Sochorova v Department of Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 Ms Sochorova appeals from the decision of the Migration Review Tribunal of 21 August 2001, which affirmed the decision that she was not entitled to the grant of a Special Eligibility (Residence (Class AO) Subclass 806 visa. The Minister's objection to competency has not been fully determined, but the Minister does not now press the remaining objections. The Minister also accepts that, although this is a privative clause decision under the Migration Act 1958 (Cth), the effect of the recent decision in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24; [2003] HCA 2 ('Plaintiff S157/2002'), is that s 474 of the Act, which contains the privative clause, will not protect the decision if it involves jurisdictional error. 2 Ms Sochorova is a national of the Czech Republic and was born on 16 March 1934. Her brother, Joseph Moder, is an Australian citizen. She and her brother were separated at the end of the Second World War. Their father was killed in a concentration camp. Ms Sochorova was thereafter cared for by her grandparents, and Mr Moder emigrated to Australia with his aunt and subsequently changed his name. They were reunited after some 40 years, following some searches undertaken by the Australian Red Cross. Understandably, they wish to remain in close contact now. Ms Sochorova is divorced and her only family, apart from Mr Moder, are two adult children. Her daughter resides in the Republic but Ms Sochorova has been estranged from her for some years. She advised the Tribunal, shortly prior to the hearing, that she had recently heard that her daughter was seriously ill and had traced and contacted her. This was the first contact she had had with her daughter in some five years. It was not however suggested that their relationship altered as a result. At the time of the making of the application she had not known where her daughter lived. Her son is presently in Australia and has been for some four years. He is an applicant for a subclass 457 visa and is sponsored in that regard by Mr Moder. 3 Ms Sochorova and Mr Moder were reunited in 1986. Ms Sochorova came to Australia in April 1999 and applied to remain permanently in Australia on 14 July 1999. Her application identified her as divorced, retired from her occupation and 65 years of age. Mr Moder and her son were her only relatives in Australia. A perusal of the form would reveal that she lives at the same address as her brother. 4 The application, in Form 887, was entitled 'Application to remain permanently in Australia'. The form explained, in s 1 par 2, that to apply to remain permanently in Australia an applicant must apply under one of three categories - General (residence); Family (residence) and Change in Circumstances (residence). Ms Sochorova nominated the Family class and subclass. At that time the prescribed criteria for that subclass of visa were that an applicant be an 'aged dependent relative, an orphan relative or a remaining relative or claims to be a carer of another person who, relevantly, is a settled Australian citizen' (cl 806.213). 5 On that part of the application form headed 'Ground for Application' and under 'Family grounds', Ms Sochorova answered one question relating to her status as a remaining relative, but did not fill in that section which asked for evidence of dependency relevant to her status as an aged dependent relative. Likewise, Mr Moder nominated his sister only as a remaining relative. 6 The definition of 'remaining relative' was then provided by reg 1.15 of the Migration Regulations 1994 (Cth) in these terms: '1.15.(1) An applicant for a visa is a remaining relative if the applicant has a relative who: (a) is: (i) a brother, sister or parent; or (ii) a step-brother, step-sister or step-parent; of the applicant; and (b) is: (i) an Australian citizen; or …' 7 The Department considered that Ms Sochorova was not qualified as a remaining relative because her son was usually resident in the Czech Republic, despite his intention to reside in Australia, and her daughter was also usually resident in the Republic. It went on to observe that she had not made a claim to be an aged dependent relative, an orphan relative or a carer, but went on to find that she was neither of them 'based on the evidence on file'. It determined that she did not meet the requirements of the subclass of a remaining relative. 8 Ms Sochorova sought a review of that decision. The basis for her review was expressed to relate to the opinion taken of her children as near relatives. The Migration Review Tribunal observed that the only subclass, in respect of which any claims had been advanced, was as subclass 806 'and then only in respect to the remaining relative grounds. There is no evidence to suggest that the visa applicant meets key criteria for other subclasses or other grounds'. The Tribunal also found that both the daughter and son were usually resident in the Czech Republic. It noted that the son had been granted a bridging visa, on 20 March 2001, but it said that the son only temporarily resided in Australia. While sympathetic to the applicant's case, the Tribunal did not consider that she met the definition of 'remaining relative'. 9 The argument presented by Mr Moder on this application comes down to two main points. He contends that the definition of 'near relative' should be read as referable only to a person with whom an applicant for a visa has a relationship. It is also contended that the Tribunal should have considered Ms Sochorova as meeting the criteria of an aged dependent relative. 10 Mr Moder submitted that it would be pointless to consider a person as a near relative simply because of that relationship and that they reside in the same country as the applicant if they were, for example, not of mental capacity or for some other reason could not properly communicate with or support or sustain a relationship. The difficulty with the argument is that it requires a further qualification to be read into the regulations and it is well established that the courts will not do so unless it is necessary to properly construe or give effect to a provision. The Tribunal was not in error in concluding that Ms Sochorova did not come within this criterion. I do not consider such an implied qualification to be warranted. 11 In relation to the second ground, counsel for the Minister makes the point that this was not the basis upon which the application was made and the question whether Ms Sochorova satisfied the requirements of an aged dependent relative was not raised before the Tribunal. It was not until 3 December 2001, after the Tribunal hearing, that Mr Moder wrote to the Tribunal advising that, since she had come to Australia Ms Sochorova had completely exhausted her life savings and that: 'In consequence, my sister now has no money, no place to go back to, is entirely dependent on me, and is being psychologically oppressed by denial to her of any kind of : "legal status" - which means she cannot even have her teeth fixed, let alone have any medical care'. Further, it is submitted that there was no evidence upon which the Tribunal could have answered that question and determined it in her favour. 12 It is true that Ms Sochorova's then legal advisors put forward her case, to both the first decision-maker and the Tribunal, on the basis that she might qualify as a remaining relative. Nevertheless on each occasion the decision-makers considered whether she met other criteria or 'grounds', including that of aged dependent relative. In these circumstances the question which arises is whether that conclusion was attended with relevant error. 13 At the relevant time the Migration Regulations described a person as dependent where they were wholly or substantially dependent on another person for financial, psychological or physical support. 14 There was evidence before the Tribunal as to Ms Sochorova's age and as to her relationship with Mr Moder. So far as concerned the remaining question, whether she was dependent upon him, there was some information available which was relevant to it. She resided with him and had no other relatives in Australia save for her son, who was being sponsored. Her employment history was said to have ended in 1986. Although her 'usual occupation' was at one point said to be 'self-employed' she was described at the beginning of the form as 'Retired'. She had not been given permission to work in Australia and was not in receipt of any welfare benefits. 15 The approach taken by the Tribunal to the question of whether she fulfilled the criterion of an aged dependent relative is not apparent. It is not possible, in my view, to take literally what it says as being a considered view, namely that there was simply no evidence as to the question. Clearly there was, though the sufficiency of the information relating to her dependency would need to be assessed. There is nothing to suggest that any assessment or weighing of the evidence was undertaken. It is therefore unnecessary to determine the question whether a decision-maker is under a duty to ask an obvious question to which there is a readily unavailable answer: see Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 at 178-179; Azzi v Minister for Immigration and Multicultural Affairs (2002) 195 ALR 166 at [96], [102]. It is not necessary to determine it in this case, for it would not appear that the decision-maker arrived at that point. Rather the failure to make an enquiry or to make observations as to the adequacy or otherwise of the information strongly suggests that it was not considered. 16 I have considered the possibility that the Tribunal meant no more than that no case was put forward with respect to each criterion. The Tribunal however expressed itself clearly. It does not seem to me possible, without more, to give the reason of no evidence some other meaning. 17 In my view, the Tribunal has failed to apply the facts put forward to the question as to whether Ms Sochorova qualified as an aged dependent relative. It appears to have assumed that there was no evidence, when there was. If it had considered the facts it may have elicited further information, but it is not necessary to consider whether that would have been the case or whether the Tribunal was obliged to do so. The question has not been addressed by the Tribunal and it would follow that there has been no decision within the meaning of the statute: see Plaintiff S157/2002. Section 474 cannot alter that. 18 Part of the Tribunal's decision is unaffected by these reasons, that relating to the remaining relative criterion. The decision is however expressed to be as to Ms Sochorova's entitlement to the relevant visa on any ground. It must be set aside. It would not seem to me then practicable to attempt to fashion orders remitting only one question, that as to whether she is an aged dependant relative. Mr Sochorova would not in any event qualify as a remaining relative under the regulations as they then stood. 19 It did not seem that Ms Sochorova has incurred legal costs in the conduct of this application. It was conducted in its early phase by counsel pro bono and more recently by Mr Moder. If there are such costs, any application for them should be made within seven days. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel .