Ahmed v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicants are nationals of Fiji. Mr Mushtaq Ahmed applied together with his wife, Mrs Kamrul Nisa Ahmed, for a family (residence) (class AO) visa subclass 806 (family). The basis of the application was that the applicants were special need relatives in respect of their daughter, a Mrs Buniyadi Begum (the "nominator") who is an Australian citizen. 2 The case, as revealed in the visa application, was that the applicants wished to give "emotional and psychological support" to their daughter and her family in respect of the applicants' grand daughter, Famiza, whom the applicants claimed suffered from cerebral palsy. 3 To succeed in their application, it was necessary that the applicants establish that one or both of them was a special need relative as that expression was defined at the relevant time in reg 1.03 of the Migration Regulations 1994 (Cth) (the "Regulations"). The expression "special need relative" was defined as follows: "[I]n 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 Australia citizen, an Australian permanent resident or an eligible New Zealand citizen; or (ii) welfare, hospital, nursing or community services in Australia." 4 In support of the application, the applicants submitted certain documentary evidence of Famiza's condition. These included (i) a speech pathology initial assessment report dated 13 January 1999 by Liverpool Health Service; (ii) a paediatric occupational therapy assessment report dated 8 April 1999 by Fairfield Health Services; (iii) a referral form from Learning Links dated 11 May 1999 recommending speech pathology and some occupational therapy. For reasons which are unknown, no medical evidence was submitted to the Tribunal otherwise concerning Famiza's health or disabilities or indeed showing that she did suffer from cerebral palsy as was claimed, and the extent of that condition. 5 The material submitted by the applicants was considered by the Migration Review Tribunal (the "Tribunal") which decided that it should extend an invitation to the applicants to appear before the Tribunal in accordance with s 360 of the Migration Act 1958 (Cth) (the "Act"). Relevantly, s 360(1) provides that: "The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review." 6 The decision under review was a decision of a delegate of the Minister refusing to grant to the applicants the visas applied for. In accordance with section 360A of the Act, notice was in due course given by the Tribunal to the applicants of the time and place at which the applicants were entitled to appear. The hearing took place before the Tribunal on 17 January 2001. It is conceded on behalf of the applicants from the bar table that Mr Ahmed was sworn. It is not clear, because the transcript omits the early introductory material, whether or not the nominator was likewise sworn. 7 From the transcript, an extract of which was tendered without objection through an affidavit filed by the applicants' solicitors, it appears that at the very outset Mr Ahmed was asked by the presiding member whether he spoke English. He responded, "yes, probably not 100 percent". After some questions identifying the persons who were present at the Tribunal hearing, the Tribunal announced that it would commence the hearing at 10 past 11. It then asked Mr Ahmed, apparently, "you're following what I'm saying, are you?". Mr Ahmed responded in the affirmative. The Tribunal member then said, "because I'm concerned that if you don't follow you know we are going to end up having a problem because we don't have an interpreter. What's your native language?". Mr Ahmed's response is recorded as being indecipherable. 8 The Tribunal member then said, "pardon, I wonder if you can arrange to get an interpreter?". There was again an indecipherable response and subsequently Mr Ahmed said, "my daughter" indicating presumably that Mr Ahmed could arrange to have the daughter do the translation. The daughter intended to be present at the hearing and indeed as will appear was asked some questions at least by the Tribunal. At one stage, the Tribunal member asked the daughter whether Mr Ahmed understood what the Tribunal member was saying. The daughter responded that he did understand. Some small number of questions were then asked of Mr Ahmed. One of those questions was why he believed that Famiza required assistance. Mr Ahmed answered the question and the Tribunal member then turned to ask some direct questions of the daughter before very shortly afterwards stating that there was no basis for the application at all. 9 It may be said, to make these reasons easier to follow, that both the nominator and her husband worked during the day and it was the case of the applicants, apparently, that they would be available to look after Famiza, at least when she was home from school and/or assist in speech therapy and physiotherapy. Ultimately, the Tribunal asked the nominator whether there was anything else the nominator wished to say and received a negative response. The Tribunal then turned to Mr Ahmed and asked him whether there was anything else he wished to say. The response was apparently indecipherable. The Tribunal hearing concluded at 20 past 11, that is to say ten minutes after it had started. 10 The reasons of the Tribunal were dated some 13 days after the date of the hearing. The Tribunal noted that the documentary evidence, to which I have referred, disclosed disabilities of Famiza consistent with cerebral palsy although no medical evidence had in fact been submitted. On this point, the Tribunal said at para 37: "Evaluation of the evidence pertaining to the nominator's daughter reveals that the child appears to have a relatively mild form of cerebral palsy which manifests itself by speech impairment as well as some degree of lack of physical mobility. In arriving at this view of the child's disabilities the Tribunal has taken into consideration the reports by the speech therapist, the occupational therapist, the descriptions of the type of assistance required by the child and the fact that the child is attending normal school. …"