Jackson v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 By a further amended application the applicant seeks review in respect of a decision of the Migration Review Tribunal ("the Tribunal") given on 28 February 2002 in which the Tribunal affirmed a decision of a delegate of the respondent to refuse the grant to the applicant of a Special Eligibility (Residence) (Class AO) visa. Alternatively, the applicant seeks a writ of prohibition or certiorari pursuant to s 39B of the Judiciary Act 1903 (Cth) in respect of the decision of the Tribunal. The review is sought in reliance on s 476 of the Migration Act 1958 (Cth) ("the Act") as it stood at the date of the application for review on 26 March 2002. 2 The applicant is a national of the United Kingdom born on 30 October 1951. He applied for a Family (Residence) (Class AO) visa on 16 June 1998. The decision of the delegate of the respondent to refuse the grant of visa was made on 23 June 2000. 3 Provision for the issue of visas having the effect of granting to non-citizens permission to enter or remain in Australia appears in s 29 of the Act. The provision is in terms that, subject to the Act, the respondent may grant such permission. A visa, as the permission is described, may be permanent or temporary: s 30. There are prescribed classes of visa: s 31. In addition to prescribed classes provided for in the Act, the regulations may prescribe criteria for a visa of a specified class: s 31(3). 4 The visa sought by the applicant is a class of visa provided for in Sch 1 of the Migration Regulations. The relevant provision was in item 1115 of that schedule as it stood at the date of his application. Item 1115(4) specified the subclass 806 for Family. Among the criteria specified by cl 806.21 to be satisfied at the time of application was, relevantly, that the applicant is a "remaining relative" or a "special need relative" of another person who is a settled Australian citizen or a settled Australian permanent resident. Clause 806.22 provided, relevantly, that the criteria to be satisfied at the time of the decision were that the applicant continued to satisfy the criteria in cl 806.213. 5 The phrase "special need relative" was defined in the Migration Regulations r 1.03 to read: ""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;" 6 Other definitions to be read in conjunction with that definition are that of "relative" which relevantly includes a "close relative." This latter description is defined to include a child. The word "settled" is also defined as meaning lawfully resident in Australia for a reasonable period. 7 The description "remaining relative" was, by r 1.03, given the meaning in r 1.15, as follows: "1.15 (1) An applicant for a visa is a remaining relative if the applicant has a relative who: (a) is: (i) a brother, sister or parent; or (ii) a step-brother, step-sister or step-parent; of the applicant; and (b) is: (i) an Australian citizen; or (ii) an Australian permanent resident; or (iii) an eligible New Zealand citizen; and (c) is usually resident in Australia; unless the applicant is disqualified under subregulation (2). (2) An applicant is disqualified if: (a) the applicant or the spouse (if any) of the applicant: (i) usually resides in the same country, not being Australia, as an overseas near relative; or (ii) has had contact with an overseas near relative during a reasonable period preceding the application; or (b) …… (c) ….. (3) In this regulation, overseas near relative, means a person who is: (a) a …non-dependent child; or (b) ….; of the applicant or of the spouse (if any) of the applicant but is not a relative of a kind referred to in subregulation (1)." 8 In addressing the application of these provisions the Tribunal had before it the portions of the Department's Procedures Advice Manual ("PAM") which, as its reasons disclose, it applied in analysing the application of the above sections to the applicant's case. The relevant portion of PAM was quoted in the reasons of the Tribunal as reading as follows: "2. 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 need of the ill person or the family; or . an incapacitating illness or disability creating a need for physical assistance in the home. 3. It is policy that, in the absence of other extenuating circumstance, 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." 9 PAM was issued pursuant to the power in the respondent in s 499 of the Act whereby he may give written directions to a body having functions or powers under the Act about the performance of those functions or the exercise of those powers. By s 499(2) it is provided that the directions cannot be inconsistent with the Act or the regulations. As a consequence of s 499(2A) the body must comply with a direction so made. There is no submission here that PAM is inconsistent with the Act or the regulations: cf Jun v Minister for Immigration & Multicultural Affairs [2000] FCA 867 at par 11. 10 It may be noted that the definition of "special need relative" was repealed on 1 December 1998. Regulation 806 was repealed in respect of applications for a visa made on or after 1 November 1999: Migration Amendment Regulations 1999 (No 13), Statutory Rules 1999 No 259, reg 4 and Sch 2 par 2351. Those changes therefore do not affect the application of the above law, in force on the date of the application, to the applicant's case. 11 When the application came on for argument on 30 July 2002 it was common ground that the viability of the application depended upon the proper interpretation to be given to s474 of the Act, known as the privative clause. It has now been settled by the High Court in Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2 that if the decision of the Tribunal was infected by jurisdictional error it was not a "privative clause decision" within the meaning of s 474(1) so that it would not be precluded from review by that provision. If, however, the decision is found to not be so infected and the three conditions referred to in R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 at 616 are satisfied, s 474 will apply to limit review. 12 It therefore becomes the central question here to determine whether the Tribunal was in jurisdictional error. The nature of that error was described by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351. 13 The contentions for the applicant are that the Tribunal made three errors. The first is that the Tribunal asked itself the wrong question and so failed to decide the question it was required to decide. It is submitted for the applicant that the Tribunal asked what assistance the applicant was in fact providing and whether that was substantial and continuing, rather than what assistance he was willing and able to provide. It is also said that the Tribunal asked whether the nominator's need for assistance was substantial, rather than whether the applicant was willing and able to provide substantial assistance. The second is that it erred in its application of the PAM Guidelines in that it failed to accept that several classes of assistance not individually constituting substantial assistance may in combination be regarded as substantial. The third is that the Tribunal erred jurisdictionally in holding that willingness and capacity to provide emotional support was incapable of being both substantial and continuing support. 14 It is not in dispute that if the Tribunal did ask itself the wrong questions as alleged or ignored relevant material it would have fallen into jurisdictional error. The critical question is therefore what the Tribunal in fact did in its reasoning process. 15 For the respondent it is contended that properly understood the reasoning of the Tribunal was one of "evaluative judgement." It is said that the Tribunal looked at what the applicant had in fact provided because that was the best evidence of what he would be willing and able to provide. It is therefore submitted that this is not a case where the Tribunal asked itself the wrong question. If, contrary to those submissions, the Court finds that the Tribunal was in error in that respect, the case for the respondent further maintains that the error would not be such as to go to the jurisdiction of the Tribunal so that the application should be dismissed in any event. 16 On the question of whether the applicant was a special need relative the Tribunal found he did not meet the requirements of the definition at the time of the application. Its reasoning was as follows: "36. The Tribunal is cognisant of the medical information provided, both for the visa applicant's late father at the time of application, and for the nominator at the date of decision. However, at the time of the visa application, the further evidence is that the assistance rendered by the visa applicant was of the kind excluded by policy. He gave companionship of a relative, general domestic assistance and financial support. The nature of his overall support was described in the application form as emotional assistance. The reason for the assistance was the trauma associated with imminent death and the visa applicant was unable to give any assistance that would prevent this. He could only ease the situation. 37. The Tribunal has therefore concluded that the visa applicant did not meet the definition of special need relative at the date of application and did not then satisfy subclause 806.213 despite the tragic circumstances. 17 On the question whether the applicant met the definition of "remaining relative", the applicant was also excluded because he usually resided in the same country, the United Kingdom, as his adult non-dependent son. 18 On the first question the ratio of the Tribunal's finding was that the exclusions of the policy were applicable; that is, that the evidence supported a finding that the type of support provided by the applicant fell within the three excluded descriptions. Given that there is no challenge to the legality of the policy, it cannot be said this was a case of the Tribunal asking the wrong question because the question asked was in terms of that policy. When the Tribunal preceded this by considering whether the assistance provided by the applicant was substantial and continuing assistance it reached no finding, stating only that it had difficulty with the proposition that the assistance was substantial at the date of application given that the nominator's depression had arisen since the death of her husband and the application had preceded that date. However, it left the issue open for consideration in relation to the PAM. There it did reach a finding and the effect of that was that the assistance provided by the applicant was of such character as, in the terms of the policy, not to constitute substantial and continuing assistance. This was the question it was required to address in terms of the policy. In my view the first limb of the applicant's case is not made out. 19 Turning to the second limb relating to the content of the policy, there are two aspects to it. The first aspect is that an answer to the question asked in terms of the policy was not determinative of the issue whether the applicant was "willing and able" to provide substantial and continuing assistance. This contention is based on the wording in item 3 of PAM where it states "none of the following on their own…requires substantial and continuing assistance." It is submitted that this wording does not provide guidance concerning the requirement that the applicant be willing and able to provide substantial assistance. Therefore it is said that to the extent PAM in those words suggests that the terms of r 1.03 make it a precondition of a person fitting within the definition of a 'special need relative' that the assistance required by an Australia citizen or permanent resident is 'substantial and continuing' it is inconsistent with r 1.03. This aspect of the applicant's case, while contended for in written submissions, was not developed at the hearing nor answered for the respondent in particular. In my view this is not a case where it has been established that the policy requires to be read down to fit the statutory framework. PAM par 3 is to be read in the context of PAM par 2 which states a broad and general intention for the application of the special need relative provisions. Paragraph 3, which is applicable only in the absence of extenuating circumstances, is to be understood in that context as stating what does not require substantial and continuing assistance. The consequence is that where such excluded circumstances exist, they are not a proper evidentiary foundation for seeking to find whether an applicant is willing and able to provide the required assistance: the question is otiose because r 1.03 read in the light of the policy is not intended to apply where the evidence shows assistance to be limited to those circumstances alone. 20 The second aspect of the applicants contentions founded on the wording of PAM are based on the words "on their own." It is said the Tribunal erred in ignoring the possibility that the three excluded circumstances found to apply to the applicant's case could in combination be regarded as substantial and so applied a test not provided for in PAM par 3. 21 PAM par 3 is a policy statement and not a statute. The words "on their own" are capable of being applied to preclude a cumulative application because each circumstance would in turn be excluded by application of the policy. Even if that were not the case the Tribunal was not in error of law in the way it dealt with the issue arising from the Act of whether the applicant met the criteria at the date of the application. It asked the correct question and had regard to the relevant evidence. 22 Finally, it is contended the Tribunal was in error of law in applying the wrong test when it did not consider that emotional support was capable of being both substantial and continuing support. It is not in dispute that emotional support may qualify to satisfy the provisions under consideration: cf Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA 311 at par 31. I do not read the Tribunal's reasons here as excluding that possibility. What the Tribunal did was to reach the view that in circumstances where the emotional support relied upon for qualification at the time of application was comprised of matters falling within the circumstances excluded by the policy, the emotional support present in the applicant's case did not satisfy the statutory requirements. That was a decision of fact that the Tribunal was entitled to make and not the application of a wrong test. 23 For these reasons I consider Tribunal was not in jurisdictional error. It is not contended that any of the Hickman conditions are not satisfied. Accordingly the application for review should be dismissed.