Briones v Minister for Immigration and Multicultural Affairs

[2000] FCA 1694

FEDERAL COURT OF AUSTRALIA

Briones v Minister for Immigration and Multicultural Affairs [2000] FCA 1694

JEANETTE BRIONES v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 1375 OF 1999

JUDGE:         WHITLAM J
DATE:           22 NOVEMBER 2000
PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1375 OF 1999

BETWEEN:	JEANETTE BRIONES APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	22 NOVEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The decision of the Migration Review Tribunal made on 25 October 1999 is set aside.

2.The matter is referred to the said Tribunal for further consideration according to law.

3.The respondent pay the applicant’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1375 OF 1999

BETWEEN:	JEANETTE BRIONES APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	22 NOVEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 25 October 1999 affirming the decision of a delegate of the respondent (“the Minister”) not to grant a visa to the applicant.  The Tribunal was not satisfied that one of the criteria for the visa was satisfied, namely that the applicant was a “special need relative” as defined by the Migration Regulations.

2. The Tribunal’s statement under s 368 of the Migration Act 1958 (“the Act”) expressed its findings and reasons quite briefly as follows:

   “FINDINGS

   12.The Tribunal finds that the Nominator is seeking to have the Applicant assist himself with his personal and matrimonial problems and also to assist himself and his wife with the physical needs that flow from the medical condition of the deformed child.  The Tribunal finds that the assistance that is required by the Nominator is of a specialised nature which must be provided by professional persons and that the Applicant is not qualified to provide assistance of that nature.  The needs of the child are again of a specialised nature and have, or will be, provided in a medical environment as and when required.

   13.Tribunal finds that the main assistance being provided by the Applicant is of a domestic nature to enable the Applicant and his wife to pursue employment and to provide the expected emotional support and bond that is natural between siblings.

   14.The Nominator has another sister and brother in Australia who would be capable of providing the emotional support the Nominator needs from time to time.

   REASONS FOR DECISION AND/OR CONCLUSION

   15.The Applicant has failed to convince the Tribunal that the Nominator has a permanent or long term need for assistance because of death, disability, prolonged illness or other serious circumstance affecting the Nominator or a member of his family and that such assistance cannot reasonably be provided by another relative who is an Australian citizen or resident or welfare, hospital, nursing, or community services in Australia.

   16.The assistance claimed to be required by the Nominator and his child is unable to be provided by the Applicant, as the evidence would suggest that both need specialist professional help.  In any event the Applicant’s desire to engage in employment, study, and travel would preclude her from providing substantial and continuing assistance to the Nominator or his family as required by the regulation.

   17.The assistance required by the Nominator and his family can be provided by welfare, hospital, nursing or community services in Australia supplemented by the other members of the Nominator’s family already in Australia.

   DECISION

   18.The Tribunal affirms the decision not to grant a Change in Circumstance (Residence) (Class AG), Subclass 806 visa to the Applicant.”

3. The Nominator referred to in that statement is the applicant’s brother who is an Australian citizen usually resident in Australia.  The statutory definition relevantly provided that a special need relative in relation to such a person:

   “means a relative who is willing and able to provide substantial and continuing assistance to the citizen . . . if:

   (a)the citizen . . . 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 reasonably be obtained from:

   (i)any other relative of the citizen . . . , 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;”

4. Counsel for the applicant frankly acknowledges that the way in which his client pressed her case did “fluctuate” from time to time.  However, after the Tribunal appointed a hearing date, the applicant’s then solicitor (who was also a migration agent) arranged for the applicant’s brother to be seen by a psychiatrist, Dr Abdus Samad.  He diagnosed the brother as suffering from a major depressive reaction.  Dr Samad did not treat the brother, but he expressed the view that the applicant supported her brother “physically, socially, psychologically and morally”.  (The applicant was a trained nurse.)  The applicant and her brother gave evidence to the Tribunal on 26 August 1999.  The Tribunal also had before it two reports from Dr Samad.  A transcript of the hearing was received in evidence on the hearing of the present application. 

5. By the stage of the Tribunal hearing, it was apparent that the applicant’s case had, as her counsel puts it, two limbs.  The first was that the brother suffered an illness, a depressive reaction, and the presence of the applicant was of assistance to him because the fact of her departure would itself be a cause of breakdown.  The second limb was that the brother and his family found themselves in serious circumstances arising out of the impending disintegration of the family unit and that the applicant was the person in the best position to prevent this happening. 

6. The applicant was given leave to amend her application to rely on the error of law ground in s 476(1)(e) of the Act. However, since the case was argued, the Full Court decision in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 has been handed down. This is now, therefore, also a very strong case under s 368 of the Act. Counsel for the applicant submitted that the Tribunal failed to address the first limb of his client’s case at all.

7. In my opinion, the Tribunal must be taken to have misinterpreted the statutory definition.  Paragraph (a) is met if the relevant “need for assistance” is identified, and here the Tribunal appears to have found in paragraph 12 of its reasons such a need because of a matter affecting the applicant’s brother “personally”.  Yet in paragraph 15 of its reasons it seems to roll up both paragraphs of the definition without distinguishing between the need and a likely alternative source of assistance.  It may be that the Tribunal means to find that the brother’s need is not “permanent or long term”.  It may be that the Tribunal meant to say that there was no need for assistance because of the illness diagnosed by Dr Samad or that, in any event, assistance for such a need could be obtained elsewhere.  No matter, the safest conclusion is that the Tribunal has erred in its construction of the statutory definition: Jun v Minister for Immigration and Multicultural Affairs 2000 FCA 867 at [18].

8. I prefer to deal with the case on the basis of error of law.  However, it must be said that Singh provides strong support for applicant’s submission that the Tribunal has failed to identify the evidence for its finding in the first sentence of paragraph 16 as required by s 368(1)(d) of the Act. Accordingly, I accept that the ground specified in s 476(1)(a) has also been made out.

9. This may ultimately prove to be, in fact, quite a weak case on the merits.  I am, of course, conscious of the need not to read reasons of busy decision-makers with too pernickety an eye for error.  However, even if it be the case that the Tribunal has bolted to a decision that may eventually turn out to be inevitable in the long run, the applicant is entitled to have her application for review determined according to law.

10. The decision of the Tribunal will be set aside and her application remitted to be determined again.  The respondent must pay the applicant’s costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:             22 November 2000

D H Godwin of counsel, instructed by Parish Patience, solicitors, appeared for the applicant.

Ms Dale Watson of the Australian Government Solicitor appeared for the respondent.

Date of hearing:	1 May 2000
Date of judgment:	22 November 2000