Wickramasinghe v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT THE COURT: 1 These are two related appeals from orders made by Branson J on 16 July 2002. Her Honour dismissed applications for judicial review of decisions of the Migration Review Tribunal ("the Tribunal") affirming decisions by the delegate of the respondent Minister to refuse Family (Residence) (Class AO) visas to the applicants, their respective spouses and children: Wickramasinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 916 and Wickramasinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 917. Ms Diluka Wijayakoon ("the nominator") had nominated each applicant for a Family (Residence) (Class AO) visa on the basis that each was a "special need relative". Ms Dinithie Wickramasinghe is the older sister of the nominator, while Mr Dilanka Wickramasinghe is her twin brother. 2 The applicants each contended before the Tribunal that their sister's psychological and emotional needs constituted each of them her "special need relative". The relevant elements of the definition of "special need relative" were contained in Migration Regulation 1.03 which provided that a "special need relative" is one who is "willing and able to give substantial and continuing assistance" to a relative (who is a citizen or resident) who "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". 3 In each proceeding before the Tribunal a report was tendered from a psychologist, Mr Eddy Kleynhans, one dated 14 October 1997 and the other dated (apparently erroneously) 22 February 1997. Mr Kleynhans' reports described the nominator as highly vulnerable to stress, which in turn has had a detrimental effect on her mental health and her marriage. The reports noted that the nominator and her applicant sister have shared a close bond from an early age, though the nominator felt abandoned when her sister moved to Australia in 1994. Mr Kleynhans also described the nominator as emotionally dependent upon her applicant brother, stating that her leaving him behind in Sri Lanka in 1996 had caused her "considerable anxiety and psychological pain" (see the Tribunal's reasons in Mr Wickramasinghe's application at [11]). While Mr Kleynhans' reports indicated that he had suggested that the nominator should seek help from other health professionals in 1997 or 1998, it does not appear that she did so. The Tribunal found itself unable to accept Mr Kleynhans' attribution to the nominator in those reports of serious or extreme results in depression and anxiety tests, regarding those as indicators only which were not supported by other professional evidence and were contradicted by the evidence of the nominator's having undertaken TAFE study. 4 Both applications were heard at a concurrent hearing before the Tribunal on 14 March 2002. The Tribunal summarised the nominator's evidence at that hearing at [25]-[27] of its reasons for decision in Ms Dinithie Wickramasinghe's application in the following terms: "The nominator told the Tribunal that she left school at 18 years of age in Sri Lanka. She then studied German for one year and worked as a travel executive for two years. She married on 29 August 1996 and came to Australia in December1996. She has a very good husband and two children born on 8 May 1998 and 7 June 2000. In July 1997 she lived in Sydney and was pregnant with her first child. The visa applicant called her every day to see if she was all right. In August 1997 she went to the psychologist in Melbourne and stayed with her sister. She only saw the psychologist once. The nominator said that she moved to Melbourne in August 2001 because she felt depressed in Sydney. Her husband is trying to get a job in Melbourne. He works in Sydney. She recently went to see a family counsellor because of relationship problems. She also said that when she went to Sri Lanka in 1999, her husband and her daughter accompanied her. Her husband is very supportive, but when she is depressed she cannot find comfort in her husband's presence. She has never been on any medication for her psychological condition and saw Dr Barry [who provided reports as to her condition dated 7 and 12 March 2002] for the first time this year. She could not say how many times she has seen Dr Barry." 5 The Tribunal summarised the evidence of Ms Dinithie Wickramasinghe as to her sister's condition in these terms at [22]-[24] of its reasons in relation to the female appellant: "At the hearing, the visa applicant told the Tribunal that she is the eldest sister in the family. She is currently employed as a service assistant and works 28 hours per week. In July 1997 she lived in Clayton, Victoria and was not employed because she was expecting her first child who was born in November 1997. At that time her youngest sister Dimuthu lived with her in Clayton, but the nominator lived in Sydney with her husband. The nominator was depressed and lonely because she was separated from her family of origin and her husband worked long hours. They had conversations on the phone almost every day and she was always crying. In January 1998 she came to visit in Melbourne and stayed two or three weeks. In February 1998, the visa applicant went to visit her in Sydney and stayed for one week. The visa applicant said that the nominator is depressed and emotional and does not know how to care for her children. She hardly sleeps at night and the visa applicant has to be there for her. She is not on any medical treatment. The nominator's husband, who is still in Sydney and works there, bought a house in Springvale. The nominator moved to live in the house in August 2001. She lives there with her three and a half year old child, the visa applicant, the visa applicant's husband and their child. The nominator's youngest child Raveen lives with the nominator's twin brother Dilanka and his family in Clayton. The visa applicant said that the nominator does not work and sometimes when she feels better she helps with the cooking. However the visa applicant has to keep an eye on the house, the children and her. She is always there to support her emotionally and physically. Their brother Dilanka and his wife also help." 6 The evidence given by Mr Dilanka Wickramasinghe was set out as follows by the Tribunal at [25]-[26] of its decision on his application; "The visa applicant told the Tribunal that he is currently employed as a machine setter. He works at night. He lives in Clayton where he has been for three years with his wife and child. At the time of the visa application he lived in Springvale. At that time the nominator lived in Sydney. She wanted his support and he helped by talking to her over the phone. In May 1998 when her first child was born he went to see her and stayed with her for two weeks. Currently he and his wife look after the nominator's youngest child, Raveen who is twentyone months old. He stays with them at night. He said he is very close to the nominator and the separation was the start of her depression. She is not on any medication. She needs talking and comforting. Her husband tried to help her, but could not give her the emotional attachment her siblings can give her. Her husband works long hours and he has done everything possible for her. He bought her a house in Springvale where the nominator now lives with her older sister and her family." 7 The Tribunal, at [35]-[36] of its reasons in relation to Ms Dinithie Wickramasinghe, reached these conclusions; "The first issue to be determined is whether the nominator had at the time of the visa application in July 1997, a permanent or long term need for assistance due to prolonged illness or other serious circumstance. At the time of application the nominator lived with her husband in Sydney. She was not receiving any treatment, by way of medication or otherwise nor had she been diagnosed by any medical practitioner as suffering from any medical condition. The Tribunal has taken all the evidence into account, but is not satisfied that the nominator had a permanent or long term need of assistance because of a prolonged illness." 8 After a reference to the judgment of Emmett J in Hussein v Minister for Immigration and Multicultural Affairs [1999] FCA 1621 (5 November 1999) the Tribunal concluded, at [39]-[40]; "Even if the Tribunal were wrong in finding that the nominator was not in need because of serious circumstances, the application cannot succeed. This is because the Tribunal finds that the frequent, even daily phone calls from the visa applicant provided comfort to her, but did not amount to substantial and continuing assistance of the type envisaged by the regulation. The nominator's circumstances have recently changed. Since August 2001, she has been living with the visa applicant. This however was not the case at the time the visa application was lodged. At the time of application until August 2001, the visa applicant and the nominator lived in different states and the only care provided was contact by means of phone calls and occasional visits." 9 The Tribunal expressed itself in substantially similar terms in its conclusions in Mr Dilanka Wickramasinghe's application at [35]-[38], but also observed at [37] and [40]: "The fact that she [the nominator] was close to her twin brother, the visa applicant, and that she missed him cannot be seen, even in the context of some isolation in a relatively new country, as a serious circumstance. There is no evidence that the nominator was unable or found it difficult to look after herself at the time of the visa application. … … The Tribunal … is unable to find as a fact that the nominator was at the time of the visa application depressed and anxious to a level which could amount to serious circumstances." 10 Having concluded that at the date of the application for the visa the nominator was not affected by "serious circumstances", and did not have "a permanent or long-term need for assistance", it was not strictly necessary for the Tribunal to enquire as to whether the appellants were "willing and able to give substantial and continuing assistance" to the nominator although, the assistance actually given can be relevant to the question of need in cases of this kind. However, the Tribunal found that the appellants' frequent phone calls and occasional visits to or from the nominator did not amount to "substantial and continuing assistance", given that, at the time of Ms Dinithie Wickramasinghe's application in 1997, the nominator had lived in Sydney while that appellant lived in Victoria, and that, at the time of Mr Dilanka Wickramasinghe's application in 1998, the nominator was living in Victoria while the male appellant lived in Sydney. 11 In both applications the Tribunal also found that the evidence of Dr Jacqueline Barry, Gudrun Schell (family counsellor), Peter Moore (social worker) and Shirley Wilson (psychologist) contained in various reports, all dated March 2002, was recent and did not "apply to the nominator's circumstances at the time of the visa application" (see the Tribunal's reasons for decision in the application of Mr Dilanka Wickramasinghe at [28] and in the application of Ms Dinithie Wickramasinghe at [29]). 12 That concentration by the Tribunal on the time of the application was in accordance with the provisions of the Migration Regulations 1994 governing Class 806 visas as in force at 1 July 1997. So far as is relevant, item 806 in Schedule 2 to the Regulations provided: "806.21 Criteria to be satisfied at time of application … … … 806.213 The applicant is an aged dependent relative, an orphan relative, a remaining relative or a special need relative of another person who: (a) is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and (b) is usually resident in Australia; and (c) has nominated the applicant for the grant of the visa. 806.22 Criteria to be satisfied at time of decision 806.221 The applicant continues to satisfy the criteria in clause 806.213." 13 The learned primary Judge saw the application to the Court by Ms Dinithie Wickramasinghe as turning on a proper understanding of the following passage from [37] of the Tribunal's reasons: "… … 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 accept 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 by her Honour) Her Honour then continued: "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.' The book of relevant documents filed in the related matter N462 of 2002 reveals that the nominator's husband gave evidence to the same effect. 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. However, the learned primary Judge declined to regard the Tribunal's conclusion as based on a finding of "no evidence" in the strict sense. Rather, her Honour concluded: "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. 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. 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). 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." 14 Her Honour took the same approach in the application by the second appellant before us, Mr Dilanka Wickramasinghe. After noting that Mr Wickramasinghe had made the same complaint with respect to the Tribunal's "no evidence" finding as had been advanced on behalf of Ms Dinithie Wickramasinghe, her Honour concluded: "In my view, the complaint is without substance because it involves the same erroneous reading of the written reasons for decision as I identified in the matter of Ms Dinithie Wickramasinghe (Wickramasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 916). Interestingly the written reasons for decision in this case reveal another example of the tendency in the Presiding Member which I identified in the matter of Ms Dinithie Wickramasinghe. Paragraph 40 of the Tribunal's reasons for decision in this case states: 'The Tribunal … is unable to find as a fact that the nominator was at the time of the visa application depressed and anxious to a level which could amount to serious circumstances.' In my view, it is plain that the Tribunal member intended to convey by the above paragraph that having considered all of the relevant evidence before her she was satisfied that the nominator's depression and anxiety at the relevant time was not of a level which could amount to serious circumstances." 15 By leave granted at the outset of the hearing of these appeals, the first appellant was allowed further to amend her notice of appeal to rely on the following grounds: "2. Her Honour erred in finding that the Migration Review Tribunal ('the MRT') did not fall into jurisdictional error when it stated that 'there is no evidence that the nominator was unable or found it difficult to look after herself'. Particulars (a) That the Tribunal did not take what the Nominator and her husband said about the Nominator not being able to take care of herself into consideration; (b) That the Tribunal wrongly dismissed the reports of Dr Barry and Peter Moore as irrelevant to the Nominator's circumstance at the time of the visa application. Thus did not take into consideration relevant matters. 3. Her Honour erred in not considering 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. Particulars under 3 The Tribunal asked a wrong question. The Tribunal should have asked - What assistance is the Applicant willing and able to provide to the Nominator? Instead it asked - What assistance is the Applicant providing at the time of the application? This is apparent from Para 39 (Page 126.75) of the Tribunal's decision. Asking a wrong question of such a nature would amount to a jurisdictional error." 16 In support of the appeals, Mr Silva, who appeared as solicitor for both appellants, contended that the Tribunal's statement that "there is no evidence that the nominator was unable or found it difficult to look after herself" revealed an error of law amounting to a failure to exercise the jurisdiction entrusted to the Tribunal. However, it is to be borne in mind that, in its context, the Tribunal's observation was addressed to the question of whether, at the time of the first appellant's application in July 1997 the nominator had a permanent or long-term need for assistance which the appellant was then able to supply in a substantial and continuing way. The statutory declaration of 13 March 2002 by the nominator recited that; "From the year 1997 I found it difficult to cope with day to day work such as cooking, housekeeping, washing, shopping and even taking care of myself." 17 Although the Tribunal dealt somewhat elliptically with the question of the applicant's ability to look after herself, we consider that the passage from its reasons emphasised by her Honour in the passage quoted at [13] above, in its context, amounted to a finding that the nominator did not, in July 1997, have a permanent or long-term need for assistance which the first appellant was then willing and able to supply. In other words, it was a finding that the nominator was not then unable to look after herself without the assistance of the first appellant. If it matters, that finding derived support from the fact, noted by the Tribunal in the passage quoted at [8] above, that from July 1997 to August 2001 the first appellant and the nominator lived in different States. 18 Accordingly, we agree with the way in which the learned primary Judge interpreted the Tribunal's reasons. That interpretation was no more benevolent than is required by the Full Court of this Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 and by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 271-272. It also accords with this analysis by Katz J (with whom Burchett and Lee JJ agreed) in A v Minister for Immigration and Multicultural Affairs [1999] FCA 227 (unreported 16 March 1999), at [23]-[27]; "Two matters confirm me in my view about what it was that the Tribunal was seeking to convey by its use of the phrase 'no evidence' in par 40 of its statement of findings and reasons. First, there is the very language of the second sentence of par 40, in which the Tribunal acknowledged the tendering of evidence before it which had referred to abuses of the Vietnamese judicial process, which evidence it said, however, did not 'alone' satisfy the Tribunal that A would be subjected to (relevantly) an unfair trial upon his return to Vietnam. Secondly, there is the fact that the Tribunal had, in a passage in par 38 of its statement of findings and reasons, which passage I have quoted in par 17 of these reasons for judgment, already pointed out that several documents regarding the Vietnamese authorities' claimed lack of respect for the rule of law and for human rights had been tendered as evidence in support of A's likely fate should he become involved in a criminal prosecution upon his return to Vietnam. (Incidentally, one of those documents, the extract from the South China Morning Post to which the Tribunal made express reference in par 38, was said by A before this Court to be among the documents which had been before the Tribunal, but the existence of which it had denied by its use of the 'no evidence' language in par 40. It would be a surprising thing if, by its use of the 'no evidence' language in par 40, the Tribunal had intended to deny the existence of a document to which it had expressly referred only two paragraphs earlier in its statement of findings and reasons.) … … … However, even if such denial by the Tribunal had not accurately stated the fact, it would have been open, and, in light of Wu's Case, apparently appropriate, to conclude that the Tribunal had not used the phrase 'no evidence' 'in a technical sense', and instead to 'treat the [Tribunal's] reference [to 'no evidence'] as being to a lack of probative material confirmatory of what the applicant had put [to the Tribunal]'. The words which I have just quoted come from the reasons for judgment of Gummow J in Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 479 and they were treated by the primary Judge in the present matter as justifying, of themselves, the rejection of A's attack on the use of the phrase 'no evidence' in par 40 of the Tribunal's statement of findings and reasons. However, it is unnecessary for me to express a concluded view on that aspect of the matter, holding, as I do, the view which I have expressed above as to what the Tribunal had intended to convey by its use of the 'no evidence' language in par 40." 19 Even if error of the kind identified in amended ground 3 were established it would be irrelevant in view of the failure by the appellants to demonstrate error in relation to need at the time of the visa applications. 20 For these reasons, we consider that the conclusion reached by the learned primary Judge was plainly correct. Each appeal must therefore be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.