Wahab v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT INTRODUCTION 1 The appellant, a citizen of Sri Lanka, entered Australia on 7 July 1996 holding a student visa. That visa was cancelled when the appellant did not commence the course in which he was enrolled. Subsequently, he was granted a Sri Lankan temporary visa (subclass 435) valid until 31 July 1997. He applied for a further Sri Lankan temporary visa but this application was rejected on 4 August 1997. 2 On 30 July 1998, the appellant applied for a Change in Circumstances (Residence) (Class AG) visa, subclass 806, on the basis that he was a 'special need relative' of the nominator, his uncle. 'Special need relative' was then defined in Regulation 1.03 of the Migration Regulations 1994 (Cth) (the "Regulations"). The criteria for the grant of the visa included a requirement that appellant satisfy the definition of 'special need relative' both at the time of the application and at the time of the decision: cll 806.213 and 806.221 of Sch 2 to the Regulations. 3 The definition of 'special need relative' at the relevant time was 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 or resident 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 … or (ii) welfare, hospital, nursing or community services in Australia" 4 The appellant claimed he was a special need relative of his uncle because his uncle had emotional and psychological needs that required his assistance. The appellant's uncle, an Australian citizen, was born on 28 December 1949. He arrived in Australia in 1974 and became an Australian citizen in 1980. At the time of the application, the nominator lived in Bundoora with his wife and three children (aged between 15 and 23). The nominator worked full time as a laboratory technician for a chemical company. The appellant lived in Brunswick. 5 In support of his application, the appellant submitted a report dated 30 July 1998 by a psychologist, Mr Edwin Kleynhans. Mr Kleynhans applied the Beck's Depression and Burns Anxiety Inventories to the appellant and the nominator. The nominator scored within the "None or Minimal" range for depression and within the "Minimal or No Anxiety" range for anxiety. However, Mr Kleynhans suggested that the nominator's depression and anxiety could increase substantially if the appellant were to return to Sri Lanka. 6 A delegate of the first respondent refused the application on 24 January 2002. The appellant sought review of that decision before the Migration Review Tribunal (the "MRT"). A further report by Mr Kleynhans, dated 19 August 2002, was provided to the MRT. That report stated that the nominator's levels of depression and anxiety had increased significantly. Mr Kleynhans found that this was caused by a decline in the nominator's health and by his concern about the appellant being returned to Sri Lanka. The appellant also informed the MRT that he had moved closer to his uncle and now lived in a house on the same street. 7 On 24 June 2003, the MRT affirmed the delegate's decision. The MRT noted that the appellant and his uncle had seen a psychologist for one hour on the day before the visa application was filed. The nominator had not previously sought professional treatment for depression, stress or anxiety and the psychologist did not recommend further specialised treatment. The MRT was not satisfied that, at the time of application, the nominator suffered from a prolonged illness. 8 The MRT also concluded that that the nominator did not require assistance because of "other serious circumstances" at the time of application. Citing Hussein v Minister for Immigration and Multicultural Affairs [1999] FCA 1621 ("Hussein"), the MRT stated that it was "not satisfied that the nominator's concerns for the safety of the visa applicant manifest a need for assistance due to circumstances serious enough to reach the threshold set by 'death, prolonged illness or disability'". The MRT noted that the nominator worked on a full time basis and that Mr Kleynhan's August 2002 report stated that the nominator's stress level had not been a major concern in 1998. 9 Next, the MRT considered whether the assistance provided by the appellant was "substantial" within the meaning of regulation 1.03. The applicant claimed that he assisted his uncle by providing him with company, assurances and moral support, as well as helping with household chores. The MRT concluded that this assistance was not "substantial" in the relevant sense. Finally, the MRT considered whether circumstances had changed sufficiently at the time of decision to alter any of these conclusions. The MRT determined that the appellant was not a special need relative of his uncle at the time of decision. 10 On 16 July 2003, the appellant filed an application in the Federal Court of Australia, pursuant to s 39B of the Judiciary Act 1908 (Cth), for review of the MRT's decision. The proceeding was transferred to the Federal Magistrates Court. Before a Federal Magistrate, the appellant argued that the MRT had misapplied the definitions of "prolonged illness", "other serious circumstances" and "substantial and continuing assistance". In a decision delivered on 12 November 2004, his Honour dismissed the application for review. This is an appeal from that judgment. SUBMISSIONS 11 The parties agreed that, although the "special needs relative" regulation was omitted from the Regulations on 1 December 1998, the MRT was to have determined the application as the law stood at the time of application on 30 July 1998. The appellant's Notice of Appeal raised a number of grounds, not all of which were pursued at the hearing today. 12 In written submissions, the appellant contended that the MRT erred in law in regard to its finding that the nominator's depression did not amount to "other serious circumstances" within the meaning of regulation 1.03. Citing Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39 ("Wu") per Heerey, Moore and Goldberg JJ, the appellant argued that the MRT mistakenly applied Hussein when it held that the words "death, disability or prolonged illness" constrain the meaning of "other serious circumstances". The appellant argued today that the MRT therefore failed to consider whether depression other than that defined as clinical or medical depression could amount to "other serious circumstance". 13 Also in his written submissions, the appellant conceded that: "The MRT made a finding of fact that the appellant's assistance was not substantial. Clearly, this finding was open to the MRT on the evidence before it. The MRT made no finding that the assistance provided by the appellant was continuing." Counsel for the appellant acknowledged at the hearing that this concession was in fact a difficulty for the appellant. 14 The first respondent noted the significance of this concession that it was open to the MRT to find that the appellant did not provide "substantial" assistance to the nominator. The first respondent argued that, in light of this acknowledgment, the appeal must be dismissed. This is because, in the first respondent's submission, it is a necessary condition of being a special need relative that the relative be willing and able to provide substantial and continuing assistance. The first respondent claimed that, if the MRT validly found that the appellant did not satisfy this requirement, then, regardless of any other errors it may have made, it validly found that the appellant was not a special need relative. 15 The first respondent also disputed that the MRT misapplied the definition of "serious circumstances." The first respondent argued that Wu did not support the view that "serious circumstances" should be understood independently of the nearby terms "death, disability or prolonged illness". Thus, in first respondent's submission, there was no error in the MRT's application of Hussein. 16 Furthermore, in written submissions, citing Re Minister for Immigration and Multicultural Affairs; ex parte Cohen (2001) 177 ALR 473 ("Cohen")per McHugh J, the first respondent claimed that as "serious circumstances" is used in its ordinary, non-technical sense, its meaning is a question of fact. Accordingly, the first respondent submitted that, even if the MRT did apply erroneous precedent concerning the meaning of "serious circumstances", this was not jurisdictional error. CONSIDERATION 17 To be a special need relative, a visa applicant must be willing and able to provide substantial and continuing assistance: see, e.g., Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 88 at [22] per Moore, Emmett and Bennett JJ. The language of regulation 1.03 makes this clear. 18 Because of the appellant's concession that it was open to the MRT to find that the assistance he provided to the nominator was not substantial, the appellant has also effectively conceded that it was open to the MRT to find that he did not satisfy a necessary requirement of the visa. The appeal must be dismissed if only for this reason. 19 If it were necessary to do so, I would also reject the appellant's argument that the MRT misapplied the definition of "serious circumstances". Contrary to the appellant's submission, Wu is consistent with the view that the terms "death, disability or prolonged illness" are relevant to the meaning of "other serious circumstances". In fact, in Wu at [41], the Full Court held that a circumstance "is sufficiently serious [if], 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". Thus, the Wu Court, like the MRT in this case, considered the meaning of "serious circumstances" in light of the nearby terms. It was clearly open to the MRT to decide that no "other serious circumstances" were present at the time of application. Even if Hussein no longer correctly states the law in all respects, the Tribunal's reliance on this decision did not lead it into relevant error. 20 As no error has been shown in the MRT's decision, I need not consider the significance of Cohen and whether or not any error of interpretation would have been a jurisdictional error. 21 I would order that the appeal be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.