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[2000] FCA 392
Federal Court of Australia
2000-03-22
Lehane J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an application for judicial review of a decision of the Migration Review Tribunal dated 1 December 1999. By its decision the Tribunal affirmed a decision of a delegate of the Minister dated 17 May 1999 by which the delegate refused an application by the applicants, Mr and Mrs Singh, for visas in the class described as Family (Residence), class AO, subclass 806. 2 The criteria for the grant of a visa in that class include one which was found to be determinative of the application. That criterion requires that the applicant be a special need relative of a settled Australian citizen, a settled Australian permanent resident or a person falling within certain other categories. In this case, Mr Singh's son, Sanjay, is a settled Australian citizen and it is in relation to him that the applicants claim to be special need relatives. 3 A "special need relative" was, at relevant times, defined in reg 1.03 of the Migration Regulations as follows: "special need relative" in relation to an Australian citizen usually resident in Australia … means a relative who is willing and able to provide substantial and continuing assistance to the citizen … if: (a) the citizen … has 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 his or her family unit; and (b) the assistance cannot reasonably be obtained from: (i) any other relative of the citizen … being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and (ii) welfare, hospital, nursing or community services in Australia." 4 The circumstances in which the applicants claimed to meet that criterion were these. Mr Singh's son and daughter‑in‑law have two children, one aged three and the other aged six. The son and daughter‑in‑law both work full time. Mr and Mrs Singh provide assistance principally in looking after the two children and also in providing, more generally, domestic assistance to the son and daughter‑in‑law. The elder of the two children is at school and one aspect of the assistance provided is collecting her from school and looking after her in the absence of her parents after school. The younger child was described by the applicants in their evidence as being a fussy eater and a bit sickly: they said that she has problems with eating and suffers stomach upsets but otherwise has no ongoing medical problems. I shall return to that aspect of the evidence in due course. The assistance provided by the applicants includes looking after that younger child. 5 Mr Singh's son and his daughter‑in‑law own their own home and also own an investment property. Both properties are subject to mortgages. The applicants gave evidence that a result of the assistance that they give to the son and daughter‑in‑law - and a purpose of theirs in providing it - is to assist them financially by relieving them of the expenses of other childcare or domestic assistance so that they may, as Mr Singh in his evidence described it, build up funds for the future. 6 The position may, I think, be fairly summarised as follows. On the evidence before the Tribunal, the need met by the applicants was one which arose from the circumstance that Mr Singh's son and daughter‑in‑law were both working full time, had two young children (one of whom had some difficulties with her food which necessitated visits to the doctor from time to time) and had financial commitments which they had to meet. The assistance which the applicants provided consisted principally of taking care of the two children and some general domestic assistance, and the gratuitous provision of that assistance conferred an incidental financial benefit on the son and daughter‑in‑law. 7 Although it is probably of no particular significance, the evidence before the Tribunal disclosed also that the entire family of the applicants now lives in Australia, including Mr Singh's three children and their families. 8 The applicants could only be said to be special need relatives in relation to Mr Singh's son, Sanjay, if Sanjay had a permanent or long‑term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting him personally or a member of his family unit. The Court has had occasion in several cases to consider the meaning of the phrase "other serious circumstances" in reg 1.03. It appears now to be established that the word "serious" should be given full effect and that the context of the definition in the regulations is not one which requires that it be given a broad or generous construction. The decision of the Full Court in Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 is authority for that proposition, though dealing principally with a different category of visa. Other cases to similar effect include Tuamoheloa v Minister for Immigration and Multicultural Affairs (Heerey J, 4 November 1998, unreported) and also Huang v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 95, in which the Full Court held that the circumstance that a child is of tender years does not of itself render even a parent a special need relative. 9 In the course of its decision, the Tribunal referred to the relevant departmental policy found in Procedures Advice Manual 3, Part 1, Division 1.2, in paragraph 1.03 of which there is a discussion of the various elements of the definition of special need relative. The passage particularly relied upon by the Tribunal, and relied upon by the applicants in this application for review, is one which explains the Minister's policy in relation to the criterion in paragraph (a) of reg 1.03. The relevant paragraph says this: "3. It is policy that, in the absence of other extenuating circumstances, none of the following on their own constitutes a serious circumstance, a permanent or long‑term need or requires substantial and continuing assistance: - companionship of a relative - homesickness - general domestic assistance - assistance in bringing‑up children - financial support - assistance in managing a family business - bereavement over death of a spouse."
It is curious that only two items in that list - homesickness and bereavement over the death of a spouse - appear in fact to constitute relevant circumstances. The others describe rather particular kinds of assistance which might be provided.
10 The Tribunal recited the effect of the evidence to which I have referred. It proceeded to consider quite briefly the question whether the applicants satisfied the definition of special need relative. Its brief consideration of that question (at paragraph 26 its of reasons) may be quoted in full: "The only evidence of assistance, which is needed in this case, is for childcare and some domestic assistance. Such assistance does not satisfy the relevant part of the definition of special need relative as set out earlier, because it does not arise from death, disability, prolonged illness or other serious circumstance affecting the nominator or a member of his family unit. This conclusion is reinforced by the extract from the PAM set out above to the effect that general domestic assistance and assistance in bringing up children do not constitute a serious circumstance or permanent or long‑term need or require substantial assistance. The minor childhood illnesses and fussy eating habits of a three year old do not constitute prolonged illness or other serious circumstance." 11 The applicants contended that these reasons of the Tribunal, which led it to conclude that the primary decision should be affirmed, disclosed at least two errors, both of which amounted to reviewable errors of law for the purposes of s 476 of the Migration Act 1958 (Cth). One of the errors was that the Tribunal failed to give proper effect to the departmental policy which I have quoted above by failing to appreciate that, while the policy stated that none of the items listed amounted, on its own, to "serious circumstances" within the meaning of the definition of "special need relative" in reg 1.03, nevertheless it was implicit that two or more of those circumstances together at least might amount to "serious circumstances" within the definition. In failing to take account of that possibility, it was argued, the Tribunal made an error of law. 12 In my view, that submission should not be accepted for the following reasons. First, it attributes to what may be described as a somewhat loosely expressed section of the policy manual an effect which, in its context, it was not intended to have. Secondly, it attributes to the policy itself - wrongly, in my view - a degree of binding force requiring precise construction and application of its terms. Certainly there is ample authority for the proposition that policies of the kind incorporated in the manual are properly taken into account by the Tribunal, but the paragraphs of the manual do not amount to binding directions requiring careful construction and strict application. In the end, what the Tribunal was required to do was to consider whether, in the circumstances disclosed by the evidence, Mr Singh's son had a permanent or long‑term need for assistance of the kind provided by the applicants for one of the reasons specified in paragraph (a) of reg 1.03. 13 The bases of Sanjay's need for assistance were the ages and condition of the children, the circumstance that both parents worked and the existence of financial obligations on their part. Subject to the question of the younger child's illness, to which I shall return, the Tribunal's conclusion that those circumstances did not amount to "other serious circumstances" within the meaning of the definition was a conclusion of fact which it was well entitled to reach. 14 The second error of law which it was contended that the Tribunal had made concerned its findings in relation to the health of the younger child. The evidence about her condition was at best scant. There was no medical evidence. There was simply the evidence of the applicants, given at the hearing before the Tribunal, to the effect that the three year old was a fussy eater and a bit sickly, although the doctor said, according to their evidence, that she will be fine when she grows up. There was further evidence that the three year old sometimes had sore tonsils, sometimes had stomach upsets and sometimes vomited. She went to the doctor every two or three months for little things because she does not eat properly. The Tribunal continued, apparently still recounting the applicants' evidence: "No one has any ongoing medical conditions." 15 The applicants' solicitor submitted that the finding of the Tribunal in relation to the evidence about the younger child demonstrated either an error of law or a failure to comply with procedures with which the Tribunal was obliged to comply: particularly, the obligation of the Tribunal to give reasons for its decision and to refer to the evidence on which it relied. In relation to the younger child, the Tribunal said only (in the passage I have already quoted) that: "The minor childhood illnesses and fussy eating habits of the three year old do not constitute prolonged illness or other serious circumstance." 16 The Tribunal had referred to all the evidence on the subject which was before it. I do not think it can be said to have made an error of law or any other reviewable error in making the finding which it did on that evidence. 17 There is one other aspect of the applicants' submissions with which I should deal. It was submitted that to describe the assistance provided by the applicants as no more than general domestic assistance and assistance in bringing up the children was to overlook the evidence that, within the terminology of the Procedures Advice Manual, the applicants provided financial assistance as well. 18 It was clear, however, on the evidence that the only financial assistance was that which resulted incidentally from the domestic assistance and assistance in bringing up the children, which enabled both parents to work full time and freed them from the necessity of paying for domestic assistance and childcare. The Tribunal plainly understood - its account of the evidence makes this clear - that the applicants did in fact claim that their domestic assistance resulted in financial help. In my view, the failure of the Tribunal to refer specifically to that matter in the concluding paragraphs of its reasons cannot properly be treated as an error of law, or indeed as a failure to make a finding upon a material question of fact. 19 For those reasons, in my view, the grounds urged by the applicant amount, when analysed, to an invitation to the Court to re-examine the merits of the decision of the Tribunal. That, of course, is something which it is not open to the Court to do. For those reasons, the application will be dismissed. 20 The Minister seeks an order that the applicants pay his costs. There are no particular circumstances which ought properly lead me to refuse to make such an order. Accordingly, the orders of the Court will be:
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.
Solicitor for the Respondent: Australian Government Solicitor
Singh
Minister for Immigration & Multicultural Affairs
(1995) 57 FCR 194
(1996) 71 FCR 95