Koulaxazov v Minister for Immigration & Multicultural & Indigenous Affairs

general practitioner for about 2 years; this was the most lengthy report placed before the MRT, and was in the following terms: "At Mrs Gamtchev's request I am writing to update you on her medical progress in order to confirm again my opinion that it would be very beneficial for her, and the community-care services, if her son Petar Nikolov Koulaxazov should be allowed to remain in Australia. I have observed that in the last 2 years, since I have been Mrs Gamtchev's general practitioner, the physical and emotional support she has received from Mr Koulaxazov has been invaluable. Mrs Gamtchev's progress, in summary, is as follows: · Diabetes - better controlled over the past two years but still not well controlled, but renal damage is stable and doesn't seem to be worsening at present [HbA1c decreased from 8.9 to 8.0 --- this is an overall measure of general diabetic control - ideal control indicated by a value of 7.0 or less] · Hypertension - well controlled until recently, but in the last couple of months blood pressure has been slowly increasing and may become a problem that needs to be addressed soon - Latest BP 150/80. · Moderately severe Arthritis - the pain and stiffness in Mrs Gamtchev's knees is starting to severely affect her mobility and, although relieved slightly last winter by the administration of an intra-articular steroid injection, the pain and stiffness has returned and I suspect she will need a knee replacement. She can currently only walk about 50 metres before her knee gives way on her. · Vertigo and Tinnitus - occasional recurrences, controlled well with a short course of stemitil. · Possible Transient Ischaemic Attacks - No more at present due to anticoagulation treatment. · She also has symptoms which are very suggestive of Gastro-Oesophageal Reflux and of Irritable Bowel Syndrome - well controlled with diet and medication. · Depression - much improved, now sleeping well and not tearful and moody, still has anxiety attacks - these seem to be based on the very real worry about how she will manage if her son is not allowed to stay with her to look after her and support her emotionally. Without her son Mrs Gamtchev is completely alone here in Australia, as he is her only real family here, and, although her second husband (now deceased) had family they have apparently abandoned her completely and in fact don't even communicate with her at all. · In addition to her previous ongoing chronic health problems she has developed Vitamin B12 deficiency - for which she is having 6 weekly Vitamin B12 injections and the condition is well controlled. · Cataract surgery and lens implants to both eyes over the last 2 years, with good results. · Recently Mrs Gamtchev has been diagnosed with cervical cancer and she will need to have surgery for this, the type of surgery depending on the extent of the disease. Since I started to look after Mrs Gamtchev I am convinced that her health and, in particular her mental health would not be as "good" as they are if she had not had her son nearby to support (and comfort) her. In particular I think that if Mr Koulaxazov was not here Mrs Gamtchev would probably need to be a huge drain on the community in the form of "home assistance" or aged care accommodation, due to her lack of mobility, from the arthritis she suffers. Even more than this I suspect her depression could probably deteriorate to the point where she would no longer be able to look after herself or perhaps even wish to. I understand that Mrs Gamtchev has incurred considerable debt to be able to keep her son here as they are both living on her single persons pension and he is not at all covered for his health which is reasonably good, apart from the usual coughs and colds for which she has been buying him medications at full private costs (when I have not been able to provide samples). Part of this debt has also been incurred from legal fees; and of course without certainty about his future Mr Koulaxazov can not do anything about finding regular employment and thereby helping with expenses." 23 A subsequent footnote to Dr Mitev's above report of 10 May 2001 was in the following terms: "Since the last report was written Mrs Gamtchev has had minor surgery for her cervical cancer, which did not clear the lesion adequately, so she has undergone an hysterectomy, which is a fairly major procedure for anyone, but particularly more so for a person in their eighties with Mrs Gamtchev's other health problems. According to the doctor looking after her at the Queen Elizabeth Hospital, where her surgery was done, with whom I spoke on the telephone, she suffered moderate post operative complications with renal failure and post operative infection. At the time I spoke to this doctor the histopathology results weren't available, so I am not sure if the cancer has been completely removed. In any case when she is discharged, even from a convalescent hospital, Mrs Gamtchev will need help if she goes to her home for several weeks to months. Mrs Gamtchev is in St Margaret's hospital recuperating at present and when I spoke with her she was very low and distressed, firstly with the concern about her son's residential status and also very anxious about the possibility of never again being able to return to an independent living situation if her son is not here to look after her. Although Mrs Gamtchev's English is reasonable as she ages she is beginning to depend more on her original language and the thought of being in an aged care facility where there is a communication block is very distressing,

especially since she could probably spend the rest of her life at home if her son were available to care for her. Mr Koulaxazov has also, of course, expressed extreme concern about his mother and what will become of her if he is not allowed to stay here and care for her, 'because she doesn't have anyone else here if I have to leave her', and he feels this will be extremely difficult for him to cope with emotionally too. I honestly feel that these two people, as well as the community as a whole, have a lot to gain by Mr Koulaxazov being allowed to remain in Australia as a permanent resident." The MRT found, I should add, that Mrs Gamtcheff "…often seeks medical advice from her general practitioner… Dr Mitev". 24 A social worker retained by Western DomCare (Ms Shih) gave the following reasons, in a subsequent report to the MRT of 24 May 2001, in support of the appellant's application: "· Mrs Gamtcheff's mobility has been greatly affected by severe arthritis. She has difficulty maintaining activities of daily living without assistance. · Recent diagnosis of Cancer necessitates major surgery and post-operative care. No doubt her constant worries over the residence status of her son, as well as the financial constraints in their daily lives also exacerbated her well being. · Financial burden - Mrs Gamtcheff borrowed a bank loan to guarantee the immigration of her son. For the past four years, she has attempted to support both of them on a single Age Pension. She has now incurred a debt to the bank which she may never be able to pay back. · By the nature of Mr Koulaxazov's current visa status, he has no entitlement for Medicare or social security. Mrs Gamtcheff must pay out of pocket for his medical care, procedures and medication. To avoid burdening her mother further, he is reluctant to consult the doctor. Consequently his own health also suffers. · Mr Koulaxazov's presence and assistance to his mother is of significant value not only to the mother and son relationship, the psychosocial health of both, but also as a cost saving in terms of the community resources Mrs Gamtcheff would otherwise need. She has no other family member in Australia."

The MRT recorded that "[t]he only assistance the nominator has sought from the community since the review application was brought is that of visits by [Ms Shih]". 25 Dr David Middleton of St Margaret's Hospital North Adelaide provided the following report of 14 June 2001 concerning Mrs Gamtcheff: "This lady is currently an in-patient of St Margaret's Hospital. She has asked me for a letter documenting her health problems: Cancer of the cervix: recent extended hysterectomy and subsequent wound infection Anaemia Acute on (sic) chronic renal failure Hypertension Non-insulin dependent diabetes Depression Ischaemic heart disease In summary the patient is recovering now from major abdominal surgery, and she has several ongoing chronic medical problems." 26 The reasons for decision of the Minister's delegate given on 5 March 1999, mentioned at the commencement of these reasons, were not reproduced in full in the appeal book, but were largely extracted by the MRT in its reasons for decision. At the time of the delegate's decision, the appellant had been residing with his mother in Australia for 2 months short of 2 years. Placed before the delegate had been the three medical reports of Dr Templeton, and also that of Dr Jensen and Dr Hill, to which I have already referred. As has been indicated, the reports of Doctors Mitev, Shih and Middleton were made after the delegate's decision. As to Dr Jensen's identification of Mrs Gamtcheff's perceived condition of "dysthymia, rather major depression", the delegate provided the following description of dysthymia, apparently extracted from a medical dictionary: "… a mood disorder characterised by depressed feelings (sad, blue, low, down in the dumps) and loss of interest or pleasure in one's usual activities and in which the associated symptoms have persisted more than two years but [which] are not severe enough to meet the criteria for major depression." 27 By the time the MRT handed down its reasons for decision on 14 September 2001, being two and a half years after the delegate's decision, all of the medical reports to which I have referred above had been placed before the MRT. At least by that time, according to the appellant, Mrs Gamtcheff's health had further declined to such an extent that there were many things, such as shopping, that she could no longer do without assistance.

The reasoning and findings of the Migration Review Tribunal 28 The MRT observed that the notion of "assistance" appearing in Reg 1.03 (extracted in [3] above) is not defined by the Migration Act 1958 (Cth) ("the Act") or by the Migration Regulations, and further that "… it is policy that the assistance to which the regulations refers is that which a welfare, hospital, nursing or community service in Australia may usually be expected to provide in these circumstances". That assistance was said to be not conceptually the same as that assistance which might normally be provided by or expected from an adult child. The MRT found that "[p]rimarily the assistance required by the nominator is emotional and domestic". The MRT referred in that context to Decision No Q91/01117 of the Immigration Review Tribunal delivered 18 February 1992(Carreno Arreno), described by the MRT as emphasising that "more than companionship, emotional support and convenience is required for a 'special need relative' to meet the definition set out in the Regulations", and further that "[l]ove and affection are not sufficient criteria to satisfy the definition". It appears that departmental policy, at least at that time, dictated that there is to be excluded from that notion of "assistance" circumstances of "financial support, companionship or general domestic assistance", being factors which the delegate had also emphasised in his decision. 29 The MRT further found that no financial support has been provided by the appellant to Mrs Gamtcheff, and in fact the reverse has been the case, as appears from Ms Shih's report extracted in [10] above. The MRT also found that it was companionship and general domestic assistance which was of the essence of what the appellant had been providing and continued to provide to his mother, though the appellant additionally was found to have provided for her a measure of mobility, since she had been experiencing increasing physical disabilities from moderately severe arthritis and from a major operational procedure for cancer. 30 The MRT emphasised in its reasons for decision that apart of course from being bound by the Act and the Migration Regulations, it was bound by written directions issued by the Minister under s 499 of the Act, and moreover was required to have regard to and apply departmental policy, unless there were cogent reasons for departing from applicable policy. The MRT postulated that a review tribunal is generally limited to a consideration of whether a visa applicant has met one or more applicable criteria of the Act and Regulations, and that any remission of a visa application to the delegate, or any affirmation of a delegate's decision, must take place on the basis of that consideration. Upon that footing, the MRT recorded that the criteria, policy and other materials "immediately relevant" to its review comprised the following: "As to 'Legislation': (i) Item 1115 [Class AO] of Schedule 1 to the Regulations (ii) Part 806 of Schedule 2 to the Regulations (iii) Regulation 1.03 of the Regulations (as to which see extract at [3] above) As to Departmental policy: (i) Procedures Advice Manual 3 - Regulation 1.03 - Interpretation - Special Need Relative (ii) Procedures Advice Manual 3 - Schedule 2 - Family - Visa 806. Case Law: Jun v Minister for Immigration and Multicultural Affairs [2000] FCA 867 Carreno Arreno (ante)." Regulation 1.03 has of course been already extracted, and Carreno Arreno referred to. Regulation 806 will be shortly addressed. 31 The MRT extracted with implicit approval the following passage from the delegate's decision: "While the applicant and nominator make the claim that the nominator requires substantial and continuing assistance for her health problems, none of the medical practitioners has indicated that such assistance is needed on a long-term or permanent basis, nor have they specified the nature of that assistance apart from the son's assistance… 'Assistance' is not prescribed in the Migration Act or regulations. However it is policy that the assistance to which the regulations refer is that which a welfare, hospital, nursing or community service in Australia may usually be expected to provide in these circumstances. Primarily the assistance required by the nominator is emotional and domestic…" 32 The MRT further extracted and adopted the following conclusion reached by the delegate, being a conclusion which picked up the essence, relevantly, of the text of Reg 1.03: "Therefore whilst it is acknowledged Mrs Gamtcheff has a need for some help of a practical and emotional nature, I am not satisfied that the need is for 'substantial and continuing assistance' or that is a 'long-term or permanent need' in terms of DIMA policy and legal interpretation of the Migration Regulations… I am not satisfied that the nominator has demonstrated a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen personally, or a member of her family unit or that the assistance cannot reasonably be obtained from community services in Australia." 33 As would be evident from what I have already extracted in [8-11] above, the health and physical well-being of Mrs Gamtcheff underwent a measure of deterioration after the delegate's decision made on 5 March 1999, and prior to the MRT's decision made on 14 September 2001. The MRT's findings, in relation to developments since the decision of the delegate, were nevertheless as follows: "(i) There is no medical evidence before the Tribunal to the effect that the nominator is permanently disabled or needs long-term assistance, except to the extent of her need for comfort from the visa applicant in an emotional sense... He has not had to assist in relation to her personal needs. (ii) …[N]one of the reports say if the need for assistance is temporary or long-term. Dr Mitev's most recent report is to an extent hypothetical and the Tribunal gives the opinions made in that context little weight. (iii) The visa applicant was given permission by the delegate to work. At the hearing he said he seeks permanent part-time work but thus far has been unsuccessful in finding same. Full time work is not an option in consequence of his commitments to his mother. When asked to quantify his filial commitments, on a time basis, the visa applicant was unable to do so. (iv) The delegate 'considered the nominator could access assistance from welfare, hospital, nursing or community services'; the visa applicant [had stated] that his mother has not sought assistance from other sources as a matter of pride rather than anything else." 34 The MRT found that Mrs Gamtcheff was aware of the existence of support facilities. She had received Domiciliary Care in the provision of a shower rail and a walking stick. Her local council arranged for a cleaner on one occasion, but she was not happy with that person. Mrs Gamtcheff had not requested help from Meals on Wheels. The only assistance she had received prior to the MRT hearing by way of community services were visits from social workers. A Departmental Officer recorded that she could have taken advantage of more community services than she had thus far sought. The MRT questioned the appellant about the assistance that might have been available to Mrs Gamtcheff through welfare and community services, but he said that he did not know anything about those services, saying instead that his mother took pride in receiving assistance from him rather than from a government agency. Mr Tchurbadjieu, a family friend, gave evidence on behalf of the appellant. He said that he and his wife had visited Mrs Gamtcheff regularly, and that his wife had offered to help, but that the appellant and his wife had declined the offer, saying that they did not want anyone else involved for religious and personal reasons. 35 The MRT's conclusions at [38-40] of its reasons for decision were in summary as follows: (i) Mrs Gamtcheff failed to meet the "special need relative" criteria at the time of the appellant's visa application (namely 7 July 1997), and therefore it was not necessary for the MRT to consider whether Mrs Gamtcheff was a "special need relative" at the time of its decision (namely 14 September 2001). In drawing attention to the Reg 1.03 test, the MRT referred, as I have earlier foreshadowed, to Reg 806 of the Regulations, and in particular, to Reg 806.213 and Reg 806.221(1)(a). Though it appeared that Mrs Gamtcheff's physical condition at the time of the MRT decision had deteriorated as against that prevailing at the time of the original application, and that her present need for assistance generally had increased, the MRT found that "…the worsening of her health appears to have arisen as a result of recent surgery to remove cancer. The visa cannot be granted unless clause 806.213 at the time of application is satisfied and it is not". (ii) It was not persuaded by the appellant that Mrs Gamtcheff had a permanent or long term need for assistance as required by Reg 1.03, and that it was not satisfied that Mrs Gamtcheff had a permanent or long term need for assistance in relation to death, disability, prolonged illness or other serious circumstances. It found that "[t]he nominator seeks the presence of the visa applicant to give her emotional support and some domestic assistance, but to what extent she requires the latter is unclear". The MRT invoked the principles enunciated in Carrena Arreno (cited in [14] above) as applicable to the circumstances of the review. The MRT acknowledged that the appellant's recent surgery "in relation to cancer" was a matter of grave concern for

both parties, but that "there is nothing in the more recent medical reports to persuade the Tribunal to make a different finding". (iii) Whilst it was "clear on the evidence that [Mrs Gamtcheff] needs some practical support in her home life", nevertheless "she could access the assistance from local community services, or welfare, hospital or nursing organisations", and that "[t]his appears to be a case where familial pride has stood in the way of accessing help from outside sources", and further that "it is apparent that [Mrs Gamtcheff] has not attempted to access such services and there is no other evidence to convince the Tribunal that such assistance cannot reasonably be obtained". The MRT concluded that "[o]f course, it is preferable to be cared for by members of one's own family, but if that was possible within the meaning of the Regulations, the special need category or carer category as it is now known, would be overwhelmed with applicants. The purpose of this subclass is to enable assistance to be given by relatives where such assistance cannot reasonably be obtained from outside sources. In this case, it is apparent the nominator has not attempted to access such services and there is no other evidence to convince the Tribunal that such assistance cannot reasonably be obtained". 36 To the extent that the MRT purported to make references above to the medical circumstances of Mrs Gamtcheff as nominator, both as at the time of the appellant's relevant visa application, and also as at the time of the MRT decision, the MRT's reasons for decision are perhaps susceptible to confusion. However the fact that it took that course, understandably at least since the later reports were seemingly obtained at the MRT's suggestion, has no practical bearing. That is because it is apparent that the MRT took all such reports into account in coming to its decision. The only exception was the reference by Dr Mitev, in her comprehensive report of 10 May 2001, to Mrs Gamtcheff's symptoms of gastro-oesophageal reflux and irritable bowel syndrome, which in any event Dr Mitev described as well controlled with diet and medication. It is sufficiently clear that the MRT did turn its mind to the disabilities and illnesses affecting Mrs Gamtcheff, as required by Reg 1.03, for which she had, or might thereafter have had, a need for assistance, whether of a permanent or long-term nature. 37 It is appropriate to add an observation about the temporal implications of the disabilities and illnesses of Mrs Gamtcheff which the MRT was obliged to consider. The MRT's statutory authority was to review the delegate's decision, and not of course to entertain an appeal therefrom. Reg 806.221(a) contained the stipulation that an applicant "continues to satisfy the criterion in clause 806.213", in relation to which the MRT stated at [37] of its reasons for judgment as follows: "The Tribunal notes the decision Jun v Minister for Immigration and Multicultural Affairs [2000] FCA 867 in which the Federal Court held that when considering whether the visa was a special need relative at the time of application and at the time of decision the Tribunal must address each aspect of the definition of 'special need relative'." What Mansfield J said precisely in Jun at [5] was as follows: "The criteria is required to be satisfied both at the time of the application: reg 806.213 of the Migration Regulations ("the regulations") and at the time of the decision: reg 806.221(a) of the regulations. Regulation 806 has been 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." Whilst his Honour's reference to "decision" may well have been to the delegate's decision, it was implicitly applicable also to the MRT's decision. 38 It does not follow that because the appellant was required to satisfy the criterion of Reg 806.213, both at the time of his application on 7 July 1997, and at the time of the delegate's decision-making on 5 March 1999, the appellant was not in any event entitled to require the MRT to have regard to any improvement or increase in the appellant's qualifications as an applicant for review, within the Reg 806.213 test, which occurred after the making of his application and prior to the delegate's decision-making, any less than conversely, the Minister was entitled to take into account any deterioration or decrease in those qualifications which might also have occurred during that later period of time. Events and circumstances occurring after a delegate's decision may clearly be taken into account by the MRT in the course of the exercise of its review function, being a proposition in consonance with ss 348 and 349 of the Act. It was presumably for that reason that the MRT requested, and received into evidence, up-dated medical reports, in the circumstances described in [8-11] above. In any event, as frequently is the case, medical reports, later in time to earlier medical reports concerning the same person, may serve the evidentiary function of establishing the pre-existence of illnesses, disabilities or other physical or metaphysical conditions, for which there may or may not have been symptoms already manifest at the time of earlier reports.

The reasons for judgment of the primary judge 39 At the time of the hearing before the primary judge, Mrs Gamtcheff was recuperating in hospital from cancer surgery, and had been unavailable to give evidence for that reason. Her case was in any event that she would be in need of permanent assistance when she came out of hospital. His Honour considered that it was "wholly understandable", and in most circumstances, generally speaking, to be encouraged, that Mrs Gamtcheff would seek the presence of her son in Australia for her emotional support, and for domestic and practical assistance in her home life, though his Honour emphasised that any such circumstances were required to be considered in the light of Reg 1.03, and of the passage from Carreno Arreno cited in [14] above, and further in the light of the MRT's obligations under s 353 of the Act as to the exercise of its statutory functions of review according to substantial justice and the merits of the case. 40 The primary judge found that Mrs Gamtcheff had been fully aware of the availability of support facilities from government and local government authorities (see the MRT's findings reproduced at [20] above). His Honour expressed the view moreoverthat the MRT was entitled to take into account "the well known fact" that nursing, domiciliary and other care is available to people in need, such as Mrs Gamtcheff, through government and local government agencies, and that the MRT was in his Honour's opinion "within its rights" to make the critical observation that there was no evidence that would have reasonably convinced the MRT that well known and worthwhile services would not be available. 41 The primary judge was of the further opinion that although there was no conventional onus of proof placed upon a visa applicant, there was a practical necessity for a visa applicant, such as the appellant, to place relevant material before the MRT so that the MRT could make an informed judgment, and further that the Court's authority to interfere with the MRT's decision was substantially limited. In particular it was not for the Court to review the merits of a visa application, or to replace the MRT's decision with its own decision upon issues as to the merits of review. His Honour concluded that no error of law had been identified by the appellant, and that it was simply the case of the MRT not having been

satisfied that the appellant's mother had a permanent or long-term need of assistance, in effect beyond the community resources already available. 42 The primary judge did not find it necessary, in the circumstances of the case, to identify which, if any, of the four elements stipulated in Reg 1.03 might have been present, being those of "death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally", and being factors which would only have fallen for consideration in the first place, if Mrs Gamtcheff had "a permanent or long-term need for assistance" because of the presence of any one or more of those factors. Moreover, the primary judge considered that even if the MRT had been of the opinion that Mrs Gamtcheff did have a permanent need for assistance for any reason (his Honour's emphasis), the MRT's conclusion was that her needs could be satisfied from "welfare, hospital, nursing or community services in Australia", being a conclusion which was open to the MRT to reach on the material placed before it.

The appellant's submissions on appeal 43 The primary judge did not consider the implications of s 474 of the Act concerning privative clause decisions, notwithstanding that the same came into operation on 2 October 2001, and hence shortly before the appellant's application for review of the MRT's decision was filed in the Federal Court (see sub 8(1) of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). Counsel for the appellant therefore appreciated the need to submit at the outset that the decision of the MRT was vitiated by jurisdictional errors, such as to exclude the application of s 474 to the circumstances of the case. Those errors, were identified as first, the MRT's identification of the wrong issue, and secondly, its asking of the wrong questions and ignoring of relevant material, in the course of its interpretation and application of Reg 1.03. Counsel for the appellant contended that those errors constituted a failure of the MRT to discharge an imperative duty, and to observe an inviolable limitation or restraint, within the ambit of what was enunciated as jurisdictional error by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. Those errors were said by the appellant to have occurred on the MRT's part, because there existed "serious circumstances", which, when taken alone, or in conjunction with the evidence as to "disability" and "prolonged illness", established that Mrs Gamtcheff had a permanent need for "substantial and continuing assistance" within Reg 1.03. 44 The evidence as to disabilities and illnesses of Mrs Gamtcheff, based on the evidence placed before the MRT, constituted, on the appellant's submission, depression, "nerves", hypertension, skin cancers, cataracts, vertigo and tinnitus, ischaemic attacks, cancer of the cervix resulting more recently in a hysterectomy, anaemia and renal failure, arthritis affecting her back, hips and knees (resulting in a knee replacement), and diabetes with poor control, each being referred to in the medical reports which I have cited or reproduced above. 45 The "other serious circumstances" within Reg 1.03 affecting the appellant, based on the evidence also placed before the MRT, were submitted on her behalf to be a combination of Mrs Gamtcheff's age (77 years as at the date of the appellant's visa application made in 1997, and 81 years at the time of the MRT decision), aggravation of her diabetes and hypertension by stress and depression, absence of family support in Australia (other than that of the appellant) which would assist her depression and possibly diabetic and hypertensive control, increasing dependence on outside help, long term sleeping difficulties, occasional passive suicidal thoughts, having been thrice widowed, marked deterioration (between approximately September 1997 and March 1999) in her well-being and her ability to cope with daily living, poor financial circumstances, increasing dependence from May 2001 on her original language, distress at the prospect of going to an aged care facility where there would be communication difficulties, reluctance to use community services because of her cultural background, and fear of driving despite holding a driver's license. At least most of those circumstances were referred to in the medical reports summarised or reproduced in [5-11] above. 46 All such disabilities, prolonged illnesses and other circumstances were said to demonstrate that Mrs Gamtcheff had a permanent need for assistance from a person, such as the appellant, who would be constantly present to provide her with general assistance, company and reassurance, to speak her native Bulgarian language, to assist with matters arising from her depression, to help her with the taking and monitoring of her medication to assist in achieving control of those conditions, to assist her with daily tasks (for instance washing and shopping), to assist her in relation to problems occasioned by her many physical disabilities (for example hypertension, vision problems arising from her cataracts, vertigo, arthritic pain and disability for her back, hips and knees), and to assist her in a medical emergency (for example an ischaemic attack, chronic renal failure and diabetic incidents). All those needs for assistance were submitted to be susceptible to exacerbation with increasing age, as Mrs Gamtcheff became increasingly subjected to "the process of isolation" (to adopt counsel's description), in the absence of the appellant's "permanent or long-term assistance" (to adopt the Reg 1.03 expression), and as her "social and cultural circumstances" impacted increasingly on her ability to cope and live in Australia. 47 Upon that footing, counsel for the appellant submitted that the MRT did not properly focus on the question whether or not such needs on the part of Mrs Gamtcheff could be obtained from welfare, hospital, nursing or other community services, in the course of purportedly considering the needs of Mrs Gamtcheff as a whole, including in particular the cultural and social components of those needs. The MRT should further have found, so the submission continued, that the required assistance was not available from community services, nor from any of the persons in Australia with whom she was acquainted, apart from the appellant. 48 Counsel for the appellant thereafter submitted that the MRT had asked itself the wrong question and ignored relevant material, because it considered only whether the citizen had a permanent or long term need for assistance by reason of death, disability or prolonged illness, but not, as it was required by Reg 1.03 to also consider, "other serious circumstances". That such an omission constituted jurisdictional error, as that expression was used in S157, was submitted to be fulfilled by the criteria set out in Craig v The State of South Australia (1995) 184 CLR 163 in the well known passage at 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ) as follows: "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 authorities or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." 49 It was therefore concluded on behalf of the appellant that the failure of the MRT to discharge what was described as an imperative duty, or the failure of the MRT to observe an inviolable limitation or restraint, as was submitted to have occurred by way of non-compliance with Reg 1.03, constituted (in law) jurisdictional error, by reason of what was said recently by the High Court on that subject in S157. The appellant cited the following passage from the judgment of Gleeson CJ in S157 appearing at 33: "Consistent with authority in this country, this is a matter to be decided as an exercise in statutory construction, the determinative consideration being whether, on the true construction of the Act as a whole, including s 474, the requirement of a fair hearing is a limitation upon the decision-making authority of the tribunal of such a nature that it is inviolable… By identifying the task as one of statutory construction, all relevant principles of statutory construction are engaged… In considering and applying the relevant principles of statutory construction, it is necessary to begin with an examination of the scheme of the Act." After further citing from pp 34-5 of the judgment of the Chief Justice, where his Honour set out what he described as "… established principles… relevant to the resolution of the question of statutory construction", the appellant contended that those principles, taken together, led to a very strict construction of a privative clause such as s 474, to an extent which did not abrogate or curtail fundamental rights, or the right to review by the MRT, or by the courts of the MRT's decision. 50 Reliance was also placed by the appellant upon the following dicta in S157,appearing at 44 of the joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ, concerning the interpretation and application of privative clauses: "There are two basic rules of construction which apply to the interpretation of privative clauses. The first, which applies in the case of privative clauses enacted by the Parliament of the Commonwealth, is that if 'there is an opposition between the Constitution and any such provision, it should be resolved by adopting [an] interpretation [consistent with the Constitution if] that is fairly open' (thereby citing R. Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616 per Dixon J). The second basic rule, which applies to privative clauses generally, is that it is presumed that the parliament does not intend to cut down the jurisdiction of the courts save to the extent that the legislation in question expressly so states or necessarily implies. Accordingly, privative clauses are strictly construed." 51 During the course of the hearing of the appeal, leave was granted to the appellant to add a further ground of appeal to the effect that the MRT committed jurisdictional error when it construed the expression "need for assistance" in Reg 1.03 as not including his mother's need for companionship and emotional support. The appellant submitted that the MRT's reliance upon what was said in Carreno Arreno wrongly understated the scope of operation of Reg 1.03, and referred in that context to the following dicta of the Full Court in Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39 at 54: "However, there is nothing about the expression "other serious circumstances" nor its immediate statutory context which suggests that a necessary feature of the circumstances is that they be out of the ordinary or unexpected. 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. In our opinion, if a citizen or a member of the citizen's family unit is in circumstances which create a need for substantial and continuing assistance of the citizen and the circumstances do not arise because of the death of a member of the family unit or the disability or prolonged illness of either the citizen or the member of the family unit then those circumstances are intended to be comprehended by the expression "other serious circumstances"…" The circumstance relevantly involved in Wu was that of "young childhood". It is not readily apparent why the above dicta in Wu is at odds with the passages extracted in [14] above from Carreno Arreno, and which were subsequently cited in the MRT decisions on at least several occasions. 52 Counsel for the appellant accepted that he was obliged to demonstrate more than an error of law within jurisdiction arising in the course of the MRT's reasons for decision, and that it was necessary to establish a failure to exercise the jurisdiction, or to exercise the power, reposed in the MRT, to the extent that no decision at all was made in law by the MRT, pursuant to the MRT's obligations imposed by s 65 of the Act, which concerns the Minister's decision to grant or refuse to grant a visa. Counsel cited in that context the decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117, where the jurisdictional error involved the failure of the Immigration Review Tribunal to extend to a student visa applicant an opportunity to be heard, and thus natural justice, and thereby constituting a failure to discharge imperative duties. 53 Upon those foundations, the appellant contended that the privative clause provisions of s 474 of the Act had no adverse application to what was said to amount to jurisdictional error on the part of the MRT within the ambit of the High Court's reasons for judgment in S157.

The Minister's submissions of appeal 54 Counsel for the Minister contended that the appellant's case on appeal rose no higher than disagreement with the MRT's process of reasoning on issues of fact, and therefore no higher than a merits review of the MRT's decision within jurisdiction, citing in support the following passage appearing in one of the majority judgments in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626 (Gleeson CJ and McHugh JJ): "…We are not here concerned, for example, with the unreasonable exercise of a discretion, and it is difficult to characterise the Tribunal's decision, even on Hill J's view of it, as an abuse of power. Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as "illogical" or "unreasonable", or even "so unreasonable that no reasonable person could adopt it". If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence." The "legal consequence" to which their Honours referred was that of entitlement in principle to administrative review. Therefore, so counsel for the respondent Minister continued, the weight to be attributed to aspects of the evidence emphasised by the appellant in submissions, including the documentary evidence such as the various medical reports, were matters for the MRT to resolve, and what the appellant was in reality seeking from the Federal Court was on true analysis a merits review. 55 The Minister submitted that the MRT paid "minute attention" in any event to the medical evidence concerning the emotional condition of Mrs Gamtcheff, with the consequence that when the MRT expressed the conclusion summarised in [21(ii)] above, it must have referred to and taken into account a global discussion of not only practical but also emotional matters. Moreover, so the Minister's submissions continued, a fair reading of that conclusion, together with the MRT's further evidentiary conclusions summarised in [21(iii)] above, indicated that the MRT did ask and answer the right questions, being questions which included emotional factors amongst other serious circumstances, albeit that those emotional factors were said by the Minster to be "…not of the magnitude that is required for the purposes of the need and assistance test". The Minister acknowledged that Mrs Gamtcheff has a need for assistance of a practical as well as emotional nature, but that those needs did not, in the circumstances of the case, require "substantial and continuing assistance" within Reg 1.03, and further that assistance of that dimension may include emotional support and companionship, in the light of the Full Court's reasons for judgment in Narayan v Minister for Immigration and Multicultural Affairs [2001] FCA 1745. The Minister contended however that Mrs Gamtcheff's needs did not require "substantial and continuing assistance" within Reg 1.03. 56 The Minister submitted that in any event, the privative clause provisions of s 474 duly operated upon the circumstances and scope of the MRT decision the subject of the present appeal. The starting point of the Minister's submission that the notion of jurisdictional error, in respect of which relief under s 75(v) of the Constitution would go, was that the same was narrowly defined, constituting as it does a failure to exercise jurisdiction or an excess of jurisdiction. So much was submitted to be evident from the recent decisions of the High Court in S157, and also in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicants S134 of 2002 (2003) 195 ALR 1. 57 Upon that footing, the Minister submitted that it appears from the reasoning in S157 and S134 of 2002 that the categories of jurisdictional error, beyond the protection of s 474, are the following, but no more: (i) the decision exceeds constitutional limits; (ii) the decision is not a bona fide attempt to exercise power; (iii) the decision does not relate to the subject matter of the legislation; (iv) the decision is made in breach of an inviolable statutory limit or condition upon a power which, as a matter of construction, notwithstanding s 474, must be observed for the effective exercise of the power; or (v) the decision is made in breach of the requirements of procedural fairness where the circumstances are such that, notwithstanding s 474, procedural fairness is a necessary condition for the valid making of the decision. 58 In that context, the Minister mentioned that since s 39B of the Judiciary Act 1903 (Cth), subject to qualifications not here relevant, confers upon the Federal Court jurisdiction of the character conferred on the High Court under s 75(v) of the Constitution, the construction to be given to the term "privative clause decision" in s 474, as enunciated in S157 and S134, is equally applicable in relation to the operation of s 39B of the Judiciary Act 1903 (Cth), and the ambit of jurisdiction conferred thereby on the Federal Court. It follows from those High Court decisions, the Minister's submissions continued, that where a decision is tainted with jurisdictional error within the purview thereof, that decision is not protected in s 474. 59 It follows, so the Minister's submissions concluded, that s 474 applies to the circumstances found by the MRT in the present case, there having been no failure to exercise jurisdiction, and no excess of jurisdiction, on the MRT's part. Consequently, it was submitted that the jurisdiction otherwise conferred upon the Federal Court by the law specified by s 476(1) of the Act should apply according to its terms. My conclusions 60 The primary judge correctly emphasised that it was not the Court's function to review the factual merits underpinning a visa application, nor to replace the MRT's decision with its own determination of the merits of the case. Counsel for the appellant did not contend to the contrary, but on close analysis, the reality and substance of his carefully framed submissions boil down to contentions of that character. The findings of the MRT, which I have earlier summarised, demonstrate that the MRT did substantially address the nature and scope, not just of Mrs Gamtcheff's disabilities and illnesses, but also of the other serious circumstances adversely affecting her, as set out in my summary of the evidence placed before the MRT, and additionally of the assistance which could be reasonably obtained from welfare, hospital, nursing and community services in Australia, and in particular, in the locality generally in which she resided. I am unable to distil any shortcomings in the reasoning of the primary judge which I have just summarised. 61 The unfortunate circumstances attending Mrs Gamtcheff, at the time of the MRT's decision, being the circumstances which have been earlier summarised, are such as to engender a measure of sympathy, and it is conceivable that since the handing down of the MRT's reasons for decision nearly 18 months ago, those circumstances might conceivably have changed to an extent appropriate to merit further departmental consideration. The spectre of this elderly Bulgarian woman surviving on her own after her son's pending return to Bulgaria, pursuant to the rejection of his visa application, is an unfortunate one, particularly in the light of the present medical evidence earlier reproduced, and which was virtually non-controversial. Perhaps it was unfortunate that the MRT was not afforded the opportunity of receiving testimony from Mrs Gamtcheff in person, because of her then very recent discharge from hospital. Though irrelevant to the issues which the MRT was called upon to determine, I would observe that the added cost to the Australian Community to be incurred, by reason of Mrs Gamtcheff being no longer in the constant company and care of her only relative (her son) in Australia, received unanimous emphasis in the doctors' reports extracted in [7-10] above. 62 It was not enough for the appellant to establish in the MRT merely that some of the "serious circumstances" enumerated in his counsel's submissions, and in particular those enumerated in [33] above, were not explicitly addressed in the MRT's reasons for decision, notwithstanding in particular that the Full Court in Narayan considered that "assistance" within the ambit of Reg 1.03 may extend to emotional support and companionship. An omission of the MRT to refer in its reasons for decision to evidence of relevance in relation to a review of the delegate's decision does not necessarily demonstrate an error of law on the MRT's part, such as to vitiate its decision. I am unable to describe any of the complaints enumerated by the appellant as justiciable, bearing in mind for instance the passage cited above from Eshetu. The MRT's apparent acceptance of what was earlier said in Carreno Arreno, as to more being relevantly required than companionship, emotional and convenience (see [14] above), necessarily engenders a measure of concern, particularly as that tribunal decision has been since accorded the status of Departmental policy (see [16] above). All that may have the potential to lead the MRT into error, but I am unable to conclude that such occurred in the present MRT proceedings. 63 In the result, the appeal from the primary judge must be dismissed, and accordingly it becomes strictly unnecessary to address the Minister's reliance alternatively upon s 474 of the Act. In deference to the submissions of both parties to the appeal, it is nevertheless appropriate that I should do so. Should the appeal be dismissed in any event by virtue of s 474 of the Act 64 For ease of reference, I set out below the full text of subs 474(1) and (2) of the Act: "(1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. (2) In this section: privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5)." 65 On 15 August 2002, a Full Court of the Federal Court comprising five judges, in the context of five appeals involving the Refugee Review Tribunal ("RRT"), the MRT and delegates of the Minister respectively, held that s 474 of the Act was constitutionally valid, with the consequence that the privative clause the subject thereof operated to deny review of the respective decisions of the RRT, the MRT and the delegates. The five appeals were heard together and are reported at (2002) 193 ALR 449, the first appeal being NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 195 ALR 449. In that appeal, the majority (Black CJ, Beaumont and von Doussa JJ), held that the appeal should be dismissed, notwithstanding that a breach of the rules of procedural fairness had occurred, the breach comprising the taking into account by the RRT, in the course of its decision-making, of a number of matters adverse to the appellant for review without disclosure to the appellant that it would do so or had done so in the course of its decision-making. In two of the remaining four appeals, the appellants being NABE and Ratumaiwai, that Full Court decided unanimously that certain errors made by the RRT and MRT were not jurisdictional errors for the purposes of the Minister's purported application of s 474, the same respectively involving an error which could have adversely affected the outcome of the RRT's decision, and an error by way of failing to consider, in the course of deciding that the appellant was not a "special need relative", whether the appellant had provided financial and emotional assistance to his brother (ie the kind of issue involved in the present proceedings). 66 In the course of his dissenting judgment in NAAV appearing under the heading "Jurisdictional error", French J referred at 564 to the passage in Craig extracted in [34] above, and subsequently at 566 to a passage in the joint judgment of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351-2, which comprised part of what I now set out below: "Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law… If a tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant materials or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found. If that is so, the ground in s 476(1)(e) is made out." (Emphasis highlighted twice). 67 Yusuf thusinvolved the review of an RRT decision pursuant to par (e) of subs (1) of the now repealed s 476 of the Act, and not proceedings for prerogative relief pursuant to s 39B of the Judiciary Act 1903. It is significant that their Honours' discussion of Craig occurred in the context of the repealed s. 476 (1)(e); it is worth repeating the full text of that par (e) below: "476(1)(e) that the decision, involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision." There is not of course any similar ground of review in the present statutory scheme. 68 It may further be observed that French J in NAAV articulated the critical distinction between the different levels of jurisdictional error (at 566): "As discussed earlier the term "jurisdictional error" has historical roots related to the initial application of prerogative writs against orders of inferior courts. The extension of that application to administrative tribunals and other officers or bodies has carried the terminology with it. There is a distinction still to be drawn in Australia between jurisdictional error, in the narrow sense, and error within jurisdiction for the purposes of the issue of writs to inferior courts. Despite the persistence of the historical terminology it is not clear that anything more than the question whether a decision has been made in excess of power need be posed where administrative bodies are concerned. Aronson and Dyer observe that most judgments today use ultra vires and jurisdictional error interchangeably or differentiate between them on grounds of common usage only." (Again my emphasis is highlighted). 69 In Darling Casino Ltd v NSW Casino Control Authority (1996-1997) 191 CLR 602, support may be found for the distinction drawn by French J in NAAV between "jurisdictional error in the narrow sense", and "error within jurisdiction for the purpose of the issue of writs to inferior courts", in the following passage in the joint judgment of Gaudron and Gummow JJ at 633: "Mandamus and prohibition are remedies which are granted in cases of jurisdictional error - refusal to exercise jurisdiction, in the case of mandamus, and excess of jurisdiction, in the case of prohibition. The terms of s 75(v) would be defeated if a privative clause operated to protect against jurisdictional errors being refusal to exercise jurisdiction, or excess of jurisdiction, in the latter case whether by reason of the constitutional invalidity of the law relied upon or the limited terms of a valid law. However, there is no constitutional reason, in our view, why a privative clause might not protect against errors of other kinds by, within the limits of the relevant legislative powers, operating to alter the substantive law to ensure that the impugned decision or conduct or refusal or failure to exercise a power is in fact valid and lawful." 70 In the reasons for judgment of Gleeson CJ in S157, his Honour made reference to an earlier passage in the judgment of French J in NAAV which was however unrelated to what I have extracted above, and the Chief Justice added the following observation at 35: "In that case, and a number of related cases heard at the same time, the Full Court of the Federal Court dealt with several different kinds of challenge to decisions under the Act, and the operation of s 474 in relation to each of them. Here we are concerned with only one kind of challenge, involving a claim of denial of natural justice. A rejection of the Commonwealth's global approach to the operation of s 474 does not mean that the opposite conclusion follows in relation to every possible kind of challenge to a decision." No reference was made by the Chief Justice to any species of jurisdictional error, other than that of denial of procedural fairness, and no observation was made by his Honour to the distinction drawn by French J between jurisdictional error in its so-called narrow sense and error within jurisdiction for the purposes of the issue of writs to inferior courts. Moreover no reference was made by the Chief Justice to Craig, and in particular, the passage extracted in [34] above. 71 Similar observations may be made in relation to the joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ in S157, except that no reference was made therein to NAAV at all. Apart from referring to jurisdictional error by reason of denial of procedural fairness, the joint judgment made explicit reference to vitiating factors of fraud, dishonesty or other improper purpose, but not to the matters the subject of administrative review enunciated in Craig. However in the reasons for judgment of Callinan J, a limited reference was made to Craig at 59, but only in relation to what his Honour described as his concern as to "…any extensive use of certiorari to correct non-jurisdictional error of law by inferior courts". The issue in Craig was whether there could be jurisdictional error, or error on the face of the record, in District Court proceedings, such that certiorari might lie, as in the case of an administrative tribunal. At 68, Callinan J spoke of jurisdictional errors as involving no less than some grave, or serious breach of the rules of natural justice, and at 69, he spoke of the availability of prerogative relief pursuant to s 75(v) of the Constitution where "…proof that an error of jurisdiction of a sufficient degree of gravity has been made". As in the case of the other members of the Court, no reference was made by his Honour to NAAV. 72 It may be borne in mind that the s 474 privative clause was framed with the intention of embodying the Hickman principle which Dixon J (as he then was) expounded in Re Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 614-5 (Commonwealth, House of Representatives, Australian Parliamentary Debates (Hansard), 26 September 2001 at 31,561). The joint majority judgment in S157 recognised that the Hickman provisoes (i.e. there must be a bona fide exercise of power, the decision must relate to the subject matter of the legislation and be reasonably capable of reference to the power given to the body) represented a minimum for judicial review so that the "protection which the privative clause 'purports to afford' will be inapplicable unless those provisoes are satisfied" (at 42). This requires the court to "have regard to the terms of the particular clause in question" (at 42) and to thereupon undertake a process of interpretive reconciliation upon which the cannons of "statutory construction are engaged" (at 33). The High Court in S157 did not overrule Hickman but rather construed the privative clause to be inoperative where the Hickman provisoes were not satisfied, or in circumstances where a contravention of an inviolable limitation or imperative duty required to be observed under the Act has occurred (at 42, 45-6). Consequently, although there are different shades of jurisdictional error, as recognised by French J in the passage in NAAV set out in par [54] above, whether a decision is protected by the privative clause falls to be determined by construing the relevant provisions in the Act through the maze of the s 474privative clause (at 45-46). 73 In the light of the matters to which I have referred, I think that it would be unsafe to deny s 474 an operation beyond what has been explicitly provided in S157, and similarly beyond what was provided in Bhardwaj to which reference has earlier been made, and therefore unsound to authorise the exclusion of any operation of s 474 by reason of the existence of any one or more of the vitiating circumstances enumerated in Craig, unless and until the High Court may hold otherwise. It follows that I am in agreement with what has recently been observed by Gyles J in Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 144, to the effect that the Full Court's decision in NAAV should not be disregarded beyond what the High Court has necessarily stipulated in S157. In the result, I am of the view that the appellant's purported reliance upon Craig cannot be sustained, such as to allow s 474 to be obviated in circumstances attracting merely the traditional grounds for administrative relief. The appeal must therefore be dismissed with costs. I certify that the preceding fifty-nine (59) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate: Dated: 2 May 2003 Counsel for the Appellant: Mr Collett