Lopez v Minister for Immigration & Multicultural & Indigenous Affairs

· has nominated the applicant for the grant of the visa.

8 The appellant claimed that she was a "special need relative" of her sister, Mrs Sandra Hazel Mitchell, an Australian citizen usually resident in Australia. Mrs Mitchell was the appellant's nominator for the purposes of the visa application. 9 The expression "special need relative" was defined in reg 1.03 of the Regulations as follows: "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 reasonably be obtained from:

(i) any other relative of the citizen or resident being a relative who is an Australian citizen or Australian permanent resident or an eligible New Zealand citizen; or

(ii) welfare, hospital, nursing or community services in Australia." 10 The delegate refused the application on the ground that Mrs Mitchell did not have a disability, prolonged illness or other serious circumstances requiring permanent or long-term assistance and, furthermore, the assistance given by the appellant to Mrs Mitchell did not constitute substantial and continuing assistance as provided for in reg 1.03. 11 On 16 May 2001, the appellant lodged an application for review of the delegate's decision with the MRT.

The MRT's decision 12 In its statement of decision and reasons dated 27 February 2002, the MRT noted that in the application for the visa, the appellant stated that Mrs Mitchell had psychological and emotional needs. A report prepared by a psychologist Mr Eddy Kleynhans dated 12 September 1996, formed part of the application. The report concluded that Mrs Mitchell was highly vulnerable to stress, which had a negative effect on her physical health and that Mrs Mitchell was dependent on the appellant emotionally and psychologically. He stated that Mrs Mitchell became depressed if she lived apart from the appellant. The report assessed both the appellant and Mrs Mitchell as suffering from depression. 13 At the hearing before the MRT, conducted on 6 December 2001, evidence was given that Mrs Mitchell needed the companionship of the appellant and her children and that she suffered from panic attacks when the appellant was not in Australia. She was concerned about the appellant and her children returning to India. On 19 December 2001, the MRT received a submission from the appellant's migration agent which stated that "(f)rom the evidence it appears that severe depression (was) triggered when there are thoughts of (the appellant) being forced to return to India to suffer the same types of problems that she encountered previously". 14 The MRT, in its reasons, stated that the substantive issue before it was whether the appellant was a "special need relative" of Mrs Mitchell within the meaning of cl 806.213 at the time of the visa application and whether the appellant remains a "special need relative" at the time of the decision. 15 The MRT considered each aspect of the definition of "special need relative" and affirmed the decision of the delegate to refuse the grant of the visa. In the circumstances of the instant case, those aspects were as follows:

· whether Mrs Mitchell, the nominator of the appellant for the visa was a relative of the appellant and an Australian citizen (which was confirmed by the MRT);

· whether Mrs Mitchell had a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances;

· whether the appellant was willing and able to provide substantial and continuing assistance to Mrs Mitchell; and

· whether the assistance could not reasonably be obtained from another relative or welfare, hospital, nursing or community services.

16 In particular, the MRT found as follows: On the issue of whether Mrs Mitchell had a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances.

· The claim that Mrs Mitchell had a permanent or long term need for assistance because she suffered from a serious level of depression and from panic attacks was not supported by the evidence. Mrs Mitchell suffered from depression prior to the date of the psychological assessment in August 1996 and again in December 2001, as a consequence of her worry about the appellant, but otherwise has not suffered from a relevant illness or disability. The occasional depression suffered by Mrs Mitchell did not amount to a prolonged illness.

· The appellant and Mrs Mitchell have a special bond as sisters with a shared history and, if the appellant returned to India, Mrs Mitchell would suffer emotionally and might even require psychiatric or psychological treatment.

· Applying Hussein v Minister for Immigration & Multicultural Affairs [1999] FCA 162, although the appellant's continued presence in Australia might reduce the likelihood of Mrs Mitchell suffering further depression or other mental illness, the appellant's mere presence did not amount to assistance as contemplated by the Regulations. Further, while Mrs Mitchell might need some assistance in the future if the appellant departed from Australia, there was no evidence that she required any assistance at the time of the application or that she currently required any assistance other than companionship.

· Applying the test of other serious circumstances in Wu v Minister for Immigration & Multicultural Affairs [2000] FCA 1817, (2000) 105 FCR 39, there was no evidence that, either at the time of application or at the time of decision, Mrs Mitchell required any assistance which was substantial and continuing in relation to a need for assistance which was permanent and long-term.

On the issue of whether the appellant was willing and able to provide substantial and continuing assistance to Mrs Mitchell.

· The present relationship between the appellant and Mrs Mitchell was companionship and considering the meaning of "substantial and continuing assistance", companionship was not regarded, in the absence of other factors, as constituting a permanent or long-term need.

· Neither the appellant nor Mrs Mitchell cited practical tasks such as house work, shopping and paying bills in respect of the nature of the care provided.

On the issue of whether the assistance cannot reasonably be obtained from another relative or welfare, hospital, nursing or community services.

· "As it is not clear what form of assistance could be provided by (the appellant) to (Mrs Mitchell) apart from companionship it (was) also not certain whether any assistance could be reasonably be obtained from another relative or welfare, hospital, nursing or community services".

The primary judge's decision 17 The MRT's decision is a privative clause decision as defined in s 474 of the Act. The primary judge dismissed the application on the basis that s 474 precluded review of the decision of the MRT. In the context of the availability of judicial review under the Act as it stands following the 2 October 2001 amendments, the primary judge said at [8] as follows: "8. It was common ground nevertheless that, as is clear from the second reading speech when s 474 was introduced into the Act last year, judicial review is available if it can be established that one or more of the three pre-conditions to the valid exercise of decision-making power formulated by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615 is absent. Those pre-conditions of validity are that (a) the decision-maker has made a bona fide attempt to exercise its power; (b) the decision relates to the subject matter of the legislation and (c) the decision is reasonably capable of reference to the power given to the decision-maker. I shall use the expression "Hickman ground" to mean the absence of one of these pre-conditions."

18 The primary judge said that the correct approach was first to consider whether s 474 applied, rather than to assess whether there were reviewable errors. His Honour held that the applicant for review must identify the error in the MRT's reasons so that the Court could determine whether the error identified was of a kind which might fall within any of the Hickman grounds. 19 According to the primary judge, two errors were identified by the appellant. The first alleged error went to the MRT's conclusion as to "other serious circumstances". The appellant submitted that the condition of Mrs Mitchell did in fact exist and that the appellant's departure from Australia, if no visa were granted, would render Mrs Mitchell's condition symptomatic. The second error was said to be the MRT's finding that the appellant's presence in Australia, or the companionship she could provide to Mrs Mitchell, would not amount to "substantial and continuing assistance". 20 The primary judge understood from the errors identified, that the appellant relied upon the third Hickman ground, that is, the MRT's decision, by reason of its errors, was not reasonably capable of reference to the power given to the decision-maker. The primary judge considered that "there (was) no basis for thinking that, in terms of the second Hickman ground, the decision did not relate to the subject matter of the legislation, i.e. the grant or refusal of visas". 21 The primary judge found that the errors identified by the appellant failed to show that the decision of the MRT was not reasonably capable of reference to the power given to it under s 349 of the Act. In relation to the third Hickman ground, the primary judge said at [14]: "14. The meaning to be given to that third Hickman ground is, in my opinion, the explanation that was given in the Minister's second reading speech, that is to say, that the decision-maker had been given the authority to make the decision concerned. There cannot be any question that the decision here, that is, a decision to affirm a decision of a delegate of the Minister, fell within that description. I would agree with and adopt what was said by Allsop J in NAAG at [27]:

'I do not read this third requirement as intended to mean that the limits of the power in question, absent the privative clause, are analysed (including notions of jurisdictional error of a kind discussed earlier) so as to find 'jurisdictional error' and so to find an absence of 'reasonable capacity of reference' to the power. To do so would be to drain the privative clause of all intended content and effect.'"

Timing of consideration of s 474 22 On the hearing of the appeal, counsel for the appellants submitted that the primary judge erred by considering the impact of s 474 of the Act on the application before him, prior to considering the nature of the legal errors which were alleged to have been committed by the MRT. He stated that other judges of the Court have considered it more appropriate to consider the nature of the alleged legal error prior to examining the effect of s 474.

23 We consider that this submission is without foundation. The primary judge assumed in favour of the appellant that legal error of the kind alleged was shown in the reasons of the MRT. His Honour referred to those errors at [11] and [12] of his reasons for judgment saying: "11. The first error alleged went to the Tribunal's conclusion as to "other serious circumstances". It was said that the condition of (Mrs Mitchell) did in fact exist and the departure from Australia by (the appellant) if no visa were granted would render the conditions symptomatic." 12. The second error was said to be the Tribunal's finding that the mere presence of (the appellant) in Australia, or her companionship that she could provide to (Mrs Mitchell), would not amount to 'substantial and continuing assistance'."

24 His Honour held at [13], that he was satisfied that even if the appellant's submissions on the errors were correct, the errors did not show that the decision of the MRT was "not reasonably capable of reference to the power given to it under s 349 of the Act". Ratumaiwai 25 Counsel for the appellants formally submitted that if the MRT made an error of law the decision was beyond the protection of s 474(1). Counsel acknowledged that this submission could not succeed in this Court in light of the judgment of the Full Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228. In NAAV, five appeals were considered together by a Full Court comprising five judges. One of the appeals concerned an appeal by a Mr Ratumaiwai from a judgment of Hill J; Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA 311. Hill J dismissed an application to review a decision of the MRT to refuse a Family (Residence) visa to Mr Ratumaiwai. The Full Court rejected the submission that a legal error in determining an entitlement to a Family (Residence) visa was an error which was not protected by s 474(1) of the Act.

26 As in this matter, the question in the Ratumaiwai aspect of NAAV was whether the MRT had correctly construed the phrase "special need relative". At [36], Black CJ said:

"Even if the Migration Review Tribunal did err in construing that phrase, it was an error of law that the Tribunal now has jurisdiction to make. The term "special need relative" was defined at the relevant time by Regulation 1.03 in non-technical, or "ordinary" language, and did not in terms pose a legal question as the basis of the Minister's satisfaction. Section 474(1) operated to enlarge the Tribunal's jurisdiction in this respect." 27 Beaumont J reached the same conclusion at [188], where his Honour said:

"The Migration Tribunal's decision can, without doubt I think, be characterised as a bona fide attempt to exercise its authority in a matter relating to the particular subject with which the Act deals; and as a decision which is capable, on any reasonable approach, of being referred to the power possessed by the Migration Tribunal." 28 At [651], von Doussa J said: "Even if the Tribunal had committed errors of law of the kind contended for by Mr Ratumaiwai by misinterpreting the definition of "special need relative" in the Migration Regulations, reg 1.03, and by failing to consider whether Mr Ratumaiwai had provided to his brother financial assistance and emotional assistance, I consider that s 474 would nevertheless save the Tribunal's decision from invalidity." 29 At [348], Wilcox J found it unnecessary to deal with the effect of s 474 on the decision of the MRT. French J came to a similar view, in substance, as Wilcox J when discussing the matter of the relevant errors at [572] and [573]. Accordingly, a majority of the Full Court determined that, if the MRT had erred in its construction of the definition of "special need relative", s 474 would render the decision a valid one.

The adjournment application 30 Counsel for the appellants sought an adjournment of the appeal pending the resolution of issues raised by matters before the High Court. 31 We agree, with respect, with the approach of Sackville J in Wu v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1242 at [67], where his Honour rejected a similar adjournment application made in substantially the same circumstances. We concur in the view that the law applicable to the resolution of the issues before us is contained in the reasoning of the majority of the Full Court in NAAV.

Order 32 In the circumstances we propose to order that the appeal be dismissed, with costs.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Marshall, Goldberg & Kenny.

Associate: Dated: 13 November 2002 Counsel for the Appellant: Mr T V Hurley

Solicitor for the Respondent: Australian Government Solicitor