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MIGRATION - Application for review of Migration Review Tribunal decision - whether applicant is nominator's "carer" - whether applicant denied procedural fairness - failure of Migration Review Tribunal to bring to applicant's attention a substantial issue upon which the decision was likely to turn - whether Tribunal's failure in this regard amounted to jurisdictional error.

Singh v Minister for Immigration [2004] FMCA 732 (29 October 2004)

Singh v Minister for Immigration [2004] FMCA 732 (29 October 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION
[2004] FMCA 732




MIGRATION - Application for review of Migration Review Tribunal decision - whether applicant is nominator's "carer" - whether applicant denied procedural fairness - failure of Migration Review Tribunal to bring to applicant's attention a substantial issue upon which the decision was likely to turn - whether Tribunal's failure in this regard amounted to jurisdictional error.




Migration Act 1958

Migration Regulations 1994

Federal Magistrates Court Rules 2001

NAAV v MIMIA [2002] FCAFC 228

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

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134/2002 [2003] HCA 1

Re: MIMA; Ex parte Cohen (2001) HCA 10

MIEA v Wu Shan Liang (1996) 185 CLR 259

Landers v MIMIA (2003) FMCA 223

MIMIA v Landers (2003) FCA 1485

Kanda v Government of Malaya (1962) AC 332

Romeo v Asher (1991) 29 FCR 343

Kioa v West (1985) 159 CLR 550

VAAC v MIMIA (2003) FCAFC 74

Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472

Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Island Affairs (2000) 103 FCR 539

Re: Refugee Review Tribunal & Anor (exparte Aala) (2000) 204 CLR 82

NAFF of 2002 v MIMIA (2003) FCAFC 52

Applicant:
DHIRENDRA SINGH




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


MZ 937 of 2002




Delivered on:


29 October 2004




Delivered at:


Melbourne




Hearing date:


20 March 2003




Judgment of:


Walters FM




REPRESENTATION

Counsel for the Applicant:


Mr Niall




Solicitors for the Applicant:


Erskine Rodan & Associates




Counsel for the Respondent:


Ms Riley




Solicitors for the Respondent:


Clayton Utz




ORDERS

(1) The Court declares that the decision of the Migration Review Tribunal made on 11 April 2002 is invalid and of no effect.

(2) A writ of certiorari shall issue, quashing the decision of the Migration Review Tribunal.

(3) A writ of mandamus shall issue, requiring the Migration Review Tribunal to redetermine the matter according to law.

(4) Pursuant to Rule 21.02(2)(a) of the Federal Magistrate Court Rules 2001 ("the Rules"), the respondent do pay the applicant's costs of these proceedings fixed in the sum of $4,250.00.

(5) Pursuant to Rule 21.15 of the Rules, the Court certifies that it was reasonable for the applicant to employ an advocate.

(1) FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE



MZ 937 of 2002

DHIRENDRA SINGH



Applicant

And

MINISTER FOR IMMIGRATION AND MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
Introduction

1. This is an application to review the decision of the Migration Review Tribunal ("the Tribunal") made on 20 June 2002. The Tribunal affirmed the decision of a delegate of the Minister to the effect that the applicant is not entitled to the grant of an Other Family (Residence) (Class BU) visa subclass 836. Relevantly, the Tribunal concluded that the applicant is not a carer of his father, who was his nominator.

2. I accept the following statement of background facts contained in paragraphs 1 to 5 (inclusive) of the written submissions prepared on behalf of the respondent:

1. The applicant was born on 8 November 1963, and is a citizen of Fiji. He arrived in Australia on 12 February 2000 as the holder of a Class TR subclass 676 tourist (short stay) visa, valid for 3 months after the date of arrival.

2. On 10 March 2000, the applicant lodged an application for a Class BU Other Family (Residence) visa, on the nomination of his father, Mr Vijay Singh ('the nominator'). The applicant's wife and 2 children were included in his visa application.

3. In his application, the applicant claimed that the nominator was suffering from medical conditions, namely heart. disease, diabetes, degenerative disease of the lumbar spine and diabetic nephropathy [CB8]. He stated that he provided assistance to the nominator with medications, mobility, transportation, and moral and physical support [CB8].

4. On 30 July 2001, a delegate of the respondent refused to grant visas to the applicant and his family, on the basis that the applicant did not satisfy the requirements of reg. 1.15AA(1)(b) and (c) of the Migration Regulations 1994 ('the Regulations'). The applicant had provided a certificate dated 8 March 2000 in relation to a medical assessment of the nominator carried out on behalf of Health Services Australia ("HSA"). However, the certificate specified an impairment rating for the nominator which was below the prescribed rate of 30, and stated that the nominator did not have a medical condition which was causing physical impairment of the nominator's ability to attend to the practical aspects of daily life.

5. On 20 June 2002, the Tribunal affirmed the delegate's decision. The Tribunal was satisfied that the applicant was not a `carer' within the meaning of reg. 1.15AA and therefore failed to satisfy clause 836.212 at the time of application and clause 836.221 at the time of decision.

(a) The Tribunal found that the requirements specified in reg. 1.15AA(1)(b) and (c) had been met. Since the delegate's decision, HSA had re-assessed the nominator and issued a further certificate indicating that the nominator had an impairment rating of 30 and met the other requirements of reg. 1.15AA(1)(b) and (c).

(b) The Tribunal was not satisfied that the nominator was unable to be provided with the requisite assistance pursuant to reg. 1.15AA(1)(e).

(i) It did not accept the applicant's claim that there was no assistance available from his 3 sisters resident in Australia [CB 116-117]. There was a history of such assistance having been provided between 1995 and 2000 (prior to the applicant's most recent arrival in Australia).

(ii) It placed no weight on claims made by the applicant that it was not 'culturally appropriate' for the nominator to accept assistance from his daughters, and found that the applicant's evidence about this matter was not credible. [CB 117.4]

(c) The Tribunal found that that the applicant was not 'willing and able to provide to the nominator substantial and continuing assistance of the kind needed' pursuant to reg. 1.15AA(1)(f) [CB 117.8].

Grounds for Review

3. The applicant's amended application for review (filed 14 October 2002) contains the following grounds for review:

1. In making its decision the Tribunal exceeded its jurisdiction, or committed a jurisdictional error:

(a) was made without jurisdiction or is affected by an error of jurisdiction;


Particulars
(i) Reg 1.I5AA(1)(e) of the Migration Regulations required the Tribunal to determine whether the assistance needed by the resident could reasonably be obtained from any other relative resident in Australia. The Tribunal erred by asking whether the nominator could be provided with the relevant assistance and not whether that assistance could reasonably be obtained.

(ii) Accordingly the Tribunal failed to consider or determine whether the assistance from any other relative was reasonably available.

(iii) Further or alternatively, in finding that the visa applicant is not willing and able to provide to the resident substantial and continuing assistance of the kind needed the Tribunal failed to accord natural justice or procedural fairness to the applicant. The Tribunal relied on the assessment of HSA as the basis for its finding as to the needs required by the resident but did not give the applicant any opportunity to comment on whether he was willing and able to provide that assistance even though he may return to employment.

(iv) The Tribunal failed to accord the applicant natural justice or procedural fairness in finding that the applicant had failed to address the question of how the nominator will be looked after in the event that the applicant returned to employment in circumstances where the Tribunal did not raise it as an issue. it was not raised in the s 359A letter dated 14 February 2002 provided by the Tribunal and the Tribunal identified the "crux issue" as being the lack of an assessment by HSA at the time of hearing.

(v) Further or alternatively, the Tribunal failed to comply with s 359A of the Act by failing to advise the applicant that in light of the assessment provided by HSA and given to the Tribunal after the hearing the applicant would not be able to provide assistance of the kind needed if both he and his wife were in employment.

(b) Is affected by an error of law which error affected the exercise of its power.


Particulars
The applicant refers to and repeats the Particulars under para (1)(a).

(c) was made without authority.


Particulars
The applicant refers to and repeats the Particulars under para (1)(a).

(d) was an improper exercise of power conferred by the Migration Act 1958 (Cth).


Particulars
The applicant refers to and repeats the Particulars under para (1)(a).

"Carer" - The Regulations

4. In order to satisfy the criteria for the visa that the applicant had sought, he was obliged to demonstrate that he was a "carer" of his father (who was his nominator). "Carer" is defined in Regulation 1.15AA as follows:

(1) An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:

(a) the applicant is a relative of the resident; and

(b) according to a certificate that meets the requirements of sub-regulation (2):

(i) a person (being the resident or a member of the family unit of the resident) has a medical condition; and

(ii) the medical condition is causing physical impairment of the ability of that person to attend to the practical aspects of daily life; and

(iii) the physical impairment has, under the Impairment Tables, the rating that is specified in the certificate; and

(iv) because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and

(c) the rating mentioned in subparagraph (b ) (iii) is equal to, or exceeds, the impairment rating specified by Gazette Notice for this paragraph; and

(d) if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b) (iv); and

(e) the assistance cannot reasonably be obtained:

(i) from any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

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

(f) the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b) (iv) or paragraph (d), as the case requires.

(2) A certificate meets the requirements of this sub regulation if:

(a) it is a certificate in relation to a medical assessment carried out on behalf of Health Services Australia that is signed by the medical adviser who carried it out; or

(b) it is a certificate issued by Health Services Australia in relation to a review of an opinion in a certificate mentioned in paragraph (a) that was carried out by Health Services Australia in accordance with its procedures.

(3) The Minister is to take the opinion in a certificate that meets the requirements of sub regulation (2) on a matter mentioned in paragraph (1) (b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer.

(4) In this regulation:

Health Services Australian means the government business enterprise Health Services Australia Ltd.

Impairment Tables means the Tables for the Assessment of Work-related Impairment for Disability Support Pension in Schedule IB to the Social Security Act 1991.

5. Regulation 1.15AA(1)(c) requires impairment ratings to be gazetted. The relevant Commonwealth Gazette specifies that, for the purposes of the sub-regulation, the impairment rating is 30.

The Applicant Relies Upon Two Major Propositions

6. At the hearing, Mr Niall (for the applicant) submitted that the applicant's grounds of review "collapse into two propositions":

a) In making its finding as to Regulation 1.15AA(1)(e), the Tribunal wrongly asked itself whether the nominator could be provided with assistance from other relatives, instead of asking itself whether or not assistance could reasonably be obtained from such relatives.

b) In making its finding as to Regulation 1.15AA(1)(f), the Tribunal denied the applicant procedural fairness in that it failed to give him an opportunity to comment on whether he was willing and able to provide his father with the required assistance even though he (the applicant) may return to employment.

The Law

7. Pursuant to s.483A of the Migration Act, this Court has the same jurisdiction as the Federal Court in relation to a matter rising under the Act. Under s.475A, it has jurisdiction in relation to a "privative clause decision" that is a decision made on a review by the Tribunal. "Privative clause decision" is defined in s.474(2) and (3) of the Act. Section 474(1) of the Act limits review by the Court of privative clause decisions as follows:

A privative clause decision:

c) is final and conclusive;

d) must not be challenged, appealed against, reviewed, quashed or called into question in any Court; and

e) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court on any account.

8. In NAAV v MIMIA [2002] FCAFC 228, the Full Court of the Federal Court held that s.474 must be construed in the same manner as the kind of privative clause considered in the decision R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598. In other words, there were said to be three conditions which, if met, would ordinarily mean that a decision the subject of a provision such as s.474 would be valid. These are:

a) the decision is a bona fide attempt by the decision-maker to exercise its power;

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.

9. There was also broad agreement in NAAV that the purported exercise of power must not be one that contravenes an inviolable limitation on the operation of the Act.

10. In Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, the High Court held that as a matter of construction the expression `decision... made under this Act' in s.474(2) "must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act."[1] If there has been a jurisdictional error, then the decision cannot properly be described as a decision made under this Act -- and is thus not a privative clause decision as defined in s.474(2) and (3). Further, a decision flawed due to failure to comply with the principles of procedural fairness was also said not to be a privative clause decision within s.474(2).

11. If there is no jurisdictional error affecting the Tribunal's decision, then the decision would be a privative clause decision and protected by s.474(1) -- unless it could be shown that one of the Hickman provisos had not been met.

12. In Plaintiff S157/2002, the High Court confined itself to a general statement of principle in relation to jurisdictional error, and the particular issue of jurisdictional error by reason of a denial of procedural fairness as asserted by the applicant in that case. The precise scope of the notion of jurisdictional error in this context, and the determination of which provisions in the Migration Act constitute inviolable limitations or restraints, may raise some complex issues[2] - but there is no need to consider such issues in the proceedings before the Court.

First Principal Ground for Review: Tribunal Asked Itself the Wrong Question

13. Mr Niall's submission in relation to this ground is summarised in paragraphs 10 and 11 of his written submissions, as follows:

10. Regulation 1.15AA(1)(e) required the Tribunal to determine whether the assistance needed by the resident could reasonably be obtained from any other relative resident in Australia. The Tribunal erred by asking whether the nominator could be provided with the relevant assistance and not whether that assistance could reasonably be obtained. The Tribunal's account of the evidence relating to the applicant's sisters is scant and in at least one respect inaccurate. There was evidence that only one of the applicant's sisters had provided assistance in the past.

11. There was no detailed analysis of the reasonableness or otherwise of the applicant's sisters assuming the role of carer now. It is submitted that the Tribunal failed to consider or determine whether the assistance from any other relative was reasonably available.

14. The Tribunal's discussion in relation to this subject appears in paragraphs 27 and 28 of its decision:[3]

27. The nature of assistance available from other persons referred to in paragraph 1.15AA(1)(e) was considered. The visa applicant states that he has three siblings residing permanently in Australia but that they are unable to assist the nominator, owing to their individual family commitments. The Tribunal notes the evidence that considerable assistance was made available from the visa applicant's sisters in Australia and that such assistance was provided from 1995, following the nominator's heart surgery, to 2000, when the visa applicant arrived. One of the sisters who was then working is no longer employed. The Tribunal does not accept the visa applicant's claim that there is no assistance available from his siblings resident in Australia. The Tribunal finds that there is a history of assistance being provided "from any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident" independently of the visa applicant and his wife. The Tribunal is not satisfied that the nominator is unable to be provided with the requisite assistance pursuant to paragraph 1.15AA(1)(e).

28. The visa applicant also made extensive claims about 'cultural appropriateness' of his providing assistance. The visa applicant said that it is not culturally appropriate for his father to accept assistance from his daughters but it is culturally acceptable to receive help from a daughter-in-law (ie the visa applicant's wife) as the surviving son is expected to provide assistance in his parents' old age. The Tribunal notes that the nominator has been voluntarily separated from his 'culturally appropriate' assistance for 12 years and migrated to a country where there was no reasonable expectation that his 'culturally appropriate' assistance would also reside. In addition, there is clear evidence that the nominator has received considerable assistance from his own daughters for at least five years prior to the visa applicant's arrival. The Tribunal puts no weight on the claims made by this visa applicant in the present circumstances about 'cultural appropriateness'. The Tribunal considers that the visa applicant was deliberately obfuscating about his and his sisters' 'culturally appropriate' responsibilities and the Tribunal finds that the visa applicant is not credible about this matter.

The First Principal Ground for Review is Without Merit

15. In my opinion, this ground is without merit. The Tribunal's findings (as contained in paragraphs 27 and 28 of its decision) are unexceptionable. The Tribunal considered the history of assistance provided to the nominator by the applicant's sisters, and rejected the claim that it was culturally inappropriate for the nominator to accept assistance from his daughters. Ms Riley (for the respondent) submitted, and I accept, that considerations such as these were directly relevant to the question of the reasonableness of the nominator obtaining assistance from the applicant's sisters.

16. During the course of the hearing I inquired of Mr Niall why the applicant had not seen fit to obtain (for example) a short affidavit from each of his sisters dealing with the question of whether or not the nominator could reasonably obtain the required assistance from them (or any of them). Mr Niall was unable to provide in any satisfactory response to my inquiry in this regard.

17. Mr Niall's inability to satisfactorily respond to the matter raised in the previous paragraph of these Reasons is of particular significance when regard is had to the contents of the letter dated 24 August 2001 from the applicant's solicitors to the Tribunal (which letter appears at page 53 of the Court Book). The penultimate paragraph of that letter is as follows:

The other major issue in this case is whether existing hospital or community resources can provide the necessary care and/or whether it is reasonable for the nominator's other children to provide that care. In that respect, we will be supplying evidence that the only person who can reasonably care for the nominator is his son.

18. The Tribunal accurately recorded the provisions of Regulation 1.15AA in paragraph 22 of its Reasons[4], and proceeded to discuss the requirements of Regulation 1.15AA(1)(e) in paragraph 27.[5] That paragraph ends with the following sentence:

The Tribunal is not satisfied that the nominator is unable to be provided with the requisite assistance pursuant to paragraph 1.15AA(1)(e). (emphasis added)

19. In my opinion, the accurate reproduction of the relevant regulation in its decision, together with the use of the word "requisite" in the sentence to which I have referred, demonstrate that the Tribunal cannot be fairly regarded as having applied a wrong test in relation to this subject. After all, the Tribunal's decision should receive a beneficial construction, and should not be scrutinised in an overly critical manner "with an eye keenly attuned to the perception of error".[6]

Second Principal Ground for Review: Procedural Fairness

20. Mr Niall submitted that the Tribunal did not give the applicant (or his wife) any opportunity to comment on whether he was willing and able to provide the assistance that his father required, even though he (the applicant) may return to employment. His submissions continued:

a) The effect of Regulation 1.15AA(3) is that the Minister is unable to "go behind" a Carer Visa Assessment Certificate issued pursuant to and in accordance with Regulation 1.15AA(1)(b) and 1.15AA(2). The impairment rating of which the examining medical adviser must be satisfied (in order to conclude that the applicant meets the requirements for a carer) is 30.

b) Two such assessments were obtained in the present case - the first in March 2000 and the second on 22 April 2002. Given that the hearing before the Tribunal took place on 10 April 2002, it is apparent that the second assessment was not available at the time of the hearing.[7]

c) The impairment rating in the first assessment was 20. The rating in the second assessment was 30. It follows that the nominator (the applicant's father) did not meet the requirements for a carer according to the first assessment, but he did meet those requirements according to the second assessment.

d) A comparison of the two assessments reveals that the nominator was clearly in need of greater assistance at the time of the second assessment than he was at the time of the first assessment.

e) The applicant's solicitors wrote to the Tribunal on 24 August 2001[8] In the letter, the applicant's solicitors wrote:

There are two major issues with this case, the first concerns whether the nominator has the level of disability required by the Regulations. The HSA opinion states that he is disabled at the level of 20% on the disability tables, but we argue that this opinion has failed to take into account the full effect of his multiple disabilities nor has it dealt with the applicant's mother's inability to care for her husband and her own needs.

Accordingly, we intend to obtain a full range of further medical reports over the next few months and I presume that the Tribunal will invite us to seek a review of the HSA opinion.

The other major issue in this case is whether existing hospital or community resources can provide the necessary care and/or whether it is reasonable for the nominator's other children to provide that care.

f) On 14 February 2002, the Tribunal wrote to the applicant, pursuant to ss.359 and 359A of the Migration Act, inviting his comments on certain information.[9] The letter contains the following:

The Migration Regulations require that an applicant for a carer visa must satisfy the requirement of a carer. Migration Regulation 1.15AA requires, among other things, that the health condition of the relative for whom care is required be evidenced by a satisfactory carer's certificate (that is, a certificate that meets the requirements of sub-regulation 1.15AA(2) issued by Health Services Australia (HSA)).

As you failed to submit the above satisfactory carer's certificate for your father for whom care is required, it would appear that you are unable to satisfy the requirements for a carer visa.

You are invited to comment, in writing, on the information, as it is relevant to the issue of whether you are able to satisfy the requirements for a carer visa, and indicates that your application may be unsuccessful (sic).

g) The letter from the Tribunal dated 14 February 2002 continued:[10]

In addition, s.359 of the Migration Act allows the Tribunal to invite a person to give it additional information that it considers relevant to the review of a migration decision. Accordingly, the Tribunal invites you to provide the following information:

* A satisfactory carer's certificate in respect of your father... issued by HSA.

* In the event of a satisfactory carer's certificate for your father being issued by HSA, compelling reasons why the assistance required cannot reasonably be provided by other relatives, or from welfare, hospitals, nursing or community services in Australia.

h) The hearing before the Tribunal took place on 10 April 2002. The applicant was represented at the hearing by Mr Clothier.

i) The applicant gave evidence at the hearing on 10 April 2002. He said that he was not working at that time, and had not been working for approximately 6 weeks. He had previously been working at Grace Removals as a warehouse clerk. He said that "Grace is just about 7 minutes walking distance from my house". When asked by the Tribunal as to his intentions in relation to employment, the applicant responded: "... actually, I am not unemployed. I have just taken a bit of a break and when I am ready, I'll go back to work".[11]

j) After the applicant gave the above evidence, the following exchange occurred:[12]

Tribunal: OK, thankyou. Is your wife working?

Applicant: She has just started working last week.

Tribunal: And where is she working?

Applicant: She's working at Migwell Australia in Dandenong...

Tribunal: ... She's only just started there?

Applicant: Yes.

Tribunal: Was she working before that?

Applicant: No, she was doing all the domestic duties.

Tribunal: OK. So we've got yourself employed but at the moment sort of taking a few... weeks off, your wife working, two children in school. Speaking now about your father, he hasn't been working for some time now. Is that right?

Applicant: Yes

k) A further exchange occurred between the Tribunal and the applicant as follows:[13]

Tribunal: The visa applicant's agent has just handed me a document with a list of medications indicating or showing that there appear to be eight different kinds of medication. They appear to be all in the form of tablets of varying sorts. So, Mr Singh, what exactly is it that he requires?

Applicant: Medication, cooking, sometimes to the toilets, all the medical appointments and x-rays, prayers - I have to take him to prayers. Bedtimes - showering.

Tribunal: Just be careful. I'm asking you the kind of assistance that he needs. That's not necessarily the same as assistance that you give. We'll come back to that separately.

Applicant: Okay.

Tribunal: In the application you said that he needs assistance with medication, mobility and transportation. I take it that's sort of getting around to, as you said, medical appointments, to prayers. When you say "prayers", do you mean going to a temple?

Applicant: Yes, temple and at somebody's house we have Indian prayers.

Tribunal: So that's the assistance he requires. Now I need to ask you what is the assistance that you personally provide?

Applicant: I'm always there in the house. If any assistance he need, I'm always there.

Tribunal: Is it true you've always been employed since June 2000?

Applicant: Yes.

Tribunal: Then you're not always in the house, are you?

Applicant: If I'm not there, my wife is there.

Tribunal: Is it true your wife is now employed?

Applicant: She just started working last week. So when she started, I'm staying home now.

Tribunal: Do you cook?

Applicant: Yes.

Tribunal: Are you a decent cook?

Applicant: Yes, decent Indian meals.

Tribunal: Okay. Do you assist your father to go to the toilet and with his showering?

Applicant: Not always. Sometimes when his elbows and back is very painful, then I assist him.

Tribunal: Does you wife assist him when you're not there?

Applicant: Well, at times she just holds him, take him, but not always.

Tribunal: What does your mother do all this time?

Applicant: My mother is an old, sickly woman too. She has got arthritis and diabetic. (emphasis added)

l) The Tribunal then asked the applicant certain questions regarding the assistance provided to his father by the applicant's sisters prior to the applicant's arrival in Australia in February 2000.[14] The fact of the matter is, however, that the nominator's physical impairment of his ability to attend to the practical aspects of daily life (and hence his need for direct assistance in attending to those aspects) was then at a different level to that which adhered at or around the time of the hearing before the Tribunal. The first relevant assessment reveals that the nominator's impairment rating was 20 at or about the time that the applicant's sisters were assisting him, whereas the later assessment confirms that the impairment rating had risen to 30 at or about the time of the hearing. Unfortunately for the applicant, the second assessment was not available at the date of the hearing, and was only obtained 12 days later.

m) After dealing with the assistance previously provided by the applicant's sisters and the question of whether the nominator would be able to receive assistance from nursing or community services or hospitals or other agencies, the transcript continued:[15]

Tribunal: I think I've covered all the information I need about those particular matters.

Applicant: OK.

Tribunal: The crux issue is, we don't have a certificate...

Mr Clothier: An application has been made for a further interview - a much more detailed one - and the (nominator) has an appointment with HSA on 22 April...

Tribunal: ... just for the record, (I have just been handed) an appointment date card from Health Services Australia for the nominator... the appointment date is 22 April...

Tribunal: Assuming that the HSA appointment on 22 April goes the way it's supposed to go, ... how long does it take then to get a report out like this?(emphasis added)

n) The Tribunal then indicated that it would allow the applicant approximately 3 weeks from 22 April to provide it with the fresh assessment.[16]

o) As already indicated, the assessment was dated 22 April 2002. It was relied upon by the Tribunal in its decision (which is dated 20 June 2002).[17]

p) It is apparent from the above that the question of whether the applicant (with the assistance of his wife) would or would not be able to meet the nominator's needs was never raised directly as an issue at (or prior to) the hearing before the Tribunal.

q) The Tribunal's finding in relation to this subject is as follows:[18]

The medical assessment states that the nominator's son assists with all of the needs of the nominator, however, the Tribunal notes that this aspect of the assessment is based on the self-report of the nominator's son, the visa applicant. It is essentially the same claim that the visa applicant made at the hearing but at the hearing the visa applicant was evasive about the assistance he or his wife actually provided. The Tribunal has reservations about the credibility of the visa applicant in his claims to provide the requisite assistance to the nominator. In addition, the intentions of the visa applicant and his wife to obtain full-time employment are clear .The visa applicant has worked since June 2000 and, although currently on leave, says he will return to work. His wife is currently employed full-time. She first applied for permission to work on 23 October 2000 and, after a second application, was granted permission to work on 8 February 2002. It is clear that the visa applicant and his wife both intend to work and have intended to work since at least the time of the application. They failed to address the question of how the nominator will be looked after in those circumstances. Given the assessment of HSA it does not appear to be sufficient that the carer merely be available after work. The Tribunal finds that the visa applicant is not "willing and able to provide to the resident substantial and continuing assistance of the kind needed" pursuant to paragraph 1.15AA(1)(f). (emphasis added)

21. Mr Niall argued that the Tribunal's statements to the effect that the applicant and his wife failed to address the question of how the nominator will be looked after whist they are both working, and that, given the HSA assessment, it does not appear to be sufficient that the carer merely be available after work, "came from left field". Mr Niall argued that the applicant and his wife should have been given an opportunity to deal with the Tribunal's concerns in this regard either at the hearing or after the receipt of the assessment dated 22 April 2002.

22. In an affidavit sworn 18 March 2003 (which affidavit was tendered, without objection at the hearing before me), the applicant deposed as follows:

2. On 10 April 2002, my father and I attended a hearing in the Migration Review Tribunal before Mr David Thomas.

3. In paragraph 29 of the Tribunal' s decision, the member found that both my wife and I intended to obtain full-time work and stated; "They failed to address the question of how the nominator will be looked after in those circumstances." On the basis that the HSA assessment provided to the Tribunal after the hearing indicated that my father's disability was severe, the Tribunal stated that; "it does not appear to be sufficient that the carer merely be available after work." Accordingly, the Tribunal found that we were not "willing and able" to provide the necessary care to my father.

4. At no stage at the hearing did the Tribunal ask me how my wife and I arranged for the care of my father around our work or how we intended to do so in the future.

5. If I had been asked about this issue (which formed the basis of the Tribunal's decision), I would have informed the Tribunal that my wife and I made decisions in respect of our employment, and intended to continue making those decisions in the future, in such a way as to ensure that we were never both working at the same time so that one of us was always at home to care for my father. We would only have both worked if our shifts were different, thereby allowing us to continue to care full-time for my father. This is because our main priority has at all times been, and will continue to be, the adequate care of my father.

23. I note that there is a clear suggestion of this form of proposed arrangement in the evidence given by the applicant before the Tribunal. It appears in the highlighted passage quoted in paragraph 20(k) above.

Discussion

24. In my opinion, the circumstances in this case are similar to those discussed in Landers v MIMIA (2003) FMCA 223 (first instance judgment) and MIMIA v Landers (2003) FCA 1485 (judgment on appeal). Mr Niall argues that the Tribunal breached the rules of procedural fairness by not identifying and giving the applicant an opportunity to comment upon the reasons for its proposed adverse findings. He asserted, in effect, that, without knowledge of the critical issues around which a decision will turn, a person affected by the decision will be left in the dark - deprived of a full and fair opportunity of presenting a case in his own interest.

25. In support of the above propositions, reference can be made to the well known passage from Lord Denning's Judgment in Kanda v Government of Malaya (1962) AC 332 at 337:

If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them.

26. Although Lord Denning's comments refer to criminal proceedings, they have found a home in administrative law. In discussing what has been described as the "hearing rule"[19] -- being one of the two traditional rules of natural justice[20] -- the authors of Judicial Review of Administrative Action[21] wrote (under the heading "Notice"):

Since the purpose of notice is to enable participation, the content of the notice must be such as to allow its recipient to participate fully and effectively in whatever manner is to be found to be appropriate in the circumstances of the particular case...

Naturally, the notice must advise the time, date and location of any hearing, or the closing date and place for lodgment of written submissions. Beyond that, the major requirement is to notify the subject matter and potential consequences of the proposed decision. This requirement is most stringent in cases where an individual is threatened with serious deprivation if some fault of misconduct on the part of that individual is established. In that context the analogy of criminal proceedings, although than no more than an analogy, will tend to suggest that the notice must be adequate to allow the individual to prepare and mount an adversarial defence...

At the heart of the court's approach to the content of notice is the well known proposition of Lord Denning that, if a right to be heard is worth anything, it must carry with it the right to know the case that has to be met. The fundamental requirement is that notice should alert the recipient to the kinds of issues which need to be addressed, and provide the information necessary to allow the manner of participation required to be afforded.[22] (Emphasis added, and footnotes omitted)

27. I note, as well, the dissenting Judgment of Burchett J in Romeo v Asher (1991) 29 FCR 343 at 358-9, where reference is made to Lord Denning's statement and to the equally well known passage from the Judgment of Mason J in Kioa v West (1985) 159 CLR 550 at 587:

...Recent decisions illustrate the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn, so that he may have an opportunity of dealing with it.

28. The concept was expressed slightly differently by the Full Court of the Federal Court in VAAC v MIMIA (2003) FCAFC 74, at paragraph 27:

It is well established that the rules of natural justice require that a decision-maker bring to an applicant's attention the critical factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it: see Kioa v West (1985) 159 CLR 550 at 587; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481; and Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Island Affairs (2000) 103 FCR 539 at 557 and the cases there cited.

29. In paragraph 43 of my decision in Landers[23] I wrote:

It may well be true that the MRT cannot and should not be compelled to invite an applicant to supply evidence that may be necessary to "make good a case" that he has advanced before it, but the statutory obligation imposed on the MRT by section 353 of the Act is to act "according to substantial justice and the merits of the case". Further, the MRT must "pursue the objective of providing a mechanism of review" that is fair and just (amongst other things). Not only is the MRT not a contradictor, but there is no contradictor of any sort. It follows that the opportunities for an applicant to have his attention drawn to a substantial, potentially fatal, flaw in his case are extremely limited. The problem faced by the applicant in the present case was not necessarily an absence of evidence in relation to an element of his case, but an obvious failure to focus on the critical issue upon which the decision itself would inevitably turn.

30. The situation in the present case is not dissimilar.

31. In my opinion, the transcript reveals that the Tribunal did nothing to warn the applicant of the significance of the issue of how the nominator would be looked after in the event of the applicant and his wife both working on a full time basis. Further, the Tribunal clearly implied that it was satisfied with the applicant's evidence in relation to the subject and that the "crux issue" would be the contents of the foreshadowed assessment. The contents of the letter from the Tribunal dated 14 February 2002 (being the request for information pursuant to ss.359 and 359A) also did nothing to alert the applicant to the significance of this factor.

32. Again, and as I observed in Landers:[24]

45. The passages from Kioa v West and VAAC v MIMIA to which I have referred underline the need to bring to a person's attention the "critical issue" or "critical factor" on which an administrative decision is likely to turn. The MRT cannot and should not "lie doggo" (to use a colloquialism), and fail or refuse to draw the applicant's attention -- clearly and directly -- to the core or ultimate issue upon which it considers that the entire decision must necessarily turn. In my opinion, that is what the MRT did.

33. In MIMIA v Landers (2003) FCA 1485, Heerey J said:

20. I agree with the Federal Magistrate's perceptive analysis of what happened in this case. Counsel for the Minister argued that there was no obligation to set out all the criteria for the particular visa class or sub-class. That is no doubt true. Natural justice does not require a formalistic, box-ticking approach. But what is required, as the authorities such as Kioa v West show, is that a substantial issue on which the case is likely to turn is clearly brought to the notice of the person affected by the decision. This principle does not depend on whether the issue is one of law or fact, or mixed fact and law.

21. The present case was not a question of making an applicant's case, or prompting an applicant as to the material that he should rely on (cf Luu v Renevier (1989) 91 ALR 39 at 45-46) or advising an applicant of deficiencies in the material provided (cf Malik v Minister of Immigration and Multicultural Affairs (2000) 98 FCR 291 at [22]). On the contrary, this was a case of failing to tell an applicant what, in practical terms, was the issue on which the decision was likely to turn so that the applicant could work out for himself what evidence and argument might best help him to obtain the decision he sought.

34. In my opinion, and for the reasons set out in the two Landers decisions, the Tribunal denied the applicant procedural fairness. To the extent that it may be relevant, I note that Heerey J confirmed (in paragraph 20 of his Honour's decision) that "a substantial issue on which the case is likely to turn must be clearly brought to the applicant's attention. It need not be the only or "critical" issue in the case.

Jurisdictional Error

35. The consequences of a finding such as that described in the previous paragraph were summarised by the Full Court of the Federal Court in VAAC v MIMIA (2003) FCAFC 74[25]:

It is ... now established by Plaintiff S157 v Commonwealth of Australia (2003) 195 ALR 24 that section 474 does not protect a purported decision made as a result of jurisdictional error. A failure to accord procedural fairness constitutes jurisdictional error: Re Refugee Review Tribunal: ex parte Aala (2000) 204 CLR 82 per Gleeson CJ at 89, per Gaudron and Gummow JJ at 101, per Kirby J at 135 and per Hayne J at 143.

36. I refer, as well, to the following passages from Plaintiff S157 and Aala:

(The High Court) has clearly held that an administrative decision which involves jurisdictional error is "regarded, in law, as no decision at all". Thus, if there has been jurisdictional error because, for example, of a failure to discharge "imperative duties" or to observe "inviolable limitations or restraints", the decision in question cannot properly be described...as "a decision...made under (the Migration) Act"[26].

The duty to accord procedural fairness...is a fetter upon the lawful exercise of power. The decision-maker may affect the rights of (a party) if and only if that party is accorded procedural fairness. That is, putting the matter in terms of jurisdiction, the authority to decide is an authority which may be exercised only if procedural fairness is extended[27].

37. In NAFF of 2002 v MIMIA (2003) FCAFC 52, Lindgren and Stone JJ (neither of whom were members of the Full Court which decided VAAC) said:

It is not in dispute that natural justice requirements applied to the tribunal's review of the delegate's decision, or that a denial of natural justice by the tribunal may result in a decision being made in excess of jurisdiction...Once a non-observance of (the requirements of natural justice in the particular circumstances of a case) is established, it is only if it is positively concluded that observance of the requirements "could not possibly have produced a different result" that the decision impugned will allowed to stand: see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 per Mason, Wilson, Brennan, Deane and Dawson JJ; Aala at 88 per Gleeson CJ, 116-117 per Gaudron and Gummow JJ, 122 per McHugh J, 130-131 per Kirby J, 154 per Callinan J[28].

38. A conclusion to the effect that compliance with the requirements of procedural fairness could not have made any difference to the ultimate result is likely to be a rarity[29], and although the Tribunal made other findings that were adverse to the applicant's case, those findings were made in the atmosphere of injustice and unfairness already referred to and described in these Reasons.

39. In all the circumstances, I am unable to conclude that observance of the requirements of procedural fairness could not have produced a different result. I can only but guess at the type and quality of evidence that the applicant might have placed before the Tribunal if his attention had been properly drawn to the significance of the issue. That is a path down which I am not prepared to proceed. In my opinion, once a denial of procedural fairness has been demonstrated, it is for the respondent to satisfy the court of the inevitability of the original result. There is no onus on the applicant to show that a different result would have followed. This is so because the Tribunal's decision - infected, as it is, with jurisdictional error - is no decision at all. Prima facie therefore, the applicant is entitled to have his application re-heard according to law.

Conclusion

40. It follows from the above that, although the applicant was unsuccessful in relation to the first (broad) ground relied upon, he was successful in relation to the second. I propose to grant relief in the form of a declaration, and order in the nature of certiorari and mandamus.

41. There will also be an order that the respondent pay the applicant's costs -- which I shall fix in the sum of $4,250.00.

I, Paul O'Halloran, certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Walters FM

Associate:

Date: 27 October 2004


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[1] At [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ, and also see [19] per Gleeson CJ and [163]per Callinan J.

[2] see, for example, Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134/2002 [2003] HCA 1 -- in relation to s.65 of the Migration Act.

[3] CB 116-7.

[4] CB 115.

[5] CB 116.

[6] See MIEA v Wu Shan Liang (1996) 185 CLR 259 at 271-2 and 291.

[7] The first assessment is at CB 35-9, and the second assessment is at CB 103-7.

[8] CB 53-4.

[9] CB 67.

[10] CB 68.

[11] See transcript, pp 4-5.

[12] See transcript, p 5-6.

[13] See transcript pp 9-10.

[14] See transcript pp 10-14.

[15] See transcript pp 14-16.

[16] See transcript pp 16-17.

[17] See paragraph 25 of the decision - CB 116.

[18] See paragraph 29 of the decision - CB 117.

[19] Better known as audi alteram partem

[20] The other being "the bias rule" -- nemo debet esse iudex in propria sua causa

[21] Judicial Review of Administrative Action (second edition) by Aronson & Dyer -- LBC Information Services 2000

[22] Judicial Review of Administrative Action (see above) at pp 409-10.

[23] Landers v MIMIA (2003) FMCA 223.

[24] At paragraph 45.

[25] see paragraph 31

[26] (2003) 195 ALR 24 at 45

[27] Re: Refugee Review Tribunal & Anor (exparte Aala) (2000) 204 CLR 82 at 143 (per Hayne J). See also pp 89 (per Gleeson CJ), 101 (per Gaudron and Gummow J) and 135 (per Kirby J).

[28] see paragraph 31

[29] see Aala (supra) at paragraph 131, per Kirby J
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