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[2003] FCAFC 203
Federal Court of Australia (Full Court)
2003-08-27
Moore JJ
Original judgment source is linked above.
REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from a judgment of a Judge of this Court made on 21 March 2003, dismissing the appellant's application for judicial review under s 476 of the Migration Act 1958 (Cth)("the Act") or, alternatively, issue of prerogative writs pursuant to s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Migration Review Tribunal ("the Tribunal") made 28 February 2002. The decision of the Tribunal affirmed a decision of a delegate of the respondent made 23 June 2000 refusing to grant the appellant a Special Eligibility (Residence) (Class AO) visa. Background 2 The appellant, a national of the United Kingdom, was born on 30 October 1951. He arrived in Australia on 19 April 1998 to visit his ill father. On 16 June 1998 he lodged with the Department of Immigration and Multicultural Affairs, ("the Department") an application for a Family (Residence) (Class AO) visa, which, if granted, would allow him to remain in Australia permanently. 3 It was a condition to the grant of such a visa that the applicant for the visa be nominated by an Australian citizen or permanent resident. The appellant was nominated by his mother. The appellant's application was grounded on the claim that he was a 'special need relative' of his parents (both Australian citizens). His father was seriously ill with cancer at the time of the application. 4 At the relevant time Subclass 806 of Schedule 2 of the Migration Regulations 1994 ("the Regulations") required the following criterion be satisfied at the time of the application: '806.213. The applicant is…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 (b) is usually resident in Australia; and (c) has nominated the applicant for the grant of the visa' 5 The Regulations provided that this criterion must be satisfied at the time of the application. A criterion to the same effect had to be satisfied at the time of the decision. 6 The term "special need relative" was defined in reg 1.03: '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.' 7 After the appellant made the application on 16 June 1998, amendments were made to the Regulations concerning both the name of the visa and the criteria that had to be satisfied for it to be granted. The visa became Special Eligibility (Residence) (Class AO), however, for the reasons given by McHugh J in Re Minister for Immigration and Multicultural Affairs; ex parte Cohen (2001) 177 ALR 473, the Tribunal had to determine the appellant's application by reference to the Regulations as they stood at the time of the application. 8 At the time of the application the matter relied upon by the appellant to satisfy the requirements of cl 806.213 were that the appellant provided to his father emotional support and physical assistance in various ways. His father was unable to walk because of pain in his leg. The father had an implant in the abdomen and needed to see various specialists such as urologists and oncologists every 2-3 days and the appellant accompanied him to those consultations. The appellant bathed his father when he requested such help. He helped his father physically by, for example, picking his father up when he fainted, a task beyond his mother's capabilities. The appellant would try to get his father to do physical exercises. He also assisted his parents with domestic chores as they had no other relative to help them. The assistance provided took the pressure off his mother and helped her to cope with his father's illness. The appellant also provided financial support to his parents. The cost of obtaining medical treatment for his father had been considerable and his mother had borrowed funds by mortgaging her only asset, her house. The financial obligations imposed by the mortgage could only be serviced with the monetary assistance provided by the appellant. 9 The appellant's father died on 15 November 2000. At that time the application for review of the delegate's decision had not been determined by the Tribunal. The appellant sent a letter to the Tribunal informing it of the death of his father. In this letter, he stated that his mother was frail and weak and that she was still recovering emotionally from the death of her husband. He wrote: This present situation alters the basis of my appeal, the emphasis now shifting upon the care and support that my mother genuinely needs. I sincerely trust taking into consideration this situation that my appeal be favourably considered. In a later letter the appellant said he initially moved to Australia to look after both parents, but that as a result of his father's death, his mother had become very distressed and vulnerable and was now suffering from severe depression. Tribunal's Decision 10 In the section of its decision headed "Findings", the Tribunal set out the definition of "special need relative" and then commenced to consider various matters raised by that definition. Under a sub-heading "The permanent or long-term need for assistance", the Tribunal observed: 'At the time of application, there is no doubt that the nominator's husband was suffering from a prolonged illness. He was seriously ill and has since died. This is the basis of the application and the Tribunal has identified this as the cause of the nominator's long-term need for assistance.' 11 Under another sub-heading, "Whether the assistance provided is substantial and continuing assistance to the nominator", the Tribunal said: Both the visa applicant's mother and father needed his assistance at the date of application. He gave emotional and financial support, and home help. At the date of the hearing, the parties and the nominator's doctor referred to the nominator's depression. She told the Tribunal that she now relies on the nominator totally. He gives not only emotional support but financial support, takes care of the nominator's medication, her transport, shopping and domestic care. The nominator claims to have a permanent or long term need for assistance because of her own health and because her late husband's medical condition left them financially depleted. She said his medical expenses: "…destroyed our meagre finances. Unless I can get some assistance, I am faced with the necessity to sell my home to pay my debts. If my son can stay we may not have to sell as he is working and assisting me financially." The visa applicant has provided financial assistance to his parents to cover his late father's medical bills, and to cover mortgage payments. The primary decision-maker formed the view that the help given at time of application was not substantial. The Tribunal notes that the nominator's depression has arisen since her husband died according to her own evidence and that of her doctor. The Tribunal has difficulty with the proposition that the assistance was substantial at the date of application and will discuss this aspect further below in the context of PAM 'Special Need Relative' guidance. 12 The Tribunal's reference to "PAM" was to a "Procedures Advice Manual" produced by the Department. The Tribunal said it was required to have regard to a statement of policy set out in that Manual and apply it "unless there were cogent reasons for departing from that policy." 13 The Tribunal then said, under the sub-heading "Whether the assistance cannot reasonably be obtained from another relative or welfare, hospital, nursing or community services": 'The visa applicant indicated on the application form that his parents were utilising assistance from other organisations but that only he could provide the necessary emotional support. At the date of the hearing, the nominator was accepting assistance from her doctor for her depression but she and her doctor recommended continuing assistance from the visa applicant as well. The nominator is receiving medical care for her severe depression and, until recently, received daily medication which she is now, with the assistance of her son, attempting to reduce in frequency to try to avoid dependency on this medication. The nominator has no other family in Australia since the death of her husband. At the date of application, her husband was unwell and was part of the reason for her needing assistance. The nominator does not have any other relatives residing in her home city. The evidence is that the nominator's husband's death has exacerbated the emotional plight of the nominator: firstly, she has suffered severe depression following the death of her husband; secondly, she needs to take heavy medication to control this depression; thirdly, she is now placed in serious financial jeopardy; and fourthly, the prospect of losing her son due to the rejection of his visa application has caused a deepening of her depression. The nominator could access local community services and support, but this would not be at the same level as the visa applicant residing with her in her own home. The requirements of the nominator are substantial. The visa applicant is taking care of his mother's severe depression, not only by providing strong emotional and supervisory support with the nominator's medication, but also with her 'day to day' living requirements. Additionally, his financial support of the nominator is substantial. Without the assistance of the visa applicant, the nominator will lose her home, which is being repaid by the visa applicant. These requirements are all of a continuing nature. The visa applicant is the only immediate member of the nominator's family in Australia. There are no other friends, or acquaintances, able to provide the nominator with assistance - emotional, physical or financial - that is required by the nominator. Also, the nominator's 'day to day' requirements, in medication and emotional support for her deep depression, cannot be provided at the same level as the visa applicant does by any welfare, hospital, nursing or community services in Western Australia.' 14 The Tribunal then specifically addressed the question of whether the appellant had been a "special need relative" at the time the application was made. It said: '35. For this subclass 806 Special Eligibility (Residence) (Class AO) visa application to succeed the Tribunal needs to be satisfied that the visa applicant was a 'special need relative' at the time of the visa application. Current PAM provisions do not give guidance on the need for which the legislation was designed to cover. At the time of application, PAM explained: 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 needs 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 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. [Emphasis in original]. 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. (Emphasis added) 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 [sic] 806.213 despite the tragic circumstances. 38. At the date of decision, it seems that the nominator is in need of substantial assistance from the visa applicant. However, since the Tribunal has found that the visa applicant was not a 'special need relative' at the time of application, it is not necessary for the Tribunal to decide whether the visa applicant is a 'special need relative' at the time of decision.' 15 Thus the Tribunal concluded the appellant did not satisfy the criterion in cl 806.213 because the appellant was not a 'special need relative' at the time of the application. Primary Judge's reasons 16 Ultimately the issues in the appeal were identified in a slightly different way from the way they had been presented in the proceedings before the learned primary judge. Accordingly it is unnecessary to recount the way his Honour dealt with the issues put before him and it is sufficient to move directly to the issues raised in the appeal.
Consideration of the issues in the appeal 17 The definition of "special need relative" raises for consideration whether the nominator has a need for permanent or long-term assistance which can be provided by the relative who is willing and able to provide it. The focus of the definition is the future needs of the nominator. Additionally the assistance to be provided must be substantial and continuing. There is an obvious link drawn in the regulation between what can be provided by the relative and what is needed by the nominator: see Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 88 at [22]. These matters must be addressed by reference to the circumstances existing at the time of the application as well as the circumstances existing at the time of the decision. The need for the assistance can arise either because of, amongst other things, the disability or prolonged illness of the nominator, or, amongst other things, the prolonged illness or death of a member of the family unit of the nominator. 18 In the present case, the Tribunal was required to consider whether the appellant's mother had a need for permanent or long-term assistance, whether the appellant was willing and able to provide it and whether the assistance would be substantial and continuing. Part of the Tribunal's task was to consider these matters at the time of the application. The case advanced by the appellant, in relation to the circumstances existing at the time of the application involved the following facts. The appellant's father was then seriously ill. He assisted his father by taking him to see medical specialists, helping him physically by picking him up when he fainted and trying to get him to do exercises. By doing these things for his father, the appellant relieved his mother of the burden of either doing or trying to do them herself. He then provided emotional support to his father and mother. He assisted both of them by doing domestic chores. He also provided financial support to his parents because of the significant costs associated with the medical attention his father was receiving. 19 As is apparent from pars 35, 36 and 37 from the Tribunal's reasons (set out above) it did not accept that the assistance actually being provided by the appellant to the nominator at the time of the application could be viewed as substantial for the purposes of the definition of "special need relative" and therefore could not sustain a conclusion that the nominator had a permanent or long-term need for assistance. 20 In adopting this approach the Tribunal erred in one and possibly two respects. First it took the view that the terms in which the Procedures Advice Manual was expressed, excluded from consideration any assistance which might be provided by the appellant to his mother which took the form of the assistance described in par 3 of the Manual (set out by the Tribunal in [35] of its reasons). This may well have involved a misconstruction of the Manual, but in any event, by adopting this approach, the Tribunal did not consider for itself whether the assistance being provided and which might continue to be provided, was substantial. It said the assistance relied on "was of the kind excluded by the policy". In effect, the Tribunal did not treat the Manual as a guide but rather treated it as actually determining in a prescriptive way the question the Tribunal was required to answer having regard to the definition of "special need relative". The inflexible application of policy by a decision-maker can be characterised as a jurisdictional error: Rendell v Release on Licence Board (1987) 10 NSWLR 449; Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404, at 418, per Gibbs CJ; British Oxygen Co Ltd v Minister of Technology [1971] AC 610, at 624-626. Moreover, it can, as it did in this case, result in the Tribunal failing to address the question raised by the applicable regulation. This can constitute jurisdictional error: see Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168 at [42] and following. As was pointed out by the Full Court in Chow v Minister for Immigration & Multicultural & Indigenous Affairs (supra) at [28] the performance of domestic chores and the giving of companionship could constitute substantial and continuing assistance in some circumstances and it would be incorrect to say that assistance of that nature could never be substantial and continuing assistance. 21 Secondly the Tribunal may not have understood that the definition of "special need relative" raises for consideration assistance provided to a nominator because of, amongst other things, the disability of a family member of the nominator. In the present case the Tribunal does not appeared to have addressed the significance of the assistance being provided by the appellant to his father at the time of the application which relieved the nominator of the burden of providing or attempting to provide the same assistance. The evidence raised for consideration the question of whether, by assisting his father, the appellant was assisting his mother and whether there would have been, at the time of the application, a prospect that the mother would need this type of assistance in the long-term. 22 Even if it could be said that, as a matter of fact, assistance of this type would not be long-term (viewed as at the date of the application) because of the terminal nature of the father's illness, it could not be discounted entirely because the definition comprehends assistance to a nominator because of the death of a family member. In our opinion, the definition should not be construed so as to raise for consideration substantial and continuing assistance to a nominator based on only one of the circumstances in par (a) and excluding from consideration some of them in combination. The purpose of the definition (as it operates in the prescribed criteria) is to enable a citizen or resident to obtain assistance from a relative at times of real need which will continue for a prolonged period. If the reason why the citizen or resident is in need varies but corresponds at all times with one or a number of the reasons identified in the definition, that purpose would be achieved. The definition should be construed to achieve this purpose and should not be construed narrowly. This case illustrates the way in which the definition can operate. The appellant's mother arguably had a need for assistance arising substantially from her husband's disability and also her own infirmity initially. The need for assistance would be likely to continue, though the need would then arise from her husband's death, its effect on her, and her continuing infirmity and the economic effect on her of having to have funded her husband's medical treatment. 23 We are satisfied the Tribunal fell into jurisdictional error and that the purported decision of the Tribunal was not a "privative clause" decision to which s 474 of the Act applied. Accordingly prerogative writs may issue and orders made requiring the Tribunal to determine the application according to law. (See: Plaintiff S157/2000 v Commonwealth of Australia (2003)195 ALR 24; Lobo at [63] - [68].) I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Solicitor for the Respondent: Australian Government Solicitor
Jackson
Minister for Immigration & Multicultural & Indigenous Affairs