Biyiksiz v Minister for Immigration & Multicultural & Indigenous Affairs

The legislation 5 The criteria to be satisfied by the applicant, in order for her to obtain the residence visa, were found in subclass 806 in Sch 2 to the Migration Regulations 1994 (Cth) ('the Migration Regulations'). Among the criteria applicable to the applicant were requirements that had to be satisfied at both the time of her application for the residence visa and at the time of decision on that application. They included the requirement in item 806.213: 'The applicant is...a special need relative of another person who: (a) is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and (b) is usually resident in Australia; and (c) has nominated the applicant for the grant of the visa.' 6 The definition of 'special need relative' was found in reg 1.03 of the Migration 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'. 7 From time to time, the Department of Immigration and Multicultural Affairs (now the Department of Immigration and Multicultural and Indigenous Affairs) issues to those required to make decisions under the Migration Act, including the Tribunal, statements of departmental policy, in the form of a Procedures Advice Manual. At the time when the Tribunal considered the applicant's case, the relevant statement of departmental policy was contained in a document called Procedures Advice Manual 3 ('PAM3'). In relation to that element of the definition of 'special need relative' found in par (b), PAM3 said: '1. The policy intention is as follows: · A person is not a special need relative if substantial and continuing assistance can REASONABLY be obtained from · another relative who is an Australian citizen, Australian permanent resident or eligible New Zealand citizen; or · appropriate welfare, hospital, nursing or community services in the area where the Australian relative lives. If another relative or the appropriate service is not available, the Australian relative may seek the assistance of a relative overseas who is willing and able to provide the service to the level required. If · another relative resides near the Australian relative but is unwilling to provide assistance; or · the service is available in Australia but not where the Australian relative lives; the visa decision maker must form an opinion on the information available whether it would be REASONABLE to decide that, for practical purposes, the special need cannot be met by that other relative or welfare/community services. 2. "Reasonable" should be given its usual dictionary meaning. This may be described as using commonsense, being practical or sensible, using logic, being judicious or prudent.'

The material before the Tribunal 8 The Tribunal had before it a substantial quantity of material, by which the applicant sought to establish that only she could care for her mother appropriately. There was material relating to the mother's state of health. There was material to the effect that no other member of the family could care for her, mainly because each of the applicant's brothers had other family responsibilities. There was also material suggesting that the mother would be unable to reside in a nursing home without serious difficulty. The material suggested that the applicant's mother is of Kurdish ethnic origins and an adherent of the Alevi religion. Alevi Kurds are a minority group in Turkey. For historical, cultural and religious reasons, they would not seek help from outside their own community. The applicant's mother was further handicapped by having no English, speaking Kurdish and a rare dialect of Turkish, and being illiterate. To some extent, the material explored the availability of facilities in which it might be thought that the applicant's mother could live. Reference was made to the Ottoman Turkish Elderly Village in Broadmeadows ('the Turkish Village'), but it was asserted that this was owned and run by a mosque, and that an Alevi could not live in a facility run by Sunni Muslims, and in which the overwhelming majority of residents were Sunni Muslims. 9 The Tribunal explored the issues raised by this material in its hearing on 13 December 2002, at which the applicant, her mother, and one of her sons gave evidence. After the hearing, by letter dated 30 January 2003, pursuant to s 359A of the Migration Act, the Tribunal invited the applicant to comment in writing on information put to her in these terms: 'Following the hearing, on 13 December 2002 an officer of the Tribunal contacted the Ottoman Turkish Elderly Village nursing home to make enquiries in relation to the running of the home. The Tribunal officer was informed that the nursing home is run by the Islamic Society however the home is secular in nature and no one is required to participate in any religious activities. Ramadan is not observed if a resident does not wish to do so. The Village has had residents with Kurdish and or Alevi backgrounds in the past however at present there are none. The waiting list is in 2 parts - for those requiring a high degree of care there is a long wait and for those requiring a low level of care the wait is approximately 3 weeks. The cost is $28-08 per day and is connected with pension rates. Additionally, on 24 January 2002 an officer of the Tribunal contacted the Kurdish Welfare Association of Victoria in relation to potentially suitable nursing home accommodation for the visa applicant. The officer contacted the Roxborough Nursing Home in Lightwood Street Meadow Heights and was advised that the home currently has Kurdish residents and that 2 of their nursing sisters speak Kurdish. The nursing home is run by the Moran Group, a secular organisation. The officer was advised that waiting lists at the home vary according to needs; a person categorised as 'concession', i.e. a pensioner, would probably have to wait about 3 to 4 months for a place. Normally the home charges 85% of the resident's pension although this is subject to an income and assets test. Residents requiring extra services have a waiting list of approximately 6 to 12 months.' 10 The applicant responded to this request by a statutory declaration made on 6 March 2003. With respect to the Turkish Village, the applicant said: 'I know that the Ottoman Elderly Village nursing home is secular in nature and no-one is required to participate in any religious activities. It is common knowledge that the reality is that most of the residents are religious and observe religious practices. The Village is run by the Mosque and most Muslims who attend the Mosque and are very religious prefer to send the elderly to this Village. The Islamic religion is a way of life. The majority of people in the village will have a common understanding because of their religious beliefs and my mother would be isolated and singled out. Probably some of the residents will make remarks about her Kurdish and Alevi background and she could be discriminated by [sic] the residents, even if such discrimination is in the form of leaving her out or ignoring her. Further, simple things such listening [sic] to Alevi music would offend the other residents.' 11 The applicant went on to say that she and her son had made inquiries and that there were at that time no residents at the Turkish Village with a Kurdish or Alevi background. She also asserted that her son had discovered that there was only one person whose parents were Kurdish working at the Turkish Village, but the person did not speak Kurdish at all. The applicant drew attention to the problem of delay in taking up a place and raised the question of who would care for her mother while she was waiting for a place. 12 With respect to the Roxborough Nursing Home, the applicant claimed that she and her son had discovered that only one nursing sister at the home spoke Kurdish and she was a casual, working two days a week. The applicant pointed out that there was no permanent Kurdish-speaking position, so there was no guarantee that, if the particular employee left, she would be replaced by another Kurdish-speaking employee. The applicant further asserted that her mother would have to wait between six and twelve years for a place at the Roxborough Nursing Home, not six to twelve months. She referred to the possibility of a place within one or two years, at a cost of $107 000 and said that the family was unable to afford this. She said that her son had discovered that there were two sections of the Roxborough Nursing Home, one for the rich and one for the poor. The poor area, where her mother would be relegated, was very depressing, bare and sad. The woman in charge of the place was nasty and aggressive. The applicant said that it would be beneficial for the Australian aged community if she were allowed to care for her mother, as this would enable a place to open up for someone else.

The Tribunal's reasons 13 The Tribunal made several findings of fact favourable to the applicant. It was satisfied that the applicant had been nominated by her mother, who satisfied those elements of the definition of 'special need relative' that required that she be a relative of the applicant and that she be a permanent resident of Australia. The Tribunal was satisfied that, both at the time of application and at the time of decision, the applicant's mother did suffer from prolonged illness affecting her personally and that she required assistance which was substantial and continuing. The Tribunal found that the applicant was willing and able to provide substantial and continuing assistance to her mother at the time of application and at the time of decision. It accepted that, because all of the mother's relatives in Australia, other than the applicant, were male, for cultural reasons it would be unreasonable to expect them to provide assistance to her with matters of hygiene. The Tribunal found that the applicant's father was not able to provide this kind of assistance at the time when the application was made, because of his own illness, and that he had since passed away. 14 The result was that the issue became one of the application of that part of the definition of 'special need relative' that appears in par (b)(ii). The Tribunal reached the conclusion that it was not satisfied that the assistance could not reasonably be obtained from welfare, hospital, nursing or community services in Australia. The reasoning of the Tribunal on this issue is set out in full: 'In relation to paragraph (b)(ii), the representative submitted that the nominator would not accept accommodation at the Turkish nursing home at Broadmeadows as she is of Kurdish origin and the nursing home is run by the mosque at Broadmeadows. Otherwise it is claimed that the nominator is very traditional, does not speak English, and would not accept help from strangers. However, at the Tribunal's hearing the visa applicant stated that the nominator was unable to stay with others. There were no other reasons for her reluctance but she said she would not go. She wanted to stay with the visa applicant. The nominator would not be comfortable. The nursing home charged money at the beginning of the year and they could not afford to pay. The Tribunal asked if there were any religious reasons that the nominator did not wish to stay in the nursing home. The visa applicant stated that she had not seen the place. The Tribunal asked if it was run by Sunni Muslims. The visa applicant stated that some places were Sunni and some were Kurdish. She thought that there was a Kurdish place somewhere in Falkner [sic] or North Coburg. The nominator did not want to go somewhere where there were a lot of people. The nominator just wanted the visa applicant to look after her. The Tribunal asked the nominator whether she had thought about going into a nursing home. The nominator stated that she wanted the visa applicant to look after her. She had stayed in a hospital before for three weeks. She knew that she could not go to places like that because she was sick. If it was not for her daughter she would go but she did not know the nursing home. Mr Biyiksiz stated that it would not be reasonable because of the nominator's past life. The visa applicant was looking after her.

The Tribunal undertook further investigations and found that the Turkish Ottoman Elderly Village Nursing home was run by a secular organisation. Additionally, the Roxborough Nursing Home in Lightwood Street, Meadow Heights had Kurdish residents and Kurdish speaking nursing sisters. The visa applicant stated that the Kurdish speaking staff were casual and there was no guarantee that if they left, they would be replaced with other Kurdish speakers. The visa applicant stated that the Kurdish speaking nurse was from Kayseri and did not speak the nominator's language. However the nominator spoke through a Turkish interpreter at the Tribunal's hearing without difficulty. The visa applicant made other observations in relation to the two nursing homes, the financial commitments required and the level of comfort which would be felt by the nominator. However, the information provided to the Tribunal by these agencies is that the fees are linked to the resident's pension and the Tribunal does not consider her, or her family's, financial situation to prevent her from accessing these services. Additionally, although the visa applicant claims that the nominator would be unable to obtain a place at the Roxborough Nursing Home for 6 to 12 years, this was not the advice given to the Tribunal. Moreover, the visa applicant's son lives in the same suburb as that in which Roxborough Nursing Home is situated and the Tribunal does not consider it unreasonable to expect him and his family to visit her there. The Tribunal appreciates that, particularly after seven years, the nominator, the visa applicant and their family feel that the only appropriate care for the nominator is that which can be provided by the visa applicant. This is the level of care to which the nominator has become accustomed and both she and the visa applicant are happy with the current arrangements. However, the question for the Tribunal under paragraph (b)(ii) of the definition of a special need relative is not whether the preferable method of care can be provided by welfare, hospital, nursing or community services in Australia. It is also not, whether, as a matter of policy it is preferable for the aged to remain in their own home for as long as possible. The question is whether the assistance required cannot reasonably be obtained through those agencies. The Tribunal is not satisfied that this was the case at the time of application. In light of the Tribunal's further inquiries as to the availability of such care, the Tribunal is also not satisfied that the assistance required by the nominator could not reasonably be obtained from welfare, hospital, nursing or community services in Australia at the time of decision. The visa applicant does not satisfy paragraph (b)(ii) of the definition of special need relative at the time of application nor at the time of decision. Therefore she does not meet the definition of special need relative, nor of any other category for the purposes of clause 806.213. She also does not continue to do so at the time of decision and therefore does not meet clause 806.221.'

The applicant's case 15 In her original application, the applicant challenged the Tribunal's decision only on two grounds, failure to observe proper procedures and procedural unfairness. Before the hearing of the proceeding, she filed written contentions of fact and law, dealing both with the two grounds referred to in the application and with an additional argument, raising error of law, and expressed as follows: 'The Tribunal erred both in interpreting and in applying the law in that it did not properly interpret and apply the legislative requirement that "the assistance required cannot reasonably be obtained" through public agencies. In effect, the Tribunal asked itself the wrong question in that it did not properly consider the nature of the special need relative's needs whereas it applied a blanket test as to the broad availability of health services through public agencies.' 16 The only argument put by counsel for the applicant at the hearing of the proceeding was the argument that fell within this additional contention. In substance, it was the argument that the Tribunal misapplied the definition of 'special need relative' by looking only at the availability of services that might meet the needs of the applicant's mother, but not looking at whether it was reasonable for the applicant's mother to avail herself of those services. In substance, as I understand the argument, it is an argument that the Tribunal failed to take into account a relevant consideration, namely the question whether the assistance required by the applicant's mother was such that it could not reasonably be obtained from welfare, hospital, nursing or community services in Australia. If the applicant is to succeed in relation to this argument, it will be necessary for her to amend her application, so that this ground is included.

The meaning of 'cannot reasonably be obtained' 17 It cannot have been the intention of the framer of the Migration Regulations that the residence visa should be available to no-one, or should only be available in the rarest of cases. In Australia, health and welfare services are highly developed. There must be very few disabilities or prolonged illnesses for which assistance is unavailable from health or aged care institutions and professionals. If par (b)(ii) of the definition of 'special need relative' were to be construed as meaning that assistance reasonably available was reasonably obtainable in every case, there would be very few, if any, visas granted. For this reason, to accord with the purpose of the Migration Regulations in this respect, it is necessary to construe 'cannot reasonably be obtained' as 'cannot reasonably be obtained by the person requiring assistance'. It is necessary to recognise that this aspect of the definition of 'special need relative' focuses on obtainability by the person requiring assistance, as distinct from availability to the person requiring assistance. 18 InIssa v Minister for Immigration & Multicultural Affairs[2000] FCA 128 at [12], Madgwick J said: 'It occurred to me that the Tribunal member may have misdirected herself by focussing on whether the other Australian relatives and/or welfare services could reasonably make their support available to the applicant, rather than whether she could reasonably obtain it from them. This is not mere semantics. There would be many families in which, if they were minded to, the children could provide a high level of care for a parent, but in which in practice they might not be willing to do so. In such a case the applicant might be quite unable to obtain care and support from their children.' 19 Lin v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 606 was a case concerned with the definition of 'carer' now found in reg 1.15AA of the Migration Regulations. (Provisions relating to visas falling within the definition of 'carer' have replaced those that were applied in the applicant's case, since the Tribunal dealt with the applicant's case.) The current provision in reg 1.15AA(1)(e) is in the same terms as par (b) of the definition of 'special need relative'. In Lin, Branson J said at [30]: 'In my view, the language used by the Tribunal in this case supports Mr Karp's contention that the Tribunal misinterpreted and misapplied the criterion in subpara 1.15AA(1)(e)(i). The findings of the Tribunal…indicate that the Tribunal member did not recognise the distinction identified by Madgwick J in Issa v MIMIA. The Tribunal asked whether Mr Guo's relatives "cannot reasonably provide some assistance" rather than whether Mr Guo cannot reasonably obtain assistance from them. I agree with Madgwick J that the distinction is not merely semantic. The failure to make the distinction led the Tribunal to misapprehend the significance of the criterion in the light of the evidence before it. The Tribunal did not consider whether, and if so how, Mr Guo can reasonably obtain assistance from relatives in Australia who are apparently not minded to provide him with assistance.' 20 The same reasoning must apply to that part of the definition of 'special need relative' in par (b)(ii). The words 'cannot reasonably be obtained' must be construed by reference to reasonableness from the point of view of the person requiring assistance, and not only by reference to the reasonable availability of the assistance from other sources. This proposition accords with my own view of the purpose of the definition of 'special need relative' in the context of the criteria for a visa of the kind sought by the applicant. 21 For this reason, factors that are subjective to the person requiring long-term assistance will be of relevance in determining whether assistance can reasonably be obtained by that person from sources other than an applicant for the relevant visa. To the extent to which the passage I have quoted in [7] from PAM3 suggests to the contrary, it is inconsistent with the provisions of the Migration Regulations, and cannot override those provisions.

Evaluation of the Tribunal's approach 22 There can be no doubt that the Tribunal focused heavily on the availability of external assistance for the applicant's mother in the present case. Its reasoning in pars 66 and 67 of its reasons for decision is directed towards minimising obstacles to the availability of the requisite assistance from either of the two places it discussed. The Tribunal clearly thought that considerations such as that the applicant's mother wished to stay with the applicant and would not be comfortable in a nursing home had no weight. Similarly, the Tribunal obviously thought that the fact that the applicant's mother had given evidence to the Tribunal through a Turkish interpreter eliminated any issue of language barriers to her residence in a nursing home. It is plain from par 68 of the Tribunal's reasons that this was the nature of the reasoning of the Tribunal. In that paragraph, it expressly rejected the preferable method of care as a question for it. It also rejected as a consideration the question whether it is preferable for an aged person to remain in her own home for as long as possible. 23 In my view, in these respects, the Tribunal fell into error. It considered the question whether assistance could reasonably be obtained from welfare, hospital, nursing or community services from the point of view of the availability of assistance from those services, and did not consider whether the assistance was reasonably obtainable by the applicant's mother from those services. To do so, it would have been necessary for the Tribunal to consider the preferable mode of care for the applicant's mother, including in particular her preference for being cared for in her own home by her own daughter. The Tribunal was also bound to give weight to financial circumstances and to the question of the comfort of the applicant's mother. It was bound to consider whether she would have been uncomfortable as a Kurdish Alevi forced to live among others who were predominantly Turkish-speaking Sunni Muslims. It was not enough for the Tribunal to say that whatever discomfort this gave rise to might have been reduced if one or two people on the staff of the institution concerned spoke Kurdish. It had to consider the matter from the point of view of the applicant's mother. The Tribunal was also bound to take into account any period of delay in the admission of the applicant's mother to the Turkish Village, or to any other place that might have been available to her. Given that the applicant's mother was found to need a level of care sufficient to meet the other elements of the definition of 'special need relative', the question of how she would be cared for if the applicant failed to obtain a visa and had to leave Australia within a short time of the decision assumed some importance. 24 The Tribunal made no finding about many of these matters and did not mention many of them in its evaluation of the applicant's case. It thereby failed to consider the applicant's case as it was put, and failed to consider whether the assistance required could reasonably be obtained by the applicant's mother from the services with which the Tribunal dealt.

Jurisdictional error 25 Because it misconstrued that part of the definition of 'special need relative' found in par (b)(ii), the Tribunal failed to take into account a relevant consideration. It did not consider according to law whether the assistance required by the applicant's mother could not reasonably be obtained from welfare, hospital, nursing or community services. Its expressed finding against the applicant on this issue was the result of its misconstruction of the definition. Failure to construe the definition correctly resulted in a failure to take into account a relevant consideration. The Tribunal was required to take into account that consideration by the terms of the definition of 'special need relative' itself. 26 Failure to take into account a relevant consideration of a kind required by the legislative provisions to be applied was identified as a jurisdictional error in Craig v State of South Australia (1995) 184 CLR 163 at 179 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed. In the present case, the error affected the exercise of the Tribunal's function. It deprived the applicant of a possible chance of success in relation to the last step required for her to satisfy the definition of 'special need relative'. In this way, it may well have deprived her of a chance of success in her application for the visa she sought. 27 It was made plain by the High Court of Australia in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 211 CLR 476 that jurisdictional error of that kind is sufficient to remove the decision of the Tribunal from the ambit of the privative clause in s 474 of the Migration Act, and to make it amenable to relief pursuant to s 39B of the Judiciary Act 1903 (Cth). 28 The remedies sought by the applicant are discretionary in their nature, but counsel for the Minister advanced no factors that would tend to persuade me to exercise the discretion against the applicant. I can see no such factors in the case.

The form of order 29 As I have said, the applicant cannot succeed on the basis on which the case was finally put unless her application is amended. It is therefore necessary to give her leave to amend her application, to add as a ground the following: 3. The Tribunal failed to take into account a relevant consideration, namely whether the assistance required by the applicant's mother could not reasonably be obtained from welfare, hospital, nursing or community services in Australia. 30 The applicant should be directed to file and serve an amended application within seven days of the delivery of judgment. There should be an order directing that any order for principal relief should not be entered until the amended application is filed, so as to ensure that the record of the Court is complete. 31 As to principal relief, the Tribunal is not a party to the proceeding. No order can therefore be made against it, by way of certiorari or mandamus, directing the removal into this Court of the Tribunal's decision for the purpose of quashing it, and directing the Tribunal to hear and determine the matter according to law. In the circumstances, the appropriate course appears to be to make a declaration of right, pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) that the Tribunal's decision is void and of no effect. Such a declaration will bind only the applicant and the Minister, but will give rise to a situation in which the applicant's application for review of the delegate's decision remains outstanding and the Tribunal has a duty to exercise its statutory function in relation to that application. I should not expect that there would be any difficulty about the Tribunal undertaking its statutory function in the light of the judgment of the Court. It is open to the Tribunal to ignore an earlier purported decision that is of no legal effect. See Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597. In case there should be any difficulty, liberty to apply should be reserved, so that either party could return to the Court, join the Tribunal as a party and seek appropriate orders.

32 The usual rule, that costs follow the event, should apply, and the Minister should be ordered to pay the applicant's costs of the proceeding.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray .

Solicitor for the Respondent: Australian Government Solicitor