Reasoning
41 The MRT identified, in pars 38 and 39, the questions that it had to consider in order to determine whether the applicant satisfied the definition of "special need relative". Mr de Robillard did not suggest that the MRT erred in formulating the questions. Nor do I think it did. The case is therefore not one in which the MRT asked the wrong question or failed to identify the relevant questions requiring consideration. Such difficulty as there is in following the MRT's reasoning arises from its failure to make findings on some of the questions it identified. It is useful, therefore, to begin with an examination of the MRT's reasoning process.
42 The MRT found that the nominator suffered from depression and severe anxiety. Indeed, it referred to her as having a "severe anxiety depressive illness". It therefore plainly accepted that she suffered from an illness. It is less clear whether the MRT found that she suffered from a "prolonged illness" for the purposes of par (a) of the definition. Giving the reasons a beneficial construction as required by Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 272, I think the MRT did make that finding, at least implicitly. The MRT accepted the psychiatrist's evidence that the nominator's illness had been triggered by her husband's death (although the MRT used the word "exacerbated"). It therefore accepted that the illness had lasted for some five years. Moreover, the MRT itself used the expression "prolonged illness (depression)" (par 46) in a context which implies that it so regarded the nominator's condition.
43 The MRT found that the nominator's main need was that of "companionship and emotional support" arising from her illness. It made no express finding as to whether the need for companionship and emotional support constituted a "permanent or long-term need for assistance" within par (a) of the definition. A reading of the MRT's reasons as a whole suggests that it made no finding on this question, presumably because it did not consider it necessary to do so. Rather, having identified the nominator's main need, the MRT appears to have proceeded directly to the question posed by the opening words of the definition, namely whether the applicant was "willing and able to provide substantial and continuing assistance" to the nominator. On this issue, it found that the applicant had not supplied substantial and continuing assistance to the nominator and, by implication, that she was not willing and able to provide such assistance in the future.
44 That this, rather than the question of "permanent or long-term need for assistance", was the ground on which the applicant failed is reinforced by the MRT's explanation (par 55) for its conclusion. The MRT acknowledged that the applicants provided great support to the nominator and that they had taken the place of other immediate family, but said that it was
"not satisfied that the assistance the…applicant provides the nominator to help her cope with her anxiety and depression is substantial assistance of the kind that falls within the scope of [the definition]".
This explanation of the MRT's reasoning is consistent with its earlier conclusion (par 48) that it was not satisfied that the
"companionship and affection shown by the…applicant to the nominator is the type of assistance that falls within the scope of the legislation and policy intention".
45 The MRT's conclusion that the opening words of the definition were not satisfied seems to have rested on the finding (par 48) that the type of assistance provided by the applicant to the nominator
"is emotional and to a great extent consists of being close to the…applicant to provide her with the companionship she seeks…. [T]he companionship is limited to the times when the nominator is not working". (Emphasis added.)
46 The first of the applicant's complaints was that the MRT had relied on the decision in Hussein v Minister, a case decided on very different facts. The likelihood is that the MRT referred to Hussein v Minister merely to reinforce the point that the fact that an applicant is a close and loving member of the nominator's family does not necessarily mean that the applicant provides "substantial and continuing assistance" of the relevant kind to the nominator. If that was the point, the reference to the facts of Hussein v Minister was not inappropriate, having regard to the MRT's findings in the present case that the emotional assistance provided by the applicant was largely in the form of companionship. In any event, an inappropriate reference to an earlier decision in support of reasoning on a factual question is, at worst, an error of fact.
47 The point can be illustrated by the recent decision of McHugh J in Ex parte Cohen. In that case, the MRT found that the applicant, the father of a child who was an Australian citizen, was not a "special need relative" within the definition of reg 1.03. The MRT applied the Full Court decision in Huang v Minister for Immigration and Multicultural Affairs (1996) 71 FCR 95, which held that a child, merely because of its tender years, could not be said to have a long term need for assistance because of "other serious circumstances" within par (a) of the definition. On an application to the High Court for constitutional writs it was argued that the MRT had committed a jurisdictional error in following Huang, which the applicant said had been wrongly decided.
48 McHugh J inclined to the view that Huang had not been wrongly decided. (His Honour's attention apparently was not drawn to the later Full Court decision in Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39, refusing to following Huang.) But McHugh J considered that even if Huang had been wrongly decided, the MRT had not committed a jurisdictional error. His Honour said this (at 482):
"At worst, it made an error of fact, because, by applying Huang, it erroneously reasoned that [the child] did not have 'need for assistance because of a disability, prolonged illness or other serious circumstance'. I do not think that applying a case that wrongly decides a question of fact - the meaning of a non-technical word - can be equated to applying a wrong legal test. Huang decided a question of fact, not a question of law. If the Tribunal had adopted the meanings given in Huang, but without reference to that case, it would not have made a jurisdictional error. It makes no difference that it used Huang as its dictionary instead of interpreting the expressions itself."
49 The present case is stronger for the Minister than Ex parte Cohen. The MRT did not rely on Hussein v Minister as establishing a controlling principle of law, but merely as providing guidance as to whether the applicant could provide the nominator with "substantial and continuing assistance" of the requisite kind. Even if the reference to Hussein was inappropriate, the MRT did not thereby commit an error of law.
50 The applicants' second complaint was that the MRT had misinterpreted the definition of "special need relative" by construing it as inapplicable to a person whose principal need is "emotional support". There may be a question, in the light of the approach taken by McHugh J in Ex parte Cohen, whether such a "misinterpretation" would amount to an error of law rather than a mere error of fact. I am prepared to assume, however, that if the MRT construed the definition as incapable of applying to a person whose principal need is emotional support, the construction would be erroneous and would constitute an error of law.
51 In my opinion, the MRT did not adopt the construction of the definition imputed to it by Mr de Robillard. The MRT concluded that the applicant was not a "special need relative" because it was not satisfied that she could provide "substantial and continuing assistance" to the nominator. (I leave to one side for the moment the MRT's alternative ground, based on par (b) of the definition.) I do not interpret the MRT's reasons as indicating that it took the view that "emotional support" could never be substantial and continuing assistance of the kind contemplated by the definition. The reference in the reasons (par 45) to Succary v Minister shows that the MRT contemplated that psychological support, including emotional support, could satisfy a nominator's need for assistance and that such support, depending on its nature, could amount to "substantial and continuing assistance".
52 The critical finding of fact by the MRT was that the emotional assistance provided to the applicant to a great extent consisted of the applicant being close to the applicant in order to provide her with the companionship she needed. This finding plainly implies that if the emotional support was of a different kind, perhaps directed more specifically to the "roots" of her illness, the MRT might have taken a different view of the case. Had the MRT been of the view that emotional support was altogether outside the scope of the definition, it would not have made the finding in the terms it did. Its rejection of the applicant's case rested on the conclusion that the limited form of emotional support provided by her to the nominator was insufficient to amount to "substantial and continuing assistance". Other fact-finders may not have reached the same conclusion on the evidence, incomplete as it was. But in my view the MRT did not construe the definition as narrowly as Mr de Robillard's submissions suggested.
53 The applicants' third complaint was that the MRT had regarded itself as bound by the policy in the Procedures Advice Manual and had failed to have regard to the merits of the case. The applicants' submission appeared to assume that the MRT's decision involved the exercise of a "discretionary power" within the meaning of s 476(3)(c) of the Migration Act. Mr Jordan, who appeared for the Minister, disputed that assumption. He contended that the MRT was required to make a factual determination and if satisfied that the applicant met the definition of "special need relative", was obliged under s 65(1)(a) of the Migration Act to grant her and the husband the Family Residence (Class AO) visa.
54 Leaving aside the "discretionary powers" point, the applicants' submission encounters the difficulty that the MRT addressed the significance of the Procedures Advice Manual, noting (par 3) that it was "required to have regard to policy and apply it unless there are cogent reasons for departing from policy". Although the MRT did not cite authority for that proposition, its language was in fact drawn from the judgment of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, at 645. Mr de Robillard accepted that the proposition stated by the MRT did not disclose any error. While the proposition stated by the MRT is stated as a matter of course in many MRT decisions, its recitation shows that the MRT was aware that it could depart from policy if there were cogent reasons for doing so.
55 The MRT did not clearly explain why it regarded the Procedures Advice Manual as relevant to its consideration of the factual issues. It appears to have done so, however, because, on its findings, the type of assistance provided by the applicant to the nominator was largely in the nature of "companionship". The Manual stated, somewhat ungrammatically, that the "companionship of a relative", on its own, did not require "substantial and continuing assistance". This presumably was meant to convey that the "companionship of a relative" did not of itself constitute "substantial and continuing assistance" for the purposes of the definition.
56 Perhaps not all decision-makers would have characterised the assistance provided by the applicant to the nominator as "to a great extent [providing] her with the companionship she seeks". Perhaps even then not all decision-makers would have regarded the facts as attracting the policy laid down in the Procedures Advice Manual, bearing in mind the nature of the nominator's illness which gave rise to the need for "companionship and assistance". But these were factual questions for the MRT to resolve, it not being suggested that the MRT had misinterpreted the policy: cf Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189, at 208, per French and Drummond JJ. In this respect, the MRT seems to have been influenced by its finding that the nominator's depressive illness had not stemmed solely from the applicant's absence but had its roots in her personality traits. The MRT's approach to fact-finding does not suggest that it simply disregarded the principle it had set out in its reasons and refused to countenance a departure from the policy stated in the Procedures Advice Manual.
57 Having reached this conclusion, it is not necessary for me to resolve the question of whether the MRT was exercising a "discretionary power" for the purpose of s 476(3)(c) of the Migration Act. The contention, however, appears to have considerable force and is supported by authority: Yong v Minister for Immigration & Multicultural Affairs [2000] FCA 1391, at [11], per Goldberg J; Lal v Minister for Immigration & Multicultural Affairs [2000] FCA 1488, at [7]-[8], per Moore J, and see authorities cited there. Since the point was not fully argued (I was not referred to any of the authorities) I express no final view about it.
58 In view of the conclusions I have reached, it is not strictly necessary for me to consider the applicants' challenge to the MRT's finding that it was not satisfied that the nominator could not reasonably obtain emotional support and companionship from other sources. That finding constitutes only an alternative basis for the MRT's conclusion that the applicant had not satisfied the definition of "special need relative" in reg 1.03. In my opinion, however, the applicants' challenge to that finding did not succeed.
59 The MRT's reasoning on this issue was somewhat cryptic. Nonetheless, Mr de Robillard did not criticise the test applied by the MRT, which was consistent with the observations of Burchett J in Fuduche. The MRT's conclusion again rested on its finding that the nominator's main need arising from her illness was "companionship and emotional support". The MRT was also influenced by its finding that the nominator had friends and colleagues, as well as other family members, and was able to work. The significance of these matters was a factual issue for the MRT to assess. It is true that the MRT did not make clear why it regarded the existence of "other family members" as relevant in view of the nominator's evidence that she had been estranged from them (although the MRT expressed scepticism about the nominator's claim that she was estranged from other members of her family, it did not expressly reject the nominator's assertion). But the absence of a clear explanation goes only to the MRT's reasoning on the factual question it had to resolve.