Chow v Minister for Immigration & Multicultural & Indigenous Affairs

THE TRIBUNAL'S DECISION 10 The appellant's application for a visa was assessed against Subclass 806. There has been no suggestion that he was eligible for any other subclass of visa. The appellant was nominated for the grant of a visa by his father who, the Tribunal found, is a settled Australian citizen who is usually resident in Australia. Thus, the relevant criterion set out in cl 806.213 would be satisfied if the appellant is a special need relative of his father. 11 The Tribunal found that the appellant's father and his wife, the appellant's stepmother, have prolonged illnesses. However, the Tribunal doubted that the nature of the assistance required by the appellant's father and stepmother came within the definition of special need relative. 12 The appellant gave evidence before the Tribunal that he had been providing substantial and continuing assistance to his father and stepmother in the following ways:

• 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 stepmother 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 father and stepmother, whose health would deteriorate if he had to leave Australia;
• driving his father and stepmother when they need to go out;
• interpreting and translating for his father and stepmother. 13 At a hearing before the Tribunal, the appellant's father gave evidence that he gets light headed and has to sit down and wait for a few minutes before he recovers. The appellant said that he assists his father by doing all the house work, taking him to the doctor and taking him to do the shopping. When his father becomes light headed, the appellant gives him a glass of water and stays with him until he recovers. The appellant also said that his father and stepmother need assistance on a 24 hour basis in case there is an emergency with his father and his stepmother is not strong enough to deal with the emergency. 14 The appellant's stepmother said that she needs the appellant's assistance as her hand and arm get sore at work. She said that, if she sits too long, her back aches and, if she stands too long, her feet swell. The appellant assists her by doing all the household chores so she does not have to do any of them when she comes home from work. If her feet are sore, the appellant massages them and brings her a meal in bed. 15 The Tribunal concluded that the majority of the assistance provided by the appellant to his father and stepmother consisted of 'domestic chores and companionship'. The Tribunal found that that type of assistance was not substantial and did not come within the definition of 'special need relative'.

THE PRIMARY DECISION 16 The grounds upon which relief was sought in the amended application were that the Tribunal failed to exercise its jurisdiction under the Act and that it erred in its understanding and application of the applicable law. Both grounds were particularised as follows:

• there was a real failure by the Tribunal to exercise its jurisdiction because it failed to consider and assess all of the appellant's claims of assistance that he provided to his father and stepmother against the criteria to determine whether or not he is a special need relative; · the Tribunal misconstrued and/or misapplied the expression 'substantial and continuing assistance'. 17 The primary judge observed that the question of what constitutes 'substantial assistance' within reg 1.03 is a simple question of fact. His Honour found that the Tribunal concluded that the kind and degree of full time domestic and lay nursing help that the appellant has provided is not the type of assistance referred to in the definition of special need relative. His Honour considered that it was arguable that that conclusion indicates that the Tribunal must have misunderstood the definition of special need relative. However, his Honour considered that s 474 of the Act precluded any review of the Tribunal's decision. This conclusion was based on the law as it was understood before the judgment of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24. 18 If the Tribunal's decision can properly be characterised as a decision of an administrative character made under the Act, then the effect of s 474(1) is that the decision:
• is final and conclusive;
• must not be challenged, appealed against, reviewed, quashed or called in question in any court; and · is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. 19 However, the decision of the Tribunal would not be a decision under the Act if it involves a failure to exercise jurisdiction or an excess of the jurisdiction conferred by the Act. An administrative decision that involves jurisdictional error is, in law, no decision at all. If there has been jurisdictional error because, for example, of a failure to discharge imperative duties or to preserve inviolable limitations or restraints the decision in question will not be a decision made under the Act: see Plaintiff S157/2002 at 45, at [76].

THE APPEAL 20 There is no quarrel on the part of the Minister with the finding by the Tribunal that each of the appellant's father and stepmother is affected by prolonged illness. The Tribunal also appears to have found that the prolonged illnesses that affect each of them together constitute a serious circumstance. That second finding may indicate a misapprehension on the part of the Tribunal. Once it is found that a resident is affected personally by death, disability or prolonged illness, it is unnecessary to consider whether the resident is also affected personally by other serious circumstances. However, that misapprehension does not appear to have played a part in the Tribunal's reasoning. 21 Having concluded that the appellant's father and stepmother are affected by prolonged illness, the next step should have been to consider whether either of them had a permanent or long-term need for substantial and continuing assistance because of that prolonged illness. If a positive determination were made on that question, the next step would be to determine whether the appellant was willing and able to provide such assistance to his father and stepmother. 22 The term 'assistance' referred to in par (a) and par (b) of the definition of 'special need relative' in reg 1.03 must be a reference to 'substantial and continuing assistance' referred to in the definition before the conditions that follow the word 'if'. Thus, the condition in par (a) is that the citizen has a permanent or long-term need for substantial and continuing assistance because of prolonged illness affecting the citizen personally or a member of his family unit. The Tribunal, in its reasons, embarked on a consideration of '[t]he permanent or long-term need for assistance' but concluded, at the end of that section of its reasons, that each of the appellant's father and stepmother has prolonged illnesses. That section finished with the expression of doubt on the part of the Tribunal that the nature of the assistance required by the appellant's father and stepmother came within the definition. 23 Instead of embarking on a consideration of whether the appellant's father and stepmother have a permanent or long-term need for substantial and continuing assistance, the Tribunal embarked on a consideration of whether the appellant was 'willing and able to provide substantial and continuing assistance' to his father. Its conclusion was that the majority of the assistance provided by the appellant was not 'substantial'. The Tribunal did not at any stage address and answer, in terms, the question of whether either of the appellant's father or stepmother has 'a permanent or long-term need for [substantial and continuing] assistance'. 24 That question is one of fact. Provided the Tribunal addressed the question and did not misapprehend the meaning of the term 'substantial and continuing assistance', there would not normally be any basis for review of such a finding. 25 In its reasons, the Tribunal refers to a Procedures Advice Manual 3 ('PAM3') produced by the Minister's department and says: '… PAM3 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.' 26 The reasoning of the Tribunal is somewhat confused in relation to its consideration of this question. PAM3 was not in evidence before the primary judge and it is not clear whether the passage from the Tribunal's reasoning cited above is a verbatim extract from PAM3. The passage evinces a confusion in the elements required for the satisfaction of the definition of 'special need relative'. Some of the references cited, such as 'companionship' and 'financial support', are examples of assistance. Other examples, such as 'homesickness' and 'bereavement over the death of a spouse' appear to be examples of the possible reason for a need for assistance. 27 The reasoning of the Tribunal appears to be that the majority of the assistance provided by the appellant hitherto has been in the form of domestic chores and companionship and that 'this type' of assistance is not substantial. Whether assistance is substantial is a question of fact for the Tribunal. However, it would be erroneous of the Tribunal to have made a finding of fact on the basis of a false assumption as to the meaning of the term 'substantial and continuing assistance'. 28 The performing of domestic chores and the giving of companionship could constitute substantial and continuing assistance in some circumstances. It would be incorrect to say that assistance of that nature could never be substantial and continuing assistance. If a resident had a permanent or long-term need for assistance, consisting of the provision of domestic chores and companionship, the pre-requisites of the definition could be satisfied. 29 The Tribunal appears to have accepted that domestic chores and companionship might conceivably constitute substantial assistance where, for example, the resident in question is bedridden or in a wheelchair. The conclusion reached by the Tribunal appears to be that, while the appellant's father and stepmother are affected by prolonged illness, they do not have a need for substantial assistance. While the Tribunal examined that matter in considering whether the appellant was 'able to provide substantial and continuing assistance', in essence the Tribunal appears to have reasoned as follows:

• the appellant has been providing all the assistance needed by his father and stepmother;
• the assistance provided by the appellant hitherto is not substantial;
• accordingly his father and stepmother do not have a need for substantial assistance. 30 The Tribunal made findings as to the assistance that has hitherto been provided by the appellant. It is a matter of fact as to whether that assistance amounts to substantial assistance. It was open to the Tribunal on the material before it to conclude that that assistance was not substantial assistance, albeit that the appellant's father and stepmother had the need because of prolonged illness affecting them. 31 It is not entirely clear what reliance the Tribunal placed upon PAM3. In its reasons, the Tribunal said that it was 'required to have regard to policy and apply it unless there are cogent reasons for departing from policy'. That observation was made after referring to the fact that matters may be the subject of departmental policy as found in publications such as PAM3. The appellant accepted, however, that the language of the Tribunal's reasons indicated that it was aware that it could depart from policy if there were cogent reasons for doing so. 32 The thrust of the appellant's complaint in relation to the reference to PAM3 is an assertion that the Tribunal approached its task on the basis that domestic chores and companionship were not the type of assistance that comes within the definition of 'special need relative'. Thus, the Tribunal doubted that the nature of the assistance required by the appellant's father and stepmother came within the definition of 'special need relative'. After observing that the majority of the assistance provided by the appellant was 'with the domestic chores and companionship', the Tribunal observed 'this type of assistance is not substantial … and is not the type of assistance' (emphasis added) that comes within the definition. Finally, the Tribunal observed that it was not necessary to make a finding in relation to par (b) of the definition in light of its findings 'as to the nature of the assistance required' (emphasis added) by the appellant's father and stepmother. The appellant argued that those references indicate that the Tribunal reached its conclusion on the assumption that domestic chores and companionship could never constitute substantial and continuing assistance. 33 That, however, is not a fair reading of the Tribunal's reasons. While the reasons may not be as felicitously expressed as they could be, it is clear enough that the Tribunal was making a quantitative assessment and not simply a qualitative assessment in relation to the assistance that hitherto has been provided by the appellant. The Tribunal's reasons should not fairly be construed as a conclusion that domestic chores and companionship could never be substantial and continuing assistance. The Tribunal was making a factual finding, after considering the assistance that the appellant had been providing, that that assistance did not amount to substantial assistance. The reference to 'nature' and 'type' of assistance is not fairly to be taken as a reference to the quality, as distinct from the quantity, of the assistance being provided. 34 The appellant also contended that the Tribunal omitted to have regard to the entirety of the assistance provided by the appellant. That contention is based on the following observation by the Tribunal in its reasons: '… The majority of the assistance provided by the [appellant] is with the domestic chores and companionship.' (Emphasis added). The appellant contends that that observation indicates that the Tribunal failed to address the whole of the assistance that the appellant was willing and able to provide, as opposed to part only of the assistance. The appellant contended that there was a failure to examine each integer of the appellant's claim and set out its findings in respect of it: see Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 at 423. 35 As the primary judge observed, that contention entails reading the Tribunal's reasoning too closely, with an eye too finely attuned to the perception of error. While the Tribunal did not clearly explain why any part of the appellant's assistance that fell outside the term 'the majority' is not, of itself, substantial assistance, it is clear, from the Tribunal's reasons as a whole, that the Tribunal found that the entirety of the assistance being provided by the appellant could not fairly be characterised as 'substantial'. 36 In the circumstances, the appellant has not established an error that might lead to the conclusion that the decision of the Tribunal was not a decision under the Act. Accordingly, s 474 precludes any review of the Tribunal's decision by the Court. It follows that the decision of the primary judge was correct and the appeal should be dismissed with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.

Solicitor for the Applicant: Parish Patience Immigration, Lawyers

Solicitor for the Respondent: Blake Dawson Waldron