El Bkassini v Minister for Immigration & Multicultural Affairs

The Tribunal's decision 6 After referring to the relevant provisions of the Regulations, the Tribunal, at the end of [28] of its reasons, made this finding; The Tribunal finds that the nominator is an Australian citizen usually resident in Australia and that the visa applicant is a relative under the Regulations. The Tribunal also finds that the visa applicant is willing and able to provide substantial and continuing assistance to the nominator. (original emphasis) 7 The Tribunal then referred to a series of judgments of this Court in which the concept of special need relative has been considered, including, most recently, Minister for Immigration and Multicultural Affairs v Chan [2000] FCA 737 and Jun v Minister for Immigration and Multicultural Affairs [2000] FCA 867. It then said, at [32]; "The question of whether assistance is rendered by the mere presence of the visa applicant so as to meet the definition of special need relative has been considered in Hussein. In that case Emmet J held: I do not consider that it can be meaningfully said that Mrs Hussein would render assistance to Aiyaz in relation to his sadness and depression by remaining in Australia, simply because his sadness might return should she return to Fiji." 8 That was a somewhat curious reference because the Tribunal's finding quoted at [6] above clearly acknowledged that the substantial and continuing assistance by the applicant to the nominator was constituted by more than her mere presence in Australia. 9 The Tribunal next adverted to the guidance afforded by a Departmental Procedures Advice Manual ("PAM") saying, at [33] of its reasons; "PAM 3 provides guidance on the factors to be considered when assessing the requirements of special need relative: Special need relative provisions are intended to cater for situations such as · the death, disability or serious prolonged illness of a spouse or other member of the family unit (as defined in regulation 1.12) that may leave the Australian relative with permanent or continuing problems providing the degree of support that is required to meet the needs of the ill person or the family; or · an incapacitating illness or disability creating a need for physical assistance in the home. It is policy 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 · bereavement over death of a spouse." 10 The Tribunal then referred to a judgment of a Full Court of this Court in Huang v Minister for Immigration and Multicultural Affairs (1996) 71 FCR 95, and expressed its conclusions in these terms; "34. As stated by the Full Court of the Federal Court in Huang the term serious circumstances is something that must be considered in light of the concepts of death, disability and prolonged illness. In this regard the Tribunal accepts that the nominator and the visa applicant have a strong and close relationship and that the nominator enjoys the visa applicant's company. The Tribunal takes into account the psychosocial assessment which indicates that the visa applicant is happy to be the second or surrogate mother to the children, the nominator requires long-term assistance with her large family and that the whole family has derived enormous benefit from the contribution made by the visa applicant. The Tribunal notes the letter from Dr Groner about at-home programs and from the witnesses about the need for supervision of Jean-Claude as a result of behavioural problems. The Tribunal also takes into account the oral evidence about the needs of the nominator in relation to assistance required in the form of childcare and household tasks, and the services provided by the visa applicant. 35. In relation to the nominator's mother-in-law the Tribunal finds that although she does not come within the definition of relative as specified in the Regulations, she is a member of the nominator's family unit. The Tribunal notes that at the time of application she was living in the family home, and at the time of decision she had been living with relatives overseas for three years. The Tribunal accepts that when the mother-in-law is living in the household the nominator may require some assistance with her care and that such care might be offered by the visa applicant. The Tribunal notes that before her departure the mother-in-law seemed to be able to look after herself to a considerable degree, and at the time of decision there was no evidence of a disability or prolonged illness relating to her or to any member of the family unit. 36. The Tribunal takes into account that at the time of decision two of the children (Eli and Patricia) are adults and are able to look after themselves, and two (Judy and Joseph) and the nominator's mother-in-law are living away from home and do not require assistance from the nominator. On the material before the Tribunal Jean-Claude is attending a primary school in Belgrave and appears to have recovered from his serious injury. No medical evidence was provided about behavioural problems. 37. In all the circumstances, and applying the tests outlined by the Federal Court, although the needs of the nominator will increase with the birth of twins and she will require assistance in the form of childcare, the Tribunal is not satisfied that at the time of decision this need constitutes serious circumstances, so the nominator does not have 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 (regulation 1.3(a)). Therefore the Tribunal finds that at the time of decision the visa applicant is not a special need relative as defined in regulation 1.3. Consequently the visa applicant does not satisfy subclause 806.721(7) and therefore subclause 806.731(5). Subclauses 806.731(2), (3) or (4) are not applicable and therefore she does not satisfy subclause 806.731(1) and subdivision 806.73." (original emphasis)

(a) Interpretation of "other serious circumstances" 11 Section 31(1) of the Act provides for classes of visas, and Reg 2.02 of the Regulations for subclasses. Subclass 806 in Schedule 2 of the Regulations specifies the criteria for the grant of a Family and Other Close Ties (After Entry) Visa. To obtain the visa, the applicant was required to satisfy the following criteria in force when the application was filed on 6 January 1994; 806.72 Criteria to he satisfied at time of application (entry permit - after entry) 806.721(1) The applicant: (a) is not the holder of a Class 771 (transit) entry permit; and (b) is not an illegal entrant; and (c) meets the requirements of subclause (7) or (8) ... (7) An applicant meets the requirements of this subclause if the applicant is an aged dependent relative, an orphan relative, a remaining relative or a special need relative of another person who: (a) is a settled Australian citizen or a settled Australian permanent resident; and (b) is usually resident in Australia; and (c) has nominated the applicant for the grant of the entry permit. 806.73 Criteria to be satisfied at time of decision (entry permit - after entry) 806.731(1) The applicant ..... (b) meets the requirements of subclause (2), (3), (4) or (5). (5) An applicant meets the requirements of this subclause if ... (a) the applicant is an applicant referred to in clause 806.721(7); and (b) the applicant satisfies public interest criteria 4001 to 4006, 4009 and 4010; and (c) an assurance of support in relation to the applicant has been given, and has been accepted by the Minister. 12 Regulation 1.3 before its repeal by SR 506 of 1998 provided that a "special need relative"; "... in relation to an Australian citizen usually resident in Australia or an Australian permanent resident usually resident in Australia, 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: (i) cannot reasonably be obtained from any other relative of the citizen or resident, being a relative who is an Australian citizen or an Australian permanent resident; and (ii) cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia;" 13 The phrases "serious circumstances" and "special need relative" have been differently interpreted by Judges of this Court over the last decade. In Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 418 at 430, Burchett J held that the "benevolent intent of the regulation .... should be given a broad and generous construction in favour of the Australian citizens and residents that it was intended to benefit, and in furtherance of the good name of Australia that its humanity maintains". This view was accepted by Davies J in Chen v Minister for Immigration and Ethnic Affairs (1994) 51 FCR 322 at 327-328 and by Foster J in Moskal v Minister for Immigration, Local Government and Ethnic Affairs (1994) 125 ALR 307 at 313-314, 315. 14 However, a Full Court of this Court in Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 rejected the earlier liberal interpretation and another Full Court in the following year further restricted the meaning of the regulation in Huang v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 95. Hill J there concluded, at 99, that "special need relative" does not "include every case involving a child of tender years unable to care for himself or herself" and that " 'serious circumstances' ... refer to circumstances similar to death, disability or prolonged illness and not to the mere fact that the citizen or resident is of tender years". Kenny J in Minister for Immigration and Multicultural Affairs v Chan (supra) and Mansfield J in Jun v Minister for Immigration and Multicultural Affairs (supra) reinforced the "normal and fair reading" approach to the Regulations, at least in applying the concept of a "special need relative". As well, McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2000) 177 ALR 473, at 482, doubted that Huang had been wrongly decided. 15 Despite the trend of authority to which I have just referred, late in 2000 another Full Court of this Court in Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39 decided that what had been said by the members of the Full Court in Huang about the meaning of "other special circumstances" did not form part of the ratio of that case. The Full Court in Wu then examined at length the application of the terms "special need relative" and "serious circumstances" to a visa applicant who was the mother of the nominator, an Australian citizen who was three years old. The Full Court there said, at 53-55; "The definition of the expression "special need relative" is found in the principal part of the Regulations (reg 1.03) and not in Schedule 2. However by operation of reg 2.03 and the use of the expression in Schedule 2, the definition operates to establish criteria for several classes of visa. In doing so the definition is intended to identify, as a criterion or an element of a criterion, a class of person who might remain in Australia to tend to the needs of a citizen who is unable to care for himself or herself for a lengthy period. It is, with respect, not self-evident that a child of tender years was intended to be excluded from the group who are unable to care for themselves. A child's needs are, in many respects, no different to those of a very elderly person or a seriously ill person. Their survival can be dependent on the support and attention of others. The argument that "serious circumstances" cannot "reflect merely the tender age of a person" rather misses the point. The age, whether of a very young or very old person, would rarely be the sole relevant circumstance. But age can be a factor which, along with other circumstances, adds up to special circumstances. The definition of the expression "special need relative" contains several elements. It is convenient to analyse the definition as it applies to an Australian citizen (though it also applies to an Australian permanent resident or an eligible New Zealand citizen). The citizen must be usually resident in Australia. There must be another person who is a relative of the citizen. "Relative" is also defined in reg 1.03. The relative must be willing and able to provide substantial and continuing assistance to the citizen. The need for the assistance, as identified in par (a), must be permanent or long-term. "Long term" is not defined but it is probably used to signify a need which continues for years. The need must arise because either the citizen or "a member of his or her family unit" is affected in one of four ways. The first is that they are dead. Plainly this can only be a reference to the death of a member of the family unit of the citizen. The second is that the citizen or the member of the family unit is suffering from a disability and the third is that either the citizen or member is suffering from a prolonged illness. The parties were asked to identify circumstances that might create the need for permanent or long term assistance that were not comprehended by the notions of "disability" or "prolonged illness". Counsel for the Minister identified four such circumstances namely depression which did not fall within any medical or clinical definition of that term (see Jun v Minister for Immigration & Multicultural Affairs [2000] FCA 867 at par 28), imprisonment (though accepting that this would probably have to be imprisonment of the member of the family unit), financial ruin or drug addiction. Even accepting, for present purposes, that none of these circumstances is either a "disability" (but see Marsden v HREOC & Coffs Harbour & District Ex-Servicemen & Women's Memorial Club Ltd [2000] FCA 1619) or a "prolonged illness", each exemplifies the disparate circumstances in which the need for long-term assistance might arise. Each is "serious" in the sense that it involves something having a substantial and negative effect on the person affecting their capacity to look after himself or herself or to look after another person. Another feature common to each is that they involve something which was out of the ordinary and perhaps could be said to be unexpected. However there is nothing about the expression "other serious circumstances" nor its immediate statutory context which suggests that a necessary feature of the circumstances is that they be out of the ordinary or unexpected. In our opinion the word "serious" is simply intended to reinforce the nature of the assistance that is central to the definition, namely assistance which is substantial and continuing in relation to a need for assistance which is permanent or long-term. That is, the circumstance is sufficiently serious that, in relation to a citizen, it would require assistance of the same sort that would be required if the citizen was suffering from a disability or prolonged illness. In our opinion, if a citizen or a member of the citizen's family unit is in circumstances which create a need for substantial and continuing assistance of the citizen and the circumstances do not arise because of the death of a member of the family unit or the disability or prolonged illness of either the citizen or the member of the family unit then those circumstances are intended to be comprehended by the expression "other serious circumstances". There is no reason in logic or of policy that we can discern which might explain that the definition was intended to be enlivened in every circumstance where the requisite care of a citizen is required except young childhood and perhaps old age. We say perhaps old age because the long-term or permanent need for substantial and continuing assistance of an elderly person ordinarily arises through a disability or illness associated withold age. We should add that the additional feature of the definition, in par (b), concerning alternative sources of assistance appears to us to be neutral on the question of whether young childhood is comprehended by the expression "other serious circumstances". Sub-paragraph (i) would have application to a young child and the expression "welfare, hospital, nursing or community services" in sub-par (ii) would reasonably comprehend facilities that might be available to provide care for a young child as an alternative to care by a "special need relative". Whether, in fact, such facilities were available would have to be determined in the circumstances of each case." 16 The effect of that judgment seems to be to reaffirm that Reg 1.3 was to be construed on the basis of a "normal and fair reading" but that such an approach leads to a less restrictive interpretation of "other special circumstances" than that adverted to by the members of the Full Court in Huang (supra).

(b) What constitutes an error of law by the Tribunal? 17 In analysing the concept of an error of law as used in s 476(2)(e) of the Act McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) said in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 75 ALJR 1105, at 1120, [84]; "... ... in such a case, the decision may well, within the meaning of par (e) of s 476(1), involve an error of law which involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That it cannot be said to be an improper exercise of power (as that expression is to be understood in s 476(1)(d), read in light of s 476(3)) is not to the point. No doubt it must be recognised that the ground stated in par (e) is not described simply as making an error of law. The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That qualification emphasises that factual error by the Tribunal will not found review. Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which par (e) deals. That having been said, the addition of the qualification to par (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language. If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found. If that is so, the ground in s 476(1)(e) is made out." (original emphasis)

Contentions of the applicant. 18 The applicant has advanced one ground for review of which she has given many particulars. The main thrust of her claim is that the Tribunal committed an error of law under s 476(1)9e) because it failed properly to interpret or apply the relevant law. It was first contended on behalf of the applicant that the Tribunal misconstrued "other serious circumstances" as limited by the references to death, disability and prolonged illness or as confined to medical conditions. In the second place it was submitted that the Tribunal's acceptance that Ms El Bkassini "requires long-term assistance for her large family" meant that it had erred in holding that the need could not arise because of serious circumstances affecting the nominator. Thirdly, the Tribunal was said to have erred in asking the wrong question, specifically whether the need identified by the applicant constituted "serious circumstances" rather than asking whether the nominator had a need for assistance that had arisen from "other serious circumstances." The fourth error imputed to the Tribunal was a failure to ask or determine whether the nominator was in need of substantial and continuing assistance. It was next said that the Tribunal should have made findings as to whether the needs of the nominator amounted to a need for substantial and continuing assistance. Sixth, the Tribunal erred in holding that the needs of the nominator did not in fact constitute a substantial and continuing need for assistance. Seventh, the Tribunal did not give real, genuine, or proper consideration to the applicant's claims and to the evidence including expert submissions from Marie Spinosa, Dr Dianne Phillips and Dr Michael Groner.

Contentions of the respondent. 19 Counsel for the Minister contended that the Tribunal had not confined "serious circumstances" to those arising from medical conditions. It had acknowledged only that the concept of "serious circumstances" had to be considered "in light of" the enumerated eventualities of death, disability or prolonged illness. The submission continued; "The MRT considered all the material and evidence before it and found that the nominator's need for assistance did not amount to serious circumstances." 20 The judgments of the respective Full Courts in Wu and Huang, in the respondent's submission, were distinguishable from the present case because, in each of those cases, the citizen said to be in need of substantial and continuing assistance from a relative was a child of tender years. By contrast, the citizen said to be in need of assistance here was the nominator, an adult sister of the applicant claimed to be a special need relative. The Tribunal simply identified the nominator's need as principally one of childcare and found as a fact that need had not arisen from "other serious circumstances". 21 The respondent also invoked the observations of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (supra), where his Honour observed, at 482; "If an administrative tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short step to concluding that it did not decide the question that it had to decide. But questions of fact are ordinarily for an administrative tribunal to determine and so are the reasoning processes employed to make such findings. Disagreement with a finding of fact or the reasoning process used to find it is usually a slender ground for concluding that a tribunal misconceived its duty. Even if Huang was wrongly decided, which I doubt, the Tribunal did not commit a jurisdictional error. At worst, it made an error of fact because, by applying Huang, it erroneously reasoned that Ariel did not have "need for assistance because of a disability, prolonged illness or other serious circumstance" [cf R v The District Court; Ex parte White (1966) 116 CLR 644 at 654]. I do not think that applying a case that wrongly decides a question of fact - the meaning of a non-technical word - can be equated to applying a wrong legal test. Huang decided a question of fact, not a question of law. If the Tribunal had adopted the meanings given in Huang, but without reference to that case, it would not have made a jurisdictional error. It makes no difference that it used Huang as its dictionary instead of interpreting the expressions itself."

Reasoning 22 The principal difficulty in the present case has been created by the Tribunal's finding at [37] of its reasons quoted at [10] above that the nominator "will require assistance in the form of childcare" followed immediately by its statement that it is not satisfied that "this need constitutes serious circumstances." Mr Niall of Counsel for the applicant criticised those findings as "conflating" the need for assistance with the serious circumstances which must cause or give rise to that need. However, it is not necessarily an error for the Tribunal to have regard to the identified need for assistance in determining whether the requisite serious circumstances exist. If, for example, the "need" is for trivial or transitory assistance, that may indicate that the circumstances from which the need has arisen are not serious. However, in this case, the Tribunal acknowledged that the assistance, presumably rendered in response to the nominator's "need", was substantial and continuing. It was therefore necessary for the Tribunal to consider whether the circumstances which gave rise to that need were "other serious circumstances" within the meaning of Reg 1.3(a). 23 Beyond identifying the need as being for "assistance in the form of childcare", the Tribunal does not appear to have undertaken that second limb of the inquiry. In Chan, Kenny J said, at [17]; "Assuming, for the moment, that the Tribunal was entitled to accept that Dr Kwong was correct in attributing to the respondent a "permanent and severe disability, namely … asthma and profound deafness", the Tribunal ought to have identified distinctly what the respondent actually needed by way of assistance as a result of these conditions. The Tribunal did not do this. Nor did the Tribunal identify whether Siu How Chan was able to meet these particular needs by providing assistance that was relevantly substantial and continuing: cf Singh v Minister for Immigration and Ethnic Affairs (unreported, von Doussa J, 31 January 1996) at [20]. Instead, the Tribunal conflated the assistance with which the definition is primarily concerned and the assistance which Siu How Chan was able and willing to provide." 24 In the present case, by contrast, the Tribunal acknowledged that the assistance which the applicant was able and willing to provide was substantial and continuing. It also identified what the nominator actually needed as "assistance in the form of childcare." That may have been unduly elliptical but, allowing it to be an acceptable finding as to need, the Tribunal did not consider, in terms, whether the need was because of disability, prolonged illness or other serious circumstances affecting the nominator personally. 25 It is true that the Tribunal claimed in the introductory words to its conclusion at [37] of its reasons to have applied "the tests outlined by the Federal Court." However, it has nowhere identified those "tests". It is not clear, for example, whether it applied the principle which it extracted from Emmett J's judgment in Hussein v Minister for Immigration and Multicultural Affairs [1999[ FCA 1621, which, as indicated at [7] above, I consider to have no application to the facts of the present case. 26 It is also possible that, by identifying the nominator's need as being for "assistance in the form of childcare," the Tribunal considered itself precluded by PAM 3 which it quoted in full from finding that other serious circumstances were constituted by something requiring "assistance in bringing up children." However, it is to be remembered that, if, which I doubt, PAM 3 was intended to be an exhaustive illustration of "other serious circumstances", it stipulated that none of the enumerated matters "on their own constitutes a serious circumstance or permanent long-term need or requires substantial and continuing assistance" (emphasis added). The Tribunal does not appear to have considered all of the factors relied on by the applicant as giving rise to the need for substantial and continuing assistance which it found to exist. Those factors included the continuing disability of Jean-Claude, the economic circumstances of the nominator and her husband, the expected arrival of twin babies, the presence in their household of adult, but still dependent, student children and the likely return to the household of the nominator's aged and infirm mother-in-law. 27 In examining the reasons of the Tribunal, I have not been unmindful of the High Court's injunction in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, against over-zealous judicial review and an undue concentration on inadequacies of expression in the Tribunal's reasons. However, after carefully reading and re-reading the present reasons with the benevolent eye which that authority requires, I cannot escape the conclusion that the Tribunal has asked itself the wrong question, or has failed to ask itself the right question. This is not a case where the result before the Tribunal turned on a finding of fact as to the meaning of ordinary English words as in Ex parte Cohen. Rather, it involved the question whether facts fully found fell within the expression "other serious circumstances." An answer to that question required an application of that expression, once its meaning had been ascertained, to the facts as found in respect of the circumstances of the nominator. That is capable, as the passage from Yusuf quoted at [17] above demonstrates, of constituting an error of law. I am persuaded that, by concentrating on the need of the nominator and by not reviewing, in the manner outlined by the Full Court in Wu v Minister for Immigration and Multicultural Affairs in the passage quoted at [15] above, the whole of her circumstances as it had found them to be, the Tribunal committed an error of law.

Conclusion 28 For the reasons which I have endeavoured to explain, the decision of the Tribunal must be set aside. The matter to which it relates should be referred to the Tribunal to be heard and determined according to law. The respondent must pay the applicant's costs of the application to this Court.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Solicitor for the Applicant: Joseph Italiano & Associates

Solicitor for the Respondent: Australian Government Solicitor