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MIGRATION – visa – ‘special need relative’ – Migration Regulations 1994 (Cth), reg 1.03 – whether definition misapplied

Singh v Minister for Immigration and Multicultural and Indigenous Affairs [

Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 298 (12 November 2004)
Last Updated: 12 November 2004

FEDERAL COURT OF AUSTRALIA


Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 298



MIGRATION – visa – ‘special need relative’ – Migration Regulations 1994 (Cth), reg 1.03 – whether definition misapplied


Migration Act 1958 (Cth) s 359A
Migration Regulations 1994 (Cth) reg 1.03, Sch 2 cll 806.213 and 806.221


Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39 followed
Narayan v Minister for Immigration and Multicultural Affairs [2001] FCA 1745 followed
























JASWINDER SINGH and Ors v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
VID 753 of 2004


BLACK CJ, SACKVILLE and SUNDBERG JJ
MELBOURNE
12 NOVEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 753 of 2004


BETWEEN: JASWINDER SINGH
FIRST APPELLANT

HARJPINDER KAUR
SECOND APPELLANT

GURPAWAN SINGH DHILLON
THIRD APPELLANT

SUKHRAJ SINGH DHILLON
FOURTH APPELLANT

JASKARAN SINGH DHILLON
FIFTH APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: BLACK CJ, SACKVILLE and SUNDBERG JJ
DATE OF ORDER: 12 NOVEMBER 2004
WHERE MADE: MELBOURNE


THE COURT ORDERS THAT:


1. The appeal be dismissed.
2. The first appellant pay the respondent’s costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 753 of 2004


BETWEEN: JASWINDER SINGH
FIRST APPELLANT

HARJPINDER KAUR
SECOND APPELLANT

GURPAWAN SINGH DHILLON
THIRD APPELLANT

SUKHRAJ SINGH DHILLON
FOURTH APPELLANT

JASKARAN SINGH DHILLON
FIFTH APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: BLACK CJ, SACKVILLE and SUNDBERG JJ
DATE: 12 NOVEMBER 2004
PLACE: MELBOURNE


REASONS FOR JUDGMENT

THE COURT:

THE APPEAL

1 This is an appeal from the judgment of a Federal Magistrate dismissing an application for judicial review of the decision of the Migration Review Tribunal (‘MRT’) made on 23 April 2002. The MRT affirmed a decision of the delegate of the respondent (‘the Minister’) made on 17 April 1999 to refuse the first appellant a Family (Residence) (Class AO) visa (‘the Visa’).

2 The other appellants are all members of the first appellant’s family. It is convenient to refer to the first appellant simply as the appellant.

3 The MRT found that the appellant, who is an Indian national, was not a ‘special need relative’ as defined in reg 1.03 of the Migration Regulations 1994 (Cth) (‘Migration Regulations’). The criteria for the grant of the Visa included a requirement that appellant satisfy the definition of ‘special need relative’: cll 806.213 and 806.221 of Sch 2 to the Migration Regulations. That requirement had to be satisfied both at the time of the application and of the decision.

4 The definition of ‘special need relative’ at the relevant time was as follows:

‘..."special need relative" in relation to an Australian citizen usually resident in Australia ... means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:
(a) the citizen ... has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen ... personally, or a member of his or her family unit; and
(b) the assistance cannot reasonably be obtained from:
(i) any other relative of the citizen ... being a relative who is an Australian citizen ... or
(ii) welfare, hospital, nursing or community services in Australia ...’

5 The appellant claimed to be a special need relative of his sister, an Australian citizen (‘the nominator’). The MRT, however, concluded that the nominator was not in need of assistance at the relevant times for any of the reasons specified in reg 1.03. Accordingly, the MRT found that the appellant did not satisfy the definition of ‘special need relative’ and was not entitled to the grant of the Visa.

6 The appellant’s application to the Federal Court for review of the MRT’s decision was remitted to the Magistrates Court. That Court noted that only one ground had been pursued by the appellant, as follows:

‘The [MRT] erred by conflating the test imposed by regulation 1.03(a), namely by defining the term "prolonged illness" by the context of the assistance required by the nominator.’

The Magistrates Court dismissed the application. The appeal raises the same ground as that relied on before the Magistrate.

THE FACTS

7 The appellant was born in 1963. He entered Australia on a subclass 676 Short Stay (Visitor) visa on 12 June 1997. Since 1998 he has held a bridging visa.

8 The nominator was born in 1957 and became an Australian citizen in 1994. She has three children who were aged from 13 to 16 in 1998. By an application dated 5 March 1998, the appellant claimed to be a special need relative of the nominator and thus entitled to the Visa.

9 The medical evidence submitted in support of the application suggested that the nominator had a variety of ailments, including bronchial asthma and severe allergies. She was also said to feel lonely and depressed, in part because her husband was an alcoholic.

10 As we have noted, the delegate rejected the application on 17 April 1999. On 26 June 2001 the MRT affirmed the delegate’s decision. However, on 21 September 2001 the Federal Court remitted the matter by consent to the MRT, on the basis that the MRT may have failed to comply with the procedural requirements of s 359A of the Migration Act 1958 (Cth) (‘Migration Act’).

11 The MRT, after complying with the requirements of s 359A of the Migration Act, conducted a further hearing on 8 March 2002. On 23 April 2002, it affirmed the delegate’s decision.

THE MRT’S DECISION

12 At the MRT hearing held on 8 March 2002, the appellant stated that the assistance he provided to the nominator included intervening with her spouse when he was drunk, discouraging her spouse from drinking, driving the nominator’s children to activities and taking the nominator to the doctor.

13 In its reasons (N01/06236, N99/04014), the MRT noted that the medical evidence indicated that the nominator had persistent neck pain, an undiagnosed breast lump and symptoms of anxiety and depression as well difficulty sleeping. However, the MRT also noted (at [36]) that:

‘[n]one of the medical evidence relevant to the date of decision indicates what assistance is required by the nominator, what assistance is actually provided to her by the [appellant], or whether that assistance is substantial and continuing.’

14 The MRT addressed the question of whether the nominator suffered from a prolonged illness. It accepted that loneliness, mental deterioration, age and infirmity could constitute a disease or prolonged illness. The MRT continued as follows (at [38]):

‘At the time of application the nominator suffered from asthma and allergies and was "lonely and depressed" because she had left her family in India. However, there is no medical evidence that the nominator suffered from clinical depression at that time. The Tribunal finds that the symptoms described by [the doctor] and the nominator at the time of application do not amount to the type of prolonged illness contemplated by the regulations, that is, one which requires substantial and continuous assistance.’

15 The MRT found (at [39]) that the nominator suffered from certain physical conditions, such as persistent neck pain. But there was no evidence of any treatment or prognosis for these illnesses, nor of any assistance that may have been required by reason of them. The MRT also found (at [39]) that the nominator suffered from depression and had symptoms of anxiety at the time of the decision. It did not, however, consider that her illness brought the appellant within reg 1.03:

‘the [psychological] report suggests that the assistance required by the nominator because of her depression is love, companionship, confidence, a feeling of security and a sense of future, which is provided by the [appellant]. The Tribunal finds that the assistance provided by the [appellant] to the nominator at the time of decision is to try to reduce the impact of the nominator’s spouse’s alcoholism on the nominator and her family and to drive the nominator’s children to activities and to provide companionship and emotional support to her. The Tribunal finds that the combination of the nominator’s medical and psychological illnesses, when viewed in the context of the assistance required by her, do not amount to the type of prolonged illness contemplated by the regulations, that is, one which requires substantial and continuing assistance.’

16 Next, the MRT considered whether the nominator had a ‘disability’ within the meaning of reg 1.03. It considered that (at [47]), in this context ‘disability’

‘refers to a person who suffers from a permanent or long-term physical or mental impairment or limitation of such a degree of seriousness that it affects their capacity to function independently within the community, and for which they require substantial and continuing assistance.’

The MRT found (at [48]):

‘that there is no evidence that nominator had, either at the time of application or at the time of decision, a permanent or long-term physical or mental impairment or limitation of such a degree of seriousness that it affected her capacity to function independently within the community, and for which she required substantial and continuing assistance. The Tribunal finds, therefore, that the nominator did not have a "disability" either at the time of application or at the time of decision.’

17 The MRT then considered whether the nominator was affected by ‘other serious circumstances’. After quoting from the judgment of the Full Court in Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39, the MRT found (at [55]) that the nominator was not affected by other serious circumstances at the time of application:

‘The Tribunal has already found that there is no evidence in relation to what assistance is required, if any, by the nominator in relation to her medical conditions at the time of decision. The evidence suggests that, at the time of decision, the assistance provided by the [appellant] to the nominator in relation to her psychological condition is love, companionship, confidence, a feeling of security and a sense of future. The Tribunal notes that the [appellant] has worked full-time for three years, that the nominator is able to care for his three children when both the [appellant] and his spouse are working, that the nominator is able to perform domestic chores and do occasional paid work and that the [appellant] believes the nominator is not in need of assistance during the daytime when her spouse is sober. The Tribunal finds that the assistance required by the nominator at the time of decision is companionship and assistance in raising her two sons, as well as some assistance in reducing the impact of her alcoholic spouse’s behaviour. The Tribunal ... finds that the nominator’s circumstances are not sufficiently serious that they require assistance of the same sort that would be required if the citizen was suffering from a disability or prolonged illness.’

18 The MRT stated its conclusions as follows (at [58]):

‘Taking all the circumstances into account, the Tribunal finds that the nominator is not in need of assistance because of death, disability, prolonged illness or other serious circumstances and the [appellant] is not her special need relative as defined in regulation 1.03. The Tribunal finds, therefore, that the [appellant] does not satisfy clause 806.213 at the time of application and does not satisfy clause 806.221 at the time of decision.’

THE PRIMARY JUDGMENT

19 The learned Magistrate held that:

n approaching the question of whether there was "disability, prolonged illness or other serious circumstances affecting the nominator" in the way it did, the [MRT] was applying the regulation in the manner described in Wu and Narayan. The opening paragraph of the regulation containing the words "permanent or long-term need for assistance" describes the type of assistance which needs to be given. This is the approach the [MRT] used.’

([2004] FMCA 319, at [18].) For that reason, his Honour dismissed the application.

REASONING

20 The appellant’s submissions appeared to undergo some modification during the course of the hearing of the appeal. At one point, the appellant seemed to be arguing that the expression ‘permanent or long-term need for assistance’ used in reg 1.03(a) was unaffected by the expression ‘substantial and continuing assistance’ used in the chapeau to reg 1.03. Indeed, this was the way in which the Magistrate understood the submission made to him. A submission in this form, as the Magistrate pointed out, encounters the difficulty that it is inconsistent with the reasoning of the Full Court in Wu and in Narayan v Minister for Immigration and Multicultural Affairs [2001] FCA 1745.

21 In Wu, the Full Court held that the definition of ‘special need relative’ in reg 1.03 is capable of applying to a situation where a child’s need of assistance arises because of the disability or prolonged illness of a member of the child’s family unit (at [41]). The Full Court made these observations about the expression ‘other serious circumstances’ in reg 1.03 (at [41]):

‘In our opinion the word "serious" is simply intended to reinforce the nature of the assistance that is central to the definition, namely assistance which is substantial and continuing in relation to a need for assistance which is permanent or long-term. That is, the circumstance is sufficiently serious that, in relation to a citizen, it would require assistance of the same sort that would be required if the citizen was suffering from a disability or prolonged illness. In our opinion, if a citizen or a member of the citizen's family unit is in circumstances which create a need for substantial and continuing assistance of the citizen and the circumstances do not arise because of the death of a member of the family unit or the disability or prolonged illness of either the citizen or the member of the family unit then those circumstances are intended to be comprehended by the expression "other serious circumstances".’ (Emphasis added.)

22 In Narayan, the Full Court explained the operation of reg 1.03 in this way (at [38]-[40]):

‘Literally, and in schematic form, the definition of "special need relative" requires that the visa applicant be:
"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 ... prolonged illness or other serious circumstances ...;
and
(b) the assistance cannot reasonably be obtained from [other sources of various kinds mentioned]".

The opening paragraph and par (a) of the definition are closely related. So much was accepted [by the passage] in Wu [which] suggests an interrelationship between the elements of the opening paragraph and those of par (a) of the definition.

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

23 The Full Court in Narayan pointed out (at [42]-[43]) that there might be cases where the nominator has a long-term need for assistance and the applicant is able to provide assistance, yet the assistance the applicant can provide falls short of amounting to ‘substantial and continuing assistance’. It may be, for example, that the applicant is able to assist only in relation to a relatively minor aspect of the nominator’s needs. It follows that the chapeau to reg 1.03 has work to do, even in a case where the nominator has a permanent or long-term need for assistance. The reasoning in Narayan makes it clear that there is a close relationship between the permanent or long-term need for assistance referred to in subpar (a) and the substantial and continuing assistance referred to in the chapeau.

24 In the present appeal, Mr Gibson, who appeared for the appellant, ultimately accepted that Wu and Narayan correctly state the law, and that it was permissible for the MRT, in determining whether the nominator had a permanent or long-term need for assistance for one of the specified reasons, to take into account whether she had a need for continuing and substantial assistance. He submitted, however, that the MRT had failed to implement the approach required by the decisions in Wu and Narayan.

25 Mr Gibson’s submission, in substance, was that the MRT had failed to address the nominator’s need for assistance, because it had focused on the assistance the applicant was capable of providing to her, rather than on her own needs. In other words, the MRT had assumed that because the applicant had provided only modest assistance to the nominator, she did not have a permanent or long-term need for assistance of the kind required by reg 1.03(a).

26 If the MRT had adopted the reasoning attributed to it by Mr Gibson, it would have fallen into error (although the appellant might then have had some difficulty in satisfying the independent requirement set out in the chapeau to reg 1.03). The assistance a visa applicant can provide to the nominator is one thing; the assistance needed by the nominator is another. But the short answer to the submission is that a fair reading of the MRT’s reasons does not support the appellant’s construction.

27 In two key passages of the MRT’s reasons to which we have referred (at [38], [39]), the MRT found that the nominator did not have ‘the type of prolonged illness contemplated by the regulations, that is, one which requires substantial and continuing assistance’. Mr Gibson accepted that if this language was intended to convey that the nominator’s illnesses did not create a need in her for substantial and continuing assistance, it would have been unobjectionable (even though it would have been more precise for the MRT to refer to the language of subpar (a), namely ‘a permanent or long-term need for assistance’).

28 In assessing the MRT’s reasons, it is to be borne in mind that the MRT considered the medical evidence relating to the nominator’s state of health and to the circumstances of her domestic life. The MRT pointed out that none of the medical evidence concerning the nominator’s physical ailments addressed the assistance that she required. It also pointed out that there was no medical evidence suggesting that the nominator was clinically depressed at the time of the appellant’s application. The MRT accepted that she was depressed at the time of the decision, but that the assistance needed by her was limited to that provided by the appellant.

29 It is true that the MRT, in the two key passages, did not use the word ‘need’. It is also true that at [39] the MRT made a finding about the assistance actually provided to the nominator. But that was in the context of a finding that the nominator’s need for assistance was essentially co-extensive with the assistance actually provided by the appellant – that is, assistance which fell short of ‘substantial and continuing’ assistance. It is very difficult to see what the MRT could have been intending to convey other than that the nominator’s ailments were not such as to create a need in her for substantial and long-term assistance and thus did not create a permanent or long-term need for assistance of the serious kind contemplated by subpar (a). This is the natural meaning of the words used by the MRT. Moreover, this construction is supported by the conclusions stated at [58] of the MRT’s reasons, which are expressed by reference to the language of subpar (a) of reg 1.03.

30 Although the MRT’s reasoning is not always expressed in precise language, in substance it found that, whatever the ailments from which the nominator was suffering, they were not such as to create a permanent or long-term need for assistance of the kind contemplated by reg 1.03(a). Similarly, the MRT found that while the circumstances facing the nominator at home were unfortunate, they were not such as to create a permanent or long-term need for assistance of the kind required by reg 1.03(a). Although it would have been better for the MRT to have framed its findings concerning the nominator’s need for assistance by reference to the precise language of subpar (a) of reg 1.03, the MRT did not make the error attributed to it by the appellant.

31 Mr Gibson made a number of criticisms of the MRT’s factual findings. These included trenchant criticism of a passage in which the MRT expressed the view that the reasons given by the nominator for not leaving her abusive spouse were inconsistent with the evidence and ‘illogical’. While we are not to be taken as endorsing all the MRT’s reasoning on factual issues, any difficulties with that reasoning do not constitute jurisdictional error on the part of the MRT.

CONCLUSION

32 The appeal must be dismissed. The (first) appellant must pay the Minister’s costs.


I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black and the Honourable Justices Sackville and Sundberg.



Associate:

Dated: 12 November 2004



Counsel for the Appellants: JA Gibson



Solicitor for the Appellants Clothier Anderson & Associates



Counsel for the Respondent: GH Livermore



Solicitor for the Respondent: Australian Government Solicitor



Date of Hearing: 10 November 2004



Date of Judgment: 12 November 2004
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