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MIGRATION - FAMILY VISA - special need relative - visa refused tribunal affirmed decision - no jurisdictional error.

Fedotov v Minister for Immigration [2003] FMCA 57 (21 March 2003)

Fedotov v Minister for Immigration [2003] FMCA 57 (21 March 2003)
Last Updated: 30 October 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FEDOTOV v MINISTER FOR IMMIGRATION
[2003] FMCA 57



MIGRATION - FAMILY VISA - special need relative - visa refused tribunal affirmed decision - no jurisdictional error.



Migration Regulations 1994 r.1.03

Migration Act 1958 s.474, 483A

Judiciary Act 1903 s.39B

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

Plaintiff S157/2002 v Commonwealth of Australia at 76

Minister for Immigration and Ethnic Affairs v. Wu Shan Liang and others (1996) 185 CLR 259

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280

McAuliffe v Secretary of Department of Social Security (1992) 28 ALD 609

Su v Minister for Immigration and Multicultural Affairs [2001] FCA1409

Minister for Immigration and Multicultural Affairs ; ex parte Cohen [2001] HCA 10 at 35

Minister for Immigration v. Chan [2000] FCA 737

Applicant:
VITALI FEDOTOV



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:
MZ 562 of 2002



Delivered on:
21 March 2003



Delivered at:


Melbourne



Hearing date:


10 February 2003



Judgment of:


Phipps FM



REPRESENTATION

Counsel for the Applicant:


Mr T Hurley



Solicitors for the Applicant:


Armstrong Ross



Counsel for the Respondent:


Mr C G Fairfield



Solicitors for the Respondent:


Australian Government Solicitor


ORDERS

(1) That the application be dismissed.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


MZ 562 of 2002

VITALI FEDOTOV


Applicant

And

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS




Respondent


REASONS FOR JUDGMENT
Introduction

1. The Applicant seeks to review, by way of prerogative writ, a decision of the Migration Review Tribunal (the Tribunal) dated 14 May 2002 by which the Tribunal confirmed the decision under review, finding that the Applicant was not entitled to the grant of a Family (Residence)(ClassA0) visa.

Background

2. The Applicant is a citizen of the Ukraine. His mother, the nominator for the purposes of the application for the visa, arrived in Australia in December 1991 to marry an Australian citizen. She became a permanent resident on arrival and an Australian citizen on 3 August 1994. The nominator married on 14 April 1991 but the marriage was not happy. She separated from her husband and the marriage was dissolved on 10 November 2000.

3. The Applicant applied for a Visa on 6 February 1996. He sought to satisfy the requirements of subclass 806. A criterion to be satisfied at the time of application for the grant of a subclass 806 Visa is clause 806.213 of the Migration Regulations 1994 (the regulations). This clause provides, in part, that the visa Applicant is a `special needs relative' of another person who he has nominated. Clause 806.221 provides that the visa Applicant must continue to satisfy the criterion in clause 806.213 at a time of decision.

4. The issue in the review was whether the nominator was a `special need relative'. `Special need relative' is defined in regulation 1.03 of the regulations:

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

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

(b) the assistance cannot 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;"

5. The tribunal found that the Applicant was not a `special need relative' at the time the application was made. It was therefore unnecessary for the tribunal to consider whether the Applicant was a `special need relative' at the time of the tribunal's decision.

6. As to the nominator's medical and psychological condition, the tribunal had evidence in a report from Ronald Conway, clinical and counselling psychologist dated 30 January 1996, reports from Dr Pilkington, the nominator's general practitioner, and a consultant psychiatrist, Dr Victor Botvinik. Oral evidence was given by the Applicant, the nominator Dr Pilkington and a friend or acquaintance of the nominator and the Applicant.

7. The Tribunal concluded that at the time of the application, the nominator did not have a disability or prolonged illness which necessitated substantial assistance. In coming to this conclusion, the tribunal member said that she preferred the evidence of Dr Pilkington to that of Mr Conway.

8. The Tribunal concluded that the nominator's circumstances at the time of the application did not constitute `other serious circumstances'.

9. The tribunal then concluded that the physical assistance needed by the nominator, together with emotional support, presence, and companionship of the visa Applicant, cannot be construed as meeting the requirements of providing substantial assistance as envisaged by regulation 1.03.

Court's powers

10. The Federal Magistrates Court has the same jurisdiction over decisions of the tribunal as that conferred on the High Court by Section 75(v) of the Constitution. This is the combined effect of section 483A of the Migration Act 1958 and section 39B of the Judiciary Act 1903. Section 483A of the Migration Act confers upon the Federal Magistrates Court the same jurisdiction as the Federal Court in relation to matters arising under the Migration Act. Section 39B of the Judiciary Act, subject to certain qualifications, confers upon the Federal Court jurisdiction of the character of the High Court under section 75(v) of the Constitution. That is jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. This jurisdiction, in the case of the Federal Magistrates Court, is limited to matters arising under the Migration Act.

11. Section 474 of the Migration Act contains a privative clause. It provides that a decision of an administrative character made under the Migration Act is final and conclusive, is not to be challenged in any Court and is not subject to prohibition mandamus injunction declaration or certiorari. The. High Court of Australia in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 has determined that section 474, on its proper construction, does not apply to jurisdictional errors. Breach of the rules of natural justice is a jurisdictional error. Other matters may constitute jurisdictional area such as a failure to discharge imperative duties or to observe inviolable limitations or restraints - Plaintiff S157/2002 v Commonwealth of Australia at 76.

12. Not all errors of law are jurisdictional errors. Non jurisdictional errors of law are subject to the restrictions contained in section 474 of the Migration Act. In Plaintiff S157/2002 v Commonwealth of Australia Gaudron, McHugh, Gummow, Kirby and Hayne JJ said this at 81:

"As no constitutional provision confers jurisdiction with respect to certiorari, it is open to the Parliament to legislate so as to prevent the grant of such relief. However, because `privative clause decision' is relevantly defined in terms of a `decision ... made under [the] Act', section 474(1)(c) does not prevent the issue of certiorari as ancillary to mandamus or prohibition, but validly does so for non-jurisdictional error of law on the face of the record."

13. Some general principles apply to the application before the court. The reasons of an administrative decision maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. (Minister for Immigration and Ethnic Affairs v. Wu Shan Liang and others (1996) 185 C.L.R. 259, Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, McAuliffe v Secretary of Department of Social Security (1992) 28 ALD 609.) Fact-finding is a matter for the tribunal. Unsatisfactory or illogical reasoning does not involve jurisdictional error (Avesta v Minister for Immigration and Multicultural Affairs [2002] FCAFC 121).

Grounds relied upon

14. Two grounds were relied upon as constituting jurisdictional error.

a) The tribunal erred in law in failing to consider whether the evidence or material before it established to its satisfaction that the nominator had a mental illness or depressive illness which required assistance which only the Applicant, as her son, could provide;

b) The tribunal erred in law in failing to apply the decision of the Federal Court of Australia in Su v Minister for Immigration and Multicultural Affairs [2001] F C A 1409.

15. In support of the first ground, it was submitted that in preferring the evidence of Dr Pilkington to Mr Conway, the tribunal had erred. Mr Conway provided a report dated 30 January 1996 in support of the application. For the purpose of supplying the report, he had interviewed the Applicant and the nominator. He said in his report:

"As I assessed Mrs Vasiliev in the brief period I was able to observe her via the medium of an interpreter, she strikes me as a lady very much prone to succumb to depressive episodes and also to accompanying psychosomatic and somatic ills which so often accompany periodic depression."

16. A report dated 9 December 1999 from Dr Victor Botvinik diagnosed the nominator as having an adjustment disorder with an anxious and depressed mood and prescribed Oxazepam. A further letter from him dated 1 December 2000 stated that the nominator was quite depressed, very anxious and that he was treating her for depressive illness. Dr. Batvinik's reports are evidence of the nominator's condition well after the date of the application.

17. Dr Pilkington had been the nominator's treating doctor since 1993. She provided three reports which were in evidence. These are dated

30 September 1997, 7 December 2000, and 5 February 2002. She gave oral evidence.

18. The tribunal member preferred the evidence of the treating doctor, Dr Pilkington; that there was no depression in 1996, to that of Mr Conway. The submission on behalf of the Applicant accepted that the Tribunal was entitled to prefer the evidence of one witness over another. However, the submission was that this was not what the tribunal had done. The submission was that there was an absence of evidence of depression by Dr Pilkington and that to prefer that absence of evidence to the professional opinion of the consulting psychologist constituted jurisdictional area.

19. The flaw in the argument is the way it characterises Dr Pilkington's evidence. The Tribunal's reasons sets out Dr Pilkington's evidence in paragraphs 35-38.

"35. Dr Pilkington referred to the nominator's records and stated that she had been the nominator's treating doctor since 1993. Regarding the nominator's health in 1996, Dr Pilkington stated that the nominator complained of joint pain in her hips, elbows and shoulders associated with cold and housework. She prescribed anti-inflammatories and Panadol. The nominator had high blood pressure, which was treated with medication. The nominator also complained of tiredness and fatigue. In 1996, there was no diagnosis of anxiety or depression.

36. Dr Pilkington stated that in 1997, the nominator was more agitated, depressed and tired. Depression was diagnosed at the end of 1997 or the beginning of 1998. The nominator was not prescribed medication for depression because, in her opinion, the level of depression did not require medication. The nominator's blood pressure went up in 1998 and her medication was changed. The nominator came mostly on her own to appointments and had discussed her marriage problems in 1998. The nominator had stated that while she worked hard her husband was not encouraging. Over the last 12 months, the nominator is agoraphobic and will not go out by herself.

37. Dr Pilkington stated that in 1996 the nominator needed assistance with things like lifting groceries, putting things out and mowing.

38. Dr Pilkington stated that currently the nominator is anxious about the visa Applicant's visa application. She is less able to do things because of osteoarthritis. She needs help with carrying shopping, lifting, hanging washing, vacuuming and gardening."

20. Dr Pilkington's report of 30 September 1997 states that she is currently suffering from hypertension, depression and generalised osteoarthritis. That of the 7 December 2000 stated that she suffers from generalised osteoarthritis and hypertension. The report of 5 February 2002 is more extensive. It sets out under the heading "Medical conditions requiring treatment", three sub-headings covering hypertension, osteoarthritis and depression. The depression is described as being diagnosed in December 1999.

21. The submission on behalf of the Applicant relied upon an analysis of the medical reports. It might be possible to interpret them as saying nothing about depression in 1996. On the other hand, it is possible to interpret them the other way. The interpretation of evidence is for the tribunal, not for a court on review.

22. But the tribunal had the advantage of oral evidence from Dr Pilkington, and in those circumstances the reports are of less significance. The tribunal, in setting out the evidence, records Dr Pilkington as referring to the nominator's records. The statement at the end of paragraphs 35 of the tribunal's reasons that in 1996 there was no diagnosis of anxiety or depression can only be a record of Dr Pilkington's evidence. It is a positive statement by the doctor that there was no diagnosis. It is not a recording by the Tribunal that there was no evidence about depression. If that interpretation of the evidence needs any reinforcing, that is contained in paragraph 36 which says that depression was diagnosed at the end of 1997 or the beginning of 1998

23. There is not an absence of evidence from Dr Pilkington about depression in 1996. There is positive evidence from Dr Pilkington that in 1996 there was no diagnosis of anxiety or depression. Depression was diagnosed at the end of 1997 or the beginning of 1998. There was therefore a conflict of evidence between two witnesses. The task of resolving the conflict was for the tribunal. Even if the issue was whether or not there was positive evidence of no depression or a lack of evidence of depression, that is an issue for the Tribunal to decide. There is not an issue that the tribunal misunderstood the nature of the opinion it had to form or that it did not understand the true meaning of the words of the regulation. Even if it did, there would not be jurisdictional error (Re Minister for Immigration and Multicultural Affairs ; ex parte Cohen [2001] HCA 10 at 35).

24. In the circumstances, there is no jurisdictional error arising from the manner in which the tribunal concluded that the nominator did not have, at the time of application, a disability or prolonged illness which necessitated substantial assistance.

25. The second ground submits that in considering whether there were other serious circumstances the tribunal failed to consider all the factors in the aggregate as described in Su v. Minister for Immigration and Multicultural Affairs [2001] F.C.A 1409.

26. After concluding that the nominator did not have the necessary disability or prolonged illness, the tribunal said this in paragraph 50 of the reasons:

"The tribunal then considered whether the nominator's emotional and psychological needs alone or these needs together with the nominator's age, state of health, lack of family in Australia and lack of proficiency in English (which were matters raised before the tribunal) constituted `other serious circumstances' at the time of application."

27. The tribunal quoted from Hussein v Minister for Immigration and Multicultural Affairs (Federal Court, 5 November 1999, unreported) and Minister for Immigration v. Chan [2000 FCA 737].

28. The tribunal's reasons show that the member understood the correct test to be applied.

29. Paragraph 53 of the reasons says this:

"The tribunal accepts that the nominator may have been unhappy in her marital situation at the time of application. The tribunal accepts that the presence of her son in Australia was important emotionally and psychologically to her as she has no other family in Australia. The nominator was 54 at the time of application and had some health problems, which precluded her from doing certain physical tasks. In regard to her proficiency in English, the tribunal observed that the nominator had a sufficient understanding of English and notes the evidence of Dr Pilkington (who has treated the nominator since 1993) that the nominator has attended her surgery mostly on her own where communication about symptoms or treatments would have been in English. The separation of the nominator from her family resulted from her decision to migrate to Australia. On the evidence and applying Hussein and Wu, the tribunal has concluded that the nominator's circumstances at the time of application do not constitute `other serious circumstances'."

30. In this paragraph and in earlier paragraphs, the tribunal has referred to all of the matters which might be said to be relevant to the question of `other serious circumstances'. Even if some circumstances were not specifically referred to, it could not be said that the tribunal had failed to take into account. The tribunal has set out correctly the test to be applied and has applied that test. There is no jurisdictional error.

31. Apart from the circumstances of the nominator, a separate requirement of the definition of `special need relative' is that the Applicant must be willing and able to provide substantial and continuing assistance to the nominator.

32. In paragraph 55 of the reasons the tribunal said this:

"After considering the evidence given by the Visa Applicant, the nominator and Dr Pilkington, the tribunal finds that at the time of the application, the physical assistance needed by the nominator together with the emotional support, presence and companionship of the Visa Applicant, cannot be construed as meeting the requirement of providing substantial assistance as envisaged by regulation 1.03."

33. Even if the tribunal's findings in relation to disability or other serious circumstances showed jurisdictional error, this finding of itself justifies refusal of the Visa application and the tribunal's affirmation of that decision.

34. It follows that the application must be refused.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: Kwong S

Date: 28 October 2003
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