Hsieh v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2002-12-13|Before: Drummond J

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, a settled Australian permanent resident or a settled eligible New Zealand citizen; and

"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;

11 The term "settled" in the phrase "settled Australian citizen" in item 806.213 was defined in reg 1.03 as follows:

"settled", in relation to an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means lawfully resident in Australia for a reasonable period;

12 It can be seen that the Migration Regulations raise a very large number of hurdles to these two infant Australian children being able to live in Australia in the care of their mother, who has looked after them from birth. 13 The delegate refused the visa on the ground that the applicant did not satisfy the requirement in item 806.213 that, at the date of the visa application, she was a "special need relative" of either of her daughters. On review of this refusal, the Tribunal had before it an extensive range of material. But the Tribunal ultimately concluded that the applicant was not a "special need relative" at the time of her visa application and accordingly affirmed the delegate's decision. It did not need to consider whether the children, though indisputably Australian citizens, were also "settled Australian citizens" and, in addition, "usually resident in Australia" at the date of application. Nor did it find it necessary to make express findings on the other issues raised by sub-par (b) of the definition of "special need relative" in reg 1.03. 14 In the proceedings in this Court, the applicant's solicitor confined his submissions in relation to grounds 1 and 2 of the application for review to the Tribunal's refusal to receive evidence from the child, Deena. 15 If the complaints in grounds 1 and 2 were well-founded, they would provide some evidence that the Tribunal's decision might be exposed to review on the basis of the first of the Hickman provisos. I set out Kan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 923, pars [16] to [32], my understanding of the scope of the review of privative clause decisions by this Tribunal permitted under the first of the Hickman provisos. I would only add to what I said in par [21] a reference to Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee (1945) 72 CLR 37 at 77 and 82 - 84. 16 The applicant put material before the Tribunal to show that she was a "special need relative", particularly of her child Deena because Deena came within par (a) in the definition of "special need relative" set out above. At the end of the oral hearing, the applicant, at the suggestion of the Tribunal, elaborated at pp 31 to 33 of the transcript on the care that Deena needed because of her back problem. It is apparent from the Tribunal's reasons that it had regard to this material, dealing with it in the following passages:

In support of the original visa application the visa applicant's then agent Gibsons Lawyers provided several submissions arguing that the visa applicant's daughters suffer "serious circumstances" that bring them within the special need relative definition. A report from Daryl Lightfoot Senior Social Worker and Dr Brent G.H. Waters, Consulting Child Psychologist dated 23 September 1999 and 22 October 1999 respectively, was also submitted and can be fully found in the Department's file. A common theme running through these reports is that there is a strong bond between the visa applicant and her daughters, the nominators, and that the visa applicant plays an important role in the nominator's lives. Furthermore, the reports claim that following the divorce the father's contact with the children has not been on a day to day basis. Dr Waters' report concluded, 'it is my view that any circumstance which would have the effect of separating the children from their mother would be devastating for the children's short term and long term well being'.

In the course of the review the agent provided additional submissions. These include a number of medical reports, past and current, supporting the visa applicant's claim that the nominators would suffer if the visa applicant would not able to remain in Australia with them. The submissions included reference to one child's nocturnal enuresis, the claim that both children were exposed to trauma as a result of the parents' separation and that the nominators would suffer hardship if the visa applicant would be required to depart Australia. Several Federal Court cases including Shan and Chen was cited and it was submitted that as Australian citizens the children have a right to reside permanently in Australia. The agent disputed the delegate's comment that the children's father will not take drastic action against the applicant if she should try to take the children from Australia as mere speculation, claiming that 'all evidence points to the contrary'. He further submitted that the best interest of the children should be a consideration. Letters from the nominator's school and priest, school reports, and copies of reports as well as statutory declarations previously submitted were also provided.

At the hearing the visa applicant reiterated much of the material contained on file. The visa applicant confirmed that her daughters are normal children and do no suffer from a disability or pro-longed illness. However she pointed out that one of her daughters has a problem with bed-wetting which requires the visa applicant's support. A back problem experienced by the daughter also requires the visa applicant to supervise an exercise program twice weekly. The visa applicant stated that her daughters are integrated in the Australian community and are settled and happy in their current environment. The visa applicant acknowledged the nominators' paternal grandparents who reside in Australia sometimes provide care to the children, but indicated that the relationship between her and the grandparents is not always satisfactory. The visa applicant stated that if she were not able to remain in Australia, the children would feel insecure and be adversely affected. She speculated that in the event or her and the children moving to her country of origin, Taiwan, it would be difficult for her to find a job and support the children. Furthermore the visa applicant claimed that the children would suffer as they speak only English, have not experienced the cultural mores of Taiwan and would be discriminated against because of their mixed race background. Whilst understanding the need to meet the requirements as set out in the Regulations for the granting of the visa sought, the visa applicant nevertheless believes that in her case compassionate grounds exist and should be taken into consideration.

The visa applicant has claimed that one of the nominator's has a medical condition and that this is long term. The files contain medical reports provided in support of this claim, including one provided by Dr Winkle (dated 23 September 2001) and Nippon Medical School (undated, but received by the Tribunal on 18 October 2001). The Tribunal notes Dr Winkle refers to 'a strong family history' in respect to the medical condition and states "it is likely it will be a couple of years before Deena has resolution of her enuresis." Having considered these and other medical and psychological reports on file, the Tribunal is not satisfied that this condition is a prolonged illness or of a serious nature as envisaged under the regulations. Indeed it was the visa applicant's own evidence that the nominators are well adjusted and happy in their environment and that apart from a set of exercises for the nominator's medical condition, no further treatment is required.

The Tribunal must consider whether the visa applicant is a 'special need relative' at the time of application and whether the visa applicant remains a 'special need relative' at the time of decision. … Other than the enuresis (a fairly common condition) experienced by one of the nominators, they are normal in every way, receiving daily care from the visa applicant, as one would expect in a normal parent-child relationship. In other words the nominators have no need for a 'permanent or long-term need assistance because of death, disability or prolonged illness'. From the evidence provided the Tribunal finds that there are no circumstances in this matter that can be construed as 'being serious' and above and beyond that of a normal parent-child relationship.

17 In the proceedings in this Court, the applicant did not attempt to put evidence before the Court to indicate what information additional to that which was before the Tribunal and to which it referred in its reasons that might have been provided if the Tribunal had heard from Deena herself. 18 Given this and given also the consideration the Tribunal gave to the quite extensive material before it relevant to the applicant's reliance on Deena coming within par (a) of the definition of "special need relative", I am of the opinion that there is no factual foundation for the complaint in ground 2 in the application for review. 19 Nor, in my opinion, is there any factual foundation for the complaint made in ground 1. Towards of the end of the oral hearing, this exchange occurred between the applicant's solicitor (AVZ) and the Tribunal member (RJ):

AVZ Is it necessary to give the children an opportunity?

RJ Could you explain to me the strategy and thinking why the children would want to participate in this and if they did, what would they say?

AVZ The only thing that they will refer to is about the back problem and the question of bed wetting. If the Tribunal feels that.

RJ I think there is sufficient evidence here to say that there is bed wetting, albeit that, you know, many thousands of children in the world have bed wetting. So I don't think from that point of view, I just don't feel it would be fair to subject these children to any questioning. I mean (a) they're not really about to tell me very much and it is an emotional issue and as you well know I am not at liberty to take in the emotions in this matter, I can only make a judgment within the immigration laws. So I would suggest it would be in the interests of everyone not to take evidence from the children but if you absolutely insist that's your, I am happy to oblige.

AVZ I don't think I'm in a position to insist and to prescribe to the Tribunal.

RJ I know you're not but I am giving you the option. I mean, perhaps you would like to comment on what I've just said before I make a decision in that respect.

AVZ I would just like if possible to call the one child to talk about her back problems and the question of her exercises and also to give the Tribunal an indication of the level of English.

RJ Look, I'm quite sure that the level of English is perfect. I mean, the children do go to school. They are educated in English. They live in a predominantly English speaking society here so I don't think there's any problems with that. In regards to the back, perhaps the visa applicant can tell me the exercises that the child is required to do.

20 It was at this point that the applicant herself then gave information to the Tribunal about Deena's difficulty with her back, to which I have referred. The Tribunal made it clear to the applicant's solicitor that, if he insisted, it would hear from the children. The solicitor did not insist. The Tribunal did not refuse to receive evidence from the children. 21 As to the complaint in ground 3 of the application, Mr Lynch gave evidence. In summarising his evidence, the Tribunal referred to what he had to say about having continued to reside in Japan for business purposes, and added, at par [17]:

The witness further told the Tribunal that should the visa applicant not succeed in obtaining a visa to remain in Australia, he is prepared to return to Australia to be with the children and resume legal proceedings as he wishes his children to remain in Australia.

22 In par [30] of its reasons, in stating its conclusion that the applicant was not a "special need relative" of either of the children, the Tribunal said it had taken into account the applicant's claim that the children should remain in Australia and had noted Mr Lynch's statement "that if necessary he will return to Australia". 23 It seems clear enough that the Tribunal misunderstood Mr Lynch's evidence in this regard. The transcript of his evidence does not support what the Tribunal said about Mr Lynch's intentions. In the course of discussing with the Tribunal member what he would do if the applicant were not to be able to remain in Australia, he in fact said:

If she were unsuccessful in her visa application there is currently no way that I know of that my children would be able to stay in Australia.

24 After he finished his evidence (which he gave by telephone), the Tribunal member told him that he was free to stay on the line if he wished, to listen in to the rest of the proceedings. This exchange then occurred:

Lynch I would be interested to continue listening into the proceedings because this has a profound impact on my life.

Lynch Because if she is unsuccessful and she has to leave Australia that means then for the children to stay in Australia it would mean I would have to give up my position here which allows me to earn enough money to be able to pay child support, give it up and I would have to go to Australia and then try and get legal custody of my children.

Lynch And, you know, that's quite a turmoil in my life.

25 It is difficult to accept that Mr Lynch was here giving the unequivocal commitment to return to Australia to be with the children should the applicant not obtain her visa that the Tribunal understood him to have made. Rather does he appear to be musing about the difficult situation he would be in if the applicant were not to get her visa, without committing himself to any course of action. When this passage is read in the context of the evidence he gave immediately before this exchange, to which I have referred, it seems pretty clear that the Tribunal misunderstood his evidence about his intentions. 26 Having regard to what Mr Lynch in fact said, it is not possible, in my opinion, to find, in the mistake the Tribunal made about his intentions, any evidence that, in coming to its conclusion adverse to the applicant, the Tribunal did not make a bona fide attempt to exercise the relevant power conferred upon it under the Migration Act. The Tribunal's error has no feature of blatancy about it that might be capable, particularly if the applicant had also been able to show a good factual basis for her complaints in grounds 1 and 2 of her application for review, of giving rise to a suspicion of bad faith in the exercise by the Tribunal of its powers. When regard is had to the examination the Tribunal conducted of the evidence before it and to its identification of the issues it had to determine, there is no basis for thinking that the Tribunal's decision might be open to review under the first of the three Hickman provisos or on the "inviolable condition" ground of review. 27 The Tribunal expressly took into account, in reaching its decision that the visa applicant was not a "special need relative", its mistaken understanding of Mr Lynch's intentions. That was a matter relevant to the issue raised by par (b) of the definition of "special need relative". That the Tribunal may well have misunderstood what Mr Lynch had to say about his intentions is, in my opinion, no more than an error of fact. But, after reviewing in some detail the evidence directed to the point, the Tribunal concluded that Deena's medical problems were not sufficient to bring her within par (a) of the definition of "special need relative". That conclusion was sufficient, without more, to require the Tribunal to refuse the applicant her visa. The Tribunal's misunderstanding of what Mr Lynch said is not a material error, ie, it is not an error that affected the decision of the Tribunal to refuse to the applicant the visa she was seeking. On no basis can this error by the Tribunal open the decision to review. 28 The complaint in ground 4 of the application for review focuses on the statement by the Tribunal in par [24] of its reasons:

There is no claim before the Tribunal that indicates the visa applicant needs to care for the nominators because they are suffering from a disability or are in any way incapacitated.

29 However, the Tribunal made this statement after having, in pars [13], [15] and [16] of its reasons set out above, referred to the report of the social worker (Daryl Lightfoot) mentioned in sub-par (a) of ground 4 of the application for review and to the substance of what was said by Dr Winkle, who is referred to in sub-par (b) of ground 4 of the application. And, in par [25] of its reasons, the Tribunal returned to and reviewed at some little length the information provided by Dr Winkle and that provided by Dr Masawi Tsuchiya of the Nippon Medical School referred to in sub-par (c) of ground 4 of the application for review. Moreover, the Tribunal, in par [29] of its reasons, set out its evaluation of this material. Far from ignoring the evidence of the social worker, Dr Winkle and Dr Tsuchiya, the Tribunal was well aware of all that material, considered it and evaluated it in the course of reasoning its way to its conclusion. 30 In my opinion, the Tribunal's statement in par [24] must be understood as an expression by the Tribunal of the conclusion it had reached about whether either of the children came within par (a) of the definition of "special need relative". What follows in the Tribunal's reasons after par [24] appears clearly enough to be its explanation for how it reached that conclusion. The complaint in ground 4 of the grounds for the application thus focuses on the form of words used by the Tribunal. Read in isolation from the rest of the reasons and with knowledge that material from the experts referred to in sub-pars (a) to (c) of ground 4 was before the Tribunal, this passage suggests a serious departure by the Tribunal from its duty to conduct its review of the delegate's decision in accordance with Div 5 of Pt 5 of the Migration Act. But when par [24] is read, as it must be, in the context of the Tribunal's reasons as a whole, this complaint is also revealed to be without any factual foundation. None of the bases upon which this Court can grant relief under s 39B(1) the Judiciary Act in respect of the Tribunal's decision is established when the issue raised by ground 4 is examined. 31 As to ground 5, the Tribunal set out the definition of "special need relative" and was fully alert to the need to determine whether either of the children came within sub-par (a) of that definition because they could be said to be in long-term need for assistance because of disability, prolonged illness or other serious circumstances affecting them. I have set out above the quite extensive passages from the Tribunal's reasons in which it reviewed the evidence relevant to whether Deena could be said to be in need of assistance because she suffered from a disability or prolonged illness. I have also set out above the passages in the Tribunal's reasons in which it explained why it came to the conclusion that Deena did not come within this part of the definition of "special need relative". 32 It was submitted in support of ground 5 that the Tribunal, in effect, fell into error in applying in this case the decision in Huang v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 95. The Tribunal, in par [22] of its reasons, recognised that it was necessary to deal with each aspect of the definition of "special need relative". It clearly enough found, on the basis of Huang, that neither Deena nor Jana came within par (a) of the definition of "special need relative": neither was in need of long-term assistance because of "other serious circumstances affecting" that child. 33 In Huang, Hill J, giving the leading judgment in the Full Court, dealt with the then current provisions of the Migration Act and Regulations not materially different from those now found in the definition of "special need relative". His Honour said, at 99 - 100, that:

In my opinion, the present definition of "special need relative" relevant to subclass 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. In so holding, I express no view as to whether Chen's case was correctly decided on the regulations and in the context then prevailing.

If the criteria in cl 103 are satisfied, including sponsorship requirements stipulated both for under 18 and over 18 year old children, a parent can obtain a visa to be reunited with and to look after an otherwise healthy child. Clause 104 is concerned with a case where there is a need for permanent or long-term assistance arising out of some serious circumstance which affects an Australian citizen, and in such a case sponsorship will, in my view, be required. It is true that if an application were made under cl 104 on the basis that an infant child was ill and required long-term assistance, cl 104 would result in that application being unsuccessful because the sponsorship criteria could not be satisfied when the child was unmarried and under 18 years. The policy behind cl 104 is, in my view, to this extent difficult to discern. It is a matter to which attention should be given when the regulations are reviewed for amendment.

34 His Honour, at 99, had earlier emphasised the need to consider, in the legislative context, in construing the expression "special need relative" relevant to Subclass 104 visas. His Honour noted the earlier decision in Chen in which Davies J had construed "special need relative" as encompassing the case of an applicant who was the parent of an infant child who, solely because of its tender age, needed the parent's care, but noted that, at that time, there was not in force a regulation equivalent to cl 103 in force at the time the decision in Huang was given dealing specifically with parent/child reunion. In placing the narrow interpretation he did on "other serious circumstances", his Honour relied on the fact that, in the regulations then in force, cl 103 specifically dealt with parent/child reunion and, accordingly said, at 99: "There is much now to be said for the view that where cl 103 deals specifically with parent/child reunion, cl 104 should not be construed so as to cover the same ground but rather only those cases which do involve special circumstances …". 35 Counsel for the respondent, at my request, forwarded to me after the hearing relevant provisions of the Migration Regulations in force at both the date on which the applicant made her original visa application (23 October 1998) and at the date of the Tribunal's decision (7 August 2002). At both dates, the regulations made provision, by a Subclass 103 - Parent visa, for the reunion of a settled Australian citizen child under eighteen with a non-citizen parent. The criteria for this particular visa do not include any requirement that the child have any special need for assistance. There is therefore, in my opinion, no basis for distinguishing the Full Court decision in Huang. It follows that the Tribunal correctly interpreted the expression "special need relative" in applying that element of the visa criteria to the facts of this case. 36 It was also submitted, in effect, that, even if the Tribunal was bound to apply Huang, it still fell into error in holding that Deena did not come within this part of par (a) of the definition because she was affected by much more than mere tender age. The applicant's argument here was that the experts' reports to which the Tribunal referred, together with that provided by Dr Ferries, a chiropractor, showed that Deena was suffering from a much more significant range of disabilities than the Tribunal found to be the case. Reference was made by way of example to the evidence of Dr Winkle, who said that her problems with nocturnal enuresis were not likely to resolve for some years, and reference was also made to Dr Tsuchiya's evidence that Deena's problems were associated with vesicourethral reflux. The Tribunal, however, expressly referred in par [25] of its reasons to Dr Winkle's prognosis for Deena and to other statements made by Dr Winkle which show that it had read his report and also the report from Dr Tsuchiya that dealt with her reflux condition. I have read the material and reports obtained from the various experts, including Dr Winkle, in connection with the proceedings in this Court, which were not available to the Tribunal. There is nothing in any of this material to suggest that it was not open to the Tribunal to make the assessment it did about whether Deena's various problems, including her problem with enuresis, did not show that she was suffering from a disability or prolonged illness and was thus not in need of long-term assistance within the meaning of those expressions in sub-par (a) of the definition of "special need relative". All that is here challenged is the correctness of the factual assessment made by the Tribunal. 37 There is thus no basis for the contention advanced on behalf of the applicant that the way the Tribunal dealt with the expert material relevant to Deena's problems exposes the Tribunal's decision to review under s 39B(1) the Judiciary Act. 38 It was also submitted that the Tribunal misconstrued the terms "special need relative" and "assistance" by failing to take into account the Convention on the Rights of the Child. In view of the decision of the Full Court in Huang that is binding on me, it is not open to me to give any effect to this submission. 39 The application will be dismissed. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Solicitor for the Respondent: Blake Dawson Waldron

Judiciary Act 1903(Cth)s 39B(1)

Migration Regulations 1994(Cth)reg 1.03, Schedule

See the Migration Legislation Amendment (Judicial Review) Act 2001(Cth)

3 Though this case is concerned with a challenge by the applicant to refusal of the visa she applied for as long ago as October 1998, it is common ground that the Tribunal's decision is a "privative clause decision" within s 474 the Migration Act 1958 (Cth), a provision inserted only in October 2001. See the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), s 2(2) and Item 8(2) of Pt 2, Sch 1. The sole source of jurisdiction in this Court to review such a decision of the Tribunal is s 39B(1) the Judiciary Act 1903 (Cth). The respondent did not contend that the application could not be treated as invoking that limited jurisdiction, though the application is in a form appropriate for review of the Tribunal's decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). 4 In NABM v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294, the Full Court, at par [24], held that:

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