 2002, when the applicant appeared in person with the assistance of an interpreter in the Tagalog language, the applicant informed me that he wished to make a case that he had sought an adjournment of the hearing by the Tribunal. Accordingly, I adjourned the directions hearing and the hearing of the respondent's notice of motion until 3 June 2002 and referred the applicant to a legal practitioner pursuant to O 80 of the Federal Court Rules, for the purpose of advice and the drawing of an amended application and of any required documents if thought fit. The applicant was duly referred to a barrister who was unable to contact him and discharged the referral. 12 On 3 June 2002 the applicant did not appear. I adjourned the directions hearing to 17 June 2002. On that occasion, the applicant did appear in person. I then made directions for a timetable, requiring the applicant to file and serve an amended application and contentions of fact and law on or before 8 July 2002. I adjourned the respondent's notice of motion to the hearing of the application. No further document has been filed by the applicant. Accordingly the matter was listed for hearing today. The applicant appeared in person with the assistance of an interpreter and has endeavoured to put submissions to me as to why his application should succeed. 13 If regard is had to the reasons for decision of the Tribunal it is plain that the applicant's case must fail. Given that there was no carer's certificate in accordance with reg 1.15AA, the Tribunal had no choice but to find that the applicant did not satisfy the criterion in item 836.221 in Sch 2 to the Migration Regulations. 14 Only if it could be said that the Tribunal ought to have granted the applicant an adjournment could it be said that there was any possibility of error attending the Tribunal's decision. The applicant does not claim that he sought any adjournment of the Tribunal hearing other than by means of the telephone conversation that appears to have taken place after his non-appearance at the appointed time for the hearing. The applicant claims that he relied on a friend of his to assist him by corresponding with the Tribunal on his behalf. It does not appear that the friend gave the assistance that she may have suggested to the applicant she would give. There is no evidence of any response by or on behalf of the applicant to the Tribunal in respect of either the letter of 11 October 2001 or the letter of 22 November 2001. 15 Section 362B of the Migration Act gave to the Tribunal a clear power, in the exercise of its discretion, to proceed to make a decision on the applicant's review without taking any further action to allow or enable the applicant to appear before it. The Tribunal obviously exercised its discretion in favour of making such a decision. It is difficult to establish error in the exercise of an administrative decision-maker's discretion, particularly when the discretion relates to the adjournment of a hearing. So far as the material goes, that difficulty is extreme, in a case in which the applicant took no step to seek an adjournment, or any further time in which to obtain the necessary certificate, despite the clear warnings contained in the two letters from the Tribunal. 16 The applicant has therefore been unable to show that the Tribunal made any error of any kind. The applicant did request me, in his submissions in reply, to adjourn the proceeding to allow him to consult his friend and to make further submissions. I refused that application, on the basis that the applicant has had many opportunities to supply information throughout the history of this proceeding and has failed to take those opportunities. The reasons for decision of the Tribunal speak of difficulties on the part of the delegate of the Minister in contacting the applicant and obtaining a response from him. As I have said above, the Tribunal had the same difficulty. The applicant appears not to have made himself available for consultation with the barrister to whom he was referred. He failed to attend the directions hearing on 3 June 2002 and has failed to comply with the orders of the Court requiring him to file further documents. In the circumstances it would not be fair to permit the applicant to have further time. It is inevitable that his past conduct will give rise to the inference that he has no serious purpose in pursuing the visa he sought, but only a desire to extend the proceeding, to prolong his stay in Australia for as long as he can. 17 Because the applicant has failed to establish that there was any error on the part of the Tribunal, it is unnecessary to consider what might have been the effect of the privative clause in s 474 of the Migration Act, in the event that some error had been established. The application must be dismissed. It is appropriate to apply the usual principle that costs follow the event and to order the applicant to pay the respondent's costs of the proceeding. 18 The order of the Court is that: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the proceeding. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Ms S Moore Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 12 December 2002 Date of Judgment: 12 December 2002