Jun v Minister for Immigration & Multicultural Affairs

"… 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, and Australian permanent resident or an eligible New Zealand citizen; or (ii) welfare, hospital, nursing or community service in Australia." 8 The Tribunal rejected the applicant's claim. It found that the father did not have a condition which came within the elements of subclass (a) or (b) of that definition of "special need relative". It referred to the evidence given by the applicant and his wife, by the father and his wife, and to the contents of a number of medical reports including reports from Dr Richard Wu ("Dr Wu"), consultant psychiatrist, Dr Michael Prior ("Dr Prior"), consultant psychiatrist who was retained by the father at the request of the Tribunal to provide a second opinion, and Dr Il-Song Lee ("Dr Lee"), the father's general practitioner. 9 The crucial issue for the Tribunal to address was whether the father has "a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances" affecting him. It is also necessary for the Tribunal to decide, if it was satisfied that the father had a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances, whether the father's wife or existing welfare, hospital, nursing or community services in Australia could reasonably satisfy that need. It is implicit in the Tribunal's reasons that the father's wife could not reasonably satisfy any need he had for assistance due to her own health problems. The second question which the Tribunal addressed in its reasons, albeit tersely, was whether any need of the father for assistance could reasonably be obtained from welfare, hospital, nursing or community services in Australia. As that element of the definition of "special need relative" also had to be satisfied by the applicant, it is also necessary to review the Tribunal's finding and to determine whether it fell into reviewable error in respect of that finding. 10 The Tribunal referred at length to the medical evidence, which it said it had considered very carefully. It found that the psychiatrists:

"… agree that the [father] had a psychiatric problem before his son arrived and that currently he does not require any treatment. They also agree that he may relapse if his son is forced to leave. The psychiatric problem was brought on by the [father] being concerned that he has no children to look after him in his old age." 11 The Tribunal then said that it must consider the "policy direction" in Pt 1 Div 1.2 reg 1.03 - Interpretation - 'special need relative' of the Procedures Advice Manual ("PAM3") issued by the Department of Immigration and Multicultural Affairs. It said that, in reaching its decision, it is bound by the Act and the regulations and that it should apply relevant government policy guidelines "unless there are cogent reasons to the contrary". PAM3 was issued in accordance with the power of the respondent in s 499 of the Act to 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. The directions cannot be inconsistent with the Act in the regulations: s 499(2). Section 499(2A) obliges the body to comply with a direction given under s 499. There is no submission that the relevant provisions of PAM3 are inconsistent with the Act or the regulations and I should construe them so that, if possible, they are consistent with the Act and the regulations. The Tribunal described PAM3 as "an aid to interpretation and application of the proscribed criteria" for the visa. 12 The Tribunal quoted par 3 of PAM3 which reads as follows:

"Case history has shown that the various illnesses attributed to resettlement are variously described as ongoing low-level depression, psychological distress and obsessive concern for absent relatives. In some cases the Australian relative is otherwise in reasonably good health but, in other cases, their anxiety is contributing to sleeplessness, depression or high blood pressure which is affecting their ability to carry out normal daily activities. The Australian relative cannot be said to be in any direct material or physical need of the missing family member. They are simply missing their relative to the point where they have developed a strong focus, in some cases an obsession, such that their health is suffering. Sufferers of grief sorrow, anger or indignation are distinct from medical conditions of psychoneurosis, mental illness and other physical conditions." (My emphasis) 13 However it said there is no good reason for the Tribunal to refuse to follow the policy guideline. 14 The Tribunal then concluded: "On the evidence the Tribunal finds that the [father's] psychiatric problems, before his son came to Australia and any possible relapse, are not a psychiatric illness (or psychoneurosis or mental illness) which come within the "special need relative" definition. The [father's] condition can be described as low level depression, psychological distress and a strong focus to the point of obsession on the fact that his children are not there to help him in his old age as referred to PAM3. Further, the [father], by consulting Drs Lee and Wu has used the services that are available in the community to help with his problem. If the [father] had a relapse and his condition was far worse than it was before his son came to Australia his son can apply again from offshore. Dr Lee lists a number of physical problems. However, these problems have not prevented the [father] on his evidence and the Principal Applicant's evidence from playing golf, escorting his grandchildren to and from school and going to church. Therefore, the Tribunal finds that the [father's] physical problems can not be considered as a permanent or long-term need because of death, disability, prolonged illness or other serious circumstances. Further, the [father] by consulting Drs Lee and Wu has used the services that are available in the community to help with his conditions."

15 The applicant contends firstly that the Tribunal fell into error in improperly exercising its power, because it exercised a personal discretionary power at the direction or behest of another person: s 476(1)(d) and (3)(c). That ground of review is the analogue of that provided by s 5(1)(e) and (2)(f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Toohey J in Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 said of those provisions at 393:

"In my view para (f) must be read so that if it does appear that the decision maker has paid regard to the merits of the particular case when applying a rule or policy, it is not for this court to say that it would have taken a different view. While the particular words used by the decision maker in his statement of reasons are important, they do not necessarily conclude the matter one way or another." 16 The visa was one of the prescribed classes, and the regulations prescribed criteria for the visa: s 31. The respondent, or his delegate, was obliged to consider the application for the visa. He was obliged to grant the visa if satisfied that the criteria prescribed had been satisfied, and if not so satisfied was obliged to refuse to grant the visa: s 65. The relevant provisions of PAM3 address the expression "other serious circumstances" in the definition of "special need relative", and direct how the Tribunal when reviewing the decision of the respondent or his delegate on that topic is to exercise its powers of review. They may, therefore, be taken as directing how the Tribunal was to approach that discretionary element of the definition of "special need relative". Reference may be made to the decision of Sheppard J in Hindi v Minister for Immigration and Ethnic Affairs (1988) 91 ALR 586 at 597 - 598. The Court, however, received no submissions as to whether the determination of "other serious circumstances" involved the exercise of a discretionary power. Nor did it receive any submissions as to the scope of s 476(1)(d) and (3)(c) in the light of s 499(2A) which expressly obliges the Tribunal to comply with the direction given under s 499(1). Section 499(2A) was inserted by the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth), s 2 and Sch 1 cl 17. That Act came into force when proclaimed, namely on 1 June 1999. Clause 31 provided that existing directions under the Act have effect as if given under s 499 of the Act as amended by that amending Act. Section 499(2A) appears therefore to have applied to the Tribunal when it made its decision on 7 February 2000. If it be accepted that the relevant provisions of PAM3 are not inconsistent with the Act and the regulations, it is hard to see how the applicant can maintain that ground of review in the face of s 499(2A). Were it necessary, I would have invited further submissions from the parties on those matters. However, as I consider that this application should succeed on another ground, I have not adopted that course. 17 It is common ground that the Full Court in Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 at 206 - 207 and Huang v Minister for Immigration and Multicultural Affairs (1996) 71 FCR 95 state the correct approach to the interpretation of reg 1.03 which is different from the 'broad and generous construction' previously identified by cases such as Fuduche v Minister for Immigration Local Government and Ethnic Affairs (1993) 45 FCR 515 at 527. That approach directs the normal or fair reading of the language used in the relevant regulations, having regard to their content and their statutory authority, without distortion by treating any particular element as requiring a broad and generous construction. Kenny J in Minister for Immigration and Multicultural Affairs v Chan [2000] FCA 737 ("Chan") has reviewed the authorities touching on those principles at [15]. I gratefully adopt her Honour's summary of the position. In Chan Kenny J accepted the possibility that the Tribunal did not exercise any real independent judgment in the matter before it because of the way it referred to the medical reports. Her Honour did not need finally to decide that question, or whether it involved a reviewable error under s 476(1) of the Act. 18 It is clear that the Court cannot review the Tribunal's decision because it is so unreasonable that no reasonable person could have so exercised the power of review: s 476(2); Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577. However, in my judgment, the Tribunal's decision on what I described above as the crucial question involves an error of law by incorrectly applying the applicable law to the facts as found, or by incorrectly interpreting the applicable law: s 476(1)(e). As the Tribunal's reasons are brief, it is unclear which of those errors the Tribunal committed. 19 The Tribunal did not address whether the father has a permanent or long-term need for assistance because of disability, prolonged illness or the serious circumstances affecting him separately at the time of the application and at the time of the decision. It appears to have regarded that aspect as subsumed within its general consideration of the condition of the father. 20 Regulation 806.213 directs attention to that point of time. 21 The Tribunal as part of its findings said that Dr Wu and Dr Prior agreed that the father had "a psychiatric problem" before the applicant arrived in Australia. It did not apparently discern any difference in the views of those doctors. Dr Wu's opinion was expressed as follows:

"Mr Jong-Ku Jun is a citizen of Australia and he has a long term need for assistance because of prolonged illness and serious circumstances. As I have stated in my previous letter, Mr Jong-ku Jun had lapsed into clinical depression since their last offspring, a daughter, had left them for Hong Kong in early 1998. … It is my opinion that Mr Jong-Ku Jun would have continued to suffer the depressive illness (which had resulted from the absence of their children) if his son San [sic] Yeon was not present to assist. Furthermore, his clinical improvement since Sang Yeon's arrival is firm evidence that Sang Yeon's care is effective and essential. I am not aware of any welfare, hospital, nursing or community services in Australia that can otherwise cater for Mr Jun's psychological and practical needs and to the best of my knowledge there are no other relatives residing in Australia who could assist in these needs. Indeed if there had been alternative resources in the care of Mr Jun, he would not have developed clinical depression or the state of helplessness he was in". 22 He regards the circumstances as "rather clear cut". If the applicant is forced to leave Australia, there is a "strong likelihood" that the "reactive depression" would relapse. 23 Dr Prior saw the father on one occasion only in December 1999. He did not therefore see the father when the symptoms of his clinical depression were florid (although he did not seek to dispute Dr Wu's diagnosis at that time). When he saw the father, the applicant had been present supporting him for over a year. He said:

"It is possible that his alcohol consumption might escalate in the future with or without significant life stress. It is always possible for his clinical depression to re-occur. Mr Jun would be most likely to be significantly distressed at the prospect of and with the eventuality of his son being forced to leave Australia. The reaction which would probably follow would constitute an Adjustment Disorder with depressed and anxious mood".

24 He did not regard the father at the time of his examination as being significantly compromised in terms of his ability for independent self-care by his past or current psychiatric state. He was not asked to explain what he sought to signify by the term 'Adjustment Disorder', in particular, whether that amounted to psychiatric illness. 25 The Tribunal has not, so far as its reasons indicate, sought to reject the evidence of Dr Wu that · the father suffered from a diagnosed mental illness, namely clinical depression, when the applicant arrived in Australia · the clinical depression was permanent or long-term, and gave rise to a permanent or long-term need for assistance · the applicant and his family have since provided assistance to the father · the provision of that assistance has had the effect of abating the symptoms of that illness · if the applicant is obliged to leave Australia, the symptoms and signs of that illness will recur as the father's condition will relapse (that is, the need for assistance which the illness has given rise to is a permanent or long-term one). 26 The Tribunal, moreover, did not discern any disagreement between Dr Prior and Dr Wu about the existence of clinical depression suffered by the father or its prognosis if the applicant is forced to leave Australia. If it had discerned any difference of opinion, it would no doubt have discussed it and indicated which of the conflicting opinions it adopted and its reasons for adopting those opinions. 27 In my opinion, the Tribunal at that point in its findings, by use of the shorthand expression "psychiatric problem" must be taken to have accepted that medical evidence. It proffers no critical observations about that evidence, which it says it has carefully considered. The Tribunal then embarks upon its consideration of the relevant provisions of PAM3. That part of PAM3 which I have emphasised above makes it clear that the direction concerning "other serious circumstances" in reg 1.03 is not intended to inform or limit the meaning of "disability" or "prolonged illness" in that regulation. Nor could a direction under s 499 alter the meaning of words used in the Act in a way which was inconsistent with those words: s 499(2). Indeed the content of the relevant parts of PAM3 generally shows that it is concerned with the element of reg 1.03 concerning "other serious circumstances", as distinct from the terms "disability" or "prolonged illness". For example, par 1 of the relevant provisions of PAM3 provides:

"Although the policy intention is that 'special need' relates mainly to medical conditions, policy also intends that other unforeseen serious circumstances of a similar nature be considered. In saying this, however, it was never meant for 'other serious circumstances' to encompass maladjustment and homesickness caused by migration resettlement or anxiety caused by the absence of a family member left behind in the home country." 28 It is perhaps a little infelicitous that par 3 of the relevant part of PAM3 uses the term "depression" at all. It is an expression which has a technical medical meaning, as well as one commonly used in a lay sense to describe personal feelings which fall short of a mental illness. That paragraph, as I understand it, also seeks to stress the requirement which reg 1.03 stipulates that there must be a need for assistance of the kind the regulation contemplates, and not merely a desire even a strong desire for family company or consolation. 29 The Tribunal's findings which follow its reference to cl 3 of the relevant provisions of PAM3 then reflect a paraphrase of sections of that clause. They include the finding that the father's "psychiatric problem" was not and is not a "psychiatric illness (or psychoneurosis or mental illness)". However, that note rehearsed of terms of cl 3 must be seen in the light of the Tribunal's findings about the medical evidence to which I have already referred, and in the context of the Tribunal's then focus upon cl 3 of the relevant provisions of PAM3. 30 I conclude that the Tribunal therefore failed to separately address the questions which it was required by reg 1.03 to address, namely whether the father's clinical mental condition was one involving a disability or prolonged illness which gave rise to a permanent or long-term need for assistance. Alternatively, it may have misunderstood the import of the relevant provisions of PAM3 so as to fail to apply its findings about the effect of the medical evidence to reg 1.03 because it perceived that cl 3 of the relevant provisions of PAM3 somehow precluded that step even though that clause was only dealing with the "other serious circumstances" element of the definition of "special need relative". 31 An alternative contention of the applicant, in this regard, was that the Tribunal's finding that the evidence of Dr Wu and Dr Prior was that the father had a "psychiatric problem" which fell short of a mental illness was a finding of a particular fact upon which the decision was based, and that fact (namely that that was the opinion of Dr Wu and of Dr Prior) did not exist: s 476(1)(g) and (4)(b). Had I interpreted the Tribunal's finding in that way, I consider that there would have been considerable merit in that contention. Dr Wu clearly did not "agree" that the father had a psychiatric problem which fell short of a mental illness, and the understanding of his evidence by the Tribunal to the contrary would have been a critical step in its process of reasoning leading to its conclusion: see Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 221 - 222. In view of the way I have understood the Tribunal's findings, it is not necessary finally to determine that question. 32 In my judgment, the Tribunal has also erred in law in its consideration of whether the assistance required by the father because of his mental illness can be reasonably obtained from welfare, hospital, nursing or community service in Australia. The Tribunal's reasons on this aspect are very brief, perhaps because it was only a subsidiary or secondary reason for its conclusion. The fact that the father has consulted Dr Lee and Dr Wu does not demonstrate that the father's needs can be reasonably obtained from welfare, hospital, nursing or community service in Australia. The Tribunal erred in law in resolving that against the applicant simply because he had been able to receive medical treatment. That consideration did not really address the father's needs and how they could be met. Moreover, the Tribunal's finding that consulting doctors could "help with his problem" demonstrates that the Tribunal failed to ask the correct question. It does not respond to reg 1.03 to determine that some help with meeting needs is available. The respondent submitted that the Tribunal's finding on this aspect was really no more than an unnecessary and throw away line, but its sequence in relation to its other findings, and its repetition when the Tribunal was addressing the father's physical problems, indicate to me that the Tribunal was purporting to address that element of the definition of special need relative. 33 In light of my conclusion, it is not necessary separately to consider the attack made upon the Tribunal's findings in relation to the nature and extent of the physical conditions suffered by the father. Dr Lee is the father's general practitioner. He gave evidence of a series of chronic and worsening physical conditions, which would lead to an increase in the father's need for care with the passage of time. Dr Lee observed that the applicant and his wife run the household. They are responsible for cleaning, shopping and cooking. The father is driven to the doctors, to physiotherapy and to hydrotherapy and his medication is supervised. He is assisted with payment of utility bills and other necessary papers. He said the father and his wife require 'very close personal assistance' and he described the applicant and his wife as 'indispensable assistants'. Dr Lee said:

"All of the above conditions are chronic disorders, which require permanent or at least regular reviews and treatments. It is expected that the current illness of Mr Jun will deteriorate with time, and consequently more effort and time are needed to control the disorders. It is expected that Mr Jun will gradually lose the capacity for work and daily activities of living. At present Mr Jun has marked reduced capacity for work and is almost not working at all. Assistance by a third party will be needed more and [be] crucial for management as the conditions worsen with time. Even now, the assistance give [sic] by his wife is not adequate. The wife, herself, has a number of chronic disorders, which cause significant difficulties for the activities of daily living. Mr Jun will eventually need great [sic] amount of assistance by a third party as described in the previous report". 34 Nor is it necessary to address the claim that the Tribunal erred in failing to address the father's needs by reason of the combination of his "psychiatric problem" and his physical problems. It is also unnecessary to address the contention by the applicant that the Tribunal had failed to provide reasons for its decision as required by s 368 of the Act so as to give rise to the ground of review available under s 476(1)(a) of the Act: see Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681. The respondent has been granted special leave to appeal to the High Court from that decision. A Full Court comprising five justices of this Court is also considering the question of whether the failure to comply with s 368 or s 430 gives rise to the ground of review available under s 476(1)(a) and, if so, as to the nature and extent of the obligations which s 368 and s 430 impose. It is apparent from my reasons above that I hold the provisional view that the Tribunal's reasons do not adequately set out the reasons for its decision, or the findings on the material questions of fact which it was required to address, or the evidence or other material on which its findings of fact were based. For instance, if (as the respondent contended) the Tribunal found that, despite the medical evidence, the father did not have a mental illness, then it is quite unclear what reasons it had for its decision on that ultimate issue, or indeed on that (asserted) finding what evidence that finding was based upon. I have, as noted earlier, reached the view that the Tribunal did not in fact make that finding. As I do not base my decision upon this aspect, I have referred to the various aspects of the Tribunal's reasons which are of concern. 35 In my judgment, this application should be allowed. I refer the applicant's application for review to the Tribunal for rehearing. In my view, the Tribunal on that rehearing should be differently constituted. The respondent should pay to the applicant his costs of the application to be taxed.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: Dated: 29 June 2000 Counsel for the Applicant: Mr J Coombs

Solicitors for the Applicant: Tim Young & Associates

Solicitors for the Respondent: Australian Government Solicitor