Kankanamage v Minister for Immigration and Multicultural Affairs

Kankanamage v Minister for Immigration and Multicultural Affairs - [2006] FCA 484 - FCA 2006 case summary — Zoe

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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Migration Act 1958 (Cth)('the Act'), including part 806 and the definition of 'special need relative' in reg 1.03, were repealed by statutory r 259 of 1999 reg 4 in Sch 2.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,

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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.

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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.

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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.

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