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MIGRATION - Review of decision of the Migration Review Tribunal - application for a change in circumstance (Residence) (Class AG) visa - special need relative - jurisdictional error - contravention of s.359A - grounds for review - matter remitted to Migration Review Tribunal.

Hettiarachchige v Minister for Immigration [2003] FMCA 236 (13 June 2003)

Hettiarachchige v Minister for Immigration [2003] FMCA 236 (13 June 2003) Last Updated: 24 June 2003 FEDERAL MAGISTRATES COURT OF AUSTRALIA HETTIARACHCHIGE v MINISTER FOR IMMIGRATION [2003] FMCA 236 MIGRATION - Review of decision of the Migration Review Tribunal - application for a change in circumstance (Residence) (Class AG) visa - special need relative - jurisdictional error - contravention of s.359A - grounds for review - matter remitted to Migration Review Tribunal. Migration Act 1958 (Cth) Judiciary Act 1903 (Cth) Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2 Craig v South Australia [1995] Minister for Immigration & Multicultural & Indigenous Affairs v Yusef (2001) S157/2002 v Commonwealth of Australia (2003) Chow v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA FC Wu v Minister for Immigration & Multicultural & Indigenous Affairs (2000) Applicant: DARMARUCHI MANARANJANA HETTIARACHCHIGE Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS File No: MZ 1128 of 2002 Delivered on: 13 June 2003 Delivered at: Dandenong Hearing date: 4 June 2003 Judgment of: Hartnett FM REPRESENTATION Counsel for the Applicant: Mr C Fairfield Solicitors for the Applicant: Sulaika Dhanapala Counsel for the Respondent: Mr G Livermore Solicitors for the Respondent: Australian Government Solicitor ORDERS THE COURT DECLARES THAT: (1) The decision of the Migration Review Tribunal made on 24 October 2002 is invalid and of no effect. THE COURT ORDERS THAT: (2) The decision of the Migration Review Tribunal be set aside and the matter remitted to the Tribunal for hearing and determination in accordance with law. (3) The respondent pay the costs of the applicant fixed in the sum of $4,000.00. (4) That pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 it is certified that this matter reasonably required the attendance of counsel. FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE MZ1128 of 2002 DARMARUCHI MANARANJANA HETTIARACHCHIGE Applicant And MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS Respondent REASONS FOR JUDGMENT 1. The applicant made application for an order of review filed in this Court on 6 November 2002. The application was made pursuant to s.475A of the Migration Act 1958 (Cth) (the Act) and under section 39B of the Judiciary Act 1903 (Cth). 2. The application was amended by amended application filed 9 January 2003. It was again further amended by application faxed to the court on the 30 May 2003. The applicant seeks to review a decision of the Migration Review Tribunal (MRT) made on the 24 October 2002. The grounds of the application were as follows: 1) The decision of the Tribunal was made in breach of an imperative duty imposed on the Tribunal or an essential pre-condition to, or an inviolable limitation upon, its powers and its jurisdiction necessary for the existence of the satisfaction required by s65 to grant or refuse the application. The Tribunal exceeded its jurisdiction and/or constructively failed to exercise jurisdiction in that it: Particulars i) Proceeded on the basis that the needs of the nominator, as identified, could never satisfy the definition of `special need relative'; ii) Misapplied the definition of `special need relative' as to what constituted serious circumstances; iii) Contravened s.359A of the Act; iv) Failed to accord procedural fairness to the applicant. 2) Further, or alternatively, the Tribunal asked the wrong question, identified the wrong issue and failed to take account of relevant material and its decision was made without jurisdiction or was affected by an error of jurisdiction. Particulars The Applicant refers to and repeats the particulars subjoined to paragraph 1 History 3. The applicant is a national of Sri Lanka and is aged 43 years. He first arrived in Australia in January 1996 as a holder of a short stay (Visitor) (Class TR) visa, subclass 676 and since then has remained in Australia. On 27 July 1998 the applicant applied for permanent residence in Australia on the basis that he claimed to be a "special need relative" to his brother ("the nominator") (CB 15). His brother first arrived in Australia in October 1990 and was granted Australian citizenship on 9 March 2000. 4. On the 31 January 2002 a delegate of the Minister refused the application for grant of a visa. The applicant appealed that decision to the MRT by application of the 15 February 2002. The MRT by decision of the 24 October 2002 affirmed the decision under review, finding that the visa applicant was not entitled to the grant of a Change in Circumstance (Residence) (Class AG) subclass 806 visa. 5. The visa applicant claimed to be a "special need relative" of his married brother, Jayantha Sripali Hettiarachchige who is now aged 46 years. The visa applicant resided at the address of his brother in Coburg at the time of application. At the time of filing the review application he continued to reside with his brother but at Blue Crescent Gowanbrae. In 1996 the visa applicant commenced employment in Australia as a process worker and continues in this occupation. His brother was gainfully employed until August 2002 when he lost his employment. 6. The nominator claimed to have significant physical and mental health problems. In support of those claims before the delegate reports were produced by Mr Ian Gibson, psychologist dated 1 April 1999 and Dr Wijesinghe, psychiatrist dated 29 March 1999. Mr Gibson referred to the nominator suffering from major depression in July 1998 for which he was still then being treated and suffering health problems which were serious, debilitating and continuing. He said such health problems could only be alleviated by the presence of this brother in Australia. Dr Wijesinghe referred to the nominator, in July 1998, suffering from a recurrent major depression relating to thoughts about the safety of this brother. The nominator had responded well to treatment, ceasing medication in January 1999. He subsequently had a recurrence of depressive and anxiety symptoms of 2 weeks duration (CB 86). Further mental health illness was to follow. 7. The nominator departed Australia on 18 December 1998 returning on the 30 January 1999 and again on 27 February 2002 returning on the 21 April 2002. On each occasion the nominator travelled without the visa applicant (CB 86). Legislative scheme 8. The criteria to be satisfied at time of application for grant of a Change in Circumstances (Residence) (Class AG) visa included the requirements of clause 806.211. Clause 806.211 required an applicant to whom section 48 applied to have become a `special need relative' of an Australian permanent resident or citizen since last applying for an entry permit or substantive visa. 9. In this case the visa applicant applied for a permanent visa on 24 July 1997 that was refused on 13 August 1997. He had also applied for a Sri Lankan (Temporary) (Class TT) visa on 31 July 1997 that was refused on 12 August 1997. As such he was a person to whom section 48 of the Act applied and claimed to be a `special need relative' of his brother who was at time of application the holder of a permanent visa. According to the contents of the reports by Mr Ian Gibson, a psychologist, and Dr Wijesinghe, a psychiatrist, the nominator was diagnosed suffering from depression. Both Dr Wijesinghe and Mr Gibson stated that the nominator had been under treatment since July 1998. The time of application was the 27 July 1998. 10. Clause 806.212 referred to clause 3002 of Schedule 3 to the Regulations, which required that the visa application be validly made `within 12 months after the relevant day'. 11. The `relevant day' in relation to the visa applicant was 31 July 1997, the day on which he last held a substantive visa. As the application for the Class (AG) visa was made on 27 July 1998 the visa applicant met clause 806.212. 12. The criteria for the grant of a subclass 806 visa were set out in Part 806 of Schedule 2 to the Regulations. Part 806 was repealed by SR 259 of 1999 reg 4 and Sch 2. The criteria in force at the date of the application (including the definition of `special need relative') continue to apply to the application: Re Minister for immigration & Multicultural Affairs; Ex Parte Cohen (2001) 177 ALR 473 at 478-480, per McHugh J. The criteria included criteria to be satisfied both at time of application at time of decision. On of the criteria to be satisfied at time of application for the grant of subclass 806 visa was cl 806.213, which required that a visa applicant is a special need relative of another person who has nominated the visa applicant for the grant of the visa. Clause 806.221 provided that a visa applicant must continue to satisfy cl 806.213 at 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." Regulation 1.03 defined the expression `special need relative': "special need relative, in relation to an Australia 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: (d) 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 (e) 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." 13. Also relevant in the proceedings before me is section 359A of the Act. Section 359A relevantly provides: (1) Subject to subsection (2), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decisions that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. 14. The MRT's decision is a `privative clause decision' within s.474(2) of the Act. 15. The phrase `privative clause decision' in s.474(1) is defined in s.474(2) so as to mean, relevantly, a "decision ... made under this Act". A decision will not be regarded as made under the Act if it involves a failure to exercise jurisdiction or an excess of jurisdiction. An administrative tribunal exceeds its power and thus commits a jurisdictional error if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material. Or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion in the way that affects the exercise or purported exercise of the Tribunal's power (Craig v South Australia [1995] 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This list is not exhaustive. Those different kinds of error may well overlap (see Minister for Immigration & Multicultural & Indigenous Affairs v Yusef (2001) 180 ALR 1 at 21). Whatever the scope or extent of jurisdictional error of law I must determine the matter in accordance with the law as set out in S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. The Migration Review Tribunal hearing 16. Before the MRT the visa applicant's migration agent represented him. An interpreter in the Sinhalese language was engaged to facilitate oral evidence at the hearing and such evidence was given by the visa applicant; the nominator and the spouse of the nominator. Written submissions were provided on behalf of the visa applicant together with updated reports from Dr Wijesinghe, psychiatrist, dated 20 May 2002 with a further report being received on 30 September 2002. Receipts for medical treatment in Sri Lanka from March - April 2002 were also provided to the Tribunal. The Tribunal noted that amongst other things departmental policy as found in the Procedures Advice Manual 3 (PAM3) was considered by it with the Tribunal being required to have regard to policy and apply it unless there were cogent reasons from departing from it. 17. The visa applicant claimed that his brother was very traumatised by the possibility of the applicant's return to Sri Lanka where they believed there was great danger. As a result of that fear the nominator suffered from severe depression - required psychiatric treatment as well as a great deal of emotional support (CB 86). 18. The MRT said at paragraph 18 (CB 86) of its statement of decision and reasons: "International movement records maintained by the Department show that the nominators departed Australia on 18 December 1998 and returned on 30 January 1999. He again departed Australia on 27 February 2002 and returned on 21 April 2002. On both occasions the nominator travelled without the visa applicant." It is implicit the Tribunal asked the visa applicant about such travel during the course of the hearing (CB 89, paragraph 30) although in what manner I am unable to determine. The respondent is responsible for the filing of the court book but did not include in same a transcript of the MRT hearing. This is usual and ordinarily a transcript is not required. However, this court is being asked to determine whether the applicant was afforded a fair hearing. It is clear the nominator was asked about such travel (CB 91, paragraph 36). There is no evidence before this Court that the MRT ever put to the applicant or nominator during the hearing that the travelling overseas on two occasions as described above would be a reason or a part of the reason for decision to affirm the decision of the delegate. This also raises the question of the respondent's compliance with s.359A of the Act. 19. It is clear that international movement records maintained by the Department was not information provided by the applicant. Such information related to the visa applicant's application and was adverse to him. It, upon a fair reading of the Tribunal's reasons, was information which formed a part of the Tribunal's reasons for finding against the applicant. The Tribunal for instance found that the break in care as a result of the overseas travel of the nominator was such that the applicant was not `able' to provide substantial and continuing assistance to the nominator. The Tribunal was obliged pursuant to s.359A of the act to advise the applicant of such records and their relevance to the proceedings and invite the applicant to comment on those records. There was a failure by the MRT to provide the applicant with such written request being a failure to comply with obligations imposed on it pursuant to sections 359A and 3789A of the Act. This contravened s.476(1)(a) of the Act. 20. The visa applicant claimed that whilst in Sri Lanka and prior to 1996 he received threats of physical harm, he having been a witness to the killing of an army captain in 1989. Such threats commenced in 1991-92. The nominator at the time was very concerned for the visa applicant's welfare and this led to a bout of depression in 1992 (CB 89). The nominator travelled to Sri Lanka at this time. 21. The visa applicant gave evidence that in July 1998 the nominator was suffering from sleeplessness and had to be reminded to eat. The visa applicant would assist the nominator with tasks such as showering and the taking of his medication on a daily basis at that time. The visa applicant at the time of hearing assisted in the performance of household chores, provided emotional support to the nominator and took the nominator to medical appointments. MRT hearing 22. The Tribunal found:- a) The evidence of the visa applicant and his witnesses was not particularly convincing. At times, the statements made by the applicant were inflated to advance his claims (CB 93); b) The nominator of the visa applicant by this brother, an Australian citizen satisfied the definition; c) That the nominator suffered from `bouts of depression' before going on to say `having established that a condition exists, the Tribunal must identify distinctively what the nominator actually needs by way of assistance as a result of his condition. The need for assistance must be because of the condition." (CB 94). d) The psychological and psychiatric reports submitted in support of the visa application did not elaborate on the type or level of other assistance the nominator required in July 1998 or at present as a result of his condition. The Tribunal noted Dr Wijesinghe diagnosis of the nominator as suffering from a recurrent major depression in July 9998 and as suffering from moderately severe depression in May 2002 with treatment continuing; (CB 95) e) "On the evidence" before it, that the primary need of the nominator appears to have been companionship, together with some domestic assistance. It referred to PAM3, and then noted that in the absence of other factors, "companionship of a relative and domestic household assistance does not constitute a permanent or long-term need for assistance". The MRT also found that "a need for daily emotional and physical support as well as companionship is something experienced by many members of the community and does not, on its own, amount to a need for substantial assistance (CB 96). Further the MRT found that in the absence of other circumstances, the need for companionship and domestic household assistance does not constitute a serious circumstance or a permanent or long-term need requiring substantial continuing assistance (CB 96). f) Having determined that a `condition' existed the Tribunal then found when looking to what the nominator's needs were that the condition was not such as to constitute a prolonged illness, disability or other serious circumstance. 23. The Tribunal found the nominator to suffer from severe bouts of depression and described same as a `condition'. It then proceeded to determine whether that `condition' was a prolonged illness, disability or serious circumstance on the basis of whether the nominator had a permanent or long-term need for substantial and continuing assistance on a false assumption as to the meaning of the term `substantial and continuing assistance.' It did not firstly conclude that the nominator suffered from a disability prolonged illness or other serious circumstance as a result of which the nominator had such a need for assistance. 24. Clearly, whether the nominator is in need of `substantial and continuing assistance' is a question of fact for the Tribunal to determine. The Tribunal however appears as indicated in paragraphs 23 and 24 above to have based its findings of fact on the basis that assistance in the nature of the performance of domestic chores and the provision of companionship could never satisfy the definition of `special need relative'. This is an error of law. As was said by the Full Court of the Federal Court in Chow v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA FC 88 at paragraph 28: The performing of domestic chores and the giving of companionship could constitute substantial and continuing assistance in some circumstances. It would be incorrect to say that assistance of that nature could never be substantial and continuing assistance. If a resident had a permanent long-term need for assistance, consisting of the provision of domestic chores and companionship, the pre-requisites of the definition could be satisfied. 25. I accept counsel for the applicant's submission that the MRT should have asked the question, whether as a matter of fact, the needs of the nominator for assistance, as identified, constituted a permanent or long-term need for substantial and continuing assistance. Rather, it reasoned in the taking into account of an irrelevant matter that the needs of the nominator could not satisfy the definition because those needs were `experienced by many members of the community'. 26. Counsel for the applicant also submitted that the MRT erred in failing to ask the correct question in applying the definition of serious circumstances. I accept that submission. The correct approach is as set out by the Full Court of the Federal Court in Wu v Minister for Immigration & Multicultural & Indigenous Affairs (2000) 105 FCR 39 at page 54. It is not referrable to any list of prescribed circumstances but neither -- "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 that same sort that would be required if the citizen was suffering from a disability or prolonged illness." 27. I conclude that the MRT decision is infected by jurisdiction error of law and thus is not a decision for the purposes of section 474 of the Act (Plaintiff S157/2002 v The Cth (2003) HCA 2). I shall remit the matter to the Tribunal for determination according to law. I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Driver FM Deputy Associate: T A Jones Date:11 June 2003
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