Bushell v Minister for Immigration and Citizenship & Anor
[2008] FMCA 1193
•27 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BUSHELL v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1193 |
| MIGRATION – Visa – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – whether the Migration Review Tribunal failed to take account of a relevant or material consideration – whether the Tribunal based its decision on a fact which did not exist – whether Tribunal decision affected by apprehended bias – jurisdictional error – “no evidence” for decision – ignoring relevant material. |
| Migration Act 1958 (Cth) ss.359, 476 Migration Regulations 1994 (Cth) Part 116, Schedule 2, r.1.15AA |
| Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 followed. Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222; 190 ALR 402 followed. Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 distinguished. Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 followed. Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50 followed |
| Applicant: | LEBA VELAVELA BUSHELL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2446 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 18 March & 25 June 2008 |
| Date of Last Submission: | 25 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 27 August 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Turner Coulson Immigration Lawyers |
| Counsel for the First Respondent: | Mr Izzo |
| Solicitors for the First Respondent: | Sparke Hemore |
ORDERS
That there be an order in the nature of certiorari quashing the decision of the second respondent Migration Review Tribunal signed on 25 June 2007 and handed down on 4 July 2007 affirming a decision not to grant Other Family (Migrant) (Class BO) visas.
That there be an order in the nature of mandamus remitting the application to the Migration Review Tribunal for determination according to law.
That the First Respondent pay the Applicant’s costs fixed in the sum of $5000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2446 of 2007
| LEBA VELAVELA BUSHELL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant is an Australian citizen of Fijian birth. She is asking the Court to review a decision of the Migration Review Tribunal which affirmed a decision not to grant Other Family (Migrant) (Class BO) visas to her daughter and her daughter’s two children, who are citizens and residents of Fiji. The applicant wishes her daughter to come to Australia in order to care for her, as she is in poor health and suffers from loss of memory.
Background
The applicant’s daughter, Ms Ekari Bale, applied for a Subclass 116 (Carer) visa on 13th February 2006 on the basis that she would be the carer for her mother, who has high blood pressure and dementia. At that time, the applicant’s only relative in Australia was her husband, Mr Robert Douglas Bushell, who was himself in poor health. Mr Bushell has since died.
On 29th August 2006 the Minister’s delegate refused the application for a visa. The delegate found that the daughter was not a carer for her mother as she did not meet the requirements of subclause 116.221 of the Regulations.
Application to the Migration Review Tribunal
The applicant then applied to the Migration Review Tribunal on
6th November 2006, seeking a review of the delegate’s decision. The Tribunal wrote to the applicant on 5th March 2007, inviting her to attend a hearing on 27th March 2007.
The Tribunal wrote to the applicant on 6th March, seeking information under the provisions of s 359(1) of the Migration Act. The letter asked the applicant to provide this information by 20th March:
·Information as to why the assistance you require cannot be obtained from any other relative or from welfare, hospital, nursing or community services in Australia.
·Information indicating how the visa applicant will be able to provide you with substantial and continuing assistance you require[1]
[1] See Court Book at 82
The applicant and her husband completed a Response to Hearing Invitation, indicating that they wished to attend the hearing. The applicant and her husband attended the hearing and gave evidence with the assistance of a Fijian interpreter. Two friends of the applicant gave evidence on the applicant’s behalf.
On 18th April 2007 the applicant’s husband contacted the Tribunal and sought an extension of time to provide the information that the Tribunal asked for. The request was granted. The Tribunal wrote on 19th April, asking for the information by 3rd May 2007.
The applicant’s husband wrote again to the Tribunal on 2nd May 2007, explaining that his wife would need to be assessed by an organisation known as Home Care. He sought an extension of time for that to be done. The Tribunal wrote to him on 8th May 2007, granting an extension of time until 22nd May 2007.
The applicant’s husband attended the office of the Tribunal on 1st June 2007. The Tribunal’s file note shows that Mr Bushell explained that he was having problems obtaining information from various organisations to state that full weekly care could not be given to the applicant.[2]
[2] Court Book 92
The Tribunal wrote to the applicant on 5th June 2007. The letter referred to the provisions of s 359(1) of the Migration Act and asked the applicant to provide the same information as requested in the Tribunal’s letter of 6th March 2007. The Tribunal asked for the information in writing by 22nd June 2007 and said:
The Tribunal will proceed to make a decision after this day.[3]
[3] Court Book 93
The applicant’s husband wrote again to the Tribunal on 12th June 2007, advising that he was experiencing difficulties in obtaining the information required. He advised that a social worker had assessed the applicant but had later told him that she had no authority to provide a letter, however she had said that she would be able to provide information if requested by the Tribunal:
A week after the social worker left she rang me to say that she couldn’t provide me with the letter because she didn’t have the authority to do so. She also said that if the MRT need this information for them to give me such a letter that the MRT contact them requesting the information.[4]
[4] Court Book 95
The applicant’s husband also provided to the Tribunal a letter to the applicant dated 1/5/07 from the Canterbury Aged Care Assessment Team at Canterbury Hospital. The letter advised the applicant:
I wish to inform you that the Canterbury Community Aged Care Assessment Team (ACAT) has received a request from Ethnic Childcare, Family & Community Service for you to be visited at home.
Based on the information provided, your name has been placed on a waiting list. The list is reviewed regularly and when an appointment is available, a staff member will be in contact to arrange an appointment at a convenient time. If required, a health care interpreter will also be present at the assessment.[5]
[5] Court Book 96
The Tribunal wrote to the applicant on 14th June 2007, advising that the decision would be handed down on 4th July. However, the applicant wrote to the Tribunal on 21st June 2007, providing her answers to the Tribunal’s two questions, first, as to why the assistance required could not be obtained from any other relative or from welfare, hospital, nursing or community services in Australia, and, second, how the visa applicant (i.e. the applicant’s daughter) would be able to provide her the substantial and continuing assistance that she required.[6]
[6] Court Book 99-100
Accordingly, on 25th June 2007, the Tribunal Member recalled the decision signed on 12th June[7] and advised the applicant that the Tribunal had considered her letter and would still hand down a decision on 4th July.
[7] Court Book 101
The applicant’s daughter then wrote to the Tribunal on 24th June 2007, providing a copy of a letter dated 26th May 2007 from Dr John Kelly, a consultant nephrologist, supporting the application. The Tribunal replied on 2nd July 2007, advising that this material had been considered but the decision would still be handed down on 4th July.
The MRT Decision
The Tribunal signed its decision on 25th June 2007 and handed the decision down on 4th July. The Tribunal affirmed the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.
In the Decision Record, the Tribunal set out the requirements for the grant of a Subclass 116 (Carer) visa:
The principal issue in this case is whether the visa applicant is a Carer of the review applicant. The term ‘Carer’ is defined at r. 1.15AA.
(1)An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:
(a)the applicant is a relative of the resident; and
(b)according to a certificate that meets the requirements of Subregulation (2):
(i)a person (being the resident or a member of the family unit of the resident) has a medical condition; and
(ii)the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and
(iii)the impairment has under the Impairment Tables, the rating that is specified in the certificate; and
(iv)because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and
(c)the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified by Gazette Notice for this paragraph; and
(d)if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); and
(e)the assistance cannot reasonably be obtained:
(i)from any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or
(ii)from welfare, hospital, nursing or community services in Australia; and
(f)the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires…[8]
[8] See Court Book 110 and also affidavit of Megan Louise Palmer, sworn 26 October 2007, Annexure “A”
The Tribunal found that the applicant’s daughter was not entitled to the grant of a Subclass 114 (Aged Dependant Relative) visa because the applicant was not old enough to be granted an age pension under the Social Security Act 1991 (Cth). Again, the Tribunal found that the applicant’s daughter was not entitled to the grant of a Subclass 115 (Remaining Relative) visa because she had siblings residing in Fiji.
The Tribunal then turned to the claim for a Carer visa, noting that the applicant’s daughter claimed to be a carer of her mother, who is an Australian citizen. The Tribunal described the “key issue in this case” as:
…whether the assistance required by the review applicant can reasonably be obtained from any other relative of the resident.[9]
[9] Court Book at 114
The Tribunal found that the applicant’s only relative in Australia was her husband and accepted that he was not able to provide the applicant with the necessary assistance that she required, due to his medical condition. Accordingly, the Tribunal was satisfied that the assistance required by the applicant could not reasonably be obtained from any other Australian relative of the applicant.[10]
[10] Ibid
The Tribunal then went on to consider whether the assistance required by the applicant could reasonably be obtained from welfare, hospital, nursing or community services in Australia. The Tribunal made this finding:
The Tribunal wrote to the review applicant on 6 March 2007 requesting her to provide information on this issue. The review applicant did not respond to the Tribunal’s invitation and while she subsequently wrote to the Tribunal indicating that these organisations have been approached, there is no evidence before the Tribunal with respect that may be reasonably obtained from these organisations.
The Tribunal acknowledges the evidence of the review applicant and the witnesses that the review applicant may have difficulty communicating in English. However, there is no evidence before the Tribunal on whether the requisite assistance can be provided in the review applicant’s language by a community, welfare, hospital or nursing service in Australia. The Tribunal also acknowledges that the review applicant may be more comfortable receiving assistance from her daughter and that she wants a member of her family to look after her, however this does not override the requirements of r. 1.15AA(1)(e)(ii).
On the basis of the limited evidence before the Tribunal, the Tribunal is not satisfied that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. Accordingly, the Tribunal cannot be satisfied that the visa applicant meets r 1.15AA(1)(e)(ii) and that she is a carer of the review applicant. The Tribunal is not satisfied that the visa applicant meets cl. 116.221.[11]
[11] Court Book 114
The Tribunal affirmed the decision not to grant Class BO visas to the applicant’s daughter and her children.
Application for Judicial Review
The applicant commenced proceedings in this Court on 9th August 2007. The application was listed for final hearing on 8th November 2007 but was adjourned until 18th March 2008. On that day, the applicant attended Court, but it soon became clear that she was not well enough to represent herself, so I adjourned the proceedings and decided that this was a suitable case for the applicant to have pro bono representation. Fortunately for the applicant, Mr Ray Turner, solicitor, was prepared to represent the applicant.
In an amended application filed in Court on 25th June 2008, the applicant seeks relief on the following grounds:
a)The Tribunal failed to take account of relevant/material consideration;
b)The Tribunal based its decision on a fact which did not exist; and
c)The Tribunal’s decision is affected by apprehended bias.
As to the first ground, the applicant claims that the Tribunal failed to take account of a relevant or material consideration in that it had no, or no real, regard, to the specialist report of Dr. Kelly dated 8th August 2004. In a report from HAS (Health Services Australia) provided in support of the visa application, there appears this summary:
Hypertensive encepalothopy with history of bilateral cerebral infarcts in 1992. Associated cognitive impairment – poor concentration, poor planning skills, poor information processing. As a result has significant problems with memory/planning. Needs high level of supervision with majority of daily care (?) activities. Specialist report from Dr Kelly (8.8.04) is noted.[12]
[12] Court Book 32
In reply, Mr Izzo of counsel, who appeared for the Minister, submitted that the requirement to take relevant considerations into account does not mean that the Tribunal must refer to every piece of evidence in its written reasons (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[13]). He further submitted that there is a distinction between a failure to advert to evidence which, if accepted, might have led the Tribunal to make a different finding of fact and a failure to address a contention which, if accepted, might establish that the applicant satisfied the requirement for the grant of a visa. The report from Dr Kelly was in the former category. The Tribunal had accepted that the applicant required direct assistance in attending to the practical aspects of daily life and the only issue was whether that assistance could reasonably be obtained from any other relative. There was nothing to suggest that Dr Kelly’s report dealt with that matter.
[13] (2003) 75 ALD 630; [2003] FCAFC 184 at [46]
As to the applicant’s second ground, the claim that the Tribunal based its decision on a fact that did not exist, the applicant submits that whilst the Tribunal found that there was no evidence:
(a)with respect to the assistance that may be reasonably obtained from these organisations;
(b)on whether the requisite assistance can be provided in the review applicant’s language by a community, welfare, hospital or nursing service in Australia.[14]
[14] Court Book 114
It is submitted that there was such evidence, at pages 39, 88, 92 and 96 of the Court Book. Accordingly, the claim is that the Tribunal’s decision was based on a fact that did not exist.
The Minister submits that the passages relied on by the applicant do not in fact provide evidence of the assistance that could be obtained from the organisations in questions, with two possible exceptions. Those two exceptions were said to be the letter from the applicant’s husband at page 88 of the Court Book and the evidence to the Tribunal by Mr Prasad, referred to in the Tribunal Decision Record.[15]
[15] Court Book 112
In any event, for a “no evidence’ argument to succeed, the relevant finding of fact must be one on which the relevant decision is based, not just as one step in a process of reasoning (Minister for Immigration and Multicultural Affairs v Rajamanikkam[16]). The non-existence of one or even a number of facts is not sufficient if there remain other facts that support the Tribunal’s conclusion. It must be established that the particular fact upon which the decision is based does not exist (Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs[17]).
[16] (2002) 201 CLR 222; 190 ALR 402 at [26] per Gleeson CJ
[17] [2003] FCAFC 230 at [26]
The Tribunal was required to make a finding as to whether the requisite assistance could reasonably be obtained from community and other services in Australia, not whether or not there was evidence of the assistance available. Mr Izzo submitted that the Tribunal was entitled to take into account the view that there was no evidence of the assistance that could reasonably be obtained.
The applicant’s third ground is a claim that the Tribunal’s decision was affected by apprehended bias. The applicant submits that the Tribunal was advised that community service representatives required a request for information of a kind required by the Tribunal to come from the Tribunal. The Tribunal failed to make that request and thereafter went on to find against the applicant on the basis that no such information had been provided.
The applicant submits that this amounts to a failure by the Tribunal to bring an open mind to the review which would amount to an apprehension of bias in the mind of an ordinary person.
Against this, the Minister submits that this case is not one where information from either of the two organisations referred to could itself be determinative of the review. The question posed by regulation 1.15AA(1)(e) is whether the requisite assistance can be obtained from community and other services generally, not from any particular service. It is further submitted that the Tribunal was entitled to take the stance that if evidence could not be obtained by the applicant from certain organisations, then attempts should be made to obtain it from others. This, it is submitted, would not lead the hypothetical fair-minded lay person, properly informed as to the nature of the proceedings, the matters in issue and the conduct in question, to apprehend that the Tribunal might not bring an impartial mind to the review (Re Refugee Review Tribunal; ex parte H[18]).
[18] (2001) 179 ALR 425 at 434-435 per Gleeson CJ, Gaudron and Gummow JJ
Conclusions
The Tribunal in this case was required to decide whether the applicant’s daughter was a carer for the applicant. The requirements for a carer are set out in regulation 1.15AA.
The Tribunal was satisfied that the applicant is an Australian citizen usually resident in Australia and that her daughter was, obviously, a relative. The Tribunal was also satisfied that the applicant met the requirements in r 1.15AA(1)(a)-(c)((d) was not relevant.
There were two issues required to be decided in order for the applicant to meet r 1.15AA(e):
(a)whether the assistance required by the applicant could not reasonably be obtained from any other relative of the applicant, being an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(b)whether the assistance required by the applicant could not reasonably be obtained from welfare, hospital, nursing or community services in Australia.
It is clear from the wording of paragraph (e) of the regulation that the Tribunal had to be satisfied that the assistance could not reasonably be obtained from either source. That is why the Tribunal wrote to the applicant on 6th March 2007, asking her to provide the following information:
· Information as to why the assistance you require cannot be obtained from any other relative or from welfare, hospital, nursing or community services in Australia.[19]
[19] Court Book 82
The Tribunal was satisfied that the applicant’s only relative in Australia was her husband and that he, because of his poor health, was not able to provide the assistance required. As it turned out, the applicant’s husband has since died (after the proceedings before this Court were commenced).
That left the issue of whether the assistance required by the applicant could reasonably be obtained from welfare, hospital, nursing or community services in Australia.
The applicant was required to show that the assistance she required could not reasonably be obtained from any of those organisations, which carries with it the difficulty of proving a negative, often a difficult task.
The applicant’s first ground
Dealing with the applicant’s first ground, the claim that the Tribunal failed to take account of a relevant or material consideration, the applicant claims that the Tribunal did not consider the specialist report from Dr Kelly referred to in the Carer Visa Assessment from Health Services Australia Ltd, which is set out in the Court Book on pages 28 to 32. The assessment was prepared on 3rd September 2004 and the report from Dr Kelly appears to have been dated 8th August 2004. A copy of Dr Kelly’s report does not appear in the Court Book but it would appear to have gone to the purpose set out in the Assessment:
A medical report is needed to determine if the resident (person nominated by the applicant as requiring care) has:
· A medical condition; and
· The medical condition is causing an impairment of the ability of that person to attend to the practical aspects of daily life; and
· Because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life.[20]
[20] Court Book 29
This was not in issue. Health Services Australia issued a certificate about the applicant that met the requirements of regulation 1.15AA(1)(b) and (c) and the Tribunal accepted that this certificate met those requirements[21].
[21] Court Book 114
It would appear that Dr Kelly’s report related to that issue, and not the issue still to be decided. The applicant’s daughter, in her letter to the Tribunal of 24th June 2007, submitted a copy of a further report from Dr Kelly dated 26th May 2007. That report did refer to the applicant’s need for assistance, saying:
She has a longstanding history of high blood pressure and as a result of this has sustained multiple small strokes. She has marked reduction in her cognitive ability and as such requires assistance with the activities of daily living and in particular with the administration and supervision of her medications. I therefore support an application from Mrs Bushell’s daughter Mrs Ekari Bale to be granted a visa so that she can visit Australia to help care for her mother.[22]
[22] Court Book 103 (emphasis added)
Dr Kelly’s report is clearly evidence of the applicant’s condition and her need for assistance, neither of which are in issue. Whilst he expresses his support for the applicant’s daughter to visit Australia to assist the applicant, Dr Kelly does not, in his report, provide any evidence about the issue that the Tribunal needed to be satisfied about, namely whether the assistance required by the applicant could or not reasonably be obtained from welfare, hospital, nursing or community services in Australia.
In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[23], the Full Court of the Federal Court held:
It is plainly not necessarily for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived.[24]
[23] supra at [46]
[24] per French, Sackville and Hely JJ at [46]
In this case, I am not satisfied that either report of the two reports by Dr. Kelly, from 2004 or 2007, has been shown to be relevant to the issue that the Tribunal had to decide, which was whether the assistance required by the applicant could reasonably be obtained from welfare, hospital, nursing or community services in Australia. Thus, it has not been established that the Tribunal failed to take account of a relevant or material consideration and the applicant’s ground 1 fails.
The applicant’s second ground
The applicant’s second ground claims that the Tribunal based its decision on a fact that did not exist. The applicant refers to these two findings by the Tribunal:
· The Tribunal wrote to the review applicant on 6 March 2007 requesting her to provide information on this issue. The review applicant did not respond to the Tribunal’s invitation and while she subsequently wrote to the Tribunal indicating that these organisations have been approached, there is no evidence before the Tribunal with respect to the assistance that may be reasonably obtained from these organisations (emphasis added).
· However, there is no evidence before the Tribunal on whether the requisite assistance can be provided in the review applicant’s language by a community, welfare, hospital or a nursing service in Australia.[25]
[25] Court Book 114
Mr Turner has referred to five items which he submits constitute evidence in support of the applicant’s claim about the assistance that could or could not be obtained from community and other organisations:
i)The letter to the Senior Migration Officer at the Australian High Commission in Suva from the Pacific Islands Council dated 20 June 2006, saying:
No one else than her daughter Ekari, who would be more suitable to look after Leba who can understand and support her with her illness. Research tells us that how close family members can have strong impact in helping people with dementia to cope with their illness.[26]
ii)The letter from the applicant’s husband to the Tribunal dated 18/4/07, saying:
[26] Court Book 39
There are two different organisations that provide assistance in our area.
Both have stated that no service provider will do banking, cash withdrawals, or know the patient’s pin no.[27]
[27] Court Book 88
iii)The letter from the applicant dated 21 June 2007, saying:
2. Welfare: There rosters and programs are limited to my expectations. 3. Hospital: I cannot afford these bills from hospitals…
4. Nursing and Community Services: These services are absolutely limited to my expectations.[28]
iv)The letter from Canterbury Hospital dated 1/5/07, saying:
Based on the information provided, your name has been placed on a waiting list.[29]
v)The evidence to the Tribunal from Mr Prasad:
The couple tried to seek assistance from a Migrant Resource Centre at Campsie, but they could not provide assistance on a 24 hour basis.[30]
[28] Court Book 99
[29] Court Book 96
[30] Court Book 112
In my view, the letter from the Pacific Islands Council at (i) above is more in the nature of a submission than evidence, which is also the case for the applicant’s letter at (iii) above. However, the letter from the applicant’s husband at (ii), the letter from Canterbury Hospital at
(iv) and the evidence of Mr Prasad do constitute evidence, although it must be said that the letter from Canterbury Hospital advising that the applicant had been placed on a waiting list did not take the matter very far. In my view the Tribunal would have been justified in giving that piece of evidence very little weight.
That said, in my view there was evidence about the issue to be decided, and in my view the comment by counsel for the Minister that these pieces of evidence touch on the matter to be decided “only in a summary fashion”[31] does not take mean that there was no evidence at all. The evidence may have been of little weight, and the Tribunal would have been entitled to regard the evidence in that way, but that is different from there being no evidence at all.
[31] Respondent’s Supplementary submissions at [5]
Counsel for the Minister submitted that in order for a “no evidence” argument to succeed, the finding of fact in respect of which there is said to be no evidence must be a finding on which the relevant decision is based and it is not enough that a finding without evidence is made simply as one step in a process of reasoning, relying on Minister for Immigration and Multicultural Affairs v Rajamanikkam[32]. In that case, Gleeson CJ said:
…identification of the “decision” may constitute an important step in deciding whether there has been an error of law in the form of a breach of duty to act in accordance with the requirements of procedural fairness. The requirement is to “base [a] decision on evidence’; a requirement as to the way the decision-maker is to go about the task of decision-making. The distinction between judicial review of administrative decision-making upon the ground that there has been an error of law, including a failure to comply with the requirements of procedural fairness, and comprehensive review of the merits of an administrative decision, would be obliterated if every step in a process of reasoning towards a decision were subject to judicial correction (18).[33] The duty to base a decision on evidence, which is part of a legal requirement of procedural fairness, does not mean that any administrative decision may be quashed on judicial review if the reviewing court can be persuaded to a different view of the facts.[34]
[32] supra at [26] per Gleeson CJ
[33] Footnote omitted
[34] Rajamanikkam at [26]
In my view, with respect, this passage supports the applicant’s submission that there was evidence going to the issue that the tribunal had to decide, which was whether the assistance required by the applicant could be provided by a community, welfare, hospital or nursing service in Australia. This was not just a step in a process of reasoning. There was either evidence or there was not. There is a difference between making a finding that the evidence provided was of insufficient weight and making a finding that there was no evidence at all.
Counsel for the Minister also referred to the decision of Mansfield and Selway JJ in Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs[35] in support of the proposition that the non-existence of one or even a number of facts is not sufficient if there remain other facts that support the Tribunal’s conclusion; it must be established that the particular fact upon which the decision is based does not exist.
[35] supra at [26]
What their Honours said in Appellant P119/2002 was:
In this case the appellant is required to establish that the decision is based upon a particular fact and that fact does not exist: s 476(4)(b). It is clear from the decision of the High Court in Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 190 ALR 402 (see, in particular Gaudron and McHugh JJ at 414[56], 414,[58]) that the non-existence of one or even a number of facts is not sufficient if there remain other facts that support the Tribunal’s conclusion. It must be established that the particular fact upon which the decision is based does not exist.[36]
[36] Appellant P119/2002 at [26]
With respect, that does not help the Minister’s case. The Tribunal said that there was “no evidence” but the applicant submits that there was some evidence. There was some evidence. Whether or not the evidence was sufficient is a different issue.
This question was considered by the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP[37], where the Court considered a decision by the Refugee Review Tribunal referred to “the absence of any mention of either an event or an attitude that would support the [male respondent’s] claim that he was and would be persecuted as a Jew in Kyrghyzstan”. This statement was held to be wrong in respect of a piece of country information upon which the Tribunal relied, because there was a report of an incident that would have supported the claim of the applicant before the Tribunal. The Full Court said:
It was for the tribunal to evaluate the significance of this statement, considering it in the context of the whole report and the other evidence. The outcome of that evaluation would be a finding of fact and probably invulnerable to judicial review. However, the Tribunal did not undertake any such evaluation. In finding an absence of any mention of an event that would support the male respondent’s claim, the Tribunal ignored this statement.[38]
[37] [2005] FCAFC 50
[38] VOAO at [11] per Wilcox, French and Finkelstein JJ
Their Honours went on to say at [13]:
The situation that arose in this case might preferably be described as a failure to take account of relevant material, rather than ‘no evidence’. However, the label does no matter. On any view of the matter, the Tribunal fell into jurisdictional error.
In the case before this Court, there was some evidence, albeit relatively slight, that supported the applicant’s claim. It was not correct for the Tribunal to say there was no evidence. In my view, jurisdictional error has been made out.
The applicant’s third ground
The applicant’s third ground claims that the Tribunal’s decision is affected by apprehended bias. Mr Turner put to the Court at the hearing that this claim was not made lightly.
The basis of the claim is that the Tribunal was advised that community organisations would only provide information on the availability of their services if requested to do so by the Tribunal. The Tribunal did not make that request and then found against the applicant on the basis of there being no such evidence.
It was submitted that this conduct by the Tribunal amounts to a failure by the Tribunal to bring an open mind to the review. The failure amounts to an apprehension of bias in the mind of any ordinary person.
At the hearing, Mr Turner told the court that it was not put that the Tribunal had an obligation to make its own inquiries. However, the Tribunal affirmed the decision on the basis that there was no evidence, when there could have been if the Tribunal had formally requested that evidence. The Tribunal ignored that implicit request and this, it is submitted, amounts to an apprehension of bias.
Counsel for the Minister submitted that this is not a case where information from either of the two organisations referred to could itself be determinative of the review. The question posed by regulation 1.15AA(1)(e) is whether the requisite assistance could be obtained from community and other services generally, not from any particular service. He submitted that in those circumstances the Tribunal was entitled to take the stance that if evidence could not be obtained by the applicant from certain organisations then attempts should be made to obtain it from others. With respect, I have difficulty following the logic of this argument. If evidence is not obtained from those organisations, then it matters little if evidence in the negative is obtained from any other organisation, because the absence of evidence from those two organisations would still remain open. This, as I said at [41], is the difficulty for the applicant in proving a negative proposition.
In any event, counsel for the Minister submitted that the Tribunal’s decision would not lead the hypothetical fair-minded lay person, properly informed as to the nature of the proceedings, the matters in issue and the conduct in question, to apprehend that the Tribunal might not bring an impartial mind to the review. He referred the Court to Re Refugee Review Tribunal; ex parte H[39] .
[39] supra at 434-435 per Gleeson CJ, Gaudron and Gummow JJ
In that case, their Honours said:
[27] The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that a judge might not bring an impartial mind to the resolution of the question to be decided.[40] That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of “a fair-minded lay observer’ when, as is the case with the tribunal, proceedings are held in private.
[28] Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.[41]
[40] Footnotes omitted
[41] (2001) 179 ALR 425 at [27]-[28]
Whilst in that decision their Honours were dealing with the conduct of a hearing before the Refugee Review Tribunal and in the case under review the Court is considering the way in which the Migration Review Tribunal made its finding, in my view, with respect, the test for apprehended bias is still appropriate.
It is clear that the applicant’s late husband was having difficulty in providing the Tribunal with evidence to support the applicant’s contention that the assistance she required could not be obtained from welfare, hospital, nursing or community services in Australia.
In his letter to the Tribunal of 18/4/07, Mr Bushell said:
There are two different organisations that provide assistance in our area. Both have stated that no service provider will do banking , cash withdrawals or know the patient’s pin no. When I asked for a letter stating this I was refused and referred to another Service Provider.[42]
[42] Court Book 88
On 1st June 2007 Mr Bushell attended the office of the Tribunal. The case note taken by a Tribunal officer, Ms Parrott, said (relevantly):
He explained briefly the problems he had had with getting info, from the various organisations to state that full weekly care could not be given to her. At the hearing (in March ’07) the member had asked him to provide certain details and he had been trying for two mths to get them.
He had spoken to ‘Ethnic People with Disabilities (EPDP)’ who had put him onto Canterbury Community Aged Services – the Aged Care Assessment team would need to make an assessment. He said a Helen, Social worker from this organisation did give his wife an assessment and said that she would write a ltr about it in a wk’s time.
He said that Helen later contacted him to say that she did not have the authority to do this & did not suggest anyone else. Mr Bushell said that she said the request would need to come from the Tribunal asking for details. [43]
[43] Court Book 92
Mr Bushell then wrote a letter to the Tribunal dated 12-6-07:
Two weeks ago my wife was assessed by a social worker from the Aged and Careing Services Assessment Team c/- Canterbury Hospital. After the assessment was completed , I mentioned to the social worker (her name is Helen) why I was accessing their services. The main reason was to get some home help and also very importantly a letter from them stating that the care my wife needs is someone to go with her to make her bank withdrawals and pay bills, buy food etc.
Usually, every week my wife cannot remember her pin no., no matter how many times she writes it down to remember. She can never remember it.
I’ve been doing everything for her until now and its been such a drain on me. Since trying to get the necessary information I need, namely the “letter”, I’ve become more stressed and physically exhausted.
The Social Worker said she would write the letter I needed.
A week after the social worker left, she rang me to say that she couldn’t provide me with the letter because she didn’t have the authority to do so. She also said that if the M.R.T. need this information for them to give me such a letter that the M.R.T contact them requesting the information.
I feel that the service providers have been dodging my need for this letter. I am no closer than I was when we attended the hearing and was granted more time in obtaining this letter.[44]
[44] Court Book 94-95
In this poignant letter, Mr Bushell spelled out his frustration in attempting to obtain the information the Tribunal required. In my view, it is no answer for the Minister to submit that the Tribunal was entitled to take the stance that if the applicant could not obtain evidence from those organisations then attempts should be made to obtain the information from others.
Even if the applicant were to obtain evidence from other organisations that they could not provide the services she required, the question of whether EPDP or Canterbury Hospital could provide the service remained unresolved. Of course, it could be argued that the applicant’s husband had already provided evidence that went to show that neither EPDP nor Canterbury Hospital could provide the requisite service and there was no evidence that any other organisation existed that was in a position to do so. In that case, the Tribunal’s finding ‘no evidence’ finding was wrong.
However, considering the matter in context, it is clear that the applicant’s husband was saying to the Tribunal:
(a)There may be evidence that was directly relevant to the question whether the assistance required by the applicant could not reasonably be obtained from welfare, hospital, nursing or community services in Australia;
(b)If there was such evidence, he was unable to obtain it; but
(c)The Migration Review Tribunal was able to obtain that evidence.
In my view, this was a suitable case for the Tribunal to have exercised its powers under s 359 of the Act to seek written information from Canterbury Community Aged Care Assessment Team, as Mr Bushell reported that the social worker had suggested. The fact that the Tribunal chose not to do so does not, to my mind, allow an inference of apprehended bias to be drawn. I am not satisfied that a hypothetical fair-minded lay person who was properly informed as to the nature of the proceedings, the matters in issue and the decision of the Tribunal would reasonably apprehend that the Tribunal Member had not brought an impartial mind to the resolution of the question to be decided.
The Tribunal’s power to obtain information under s 359 is discretionary and in this case it was not under an obligation to exercise that power. This is an unusual case, even an exceptional one. It is not a case where an applicant is asking the Tribunal to conduct its own wide-ranging independent inquiries to support the applicant’s case. This is a case where the Tribunal was being asked to make a specific inquiry to obtain information which it had the power to obtain but the applicant could not. By choosing not do so, the Tribunal placed itself in a position where it could not make a finding that there was no evidence going to a relevant issue.
The Tribunal fell into jurisdictional error. The decision is not a privative clause decision and relief in the nature of certiorari and mandamus should be granted. I will also consider the question of costs.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 25 August 2008
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