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MIGRATION - Review of decision of the Migration Review Tribunal - application for a family residence visa - whether the applicant was a `special need relative' - where the reasons for decision did not refer to lay evidence - whether it could be inferred that the Tribunal failed to take into account relevant considerations - whether there was a jurisdictional error in the Tribunal's decision.

Kaur v Minister for Immigration [2003] FMCA 165 (13 May 2003)

Kaur v Minister for Immigration [2003] FMCA 165 (13 May 2003)
Last Updated: 23 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION
[2003] FMCA 165



MIGRATION - Review of decision of the Migration Review Tribunal - application for a family residence visa - whether the applicant was a `special need relative' - where the reasons for decision did not refer to lay evidence - whether it could be inferred that the Tribunal failed to take into account relevant considerations - whether there was a jurisdictional error in the Tribunal's decision.



EL Bkassini v Minister for Immigration [2002] FCA 612

SAAD v Minister for Immigration [2003] FCAFC 65

Steed v Minister for Immigration and Ethnic Affairs [1981] 37 ALR 620

Karras v Minister for Immigration and Ethnic Affairs [1998] 56 ALD 167

Paul v Minister for Immigration [2001] 113 FCR 396

Pojani v Minsiter for Immigration [2002] FCA 1283

Applicant N38/2002 v Minister for Immigration [2003] FCA 58

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] 162 CLR 24

Koulaxazov v Minister for Immigration [2003] FCAFC

Chow v Minister for Immigration [2003] FCAFC 88

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

Minister for Immigration v Yusuf (2001) 180 ALR 1


Applicant:
JASWANT KAUR



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 1210 of 2002



Delivered on:


13 May 2003



Delivered at:


Sydney



Hearing date:


1 May 2003



Judgment of:


Raphael FM



REPRESENTATION

Counsel for the Applicant:


Mr C Colbourne



Counsel for the Respondent:


Mr T Reilly



Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 1210 of 2002

JASWANT KAUR


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is a citizen of India. Her mother, sister and brother all live in Australia. Her mother is an Australian citizen. On 4 September 1996 the applicant entered Australia on a subclass 676 (Tourist) (Short Stay) visa. She came for the purpose for caring for her dying father and her mother. On 12 November 1996 she was granted a subclass 686 (Tourist)(Long Stay) visa which was extended until 4 September 1997. On 26 May 1997 her father died. On 11 August 1997 the applicant applied for a Family (Residence) (Class AO) visa on the basis of her being a special needs relative to the nominator, her mother. On

23 March 2001 the Department refused to grant the visa applicant the visa applied for. On 9 April 2001 the applicant lodged an application for review by the Migration Review Tribunal (MRT). The applicant provided considerable body of evidence to the Tribunal which held a hearing on 20 August 2002. Her sister and mother gave evidence to the Tribunal. On 23 September 2002 the Tribunal determined to affirm the decision under review, finding that the visa applicant was not entitled to the grant of a Family (Residence) (Class AO) visa.

2. It is accepted by all parties that in order for the applicant to be eligible for the visa for which she applied she had to fall within the definition of a special needs relative found in Regulation 1.03 of the Migration Regulations 1994 which regulation is in the following form:

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

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

(b) the assistance cannot reasonably be obtained from:

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

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

3. The applicant was nominated for the visa by her mother, Ms Nasib Kaur, an Australian citizen.

4. In her application form [CB 15-16] the applicant was asked what circumstances led to her relative needing her assistance. In response she stated:

"Death of my father: I am my 70 year old widowed mother's only companion in residence. She has very poor English and is very dependent upon me."

In answer to the question "give details of the assistance you provide to your relative" she responded:

"All washing, cooking, cleaning, housework, shopping, banking, accompanying to doctor, interpretation and translation, provision of general companionship and support."

In response to the question "for how long will your relative require your assistance" she stated:

"Permanently."

5. In the same form the applicant advised the Department that her mother was the only elderly Indian lady in Leeton and was very socially isolated and in poor health.

6. During the course of the 3 � years it took the Department to make a decision on this application a considerable amount of information was requested from the applicant about her personal situation and that of her mother. This information was provided, inter alia, in the form of medical certificates and reports. Further evidence was provided to the Tribunal. The findings and reasons of the Tribunal are contained at [CB 155-157]. It states at [39]:

"Crucial to the definition of `special needs relative' in the Regulations is whether the relative has a permanent or long term need for assistance because of death, disability, prolonged illness or other serious circumstances. The Tribunal will first consider whether the particular needs of the nominator are in fact of this order."

7. The Tribunal then set out to deal with each of the categories in the definition in turn. At [41] it dealt with the death of the nominator's husband. In that paragraph the Tribunal makes reference to a letter from Dr Papalkar dated 30 July 1997, a letter from Erin Wright a register nurse dated 27 September 1999, a medical certificate from

Dr Ghedia dated 28 September 1999, a further certificate from Dr Papalkar dated 9 January 2001 and a radiologist's report dated

16 December 2000. At [42] the Tribunal states:

"Although the visa applicant stated in the application that the nominator required assistance because of the nominator's husband's death, there is no medical or other professional evidence to support the claim that at the time of the application the nominator had a permanent or long-term need for assistance of a substantial and continuing nature because of the death of her husband."

The Tribunal then makes reference to a psychologist's report before making the finding that the report does not establish the required permanent or long term need arising out of the death of the nominator's husband.

8. At [43] the Tribunal deals with disability and prolonged illness coming to the conclusion that the nominator was affected by prolonged illness at the time of the application. At [44] the Tribunal deals with the nominator's anxiety and depression, old age and infirmity before in the same paragraph coming to the conclusion that:

"The Tribunal is therefore not satisfied that the evidence establishes that at the time of application the nominator has a long-term or permanent need for assistance because of other serious circumstances affecting her."

9. At [47] the Tribunal came to the conclusion that:

"There is very little medical or other professional evidence to indicate that at the time of application the nominator's need for assistance because of her illness is permanent or long-term...the Tribunal is not satisfied that the evidence establishes that at the time of application the nominator's stated need for assistance was permanent or long-term and was a result of her illness."

10. When the matter came before the court the applicant filed an amended application requesting review on the grounds that the Tribunal exceeded its jurisdiction and constructively failed to exercise its jurisdiction by:

(1) Failing to make findings on my claims as to the care and assistance my mother required and the care and assistance I provided to her.

(2) Failing to consider whether my mother required care because of her age, lack of English skills, social isolation, dependent personality disorder or need for emotional support.

(3) Failing to have regard to the evidence of the non-expert witnesses about my mother's problems, how they have progressed or the assistance she required.

The applicant's counsel advised that there was really only one issue between the parties and that was whether the Tribunal failed to deal with relevant considerations. The relevant considerations were stated to be those matters raised in the evidence of the applicant, her sister and her mother which raised issues other than those raised by the expert evidence. The applicant argues that this failure by the Tribunal to consider the evidence of these witnesses and to rely solely on the evidence (or lack of it) from experts constituted a failure to deal directly with issues that were raised and were not examples of a failure merely to deal with every piece of evidence. The applicant argued that the Tribunal made no findings about whether the nominator required care because of her age, lack of English skills, social isolation or dependent personality disorder or need for emotional support. The Tribunal erred in the manner described by Ryan J in El Bkassini v Minister for Immigration [2002] FCA 612 at [26] and [27] or of the type described by the Full Bench in SAAD v Minister for Immigration [2003] FCAFC 65 at [40].

11. The respondent argues firstly, that there was very little evidence of the nominator's disabilities described above as at the date of application and that the Tribunal did deal with such evidence as there was. The Minister argues that the evidence was quoted at length and although no specific findings are made it does not follow that because the Tribunal has not mentioned the matter it has failed to consider it; Steed v Minister for Immigration and Ethnic Affairs [1981] 37 ALR 620 at [621] per Fox J; Karras v Minister for Immigration and Ethnic Affairs [1998] 56 ALD 167 at [173]. The respondent argues that the disabilities about which the lay witnesses gave evidence were considered by the psychologist who's report was dealt with in paragraph 42 of the findings at [CB 156] and that if the Tribunal made any error in relation to that evidence it was an error within jurisdiction and not the subject of review.

12. In Paul v Minister for Immigration [2001] 113 FCR 396 Allsop J at [79] having decided that the Tribunal dealt with the subject matter or element of the claim, in that case fear arising out of Tamil ethnicity, made these comments which are of relevance to the instant case:

[79] "Whatever may be the outer boundaries of relevant and irrelevant considerations at the point of jurisdiction (as to which issue see generally and not exhaustively, Minister for Immigration and Multicultural Affairs v X [2001] FCA 858; Minister for Immigration and Multicultural Affairs v Tedella [2001] FCA 832; Khan v Minister for Immigration and Multicultural Affairs [2001] FCA 736; Chhour v Minister for Immigration and Multicultural Affairs [2001] FCA 911; Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 and Thirukkumar v Minister for Immigration and Multicultural Affairs [2001] FCA 864) they do not, in my view, encompass a failure expressly to mention or grapple with part of the competing body of evidence before the Tribunal relevant to a finding made, in circumstances where the elements or integers of the claim for asylum are addressed. It may be that if the element of the appellant's claim for asylum based on her Tamil ethnicity was not addressed at all, that is if the Tribunal had only directed its attention to her claim based on her association with her husband, then in those circumstances relevant considerations might not have been addressed because an element or integer of the claim put forward by her would not have been dealt with. In such circumstances it may be that, in a jurisdictional sense, a relevant consideration had not been addressed. However, it is unnecessary to decide this given that the Tribunal did address the elements or integers of her claim."

13. It is my view that the elements or integers of a claim for a Special Eligibility (Residence) (Class AO) visa is that the applicant is a special needs relative as defined in Regulation 1.03. This requires the nominator to have a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting her. Those are the matters which the Tribunal is bound to consider. The matters raised by the applicant, namely the nominator's requirement for care of the type and for the reasons expressed are, at their highest, both assertions and evidence of the integer.

14. Whilst I find the Tribunal's reliance solely on the expert evidence and its apparent disregard of the lay evidence regrettable, I do not think that this constitutes a type of jurisdictional failure found by Madgwick J in Pojani v Minister for Immigration [2002] FCA 1283. The situation has far more in common which that considered by Marshall J in Applicant N38/2002 v Minister for Immigration [2003] FCA 58 at [31] and [32] where His Honour noted that the Tribunal is not bound to take all evidence into account in coming to its decision (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] 162 CLR 24 of 29 per Mason J).

15. Furthermore, in Koulaxazov v Minister for Immigration [2003] FCAFC 75, where the appellant also claimed that the Tribunal and primary judge had not considered the "other serious circumstances" in assessing whether he was entitled to a Special Eligibility (Residence) (Class XO) visa, Madgwick J at [5] held that:

"A decision-maker does not fail to address an "integer" of the claim (c.f. Htun v Minister for Immigration (2001) 194 ALR 244) merely by addressing it in a less formal or less elegantly structured manner than the decision-maker had indicated an intention to do."

Then at [8] he quoted from Re Minister for Immigration; Ex parte Cohen (2001) 177 ALR 473 at [35] where McHugh J said:

"...The ordinary meaning or common understanding of a non-technical word is generally a question of fact. Leaving aside questions of jurisdictional fact, an administrative tribunal will ordinarily not commit a jurisdictional error unless it has made an error of law. A factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact. Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error."

Finally at [62] Conti J stated:

"An omission of the MRT to refer in its reasons for decision to evidence of relevance in relation to a review of the delegate's decision does not necessarily demonstrate an error of law on the MRT's part, such as to vitiate the decision."

The Full Court came to the conclusion that the appellant had not satisfied it that there was a `need for assistance' due to `serious circumstances' and ultimately held that the decision was not tainted by jurisdictional error. Accordingly, the application was dismissed.

(See also Chow v Minister for Immigration [2003] FCAFC 88)

16. On this basis, I am unable to come to the conclusion pressed by the applicant that the Tribunal, having made no findings about whether the nominator required care because of her age, lack of English skills etc, did not take these matters into account at all and thus failed to take into account relevant material as required by Minister for Immigration v Yusuf (2001) 180 ALR 1 at [82]. Given the extensive recitation of the evidence and the reference of these matters in paragraph 46 of the decision I do not think this inference is open to me.

17. I dismiss the application. I order that the applicant pay the respondent's costs assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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