grounds for review
14 The applicant challenged the Tribunal's decision on two bases. First, the applicant submitted that the Tribunal erred in its interpretation of the definition of "special need relative" in Regulation 1.03. Secondly, the applicant submitted that the Tribunal erred in failing to exercise its own independent judgment in making the decision.
(a) Construction of "special need relative"
15 As we have seen, the Tribunal purported to follow and apply Fuduche, Vo'ifalelahi (to the extent that it adopted Moskal)and Moskal. These three cases concerned the definition of "special need relative" in the Migration Regulations applicable at the time. For a while, Fuduche stood for the proposition that the definition "should be given a broad and generous construction in favour of the Australian citizens and residents that it was intended to benefit, and in furtherance of the good name of Australia that its humanity maintains": Fuduche at 527 per Burchett J. This approach also characterised Moskal at 315-16and Vo'ifalelahi (in so far as it followed Moskal). The approach was, however, rejected by the Full Court of this Court in Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 at 206-207. It has not met with support in the Full Court since then: cf Huang v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 95. (Heerey J discussed the effect of these decisions in Tuamoheloa v Minister for Immigration and Multicultural Affairs [1998] FCA 1406.) Judgments in Teo and Huang were delivered well before the IRT's decision on 8 May 1998.
16 The respondent's counsel submitted, in effect, that the Tribunal's error, if any, was immaterial. The point of the references to Fuduche, Vo'ifalelahi and Moskal was, so he said, to acknowledge that the definition of special need relative was largely concerned with medical issues and that there must be some causal relationship between the need for particular assistance and the relevant serious circumstances. Those propositions have not, so respondent's counsel remarked, been doubted.
17 Plainly enough, the Tribunal relied on Fuduche, Vo'ifalelahi and Moskal to support its conclusion that because Siu How Chan and the respondent are sisters and, for that reason, have a unique relationship, then Siu How Chan's willingness to provide "sibling focussed emotional security and support", "the requisite level of specific sibling emotional support" and "live-in companionship with her sister" permits her to satisfy the special need relative requirement. Although the approach once found support in Fuduche, Vo'ifalelahi and Moskal, the Tribunal fell into error. Assuming, for the moment, that the Tribunal was entitled to accept that Dr Kwong was correct in attributing to the respondent a "permanent and severe disability, namely … asthma and profound deafness", the Tribunal ought to have identified distinctly what the respondent actually needed by way of assistance as a result of these conditions. The Tribunal did not do this. Nor did the Tribunal identify whether Siu How Chan was able to meet these particular needs by providing assistance that was relevantly substantial and continuing: cf Singh v Minister for Immigration and Ethnic Affairs (unreported, von Doussa J, 31 January 1996) at [20]. Instead, the Tribunal conflated the assistance with which the definition is primarily concerned and the assistance which Siu How Chan was able and willing to provide. This was the approach taken by Burchett J in Fuduche where his Honour had observed, at 527, that "the assistance with which the Regulation is concerned is the assistance the relative is able to provide" (emphasis original). In Moskal, Foster J, at 316, had remarked that "[c]ommon humanity demands that a disadvantaged citizen be not deprived of the special caring assistance of a near relative". This formed part of the passage quoted with approval by Ryan J in Vo'ifalelahi at 61, in considering the definition of special need relative. The Full Court in Teo held, at 206-7, that this approach was incorrect. That seems to have escaped the Tribunal when it treated the assistance that Siu How Chan could provide ("sibling focussed emotional security and support", "the requisite level of specific sibling emotional support", etc.) as the very assistance with which Regulation 1.03 was concerned. Because of its erroneous reliance on Fuduche (and Vo'ifalelahi and Moskal)the Tribunal misconstrued the definition of "special need relative" and, for this reason, the Tribunal's decision should be set aside.
(b) Failure to exercise independent judgment
18 There was, as we have seen, a second basis for the applicant's challenge to the Tribunal's decision. This was the Tribunal's alleged failure to apply its own mind independently to the matters that fell for determination.
19 The Tribunal's reasons for decision contained a number of simple errors which may be indicative of a lack of conscientious application to the decision-making task. The principal errors of this kind were, first, the Tribunal's mistaken reference to a hearing on 13 November 1997. There was, as the parties agreed, no hearing on that day, or on any other. There was just the preliminary conference on 17 February 1998, to which reference has already been made. Secondly, the Tribunal was wrong in saying (as it did) that the primary decision-maker had refused the visa application because Siu How Chan failed to satisfy the "remaining relative outside Australia" criterion and that MIRO had also affirmed the decision for this reason. Both the primary decision-maker and MIRO primarily rested their decisions on what they considered was Siu How Chan's failure to satisfy the definition of "special need relative".
20 Of more importance, perhaps, is the apparent lack of critical evaluation by the Tribunal of the reports of Dr Kwong and Ms Hopgood, both of which were, as we have seen, set out in the Tribunal's reasons for decision. There were obvious discrepancies between those reports and between Dr Kwong's report and other documents before the Tribunal. Some discrepancies related to relatively minor matters, as for example, the year of the respondent's father's death and the age at which she left school. Others were of more significance. The reports differed in the accounts they gave of the respondent's marriage and the assistance given her by her husband. They also differed in the accounts they gave of the respondent's medical condition. Dr Kwong attributed the respondent's permanent and long-term need for assistance not to any psychiatric condition but to her "permanent and severe disabilities namely her asthma and profound deafness". Those conditions were, of course, outside her expertise. Under the heading, "Mental State Examination", Dr Kwong merely stated:
Ms Chan presented as a medium height and built, bespectacled, Chinese woman with greying hair and haggard face looking much older than her stated sixty-seven years of age. She looked depressed. She said that there was no more pleasure in life for her except the congenial company with her sister who understands her, cares for her, plays with her (mahjong), cooks good food and prepares special medicine for her. She also feels a great sense of security if and when she would move in and live with her sister who is totally committed to their sisterhood.
'My husband is no longer interested in me.' 'Might be when we are separated we might get on better.'
Dr Kwong's assessment is to be compared and contrasted with those of the respondent's physician and Ms Hopgood. In December 1995, the respondent's physician reported that the respondent's daily activities were affected by her "severe asthma". He did not mention deafness. Ms Hopgood referred to the respondent's chronic asthma and deafness, but described the latter as being only "a moderately severe hearing impairment", noting that she "wears a hearing aide in (L) ear".
21 As the applicant's counsel submitted, the discrepancies between the reports of Dr Kwong, the physician and the social worker give rise almost inevitably to further questions. The Tribunal did not, however, seek to address them in any way. There was no hearing. There was, it seems, no further enquiry made by the Tribunal. The Tribunal did not discuss, or even acknowledge, these differences in its reasons for decision. I accept that the Tribunal's apparently uncritical adoption of the reports received by it, especially that of Dr Kwong, raises the very real possibility that the Tribunal did not exercise any real independent judgment on the matter before it. The IRT's letters of request upon which Dr Kwong and Ms Hopgood acted do nothing to dispel any doubts one may entertain in this regard.
22 It follows that I reject the submission advanced by the respondent's counsel that "there is nothing to suggest that the Tribunal did not 'independently' consider whether to accept the facts as set out in the reports". Accepting, for present purposes, that, as the respondent's counsel submitted, "[i]t would have been irrational for the Tribunal to reject the evidence provided by Ms Kwong insofar as that that evidence was within the province of Ms Kwong's expertise", the critical part of her evidence, as to the respondent's medical condition, was not within her expertise in any event. The respondent's counsel also submitted that the independent judgment ground did not fall within s 476(1)(e) of the Act. This was the sole provision upon which the applicant relied. It is unnecessary, however, to express any concluded view on this question or on the question whether the applicant ultimately made out this ground, because of the conclusion I have already reached as to the Tribunal's misconstruction of the definition of "special need relative". Accordingly I do not do so.
23 For the reasons stated, the decision of the Tribunal made on 8 May 1998 should be set aside and the matter should be remitted to the Migration Review Tribunal for reconsideration according to law: see Migration Legislation Amendment (No 1) Act 1998, Schedule 1, Part 2, item 42(2). Nothing in these reasons should be taken as precluding the possibility that the Tribunal may, upon reconsideration, again conclude that Siu How Chan satisfies the special need relative criterion for a Family (Residence) Class visa.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.