Authorities prior to Huang
Before examining the IRT's decision, it will be necessary to review some of the authorities that have dealt with the concept of "special need relative" and consider their effect in the light of the decision of the Full Court in Huang v Minister for Immigration etc (Jenkinson, Hill and Lehane JJ, unreported, 29 November 1996).
In Fuduche v Minister for Immigration etc (1993) 45 FCR 515 the Australian citizen was a young married woman who had suffered great deprivation and abuse in her childhood and as a consequence suffered from severe chronic depression which had led to two suicide attempts and required regular psychiatric treatment. The relative was her brother who since childhood had provided sympathy and emotional support. There was evidence from the specialist psychiatrist who had treated the citizen that her relationship with her brother had played a significant part in providing her with some emotional stability by allowing her to maintain some sense of family continuity and bonding. Another enforced separation would bring back "painful memories of earlier disruption and losses" and the possibility that she may regress and require more intensive treatment.
Burchett J set aside a delegate's decision which held that the brother was not a "special need relative". A principal ground for doing so was his Honour's finding that the delegate had "brush(ed) aside" the evidence of the psychiatrist. As a consequence the decision was irrational and so unreasonable that no reasonable decision-maker could make it: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229-233; see 45 FCR at 522, 525-528. As to the definition of "special need relative" his Honour observed (at 527):
"It is appropriate to observe that the definition of 'special need relative' is largely concerned with medical issues. There must be a need, not necessarily permanent but at least long-term, for some form of assistance because of death, disability, prolonged illness or other serious circumstances. (The last matter, of course, need not be medical, unless the earlier words create a genus, which would be a very restrictive view to take of a beneficial provision under the broad rubric of 'special need', particularly as there cannot be a genus of medical conditions of the citizen or resident to be assisted, since the first condition is death.) There must then be an inability to obtain 'the assistance' from the other sources mentioned. I have emphasised the definite article because it may be the delegate overlooked it in the present case. Certainly, the reference to 'the assistance/support she needs' is a reference to what the author of the recommendation has decided she needs - not the substantial and continuing assistance Mr Fuduche is willing and able to provide. That would explain what is otherwise inexplicable - his rejection of Mr Fuduche's claim to be a 'special need relative' of Mrs Longhurst on the ground, apparently, that assistance is 'quite readily' available to her from 'community support services'. But the assistance with which the regulation is concerned is the assistance the relative is able to provide. If that is mowing lawns, of course others may do it. The more complex and personal it is, the less can this be so. Indeed, such cases are probably at the heart of the benevolent intent of the regulation which, on ordinary principles, as I have already indicated, 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. Where what is involved is the personal support of a particular brother, whose every word of encouragement must have the meaning of their shared experiences packed into it, that support is plainly irreplaceable, whatever inferior (or even very valuable) substitutes might be sought." (Emphasis in original.)
In Chen v Minister for Immigration etc (No. 2) (1994) 51 FCR 332 the Australian citizen was a three year old child and the relative was his mother. She was a People's Republic of China citizen who had entered Australia on a student's visa and subsequently given birth to the child as the result of a relationship with an Australian permanent resident. The father was legally married to another woman. Counsel for the Minister argued that being a child was not in itself a disability and that the definition of "special need relative" was inapposite to describe the ordinary relationship between a mother and a healthy child and the ordinary needs of a child for care, protection and upbringing by its parents. Davies J (at 326) thought that argument had "considerable force". However his Honour noted (at 326-7):
"If read widely, rather than restrictively, the definition of 'special need relative' may encompass the relationship of parent and child, and so authorise the grant of a permit to a parent who is an illegal entrant in Australia, if the child in Australia has a need for the presence in Australia of that parent."
After citing part of the passage in Fuduche to which I have already referred, Davies J continued (at 327):
"Thus, a 'serious circumstance' may be a circumstance not of a medical nature.
This being so, it would appear that it is sufficient for a circumstances to be 'serious', that it is 'weighty or important' (Macquarie Dictionary). The relationship between a young child and his or her parents, particularly the mother, is of course a weighty or important matter, as the Declaration of the Rights of the Child recognises."
In Moskal v Minister for Immigration etc (1994) 125 ALR 307 the Australian citizen was a 70 year old former Ukrainian whose wife had died. He had suffered a stroke and was a diabetic. He had limited English and was embarrassed to accept community assistance which was not culturally sensitive to his personal needs. The relative was his sister who had acted as a full time home nurse. Foster J set aside the delegate's decision and applied Fuduche and Chen. His Honour said (at 315) that the interpretation in Fuduche
"… calls for a sympathetic and careful consideration of the physical and emotional needs of the Australian citizen for whom the help of the relative is sought. The inquiry should not, in those circumstances, be perfunctory or superficial. Such cases are distinctly individual cases."
His Honour thought:
"Clearly, the regulation cannot be properly and correctly applied unless close consideration is given to the nature of the needs of the Australian citizen or permanent resident in question. These needs must not be looked at in a broad and general way. As I have already said, the particular needs of the particular individual must be closely analysed and considered.
To brush aside lightly, in a dismissive way, the special requirements for ongoing emotional support and understanding of a physically disadvantaged or disabled Australian citizen with a poor command of English and with an ethnic background which, of itself, might generate particular problems of communication and understanding, would be to fail to apply the regulation in accordance with law."
In Minister for Immigration etc v Teo (1995) 57 FCR 194 the Full Court (Black CJ, Gummow and Beazley JJ) disapproved the Fuduche line of authority. The Full Court said (at 206-207):
"There is one further matter of construction to which we should refer. It involves a reading of the legislation from a starting point which unduly favours the applicant for the permit.
In the course of his reasons, the primary judge said:
'There is no warrant for an unduly technical reading that would restrict the application of the subparagraph [131A(1)(d)(v)] so as to deny it the full scope which the fair meaning of its language allows. On the contrary, it is a beneficial provision, designed to remedy the plight of those non-citizens in respect of whom reg 131A was framed. In Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 at 527 I described the provision in respect of a 'special need relative' as a 'beneficial provision' and referred to:
'the benevolent intent of the regulation which, on ordinary principles … 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 and 315.'
As Burchett J indicated, these authorities were concerned with the definition of 'special need relative' in reg 127. This prescribes criteria in relation to an extended eligibility (family) entry permit.
The construction of the regulations is to be approached by looking first to the statutory power in exercise of which they were made. As we have indicated, that is found in s 33 of the Act. This provides that the regulations may make provision that a person is entitled to be granted an entry permit of a particular class if the person satisfies all the prescribed criteria in relation to that class (s 33(2)(b)). The power is expressed as being 'subject to sections 40 and 45'. Section 40 empowers the Minister to determine that the processing of entry permit applications of a specified class which have been made by persons who have entered and remained in Australia is to stop until a day specified in the notice given by him. Section 45 provides that an entry permit shall not be granted to certain deportees where an amount is still payable by them to the Commonwealth under s 65 or s 66. Section 65 deals with the costs of deportation, and s 66 with the costs of keeping deportees in custody.
Further, s 34 imposes upon the Minister an obligation, where the relevant jurisdictional pre-condition is established, either to grant or refuse an entry permit. Judicial review of decisions of the Tribunal is confined by s 138 to an 'appeal' which is 'on a question of law'.
The result, if the statute and the regulations are taken as a whole, is to disclose a compromise which represents a balance between various competing interests which are involved. The particular pattern which is set in this way is not to be distorted by treating one element in it other than in accordance with the fair meaning allowed by the language which has been used. There is no reason to give a 'broad and generous construction' to reg 131A. To do so may detract from the force given in the balance of the legislative scheme to the other interests which are involved. These include the view taken by other branches of government and reflected in the legislative text, being the statute and the regulations, of the social and material interests of the country as a whole in relation to the entry and settlement of aliens, and of the conditions which should be attached to permission to enter and stay in Australia: Robtelmes v Brenan (1906) 4 CLR 395 at 400; Pochi v Macphee (1982) 151 CLR 101 at 106.
In so far as the primary judge criticised the Tribunal for not construing the legislation in the manner discussed in Fuduche at 527, with respect, we would not agree. Nevertheless, in other respects, the decision of the Tribunal was flawed by error of law, and in that respect the orders made by the primary judge are to be upheld."