Basbas v Minister for Immigration & Multicultural & Indigenous Affairs

Judgment (4 paragraphs)

[1]

The application to the Court 12 In the amended application, filed on 12 February 2003, the applicant focussed on the Tribunal's approach to the phrase 'substantial assistance'. He contended that the Tribunal fell into error by misinterpreting or misunderstanding that criterion or by failing to deal with or to consider, properly or at all, that criterion. The error was said to amount to a violation of an imperative duty imposed on the Tribunal, or an essential pre-condition to the exercise of its power, or to the Tribunal asking itself the wrong question, identifying the wrong issue and failing to take account of relevant material. The applicant therefore contended that the Tribunal had made a jurisdictional error, sufficient to take its decision outside the protection of the privative clause in s 474 of the Migration Act. 13 Counsel for the applicant expanded on this theme in written submissions, and in oral argument at the hearing of the proceeding. He drew attention to the Tribunal's finding as to Ms Perkins's need for assistance. He argued that the Tribunal identified the need as one for emotional support and companionship. As the Tribunal identified evidence that Ms Perkins's other son did not desire to help her or have a close relationship with her, counsel submitted that the Tribunal must have accepted that the applicant was the only close relative who could and did supply emotional support and companionship to her. On this basis, counsel argued that the Tribunal could not fail to find that the applicant was providing substantial and continuing assistance to Ms Perkins at the relevant date, unless it misunderstood the nature of the criterion.

[2]

The nature of the proceeding 1 The applicant has invoked the jurisdiction given to the Court by s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Migration Review Tribunal ('the Tribunal'). The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs) (in both cases, 'the Minister') that the applicant was not entitled to the grant of a Family (Residence) (Class AO) visa, pursuant to the Migration Act 1958 (Cth) ('the Migration Act'). 2 The applicant is a citizen of the Philippines. Having come to Australia with a visa, he applied on 10 February 1998 for a Family (Residence) (Class AO) visa, on the basis that his mother, Maria Perkins, was a 'special need relative' who needed the applicant to care for her. On 9 January 2001, the Minister's delegate decided to refuse to grant the visa. The applicant applied to the Tribunal for review of that decision. On 14 August 2002, the Tribunal published a written decision and reasons for decision, affirming the delegate's decision. In respect of the Tribunal's decision, the applicant seeks writs of prohibition and certiorari, a declaration that the decision is invalid and an order remitting the matter to the Tribunal, differently constituted, for determination according to law. 3 The application to the Court, filed on 9 September 2002, named as applicant Maria Perkins. The respondent filed a notice of objection to competency and Ms Perkins applied by notice of motion to amend the title to the proceeding by substituting 'Froilan Basbas' for 'Maria Perkins'. On 19 December 2002, I made orders enlarging the time limited for the filing of the notice of objection to competency, but dismissing the objection. I also dismissed the notice of motion, but, of the Court's own motion, amended the title to the proceeding by substituting the name 'Froilan Basbas' for the name 'Maria Perkins' (see Basbas v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1602).

The Tribunal's reasons 7 The Tribunal had before it documentary evidence by way of a doctor's report, a psychologist's report and three letters from welfare organisations. It conducted a hearing on 18 July 2002 at which the applicant and Ms Perkins gave oral evidence. Further documents concerning the applicant's employment were also tendered. 8 The Tribunal found that the applicant had been nominated by his mother, who was a relative, within the definition in reg 1.03. It also found that Ms Perkins was an Australian citizen. 9 On the basis of the medical evidence, the Tribunal found that Ms Perkins had been suffering from anxiety, with at times depressive features, from the time of her husband's death until the date of the Tribunal's decision. It was therefore satisfied that Ms Perkins had a long-term need for assistance, because of a prolonged illness, at the time of the visa application. As to this need, the Tribunal said: 'The nature of her need was medical treatment and counselling which she obtained from her general practitioner and a senior welfare officer at her local community health service. She also needed emotional support, companionship and some practical assistance with transport, which she obtained both from her friends and the visa applicant.' 10 In its reasons for decision, the Tribunal then dealt with the question whether the applicant was willing and able to provide 'substantial and continuing assistance' to Ms Perkins. After referring to the judgment of the Full Court in Narayan v Minister for Immigration & Multicultural Affairs [2001] FCA 1745, in relation to the meaning of 'substantial', the Tribunal summarised the evidence as to the assistance given by the applicant. With reference to the assistance provided by the applicant to Ms Perkins at the time of making the application for the visa, the Tribunal said: 'The evidence pertaining to that time is that the visa applicant provided companionship and emotional support through his presence in the house, especially by being in the house at night. His help with practical tasks was minimal and consisted of driving the nominator to the doctor's when needed.' 11 The Tribunal then pointed out that the applicant was in full-time employment for a number of periods after that date. The Tribunal went on: 'Taking all the circumstances into account, the Tribunal accepts that the visa applicant was willing and able to provide assistance to the nominator mostly in terms of companionship and emotional support at the time of the visa application. The Tribunal acknowledges the comfort the nominator derives from the presence of her son in her home and his companionship. However the Tribunal finds that the degree and nature of the assistance, which the visa applicant was providing to the nominator, falls short of being "substantial" within the meaning of the regulation. Therefore the Tribunal finds that the visa applicant does not fall within the definition of a special need relative and the application cannot succeed.'

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Judgment (4 paragraphs)

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