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MIGRATION - Migration Review Tribunal - family visa - no jurisdictional error - application dismissed.

Samuel v Minister for Immigration [2004] FMCA 708 (19 October 2004)

Samuel v Minister for Immigration [2004] FMCA 708 (19 October 2004)
Last Updated: 6 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SAMUEL v MINISTER FOR IMMIGRATION
[2004] FMCA 708




MIGRATION - Migration Review Tribunal - family visa - no jurisdictional error - application dismissed.




Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), s.359A, 359(4)

Cole v Minister for Immigration [2004] FMCA 456

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 77 ALJ 699

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

Videla v Minister for Immigration and Multicultural Affairs [2002] FCA 233

Narayan v Minister for Immigration and Multicultural Affairs (2001) FCA 1745

W396/01 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 103

Applicant:
AMBROSE COLIN SAMUEL




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


MZ 710 of 2003




Delivered on:


19 October 2004




Delivered at:


Melbourne




Hearing Date:


12 August 2004




Judgment of:


McInnis FM




REPRESENTATION

Counsel for the Applicant:


Mr T Hurley




Solicitors for the Applicant:


Armstrong Ross




Counsel for the Respondent:


Mr W Mosley




Solicitors for the Respondent:


Australian Government Solicitor




FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE



MZ 710 of 2003

AMBROSE COLIN SAMUEL



Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. The applicant by an application filed on 2 July 2003 seeks to review a decision of the Migration Review Tribunal (the MRT) which had affirmed a decision of a delegate of the respondent not to grant the applicant a family (residence) (class AO) visa subclass 806. The MRT decision was delivered on 4 June 2003 after it conducted a hearing on 16 May 2003.

2. The applicant is a 66-year-old citizen of the United Kingdom. He entered Australia as the holder of a visitor (short stay) visa valid for three months on 16 April 1998.

3. On 2 July 1998 the applicant applied for a family (residence) (class AO) subclass 806-family (special need relative) visa. He claimed that he was a "special need relative" in relation to his sister Shirley Johnstone ("the nominator").

4. The nominator is a 56-year-old Australian citizen who had become a citizen on 9 July 1990 and who is ordinarily resident in Australia. She is separated from her husband. She has a married son who has two children and an unmarried daughter, both of whom are resident in Melbourne.

5. The tribunal conducted a hearing on 16 May 2003 and, as indicated, decided on 4 June 2003 to affirm the decision under review. The application made to the court for review of the MRT's decision seeks relief under s.39B of the Judiciary Act 1903 (Commonwealth) as provided in part 8 of the Migration Act 1958 (Commonwealth) ("the Act").

6. The issue identified by the applicant that was before the MRT was whether the applicant was a special need relative of his sister the nominator for the purpose of a special need relative visa.

Relevant legislation

7. The relevant legislation has been conveniently summarised in the respondent's contentions of fact and law as follows:

"7. Section 29 of the Act provides for the granting of visas by the respondent to non-citizens to (inter alia) remain in Australia. Section 31 provides for the prescribed classes of visas. Regulation 2.01 of the Migration Regulations (`the Regulations') provides that for the purposes of s 31 the prescribed classes of visas are set out in Schedule 1. Regulation 2.02 provides for the various sub-classes of visas. Regulation 2.03 provides that for the purposes of s.31(3) the prescribed criteria for the grant to a person of a visa are as set out in the relevant Part of Schedule 2. Section 65 provides that where the Minister is satisfied that the relevant criteria for a particular class of visa are satisfied the Minister is to grant the visa and if not so satisfied is to refuse to grant the visa. The criteria for the grant of a subclass 806 visa were set out in Part 806 of Schedule 2 to the Regulations. The criteria included criteria to be satisfied at time of application for the grant of the visa. Clause 806.221 provided that a visa applicant must continue to satisfy cl 806.223 at the time of decision. Clause 806.213 provided:

`806.213 The applicant is an aged dependent relative, an orphan relative, a remaining relative or a special need relative of another person who:

(a) is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and

(b) is usually resident in Australia; and

(c) has nominated the applicant for the grant of the visa"

8. Regulation 1.03 defined the expression `special need relative':

`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 be reasonably 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."

The application

8. The application relied upon asserts that the MRT decision was made without either jurisdiction or was affected by error of jurisdiction. It was specifically argued that the decision of the MRT was affected by jurisdictional error in that the tribunal failed to take into account relevant material. The particulars relied upon include the following:

i) the tribunal misinterpreted and/or misunderstood the criterion that the applicant had to establish to be eligible for a grant of the visa in that it failed to consider the applicant's claims and the evidence in support of these claims;

ii) it failed to deal with and/or consider the case as presented and/or the claims of the applicant in that it failed to consider the criteria for the grant of the visa, and in particular, the definition of "special need relative" as set out in regulation 1.03 of the Migration Regulations, by failing to consider:

(a) whether the nominator of the applicant has a permanent or long-term need for assistance because of a prolonged illness being anxiety and/or depression;

(b) whether the nominator of the applicant has a permanent or long-term need of assistance because of other serious circumstances, and in so doing failed to consider the illness suffered by the applicant and whether this amounted to 'other serious circumstances';

iii) it failed to deal with and/or consider the case as presented and/or the claims of the applicant in that it failed in considering the definition of "special need relative" to consider the medical and psychological material submitted.

9. It was further asserted that the decision was affected by jurisdictional error in that the decision was made in breach of the rules of natural justice. The particulars relied upon include the following:

i) it acted in breach of the rules of natural justice and/or the duty of procedural fairness in that it failed to give the applicant an opportunity or an adequate opportunity to respond to information available to the tribunal and obtained by it from the Department of Human Services' Internet site about clinical depression;

ii) it acted in breach of the rules of procedural fairness by failing to comply with the procedures required by section 359A of the Migration Act by failing to give the applicant the opportunity to comment on information available to it, and to comment on the relevance of such information, about clinical depression obtained from the Internet;

iii) it acted in breach of the rules of natural justice/procedural fairness by failing to give the applicant the opportunity to present further evidence in relation to whether the nominator suffers from a prolonged illness.

10. It was further claimed in the notice of appeal that in the alternative the MRT asked the wrong question, identified the wrong issue and took into account irrelevant material as a consequence of which its decision was made without jurisdiction or affected by error of jurisdiction. The particulars relied upon include those referred to earlier in support of the other grounds, together with a further particular whereby it was claimed that the tribunal failed to deal with the integers of the applicant's case and in so doing its decision was made without jurisdiction or was affected by error jurisdiction.

11. During the course of argument it was submitted that the error, if found to be an error, in relation to reliance upon the web site information so affected the reasoning and decision-making process as to constitute a jurisdictional error even if it could be claimed that the further decision was made upon grounds reasonably open to the tribunal.

The Tribunal's findings

12. In its findings and reasons the tribunal correctly stated, in my view, the appropriate definitions and set out the relevant legislation. The tribunal was not satisfied that the nominator had a need for assistance arising from any of the four identifiers referred to in paragraph (a) of regulation 1.03; namely, death, disability, prolonged illness or other serious circumstances. The reasoning of the tribunal is found in paragraphs 48 to 52 of its decision.

13. The tribunal further found that it was not satisfied that the assistance of the applicant provided to the nominator was "substantial". Its reasoning is found in paragraphs 53 to 58.

14. The tribunal was further not satisfied that any assistance that the nominator may require could not be reasonably obtained from welfare, hospital, nursing or community services in Australia. In considering that matter it referred to those issues as set out in regulation 1.03(b) referred to earlier and paragraphs 59 and 60 of the decision are relevant.

Submissions

15. It was submitted on behalf of the applicant that in the passage to which reference has been made jurisdictional error has occurred, and reliance was placed upon an analysis of evidence produced for and on behalf of the applicant by a psychologist, Mr Kleynhans, who has concluded that the nominator is suffering from chronic depression and generalised anxiety disorder. It was claimed that assessment was made on 30 November 2000 and that in an earlier report dated 24 June 1998 the same psychologist found the nominator's level of depression to be at a serious level. It was submitted that from that evidence the MRT should have determined whether it was satisfied or not that the nominator had a prolonged illness. The reference to the Department of Human Services' web site in relation to clinical depression without giving the visa applicant or those who provided reports on behalf of the applicant the opportunity to comment breached the rules of natural justice.

16. It was submitted had that information been provided, then the advisers would have been in a position to obtain comment on this both from those who saw the nominator or from other medical professionals. It was further submitted failure to give the visa applicant that opportunity to comment on the information from the web site was a failure to provide information pursuant to s.359A of the Act. That section provides as follows:

"359. Tribunal may seek additional information

(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

(2) Without limiting subsection (1), the Tribunal may invite a person to give additional information.

(3) If an invitation is given to a person other than the Secretary, the invitation must be given:

(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or

(b) if the invitation is given to a person in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

(4) If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B."

17. It was further submitted that s.359A(4) does not apply as the information from the Department of Human Services' web site is not information about a class of persons of which the nominator is a member. The applicant referred to a decision of this court in the matter of Cole v Minister for Immigration [2004] FMCA 456 where similar issues were considered by the court. In that case I stated the following in relation to the use of web site material:

"20. However, in the circumstances I am prepared to find that there has been a breach of the requirement of s.359A and/or a breach of the rules of natural justice in failing to alert the applicant in the present case to the conclusion that the tribunal was going to draw based upon material it had accessed on a website. There is a significant danger in accessing information on a website. Information, particularly of a medical or expert kind, remains untested. It ought to be put to those who provided expert reports and the MRT ought not seek independent expert advice in the form of website material without bringing to the attention of the applicant that it is seeking to do so.

21. Expert medical advice is advice of a particular kind and ought to be subject to proper testing or at the very least applicants should be given the opportunity to properly test that evidence in the appropriate forum. It is dangerous for courts or tribunals to access material which sometimes may be voluminous on websites, whether government websites or otherwise, in circumstances where the information provided on those websites may be significant and indeed lead a tribunal/court to draw an adverse conclusion against the interests of a party appearing before it without giving that party the opportunity to properly analyse and test the basis of that material or indeed test whether it is valid.

22. The reason I did not accept that the exception provided by subsection 359A(4)(a) does not apply is that on the material it clearly does not apply to a class of persons to whom the nominator belongs. Hence the material otherwise relied upon to provide a basis upon which the psychological evidence is rejected seems more likely to be material going to the issue directly of what may or may not constitute psychological disease or disorder. It is that threshold issue which seems to have been decided in part by reliance upon the website information which as I have indicated should have been provided to the Applicant for comment either by him or the expert relied upon. Whilst the MRT's reservations about the evidence of the psychologist are understandable it could have simply rejected that evidence without resort to and/or reliance upon website information which in part it used to determine the crucial issue of whether or not there was evidence that the nominator suffered from any psychological disease or disorder."

18. It was noted that in Cole's case the court then further considered the issue of whether or not the reliance and use of the web site information resulted in practical unfairness. Counsel for the applicant sought to distinguish the present case from the facts and circumstances in the decision of the court in Cole where I found that there was no practical unfairness having regard to other findings by the MRT in that case which I concluded were open to it; namely, that the nominator did not have a need for substantial assistance.

19. It was further submitted in the alternative by the applicant in the present case that had the MRT made findings in relation to the claim that the nominator had depression and anxiety at the time of the visa application it would then have been in a position to make findings on the question of whether the nominator's depression amounted to 'other serious circumstances' even if it did not amount to a prolonged illness. It was claimed that the MRT had misstated the evidence before it and particular reference was made to paragraph 52 set out above whereby it found:

At its highest, the psychologist has described the nominator's condition as being one of anxiety and not coping well without the visa applicant.

20. Whilst it was conceded that misstating evidence may in certain circumstances be an error of fact not capable of correction on appeal, the applicant submitted that in this case the error goes to the MRT's consideration of one of the elements of the test that it had to consider and in those circumstances it had committed jurisdictional error.

21. The findings by the MRT in relation to substantial and continuing assistance were likewise affected, it was claimed, by the MRT's failure to consider the claims relating to the nominator's depression and anxiety and failure to accord natural justice to the applicant in relation to those matters. As indicated earlier, there was an interdependence between the findings according to the applicant's submissions which would lead to the conclusion that the MRT had failed to deal with the visa applicant's claims as substantial and ongoing assistance.

22. The respondent submitted that there was no jurisdictional error in the present case and that even if use of the web site material may in circumstances constitute jurisdictional error, it did not result in any practical unfairness. Reliance was placed upon the decision of Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 77 ALJ 699 at [37]:

"... fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice."

23. In general terms it was claimed that for the visa to be granted it was necessary for the tribunal to be satisfied that all the relevant criteria were in fact satisfied. One of those criteria was the criterion contained in clause 806.213. That required that the applicant was a special need relative of the nominator as at the time of application. I did not take the applicant in this case to dispute that the respondent was correct in asserting that the determination of the special need relative of the nominator must be at the time of the application. The respondent submitted that determination of the special need relative issue is a question of fact for the decision-maker. Reliance was placed upon the decision of McHugh J in Re Minister for Immigration and Multicultural Affairs & Ors; Ex parte Cohen (2001) 177 ALR 473 at [35-36] as follows:-

"35. The tribunal understood the question that it had to answer. Even if it applied an erroneous precedent, it did not commit a jurisdictional error. The expressions `disability' and `other serious circumstances' were being used in reg 1.03 in their ordinary, non-technical sense. The ordinary meeting or common understanding of a non-technical word is generally a question of fact. Leaving aside questions of jurisdictional fact, an administrative tribunal will ordinarily not commit a jurisdictional error unless it has made an error of law. A factual error in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact. Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.

36. If an administrative tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short step to concluding that it did not decide the question that it had to decide. But questions of fact are ordinarily for an administrative tribunal to determine and so are the reasoning processes employed to make such findings. Disagreement with a finding of fact or the reasoning process used to find it is usually a slender ground for concluding that a tribunal misconceived its duty."

24. The court was further referred to the decision of Weinberg J in Videla v Minister for Immigration and Multicultural Affairs [2002] FCA 233 (6 March 2002) where the court states the following:

"16 In order for the applicant to qualify as a "special need relative" under the Regulations, the Tribunal had to be satisfied of several distinct matters. These were:

* that he was willing and able to provide substantial and continuing assistance to his sister;

* that she had a permanent or long-term need for assistance;

* that that need arose by reason of "death, disability, prolonged illness or other serious circumstances"; and

* that the assistance could not reasonably be obtained from any other relative who was an Australian citizen or permanent resident, or from welfare, hospital, nursing or community services in Australia.

17 Whether or not the applicant was able to satisfy the Tribunal of each of these requirements involved a question of fact. It was for the Tribunal to determine that question, provided only that it approached the task correctly as a matter of law.

18 It is clear, in my view, that it was open to the Tribunal to conclude that Ms Pozo's depression and medical condition did not give rise to "a permanent or long-term need for assistance". It was also open to the Tribunal to conclude that, to the extent that she required such assistance, it was able to be provided by her other relatives in Australia."

25. It was submitted that the interrelationship between the elements in the opening paragraph and those in paragraph (a) of the definition of "special need relative" in regulation 1.03 were explained by the Full Court in Narayan v Minister for Immigration and Multicultural Affairs (2001) FCA 1745 at [38]-[44].

26. The respondent otherwise referred in some detail to the consideration by the tribunal set out in the paragraphs referred to earlier in this judgment as demonstrating that the MRT had properly considered the relevant issues and in particular properly analysed the issue of whether or not the nominator had a "prolonged illness" and that it did not fail to consider the reports of the psychologist advanced for and on behalf of the applicant. Any weight given to that psychologist report was a matter for the MRT.

27. Although not strictly required to make specific findings as to the need for long-term assistance, there was no error made in relation to the decision and indeed there is no error which arises from any failure to consider a piece of evidence or failure to find a relevant fact compared with the duty to deal with the whole issue. There was no failure to deal with the whole issue in this case of a kind which might attract jurisdictional error (see W396/01 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 103).

Reasoning

28. In my view, the facts and circumstances of the present case are very similar to the decision made by this court in the matter of Cole referred to earlier. I repeat and adopt the comments I made in relation to the use by the MRT of web site information. It is very clear in the present case that there was no need for the MRT to rely upon this material and it is understandable that the reliance upon that material against the backdrop of other evidence at the very least permits a perception of unfairness. Nevertheless, I am satisfied that on a proper reading of the findings of the tribunal set out earlier in this judgment it has addressed the appropriate issues and has made findings which were open to it on all the material.

29. Further, I am satisfied that its findings on the discrete issues which it was required to consider would, in any event, lead to a conclusion where it could not be claimed that there was any practical unfairness to the applicant. I do not accept that there is an relationship between its findings arising from the use of the web site material and its other findings in relation to the key issues in an application of this kind. The fact that it went on to make findings of a kind contemplated by regulation 1.03(b), in addition to its finding arising from regulation 1.03(a), provides a basis upon which it could be claimed quite properly that the application was appropriately disposed of in the manner found by the MRT. Its finding under regulation 1.03(b) was open to it and, in my view, it correctly applied the appropriate principles referred to in Narayan's case cited for and on behalf of the respondent.

30. In my view, there is no jurisdictional error demonstrated in this application and it follows therefore that the application should be dismissed. It had been indicated to the parties that I will hear submissions in relation to the issue of costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 19 October 2004
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