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MIGRATION - Review of decision of Migration Review Tribunal - definition of `Special Need Relative' - no jurisdictional error.

Prasad v Minister for Immigration [2003] FMCA 146 (26 June 2003)

Prasad v Minister for Immigration [2003] FMCA 146 (26 June 2003)
Last Updated: 3 July 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PRASAD v MINISTER FOR IMMIGRATION
[2003] FMCA 146



MIGRATION - Review of decision of Migration Review Tribunal - definition of `Special Need Relative' - no jurisdictional error.



Judiciary Act 1903 Cth)

Migration Regulations 1994

Migration Act 1958 (Cth)

Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473

Minister for Immigration Multicultural & Indigenous Affairs v Yusuf (2001) 206 CLR 323

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24

Re Minister for Immigration & Multicultural & Indigenous Affairs Ex parte Applicants S134/2002 (2002) 195 ALR 1

Fraser v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1575

Wu v Minister for Immigration & Multicultural Affairs (2000) 105 FCR 39

Narayan v Minister for Immigration & Multicultural Affairs [2001] FCA 1745

Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259

Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515

Narayan v Minister for Immigration & Multicultural Affairs [2001] FCA 789

Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 88

Minister for Immigration & Multicultural & Indigenous Affairs v Yusuf (2001) 206 CLR 323

Applicant:
ANIL PRASAD



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ926 of 2002



Delivered on:


26 June 2003



Delivered at:


Sydney



Hearing Date:


20 March 2003



Judgment of:


Barnes FM


REPRESENTATION

Counsel for the Applicant:


Mr T Reilly



Solicitors for the Applicant:


Christopher Levingston & Associates



Counsel for the Respondent:


Mr S Lloyd



Solicitors for the Respondent:


Sparke Helmore Solicitors



THE COURT ORDERS THAT:

(1) The application is dismissed.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ926 of 2002

ANIL PRASAD


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
Background and Tribunal decision

1. This is an application pursuant to section 39B of the Judiciary Act 1903 in respect of a decision of the Migration Review Tribunal (the Tribunal) made on 31 July 2002 affirming a decision of a delegate of the respondent to refuse to grant the applicant a Family (Residence) (Class AO) visa.

2. The applicant, Mr Anil Prasad, applied for the visa on 6 March 1998. He included in his application his wife and two children. The delegate's decision to refuse to grant the visas was made on 12 April 1999. The applicant applied for review of the decision on 7 May 1999. The Tribunal held a hearing on 30 July 2001.

3. The Family (Residence) (Class AO) visa class has since been repealed but it is not in dispute that it continues to be applicable to applications for a visa which were made before the date of repeal, as in this case (see Re Minister for Immigration &a;
mp; Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at [23] - [29] per McHugh J). The only relevant sub-class of the visa class was sub-class 806. Clauses 806.213 and 806.221 of Part 806 of Schedule 2 to the Migration Regulations 1994 required that the applicant be, both at the time of the application for the visa and at the time of the Tribunal decision, a `special need relative' of another person who had nominated the visa applicant for the grant of the visa. `Special need relative' was a term defined in Regulation 1.03 of the Migration Regulations. The definition provided:

`special need relative' in relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or an eligible New Zealand citizen, means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:

(a) the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or 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 citizen or resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

(ii) welfare, hospital, nursing or community services in Australia;

4. The applicant claimed to be a special need relative of his mother. The Tribunal first considered whether he satisfied the definition of `special need relative' at the time of its decision. It accepted that the nominator was, at the time of the decision, affected personally by prolonged illnesses suffered by her, being osteoporosis, asthma, hypertension, multi-modular goitre and early signs of dementia and that these were prolonged illnesses within the terms of the definition of `special need relative'. It also accepted, based on the nature of the illnesses and the medical reports provided, that such illnesses gave rise to some need for assistance which could be regarded as continuing and long term, if not permanent. The Tribunal found expressly that the nominator had a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting her personally (para 75 of Reasons for Decision). However, the Tribunal went on to say that in order to meet the "whole definition" of `special need relative' at the time of the decision the nominator's needs "must also be found to give rise to a need for substantial as well as continuing assistance" (para 76). It addressed the evidence in relation to each of her illnesses and determined that, individually and in combination, based on the medical evidence and the evidence as to the level of assistance being provided by the visa applicant, it was not satisfied that the nominator's prolonged illnesses, either alone or collectively or in conjunction with other aspects of the her circumstances, gave rise to a need for substantial assistance (at 77) in the sense the Tribunal considered was required by the definition of `special need relative'. The Tribunal also found that the assistance provided by the visa applicant was not substantial assistance. It found that the visa applicant was not:

a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:

a) The citizen or resident has a permanent or long-term need for assistance because of the death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; ...

Hence the visa applicant was not a special need relative. As he did not meet one of the prescribed criteria at the time of decision he was not entitled to the visa. In view of this finding the Tribunal stated that it was not necessary to consider whether the visa applicant was a `special need relative' at the time of application and that it had no alternative but to affirm the decisions under review.

5. The Tribunal went on to say:

In the course of this review, the Tribunal has considered much material including at hearing and afterwards in relation to all the elements of the definition of `special need relative'. While it is not necessary in view of the above findings to make further findings in relation to those other elements, the Tribunal notes its concerns that the primary visa applicant would also not meet (b) of the definition of special need relative. This relates to whether the nominator's needs for assistance which (sic) can reasonably be obtained from any other relative who is an Australian citizen or permanent resident or from welfare, hospital, nursing or community services in Australia. (at 111).

6. The Tribunal suggested that `basically' it `considers assistance could reasonably have been obtained from the nominator's adopted daughter who lives with her.....with some assistance from other relatives and or community services as well as hospital, welfare or nursing services.' It `doubts' that other relatives could not have come to an arrangement to provide assistance. It `notes' certain matters and expresses concerns about the accuracy of certain information before it. It gave reasons for these views.

This application

7. The application for review was filed in the Federal Court on 29 August 2002 and transferred to this Court by Allsop J on 23 September 2002. The applicant alleges that the Tribunal made two errors in law. First it was submitted that the Tribunal erred because the definition of `special need relative' does not require that the nominator's need for assistance, in addition to being `permanent or long-term' because of (relevantly) prolonged illness, must also be a need for `substantial' assistance. It was said that the Tribunal imposed an additional requirement to that actually found in the definition. It was conceded that the assistance which the applicant is willing and able to provide must be `substantial and continuing' but submitted that this is not the same as saying that the nominator's need itself must be `substantial'. Secondly, the Tribunal did not make express findings in relation to paragraph (b) but merely noted concerns that the applicant also did not satisfy that part of the definition, but that, in any event, the Tribunal's statement of the test in paragraph (b) of the definition was erroneous as the Tribunal had asked whether the nominator's need could be met by other family members or welfare services while paragraph (b) refers not to the nominator's needs but to the assistance that the applicant is willing and able to provide. It was submitted that the Tribunal had, accordingly, asked the wrong question with respect to both paragraphs (a) and (b) of the definition of `special need relative' and that this constituted jurisdictional error of the sort considered in Minister for Immigration Multicultural & Indigenous Affairs v Yusuf (2001) 206 CLR 323. As such, the Tribunal's decision was said not to be a privative clause decision within s474 of the Migration Act 1958 (Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 and Re Minister for Immigration Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2002) 195 ALR 1 at [15]). It was also said that as the result may have been different but for the Tribunal erring in law the relief sought in the application should follow.

8. The respondent submitted that, properly construed, the reference to the need for assistance in the definition of `special need relative' was to a need for substantial assistance. It was argued that the applicant's contention had been agitated unsuccessfully in Fraser v Minister for Immigration Multicultural & Indigenous Affairs [2002] FCA 1575 and that this decision and the decisions of the Full Court in Wu v Minister for Immigration & Multicultural Affairs (2000) 105 FCR 39 and Narayan v Minister for Immigration & Multicultural Affairs [2001] FCA 1745 supported the view that the Tribunal did not err in considering whether the applicant had a need for substantial assistance.

9. In Wu the Full Court considered whether the concept of "other serious circumstances" in paragraph (a) of the definition of `special need relative' could comprehend a situation where the citizen was a young child. In considering whether the applicant in that case could be a `special need relative' because of what she contended was her husband's inability to look after a child because of his (the husband's) illness, the Court said at [13]:

Looking only at the words used in the definition of `special need relative' they appear to comprehend these circumstances. That is, the definition appears to apply to a situation where the long-term need of a child for substantial and continuing assistance (to be provided by the appellant) arises from (or to use language of the definition `because of') the disability or prolonged illness of a member of the child's family unit (the husband and father).

10. This passage was obiter, as the Tribunal decision in issue had not concluded that the husband suffered from a prolonged illness. However it does suggest that a `need' for substantial and continuing assistance is inherent in or an aspect of the definition.

11. The Court then addressed the issue of whether the expression "other serious circumstances" could encompass the circumstances of a young child. The Court considered suggestions by Counsel for the Minister as to circumstances that might create a need for permanent or long-term assistance that were not comprehended by the notions of "death", "disability" or "prolonged illness" and hence might constitute "other serious circumstances". It noted at [40] that each of the suggestions put to the Court exemplified the disparate circumstances in which the need for long-term assistance might arise and that each was `serious' in the sense that it involved "something having a substantial and negative effect on the person affecting their capacity to look after himself or herself or to look after another person". Another common feature of the suggested circumstances was that they involved something out of the ordinary and perhaps unexpected. However the Court rejected the proposition that a necessary feature of "other serious circumstances" is that they be out of the ordinary or unexpected (at [41]).

12. The most relevant aspect of the decision in Wu for present purposes is the following statement at [41]:

In our opinion the word `serious' is simply intended to reinforce the nature of the assistance that is central to the definition, namely assistance which is substantial and continuing in relation to a need for assistance which is permanent or long-term. That is, the circumstance is sufficiently serious that, in relation to a citizen, it would require assistance of the same sort that would be required if the citizen were suffering from a disability or prolonged illness. In our opinion, if a citizen or a member of the citizen's family unit is in circumstances which create a need for substantial and continuing assistance of the citizen and the circumstances do not arise because of the death of a member of the family unit or the disability or prolonged illness of either the citizen or the member of the family unit then those circumstances are intended to be comprehended by the expression `other serious circumstances'. There is no reason in logic or policy that we can discern which might explain that the definitions intended to be enlivened in every circumstance where the requisite care of the citizen is required except young childhood and perhaps old age. We say perhaps old age because the long-term or permanent need for substantial and continuing assistance of an elderly person ordinarily arises through a disability or illness associated with old age." (at [41])

The Court then concluded, at [43], that the definition of `special need relative' can comprehend a situation where the citizen is a young child in need of substantial and continuing assistance from a relative and the need is a long-term one. Such a situation can be "other serious circumstances".

13. The Full Court in Wu was considering whether particular circumstances would come within the notion "other serious circumstances". However, it would be consistent with its view that a circumstance is serious if it requires assistance of the same sort required in relation to a prolonged illness or disability, and that circumstances which created a need for substantial and continuing assistance would be `other serious circumstances', for a similar requirement of substantial need to apply in the interpretation of the alternative categories (where a permanent and long-term need for assistance arises because of death, disability or prolonged illness). While the Court does not go so far as to state that there is an element of a need for substantial and continuing assistance in addition to a permanent or long-term need for assistance, its reasoning is consistent with the view that inherent in the expression "need for assistance" in the context of par (a) of the definition is a requirement that the need be for "substantial and continuing assistance".

14. This interpretation is supported by the subsequent decision of the Full Court of the Federal Court in Narayan v Minister for Immigration & Multicultural Affairs [2001] FCA 1745. In that case the Tribunal had made no finding on whether the nominator had a permanent or long-term need for assistance but had found that the applicant had not supplied substantial and continuing assistance and by implication was not willing or able to provide such assistance in the future (at [43]). The primary judge (Sackville J) suggested ([2001] FCA 789 at [39]) that the definition of "special need relative" is "framed a little awkwardly" because the reference to the relative's willingness and ability to provide "substantial and continuing assistance" precedes the reference to the citizen's "permanent or long-term need for assistance". His Honour stated that:

Whether the relative can provide `substantial and continuing assistance' to the citizen must be determined in the light of the citizen's `permanent or long-term need for assistance'. In order to satisfy the definition, the applicant must be able to provide assistance of the kind the citizen needs. In turn, the citizen's need for assistance must be because of prolonged illness or any of the other matters identified in paragraph (a) of the definition.

15. It was submitted in Narayan that the definition did not require, in addition to what was inherent in paragraph (a), that the assistance that the visa applicant was willing and able to provide had to be substantial and continuing and that the concepts `substantial and `continuing' did not give rise to independent criteria that an applicant needed to satisfy.

16. The Full Court rejected these submissions noting that such an approach would allow the expression "substantial and continuing" in the opening paragraph no role at all and that:

The structure and the literal terms of the definition suggest that the legislature intended the opening paragraph to have the potential to disqualify a visa applicant, even if the insubstantiality of the assistance to be provided by him or her will often signify that some other element of the definition is not satisfied either" (at [42]).

17. The Court indicated that what the differently constituted Full Court had said in Wu (at [41], see above) suggested an interrelationship between the elements of the opening paragraph and those of paragraph (a) of the definition. It stated at [40]:

We agree with the primary Judge's observation (at [39]) that the definition of `special need relative' is `framed a little awkwardly'. Perhaps some of the awkwardness is removed if the opening paragraph and para (a) are read purposively and as a whole. Paragraph (a) describes the need which the citizen or resident must have. The opening paragraph describes the kind of assistance which the visa applicant must be able to provide in response. Although the relationship between the two paragraphs is not stated expressly, it is not surprising that that assistance which the visa applicant is willing and able to provide is required to be `continuing', since the need referred to in para (a) is `permanent or long-term'. Similarly, since the cause of the permanent or long-term need must be `serious' circumstances as described in para (a), it seems likely that often such a need will be able to be met by nothing less than `substantial assistance'.

18. Relevantly, for present purposes, the Full Court went on to discuss the way in which the insubstantiality of the assistance to be provided may signify that some element of the definition (apart from the element contained in the opening paragraph) was not satisfied. It gave the example of a citizen living with his or her spouse at a remote location who because of disability or prolonged illness relied on the spouse to perform a particular minor household task. If the spouse then died the decision-maker may find that there was, literally, a permanent or long-term need for assistance because of death within paragraph (a) the definition, but that the assistance to be provided by the visa applicant was not substantial within the opening paragraph. On the other hand `the decision-maker may find, not only that the assistance to be provided is not substantial within that paragraph, but also that the optional and unimportant nature of the household task signifies that there is not truly `a permanent or long- term need for assistance' within the contemplation of para (a)'. (at [43]). This suggests that if a Tribunal found that there was not a permanent or long-term need for assistance because of prolonged illness because of the relatively unimportant nature of the assistance this would be unexceptional.

19. The respondent also sought to rely on the decision of Weinberg J in Fraser v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 1575. In that case the Tribunal had accepted that at the time of the application for a visa the nominator was suffering from depression which was a prolonged illness. However the nominator's circumstances had improved by the time of the decision and the Tribunal was not satisfied that his condition gave rise to a long-term need for substantial and continuing assistance. Moreover it found that the support that was provided by the visa applicant was not substantial and continuing within the intention and scope of the definition and policy guidelines. Relevantly, it was submitted that the Tribunal had moved the requirement of "special (sic) and continuing assistance `from the chapeau of the definition to paragraph (a)'". His Honour rejected this submission stating at [39]:

The Tribunal properly considered the element of `substantial and continuing assistance', as applicable to a proper construction of par (a). Although, these words are contained in the chapeau, and not in par (a) itself, they are nevertheless applicable to a proper interpretation of par (a) and indeed par (b) as well."

20. His Honour referred to the opinion of the Full Court in Wu at [41] that the word "serious" was simply intended to reinforce the nature of assistance that was central to the definition "namely assistance which is substantial and continuing in relation to a need for assistance which is permanent or long term". He also referred to the quotation from the joint judgment of the Full Court in Narayan which is set out at 14 above. Weinberg J concluded that the Tribunal had gone through each element of the definition and had properly asked itself a series of questions, each of which was directed towards resolving whether the applicant met the criteria within the definition. He concluded "The applicant failed in his claim simply because the MRT concluded, as it was entitled to do, that the evidence no longer disclosed a need for substantial and continuing assistance to the nominator, having regard to his changed circumstances." (at [44]). This supports the view that the need for permanent or long-term assistance in paragraph (a) is a need for substantial and continuing permanent or long-term assistance.

21. The question of whether a need for substantial and continuing assistance is an element of the definition was also addressed by the Full Court of the Federal Court in the recent decision of Chow v MIMIA [2003] FCAFC 88. The Tribunal in question had found that the applicant's father (the nominator) and his wife were each affected by a prolonged illness. The Court stated:

[21] "Having concluded that appellant's father and stepmother are affected by prolonged illness the next step [emphasis added] should have been to consider whether either of them had a permanent or long-term need for substantial and continuing assistance because of that prolonged illness. If a positive determination were made on that question the next step would be to determine whether the appellant was willing and able to provide such assistance to his father and stepmother."

[22] "The term `assistance' referred to in par (a) and par (b) of the definition of `special need relative' in reg 1.03 must be a reference to `substantial and continuing assistance' referred to in the definition before the conditions that follow the word `if'. Thus, the condition in par (a) is that the citizen has a permanent or long-term need for substantial and continuing assistance because of prolonged illness affecting the citizen personally or a member of his family unit."

22. This decision is binding on this Court. It makes it clear that the nominator must have a permanent or long-term need for substantial and continuing assistance because of prolonged illness or one of the other specified grounds. The approach taken by the Tribunal in this case is consistent with the Full Court's interpretation of the steps to be taken in applying the definition of `special need relative' albeit that the Tribunal considered par (a) in two steps. Reading the Tribunal reasons for decision fairly and as a whole and with an eye not too keenly attuned to the perception of error (See MIEA v Wu Shan Liang (1996) 185 CLR 259 at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ) I am satisfied that the Tribunal did not superimpose the requirement of substantial need on par (a). Rather it treated this concept as an element of the opening paragraph and par (a) consistent with the first two steps described in Chow. Accordingly no error is apparent in the Tribunal's consideration of par (a) of definition.

23. The second argument put by the applicant was that the Tribunal erred in its consideration of par (b) of the definition of `special need relative'. It was submitted that the Tribunal had failed to make express findings that the applicant did not satisfy par (b). Hence, if the argument in relation to par (a) was successful the `concerns' expressed by the Tribunal would not disentitle the applicant to relief. Alternatively, it was submitted that the Tribunal misstated the test in par (b) by asking whether the nominator's needs could be met by other family members or welfare services. It was argued that par (b) refers not to the nominator's needs but to the assistance that the applicant is willing and able to provide (Fuduche v MILGEA (1993) 45 FCR 515 per Burchett J at [527] and per Sackville J at first instance in Narayan v Minister for Immigration & Multicultural Affairs [2001] FCA 789 at [40]).

24. The respondent submitted that the Tribunal did make relevant findings in relation to par (b) albeit expressed in sympathetic language and that any error in the construction of this aspect of the definition was not a material error. It was argued that as the Tribunal had found that all the assistance needed by the nominator could be provided otherwise than by the applicant it followed that any assistance to be provided by the applicant in response to such needs would be available.

25. Reading the Tribunal reasons fairly and as a whole (see Wu Shan Liang) I am not satisfied that the Tribunal made findings in relation to par (b). The Tribunal properly considered and made findings in relation to the elements contained in par (a) of the definition. It concluded (in paras [107] to [109]) that the applicant did not meet that part of the definition consisting of the introductory paragraph and par (a). Hence the applicant was not a special need relative and did not meet one of the prescribed criteria for the visa. The Tribunal continued `Given the findings made above, the Tribunal has no alternative but to affirm the decision under review'. It stated that it was not necessary in view of those findings to make further findings in relation to other elements. The subsequent discussion of par (b) must be seen in light of the clear statement that no further findings were necessary. Further, it is notable that the Tribunal indicated that much material was before it in relation to par (b). It made no express findings that the applicant did not satisfy par (b). It merely canvassed concerns abut the material before it. This is clear from the language used, such as the references to `concerns', and `doubts', that "it would appear that additional assistance could be obtained", that "it appears reasonable to expect" and the expression of "concerns about the accuracy of information" provided. This is to be contrasted with the approach of the Tribunal in relation to the elements of par (a). In that part of its reasons the Tribunal made clear express findings using language such as "The Tribunal is not satisfied" and "The Tribunal finds". This is not a case of a Tribunal using sloppy or inexact language in the course of making findings. Rather a clear difference of approach is apparent to the findings in relation to par (a) on which the decision was based and the concerns expressed as to par (b) despite the existence of considerable material before the Tribunal.

26. What then is the consequence of an absence of findings on par (b)? First, a failure to make findings in relation to all the elements of the definition does not establish error where, as here, one essential element (in relation to which findings are made) is not met. Further, any misstatement of the test in relation to par (b) in this context is not material. It is not an error which constitutes a jurisdictional error. The Tribunal did not identify a wrong issue or ask a wrong question "in a way that affected the exercise of power" (see MIMIA v Yusuf (2001) 206 CLR 323 at [81]). While it is the case that Burchett J in Fuduche stated that par (b) refers not to the nominator's needs but to the assistance that the applicant is willing and able to provide, the result in this instance would not have been different had the Tribunal stated the test for par (b) of the definition of `special need relative' in this way. As it found it that other elements of the definition were not satisfied the applicant could not succeed. It did not base its conclusion that the applicant was not a special need relative on a failure to meet par (b), however that element is constructed. The Tribunal made no findings in that regard as it was not necessary for it to do so. This conclusion means that it is not necessary to determine the scope of jurisdictional error in the light of the decision of the High Court in Plaintiff S157. As no error has been established the application must be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: Thursday 26 June 2003
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