The meaning of "other serious circumstances"
18 The notice of appeal raises the issue of whether the primary judge erred in not holding that the Tribunal erred by not approaching the matter on the basis that childhood alone might be "special circumstances" giving rise to a need for assistance within the definition of "special need relative". The primary judge concluded there had been no such error and followed the decision of the Full Court in Huang v Minister for Immigration and Ethnic Affairs. In substance, the appellant challenges the correctness of the decision.
19 Before considering the judgment of the Full Court, mention should be made of Chen v Minister for Immigration and Ethnic Affairs (No 2) (1994) 51 FCR 322. In that matter Davies J concluded that "serious circumstances" in the definition of "special need relative" could comprehend the circumstances of a young child in need of support and nurturing by parents and, in particular, by a mother. However in Huang v Minister for Immigration and Ethnic Affairs the Full Court concluded, in relation to a provision arising in a different statutory context, that the definition of "special need relative" did not comprehend a person attending the needs of a young child, in so far as the definition spoke of a citizen (the child) having a permanent or long-term need for assistance because of "other serious circumstances".
20 It is convenient to refer first to the reasons of Hill J with whom Jenkinson J agreed. As to the meaning of the expression "other serious circumstances" and the construction adopted by Davies J, his Honour said (at 99):
"In support of a submission that we should apply Chen in the present case, the appellant relied upon the rule that in re-enacting legislation (in this case the definition of "special need relative") Parliament must be taken as having sanctioned or approved the construction placed upon earlier versions of that legislation. Such a rule must be approached with some caution. If the definition of "special need relative" had been re-enacted without any alteration of context, it would, no doubt, have been appropriate to give the present definition the same meaning as that discussed by Davies J. However, that is not the case here. What happened in 1995 is that the entire regulations to the Migration Act were repealed and new Regulations substituted, but in a somewhat different context. In my view, the circumstances are not such as to give rise to a presumption that the framer of the regulations intended to adopt the interpretation put on the words by Davies J in Chen: cf Williams v Official Assignee of Dunne (1908) 6 CLR 425 at 441 per Griffith CJ. In any event the rule should not be permitted to prevail over an interpretation otherwise appearing to be correct: cf per Mason ACJ, Wilson and Dawson JJ in Flaherty v Girgis (1987) 162 CLR 574.
In my opinion, the present definition of "special need relative" relevant to subclass 104 visas, should not be construed so as to include every case involving a child of tender years unable to care for himself or herself. The words "other serious circumstances" affecting the citizen or resident personally, or a member of his or her family unit, refer to circumstances similar to death, disability or prolonged illness and not to the mere fact that the citizen or resident is of tender years. It is hardly conceivable that the expression "serious circumstances" should reflect merely the tender age of a person. In so holding, I express no view as to whether Chen's case was correctly decided on the regulations and in the context then prevailing."
21 His Honour had earlier concluded that a criterion for a subclass 104 visa (a preferential family visa) was sponsorship of the special need relative by the citizen and the sponsoring citizen (or his/her spouse) had to be at least 18 years old. His Honour noted that any application made on the basis that an infant child was ill and requiring long-term assistance would be unsuccessful because the sponsorship criterion could not be satisfied. Of this his Honour said (at 100):
"The policy behind cl 104 is, in my view, to this extent difficult to discern. It is a matter to which attention should be given when the regulations are reviewed for amendment."
22 The remaining member of the Full Court was Lehane J. His Honour did not agree with Hill J that the applicable regulation, properly construed, rendered it necessary that there be a sponsor in order to obtain a preferential family visa. As to the application of the criteria to the circumstances of a young child, Lehane J said (at 101):
"I respectfully agree with Hill J, for the reasons given by his Honour, that a young child is not, in the absence of other circumstances, under the Regulations as they now stand to be regarded for the purposes of the definition of "special need relative" as having "a permanent or long‑term need for assistance because of death, disability, prolonged illness or other serious circumstances". That conclusion leads, in any event, to the dismissal of the appeal. However, as Hill J points out, it would be odd if on the true construction of cl 104.211 serious circumstances affecting an Australian citizen or resident aged less than 18 could never justify the grant of a visa in subclass 104 to a relative who was willing and able to provide substantial and continuing assistance to the citizen or resident. As I have indicated, in my view a construction is open which avoids this result; and what follows if the construction is not adopted sufficiently establishes it, I think, as the construction which is preferable, and correct."
23 Several points can be made about the judgment of the Full Court. The first is that the conclusions of Jenkinson and Hill JJ were determinative of the appeal. Their Honours concluded that the appellant had failed to demonstrate error on the part of the primary decision maker. The alleged error was that the primary decision maker had decided that a prescribed criterion for a preferential family visa was that the applicant was sponsored. This raised the proper construction of the regulation and both the primary judge and Jenkinson and Hill JJ concluded that the construction adopted by the primary decision maker was correct. That is, as a matter of construction of the regulation, a criterion for a preferential family visa was that the applicant be sponsored. This conclusion was sufficient to dispose of the appeal. The question that then arises is what is the status of the conclusion of Jenkinson and Hill JJ, explained in the reasons of Hill J and adopted by Lehane J, that the expression "other serious circumstances" does not refer "to the mere fact that the citizen or resident is of tender years". In particular, it is necessary to ascertain whether the conclusion forms part of the ratio because if it does certain legal consequences follow in relation to the consideration of the same issue by this Full Court.
24 The principles governing how a Court determines what is the ratio of an earlier judgment are difficult to articulate with precision and can be difficult to apply. A recent example of differing approaches to this issue is found in Bristol-Myers Squibb Company v F H Faulding & Co Ltd (2000) 97 FCR 524. In that matter a Full Court considered whether observations of two members an earlier Full Court in Anaesthetic Supplies Pty Ltd v Rescare Ltd (1994) 50 FCR 1 about whether a method of medical treatment of the human body is patentable under the Patents Act 1990 (Cth) formed part of the ratio or were obiter dicta. Black CJ and Lehane J were prepared to assume (at 529) the observations were obiter. Their Honours then considered the issue themselves and came to the same conclusion. Another specific question arose in Bristol-Myers Squibb Company v F H Faulding & Co Ltd about the operation of s 117 of the Patents Act 1990 (Cth). That specific question had been the subject of observations by the same members of the Full Court in Anaesthetic Supplies Pty Ltd v Rescare Ltd. Black CJ and Lehane J viewed the earlier observations on this question as obiter. That was because the observations were unnecessary to the decision and made without elaboration and in passing.
25 The other member of the Full Court in Bristol-Myers Squibb Company v F H Faulding & Co Ltd was Finkelstein J. His Honour addressed directly the question of whether the Full Court in Anaesthetic Supplies Pty Ltd v Rescare Ltd had determined the question of whether a method of medical treatment of the human body was patentable. After surveying at length authorities (569-573) concerning what constitutes the ratio of a judgment, Finkelstein J concluded (at 573) that the answer given by the majority in the earlier case formed part of the ratio. His Honour adopted a fairly broad view of what, as a matter of general principle, should be viewed as constituting the ratio.
26 Another recent example where the Court (a single judge) had to consider whether observations of an early at Full Court formed part of the ratio is found inWoolworths Ltd v Commissioner of Taxation [1999] FCA 102. Hely J had to determine whether observations of Lehane J (with whom the other members of the Full Court agreed) in CCA Beverages (Sydney) Pty Ltd v Federal Commissioner of Taxation (1997) 143 ALR 212 about a credit ground of Table 3 of Schedule 1 to the Sales Tax Assessment Act 1992 (Cth) were obiter. While Lehane J had considered a ground (CR 5) different to the one (CR 4) confronting Hely J, there was no material difference in the language of the two grounds. On the question of whether the observations of Lehane J were obiter or not, Hely J said:
"The respondent submits that the observations which I have quoted are obiter, uncritical in character, unsupported by any reasoning process and that they cannot be correct.
Professor Cross described the ratio decidendi as:
'Any rule of law expressly or implicitly treated by the judge as a necessary step in reaching his conclusion having regard to the line of reasoning adopted by him ….'
R Cross and J W Harris: Precedent in English Law (4th Edn) p 72.
Sir Anthony Mason, when writing extra-judicially, said:
'The ratio is the principle or statement of law on which the previous decision is based to the extent to which it is essential to the decision.';
The Use and Abuse of Precedent (1988) Australian Bar Review 93 at p 103.
The trial judge expressly stated (at 133 ALR 776) that he was not required to determine whether CCA was entitled to a credit for the purpose of deciding its entitlement to the relief sought. Nor did the full Court treat it as "necessary" to determine whether there was a credit entitlement in order to determine the appeal. The observations earlier quoted were amongst a number of reasons why CCA's arguments based on s 95 of STAA failed. The Commissioner did not seek to disturb the trial judge's conclusion that there was an entitlement to a credit under CR4, and, in any event, the sale of the containers to CCA was subject to an exemption by virtue of Item 27 of Schedule I to the E & C Act.
That being so, I do not believe that I am bound to reach a result in the present case which accords with the declaration as to the entitlement to a credit made in CCA. Nor is there any reasoning process to be found in the judgments which, if applied to CR5, would require a conclusion that goods which have ceased to be assessable goods are nonetheless covered by Table 1, when the effect of Note (1) is that Table 1 does not apply to a dealing with them."
27 The question of whether an earlier authority was a binding precedent has also recently been considered by another Full Court though in relation to the effect in this Court of a decision of the High Court: see Foster v Northern Territory of Australia [1999] FCA 1235.
28 If the conclusions of the members of the Full Court in Huang v Minister for Immigration and Ethnic Affairs about what was meant by "other serious circumstances" formed part of the ratio and there were no material differences between the statutory scheme considered in that matter and the scheme presently under consideration, there are compelling reasons why this Full Court should follow the earlier decision. Those reasons were discussed recently by a Full Court in Telstra Corporation Limited v Treloar [2000] FCA 1170. Branson and Finkelstein JJ said (at par 23 and following):
"The doctrine of stare decisis takes its name from the Latin phrase "stare decisis et non quieta movere" which translates as "stand by the thing decided and do not disturb the calm". It is a doctrine based on policy. The rationale for the doctrine can be grouped into four categories: certainty, equality, efficiency and the appearance of justice. Stare decisis promotes certainty because the law is then able to furnish a clear guide for the conduct of individuals. Citizens are able to arrange their affairs with confidence knowing that the law that will be applied to them in future will be the same as is currently applied. The doctrine achieves equality by treating like cases alike. Stare decisis promotes efficiency. Once a court has determined an issue, subsequent courts need not expend the time and resources to reconsider it. Finally, stare decisis promotes the appearance of justice by creating impartial rules of law not dependent upon the personal views or biases of a particular judge. It achieves this result by impersonal and reasoned judgments.
In Australia, however, intermediate appellate courts regard themselves as free to depart from previous decisions: Nguyen v Nguyen (1990) 169 CLR 245 at 268-270. This is not so in England where until 1966 even the House of Lords regarded itself as bound by its own decisions. In Young v Bristol Aeroplane Co Limited [1944] KB 718 at 729-730 the Court of Appeal held that, in the exercise of its civil jurisdiction, it should follow its own previous decisions unless a case fell within one of three exceptional situations: (a) where there were conflicting decisions; (b) where a previous decision, though not expressly overruled, was inconsistent with a decision of the House of Lords; (c) where a previous decision was given per incuriam in the sense that the court had overlooked a relevant statute, acted in ignorance of a previous decision of its own or of a court of co-ordinate jurisdiction.
As has been recognised in this country, rigid adherence to the doctrine of precedent preventing a court from overruling its own earlier decisions cannot be justified. Experience and better reasoning, academic and judicial criticism, the observation of unintended consequences, and other factors, may demonstrate judicial error or the need to reconsider a statement of legal principle. However, in those jurisdictions where a superior court will overrule its own decision it is by no means clear in what circumstances it will undertake that task. In the absence of firm rules to indicate when a court will review an earlier decision, there is a risk that reviews will be occasioned by subjective reference to judges' political, social, judicial or moral philosophies.
Speaking generally, appellate courts accept that they should act with caution before reviewing an earlier decision: see, eg, Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 at 99-101. Courts have said it may be done if the earlier decision is 'manifestly wrong' or 'clearly erroneous', or if 'strong reasons' are shown, or if the 'maintenance [of the earlier authority] is contrary to the public interest': see the examples given by Aickin J in Queensland v Commonwealth (1977) 139 CLR 585 at 620ff; see also Transurban City Link Ltd v Allan (1999) 168 ALR 687 at 694. But, apart from suggesting caution, the cases provide little real guidance as to the circumstances in which it will be appropriate to review an earlier decision.
The problem is very real when what is at issue is the construction of a statute. For one thing, statutory language is often ambiguous. Courts can struggle to determine the legislative intent. It is often impossible to discover any legislative intent. In many instances the generality of the statutory language is deliberate and allows the courts to develop a body of law to fill the gaps. This may lead to disagreement among judges about what the statute means. It would be sound policy that once that intent has been discerned by an appellate court then that should be the end of the matter.
The view which we prefer is that unless an error in construction is patent, or has produced unintended and perhaps irrational consequences not foreseen by the court that created the precedent, the first decision should stand. In other areas of the law a precedent may be reconsidered if its underlying reasoning is outdated or is inconsistent with other legal developments. Perhaps, with some modification, in some instances these factors could also be applied to cases concerned with the construction of statutes. Accordingly, we venture to suggest it would be on a rare occasion that an intermediate appellate court (contrast the position of the High Court, as to which see Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1) will allow an issue concerning the construction of a statute, past and closed and especially a repealed statute, to be thrown open, producing as it clearly will, uncertainty, disruption to the conduct of affairs, a sense of grievance in those who may consequently receive treatment less favourable than that received by others under the same statute and additional cost and expense."
See also the approach of the Full Court in Brooks v Federal Commissioner of Taxation (2000) 173 ALR 235 at 253.
29 However the principles emerging from Telstra Corporation Limited v Treloar have no direct application in this matterbecausethe conclusions expressed by the Full Court in Huang v Minister for Immigration and Ethnic Affairs did not, in our opinion, form part of the ratio. It may be accepted that the construction of the expression "other serious circumstances" adopted by Lehane J lead his Honour to dismiss the appeal. That construction was essential to his Honour's reasoning though it did not address directly the error of law alleged by the appellant. His Honour appears to have accepted that the appellant had made good the error alleged in the application for judicial review and in the appeal but that the error was not a material one because, on another basis, the appellant had not satisfied the specified criteria.
30 However it is necessary to consider whether the conclusion of Jenkinson and Hill JJ about the meaning of the expression "other serious circumstances" was an essential step in the reasoning leading to the order dismissing the appeal. While Jenkinson J simply agreed with the reasons of Hill J it is convenient to refer to the reasons of Hill J as if they were the reasons of both their Honours published in a joint judgment. Their Honours did not accept that there had been an error of the type alleged. That is, they did not accept that either the Minister or the primary judge had erred in law in concluding that sponsorship was a criterion for a preferential family visa. That conclusion disposed of the issue raised in the appeal. However, it is necessary to identify the chain of reasoning which led to that conclusion.
31 Their Honours noted that the appellant had one child born on 31 October 1994 who was an Australian citizen. She applied for a preferential family visa on 8 March 1995. Their Honours set out the relevant part of the schedule to the regulations then in force specifying the criteria for such a visa. It was noted that the application for the visa had been rejected because the appellant had not satisfied the prescribed criteria because she was not sponsored. It was also noted that the appellant had alleged in the application for judicial review that the relevant part of the regulation specifying sponsorship as a criterion, should not be construed literally. It should be read on the basis that it was qualified by words such as "if applicable". The primary judge had rejected this construction as it would have involved reading words into the statutory instrument.
32 Their Honours then said there was no evident parliamentary purpose in reading words into the regulation and the relevant purpose was, in their view, that an applicant satisfied both of two conditions, the second of which was that the applicant be sponsored. This passage then appears in the reasons (at 98):
"If a subclass 104 visa [the preferential family visa] were the only visa available to permit the entry into Australia of a person to look after an infant child, this might give some cause for hesitation in accepting the view taken by the decision-maker and by his Honour the learned primary judge. But it is not.
Subclass 103 deals specifically with the case of a parent applying to enter into Australia to join, inter alia, a child of that person. Not only does it deal specifically with that class of case, but it also deals specifically with sponsorship, both where the child is under the age of 18 years as well as where the child is over that age."
33 Their Honours then referred to differences between the two types of visa and pointed out that if they covered the same ground, at least in respect of children of tender years, one test arising in relation to the subclass 103 visa would not need to be satisfied for a subclass 104 visa. Other differences between the criteria for the two visas were also pointed out. This was then said:
"At the heart of the applicant's submission lies the argument that cl 103 [this should probably be cl 104] is apt to cover an application for a visa by a parent wishing to come to Australia to care for an otherwise normal child of tender years unable to care for himself or herself."
34 Their Honours then referred to the judgment of Davies J in Chen v Minister for Immigration & Ethnic Affairs. Their Honours noted that since that decision the statutory regime had altered. At the time of the decision in Chen there had been no sponsorship requirement in a provision equivalent to cl 103 dealing with a parent/child reunion. Their Honours rejected a submission that Parliament sanctioned or approved the construction adopted by Davies J. The discussion of this question appears in the passage from the reasons of Hill J set out in par 20 above.
35 It is difficult to say with any certainty whether the conclusion reached by their Honours about the meaning of the expression "other serious circumstances" was an essential part of their reasoning. They appear to have concluded that the express requirement that there be a sponsor could not, as a matter of construction, be overlooked. That conclusion directly addressed the issue raised in the application for judicial review and pursued in the appeal and had the result that the appeal would fail. The construction of the expression "other serious circumstances" arose as part of considering what was described as the argument "(a)t the heart of the applicant's submission". It appears to have been a matter that was addressed because the correct construction of the expression was supportive of the construction of the provision apparently requiring sponsorship. However, as was pointed out in the reasons, that created a difficulty, in terms of discerning the policy of the provision, if one considered the circumstances of an infant child who was ill and requiring long-term assistance. The better view is that the construction of the expression "other serious circumstances" was not an essential step in the reasoning process leading to the dismissal of the appeal having regard to the reasons given by Jenkinson and Hill JJ.
36 Because the conclusion of Jenkinson and Hill JJ about the meaning of the expression "other serious circumstances" did not form part of the ratio, it is strictly unnecessary to consider, consistently with the reasoning of the Full Court in Telstra Corporation Limited v Treloar, whether this Full Court is bound to follow the earlier decision. In addition, even if the meaning of the expression did form part of the ratio, there was a material difference between the provision in the regulations presently under consideration and the provision of the regulations considered by the Full Court in Huang v Minister for Immigration and Ethnic Affairs. In the present case, there was no criterion for a subclass 806 visa that there be sponsorship. Hill J saw the existence of sponsorship as a material difference between the provision considered by Davies J and the provision considered by the Full Court. There is no reason to assume that the materiality of sponsorship as a criterion (or its absence) would be any different as between the provision considered by the earlier Full Court and the provision presently under consideration.
37 Plainly, however, regard must be had to the views of the members of the Full Court in Huang v Minister for Immigration and Ethnic Affairs when determining the meaning of the expression in the present statutory context. However, the reasons for judgment of Hill J on this question (which, as noted already, were adopted by both Jenkinson J (entirely) and Lehane J (substantially)), do not explain what the expression "other serious circumstances" may comprehend if, as could reasonably be assumed, it is intended to refer to circumstances other than death, disability or prolonged illness (of either the citizen or a member of his or her family unit). His Honour simply stated that it was "hardly conceivable" that the expression should reflect merely the tender age of person. No reasoning for this conclusion was provided.
38 The definition of the expression "special need relative" is found in the principal part of the Regulations (reg 1.03) and not in Schedule 2. However by operation of reg 2.03 and the use of the expression in Schedule 2, the definition operates to establish criteria for several classes of visa. In doing so the definition is intended to identify, as a criterion or an element of a criterion, a class of person who might remain in Australia to tend to the needs of a citizen who is unable to care for himself or herself for a lengthy period. It is, with respect, not self-evident that a child of tender years was intended to be excluded from the group who are unable to care for themselves. A child's needs are, in many respects, no different to those of a very elderly person or a seriously ill person. Their survival can be dependent on the support and attention of others. The argument that "serious circumstances" cannot "reflect merely the tender age of a person" rather misses the point. The age, whether of a very young or very old person, would rarely be the sole relevant circumstance. But age can be a factor which, along with other circumstances, adds up to special circumstances.
39 The definition of the expression "special need relative" contains several elements. It is convenient to analyse the definition as it applies to an Australian citizen (though it also applies to an Australian permanent resident or an eligible New Zealand citizen). The citizen must be usually resident in Australia. There must be another person who is a relative of the citizen. "Relative" is also defined in reg 1.03. The relative must be willing and able to provide substantial and continuing assistance to the citizen. The need for the assistance, as identified in par (a), must be permanent or long-term. "Long term" is not defined but it is probably used to signify a need which continues for years. The need must arise because either the citizen or "a member of his or her family unit" is affected in one of four ways. The first is that they are dead. Plainly this can only be a reference to the death of a member of the family unit of the citizen. The second is that the citizen or the member of the family unit is suffering from a disability and the third is that either the citizen or member is suffering from a prolonged illness.
40 The parties were asked to identify circumstances that might create the need for permanent or long term assistance that were not comprehended by the notions of "disability" or "prolonged illness". Counsel for the Minister identified four such circumstances namely depression which did not fall within any medical or clinical definition of that term (see Jun v Minister for Immigration & Multicultural Affairs [2000] FCA 867 at par 28), imprisonment (though accepting that this would probably have to be imprisonment of the member of the family unit), financial ruin or drug addiction. Even accepting, for present purposes, that none of these circumstances is either a "disability" (but see Marsden v HREOC & Coffs Harbour & District Ex-Servicemen & Women's Memorial Club Ltd [2000] FCA 1619) or a "prolonged illness", each exemplifies the disparate circumstances in which the need for long-term assistance might arise. Each is "serious" in the sense that it involves something having a substantial and negative effect on the person affecting their capacity to look after himself or herself or to look after another person. Another feature common to each is that they involve something which was out of the ordinary and perhaps could be said to be unexpected.
41 However there is nothing about the expression "other serious circumstances" nor its immediate statutory context which suggests that a necessary feature of the circumstances is that they be out of the ordinary or unexpected. In our opinion the word "serious" is simply intended to reinforce the nature of the assistance that is central to the definition, namely assistance which is substantial and continuing in relation to a need for assistance which is permanent or long-term. That is, the circumstance is sufficiently serious that, 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. In our opinion, if a citizen or a member of the citizen's family unit is in circumstances which create a need for substantial and continuing assistance of the citizen and the circumstances do not arise because of the death of a member of the family unit or the disability or prolonged illness of either the citizen or the member of the family unit then those circumstances are intended to be comprehended by the expression "other serious circumstances". There is no reason in logic or of policy that we can discern which might explain that the definition was intended to be enlivened in every circumstance where the requisite care of a citizen is required except young childhood and perhaps old age. We say perhaps old age because the long-term or permanent need for substantial and continuing assistance of an elderly person ordinarily arises through a disability or illness associated withold age.
42 We should add that the additional feature of the definition, in par (b), concerning alternative sources of assistance appears to us to be neutral on the question of whether young childhood is comprehended by the expression "other serious circumstances". Sub-paragraph (i) would have application to a young child and the expression "welfare, hospital, nursing or community services" in sub-par (ii) would reasonably comprehend facilities that might be available to provide care for a young child as an alternative to care by a "special need relative". Whether, in fact, such facilities were available would have to be determined in the circumstances of each case.
43 In our opinion, the definition of "special need relative" can comprehend a situation where the citizen is a young child in need of substantial and continuing assistance from a relative and the need is a long-term one. Accordingly the primary judge erred in concluding that the Tribunal was correct in reaching the contrary conclusion. Whether the appellant satisfies all the criteria for a subclass 806 visa is another question. For example the question of whether, in the present matter, the child could have nominated the appellant (see cl 806.213 (c)) having regard to the definition of "nominator" deriving from regs 1.03 and 1.13 ("a person who puts forward, on the relevant approved form, the name of the applicant …") may not be a straightforward one. However it is a question that is not before us.
44 We would allow the appeal, set aside the orders of the primary judge and order that the matter be remitted to the Tribunal for reconsideration according to law.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Moore and Goldberg.