Alameddine v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant arrived in Australia on 27 October 1992 on a visitor's visa. On 2 September 1993 he lodged an application to remain permanently in Australia. The grounds on which the application was made do not appear with clarity from the application form, as none of the sections of the form which relate to the grounds of the application have been completed. However, Mustapha Alameddine nominated the applicant for permanent residence in Australia because he is a "remaining relative". 2 The applicant was born in Lebanon in 1945 and was ordinarily resident in Lebanon until he came to Australia in October 1992. He has a brother - Musbah Alameddine - who lives in Lebanon - but Immigration Review Tribunal ("IRT") accepted that Musbah did not acknowledge the applicant as a brother, and had swindled the applicant out of his inheritance. IRT found that there has been little, or no, contact between the applicant and Musbah for about twenty years. 3 The applicant's mother died when he was about eight years old. A few years later his father remarried to Badric Alameddine. There were five children of the remarriage - four boys and one girl. The applicant's father died in the war in Lebanon. In 1977 the applicant's stepmother and her five children migrated to Australia, and they continue to reside here. 4 Mustapha Alameddine is a stepbrother of the applicant. There was material before IRT which indicated that the applicant's four stepbrothers, and his stepsister "give support and full sponsorship to [the applicant] to stay with us in Australia". 5 There was also material before IRT in the form of an interim psychologist's report to which there is no specific reference in IRT's reasons for decision. That report is capable of leading to a conclusion that the applicant's stepmother suffers from a general anxiety disorder, and/or post traumatic stress disorder, the symptoms of which may have been brought on by the news that the stepson's case was going to IRT. The report states that the generalised anxiety disorder will get worse if her stepson goes back to Lebanon. 6 The application to remain permanently in Australia was refused on 15 January 1998. On 16 June 1998 an internal review resulted in an affirmation of that decision. On 20 May 1999 IRT affirmed the primary decision. 7 IRT approached the matter on the basis that the applicant's claim was grounded in subclass 806. The requirements of subclass 806 would be satisfied if the applicant is:- · an aged dependent relative, or · an orphan relative, or · a remaining relative, or · a special need relative of a person who: (a) is a settled Australian citizen or a settled Australian permanent resident; and (b) is usually resident in Australia; and (c) has nominated the applicant for the grant of the entry permit. 8 So far as the applicant's claim on the ground of "remaining relative' is concerned, IRT found that par 1.11(1) of the definition of "remaining relative" was not satisfied, because the applicant was disqualified under subregulation 1.11(2). Disqualification under reg 1.11(2) occurs if (inter alia) the applicant usually resides in the same country, not being Australia, as his brother. The applicant usually resided in Lebanon, as did his brother, and the fact that the two had been estranged for about twenty years is irrelevant: Hunt v Minister for Immigration & Ethnic Affairs (1993) 113 ALR 509 at 515-516. 9 The application for an order of review challenged this conclusion. The applicant there alleged that he was aggrieved by IRT's decision because he considers himself as the remaining relative of an Australian citizen. However, when the matter came on for hearing the applicant's counsel expressly abandoned this ground of review, and accepted that the applicant is not within the description of a "remaining relative". This is a concession which, in my view, was correctly made. 10 As to the other grounds on which subclass 806 might be enlivened, IRT said: "The only subclass in respect of which any claims have been advanced is subclass 806, which could be granted on 1 of 4 grounds: 'aged dependent relative', 'orphan relative', 'remaining relative' (the claimed ground) and 'special need relative'. There is no evidence to suggest that the applicant meets the other grounds for a subclass 806 visa ..." 11 The applicant submits that the quoted passage indicates that there has been a failure to comply with s 368(1)(b), (c) and (d) of the Migration Act 1958 ("the Act") inasmuch as IRT "did not properly give the reasons for its decision", nor set out its findings on material questions of fact, nor refer to the evidence on which the findings of fact were based. It was submitted that the psychologist's report, referred to above, is evidence which would support the ground of "special need relative". The application for an order of review did not advert to these grounds, but the respondent raised no objection on this account. 12 There is ample authority for the proposition that a failure to comply with provisions analogous to s 368(1), particularly s 430, will enliven the ground of review provided for in s 476(1)(a) of the Act: see eg De Silva v Minister for Immigration & Multicultural Affairs [1999] FCA 1074 at par 46. 13 There is no foundation in the materials before the IRT capable of sustaining the proposition that the applicant is an "aged dependent relative" or an "orphan relative" as those terms were defined in the Migration (1993) Regulations. No submission was put to me as to how the applicant might conceivably bring himself within those categories. If IRT was bound to deal with those categories at all, it could not reasonably be expected to say more in relation to them than in fact it did. 14 "[S]pecial need relative" was defined in the Migration (1993) Regulations as follows: "'special need relative', in relation to an Australian citizen usually resident in Australia or an Australian permanent resident 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 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: (i) cannot reasonably be obtained from any other relative of the citizen or resident, being a relative who is an Australian citizen or an Australian permanent resident; and (ii) cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia." 15 The application for permanent entry was with respect to a number of categories, including category 806 "Family and Other Close Ties". Clause 806.711 requires that the application must be made in accordance with approved form 887. This form stipulates that if the applicant is applying as a special need relative, Section F should be completed by the applicant, and Section I by the nominator. 16 Section F was not completed, and appears to be crossed through, although it does not appear when or by whom that was done. Whilst the section dealing with nomination was completed by and with respect to Mustapha Alameddine, it was not completed by or with respect to the applicant's stepmother. The whole thrust of the materials placed before IRT, with the possible exception of the psychologist's report, was directed to the position of the applicant and the deserving nature of his claim to join his Australian stepfamily which loved him and was willing to support him. 17 IRT did not reject the claim on the basis that it was not made in accordance with the approved form, or that the form was inappropriately completed. Nor did it reject the claim upon the basis that the applicant's stepmother had not nominated the applicant for the grant of an entry permit. It is reasonably clear that the application was made with her support. 18 If the application was defective in any of those respects, it may be that the defect was capable of cure by amendment. No submissions were put on the matter of potential amendment of the application and I express no view in relation to it. If only for that reason, I do not think that I should simply assume that IRT would have rejected the claim on these grounds absent an explicit finding to that effect. There is no such finding. 19 IRT's decision was that there is no evidence "to suggest that" the "special need relative" category is attracted, but it does not say why this is so. In order to satisfy the definition of "special need relative" in the circumstances of the present case, the applicant would need to show: - that his stepmother has a long term need for assistance because of disability, prolonged illness or other serious circumstances affecting her; - that the applicant is willing and able to provide substantial and continuing assistance to his stepmother; - that the assistance cannot reasonably be obtained from her children, or from welfare, hospital, nursing or community services in Australia. 20 Although IRT does not specifically advert to the interim psychologist's report, I do not think that I should assume that it has overlooked it. The report bears the date 11 May 1999, and a hearing was conducted on 20 May 1999, where the applicant was assisted by an interpreter and by his stepbrother, Dr Alameddine. Rather, I think that I should proceed on the basis that IRT found that the material in the report, even if totally accepted, when taken in conjunction with the other materials before it was incapable of bringing the applicant within the category of "special need relative". IRT treated the categories of "aged dependent relative", "orphan relative" and "special needs relative" in a dismissive manner, which would only be justified if a contention that the applicant was within those categories could be described as one not worthy of serious consideration: cf Borg v Minister for Immigration & Multicultural Affairs [1999] FCA 588, par 26-29. 21 IRT proceeded upon the basis that it ought to consider whether the other categories in category 806 were attracted, even though the claimed ground was, in its view, that of "remaining relative": Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 160 ALR 24, 56 and Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247, par 23, indicate that the nature of the inquisitorial process undertaken by bodies such as IRT is such that IRT should not limit its determination to the "case" articulated by an applicant, if the material before IRT raises a case on a basis which the applicant has not articulated. Thus even if the claimed ground was that of "remaining relative", IRT would be obliged to consider the other categories, if the material before it raised a case based on those categories. 22 If the psychologist's report was apparently probative material capable of supporting the contention that the applicant was within the category of "special need relative", then it would have been incumbent on IRT to explain why it declined to act on the basis of that material. In those circumstances, a statement that there is no evidence to that effect would be obviously inadequate and/or erroneous, and such as to give rise to a reviewable error, probably on more than one ground. 23 However, in my view IRT did not err when it found that there was no evidence before it to suggest that the applicant was within the category of special need relative. The material in the psychologist's report was incapable of sustaining a conclusion to that effect. It does not establish any of the three matters which the applicant would need to show as summarised in par 19 above. In particular, it cannot be meaningfully said that the applicant renders "assistance" to his stepmother in relation to a disability by remaining in Australia, simply because her anxiety condition would be exacerbated should he return to Lebanon. 24 There is nothing in the material which would suggest that the issue of a "special need relative" was raised by the applicant for IRT's consideration. It was not raised in this Court in the application for an order for review. It has all the hallmarks of an afterthought. In Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 1126 at par 56 Drummond J suggested that an applicant in proceedings before RRT is expected, like litigants in ordinary litigation, to raise for the Tribunal's consideration all matters relevant to his or her being granted the relief he or she seeks. There may be some tension between this observation and the cases referred to in par 21 above. But whether this be so or not (and his Honour's observations are consistent with the statement in the joint judgment of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 162 ALR 1 at [187]), in my opinion a correct statement on the part of IRT that there is no evidence to suggest that the applicant meets the other grounds for a subclass 806 visa is a sufficient compliance with s 368 of the Act, and is not otherwise indicative of reviewable error. 25 The application is dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.