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MIGRATION - Application for review of decision of Migration Review Tribunal - special need relative - no jurisdictional error - privative clause decision - application dismissed.

Gopal v Minister for Immigration [2002] FMCA 273 (14 November 2002)

Gopal v Minister for Immigration [2002] FMCA 273 (14 November 2002)
Last Updated: 3 February 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GOPAL v MINISTER FOR IMMIGRATION
[2002] FMCA 273



MIGRATION - Application for review of decision of Migration Review Tribunal - special need relative - no jurisdictional error - privative clause decision - application dismissed.



Migration Act 1958 (Cth)

Judiciary Act 1903

Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2000) 177 ALR 437

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA FC 228

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598

Zahid v MIMIA [2002] FCA 1108

Drake v Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALR 634

Xie v MIMA [2000] FCA 230

Jun v MIMA [2000] FCA 867

Wu v Minister for Immigration and Multicultural Affairs (2000) 182 ALR 548

MIMA v Chan [2000] FCA 737

Abebe v The Commonwealth (1999) 73 ALJR584

Craig v South Australia (1995) 184 CLR 163

MIMA v Yusuf (2001) 180 ALR 1

NAFS v MIMIA [2002] FMCA 238

NABM v MIMIA [2002] FCAFC 294

Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA FCA 311

Applicant:
RUKMANI GOPAL



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ394 of 2002



Delivered on:


14 November 2002



Delivered at:


Sydney



Hearing Dates:


26 July & 20 August 2002



Judgment of:


Barnes FM



REPRESENTATION

Counsel for the Applicant:


Mr CR de Robillard & Ms M Bateman



Solicitors for the Applicant:


Harish Prasad & Associates



Counsel for the Respondent:


Mr G Kennett



Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) That the application is dismissed.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ394 of 2002

RUKMANI GOPAL


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
The proceedings

1. This is an application for review of a decision of the Migration Review Tribunal dated 14 November 2001 affirming a decision of the respondent to refuse to grant a Family (Residence) (Class OA) visa to the applicant, Rukmani Gopal (also known as Rukmani).

2. The present proceedings were commenced by an application filed in the Federal Court on 12 December 2001 by Rajeshi Raj Phillips as the first applicant and Rukmani as the second applicant. The matter was transferred to this Court by consent by Hely J on 6 June 2002.

3. As a preliminary point I note that the original first applicant Rajeshi Raj Phillips, was the nominator of her mother, Rukmani Gopal, the visa applicant. Under sections 478 and 479 of the Migration Act 1958 the proper applicant and appropriate party to these proceedings is the person who was the applicant in the review by the Tribunal (in this case the visa applicant). Accordingly Ms Phillips is not a proper party to the proceedings. In the amended application filed on 2 September 2002 the applicant is, correctly, Rukmani Gopal.

4. The applicant, who is a citizen of Fiji, born on 3 February 1918, applied for a Class AO visa on 28 August 1997. The only subclass of the visa relied upon was subclass 806. The basis for the application was that the applicant claimed to be a "special need relative" of her daughter (the nominator). After the application was made, and before it was finally determined, the provisions of the Migration Regulations 1994 relating to special need relatives and subclass 806 were repealed (see SR306 of 1998 and SR269 of 1999) but they continue to apply to applications made before the date of repeal (Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2000) 177 ALR 437).

Tribunal decision

5. The visa application was based on assistance which the applicant claimed to be providing to her daughter. The Tribunal appears to have accepted that:

a) the daughter's husband died suddenly (apparently in November 1996);

b) the daughter lived on a rural property in difficult circumstances and had health problems which she would suffer for the rest of her life;

c) her children did not live near her but her sister (who is married with children) lived nearby;

d) The applicant was self-funding and employed a man to do the heavy work on the property.

e) The applicant was 83 years old and was somewhat incapacitated by problems with her knees but was generally in good health;

f) The applicant provided her daughter with companionship, help with the housework and looking after the animals, and help with managing her medication;

g) The applicant had six living children who lived in Canada, Fiji, New Zealand and Australia.

6. The Tribunal's decision turned on whether the visa applicant was a "remaining relative" or a "special need relative" of her daughter (clauses 806.213 and 806.221 of Schedule 2 to the Migration Regulations). "Remaining relative" was defined in Reg 1.15 of the Migration Regulations. "Special need relative" and "relative" (a term used in the other definitions) were defined in Reg 1.03.

7. The Tribunal concluded that the applicant was not a "remaining relative" of her daughter at the time of her application because she "usually resided" in the same country as an "overseas near relative" (ie another daughter who lived in Fiji) and was therefore disqualified by reg 1.15(2)(a)(i).

8. As to whether the applicant was a "special need relative" the Tribunal concluded that, at the time of her application:

i) The applicant, because of her age and mobility problems, was not "able" to provide "substantial and continuing assistance" of the kind envisaged by the definition of "special need relative"; and

ii) Her daughter did not have a "permanent or long term need for assistance" within the meaning of the definition, arising from her husband's death and her own illnesses.

9. The Tribunal therefore did not need to consider whether the applicant met the definition at the time of the decision.

The application and the amended application

10. The initial application filed on 11 December 2001 purported to rely on grounds for review provided by the former section 476 of the Migration Act 1958. On 8 February 2002 the applicant was ordered to file and serve any amended application and evidence upon which she proposes to rely on or before 22 February 2002 and to file written submissions five working days prior to the hearing date. The matter was listed for hearing on 26 July 2002. On that date an associate of the solicitor for the applicant sought an adjournment on the basis that the counsel they wished to instruct did not hold a current practising certificate. An adjournment was granted until 20 August 2002. The respondent had filed written submissions on 24 July 2002. No written submissions were filed by the applicant prior to the first hearing date or prior to 20 August 2002.

11. On 20 August 2002 counsel representing the applicant sought a further adjournment as the original counsel whom the applicant had retained through his solicitors was still not available as his practising certificate had not been restored until 16 August 2002. Counsel for the applicant advised that she had been briefed on 16 August 2002 and that she required further time to make submissions based on the provisions of the privative clause and the decision of the Full Court of the Federal Court in NAAV v MIMIA [2002] FCA 228 which had been handed down some days earlier. She handed up written submissions which had been prepared on the grounds contained in the former 476 of the Migration Act.

12. The application for an adjournment was refused. However, leave was granted to the applicant to file an amended application and further written submissions with an opportunity for the respondent also to file further written submissions. A further hearing was scheduled for October 2002 on the basis that the hearing date would be vacated if not required by the Court or the respondent. Written submissions were filed by both parties. The further hearing date was vacated.

Contentions

13. In the amended application the applicant raised two grounds. First that the decision involved an error of law being an error involving an incorrect interpretation of the applicable law, that is, the definition of "special need relative". In particular it was suggested that the Tribunal regarded itself as bound to follow requirements of the Department of Immigration's Procedures Advice Manual 3 (PAM3), that it wrongly disregarded the death of the nominator's husband as a qualifying criterion, that it failed to determine whether the nominator's need for assistance was being substantially fulfilled by the applicant, that it wrongly purported to apply principles set out in an unsourced and unattributed authority and that it wrongly assessed "seriousness" in Regulation 1.03 of the Migration Regulations. Secondly, it was claimed that the decision involved a jurisdictional error being a failure to consider the visa application using the relevant statutory and regulatory criteria (eg disregarding the death of the nominator's husband when considering the operation of Regulation 1.03), wrongly excluding itself from considering the visa applicant's claim on its merits by considering itself mandated and/or directed by the PAM; and, thirdly, failing to consider the merits of the applicant's case insofar as the nominator was claiming a need for emotional and psychological support from the applicant. It can be seen that there is some overlap in these grounds.

14. The respondent filed written submissions on 25 July 2002 prior to the first date on which this matter was to be heard. In accordance with the directions made by the Court on 20 August 2002 the respondent filed further written submissions in response to the applicant's written submissions.

15. The revised written submissions supersede the respondent's earlier submissions. The respondent noted that error of law of itself would not lead to the invalidity of a decision and did not form a basis for relief under section 39B of the Judiciary Act 1903 and submitted that there was no jurisdictional error or other ground for review established in this case.

Application of the law

16. It was common ground that the Tribunal's decision is a privative clause decision within the meaning of section 474(2) of the Migration Act 1958 and is thus subject to the limitations on judicial review prescribed by section 474(1) which were introduced by the Migration Legislation Amendment (Judicial Review) Act 2001 as applicable to all applications made to the Court on and from 2 October 2001.

17. The proper construction of section 474 has been the subject of detailed consideration by the Full Court of the Federal Court in NAAV v MIMIA [2002] FCAFC 228 which was decided after the date on which this matter was first set down for hearing but which was addressed in written submissions. All members of the Full Court were in broad agreement that section 474(1) was properly construed as having the same effect as other such clauses considered in many decisions of the High Court in particular R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. In that case Dixon J identified three conditions which, if met, would ordinarily mean that a decision which is the subject of a privative clause would be valid, namely:

(a) the decision is a bona fide attempt to exercise the power conferred on the decision maker;

(b) the decision relates to the subject matter of the legislation; and

(c) the decision is reasonably capable of reference to the power conferred on the decision maker.

18. There was also broad agreement in NAAV that the purported exercise of power by the decision maker must not be one that contravenes what was variously described as an "inviolable limitation or restraint" (Black CJ at [12]), a "final limitation upon the powers, duties and functions of the decision maker" (von Doussa J at [619]) or a "structural" element in the operation of the Act (Black CJ at [37]). As a matter of construction, the broad statement of legislative intention expressed in a privative clause may be displaced by a provision which makes clear Parliament's intention that the observance of some procedure or the proper consideration of some issue is to be a precondition for a valid decision. As outlined by Sackville J in Zahid v MIMIA [2002] FCA 1108, there is a difference between the approach taken by the majority (Black CJ, Beaumont and von Doussa JJ) and that of the minority (French and Wilcox JJ) in relation to the correct approach to such final or inviolable limitations on the decision maker's powers.

19. The applicant submitted that the Court should consider whether the Tribunal erred in its decision, identify the nature of the error and then determine whether the provisions of section 474 as interpreted in NAAV would validate the decision notwithstanding the error. Each of the parties addressed the question of whether any of the alleged errors would amount to jurisdictional error absent section 474. I also note that the High Court has reserved judgment in proceedings in which the validity of section 474(1) has been challenged (see re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S134/2002 (judgment reserved 4 September 2002). In these circumstances it appropriate to proceed in the manner suggested by counsel for the applicant.

Application of policy

20. The applicant argued that the Tribunal wrongly considered itself mandated and/or directed by provisions of Departmental policy as contained in PAM 3 and regarded itself as "required" to follow PAM 3. In this respect I note that as Brennan J indicated in Drake v Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALR 634 at 645 the Tribunal should adopt "a practice of applying lawful ministerial policy unless there are cogent reasons to the contrary", although the decision maker "must not give it the same force as law" (Xie v MIMA [2000] FCA 230 at [29]).

21. In paragraph three of the reasons for decision the Tribunal indicates, correctly, that it is bound by the Migration Act, the various regulations and by written directions issued by the Minister under section 499 of the Act. It is conceded by the Minister that, contrary to what was suggested by Mansfield J in Jun v MIMA [2000] FCA 867 at [11], PAM 3 does not have the force of a Ministerial direction under section 499 of the Act. The Tribunal also indicates that some matters may be the subject of Departmental policy and that the Tribunal is required to "have regard to policy and apply it unless there are cogent reasons for departing from policy". Such a statement does not suggest that the Tribunal considered itself as required to follow PAM 3. It adopts the language of Brennan J in Drake.

22. In paragraph 25 of the reasons for decision the Tribunal states that it must consider whether the visa applicant was a "special need relative" at the time of the visa application and whether she remains a special need relative at the time of the decision. It refers to Jun as authority for the proposition that when considering whether the visa applicant was a special need relative at the time of application and at the time of decision the Tribunal must address each aspect of the definition of "special need relative". It then indicates that "having regard to the criteria set out in the legislation and the considerations set out in Departmental policy, the relevant matters are discussed below". Again this statement shows no error but merely that the Tribunal is to have regard to the relevant regulatory criteria but also, as it may, to Departmental policy.

23. The subsequent references to Departmental policy must be seen in light of these explanations of the role of Departmental policy. At no time does the Tribunal refer with approval to the view that Departmental policy has the force of a Ministerial directive as had been suggested by Mansfield J in Jun. It is true that it does refer to Jun in relation to the requirement that the Tribunal address each aspect of the definition. This is unexceptional. It is also true that it purports to quote from Jun, in paragraph 29, a passage that deals with the expression "other serious circumstances". This is not a quote from Jun but rather a quote from the decision of the Full Court of the Federal Court in Wu v Minister for Immigration and Multicultural Affairs (2000) 182 ALR 548, 561 [41]. The incorrect reference is unfortunate but I do not consider that the mis-attribution of the source of the passage relied upon amounts to an adoption of all of the views expressed in Jun.

24. The reference to exclusion of certain types of assistance by PAM must be considered in context. In paragraph 26 the Tribunal commences to consider whether the applicant meets each aspect of the definition of "special need relative". After concluding that the visa applicant is willing to provide substantial and continuing assistance to the nominator the Tribunal continues:-

The Tribunal is not satisfied that the visa applicant is "able" to provide the type of assistance the legislation intends to be provided in this visa class. [emphasis added] The visa applicant is 83 years old. She has had 3 knee replacements and the evidence is she is unable to climb stairs. No medical reports have been provided to indicate her health but the Tribunal is satisfied she has some mobility problems. The issue of her ability is relevant to the type of assistance she is able to provide. The Tribunal does not doubt she is able to provide financial support, companionship and general domestic assistance to the extent of her abilities. But this type of assistance is excluded by PAM as discussed below. Therefore, whilst the Tribunal accepts the visa applicant is willing, on balance the Tribunal does not accept she is able to provide the type of assistance required by the legislation and the PAMs.

25. Taken in isolation this paragraph might be thought to indicate undue reliance on PAM. However in paragraph 32 the Tribunal sets out what it describes as the "advice" in the Procedures Advice Manual in relation to long term needs for assistance. It states that it is clear that the visa applicant has provided financial support, companionship and general assistance to the nominator since the death of her husband and since her daughter left home and emotional and other support. Importantly, the Tribunal then indicates that it is necessary to consider what the nominator actually needed by way of assistance as a result of her disabilities or illness (see MIMA v Chan [2000] FCA 737 per Kenny J). It concludes that although the nominator does have a number of illnesses it is clear her needs are financial support, companionship and general domestic assistance. The Tribunal notes in paragraph 35, that PAM specifically excludes this type of assistance in relation to long-term need for assistance but it is clear from the reference to the "advice" from PAM that the exclusion referred to is an exclusion as a matter of policy. The Tribunal goes on to note that the three medical reports provided by the nominator's doctor do not indicate that the nominator's medical condition requires her to have any assistance. Therefore the Tribunal finds the nominator does not have a permanent or long term need for assistance because of death, disability, prolonged illness or other serious circumstances. Considered in its entirety I am not satisfied that the Tribunal decision takes the approach that it is bound to follow PAM 3. Rather it treats the relevant passages of PAM 3 as a useful guide consistent with the Regulations. The Tribunal reasons do not indicate that it substituted the terms of PAM 3 for those of the Regulations.

Serious circumstances and alleged application of Jun's case

26. The applicant also asserts that the Jun case played a major role in the Tribunal's determination as illustrated by the reliance on the purported quotation from the case in paragraph 29. As indicated this is an incorrect reference to Jun instead of Wu. I am not satisfied that the misnaming of the case but the adoption of the correct principle from Wu in relation to `serious circumstances' amounts to a jurisdictional error or error of law as submitted by the applicant. It was necessary for the Tribunal to consider whether the nominator's need for assistance was of the kind envisaged by the definition of special need relative. It set out the passage, in paragraph 29, from Wu concerning the "nature of the assistance that is central to the definition". In that passage the Full Court concluded that the requisite assistance was "assistance of the same sort that would be required if the citizen was suffering from a disability or prolonged illness".

27. While Wu raised different issues to the present case, the conclusion of the Full Court is an authoritative statement of what the cognate expressions "substantial and continuing assistance" and "need for assistance" in reg 1.03 involve. These expressions, read in context, are to be seen as referring to assistance of a relatively intensive kind. The Tribunal applied this passage in its conclusion that the combination of circumstances affecting the nominator being her illness and the death of her husband did not amount to "serious circumstances" within the definition of special need relative. It then went on to consider, given that the applicant had prolonged illnesses and had experienced the death of her husband, whether she had a permanent or long term need for assistance because of "death ... or prolonged illness".

Death of the nominator's husband and merits of the case

28. The Tribunal did not ignore the death of the nominator's husband or her medical condition and claimed needs in considering her circumstances as was submitted by the applicant. It expressly referred to these factors alone and in combination. It accepted that the nominator had medical conditions including hypertension and depression and considered whether her situation (including the claimed need for emotional support) involved a permanent or long-term need for assistance as discussed above. This approach reveals no jurisdictional error. The Court cannot review the merits of the Tribunal's decision (Abebe v The Commonwealth (1999) 73 ALJR 584 at 623).

Conclusion

29. It has not been established that the Tribunal committed a jurisdictional error. Accordingly even absent section 474 there has not been established a ground for review of the Tribunal decision under s.39B of the Judiciary Act 1903.

30. If, however, I am wrong in this conclusion, the decision in NAAV establishes that the privative clause in section 474 would validate the Tribunal decision. The applicant does not contend and there is nothing to suggest that there is any lack of good faith in the decision of the Tribunal. The other "Hickman conditions" are also satisfied: the decision related to the subject matter of the legislation and was reasonably referrable to the power conferred on the Tribunal.

31. The applicant does contend that the Tribunal misunderstood or misapplied, in various ways, the applicable criteria for the grant of a visa. Insofar as the grounds put by the applicant suggest that the Tribunal failed to take into account relevant considerations, such an error would be an error that the Tribunal may now make. If a decision maker falls into a jurisdictional error in the sense enunciated by the High Court in Craig v South Australia (1995) 184 CLR 163 and MIMA v Yusuf (2001) 180 ALR 1 in identifying a wrong issue, asking itself the wrong question, ignoring relevant material, relying on irrelevant material or, in some circumstances, making an erroneous finding or reaching a mistaken conclusion, then in accordance with the majority view in NAAV the decision would nonetheless be validated by section 474 (see Black CJ at [30], von Doussa J at [636]-[639] and Beaumont J at [277]).

32. The applicant also argues that the Tribunal did not make its decision in accordance with the jurisdiction given it by the statutory scheme because it misdirected itself as to the lawful indices for its decision and that such a decision cannot be validated by section 474. Such an argument is on the basis that, as von Doussa J said at paragraph [619] in NAAV:

"The purported exercise of power by the decision maker must not be one that contravenes a final limitation upon those powers, duties and functions."

33. However the argument put by the applicant was addressed by the majority in NAAV and also by Sackville J in Zahid. In NAAV, von Doussa (with whom Beaumont J agreed), indicated that section 474(1) of the Migration Act protects a decision of the Tribunal against invalidity where the decision maker has failed to identify the right question to be addressed in dealing with the applicant's claim. In Zahid, Sackville J at [80] suggested:

"There is nothing in von Doussa J's reasoning to suggest ...that a distinction should be drawn between a failure to advert to the correct question, on the one hand, and a failure to ask the correct question because of an error of law, on the other. On the contrary, von Doussa J's reasoning proceeds on the basis that there are few jurisdictional factors that must be satisfied before section 474(1) takes effect (assuming the Hickman provisos are satisfied). It would not be consistent with the paramountcy that von Doussa J attributes to section 474(1) to hold that the MRT's failure to address the correct question in this case deprived the decision of the "validating effect" of section 474(1)."

34. I respectfully agree with this view. I also agree that the reasoning of Black CJ in NAAV does not leave it open to conclude that section 474(1) does not "validate" a decision where the Tribunal has failed to advert to the correct question or to ask the correct question. (See my discussion of this issue in NAFS v MIMIA [2002] FMCA 238 at [42]-[43]). Furthermore in the subsequent decision of the Full Court of the Federal Court in NABM v MIMIA [2002] FCAFC 294 Sackville, Hely and Stone JJ stated at [25]:

"The Tribunal's failure to address the correct question does not constitute an infringement of an inviolable condition, jurisdictional factor or structural element found in the Migration Act. In this respect we agree with the analysis of Sackville J in Zahid v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1108."

35. Finally I note that, as pointed out by Sackville J in Zahid at paragraph [80], von Doussa J in NAAV observed in relation to the case of Ratumaiwai (which also involved the definition of "special need relative"), that even if the Tribunal had misinterpreted the definition (and in that case as a result failed to consider financial and emotional assistance) section 474(1) would save the decision from invalidity. Similarly section 474(1) would save this decision from invalidity if the Tribunal had misinterpreted the definition of "special need relative".

36. In these circumstances it follows that the applicant's claim for relief pursuant to section 39B(1) of the Judiciary Act must be dismissed.

37. I therefore dismiss the application. I will hear submissions in relation to costs.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date:
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