Abeyesinghe v Minister for Immigration
[2004] FMCA 11
•17 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ABEYESINGHE v MINISTER FOR IMMIGRATION | [2004] FMCA 11 |
| MIGRATION – Application for review of a decision of the Migration Review Tribunal – whether the Tribunal erred in its construction and application of sub-clause 806.211(d) and whether the Tribunal failed to disclose the moment in time at which it assessed the applicant against the relevant criteria – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.37, 48, 417, 501, 501A, 501B
Migration Regulations 1994, Regs 1.03, Clauses 806.211, 806.211(b), 806.211(d), 806.213, 806.221
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration v Chan (2000) FCA 737
Jun v Minister for Immigration and Multicultural and Indigenous Affairs (2000) FCA 867
Waterford v Commonwealth (1987) 163 CLR 54
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
MIMIA v Thiyaganajah (2000) 199 CLR 343
MIEA v Wu Shan Liang (1986) 185 CLR 259
Naran v MIMA (2001) FCA 1745
Hussein v MIMA (1999) FCA 1621
Wu v MIMA (2000) 105 FCR 39
NAAV v Minister for Immigration & Multicultural & Indigenous Affairs FCAFC 228
Ratamauwai v MIMIA [2002] FCA 311
| Applicant: | DEIDRE DENISE DIAS ABEYESINGHE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 628 of 2002 |
| Delivered on: | 17 February 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 5 December 2002 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Mr Hurley |
| Solicitors for the Applicant: | Armstrong Ross |
| Counsel for the Respondent: | Mr Fairfield |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the Application be dismissed.
That the Applicant pay the Respondent’s costs fixed in the sum of $6000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 628 of 2003
| DIEDRE DENISE DIAS ABEYESINGHE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENEOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 30 May 2002 affirming a decision not to grant the applicant a visa.
Background
The applicant is a female national of Sri Lanka born on 26 September 1972 who applied for a Change in Circumstance (Residence) (Class AG) visa on 27 February 1998. Included in her application were her husband and their two children. The Minister's delegate refused the visa on 21 November 2001.
The applicant and her family arrived in Australia on 2 April 1996 as holders of Short Stay (Visitor) (Class TR) subclass 676 visas which were valid until 2 July 1996. The Minister granted the applicant and her family Sri Lankan (Temporary) (Class TT) subclass 435 visas on
4 April 1996 which were valid to 31 July 1996. They were later renewed on 3 September 1996 and expired on 31 July 1997. On the
5 August 1997 the applicant made another application for Class 435 visa. This was refused and on 18 June 1996 the applicant made an application for the grant of a Protection (Class AZ) subclass 866 visa. This application was refused on 22 August 1996 and affirmed by the Refugee Review Tribunal on 11 April 1996. The applicant's request to the Minister to exercise his discretion under s.417 of the Migration Act 1958 (Cth) ("the Act") was refused. The applicant then made the present application.
At the time the application was made the applicant claimed that she was a special need relative of her brother (the nominator). The nominator arrived in Australia on 11 September 1987 as the holder of a Class K 3032 visa and was permanent.at the time of arrival. He became an Australian citizen on 14 November 1990. The applicant stated in her application that her brother has no other members of his family in Australia and that he and his wife are under a great deal of stress on account of the illness of her father and that she provided emotional support to him and that he is very dependent upon that support. The application was supported by a medical report of Dr Heenetigala dated 1 April 1999 and the report of a psychologist,
Mr E. Gibson, dated 24 August 1998.
On 21 November 2001 the Minister's delegate refused the applicant's application for a visa on the basis that her brother failed to constitute a "special need relative". The applicant sought a review from the Migration Review Tribunal and on 30 May 2002 the Tribunal affirmed the decision of the Minister's delegate to refuse the application.
The Reasons of the Migration Review Tribunal
In order to succeed in an application for a visa under the Regulations it is necessary for the visa applicant to satisfy all of the criteria for the grant of a visa. The criteria to be satisfied for an application for the grant of subclass 806 (Special Need Relative) visa include clause 806.211 and 806.213, the terms of which are as follows:
If:
a)the applicant:
i)was in Australia on 1 September 1994 and
ii)was, immediately before 1 September 1994, a person to whom s.37 of the Act as enforced immediately before that date applied and:
iii)
has not been granted a substantive visa on or after
1 September 1994 or
b)the applicant is a person to whom s 48 of the Act applies; the applicant:
c)has not been refused a visa or had a visa cancelled under section 501 of the Act; and
d)has become an aged dependent relative, an orphan relative, a remaining relative or special need relative of an Australian citizen, of an Australian permanent resident, or of an eligible New Zealand citizen since last applying for an entry permit or substantive visa.
Clause 806.213 provides:
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.
The term "special need relative" is defined in regulation 1.03:
"Special need relative" in relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or an eligible New Zealand citizen, means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if;
(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, or a member of his or her family unit; and
(b)The assistance cannot readily be obtained from:
(i)any other relative of the citizen or resident, being a relative who is an Australian citizen and an Australian permanent resident or an eligible New Zealand citizen or
(ii) welfare, hospital, nursing or community services in Australia.
“Relative” in this context is also defined in regulation 1.03 to include a brother or sister. The Tribunal accepted that the applicant was the sister of the nominator who was a settled Australian citizen. The visa applicant, in her initial application, claimed that the nominator had a need for her emotional support because he and his spouse were suffering from stress caused by the illness of his in-laws. The claim made in the review application was that the nominator suffered depression brought about by his concern for the visa applicant and her family if she had to return to Sri Lanka.
Psychologist's Report
The psychologist's report focused upon the alleged basis of the visa applicant's claim to be persecuted in Sri Lanka and the Tribunal found that the essence of the report was that the nominator would suffer mental breakdown if the visa applicant were to return to Sri Lanka and suffer the persecution and abuse that were the bases of her claim for refugee status. The Tribunal noted that the psychologist stated that the nominator had been stressed even before the arrival of the applicant in Australia due to incidents in Sri Lanka surrounding his sister's perceived involvement in the civil unrest and resultant mal treatment which was claimed. The Tribunal gave little weight to the psychologist's report. The Tribunal then considered the report of
Dr Heenetigala who noted that the nominator was in good health until 28 July 1998 but the Tribunal noted:
This was not a date within the relevant dates which is required by the Class AG.
The Tribunal further noted that the psychological report, which advised the nominator was suffering from stress even before the arrival of the visa applicant in Australia, also fell outside the relevant dates required by the Class AG visa.
In relation to the application of the visa applicant that her brother had a need for her to remain in Australia as he would be traumatised at her departure, the Tribunal found that there was no psychological report or medical evidence to support that the nominator had a prolonged illness or other serious circumstances existed as required for the grant of a visa. The Tribunal found that the mere presence of a person does not amount to providing assistance nor could it be said that a person would render assistance in relation to a circumstance, if the circumstance might return should the relative return to another country. The Tribunal noted that the nominator was employed in a job which he described as "very busy" and his wife also worked full time. The visa applicant and her husband also worked full time. The Tribunal noted that the nominator has asserted that he needed his sister and her family in Australia because "they are part of my family" and he would like to have them here permanently.
The Tribunal concluded that it was not satisfied that the nominator had a permanent or long-term need for assistance because of death or disability, prolonged illness or other serious circumstances affecting the nominator or a member of his or her family unit. The Tribunal also considered whether the visa applicant was willing and able to provide substantial and continuing assistance to the nominator. It is noted that the desire for companionship is not regarded, in the absence of other factors, as constituting a permanent or long term need for substantial and continuing assistance. It concluded that the present relationship between the visa applicant and the nominator is companionship and family advice and that the applicant and the nominator and their respective spouses hold full-time employment. The Tribunal concluded that the applicant does not provide “substantial and continuing assistance” to the nominator. As a result of these matters the Tribunal found that the visa applicant did not meet the definition of special need relative and did not consider it necessary to form a view of whether any assistance could reasonably be obtained from another relative or welfare, hospital, nursing or community services.
The applicant's case
The applicant submitted that the Tribunal made two errors of law. First it was submitted that the Tribunal had erred in its construction and application of sub-clause 806.211(d).
Secondly, it was submitted that the reasons the Tribunal failed to disclose the moment in time at which it assessed the applicant against the relevant criteria. It was submitted that that constituted an error of law.
Construction of sub-clause 806.211(d). In paragraph 30 of the Tribunal's (Court Book 108) Reasons, of the Tribunal noted that:
The visa applicant did not submit a psychological report or medical evidence that the nominator had a prolonged illness or that other serious circumstances existed as required for the granting of a visa between the period 5 August 1997 to 27 February 1998.
The first of these dates was the last application for a visa and the second was the present application.
The applicant contends that the meaning of s.806.211(d) is that where s.48 of the Act applies, and she was refused a visa, other than a bridging visa or refusal under s.501, 501A or 501B, she can apply for a "special need relative" visa, if the nominator has become a "special need relative" since the applicant last applied for a visa. Thus, the applicant contends that on proper construction of s.48 and Clause 806.211(d), the Act requires that the nominator must have become a "special need relative" between the time of the last application, namely 5 August 1997 and the application for the present visa, namely
27 February 1998. The applicant contends that the nominator must have become a special need relative between those dates and had been so at the date of the application for this visa.
Paragraph 23 of the Tribunal's decision says:
Clause 806.221 provides that the visa applicant must continue to satisfy the criterion in clause 806.213 at the time of decision. The Tribunal must consider whether the visa applicant was a "special need relative" at the time of the visa application (Clause 806.213), whether the visa applicant became a "special need relative since last applying for an entry permit for substantive visa" (Clause 806.211(d)) and whether the visa applicant remains a "special need relative" at the time of decision (Clause 806.221).
The applicant contends that in paragraph 30 of the reasons of the Tribunal (Court Book, at page 108) the Tribunal misconstrued the correct test. The test (contended for by the applicant) is that pursuant to 806.211(b) the applicant must have become a "special need relative" of the nominator during the periods mentioned. Paragraph 30 of the reasons, it is contended, suggested the test is whether:
The illness or the serious circumstances would have occurred after 5 August 1997, being the date of the application for the subclass 435 visa but before the date of the application under review, which was made on 27 February 1998.
Thus, the applicant contends that the question is not, as posed by the Tribunal, whether the illness or serious circumstances occurred between the two dates but rather whether the applicant became a special need relative between the two dates. Thus, the illness or serious circumstances might have occurred prior to the first visa application and have been continuing but the circumstances which gave rise to the visa applicant becoming a special need relative, which it is contended is the correct test, do not arise until after the first application. This, it is contended by the applicant, was an example of the Tribunal applying an incorrect test or asking itself an incorrect question. (See Craig v South Australia (1995) 184 CLR 163) which constitutes an error of law and is an error outside jurisdiction.
Conclusion
In my view the Tribunal did set out the correct criteria in paragraph 23, although in paragraph 30 the Tribunal states the requirements of the visa in different terms. If the Tribunal had in fact applied the test as enunciated in paragraph 30, that is whether the illness or serious circumstances occurred after 5 August 1997 and before February 1998, and based its decision on that alone, then it would have committed an error. But this does not assist the applicant in this case for the following reasons:
a)Whilst the correct test may not have been enunciated in paragraph 30, it is clear from paragraph 23 that the Tribunal understood the considerations which were relevant;
b)A proper reading of the reasons includes paragraphs 31 to 34 inclusive, which deal with not only whether the nominator had an illness or other serious circumstances, but, as required, the other factors necessary for the finding of "special need relative", namely that the nominator had a permanent or long term need for assistance and that the applicant was willing and able to provide substantial and continuing assistance; and
c)The Tribunal correctly considered the question of the identification of what the nominator actually needed by way of assistance as a result of his condition (see Minister for Immigration v Chan (2000) FCA 737). In Chan, Kenny J held, inter-alia that the fact that the visa applicant and sponsor have a unique relationship does not of itself satisfy the special need relative requirement. This was cited with approval in Jun v Minister for Immigration and Multicultural Affairs (2000) FCA 867.
The Tribunal correctly pointed out that the medical evidence as to the nominators actual condition between the two relevant dates, contains the comment by the Dr Heenetigala:
I have known him to be a cheerful person, usually in excellent health and caring well for his family.
He went on to say that on 28 July 1998 he came to see the doctor, distressed about his situation at home as a result of a refusal of a visa for his sister and her family. The report did not identify any serious illness nor any assistance which the nominator may have required.
The other report relied upon was what was called a "psychological report" by Mr Ian Gibson a psychologist. His report was dated
24 August 1998 and refers to interviews which occurred first on 13 March 1998, shortly after the current application was made. He says, at page two:
Even prior to the arrival of his sister, Warren was in a stressful situation.
He says of the applicant's assistance to the nominator:
(The applicant's) arrival in Australia enabled her to provide a continuing and strong emotional and moral support to her brother, who is her only relative in Australia, during this family crisis. Mr De Silva doubts he could continue to cope with the situation without the continuing support of his sister.
The stressful situation referred to is stated to have arisen because his wife's parents were ill and that placed a considerable burden upon him. The conclusion in his report is that:
The nominator needs his sister as a special need relative for two reasons. Firstly, as the only source of much needed support for himself in regard to his own family, especially the health and associated problems with his parent-in-law. Secondly, to protect his psychological integrity and his culturally appropriate role within his extended family.
The Tribunal found (at paragraph 29) that the psychologist's report was written after the visa applicant's claim to be a refugee was finally determined by the Minister. It was focussed on the alleged basis that she claimed to be persecuted in Sri Lanka. The essence of the report, the Tribunal opined, was that the nominator would suffer mental breakdown if the visa applicant were to return to Sri Lanka and suffer the persecution and abuse that were the bases of her claim for refugee status. The Tribunal noted that the report failed to mention the nominator's wife except as a person with ill parents. and that the claim made by the visa applicant that the nominator had no family member of his own in Australia with whom to share the responsibility of his wife's family. The Tribunal gave little weight to the psychologist's report apparently as a result of these matters.
In my view, the Tribunal may have misconstrued the import of the report itself. Notwithstanding his reference to the cause of the nominator's stress, there does not appear to be any basis for rejection of the report for this reason. The report does indicate that the nominator was in a stressful situation prior to the arrival of his sister and that the situation has been compounded by the ill health of his wife's father and possibility of his sister and her family's forced return to Sri Lanka.
However, the error in not placing more weight on the psychologist's report, in my view, does not assist the applicant.
The first the question in considering whether there was a serious illness or other serious circumstances, the Tribunal, even if it had given greater weight to the psychological report, was still entitled to consider the doctor's report, which did not advert to any serious illness or other circumstances as envisaged in the Act. Secondly, the Tribunal was also entitled to look at whether and what assistance was being provided by the visa applicant, and noted that it was in the form of emotional support. The Tribunal correctly noted the nominator had been and continued to be employed in a full time job and that his wife also worked full time.
In paragraph 31 the Tribunal found that in terms of Jun there was no probative evidence that the lives of the nominator and his wife had been disrupted by death, disability, a prolonged illness or other serious circumstances. In effect, the Tribunal found that the relevant parties, at the relevant time, held full-time employment and that the visa applicant did not provide substantial and continuing assistance to the nominator.
Thirdly, if the Tribunal was wrong about these matters, then they were errors of fact and the questions of fact were solely a matter for the Tribunal. In any event, a mistake of fact does not amount to an error of law. See Waterford v Commonwealth (1987) 163 CLR 54 at 77; the Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353 and 384; and MIMIA v Thiyaganajah (2000) 199 CLR 343 at [17].
The applicant claimed that the Tribunal should have considered the application at the time the applicant became subject to s.48 and that it had blurred the time at which it assessed the applicant against the relevant criteria and did not identify the date at which the applicant was assessed.
I agree with the contentions of the respondent that the reasons of the Tribunal must be read fairly and as a whole. MIEA v Wu Shan Liang (1986) 185 CLR 259, 272 and 291. I further agree with the contentions of the respondent that even if an error had occurred, it was not a material error. That is to say that on the evidence there was nothing inconsistent between the Tribunal's observation of the absence of psychological or medical evidence for the period between 5 August 1997 to 27 February 1998 and its findings that as at 27 February 1998, being the date of application, the applicant did not satisfy the definition of "special need relative". That finding was clearly open to the Tribunal.
The respondent submitted, and I agree, that the finding of the Tribunal that the applicant did not meet the criteria of sub-clause 806.221 was “applicable at the time of decision" was correct because the criteria provides relevantly that the date of decision the applicant, "continues to satisfy the criterion in Clause 806.213".
The respondent contended that it would have been impossible for the applicant to "continue to satisfy" a criterion which the Tribunal found she did not satisfy in the first place.
The applicant contended that the Tribunal also erred in considering the time at which the criteria were to be addressed. This arose from use in paragraph 31 of the words:
The nominator has claimed that he "requires" the presence of the visa applicant.
This it was contended meant that the Tribunal were considering the application at the date of the hearing in May 2002 and that that also constituted an error. The reasons of the Tribunal have to be considered fairly in the light of the whole decision. In my view the use of the present tense in Clause 31 was rather a description of the nominator's claim than an indication that the Tribunal were considering the criteria at the incorrect date. When the decision is read as a whole, it is clear, in my view, that the Tribunal did consider the nature of and reasons for the assistance which the applicant claimed both, in her initial application and in her review application (see paragraph 28).
At best, the applicant could establish was that the Tribunal asked itself the wrong question in not considering the definition of special need relative at the date of application. However, even if this was so, which is not a view to which I have come, it was not a material error because there was no positive evidence which would have supported the applicant's claim at the relevant period. In any event, if such an error occurred it was an error of law and not an error outside jurisdiction.
The definition of "special need relative" requires a decision maker to consider the following: First, whether the nominator has a permanent or long term need for assistance. Secondly, that the cause of that need must be "serious circumstances". (see Naran v MIMA (2001) FCA 1745 at [40]. Thirdly, "serious circumstances" must be construed in the light of the other elements of the statutory definition, namely, death, disability and prolonged illness. In Hussein v MIMA (1999) FCA 1621 at [16] and Wu v MIMA (2000) 105 FCR 39 at 54, the Full Court elaborated on the definition of "serious circumstances", holding that in construing whether circumstances were "serious" the decision maker should have regard to whether the circumstances require "substantial and continuing assistance" in relation to a "permanent or long term need" of the same sort that would be required if the nominator was suffering from a disability or prolonged illness.
Even if the Tribunal had erred in law, it was not jurisdictional. In the appeal in Ratamauwai v MIMIA [2002] FCA 311 (See NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCAFC 228), Black CJ [at 36]:
I should add that regulation 1.03 and the phrase, "special need relative" considered in the case of Mr Ratamauwai does not raised the issue that emerges in Mr Turkan's case. Even if the Migration Review Tribunal did err in law in construing that phrase, it was an error of law that the Tribunal now has jurisdiction to make. The term "special need relative" was defined at the relevant time by regulation 1.03 in a non-technical or "ordinary" language and did not in terms pose a legal question as the basis of the Minister's satisfaction.
Black CJ did not reason that such an error of law, if it existed at all, was a jurisdictional error of the type contemplated in Craig v South Australia (1995) 184 CLR 163. Beaumont J, who was also a member of the majority in Ratamauwai v MIMIA at [188] found that the decision may or may not have contained an error of law, however, he accepted implicitly that such an error was not jurisdictional.
For those reasons the application must be dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
Date: 17 February 2004
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