Minister for Immigration and Multicultural and Indigenous Affairs v Hettiarchchige - [2005] FCA 37 - FCA 2005 case summary — Zoe

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Minister for Immigration and Multicultural and Indigenous Affairs v Hettiarchchige

[2005] FCA 37

Federal Court of Australia|2005-07-01|Before: Kenny J

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Court

Federal Court of Australia

Decision date

2005-07-01

Before

Kenny J

Source

Original judgment source is linked above.

Judgment (62 paragraphs)

[1]

THE COURT ORDERS THAT:

The appeal be allowed with costs.
Paragraphs 1, 2 and 3 of the orders made by the Federal Magistrate on 13 June 2003 be set aside; and, in lieu thereof, order that the application to the Federal Magistrates Court be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

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BETWEEN: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

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REASONS FOR JUDGMENT 1 On 13 June 2003, a Federal Magistrate set aside a decision of the Migration Review Tribunal ("the Tribunal") and remitted the matter to the Tribunal for further hearing and determination. The Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") appeals to this Court pursuant to s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). The Chief Justice has directed that the matter be heard and determined by a single judge: see Federal Court of Australia Act 1976 (Cth), s 25(1A). By consent, orders have been made extending the time for the appellant to file and serve a Notice of Appeal. the circumstances in which the appeal is made 2 The respondent, who is a citizen of Sri Lanka, arrived in Australia in January 1996, travelling on a tourist visa. He was later granted other visas. On 27 July 1998, the respondent applied for permanent residence in Australia, on the ground that he was a "special need relative" to his brother, who is an Australian citizen. On 31 January 2002, a delegate of the Minister refused the respondent's application for permanent residence. On 15 February 2002, the respondent applied to the Tribunal for a review of the delegate's decision. When this application failed, the respondent sought judicial review, pursuant to s 39B of the Judiciary Act 1903 (Cth): see also s 475A of the Migration Act 1958 (Cth) ("the Act"). The Federal Magistrates Court heard the matter and, as already noted, the respondent succeeded in having the Tribunal's decision set aside. 3 By a notice of appeal dated 11 July 2003, the Minister appealed to this Court. the nature of the appeal 4 An appeal from a judgment of the Federal Magistrates Court is not an appeal by way of a hearing de novo, nor is it an appeal in the strict sense: cf Farrington v Deputy Commissioner of Taxation [2002] FCA 1013 at [4] per Kenny J; Low v Commonwealth of Australia [2001] FCA 702 at [3] per Marshall J. Such an appeal is conducted as a re-hearing. On an appeal by way of re-hearing, the powers of an appellate court are exercisable only if the appellant can demonstrate that, having regard to the evidence before the appellate court, the judgment under appeal is a consequence of some legal, factual or discretionary error: see Allesch v Maunz (2000) 203 CLR 172 at 180 [23] per Gaudron, McHugh, Gummow and Hayne JJ; Minister for Immigration and Multicultural Affairs v Jia Lageng (2001) 205 CLR 507 at 533 [75] per Gleeson CJ and Gummow J; and Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203-204 [13]-[14] per Gleeson CJ, Gaudron and Hayne JJ. On an appeal to this Court from the Federal Magistrates Court, this Court may receive evidence that was not adduced below. It may also draw inferences of fact from the evidence that was received below: see Federal Court of Australia Act 1976 (Cth), s 27. legislative framework 5 Section 29(1) of the Act confers power on the Minister to grant a non-citizen permission, to be known as a visa, to travel and enter and/or remain in Australia. There are different classes of visa. Subsection 31(3) of the Act provides that the regulations may prescribe criteria for a visa or visas of a specified class. Section 65 of the Act obliges the Minister to grant a visa if the Minister is satisfied that the criteria prescribed by the Act and the Regulations have been met. At the time the respondent made his application, the criteria for Change in Circumstances (Residence) (Class AG) subclass 806 visas were set out in Sch 2 to the Migration Regulations 1994 (Cth) ("the Regulations"). (The Migration Amendment Regulations (No 2) 2000 (Cth) repealed the provisions relating to Change in Circumstances (Residence) (Class AG) visas. Nothing turns on this in the present case.) 6 The respondent could not be granted a Subclass 806 (Family) visa unless at the time of application he could satisfy the criteria set out in clause 806.211. These criteria were:

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(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, an Australian permanent resident or an eligible New Zealand citizen; or (ii) welfare, hospital, nursing or community services in Australia. 9 As will appear hereafter, the Federal Magistrates Court also accepted the respondent's submission that, in making its decision, the Tribunal had not complied with the relevant parts of s 359A of the Act, as it was required by law to do. This provision is set out below. the decision of the tribunal 10 The Tribunal recorded that "[t]he application was made on the grounds that the visa applicant was a special need relative of his married brother". The Tribunal had before it the relevant Departmental files and other material submitted on the behalf of the visa applicant, who is the respondent in this proceeding, including reports from a psychologist and a psychiatrist. The respondent, his brother ("the nominator") and the nominator's spouse gave evidence at a hearing held on 2 October 2002. 11 The Tribunal commenced its discussion under the heading "Findings", by observing: At the time the visa application was lodged, Change in Circumstance (Residence) (Class AG) contained a number of subclasses. The only subclass in respect of which any claims have been advanced is subclass 806, and then only in respect to the 'special need relative' ground. There is no evidence to suggest that the visa applicant meets key criteria for other subclasses or other grounds. 12 The Tribunal found that the respondent met the criterion in clause 806.211(b), being a person to whom s 48 of the Act applied, and the criterion in clause 806.212, relating to the time of the application. The balance of its reasons were concerned with whether the respondent was a "special need relative" as defined in reg 1.03 of the Regulations, for the purposes of clauses 806.213 and 806.221. 13 Before discussing the definition of "special need relative", the Tribunal remarked: In this case the Tribunal did not find the evidence of the visa applicant and his witnesses to be particularly convincing. Frequently the evidence before the Tribunal was inconsistent with the claims being made by the visa applicant and the Tribunal finds that, at times, the statements of the visa applicant were inflated to advance his claims to be a special need relative. 14 The Tribunal held that the nominator was a relative within the meaning of reg 1.03 and that he had been granted a permanent visa in October 1996 and Australian citizenship on 9 March 2000. The Tribunal accepted that, "[o]n the basis of the evidence before it … the nominator has suffered from bouts of depression". The Tribunal observed that, "[h]aving established that a condition exists", it was required to "identify distinctly what the nominator actually needs by way of assistance as a result of his condition". 15 The Tribunal noted that "the psychological and psychiatric reports submitted in support of the visa application [did] not elaborate further on the type or level of other assistance the nominator required in July 1998 or at present as a result of his condition". The Tribunal said:

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the parties' submissions The Minister's submissions 20 The Minister's case on appeal was that the Federal Magistrate had wrongly attributed error to the Tribunal. In substance, the Minister contended that the Federal Magistrate erred in her finding with respect to s 359A of the Act and in finding error in the Tribunal's application of the definition of "special need relative". 21 In written contentions, augmented at the hearing of the appeal, the Minister submitted that the Federal Magistrate had erred in holding that the Tribunal had not complied with s 359A of the Act. At the hearing, counsel expressly abandoned any attempt to have the Court rely on the transcript of the Tribunal hearing, which, as previously noted, was not before the Federal Magistrate. The Minister submitted that it was apparent from the Tribunal's reasons that the issue of the nominator's travel had been dealt with in detail in evidence before the Tribunal and, in any case, the visa applicant provided the "information concerning travel by the nominator, without the visa applicant" and that, by virtue of s 359A(4), s 359A did not apply. 22 The Minister submitted that, if there was a breach of s 359A, the error was not a jurisdictional error attracting discretionary relief; alternatively, that a breach did not vitiate the decision. Referring to NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 214 at 220 per Carr, Kiefel and Allsop JJ, the Minister submitted, first, that, in the circumstances, there was no failure to accord procedural fairness that could amount to a failure to exercise jurisdiction or an excess of jurisdiction. Secondly, the Minister submitted that, even if there was jurisdictional error, relief should be refused because: (a) the respondent did not file any material or make any submission to support a contention that he would have placed further material before the Tribunal if the matter had been drawn to his attention; (b) the respondent and the nominator gave evidence of the nominator's travel and the reasons for it, and there was no unfairness to the respondent in a practical sense; (3) the application failed on other grounds, and the information in question "could in no sense be described as a matter critical to the adverse decision"; and (4) the Federal Magistrate's reference to s 476(1)(a) of the Act was mistaken, since this provision had been repealed. The Minister submitted that the alleged breach could not vitiate the decision because it did not affect the critical finding that the nominator did not suffer a condition requiring a permanent or long-term need for assistance. 23 In written submissions, the Minister also challenged the Federal Magistrate's finding that the Tribunal erred by proceeding upon the basis that, as a matter of law, assistance in the nature of domestic chores and companionship could never satisfy the definition of special need relative. The Minister submitted that "[a] fair reading of the Reasons for Decision of the Tribunal do not permit the conclusion reached by her Honour". Referring to the decision in Fraser v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1575 ("Fraser") at [32], [36]-[38] per Weinberg J, the Minister submitted that: The passages in the Tribunal's reasons referred to by her Honour … further support the contention that the Tribunal correctly appreciated the role of policy.

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25 In written submissions and at the hearing, the Minister also contended that the Federal Magistrate erred in finding error in the Tribunal's finding that "a need for daily emotional and physical support as well as companionship is something experienced by many members of the community and does not, on its own, amount to a need for substantial assistance". The Minister submitted that "[h]er Honour's comments do not accurately reflect what the Tribunal said"; and that "[t]he finding of facts, including the degree of assistance required by the nominator was a matter for the Tribunal". Referring to Waterford v Commonwealth (1987) 163 CLR 54 at 77-78 per Brennan J and Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351-352 [83]-[84] per McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed), the Minister contended that "[e]ven if the Court would have come to a different conclusion on the facts, such an error is not reviewable". 26 At the hearing of the appeal, counsel for the Minister relied on the decision of the Full Court in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 ("VUAX") in submitting that the critical finding made by the Tribunal was that the nominator did not suffer a condition requiring a permanent or long-term need for assistance and, even if the Tribunal made the errors identified by the Federal Magistrate, none of these errors impugned this critical finding. The appellant submitted that the Tribunal had clearly considered the nature of the nominator's condition and the need for assistance that arose as a consequence and made its findings accordingly. 27 Finally, at the hearing, the Minister submitted that a further ground of appeal agitated by the respondent, which relied on Xiang v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 64 ("Xiang"), could not be made out; and, even if it could, no such error could vitiate the Tribunal's decision, because it did not affect the critical finding on which the decision turned. The respondent's submissions 28 At the hearing of the appeal, the respondent acknowledged that the Tribunal found that, at the relevant times, the nominator suffered from neither a prolonged illness nor a disability. The respondent contended that the Tribunal erred in its consideration of "other serious circumstances", because it did not apply the test in Wu and it excluded the identified need for assistance from its consideration. In written submissions, relying on Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 88 ("Chow"), Jackson v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 203 ("Jackson") and Lobo v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 200 ALR 359 ("Lobo"), the respondent submitted that:

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It was under the second heading that the Tribunal found that the nominator suffered from bouts of depression. Its next step was to consider whether the nominator had a permanent or long-term need for assistance because of the nominator's condition, and whether this condition constituted "disability, prolonged illness or other serious circumstances". 36 Although the Tribunal's reasons could have been expressed more clearly than they were, I accept the Minister's submission that, on a fair reading, the Tribunal did not, as the Federal Magistrate held, approach its enquiry upon the basis that a need for companionship and domestic help could never satisfy the definition of special need relative. Further, I reject the respondent's submission that the Tribunal applied the policy in PAM 3 blindly or pursued a "blanket" approach to the relevant questions concerning the assistance needed and the nominator's condition. 37 The Tribunal's approach cannot be evaluated properly without reference to the authorities. It is important to keep in mind the observation of the Full Court (consisting of Heerey, Moore and Goldberg JJ) in Wu at 54: [T]here 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. 38 In a similar vein, Lindgren, Tamberlin and Merkel JJ noted, in their joint judgment in Narayan at [39], that "[t]he opening paragraph and par (a) of the definition are closely related". Their Honours added at [40] that: We agree with the primary Judge's observation … that the definition of "special need relative" is "framed a little awkwardly". Perhaps some of the awkwardness is removed if the opening paragraph and par (a) are read purposively and as a whole. 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 a need will be able to be met by nothing less than "substantial assistance". 39 In Jackson at [17], the Full Court (constituted by Lee, Carr and Moore JJ) also remarked: There is an obvious link drawn in the regulation between what can be provided by the relative and what is needed by the nominator: see Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 88 at [22].

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Their Honours went on to say, at [22]: The purpose of the definition (as it operates in the prescribed criteria) is to enable a citizen or resident to obtain assistance from a relative at times of real need which will continue for a prolonged period. 40 The Tribunal's approach was consistent with the authorities. After finding that the nominator suffered from bouts of depression, the Tribunal sought to identify "what the nominator needs by way of assistance as a result of his condition", by referring to the psychological and psychiatric reports submitted in support of the respondent's visa application. It noted that these reports did not specify the kind of assistance that the nominator required on account of his depression; and went on to refer to various disparate matters, which, taken together, militated against his case, including commentary in PAM 3, the nominator's age, the nominator's travelling to Sri Lanka in 1998 and 2002, the nominator's engagement in full-time employment, a lack of objective evidence to support claims that the respondent was in danger in Sri Lanka, and a lack of medical evidence about the specific type of assistance the nominator required. 41 In considering the evidence of the respondent and his brother on this last-mentioned matter, the Tribunal noted the respondent's evidence that he gave the nominator emotional support and assistance with household chores. It concluded, as it was open for it to do, that that the primary need of the nominator was for companionship and domestic assistance. 42 As part of its discussion about the assistance needed, the Tribunal referred to the relevant commentary in PAM 3, noting that the effect of PAM 3 was that, in the absence of other factors, companionship and household assistance did not constitute a permanent or long-term need for assistance. Neither this statement nor the Tribunal's statement, at the outset of its reasons, that it was "required to have regard to policy and apply it unless there [were] cogent reasons for departing from policy" disclosed error. 43 There was no error in the statement concerning the role of policy. This statement derived from the judgment of Brennan J in Re Drake and Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 and has been accepted as correct for over twenty years: compare Narayan at [54] per Sackville J; Fraser at [36]-[38] per Weinberg J. Although the Tribunal treated the commentary in PAM 3 as an important consideration, the Tribunal carefully considered the evidence and other material before it. The Tribunal did not in fact say that there were no circumstances in which companionship and domestic assistance could amount to substantial and continuing assistance. This would be wrong. As Moore, Emmett and Bennett JJsaid in their joint judgment in Chowat [28]: The performing of domestic chores and the giving of companionship could constitute substantial and continuing assistance in some circumstances. If a resident had a permanent or long-term need for assistance, consisting of the provision of domestic chores and companionship, the pre-requisites of the definition could be satisfied. As we have seen, the Tribunal did not treat PAM 3 as requiring a contrary conclusion; and its reasons showed that it fully appreciated that each case depends on its own facts. This was consistent with its understanding that the effect of PAM 3 was that, in the absence of other factors, companionship and household assistance would not amount to assistance of the requisite kind. 44 Further, the Tribunal's reference to the experience of "many members of the community" did not mean that the Tribunal considered, contrary to Chow, that companionship and domestic assistance could never amount to "substantial and continuing assistance", or that the Tribunal had regard to an irrelevant consideration. The Tribunal was not propounding the view that companionship and domestic assistance could never satisfy the definition because many members of the community have these same needs. The Tribunal did not say this. What the Tribunal said was "that a need for daily emotional and physical support as well as companionship … does not, on its own, amount to a need for substantial assistance" (emphasis added). When the Tribunal's reasons are read as a whole, this was simply another way of saying that the respondent had not established that, in the circumstances of the particular case, the companionship and domestic help that he could provide amounted to substantial and continuing assistance. The Federal Magistrate was in error in so far as her Honour reached a contrary conclusion. 45 For these reasons, I reject the respondent's submission that, considered as a whole, the Tribunal's reasons showed that the Tribunal pursued a "blanket" approach or applied PAM 3 "blindly". The Tribunal emphasised the inadequacy of the medical evidence concerning the assistance needed by the nominator and, in making its determination, expressly had regard to particularities of the case, including the nominator's age and other relevant circumstances. 46 There was, however, error in another aspect of the Tribunal's consideration of the elements of the definition of "special need relative". As already noted, at the hearing, the respondent sought leave to rely on a further ground of challenge to the Tribunal's decision, even though it was not raised before the Federal Magistrate. This ground was: The decision of the Migration Review Tribunal was made without jurisdiction or is affected by jurisdictional error because [the Tribunal] misconstrued and misapplied the word "able" in the statutory definition of "special need relative" and therefore misconstrued and misapplied subclause 806.213 of the Migration Regulations 1994. 47 This ground raises an issue that was identified by a Full Court of this Court in Xiang. The Court published its reasons for judgment in Xiang on 23 March 2004, approximately nine months after the hearing of the matter by the Federal Magistrate. The appellant accepted that, in the absence of prejudice, leave should in fact be granted, "if a visa applicant has a sufficiently compelling point that … would result in [an] adverse decision being overturned". I would grant the leave sought, bearing in mind the merit in the point, the explanation for failing to raise it before the Federal Magistrate, and the interests of the parties: see further VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at 176-179 [23]-[38] per North, Merkel and Weinberg JJ; VUAXat [48] per Keifel, Weinberg and Stone JJ. 48 In Xiang, the tribunal found that, at the time of her application for a "special need relative" visa, Ms Xiang was not "able" to provide substantial and continuing assistance to her aunt, who was the nominator, because she had not provided assistance while her aunt was overseas and, prior to her aunt's departure, she had commenced employment, which she later continued at home. The Full Court, consisting of Goldberg, Finkelstein and Weinberg JJ, held that the Tribunal misconstrued the criterion. The Court said, at [7]: In the tribunal's view a visa applicant is not "able" to provide the required assistance if the applicant does not in fact provide that assistance. That is not what the word means. A visa applicant must show that he or she is "willing and able" to provide the required assistance. The first limb (the applicant's willingness) is concerned with the applicant's state of mind. Is the applicant prepared to do what is necessary to provide the assistance? The second limb (whether the applicant is "able" to provide that assistance) calls for an objective inquiry. The question is whether the visa applicant is a person who is suitable or fit to provide the assistance. That the visa applicant may not have provided the assistance to a relative during the intervening period (or indeed at any time), especially for reasons beyond the applicant's control, will normally be irrelevant to the tribunal's inquiry.

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Was there a breach of s 359A of the Act? 51 As the previous discussion shows, the Tribunal treated "the nominator's ability to depart Australia in 1998 and 2002 without the visa applicant" as relevant to its conclusion that the respondent "has not been 'able' to provide substantial and continuing assistance to the nominator". As we have seen, the Federal Magistrate accepted the respondent's submission that he was not given an opportunity as provided by s 359A of the Act to comment upon the "international movement records" evidencing the nominator's travel abroad. 52 Section 359A provides as follows: (1) Subject to subsection (2), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason or part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies - by one of the methods specified in section 379A; or (b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person. (4) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non‑disclosable information. Section 379A prescribes the methods by which the Tribunal gives documents to a person other than the Secretary. 53 This Court has considered the operation of ss 359A and 424A (a counterpart provision governing the Refugee Review Tribunal) on a number of occasions. In relation to these provisions, Merkel J said, in Carlos v Minister for Immigration and Multicultural Affairs (2001) 183 ALR 719 at 725 [21], that the authorities establish the following propositions:

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For present purposes, I accept this summary as correct. 54 In Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 ("Al Shamry"), the Full Court held that, in s 424A, the word "applicant" means an "applicant for review by the Tribunal of a Ministerial decision" and "application" has the corresponding meaning of "the proceeding before the Tribunal which is the vehicle for such a claim for review": see Al Shamry at 34 [17] per Ryan and Conti JJ and 38-39 [35] per Merkel J. In s 359A, the same words must bear the same meaning as in s 424A, there being no relevant difference between the provisions. 55 In Al Shamry Merkel J went on to say, at 40 [39]-[40]: Section 424A does not require the RRT to provide to an applicant all of the information upon which it proposes to act, other than information provided by an applicant for the purpose of the review. Rather, the section requires the RRT to provide the applicant with "particulars of any information" that the RRT considers would form part of its reason for refusing the application for review, to explain to the applicant why that information is relevant to the review and to invite a response to it. Thus, s 424A enacts a basic principle of the common law rules of natural justice that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise … . By enacting s 424A and its counterparts elsewhere in the Act, the legislature has accepted that fairness dictates that an opportunity must be provided to applicants for visas or for review to respond to, or deal with, the adverse information. An applicant for a protection visa will have provided information relevant to the outcome of the application prior to applying for the review of a delegate's decision. Such information may, in some cases, have been provided prior to the application for a visa. The prescribed application form requires that the basis for the application be stated. Further, the information given may be supplemented by information provided subsequently to the Department or to the delegate of the Minister. An applicant may have no record of the information provided but, more importantly, may not be aware of its significance to the review ultimately to be conducted by the RRT. It is therefore understandable that the legislature would require that, in fairness, any adverse information provided prior to review, the significance of which the applicant may be unaware, be disclosed to the applicant to enable him or her to respond to it. That approach has particular importance in the context of the inquisitorial and non-adversarial nature of proceedings before the RRT … . [Citations omitted; emphasis original] Plainly enough, this analysis is equally applicable to s 359A and assists in the resolution of the present question. 56 As noted above, the respondent submitted that the Tribunal wrongly failed to give him particulars of the information "that the movements records database indicated the duration of the [nominator's] travel overseas". He submitted that this was the information that attracted the obligations in s 359A(1), which also required that the Tribunal ensure, as far as is reasonably practicable, that he understood why the information was relevant and that it invite him to comment on it. I accept the respondent's characterisation of the information in question. Under the heading "Evidence", the Tribunal itself described the information in this way, saying: International movement records maintained by the Department show that the nominator departed Australia on 18 December 1998 and returned on 30 January 1999. He again departed Australia on 27 February 2002 and returned on 21 April 2002. On both occasions the nominator travelled without the visa applicant. 57 This was the evidence on which the Tribunal relied in its discussion of the respondent's inability to provide substantial and continuing assistance to the nominator in this case. I reject the appellant's submission that the information was merely the dates and duration of travel, because, as the respondent's counsel said, the Tribunal's statement of the evidence showed that it "relie[d] on the fact that [the information was] in a particular authorised departmental source". 58 Be this as it may, the appellant contended that s 359A(4)(b) relieved the Tribunal of the obligations imposed by s 359A(1). The appellant submitted that the respondent or his representatives informed the Tribunal about the fact of travel in communications made to the Tribunal, and that paragraph 30 of the Tribunal's reasons showed that the fact of travel was raised with the respondent and the nominator in the course of their evidence. The respondent denied that he gave the information in question. 59 The material that the respondent placed before the Tribunal supports his case. A letter from the respondent's migration agent to the Tribunal made only passing reference to travel by the nominator, in the context of addressing the question whether the requisite care could be provided by another relative. In that letter, the respondent's migration agent stated: It is further [the respondent's] advice and as per folio 36 of the DIMIA file that no other siblings of the applicant are in Australia and the parents of the nominator and applicant are in Sri Lanka and unable to assist, though the nominator has made efforts by travelling to Sri Lanka to seek their assistance any way possible. A letter from the nominator's treating physician, which was submitted to the Tribunal in support of the respondent's review application, also referred to the nominator's travel, saying: [The nominator] was referred again in May 2002 and according to the history provided has been depressed since November 2001. He has received treatment from a psychiatrist in Sri Lanka.

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(Other documentary material corroborated the fact of the nominator's treatment in Sri Lanka in April 2002.) The information in both these letters, however, was far short of the information constituted by the Department's international movement records. 60 In recording the decision that was the subject of the Tribunal's review, the delegate referred to the fact that the nominator had travelled overseas with his spouse and without the visa applicant in 1998. This is not, of course, the information now under consideration, although it may have been derived from it. In any event, for the reasons stated by Merkel J in Al Shamry, the delegate's reference must be put to one side. 61 I reject the appellant's submission that the Tribunal's reasons showed that the Tribunal had complied with s 359A(1) of the Act, or was relieved of its obligations to do so by s 359A(4). In summarising the evidence before it, including the evidence of the respondent and the nominator, the Tribunal referred (at par 30 of its reasons) to the oral evidence given, it seems, by the nominator concerning his travel to Sri Lanka in 1998 and 2002. The Tribunal's reasons do not show, however, the context in which this information was given. In particular, they do not disclose whether, in this context, the Tribunal drew the respondent's attention to the Department's international movement records (or gave particulars of them), explained the relevance of the information to its decision, and invited the respondent's comments. Further, the reasons do not show that, by virtue of what occurred at the hearing before it, the Tribunal was relieved of its obligations under s 359A(1) by operation of s 359A(4). 62 Reference to the transcript of the hearing before the Tribunal may have answered these questions. At the hearing of the appeal, however, the appellant withdrew an application to tender an affidavit annexing a transcript of the Tribunal hearing (after the respondent objected to this course). The appellant stated that, although the transcript was included in a supplementary court book filed in the appeal, the Court should not have regard to it. 63 Section 359A(1) will not, however, be breached unless the information constituted by the international movement records was "the reason, or a part of the reason" for the Tribunal affirming the decision under review. It clearly was not "the reason", but was it "part of the reason"? A Full Court in VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 considered the expression "a part of the reason" in s 424A(1)(a). Its conclusions apply with equal force to s 359A(1)(a) In a joint judgment, Finn and Stone JJ said at [30]: The information concerning the appellant's behaviour clearly was not "the reason" for the Tribunal's decision. But was it "a part of the reason"? As we have indicated, the Tribunal considered it to have some relevance to the determination to be made. And the Tribunal's treatment of that information (i.e. the "significance" attributed to it) equally had a place in its reasoning process. However, it is not necessarily the case that for either or both of these reasons, the circumstances attract the obligation of s 424A(1)(a). The subsection itself requires identification of the reason for affirming the decision under review. 64 Their Honours continued at [33]: It commonly is the case that the detail and complexity of the case advanced by a visa applicant, and the information that is given and garnered for the purposes of considering it, results in the Tribunal being confronted with issues that may be of varying importance, relevance and centrality both to the decision to be taken and to the reasoning that in the event sustains that decision. While the reasoning process may advert to, and express views on, such issues, all will not necessarily constitute part of the reason for the Tribunal's decision. Tribunals, no less than courts, engage in their own species of dicta often enough for reasons related to haste and pressure in composition. When a Tribunal's reasons are to be evaluated for s 424A(1) purposes, the Court as a matter of judgment is required to isolate what were the integral parts of the reasons for the Tribunal's decision. That task, necessarily, is an interpretative one. In some instances the differentiation of the integral and the inessential may be by no means easy - and made the more so by less than explicit indications in the reasons themselves as to what the Tribunal itself considered to be integral. 65 Finally, their Honours concluded, at [41], that the information in question ought to be regarded as "relatively minor and unimportant in the scheme of things". The information "was not so integral to the reasoning process rejecting the appellant's claim as to require as a matter of fairness that the appellant be told that information ... and why it was relevant to the review". 66 The Full Court in VAUX applied this approach, when it said, at [54]-[57]: Applying the approach taken in VAF to the present case, we consider that the decision to affirm the delegate's refusal to grant a protection visa had essentially been taken by the time the Tribunal came to deal with the appellant's claims regarding his departure from Jordan. In our view, the information regarding the location of the airport was neither "integral to", nor an important aspect of, the Tribunal's reasoning process. In that regard, we note the structure of the Tribunal's reasons. It first set out the appellant's claims, and rejected them more or less in their entirety. It next arrived at the conclusion the appellant's claim that his membership of Hamas had resulted in constant and increasing harassment, amounting to persecution, should be rejected. Having all but decided that he did not meet the requirements of the Refugees Convention, the Tribunal then stated that it had "also" considered his account of his last day in Amman and found it implausible. In substance, the Tribunal's findings under the heading "Departure from Jordan" played little, if any, part in its decision that the appellant was not entitled to a protection visa. They were merely additional findings about matters that were no longer centrally in issue given the findings already made regarding the critical issues in the case. Jacobson J took a similar approach to this issue in NAMB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 718. In that case, his Honour approached the matter of an alleged breach of s 424A upon the footing that the issue was whether denial of the opportunity to respond to the information in question could have made a difference. He referred to Aala, and to Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at [37], and observed at [80]: To ignore the question of whether a breach of s 424A could not have affected the outcome would be an entirely impractical approach. His Honour concluded that because the Tribunal in that case had several separate and independent reasons for rejecting the applicant's claims, any failure to comply withs 424A did not result in the invalidity of the decision. It follows that the Tribunal did not contravene s 424A(1) by failing to draw to the appellant's attention its reliance upon the information contained in the Lonely Planet Guide. Even if that conclusion were erroneous, the Tribunal's breach of the section did not result in any practical injustice in the circumstances of this case. The Tribunal had already rejected the appellant's claims on justifiable grounds by the time it came to this part of its decision, and nothing that the appellant might have said could have affected the critical part of its reasoning. If necessary, we would have refused relief on discretionary grounds. 67 It is clear from a reading of the Tribunal's reasons as a whole that it affirmed the delegate's decision because it found that the respondent did not satisfy the definition of "special need relative" in reg 1.03. The structure of the Tribunal's reasons shows that it reached this conclusion first when it found that the respondent had not established that there was any permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances. This was the reason for the Tribunal's decision. There was a further and separate reason why the respondent failed to satisfy the definition of "special need relative". This was the respondent's failure to establish that he was "able to provide substantial and continuing assistance to the nominator". The Tribunal's failure to comply with s 359A(1) affected only this further and separate reason. Following the approach adopted in VAF and VAUX, this was not the reason, or a part of the reason for the Tribunal's decision. It follows that the Tribunal did not contravene s 359A(1) by failing to draw to the respondent's attention its reliance on the information constituted by the international movement records.

[60]

The disposition of the appeal 68 Even if this conclusion was incorrect, since the Tribunal had already rejected the respondent's claims on what the Court in VAUX termed "justifiable grounds" by the time it came to this part of its decision, the Tribunal's breach of the provision did not result in "any practical injustice": see VAUX at [57]. Nothing that the respondent could have said on the significance of the international movement records could have affected the critical part of the Tribunal's reasoning: compare also Ling v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1069 at [41]-[47] per Branson J. 69 For the same reason, the Tribunal's misconstruction of the word "able" in the definition of "special need relative" in reg 1.03 did not result in any practical injustice, because the Tribunal had already decided that there was no permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances, as was also required by the definition of "special need relative". The Tribunal's decision would have been the same whether or not it had considered the correct question of the respondent's suitability or fitness. 70 In summary, the Federal Magistrate erred in so far as her Honour held that the Tribunal: (1) misconstrued "the permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances" element of the definition of "special need relative" in reg 1.03; and (2) contravened s 359A(1) of the Act. Her Honour was also mistaken in her view that a failure in respect of s 359A Act contravened s 476(1)(a) of the Act, since this provision had been repealed on 26 September 2001, by s 3 of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (Act 134 of 2001). 71 As we have seen, the Federal Magistrate had no occasion to consider the Xiang point. Bearing in mind that the Tribunal's misconstruction of the word "able" worked no practical injustice, relief in respect of this misconstruction should be declined as a matter of discretion. 72 I would allow the appeal, with costs. I would set aside the declaration in paragraph 1 and the orders set out in paragraphs 2 and 3 of the orders made by the Federal Magistrate on 13 June 2003; and, in lieu thereof, order that the respondent's application to the Federal Magistrate be dismissed with costs. I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.