Wickramasinghe v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application for judicial review of a decision of the Migration Review Tribunal ("the Tribunal") whereby the Tribunal affirmed a decision made by a delegate of the respondent to refuse to grant to the applicant, her husband and child a Family (Residence) (Class AO) visa. 2 The first applicant claimed, and continues to claim, that she is a special need relative in respect of her younger sister and nominator, Ms Diluka Wijayakoon ("Ms Wijayakoon") who is a permanent resident of Australia. I stress, although I assume that it is unnecessary in this case where the applicant has legal representation for me to do so, that the merits of the applicant's application is not a matter with which this Court is entitled to concern itself. 3 Crucially, for present purposes, the applicant was entitled to be granted the visa which she sought only if she was at the time of her application a special need relative of her sister. Migration Regulation 1.03 relevantly defines a "special need relative" as: "… a relative who is willing and able to give substantial and continuing assistance to the citizen or resident where: (a) the citizen or resident has a permanent or long‑term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally …" 4 The Tribunal, therefore, was required to determine whether it was satisfied that the applicant's younger sister, at the time of the applicant's application for the visa, had a permanent or long‑term need for assistance because of death, disability, prolonged illness or other serious circumstance affecting her personally. The applicant asserted that her younger sister at the relevant time had a strong psychological and emotional need for the applicant's help and support because of the younger sister's depression, extreme anxiety and vulnerability to stress. 5 This application, in my view, turns on the proper understanding of the following passage from the written reasons for decision of the Tribunal: "… the Tribunal is not satisfied that the nominator suffered from a level of psychological dependence, which could be described as serious. The fact that she was close to her sister, the visa applicant, and that she missed her cannot be seen, even in the context of some isolation in a new country, as a serious circumstance. There is no evidence that the nominator was unable or found it difficult to look after herself. The Tribunal is not able to except the opinion in Mr Kleynhans' report that the nominator had an abnormal psychological dependence on the visa applicant, noting that the indicators for that conclusion are in the most part normal and fundamental human needs." (emphasis added) 6 If the Tribunal is properly to be understood as asserting that there was literally no evidence that the nominator found it difficult to look after herself it would have to be concluded that the Tribunal overlooked the nominator's own statutory declaration dated 13 March 2002 in which she states that: "From the year of 1997 I found it difficult to cope with day to day work such as cooking, housekeeping, washing, shopping and even taking care of myself."

7 In considering how the critical passage from the Tribunal's reasons for decision is properly to be understood, two matters require consideration. First, the Tribunal in its reasons for decision refers explicitly to the nominator's statutory declaration dated 13 March 2002 and accurately, if succinctly, describes the nature of its contents. It therefore seems unlikely that the Tribunal overlooked the content of the statutory declaration. 8 Secondly, a reading of the whole of the passage from the reasons for decision of the Tribunal set out above illustrates that the Presiding Member of the Tribunal has a tendency to state as a fact a matter that in reality reflects an exercise of judgment. The Tribunal states that it is "not able to accept the opinion in Mr Kleynhans' report". It seems clear enough, however, that the Tribunal recognised that it was, as a matter of law, able to accept the opinion of Mr Kleynhans it decided, having considered the material advanced in support of the opinion, to exercise its judgment not to accept the opinion. The above tendency is not uncommon and affects judicial as well as administrative decision‑makers. The legal significance which attaches to a finding of "no evidence" means that it is a tendency ideally to be avoided where what is in truth meant is that there is no independent evidence on a particular issue or there is no evidence which the fact-finding tribunal is willing to accept on the issue. 9 Having given careful attention to the whole of the reasons for decision of the Tribunal, I am satisfied that the Tribunal's assertion that there was no evidence that the nominator found it difficult to look after herself is not to be understood in a technical sense. In my view the meaning which the Tribunal intended to convey is that there was no evidence to which the Tribunal was willing to ascribe weight. That is, no evidence which it found genuinely probative. That finding of the Tribunal is not one with which this Court may interfere. 10 The first applicant by her counsel accepted, rightly in my view, that unless she were able to satisfy the Court that the Tribunal erred in its conclusion that there was "no evidence that the nominator … found it difficult to look after herself" the present application must fail whatever may be the proper construction and effect of s 474 of the Migration Act 1958 (Cth). 11 As I have concluded that properly understood the reasons for decision of the Tribunal do not disclose the error alleged by the applicant, it is not necessary for me to give consideration to whether the Tribunal erred in its approach to the issue of whether at the time of the applicant's visa application the applicant was willing and able to provide substantial and continuing assistance to the nominator within the meaning of the definition of "special need relative" contained in Migration Regulation 1.03.

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Before

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Judgment (9 paragraphs)

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