Kankanamage v Minister for Immigration and Multicultural Affairs

5 The Court is hearing this application in its appellate jurisdiction: ss 24 and 25 Federal Court of Australia Act 1976 (Cth).

BACKGROUND 6 The appellant is a Sri Lankan citizen of Sinhalese ethnicity. He entered Australia in January 1996 as the holder of a short stay (visitor) (class TT) sub-classes 435 visa. This visa ceased on 12 February 1996. He has held a number of visas, including bridging visas, since then. 7 On 31 July 1998 the appellant applied for a change in circumstance (residence) (class AG) sub-class 806 family (special need relative) visa, his brother being the nominator under the legislation. As already noted, the delegate of the Minister refused to grant the visa on 10 September 2003, and the Tribunal on 18 February 2004 affirmed the decision of the delegate. 8 The relevant provisions of the Migration Act 1958 (Cth)('the Act'), including part 806 and the definition of 'special need relative' in reg 1.03, were repealed by statutory r 259 of 1999 reg 4 in Sch 2. However, the original visa application in the case before me pre-dates the repeal, and the legislation in force as at the date of the application continues to apply. This includes the definition of 'special need relative' as it stood before the repeal: McHugh J in Re Minister for Immigration and Multicultural Affairs; ex parte Cohen (2001) 177 ALR 473, cf for example Wahab v Minister for Immigration and Multicultural Affairs [2006] FCA 421. At the time of the application, the definition of 'special need relative' in reg 1.03 Migration Regulations 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 be reasonably 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 resident; or (ii) welfare, hospital, nursing or community services in Australia.' 9 The nominator in this case is an Australian permanent resident, ordinarily resident in Australia. Evidence has been submitted that the nominator has for varying periods of time suffered from a number of medical conditions, including · diabetes,

10 I understand that the appellant is the nominator's only sibling in Australia, that there is an age gap of one year and eight months between them, and that they are emotionally close.

DECISION OF THE TRIBUNAL 11 Before the Tribunal, the applicant stated that he provided stable mental support to the nominator, as well as assistance with housework, child care and daily tasks in the house. The applicant ceased employment on the same day as the nominator, in order to be at home with the nominator. For the purposes of the application and current appeal, the applicant also relied upon medical reports concerning the nominator's medical status from a general practitioner treating the nominator, Dr Kanapathipillai, and a consultant psychiatrist, Dr Nallaratnam. 12 After considering the evidence the Tribunal rejected the application, in summary on the grounds that: · the illnesses of the nominator were not of nature contemplated by reg 1.03

· the evidence did not support a claim that the assistance provided by the appellant was 'substantial'

· there appeared to be adequate alternative support arrangements for the nominator.

DECISION OF THE FEDERAL MAGISTRATE 13 In reviewing the decision of the Tribunal, the learned Federal Magistrate considered that the Tribunal had not erred in considering the medical evidence before it. Further, his Honour was of the view that the Tribunal had applied the correct criteria in determining whether the applicant was a 'special need relative' of the nominator, and had embarked upon its fact-finding mission in a manner consistent with the law (decision of McInnis FM, par 25). The learned Magistrate, in reviewing the decision of the Tribunal, noted that the Tribunal had referred to the Full Court decision in Narayan v Minister for Immigration and Multicultural Affairs [2001] FCA 1745, which authority was, in his Honour's view, applicable to this case. In his Honour's view, the applicant (now the appellant) had 'effectively sought to re-agitate the issues which were before the MRT and essentially…sought to argue that there should be a different finding of fact', a submission incompatible with judicial review of the Tribunal's decision.

APPEALS UNDER THE MIGRATION ACT 14 The scheme of the Act is such that 'privative clause decisions' are final and conclusive, and cannot be challenged or called into question in any court: s 474(1). 'Privative clause decisions'means decisions of an administrative character made, proposed to be made, or required to be made, as the case may be, under the Act or under a regulation or other instrument made under the Act: s 474(2). Decisions of the Tribunal are 'privative clause decisions', and in the normal course appeals do not lie from Tribunal decisions: s 474(3)(i). However the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 decided that decisions made under the Act for the purposes of s 474: 'must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act.' (at 506) 15 Accordingly, an administrative decision which involves jurisdictional error is regarded, in law, as no decision at all: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-615, 618, 646-647 and Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506. 16 It follows that, in order for the appellant to seek to overturn the decision of the Tribunal, and the learned Federal Magistrate who affirmed that decision, it is necessary for the appellant to establish that the Tribunal's decision suffered from jurisdictional error as distinct from mistake of fact. The nature of a jurisdictional error by an administrative tribunal was explained by the High Court in Craig v South Australia (1995) 184 CLR 163 at 179 where their Honours said: '…. If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.' 17 Similar comments have been made in other important cases: note for example Lord Reid in Anisminic Ltd v Foreign Compensation Commission (1969) 2 AC 147 at 171, the Full Court of the Federal Court in VAT v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 255 at par 16, and McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351.

THE APPEAL 18 The appellant has appealed on substantially two grounds, namely: (a) the learned Federal Magistrate erred when he found that the Tribunal had correctly interpreted reg 1.03, and

(b) the learned Federal Magistrate erred when he found that the Tribunal had correctly interpreted the medical evidence.

GROUND (a): INTERPRETATION OF REGULATION 1.03 20 As I noted earlier in this judgment, the now-repealed definition of 'special need relative' in reg 1.03 remains applicable in this case. 21 The Full Court of the Federal Court in Narayan v Minister for Immigration and Multicultural Affairs [2001] FCA 1745 par 38 explained that the definition of 'special need relative' requires that the visa applicant be: '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…prolonged illness or other serious circumstances….; and (b) the assistance cannot reasonably be obtained from [other sources of various kinds mentioned]' 22 In Narayan, the Full Court was of the view that the opening paragraph in the definition and par (a) should read purposively and as a whole. Their Honours said: 'Paragraph (a) describes the need which the citizen or resident must have. The opening paragraph describes the kind of assistance which the visa applicant must be able to provide in response. Although the relationship between the two paragraphs is not stated expressly, it is not surprising that that assistance which the visa applicant is willing and able to provide is required to be "continuing", since the need referred to in par (a) is "permanent or long-term". Similarly, since the cause of the permanent or long-term need must be "serious" circumstances as described in par (a), it seems likely that often such need will be able to be met by nothing less than "substantial assistance".' (par 40) 23 To further explain the definition, it is also useful to note that: · the reference to 'willing' is a reference to the applicant's state of mind. As explained by the Full Court in Xiang v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 64 at par 7, this issue raises the question whether the applicant is prepared to do what is necessary to provide the assistance.

· the reference to 'able' calls for an objective inquiry. Again as explained in Xiang, this issue raises the question whether the applicant is a person who is suitable or fit to provide the assistance (par 7).

· 'substantial' means 'of substance', 'significant' or 'real' (Narayan, par 43). From Narayan it is clear that the assistance to be provided to the nominator must be substantial and continuing. At one end of the spectrum for example, assistance by the applicant which is of an optional and unimportant nature may properly be found by the decision maker to be not only not 'substantial', but may also signify that there is not truly a 'permanent or long-term need for assistance' within the contemplation of par (a) of the definition (Narayan, par 43). However, whether assistance is 'substantial and continuing' is a question of fact. As the Full Court pointed out in Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 88, the performing of domestic chores and the giving of companionship could constitute substantial and continuing assistance in some circumstances (par 28).

· Whether a visa applicant is able to satisfy the requirements of the definition of 'special need relative' depends to a significant degree on the assistance required by the nominator. This was explained by the Full Court in Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39 at 54 (and adopted by the Full Court in Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 298 at 21) where their Honours pointed out:

'In our opinion the word "serious" is simply intended to reinforce the nature of the assistance that is central to the definition, namely assistance which is substantial and continuing in relation to a need for assistance which is permanent or long-term. That is, the circumstance is sufficiently serious that, in relation to a citizen, it would require assistance of the same sort that would be required if the citizen was suffering from a disability or prolonged illness.' 24 The submissions of the appellant in relation to Tribunal's interpretation of reg 1.30 may be summarised as follows: (i) The Tribunal failed to consider if the nominator suffered from a 'prolonged illness' as required.

25 The appellant argued that the Tribunal did not consider whether the nominator's medical conditions, in particular diabetes and hypertension, constituted a 'prolonged illness', although there was medical evidence to suggest that this was the case. 26 This submission gave rise to an interesting threshold question - namely if the Tribunal had not specifically directed their minds towards whether the nominator was suffering from a prolonged illness within the meaning of the reg 1.03, did it follow that the decision of the Tribunal in relation to the visa application was affected by jurisdictional error. 27 The respondents submitted that the decision would not have been so affected. The respondents submitted that, in order for the appellant to succeed, he must show that the findings of the Tribunal on each individual requirement of the definition of 'special need relative' were affected by jurisdictional error. Conversely, if it could be shown that any of the findings of the Tribunal stood as a finding of fact unaffected by any relevant material error, it would be sufficient to support the Tribunal's decision even if another one of its findings on a different limb of the definition might have been affected by error. So, for instance, if the Tribunal erred in relation to whether the nominator suffered a prolonged illness, it was irrelevant if the Tribunal was correct in relation to other findings which would mean that the applicant was not a special need relative, for example that the applicant had not provided substantial and continuing assistance, or that assistance to the nominator could be obtained from other sources (TS pp 27-29). 28 I do not accept this submission of the respondents. In reaching a decision under the Act as to whether the applicant was a special need relative, the Tribunal was required to apply the definition under the Act, and the criteria in that definition. If the Tribunal did not apply its mind properly to the definition, ignored relevant material, identified a wrong issue or asked itself a wrong question, it follows that the Tribunal may have made an error in its understanding of the applicable law, or failed to apply the law correctly to the facts it found (note comments by McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 347, 348, 352). Accordingly, if the Tribunal did not direct its mind to the question whether the nominator suffered from a 'death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally' which resulted in 'permanent or long-term need for assistance', it is possible that the Tribunal would have misapplied the law to the facts before it in this case. 29 However in my view, the Tribunal in this case did direct its attention to whether the nominator was suffering from 'death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally'. The decision of the Tribunal contains considerable discussion of the medical conditions suffered by the nominator, including acknowledgment of medical reports (for example par 50 of the decision of the Tribunal). The Tribunal also considered whether the condition of the nominator constituted 'other serious circumstances' (par 52). In reaching its conclusion, the Tribunal specifically said 'While the ailments and illnesses of the sponsor have been noted the Tribunal finds that they are not of a serious nature or constitute the serious circumstance envisaged by the regulations. The sponsor was able to work despite his health problems until recently. The Tribunal notes the medical evidence submitted on 10 February 2004, which shows deterioration in the condition of the sponsor, in that he now tends to become drowsy in the daytime, a condition known as narcolepsy, and that his shoulder has deteriorated and he has become more anxious. Mild narcolepsy is not an uncommon condition in middle aged men. While the letter of Dr Kanapathipillai of 3 February 2004 mentions that the sponsor needs 'long term assistance by someone who can provide him direct, substantial and continuing assistance', this is not detailed nor substantiated by other sources. None of the evidence presented suggests that this assistance provided by the visa applicant is 'substantial'…' (par 62) 30 The finding of the Tribunal in par 62 in my view underlines the correct approach in analysing the condition of the nominator and whether the application of the visa application satisfies the requirements of the Act. As I noted earlier in this judgment, the Full Court in Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39 at 54 observed that the required conditions of the nominator - ie death, disability, prolonged illness or other serious circumstances - reinforce 'the nature of the assistance that is central to the definition, namely assistance which is substantial and continuing in relation to a need for assistance which is permanent or long-term'. In the case before me, it is clear that the Tribunal thoroughly considered the medical condition and general circumstances of the appellant in the context of the regulation. In my view it is not necessary for the Tribunal in reaching that conclusion to specifically make a finding of fact in relation to whether the nominator had suffered from 'prolonged illness' when the decision specifically states that the ailments and illnesses of the nominator were not in the Tribunal's view of a serious nature or did not constitute the serious circumstance envisaged by the regulations. Indeed, the finding of fact by the Tribunal in this regard is not an issue capable of challenge before this Court. 31 Accordingly, I reject the submission of the appellant in this respect. (ii) The Tribunal was erroneously preoccupied with the nominator's ability to work.

32 In my view, the Tribunal has not erred in giving proper consideration to the ability of the nominator to work, and his work history. The fact that both the nominator and the appellant were working at the time of the visa application was relevant to the nominator's need for assistance, and the appellant's ability to provide substantial and continuing assistance. The relevance of the fact that the nominator was working was noted in his judgment by the learned Federal Magistrate, who in turn noted the reference to the nominator working as an issue of relevance in Narayan (at pars 35-36). 33 Accordingly, I reject the submission of the appellant in this respect. (iii) The Tribunal posed itself the wrong question in relation to the medical conditions suffered by the nominator when it stated 'they are not of a serious nature or constitute the serious circumstance envisaged'.

34 I have to some extent already dealt with this contention. It is appropriate for the Tribunal to consider whether the condition suffered by the nominator is serious in the context of its broader consideration of whether there is a permanent or long-term need for substantial and continuing assistance (Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39 at 41, Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 298 at par 21). It is clear from its decision that the Tribunal gave extensive consideration to the medical conditions of the nominator. Any conclusions of seriousness or otherwise which the Tribunal drew from the evidence, including medical reports, are issues of fact, and beyond the scope of this appeal. 35 Accordingly, I reject the submission of the appellant in this respect. (iv) The Tribunal appeared to mischaracterise the test required by the Regulations which defines a special need relative as one which 'means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident'.

36 Further, the appellant contended that the Tribunal had only focused on what had been done, as distinct from the willingness and ability of the visa applicant to provide the assistance. 37 Earlier in this judgment I referred to the discussion of 'willing and able' in the Full Court decision Xiang v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 64. 38 To the extent that I understand this submission, in my view it is misconceived. It is, with respect, pointless to speak in the abstract of the willingness and ability of a visa applicant to provide substantial and continuing assistance to a citizen or resident. The willingness and ability can only meaningfully be considered in terms of the regulation, and in light of the nature of the assistance for which there is a permanent or long-term need by the nominator. The Tribunal in this case considered the need of the nominator, but formed the view that 'While the letter of Dr Kanapathipillai of 3 February 2004 mentions that the sponsor needs 'long term assistance by someone who can provide him direct, substantial and continuing assistance', this is not detailed nor substantiated by other sources.' (par 62) 39 If the nominator does not have a permanent or long-term need for substantial and continuing assistance within the meaning of the regulation, the willingness and ability of the appellant to provide substantial and continuing assistance is moot. 40 In identifying as an issue of fact the nominator's need for assistance, it is also relevant to consider the nature of the assistance which the appellant has been providing. 41 Accordingly I reject the submission of the appellant in this respect. (v) The Tribunal mischaracterised and misapplied the test in relation to the ability of the nominator's relatives to provide assistance.

42 Specifically, the appellant argued that to the extent that the Tribunal found that there appeared to be adequate forms of assistance available to the nominator and that the nominator's wife 'should' be able to assist him, the Tribunal was wrong: the appropriate question was whether the wife or others can reasonably be expected to provide such assistance. 43 In considering this issue, the Tribunal observed: 'The nominator has sought medical assistance from Dr Kanapathipillai who outlined a number of treatments and remedies for each of the nominator's medical conditions. As such it would appear that the nominator has obtained medical services from an appropriately qualified medical practitioner in Australia. The spouse of the sponsor states that she has sought assistance from local bodies but has not indicated the response of the organisations or the actual organisations she approached. While she states 24 hour care is not available, the case for 24 hour assistance being needed has not been made out.' (par 61 of the decision of the Tribunal) 44 In my view no error of law has been demonstrated by the Tribunal's decision in relation to this aspect of the definition of 'special need relative'. 45 Accordingly I reject the submission of the appellant in this respect.

GROUND (b): MISINTERPRETATION OF MEDICAL EVIDENCE 46 In summary, the appellant submitted that: (i) the Tribunal failed to properly identify a medical report in a way which prejudiced the appellant's case and

(ii) the Tribunal erroneously downplayed a medical condition - specifically, the narcolepsy from which the nominator suffered - without evidence.

47 In relation to (i), the appellant argued that Tribunal did not properly consider that the appellant was being treated by a consulting psychiatrist, rather than 'a medical practitioner', and therefore approached the nominator's medical condition incorrectly. However in my view the reference by the Tribunal to the report prepared by the nominator's consulting psychiatrist as being a report prepared by a 'medical practitioner' is unobjectionable, and not indicative in any way of a misapplication of law in respect of this application. 48 In relation to (ii), the view taken by the Tribunal of the appellant's narcolepsy was in my opinion a finding of fact, and not properly an issue before this court. 49 Accordingly I reject these submissions of the appellant. 50 As no errors have been shown in the decision of the Tribunal, I order that the appeal be dismissed with costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Solicitor for the Respondent: Australian Government Solicitor