Fuduche v Minister for Immigration etc

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."

Huang In Huang v Minister for Immigration etc (unreported, Federal Court of Australia (Full Court), 29 November 1996) the visa in question was a Preferential Family visa (cl 104.211(3)). In effect the requirements were that the applicant (a) be a special need relative to an Australian citizen and (b) be sponsored by the Australian relative or spouse. Hill J (with whom Jenkinson J agreed) rejected the argument that a person who could comply with the first, but not the second, requirement could nevertheless obtain a visa. After dealing with the sponsorship issue, his Honour went on to deal with the argument on the issue of "special need relative". His Honour concluded (at 12): "In my opinion, the present definition of 'special need relative' relevant to sub-class 104 visas, should not be construed so as to include every case involving a child of tender years unable to care for himself or herself. The words 'other serious circumstances' affecting the citizen or resident personally, or a member of his or her family unit, 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. It is hardly conceivable that the expression 'serious circumstances' should reflect merely the tender age of a person." The other member of the court (Lehane J), disagreed with the view of Hill J as to the sponsorship requirement. However as to the "special need relative" issue his Honour said (at 5): "I respectfully agree with Hill J, for the reasons given by his Honour, that a young child is not, in the absence of other circumstances, under the Regulations as they now stand to be regarded for the purposes of the definition of 'special need relative' as having 'a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances'." It was argued in the present case that what was said in the Full Court about the definition of "special need relative" was obiter. I do not agree. There were two issues, sponsorship and "special need relative", and the Court found that the appeal failed on both issues. But the point is an academic one. Since all three members of the Full Court agreed on the construction of "special need relative" and declined to follow the Fuduche line of authority, it could hardly be expected that the IRT would take a different view, any more than would a single judge of this Court. In any event, the earlier Full Court decision of Teo was to the same effect. This decision effectively overruled the Fuduche construction. It is somewhat surprising that Teo was not cited to the Full Court in Huang. The decision in the former case was handed down some 17 months before the argument in the latter.

The Decision of the IRT After referring to the evidence, and noting also that funding arrangements for the applicant from the TAC would cease if he returned to Tonga, the IRT said: "The Tribunal has in previous decisions (eg Re Sanchez IRT Decision 4150, 26 August 1994) found that an Australian citizen child particularly of tender years is entitled to have his/her parent(s) present in Australia and that a parent of a child of Tevita's age was a 'special need relative' of the child. However the Full Federal Court of Australia in Huang v Minister for Immigration and Ethnic Affairs (1996) 1040 FCA 1 (29 November 1996) has held that the definition of a 'special need relative' should not be construed so as to encompass the normal parent/child relationship. The definition of a 'special need relative' does not include every case involving a normal child of tender years unable to care for himself or herself." After citing a passage from the judgment of Hill J in Huang the IRT concluded: "In the circumstances the Tribunal feels it is unable to follow its previous decisions as in Re Sanchez (above) and must follow the Full Federal Court's findings that the definition of a 'special need relative' does not encompass the normal parent/child relationship. Therefore given the evidence and material before it the Tribunal finds on balance that the Applicant is not a 'special need relative' for his son Tevita or for the others in the family unit Ms Bayley and Shannon. Therefore he is unable to satisfy the requirements of Part 806 of the Regulations to be granted a Subclass 806 (Family) visa."

The applicant's argument Counsel for the applicant put her case on two bases. (i) The first basis accepts the narrow, or post-Huang,construction of "special need relative". It was said that the applicant's accident and resultant disability is a "disability" which "affect(s)" the citizen Tevita. Alternatively, that "disability" "affect(s)" the applicant himself, and he is a member of Tevita's "family unit". The applicant's disability means that Tevita will have a "long-term need for assistance" for emotional and psychological support and to preserve and encourage his Tongan identity. Tevita is unlikely to secure that support, preservation and encouragement from his mother. The applicant's disability means that the physical distance between him and his son (if he returns to Tonga) and his lack of access to proper medical care and rehabilitation will affect the nature and quality of Tevita's relationship with him. Thus, the fact of the applicant's disability produces in Tevita a "long-term need" for Tevita to be physically close to his father, and to see him in circumstances where the applicant can maximise his rehabilitation so as to be the best father he can to Tevita. (ii) The second, and alternative, basis involves distinguishing Huang and applying Chen. There are "serious circumstances" affecting Tevita, namely the long-term need for emotional, psychological and cultural support and education which can only be provided by the applicant. The need of a young child to be with his parent is a "serious circumstance".

Conclusion As to the first basis, I agree with counsel for the respondent that the "permanent or long-term need for assistance" must be causally linked to the "… disability … or other serious circumstances affecting the citizen". The former must be "because of" the latter. In the present case the applicant's disability does not cause Tevita's need for assistance. The most that can be said is that, if the applicant returns to Tonga, his ability to provide the assistance he gives at the moment will be much reduced. The cause of this deprivation of assistance to Tevita is not the applicant's disability but his removal from Australia. It may be doubted whether the applicant is a member of Tevita's "family unit". He does not fit the statutory definition in reg 1.12 of the Migration Regulations,which only applies if Tevita is a "family head". On the ordinary meaning of the expression, I think the only family unit here is that of Ms Bayley and her two children. The applicant has a relationship with Tevita as father and son and, as a consequence, a relationship with his former partner Ms Bayley. But those individual relationships do not mean that the applicant is part of the family unit. He and Ms Bayley and her two children do not operate together as a family. But even accepting for the purpose of argument that the applicant is a member of a family unit which includes Tevita, the definition of "special need relative" assumes that the "substantial and continuing assistance" will be provided by somebody other than the person (be it the citizen or a member of the citizen's family unit) who has suffered "disability" etc. What the definition contemplates is a situation where there is a "need for assistance" because of "disability" etc affecting the citizen, or somebody in the citizen's family unit who might otherwise care for him or her, and that assistance is only capable of being reasonably obtained from the relative. The applicant's argument is an attempt to fit the relative's disability into the framework of the definition. As to the second basis, for the reasons I have already mentioned, the Full Court decisions in Teo and Huang make it clear that the definition of "special need relative", and in particular the expression "other serious circumstances" are referring to something more than the deprivation which ordinarily would follow from the separation of parent and child, undoubtedly serious as that usually will be. Counsel for the applicant criticised the IRT's decision for what she said was its failure to "assess the facts", particularly in relation to Dr Jacka's opinion. However the IRT clearly considered that evidence and quoted a lengthy passage from it. To the extent that Dr Jacka focused on the criterion of "weighty or important" circumstance derived from Chen, he addressed what must now be taken to be an inaccurate paraphrase of the requirements of the regulation. In any case, the evidence of Dr Jacka was not in a field in which lay opinions could not be validly held: see Zakinov v Gibson (unreported, North J, 26 July 1996) at 13. On this ground alone the matter is distinguishable from the very unusual circumstances of Fuduche where the lay decision-maker in effect ignored the uncontradicted evidence of a specialist psychiatrist who had treated the person in question over a number of years for a clinical psychiatric condition, including episodes of attempted suicide. The IRT concluded in effect that the need of Tevita for his father did not go beyond the "normal parent/child relationship". This conclusion was open on the evidence. It is sad indeed that a small child is likely to be separated from a father who as a consequence will be unable to provide love, support and a cultural and ethnic inheritance. But such a result will often follow from the separation of parent and child and does not of itself bring the parent within the definition of "special need relative".

Order The application will be dismissed with costs, including reserved costs. I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey

Solicitors for the Applicant: Erskine Rodan & Associates

Solicitors for the Respondent: Australian Government Solicitor