Boward v Minister for Immigration
[2004] FMCA 276
•14 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BOWARD v MINISTER FOR IMMIGRATION | [2004] FMCA 276 |
| MIGRATION – Application for review of Migration Review Tribunal’s decision – difference between “serious illness” and “prolonged illness” – whether nominator’s depression is an illness, or a prolonged illness – failure of Migration Review Tribunal to address claims made by applicant – jurisdictional error. |
Migration Act 1958
Federal Magistrates Court Rules 2001
Hussein v Minister for Immigration & Multicultural Affairs [1999] FCA 1621
Wu v Minister for Immigration & Multicultural Affairs [2000] FCA 1817
Su v Minister for Immigration and Multicultural Affairs [2001] FCA 1409
NAAV v MIMIA [2002] FCAFC 228
R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134/2002 [2003] HCA 1
Chen v Minister for Immigration and Ethnic Affairs (No 2) (1994) 51 FCR 322
Huang v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 95
| Applicant: | SHEILA MARGARET BOWARD |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 409/2002 |
| Delivered on: | 14 May 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 24 September 2002 |
| Judgment of: | Walters FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Hurley |
| Solicitors for the Applicant: | Armstrong Ross |
| Counsel for the Respondent: | Mr Batt |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Court declares that the decision of the Migration Review Tribunal made on 9 April 2002 is invalid and of no effect.
A writ of certiorari shall issue, quashing the decision of the Migration Review Tribunal.
A writ of mandamus shall issue, requiring the Migration Review Tribunal to redetermine the matter according to law.
The respondent do pay the applicant’s costs fixed in the sum of $4,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 409 of 2002
| SHEILA MARGARET BOWARD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a national of India, who entered Australia in July 1996. She was then the holder of a long stay (visitor) (class TN) visa, which was valid until 19 April 1997.
On 7 April 1997, the applicant applied for a Family (Residence) (class AO) visa subclass 806, on the ground that she was a “special need relative” of her daughter, Brenda Anita Lyke — who was the nominator on that application.
I accept the following statement of background facts contained in paragraphs 15 to 21 (inclusive) of the written submissions prepared by Mr Batt on behalf of the respondent:
15.In essence, the Applicant claimed that the nominator, an Australian citizen, on account of depression, needed substantial and long-term emotional assistance from the Applicant, which the Applicant was willing to provide and which the nominator could not reasonably obtain from any other relative or source.
16.On 19 April 2001 a delegate of the Respondent refused to grant the Visa.
17.On 16 May 2001 the Applicant lodged with the Migration Review Tribunal (“MRT”) an application for review of the delegate's decision, together with accompanying materials.
18.On 14 November 2001, by notice under sections 359 and 359A of the Act, the MRT invited the Applicant to comment on certain information and requested certain additional information. The Applicant received an extension to respond, on 6 December 2001. The Applicant responded, through her representative, on 27 November 2001 and 14 January 2002.
19.By letter dated 29 January 2002, the MRT invited the Applicant to appear before it at the hearing of her application.
20.The MRT conducted a hearing on 5 March 2002. Evidence was given by the Applicant, the nominator, and Mr Kleynhans, a psychologist who had prepared two reports on which the Applicant had relied.
21.On 9 April 2002 the MRT gave its decision. By its decision it affirmed the original decision.
Decision of the MRT Tribunal
Once again, I accept the following summary of the MRT’s decision made on 9 April 2002 as contained in paragraph 22 of Mr Batt’s written submissions:
By its decision, the MRT found as follows:
(a)the Applicant advanced her claim for the Visa only under subclass 806 and only on the “special need relative” ground, and there was no evidence to suggest that the Applicant met key criteria for any other subclasses or grounds relating to the Visa [CBI33, para 32];
(b)in satisfaction of the relevant requirements in the definition of “special need relative” in regulation 1.03, the nominator was an Australian citizen and a “relative” of the Applicant (as defined in regulation 1.03) [CB134, para 36];
(c)the nominator was not affected by “death” or “disability” [CB134, para 38]
(d)the Applicant's migration agent did not claim that the nominator was affected by “prolonged illness” but the MRT would nevertheless consider that issue [CB134, para 38];
(e)the Applicant’s psychologist stated that the nominator did not require treatment, the nominator did not consult her general practitioner about depression until November 2000, more than two years after the date of the Visa application, and there was no evidence that the nominator required any physical support as at the time of the Visa application [CB134, para 39];
(f)the MRT did not accept that the nominator’s depression at the time of the Visa application was a “prolonged illness” for the purpose of the regulations, because it was not serious enough to require treatment of any kind [CB134, para 40];
(g)there was no evidence that at the time of the Visa application the nominator was affected by any factors other than depression which, when taken together with depression, could constitute a “prolonged illness” for the purpose of the regulations [CBI34, para 40];
(h)the nominator’s circumstances were not sufficiently serious that they required assistance of the same sort that would be required if she were suffering from a “disability” or “prolonged illness” and, applying Hussein v Minister for Immigration & Multicultural Affairs [1999] FCA 1621 and Wu v Minister for Immigration & Multicultural Affairs [2000] FCA 1817, the nominator was not affected by “other serious circumstances” at the time of the Visa application [CB136, para 47];
(i)the only assistance required of the Applicant by the nominator at the time of the Visa application was described as daily emotional support which was needed because the nominator was psychologically dependent upon the Applicant [CB136, para 47];
(j)the Applicant was willing and able to provide the emotional support required by the nominator [CB137, para 49];
(k)the need for daily emotional support was something experienced by many members of the community and, on its own, did not amount to a need for substantial assistance [CB136, para 47];
(l)having found that the nominator was not affected by a “disability”, “prolonged illness” or “other serious circumstance” at the time of the Visa application, the MR T did not need to consider whether the nominator was affected by any of those considerations at the time of decision [CB137, para 48];
(m)having regard to all of the evidence, the MRT was not satisfied that the assistance required by the nominator could not reasonably be obtained from a combination of the resources available to the nominator (including her various relatives) [CB137, para 50];
(n)as a result, taking into account all of the evidence, the Applicant was not a “special need relative” of the nominator at the time of application for the Visa and did not satisfy clause 806.213 of the Regulations [CB137, para 51];
(o)accordingly, the MR T did not need to consider whether the Applicant was a “special need relative” at the time of decision [CB137, para 51]; and
(p)the evidence of Mr Kleynhans as to the nominator’s situation at the time of his second report, made two days after the application to the MRT for review, was less than convincing and the most likely position was that he had deliberately inflated the seriousness of the nominator’s condition to support the review application, with the result that the MRT was unable to give the psychologist’s evidence great credence [CB137-138, para 52].
Grounds for Review
The grounds appearing in the application for review (insofar as they are relevant) are as follows:
1.The MRT did not have jurisdiction to make the decision because it involved jurisdictional errors being:
(a)the MRT erred in law by holding that the reference to a “prolonged illness” in the definition of “special need relative” in Regulation 1.03 of the Migration (1994) Regulations involved a condition requiring treatment and that a condition not requiring treatment could not be an “illness”.
(b)the MRT erred in law in construing the term “illness” and or, the term “other special circumstance” in the definition of “special need relative” in Regulation 1.03 of the Migration (1994) Regulations by holding that a need for “daily emotional support” was incapable of constituting an illness or other special circumstance;
(c)the MRT erred in law in failing to consider whether the factor affecting the Applicant's daughter Brenda Lyke considered cumulatively could constitute a “disability”, “prolonged illness” or “other serious circumstances” affecting Ms Lyke;
(d)the MRT erred in law in failing to apply the reasons of the decision of the Federal Court in Su v Minister for Immigration and Multicultural Affairs [2001] FCA 1409 at [25];
An additional ground (contained in paragraph 3(e) of the application) was abandoned at the hearing.
The Law
Pursuant to s.483A of the Migration Act, this Court has the same jurisdiction as the Federal Court in relation to a matter rising under the Act. Under s.475A, it has jurisdiction in relation to a “privative clause decision” that is a decision made on a review by the MRT. “Privative clause decision” is defined in s.474(2) and (3) of the Act. Section 474(1) of the Act limits review by the Court of privative clause decisions as follows:
A privative clause decision:
a)is final and conclusive;
b)must not be challenged, appealed against, reviewed, quashed or called into question in any Court; and
c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court on any account.
In NAAV v MIMIA [2002] FCAFC 228, the Full Court of the Federal Court held that s.474 must be construed in the same manner as the kind of privative clause considered in the decision R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598. In other words, there were said to be three conditions which, if met, would ordinarily mean that a decision the subject of a provision such as s.474 would be valid. These are:
(a)the decision is a bona fide attempt by the decision-maker to exercise its power;
(b)the decision relates to the subject matter of the legislation; and
(c)the decision is reasonably capable of reference to the power conferred on the decision-maker.
There was also broad agreement in NAAV that the purported exercise of power must not be one that contravenes an inviolable limitation on the operation of the Act.
In Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, the High Court held that as a matter of construction the expression ‘decision[s] … made under this Act’ in s.474(2) “must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act.”[1] If there has been a jurisdictional error, then the decision cannot properly be described as a decision made under this Act — and is thus not a privative clause decision as defined in s.474(2) and (3). Further, a decision flawed due to failure to comply with the principles of procedural fairness was also said not to be a privative clause decision within s.474(2).
[1] at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ, and also see [19] per Gleeson CJ and [163] per Callinan J
If there is no jurisdictional error affecting the MRT’s decision, then the decision would be a privative clause decision and protected by s.474(1) — unless it could be shown that one of the Hickman provisos had not been met.
In Plaintiff S157/2002, the High Court confined itself to a general statement of principle in relation to jurisdictional error, and the particular issue of jurisdictional error by reason of a denial of procedural fairness as asserted by the applicant in that case. The precise scope of the notion of jurisdictional error in this context, and the determination of which provisions in the Migration Act constitute inviolable limitations or restraints, may raise some complex issues[2] ¾ but there is no need to consider such issues in the proceedings before the Court.
[2] see, for example, Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134/2002 [2003] HCA 1 — in relation to s.65 of the Migration Act
First Ground — Illness
Mr Hurley argued as follows:
a)The MRT accepted that the nominator (being the applicant’s daughter) had depression, but concluded that depression did not constitute a “serious” illness. In so concluding, the MRT erred because the definition of “special need relative” refers only to “prolonged illness or other serious circumstances” and does not require the applicant to demonstrate that the illness (itself) is serious.
b)The MRT erred in holding that, because the nominator’s depression was “not serious enough” to require treatment, it was not an illness or circumstance which would serve to bring the applicant within the definition of a “special need relative”.
c)The MRT incorrectly narrowed the scope of “illness” to a condition which required medication.
The MRT dealt with this matter in paragraph 40 of its Reasons. That paragraph is as follows:
The Tribunal does not accept that the nominator's depression at the time of application was a prolonged illness for the purpose of the regulations because, although it was described as “serious” by the psychologist, it was not serious enough to require treatment of any kind. In the case of Su v Minister for Immigration & Multicultural Affairs [2001] FCA 1409 (5 October 2001) the Court held that loneliness, mental deterioration, age and infirmity could, when taken together, constitute a disease or prolonged illness. There is no evidence that the nominator was affected by any other factors at the time of application which could, when taken together with her depression, constitute a disease or prolonged illness for the purpose of the regulations. The Tribunal must now determine whether the nominator was effected by other serious circumstances at the time of application.
Mr Batt submitted that the MRT's conclusion in the passage quoted above was to the effect that the nominator’s depression was not an “illness” because it was not something that required treatment, and that the MRT’s conclusion was not that depression was not a “serious illness”.
In my opinion, neither Mr Hurley nor Mr Batt have accurately described the MRT's process of reasoning in relation to this matter. A careful reading of the first sentence of paragraph 40 of the MRT's decision reveals that the MRT accepted that the nominator suffered from depression at the time of the application, and that depression can fairly be described as an illness for the purpose of the regulations. The MRT also stated that the illness (depression) was not serious enough to require treatment of any kind. It seems to me, however, that the MRT then proceeded to link the concept of a serious (but untreated) illness to that of a prolonged illness within the meaning and contemplation of the regulations. In my opinion, to link the two concepts in such a manner was incorrect and inappropriate. A prolonged illness may or may not be the same as a serious illness (irrespective of whether the serious illness requires treatment).
The MRT discussed the evidence of the psychologist, Mr Kleynhans, in paragraphs 9, 15, 16, 19, 20, 21, 22 and 23 of the decision. Nowhere in those paragraphs does the MRT refer to depression as being an illness (whether prolonged or otherwise). That depression is indeed an illness is left to be inferred from paragraph 40.
In paragraph 9 of its decision (at Court Book page 128) the MRT records that Mr Kleynhans, in his report dated 4 April 1997, stated that the nominator's situation at that time was a cause for concern, as she was seriously depressed. I have reviewed Mr Kleynhans’ first report (which appears at Court Books pages 39-49) and find that the MRT's summary of the report in paragraph 9 of the decision is uncontroversial. I also note that, in his report at that time, Mr Kleynhans did not describe the nominator as suffering from any illness (whether prolonged or otherwise).
The MRT deals with Mr Kleynhans’ second report (dated 2 July 2001) in paragraphs 15 and 16 of its decision (Court Book pages 129-30).
Since the preparation of Mr Kleynhans’ first report, the nominator had been assaulted (in June 1999) whilst she was withdrawing money from an automatic teller machine. Mr Kleynhans’ opinion was that, at the time that he saw her in May 2001, she was still suffering from symptoms of post traumatic stress disorder as a result of that assault.
Mr Kleynhans was also of the opinion that the nominator was suffering from post-natal depression as the result of the birth of her second child in November 2000. Mr Kleynhans wrote (in the second report) that “her post natal depression is very debilitating and all consuming”.
In at least two places in Mr Kleynhans’ second report, he states that depression is regarded as a serious illness (see Court Book pages 91 and 97).
In my opinion, and irrespective of the MRT's obvious discomfort with Mr Kleynhans’ evidence[3], it is extraordinary that the MRT did not state — clearly and without hesitation — that depression is indeed an illness (and a serious one).
[3] See paragraph 52 of the MRT’s decision, on Court Book page 137-8
The severity of the nominator’s depressive illness may well be relevant to the question of whether the nominator has a permanent or long term need for assistance, or whether such assistance can reasonably be obtained from someone other than the applicant, but, in my opinion, it cannot reasonably be relevant to the question of whether or not the nominator has a prolonged illness.
It follows from the above that, in my opinion, the MRT failed to properly or fairly address the claims made by the applicant, and failed to properly apply itself to the question that it had posed itself. It misunderstood the nature of the opinion that it was to form. As such, a jurisdictional error has occurred.
Second Ground — Daily Emotional Support
In paragraph 47 of its decision, the MRT wrote:
The assistance required of the review applicant by the nominator at the time of application was described as daily emotional support which was needed because the nominator was psychologically dependant upon her. There is no evidence of any other assistance being required at that time. The Tribunal finds that a need for daily emotional support is something experienced by many members of the community and does not, on its own, amount to a need for substantial assistance. The Tribunal also finds that the nominator's circumstances were not sufficiently serious that they required assistance of the same sort that would be required if she were suffering from a disability or a prolonged illness. Applying the cases of Hussein[4] and Wu[5], the Tribunal finds that the nominator was not affected by other serious circumstances at the time of the application.
[4] Hussein v MIMA (1999) FCA 1621
[5] Wu v MIMA (2000) FCA 1817
Paragraphs 5.5 to 5.7 of Mr Hurley’s written submissions purport to refer to paragraph 47 of the MRT's judgment — which I have quoted in the previous paragraph.
I regret that I am unable to understand the applicant’s submission in relation to this subject. I also note that Mr Hurley did not press this ground at the hearing (although it was not formally abandoned).
The structure of paragraph 47 of the MRT's decision is referrable to and governed by the passage by Wu v MIMA quoted in paragraph 41 of the decision. The passage from Wu v MIMA is as follows:
In Chen v Minister for Immigration and Ethnic Affairs (No 2) (1994) 51 FCR 322 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 and support by parents and, in particular, by a mother. However in Huang v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 95 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 the child having a permanent or long-term need for assistance because of “other serious circumstances”. However, in the case of Wu v Minister for Immigration and Multicultural Affairs [2000] FCA 1817 (15 December 2000) the Full Court distinguished Huang and held that:
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 and 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 a citizen or the member of the family unit then those circumstances are intended to be comprehended by the expression “other serious circumstances”.
In my opinion, the MRT made no relevant error of law in paragraph 47 of its decision. I would observe, however, that the discussion contained in this paragraph may be tainted by the MRT’s apparent failure to regard the nominator’s depression as a prolonged illness or, so it would appear, as an “illness” of any sort whatsoever. This approach is compounded by the MRT’s failure to recognise the significance of its own description of the nominator's need for assistance. I refer, in this regard, to the MRT’s observation that the assistance which the nominator required of the applicant at the time of the application “…was described as daily emotional support which was needed because the nominator was psychologically dependant upon her”. [emphasis added].
I note, as well, that Mr Kleynhans’ “Prognosis and Conclusions” appearing on the final page of his report dated 2 July 2001 (see Court Book page 97) includes a conclusion that the nominator’s depression “…is long term and a disability which is serious just as diabetes or cardiovascular problems and should be regarded as such. I further conclude that treatment is necessary, but in combination with daily support from her mother which needs to be ongoing. If the aforementioned does not occur, the prognosis of her depression (and even post traumatic stress disorder) would be negative, ie I can predict that these conditions will be maintained and be worsened long term by the departure of (the applicant). Furthermore, I am also expecting her to develop long term psychological disorders should (the applicant) be forced to leave Australia” [emphasis added].
In my opinion, the broader aspects of the second ground relied upon by the applicant are contained within the first ground (which I have dealt with above). The MRT has misunderstood the nature and effect of the nominator’s depressive illness, and has (perhaps unwittingly) minimised the severity of that illness. Although the applicant’s second ground may not amount to an error of law, it emphasises the need for this subject to be revisited when the matter is re-determined by the MRT.
Third Ground — Cumulative Effect
Mr Hurley’s submissions include a contention that the MRT failed to properly and fairly consider a variety of factors affecting the nominator (including her post-natal depression, domestic circumstances, employment experiences and having been the victim of a robbery) which, when taken cumulatively, served to assist in the characterisation of the applicant as a special need relative.
In my opinion, the MRT did not fail to accumulate the relevant factors in order to determine whether the applicant fell within the definition of a special need relative. The core problem, however, is that the MRT failed to properly consider the effect upon the nominator of her depressive illness, and to fit that illness within the factual matrix of the case as required by the definition of special need relative.
Fourth Ground — Failure to Apply Reasons in Su v MIMA (2001) FCA 1409
This ground adds little to the previous grounds, and my comments as they relate to the previous grounds apply to this ground as well.
Discretionary Bar to Relief
Mr Hurley submitted that no discretionary factors prevent the granting of appropriate relief. It was Mr Batt’s submission, however, that a decisive discretionary bar exists.
Mr Batt's written submission in relation to this subject is as follows:
22.The definition of “special need relative” in Regulation 1.03 is only satisfied if the matters set out in both paragraph (a) and (b) of the definition are satisfied. Paragraph (a) relates to “prolonged illness”, etc. Paragraph (b) requires that the assistance needed by the Applicant:
cannot reasonably be obtained from:
(i)any other relative of the citizen or resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or
(ii)welfare, hospital, nursing or community services in Australia.
23.The MRT made findings in relation to both paragraph (a) and paragraph (b) of the definition of “special need relative”. It held that neither was satisfied. The grounds of relief relied upon by the Applicant challenge only the MRT’s findings relating to paragraph (a). The finding that paragraph (b) also was not satisfied [CB137, para 50] is not challenged.
24.As a result, any success by the Applicant in seeking review of the decision of the MRT could relate only to the finding as to paragraph (a) and would not affect the MRT’s finding that paragraph (b) was not satisfied. That latter finding was of itself sufficient to lead to and require affirmation of the decision of the primary decision-maker. Hence, any error made by the MRT as asserted in the grounds raised by the Applicant, even if reviewable, was not productive of error of law and was not operative. Even if the error had not been made, the decision must have been the same.
25.As a result, there would be no utility in the grant of a constitutional writ consequent upon acceptance of any of the Applicant's grounds of review and, on established authority, no constitutional writ should therefore issue.
26.In this regard, the present case is distinguishable from, for example, Su v Minister for Immigration & Multicultural Affairs [2001] FCA 1409 at paragraphs 31-33 per Madgwick J. Contrary to the conclusion on the facts of Su, in the present case the alternative ground of decision[6] was “legally unassailable” (see Su at para 31). In contrast to Su, here it is not possible that the final result might be different on a further hearing of the matter at which any errors of law made by the MRT in its decision of 9 Apri1 2002 in relation to paragraph (a) of the definition were not made, for at such a hearing the MRT would inevitably reach, as to paragraph (b) of the definition, the same conclusion as it reached in the decision presently under review. The MRT’s conclusion as to paragraph (b) was made as a discrete matter, separate from that in relation to paragraph (a) and on the basis of particular factual matters properly found by the Tribunal, which findings are not, and could not be, attacked by the Applicant. Hence, even if there had been reviewable error in relation to paragraph (a), this would not have coloured the conclusion in relation to paragraph (b).
27.Accordingly, the conclusion reached in Su at paragraph 31-33 does not apply in the present case, and no constitutional writ ought be granted, even if reviewable error were established in relation to the MRT’s decision as to paragraph (a) of the definition of “special need relative”, for it would be of no utility.
[6] I.e. as to paragraph (b) of the definition of "special need relative"
I am not persuaded by Mr Batt’s submission in this regard. In paragraph 31 of SU v MIMIA, Madgwick J said:
In order for the Court to intervene, the error of law alleged to have occurred, “must have contributed to the decision in some way or, at the very least, it must be impossible to say that it did not so contribute”…Yet, the Court should be careful in the exercise of such a discretion. The Court’s discretion to refuse relief should not be granted if it is possible that the final result may be different on a further hearing of the matter.
In my opinion, the matters to which I have referred in the course of discussing the first of the applicant’s grounds for review relate to such a fundamental issue that I cannot be confident that the error has not flowed through to and affected the MRT’s determination of the kind of assistance required by the nominator (and whether such assistance could properly be obtained elsewhere).
For all that Doctor Kleynhans’ evidence was treated with scepticism by the MRT, the fact of the matter is that his conclusion was to the effect that any treatment that the nominator is to receive should be in combination with daily support from the applicant — which daily support must be on-going.[7] He also concluded that the nominator is psychologically dependent upon the applicant.[8]
[7] See paragraph 31 above
[8] See paragraph 31 above
The MRT accepted, in paragraph 50 of its decision, that the assistance required by the nominator “could not reasonably be obtained from welfare, hospital, nursing or community services”. It then suggested that the nominator’s spouse “is willing and able to offer the nominator some emotional support, if not the constant support that she has stated that she needs” [emphasis added].
In my opinion, such a conclusion simply ignores the evidence to the effect that the nominator requires daily support from her mother. Similarly, the fact that some assistance may be available from the nominator’s sisters (or one of them) is not to the point. And I would add, in any event, that for the MRT to find that it is “not satisfied” that one of the nominator’s sisters would be unable to provide some assistance to the nominator if required, notwithstanding that that sister “could not be bothered” with the nominator is (to use a word employed by Madwick J) surprising.
It is impossible for me to say that the MRT’s flawed approached in relation to the first limb of the definition of “special need relative” did not contribute to what (on the surface) appears to be an inappropriately harsh conclusion by the MRT in relation to the second limb of the definition. In my view, it is certainly possible that the final result may be different on a further hearing of the matter. It follows that I should not exercise the Court’s discretion to refuse appropriate relief.
I propose to grant relief in the form of a declaration and orders in the nature of certiorari and mandamus.
There will also be an order that the respondent pay the applicant’s costs, which I assess in the sum of $4,250.00 pursuant to Rule 21.05(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Walters FM
Associate:
Date: 10 May 2004
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