Dirckze v Minister for Immigration & Multicultural & Indigenous Affairs

The MRT decision 7 The MRT noted that a criterion to be satisfied at the time of the application for the grant of a subclass 806 visa was cl 806.213 of Sch 2 to the Migration Regulations 1994 ("the Regulations"). It observed that the applicant for such a visa must qualify as a "special need relative" at the time of the application and at the time of the MRT's decision. It set out the definition of "special need relative" as found in reg 1.03. 8 That definition provided, so far as is material, that "a special need relative" in relation to an Australian permanent resident usually resident in Australia, "means a relative who is willing and able to provide substantial and continuing assistance to the…resident if: (a) "the…resident has a permanent or long term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the…resident personally, or a member of his or her family unit; and

(b) the assistance cannot reasonably be obtained from: (i) any other relative of the…resident, being a relative who is an Australian citizen, an Australian permanent resident…; or (ii) welfare, hospital, nursing or community services in Australia." 9 The MRT first found that the appellant had been nominated by his niece and his nephew, who are his relatives and who are permanent Australian residents for the purposes of reg 1.03. 10 The MRT next considered paragraph (a) of the definition of "special need relative". It noted the claim of the nominators that they had an emotional dependence on the appellant. However, it was not satisfied that the provision of companionship and guidance to a young adult, and another who is almost a young adult, qualified as "other serious circumstances" within paragraph (a) of the definition. 11 The MRT then considered whether the appellant was a person who was willing and able to provide substantial and continuing assistance to his nominators. The MRT was satisfied that the appellant was willing to provide assistance to the nominators but was not satisfied that the nominators required substantial and continuing assistance. 12 Finally, the MRT considered paragraph (b) of the definition. It found that the paragraph did not apply to the nominators. The MRT found that the appellant did not meet the requirements of the Regulations to qualify as a "special need relative".

13 The learned Federal Magistrate considered that the MRT had not committed any jurisdictional error in its reasons for its decision. Her Honour viewed the appellant's criticisms of the decision of the MRT, made before her, as an invitation to engage in a merits review. The criticisms were as follows:

· the MRT failed to take into account the nominators' strong need for the appellant's emotional assistance; and · the MRT did not take into account that irreparable harm and extreme prejudice would be caused to the nominators if the appellant were to depart Australia. 14 Her Honour considered that the MRT had taken these matters into account. The first by reference to its discussion of the evidence of a psychologist concerning the emotional needs of the nominators. The second by reference to the same witness' evidence and that of the appellant concerning the likely effect on the nominators if the appellant left Australia. 15 The learned Federal Magistrate also rejected a submission that the delay from the MRT's receipt of the application until its decision had prejudiced the appellant. She observed, in that regard, that although the application was received in the MRT on 4 April 2001, a hearing occurred on 3 December 2001, not long before the notification of the decision to the appellant on 24 January 2002. 16 Her Honour further rejected a submission that the mere presence of a relative in Australia amounted to "substantial and continuing assistance". That submission was rejected as being inconsistent with Full Court authority in this Court, including Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194.

Issues raised on appeal 17 In written submissions prepared in support of his appeal, the appellant repeated the contentions, which he had put before the Federal Magistrate. The Court rejects those submissions for the reasons advanced by her Honour and summarised above. The appellant did not point to any error of law in her Honour's reasoning. On the contrary, he sought to re-agitate issues of fact, which were determined adversely to him by the MRT. He submitted that the primary judge erred in law by not interfering with findings of fact made by the MRT. That contention misunderstands the role of a Court on judicial review of an administrative decision. Such a review involves a consideration of whether legal error of a relevant kind occurred and is no occasion to revisit the merits of the decision under review. 18 The appellant, however, sought to raise one new issue, which was not addressed below. He contended that the MRT's observation that the nominators had declined to come to give evidence before the MRT demonstrated bias. That submission is rejected. The MRT did no more than observe that the nominators had chosen not to attend to give evidence. There is nothing before the Court to indicate that that observation was not an accurate one. 19 The appeal will be dismissed, with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Dated: 11 August 2005 The Appellant represented himself.

Solicitor for the First Respondent: Australian Government Solicitor

Date of Hearing: 11 August 2005

Date of Judgment: 11 August 2005