The correctness of the Tribunal's approach
14 There is no doubt that, in order to grant the applicant the visa she sought, the Tribunal had to be satisfied that the applicant met all of the criteria for that visa. Section 65 of the Migration Act provides that the visa must be granted if the decision-maker is satisfied that various matters have been satisfied, including the criteria for the particular visa prescribed by the Migration Act or the Migration Regulations. If not so satisfied, the decision-maker is bound to refuse to grant the visa.
15 As I have said, item 806 in the Second Schedule to the Migration Regulations contained criteria to be satisfied at the time of application and criteria to be satisfied at the time of decision. Both kinds of criteria had to be satisfied in order for the visa to be granted. Accordingly, if the Tribunal found that any one of the criteria to be satisfied had not been satisfied, it was bound not to grant the visa, but to affirm the decision of the delegate of the Minister to refuse to grant the visa. In this case, the Tribunal did so find.
16 The Tribunal's reasoning is not easy to follow, perhaps because it is expressed poorly. Dealing with the question whether Ms Sahin had a prolonged illness, the Tribunal considered medical evidence submitted after the making of the application and pronounced its satisfaction in the present tense as to the existence of a prolonged illness.
17 The manner in which the Tribunal dealt with the second question, whether the applicant was willing and able to provide substantial and continuing assistance to Ms Sahin, was unclear. In the passage in its reasons for decision, quoted in [7] above, the Tribunal analysed the evidence for the purpose of determining whether Ms Sahin had a need for substantial and continuing assistance. It appears to have taken the view that Ms Sahin's need for assistance was not such as to require assistance at a level falling within the meaning of "substantial ... assistance" for the purposes of reg 1.03. The Tribunal did not express a conclusion on this point, but went on to discuss in some detail Narayan v Minister for Immigration & Multicultural Affairs [2001] FCA 1745, before dealing with the next issue.
18 In dealing with the third issue, whether the assistance could reasonably be obtained from another relative or other services, the Tribunal again looked at evidence of matters that had occurred after the making of the application. It expressed itself in the present tense as to whether assistance could not reasonably be obtained from either the father of Ms Sahin's children, or from welfare or community services available.
19 The Tribunal then expressed its conclusion as to the failure of the applicant to satisfy the definition of "special need relative" at the time of the application. It did so by saying:
"The Tribunal finds on the evidence available to it that 1.03(b) is not satisfied, that assistance cannot reasonably be obtained from either the father of the nominator, or from welfare or community services available."
Because of the opening words of this sentence, I am prepared to act on the assumption that the Tribunal was reaching a conclusion adverse to the applicant on the question of the application of that part of the definition of "special need relative" appearing in reg 1.03(b). The words following "satisfied" appear to be a clumsy attempt to express a finding that the applicant had failed to show, in the words of the regulation, that "the assistance cannot reasonably be obtained from" the sources to which the Tribunal referred. I also assume that the reference to "the father of the nominator" is a reference to the father of Ms Sahin's children, not to Ms Sahin's father, of whom no mention had been made.
20 Those who invoke the powers of the Tribunal to review decisions of delegates of the Minister unfavourable to them are entitled to expect greater clarity in the Tribunal's written reasons than is to be found in the present case. Despite the lack of clarity of the Tribunal's reasoning and the inadequacies of its expression, however, it cannot be said that the Tribunal fell into error of a kind going to jurisdiction. This was not a case in which the material before the Tribunal suggested that Ms Sahin's condition had improved between the time when the applicant applied for her visa and the time of the Tribunal's consideration. There is nothing illegitimate about the Tribunal relying on evidence of subsequent events to the extent to which they cast light on the facts as they existed at a particular time. The Tribunal's survey of the subsequent evidence could only have been of benefit to the applicant, and not to her detriment. The evidence she provided at the time of the application for a visa was minimal. If the Tribunal had been able to find among the other evidence material that supported the proposition that the applicant satisfied the definition of "special need relative" at the time of application, the applicant would have been assisted. The Tribunal was unable to find sufficient material.
21 The contention that the Tribunal failed to consider the evidence is not made out. Indeed, the Tribunal gave considerable attention to the evidence, not only of the applicant as to what she did for Ms Sahin and of Ms Sahin as to her condition and needs, but also to each of the documents submitted. Apparently, the Tribunal was not persuaded that Ms Sahin's condition was sufficiently serious to require a level of assistance from the applicant that could be described as "substantial" for the purposes of the definition of "special need relative". On the evidence, it was open to the Tribunal to reach that conclusion. Likewise, it was open to the Tribunal to reach the conclusion that the kind of assistance required by Ms Sahin was assistance available from persons other than the applicant. It was obviously significant, in the view of the Tribunal, that much of the assistance given by the applicant was in looking after Ms Sahin's children. It was open to the Tribunal not to be satisfied that the possibility that their father would care for the children had been excluded and that community services were unavailable or unsuitable for Ms Sahin. The Tribunal was not shown to have ignored any relevant material.
22 The Tribunal made no error in deciding that it was unnecessary for it to consider whether the applicant satisfied the definition of "special need relative" at the time of the Tribunal's decision. As I have said, it was necessary that all the criteria be satisfied. A failure to satisfy a criterion applicable to the time of application was sufficient to disqualify the applicant from entitlement to the visa and the Tribunal made no error in declining to consider the case further when it had reached this view.
23 Given the Tribunal's finding that it had not been shown that any assistance required by Ms Sahin was not available from sources other than the applicant, its failure to make a specific finding as to whether the applicant was willing and able to provide substantial and continuing assistance is not fatal to the validity of its decision. If the applicant did not come within one element of the definition of "special need relative", she did not come within the definition.
24 The contention that the Tribunal failed to apply itself to the question to be decided, or to interpret the meaning of substantial assistance cannot be sustained. The Tribunal did not equate substantial assistance with twenty-four hour assistance when it made its finding that there was not sufficient evidence of a need for twenty-four hour assistance. It was merely responding to the Turkish Association's statement that it could not provide twenty-four hour assistance by saying that it was unable to find that there was sufficient evidence of a need for twenty-four hour assistance.
25 The late submission as to the Tribunal considering the evidence from the aspect of proof beyond reasonable doubt requires some explanation. No reference to any such standard of proof appears in the Tribunal's reasons. An examination of the transcript of the hearing before the Tribunal discloses that the Tribunal member questioned both the applicant and Ms Sahin about whether Ms Sahin's former husband took any interest in the children. Late in the hearing, when the solicitor assisting the applicant was making submissions to the Tribunal, the Tribunal raised the question of the responsibility of the children's father. The transcript records the interpreter interrupting the exchange and saying, with respect to the father, "he is a drug user and he uses you know, guns and weapons ...". The Tribunal pointed out that there was no evidence of that and suggested that it was not possible to accuse someone of being a drug user and criminal without some evidence. The interpreter responded, "I couldn't possibly get evidence for that anyway." It was not clear whose evidence the interpreter was interpreting. The exchange continued in a manner that made it clear that the interpreter had at least begun to interpret evidence given by Ms Sahin. She then explained that she had
found out that her husband was using drugs six months after she had married him, that he was taking tablets and marijuana, and that he had an old pistol that perhaps was not working.
26 In its reasons for decision, the Tribunal referred to the fact that Ms Sahin had stated that her husband, the father of the children, was on drugs and wanted no responsibility for the children, but pointed out that there was no other evidence that he was unable or unwilling to assist them. There is no evidence at any stage that the Tribunal required proof of anything to a standard of beyond reasonable doubt. The Tribunal member's initial reaction to the attempt to give evidence about drugs and weapons may have been ill-considered, but the Tribunal member appears to have reconsidered the situation and to have been content to receive the evidence from Ms Sahin. As I have said, it made a finding as to what was said. The finding does not reveal whether the Tribunal accepted the evidence. It merely referred to the evidence in the context of its finding of the absence of comprehensive evidence about the father's availability and willingness to assist his children. The submission that the Tribunal applied a strict standard of proof cannot be sustained.