Chow v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT HIS HONOUR: 1 The applicant firstly seeks leave to amend his application to raise the constitutionality of s 474 of the Migration Act 1958 (Cth) ("the Act"), which application I grant, although it is common ground that, in the present state of the authorities, I must act on the basis that the section is valid. 2 By the amended application, the applicant seeks orders and declarations challenging the decision of the Migration Review Tribunal ("the Tribunal") given on 6 March 2002 whereby the Tribunal affirmed the decision of a delegate of the respondent Minister to refuse to grant the applicant a Subclass 8.06 Change in Circumstance (Residence) (Class AG) visa. 3 The applicant claims to be a "special need relative" within the meaning of that expression as it was defined at the relevant time in Reg 1.03 of the Migration Regulations. The applicant's elderly father was the nominator for the visa and the applicant had, at the time of the hearing before the Tribunal, been providing significant assistance in Australia for his father and stepmother for several years.

4 The definition of "special need relative" was as follows: "'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" 5 The Tribunal accepted that both the applicant's father and stepmother suffer from "prolonged illnesses" and that this would be a serious circumstance affecting them. The Tribunal, it may be inferred, accepted that the applicant provided "continuing assistance" and that this was in fulfilment of a "long term need for" such assistance on the part of his parents. The assistance said by the applicant and his parents to be provided was apparently accepted as being in fact provided. This assistance comprised the following: "- Taking care of his father who remains at home due to his ill health by cooking, cleaning and generally taking care of the home and taking his father to the Doctor for his medical appointments. - Taking care of his mother by caring for his father and maintaining the family home so that she still can continue to work. Though this is difficult for her due to her own ill health. - Providing emotional support to his parents whose health would deteriorate if he had to leave Australia. - Driving his parents when they need to go out. - Interpreting/ Translating for his parents. The Tribunal continued: "At the hearing the witnesses confirmed the medical evidence. The nominator emphasised that he gets light headed and he has to sit down and wait a few minutes before he recovers. The visa applicant stated that he assists the nominator by doing all the housework, taking him to the doctor and taking him to do the shopping. When the nominator becomes light headed the visa applicant will give him a glass of water and staying with him until he recovers. The visa applicant also stated that the nominator and Ms Wang need his assistance on a 24 hour basis. When questioned he stated that they needed that sort of assistance in case there was an emergency with his father as his mother was not strong enough to deal with the emergency. He did concede that she could dial a telephone for assistance but he added that she could not speak English. He also confirmed that there had not yet been an emergency. Ms Wang stated that she needed the visa applicant's assistance as her hand and arm gets sore at work. Further, if she sits too long her back aches and if she stands too long her feet swell. The visa applicant assists Ms Wang by doing all the household chores so she does not have to do anything when she comes home from work. If her feet are sore he will massage them and bring her a meal in bed. She also needs assistance from the visa applicant, as she wants to stop working." 6 The Tribunal however rejected the application, seemingly posing two questions. The Tribunal said that it "doubts that the nature of the assistance required by the nominator and his spouse comes within the definition 'special need relative'. The issue is dealt with below" (emphasis added). Thus, the first question concerned the nature of the assistance needed by the applicant's parents. 7 The Tribunal then commenced a new section under the heading "Whether the review applicant is willing and ableto provide substantial and continuing assistance to the nominator" (emphasis added). That suggests that the second question concerned the nature of the assistance actually furnished (technically, to be furnished) by the applicant. After recounting the evidence which I have set out above as to the nature of the assistance, the Tribunal continued: "The definition of 'special need relative' speaks of 'a permanent or long term need [for assistance] because of death, disability, prolonged illness or other serious circumstance'. PAM 3 refers decision makers that, in the absence of other extenuating circumstances, none of the following on their own constitutes a serious circumstance, a permanent or long term need or requires substantial and continuing assistance: companionship of a relative, homesickness, general domestic assistance, assistance in bringing-up children, financial support, assistance in managing a family business, and bereavement over the death of a spouse. The majority of the assistance provided by the visa applicant is with the domestic chores and companionship. This type of assistance is not substantial, such as when a nominator requires 24 hour a day assistance as the nominator is bed ridden or in a wheel chair, and is not the type of assistance that comes within the definition of `special need relative' and the Tribunal finds accordingly." 8 The Procedures Advice Manual 3 ("PAM3") document has not been reproduced in the book of materials available to the Court. Assuming that its contents have been fairly stated or restated, it may well have been legally erroneous for the Tribunal to rely on that document. 9 The requirements of the definition for a "special need relative" may be paraphrased as follows: (i) The visa applicant must be a relative of an Australian citizen or permanent resident ("the citizen") usually resident in Australia. (ii) The applicant must be willing and able to provide assistance to the citizen. (iii) The assistance must be of a substantial and continuing nature. (iv) The citizen must have a permanent or long term need for such assistance. (v) That need must be caused by serious circumstances affecting the citizen or a member of the citizen's family. (vi) The assistance must be such that it cannot reasonably be obtained from a local health or social welfare service. 10 This case is concerned with the question of "substantial … assistance". What is such substantial assistance is a simple question of fact. If authority is needed for that proposition it is to be found in Minister for Immigration & Multicultural Affairs: Ex parte Cohen (2001) 177 ALR 473. The decision on that question is not to be foreclosed in the way that PAM3 appears to suggest. Depending on the facts, "general domestic assistance", for example, may very well be regarded by the fact-finder as substantial assistance. 11 While the term "special need relative" has been employed, in its definition it is not "special assistance" but "substantial assistance" which has been made the relevant criterion as to the nature of the assistance itself. The element of specialty implied by the phrase "special need relative" is supplied by the combination of the requirements that the assistance be substantial, continuing, unable to be reasonably obtained otherwise and that it should arise from serious circumstances. The assistance need not, in addition to those formidable requirements, possess any intrinsically special character. However, that is what the Tribunal's report of PAM3 suggests that that document will require and it is what the Tribunal Member's reasons suggest that she understood were required. To require extreme circumstances of assistance and/or need, as in the case of a person who, in addition to a serious circumstance such as "prolonged illness", is quite bedridden or wheelchair bound is beyond what the legislation has said will suffice. This approach is in line with that taken by Hill J in Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA 311 at [30]-[31] which was unaffected by an appeal on other grounds: see NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. Any contrary wishes of policy-makers are beside the point. 12 Further, it is arguable (for similar reasons) that the conclusion that the kind and degree of full-time domestic, and what may be called lay nursing, help that the applicant currently provides "is not the type of assistance that comes within the definition of 'special need relative'" appears to be such that the Tribunal Member must have misunderstood the definition, whether through sharing the apparent misunderstanding of the author(s) of PAM3 or otherwise. 13 However, this point need not be finally decided. Section 474 of the Act, on the prevailing view of its constitutionality and meaning, expressed in the majority judgments in NAAV effectively renders the point non-justiciable. I have ventured to discuss the matter in deference to the arguments presented and with a view to assisting the Tribunal in other cases. 14 The same is true of the other point argued for the applicant, namely that the Tribunal only dealt with "[t]he majority of the assistance provided" by the applicant, did not deal with the remaining parts of the assistance he provided and thereby failed to consider the applicant's real case. However, in my opinion and with due respect to counsel's efforts, this argument falls into the trap, to echo well known judicial language, of reading the Tribunal's reasons too closely, with an eye too finely attuned to the perception of error. I agree with the submission of counsel for the respondent that, whereas the Tribunal did not clearly explain why any part of the applicant's assistance falling outside the term "the majority" is not, of itself, substantial assistance, nevertheless, reading the Tribunal's reasons as a whole, it is clear that the Tribunal did so find. In other words, although no reason was given for rejecting the presumed minority of such services' conformity with the statutory criterion, nevertheless there was no failure to deal with that question. Compare Ratumaiwai at [27]. 15 The Hickman doctrine, of course, underlies s 474. The subject matter of the statutory setting for s 474 involves determinations that, for Australian citizens and others within our gates, are as fateful as many decisions of the criminal courts, yet are made by persons with short-term tenure of office and without any statutory requirement that they possess either legal capacity or expertise in the relevant (and multifarious) fields. The legislation, like that to do with refugee appeals, enables observations like that of Hayne J in Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) 178 ALR 421 at 464: "There is no provision for any contradictor and the procedures are, therefore, not adversarial. The decision-maker has little security of tenure and, at least to that extent, may be thought to have some real stake in the outcome." 16 This amply points to the vices of the Hickman doctrine, at least as applied in such cases. The applicant may hope that the High Court will, in the cases in which it has reserved decision (S134 of 2002 and S157 of 2002 heard on 3 and 4 September 2002), feel freer than this Court did in NAAV to restate that doctrine, notwithstanding the eminence of its inventor - even the greatest are not infallible. The applicant I assume will keep that hope alive by appealing my decision. However, notwithstanding that, by reason of the matter in the High Court, the relevant law may still be said to be in a process of development, it seems that I should proceed forthwith to apply the law as it is presently authoritatively stated (so far as judges of this court are concerned): see NAPL v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1263. 17 It follows that, as matters stand, the application must be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.