Chakera, S. v The Immigration Review Tribunal

[1993] FCA 395

SHIRIN CHAKERA v. THE IMMIGRATION REVIEW TRIBUNAL (constituted by JOSEPH
ITALIANO - Presiding Member and NAOMI WHITE - Member) and THE MINISTER FOR
IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. VG96 of 1992
FED No. 395
Number of pages - 10
Migration
(1993) 42 FCR 525

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Heerey J(1)

CATCHWORDS

Migration - appeal from Immigration Review Tribunal - "aged dependent relative" - Migration Regulations 1989 reg. 2(1) - financial support - psychological support - whether tribunal applied test prescribed - whether tribunal's findings were reasonably open on the evidence.

Migration Act 1958 (Cth) s.138

Migration Regulations 1989 reg.2(1), 34A(1)

Commissioner for Superannuation v Scott (1987) 71 ALR 408

R v Immigration Appeal Tribunal, Ex parte Bastiampillai (1983) 2 All ER 844

Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626

Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111

Minister for Immigration, Local Government and Ethnic Affairs v Pashmforoosh (Full Federal Court, unreported, 28 June 1989)

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Lombardo v Federal Commissioner of Taxation (1979) 40 FLR 208

TNT Skypak (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175

HR Products Pty Ltd v Collector of Customs (1990) 20 ALD 340

Attorney General (NSW) v Quin (1990) 170 CLR 1

HEARING

MELBOURNE, 3 June 1993

#DATE 9:6:1993

Counsel for the applicant: Mr T.V. Hurley

Solicitor for the applicant: Ravi, James and Associates

Counsel for the respondents: Mr K.H. Bell

Solicitor for the respondents: Australian Government Solicitor

ORDER

The Court orders that:

1. The appeal be allowed.

2. The application be remitted to a division of the Immigration Review Tribunal differently constituted for reconsideration in accordance with these reasons.

3. The second respondent pay the applicant's costs, including reserved costs.

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

JUDGE1

HEEREY J The applicant Shirin Chakera (Mrs Chakera) appeals under s.138 of the Migration Act 1958 against a decision of the Immigration Review Tribunal refusing her mother Husena Pashwa (Mrs Pashwa) a preferential family visa.

1. The application in fact filed on 25 March 1992 took the form of an application for review under the Administrative Decisions (Judicial Review) Act 1977 but the parties accepted that it should be treated as a notice of appeal under the Migration Act.

The Legislation
3. The Tribunal had to consider whether Mrs Pashwa satisfied the definition of "aged dependent relative" in reg.2(1) of the Migration Regulations as in force at the time of her application for a visa on 2 August 1990. Regulation 2(1) relevantly provided as follows:

"'aged dependent relative', in relation to a person who is:

(a) an applicant for a visa or an entry permit; or

(b) an Australian citizen resident in Australia; or

(c) an Australian permanent resident; means a relative who:

(d) has never married, or is widowed, divorced or formally separated; and

(e) has been dependent on that person for a reasonable period, and remains so dependent; and

(f) is old enough to be granted an age pension under the Social Security Act 1991."

1. The definition of 'dependent' referred to in paragraph (e) of the definition of 'aged dependent relative' was set out in reg.2(1) as follows:
   

"'dependent', in relation to a person, means wholly or substantially dependent on another person for financial, psychological or physical support; ..."

1. Mrs Chakera is an Australian citizen resident in Australia. Her mother Mrs Pashwa is a widow and is of pensionable age. Indeed she is 79, having been born in Dar Es Salaam in what was then the British colony of Tanganyika on 10 October 1913. The issue before the Tribunal was whether Mrs Pashwa was wholly or substantially dependent on Mrs Chakera for financial or psychological support. No question of physical support arose. There was evidence before the Tribunal in affidavit form from Mrs Chakera, Mrs Pashwa and some others to whom I shall later refer. The Tribunal appears to have accepted as truthful the primary facts so presented.

Mrs Pashwa and Her Daughters
6. Mrs Pashwa's grandparents migrated to Tanganyika from India. Her father was an established businessman and owned several properties. Mrs Pashwa lived in Tanganyika, and Tanzania as it later became, from the time of her birth up until 1982. She was wholly concerned with looking after her husband and their five daughters.

1. The eldest was Mrs Chakera, who was born in 1939. As the eldest child Mrs Chakera had a special relationship with her mother and to some extent took over the reins of looking after the well-being of the family as her parents began to grow old. The traditions of their people place this obligation on the eldest child. In the case of the Pashwa family, the dispersal of the other children made the assumption of this obligation by Mrs Chakera a matter of practical necessity.

2. The other four daughters all left the home to live overseas. Jamila went to England to study and remains there. Nasim married in 1969 and went to live with her husband in Karachi. Her husband had a stroke in 1984 and she has been called upon to look after him in addition to the rest of her family. Rosie went to study in London, married and moved to Canada where she lives with her husband. The youngest daughter Zinnet also went to England to study. She became very independent and her visits back home to Tanzania were infrequent. She married a Mr Bennett in London and moved with him to live in the United States.

3. By 1969 all the daughters apart from Mrs Chakera had left Tanzania. This made her even closer to her mother. Mrs Chakera herself had married in 1965. By the early 1970s political conditions in Tanzania had become very oppressive for those of Indian origin, notwithstanding that in the case of people like the Pashwa family they had been citizens and residents for several generations. All the properties owned by Mrs Pashwa and her husband were confiscated without compensation and they were left with only a flat. Mrs Chakera, whose properties were also taken, was forced to migrate with her husband and two children to Australia where they arrived in May 1972, having to start life over again. Mrs Pashwa and her husband had no income. They were dependent on money left behind in the country by Mr and Mrs Chakera and money sent by them from Australia.

4. Mrs Chakera returned to see her mother in 1976 and again in 1979 when her father died. The absence of all the children made her father very depressed and his health suffered. But he did not want to leave Tanzania and Mrs Pashwa stuck by him. It was only when he died that Mrs Chakera persuaded her mother to move from Tanzania because she could no longer live there by herself.

5. Mrs Chakera wanted to bring her mother to live with her in Australia but her husband's aged mother was already living with them. As a consequence, it was agreed that the youngest daughter Zinnet would look after her mother. She migrated to the United States in 1982 and went to live with Zinnet and her family in Miamisburg, Ohio.

6. After this move Mrs Chakera and her mother were in constant touch by telephone. Mrs Chakera would remit funds to her for maintenance. Whenever friends from Australia went to the United States they would pay some funds as gifts or as a loan which Mrs Chakera would reimburse. Mrs Chakera deposed:
   

"More than funds, the basic dependency of my mother to discuss with me about her other necessities and anxieties never ceased and she always looked to me for consolation out of all her daughters because of her constant dependency on me."

In 1984 Mrs Pashwa came to Australia and stayed for seven months with Mrs Chakera before returning to the United States. By this time the marriage of Zinnet and Mr Bennett was in trouble. In 1985 they were divorced.

1. In 1988 Zinnet married again. Her new husband, a Mr Harding, was not of Indian descent. The family converted to Christianity. Mrs Chakera deposed:
   

"This marriage brought increased pressure on my sister and also affected my mother very much. It was more than clear, that her husband did not like to have my mother in their home together with three growing children, who also because of their cultural upbringing were not able to understand the sentiment and sensitivities of a person like my mother, who was used to and had lived under different cultural traditions and different circumstances. My mother became lonely and depressed and began to be neglected and through my conversations with her, I began to feel her anxieties at her situation. Through these developments she began to turn to me for consolation and her dependency on me increased again. I therefore decided to sponsor her to come over to live with me, on whom she was more than dependent not only financially but for other necessities.

More than meals and accommodation; my mother was suffering from loneliness. There was nobody available for her to turn to, who would be able to understand her anxieties and desires in her age. She was unable to observe her religious habits, for fear of intrudence (sic) or hurting the feelings of her son-in-law and grand children and through all of this she longed to be with me and expressed it on many occasions whenever I was speaking to her on the telephone."

1. Mrs Pashwa herself deposed that since Mrs Harding's second marriage:
   

"It has been very difficult to live with her and I need the emotional and psychological and religious support of my daughter Shirin. Zinnet is unable to relate to my religious and social needs particularly as she has converted to the Christian faith."

1. Mrs Harding has three children, now aged 17, 15 and 12. Mrs Pashwa, according to the attestation of her affidavit, is unable to read English but the evidence does not reveal whether or not she can speak it. As I have said, Mrs Pashwa visited Mrs Chakera in Australia in 1984 and also in 1989 when she stayed from 21 January to 18 June. All her fares were paid by Mrs Chakera. She returned to the United States but from 26 June 1989 to 23 April 1990 she stayed with her friend Dolores Felfoldi in Dayton, Ohio. Mrs Felfoldi deposed that Mrs Harding "was unable to keep her because of domestic upheaval" and that during the period that Mrs Pashwa lived with her "she received regular phone calls from her daughter Mrs Chakera and always talked about going to live with Shirin in Australia."

Financial Arrangements
16. While Mrs Pashwa lived in Tanzania Mrs Chakera was her sole source of financial support. After moving to the United States she commenced to receive a United States government pension. According to the evidence of Mrs Harding that pension commenced in 1982. By 1986 the payments were US$224 a month rising to US$407 per month by 1991. Mrs Chakera continued to provide funds at an average of A$2700 per year. Mrs Harding says that "all these funds" (which I take to mean Mrs Chakera's contributions and the US pension) "are put together and used for family upkeep, private medical, clothing, particularly telephone bills and other expenses". Mrs Harding receives maintenance payments from her ex-husband for the three children of their marriage. She is unemployed. Her husband's salary is US$1875 net per month and she receives child support of US$480 per month. Household expenses include mortgage payments.

"Dependent", "Support", "Reasonable Period"
17. The expression "wholly or substantially dependent" in the definition of "dependent" in reg.2 requires that the person in question be primarily, essentially or in the main dependent upon the other person: Commissioner for Superannuation v Scott (1987) 71 ALR 408.

1. The different forms of support referred to in the definition of "dependent" are to be considered separately and disjunctively. The requirement of dependency would be satisfied if, for example, one person were wholly or substantially dependent on another for financial support even though psychological or physical support was provided by others, or the person in question was self-sufficient in those respects and not receiving any psychological or physical support at all.

2. The question of dependency has to be considered as at the time Mrs Pashwa made her application to the Australian Consulate in Chicago on 2 August 1990: reg. 34A(1).

3. The reference to dependency "for a reasonable period" has been the subject of a Departmental Policy Statement in Procedures Advice Manual Topic on Preferential Family par.5.4.1 which states that a period of not less than three years is a reasonable time for this purpose. The meaning of the term "psychological ... support" is central to the determination of this appeal. I shall return to this question later.

Tribunal's Finding on Financial Support
21. The conclusion reached by the Tribunal on this issue is to be found in the following passage (at 9):

"Having regard to the views of the Federal Court in Re Scott

(supra), the Tribunal finds that at the date of application and for a reasonable period preceding the date of application for migration, Mrs Pashwa was financially dependent on her daughter, Zinnet Harding and the United States Social Security Scheme (S.S.I). While Shirin Chakera has argued that her mother was more dependent financially on her prior to her receipt of American Social Security payments, the Tribunal is bound by regulation 34A which requires proof of dependency at the date of application. On this occasion, the Tribunal sees no reason to deviate from Departmental policy an enunciated in the Procedures Advice Manual Topic on Preferential Family at paragraph 5.4.1 which states that a period of not less than three years is a reasonable time in which to test "dependency" in the context of the expression of "aged dependent relative" as found in regulation 2 of the Regulations."

There was some force in the criticism of counsel for Mrs Chakera that this review of the evidence ignores the contributions of some A$2700 which Mrs Chakera has continued to make.

1. However, on the evidence it was clear, applying the test in Scott, that the main or primary source of Mrs Pashwa's financial support was her US government pension which at the relevant time was some US$4632 per year. Mrs Chakera's financial contribution was about A$2700. Therefore the only conclusion the Tribunal could have reached on this issue was that Mrs Pashwa was not wholly or substantially dependent on Mrs Chakera for financial support.

Tribunal's Finding on Psychological Support
23. The Tribunal's reasoning on this issue was as follows (at 8)

"The meaning of the requirement in the definition of 'dependent' in subregulation 2(1) of the Regulations that a person be "wholly or substantially dependent on another person for ... psychological ... support" was considered by the Tribunal in Re Meyer IRT decision No. Q90/00075 delivered 16 January 1991. The Tribunal there referred to R. v Immigration Appeal Tribunal, ex parte Bastiampillai

(1983) 2 All ER 844 where Glidewell J said that the normal love and affection of a united family would not, in itself, constitute "emotional dependence". He suggested, however, that a woman who had recently been widowed and whose adult son or daughter had previously been living close to her might well be said to be emotionally dependent upon that son or daughter. The legislation which he was considering in that case did not refer expressly to "emotional dependence" and the point that he was making - that "dependence" should not be restricted to financial dependence - is covered by the definition of "dependent" in the Regulations. Nevertheless, his observation seems sound. There will be cases where a relationship between a parent and son and daughter goes beyond the normal ties of love and affection and may be termed "emotional" or "psychological" dependence. Such cases can occur when a person is widowed and that is what has occurred in this case.

However, with the exception of the period between 26 June 1989 until 23 April 1990 because of "domestic upheaval" Mrs Pashwa has at all times resided with Zinnet Harding and has done so since her arrival in the United States in 1980 while Shirin Chakera may have communicated with her mother by telephone on a regular basis and had her mother stay with her for a time in 1986 and 1989, the Tribunal finds that the test of "emotional dependency" is not satisfied by these facts. Nor does Shirin Chakera's cultural obligations to care for her aged mother override the relevant legislative criteria. It appears far more likely that at the date of her application, the principal was psychologically 'dependent' on Zinnet Harding and had been so since her arrival in the United States."

1. It was not suggested by either counsel that "psychological" was used in reg.2(1) in a medical or scientific sense. The regulations are not speaking of some kind of clinical phenomena as for example when one speaks of psychological dependency on tobacco. Rather the term is concerned with, to quote one of the meanings given in the Oxford English Dictionary, "the attitude or outlook of an individual or a group on a particular matter or on life in general" or "the mental states and processes of a person" (Macquarie Dictionary). So understood, "psychological support" directs attention to matters of the mind and spirit as distinct from material support in physical or financial form.

2. But the Tribunal did not attempt to apply the test prescribed by law. It adopted a different test, namely that of "emotional dependency". It seems to have been led into this error by a misapplication of the English decision in R v Immigration Appeal Tribunal, Ex parte Bastiampillai (1983) 2 All ER 844. The statutory term that Glidewell J had to consider was a requirement in par.48 of the Immigration Rules (UK) that persons were to be "wholly or mainly dependent" on children settled in the United Kingdom. In that context his Lordship said (at 851):
   

"Counsel for the Secretary of State, in relation to the second argument, agrees that in appropriate circumstances it was right for the Secretary of State, and thus an adjudicator on appeal, to take emotional dependence into account. But he says that it is very much a subsidiary matter, that is to say subsidiary to financial dependence. The rule, he argues, is essentially concerned with persons likely to be financially dependent and if emotional dependence is to be taken into account it must mean something more than ordinary family affection. With that I agree. In my judgment, reference to dependence of parents on their children primarily means financial dependence. But I can see that, if the Secretary of State, or the adjudicator on appeal, is in doubt whether an applicant is mainly dependent on a child financially, then other types of dependence may become relevant and may tip the balance. I agree with counsel for the Secretary of State that the normal love and affection of a united family is not of itself such emotional dependence. It needs more than that."

1. It will be immediately apparent that the English case was dealing with a quite different statutory provision, which is to be contrasted with the definition of "dependent" in reg.2(1). The latter specifically stipulates a criterion of psychological support and puts it on an equal footing with financial or physical support. The present case demonstrates the wisdom of the aphorism of Kitto J that "fallacy lurks in paraphrase": Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 633.

1. Counsel for the respondents argued that there was no error because the Tribunal had imposed a test which was the same as that under the regulations or, if not the same, was one more favourable to the applicant.

2. I do not accept that this is so as a matter of language. There may be some overlap between the concepts of psychological support, in the sense explained above, and emotional support but "emotional" has connotations of "affected or determined by emotion rather than reason" (Macquarie Dictionary) corresponding to that dictionary's primary meaning of "emotion" as "an affective state of consciousness in which joy, sorrow, fear, hate, or the like is experienced, distinguished from cognitive and volitional states of consciousness".

3. But the short answer is that the Tribunal was obliged to apply the test prescribed by the regulations, not some other test, whether that might be more or less favourable to an applicant. In this respect the Tribunal erred in law. As the Full Court of this Court said in Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111 at 119:
   

"... it is an error of law for a decision-maker to define a statutory criterion in terms which are not reasonably open: see Hope v Bathurst City Council (1980) 144 CLR 1 at 7-8, per Mason J; Lombardo v Commissioner of Taxation (Cth) (1979) 40 FLR 208 at 210, per Bowen CJ. There may also be an error of law if a decision-maker considers a case pursuant to criteria which are not stated by the statute in preference to the words which the statute uses: see eg Bowen CJ and Beaumont J in Cockcroft (supra) (at 190). This is because the words of the statute are the means which Parliament has adopted to convey its will. If a term is used in legislation, Parliament is to be taken as requiring that individual cases will be judged against that term, not against other terms or criteria not used in the statute."

1. This error of law is in itself sufficient for the appeal to succeed. However, as the matter will have to be sent back to the Tribunal (differently constituted) for reconsideration, it would be unhelpful for the parties to resolve the appeal in a way which implicitly accepted that the Tribunal's reasoning was free of legal error and would, or could, lead properly to the same result provided only the correct statutory formula were invoked.

2. In my opinion, a finding that Mrs Pashwa was not wholly or substantially dependent on Mrs Chakera for psychological support was not reasonably open on the evidence. The application of the reasoning used by the Tribunal has resulted in a conclusion "insufficiently supported by reason", to adopt the term used by the Full Court in Minister for Immigration, Local Government and Ethnic Affairs v Pashmforoosh (unreported, 28 June 1989) cited by Mason CJ (with whom Brennan and Deane JJ agreed) in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 359. This would be the case even if the correct statutory criteria were applied instead of the wrongly adopted test of "emotional dependence".

3. I assume, without deciding, that in the expression "wholly or substantially dependent on another for ... psychological ... support" in reg. 2(1) words are used as a matter of ordinary speech and not in any special or technical sense. The question of law then becomes whether the primary facts reasonably admit of a conclusion either way: Lombardo v Federal Commissioner of Taxation (1979) 40 FLR 208 at 210-212 per Bowen CJ, TNT Skypak (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 182 per Gummow J, HR Products Pty Ltd v Collector of Customs (1990) 20 ALD 340 at 341 per Lee J.

4. The decision in question is not a discretionary decision, like, for example, a decision to grant a licence for the carrying on of a particular business. In such cases the courts are of course concerned not to trespass into the area of legitimate administrative discretion and impose the court's view on the particular merits of the case: see Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36-38 per Brennan J But the decision-maker in the present case is not given a discretion to decide whether or not a person is "wholly or substantially dependent on another person for ... psychological ... support", any more than it is given a discretion to decide whether a person is "an Australian citizen resident in Australia" or "widowed".

5. In its reasoning the Tribunal thought that Mrs Chakera's "cultural obligations to care for her aged mother (did not) override the relevant legislative criteria". But in truth there was no question of "overriding" the criteria. To the extent that the mother's dependence on her eldest daughter was founded in their particular cultural background or reinforced by it, I do not see how that can be excluded from a proper consideration of the question whether the legislative criterion of psychological support was satisfied. It is not clear whether the Tribunal's reference to "cultural obligations" was intended to include the religious element. But the way the Tribunal resolved the issue seems to ignore what is surely a major feature of this case. This old lady finds herself, after a long and unsettled life, in a foreign country in a household bare of any religious or spiritual support, indeed one where the daughter and grandchildren with whom she is living have abandoned the religion of her birth. In this setting she has only her eldest daughter to turn to for advice, sympathy and support.

6. Even more surprising is the Tribunal's reasoning that Mrs Pashwa is not psychologically dependent on Mrs Chakera because she is psychologically dependent on somebody else, namely Mrs Harding. Notwithstanding the submissions of counsel for the respondents, this seems to have been a finding of fact which the Tribunal treated as essential in reaching its conclusion.

7. When asked to identify the evidence which could support a finding that Mrs Pashwa was psychologically dependent on Mrs Harding, the only matter counsel could point to was the fact that they lived in the same household. Even that contention has to be qualified by the evidence that in the three years prior to the application of 2 August 1990 Mrs Pashwa was not living with Mrs Harding for almost half the time. In late 1987 she was in the United Kingdom for about five weeks. At the beginning of 1989 she spent six months in Australia with Mrs Chakera and then returned to the United States, but only to spend ten months with her friend Mrs Felfoldi because of "domestic upheaval" in the Harding household.

8. As I read its reasons, the Tribunal was not speaking of residence in any technical private international law sense, where residence may continue notwithstanding long periods of physical absence. The fact that Mrs Pashwa was absent from the Harding household for a substantial period not only diminished the validity of the bare finding as to her residence with Mrs Harding. The reasons for that absence, namely staying with her daughter Mrs Chakera because of their lifelong closeness and her friend Mrs Felfoldi to avoid "domestic upheaval", in themselves point strongly against any conclusion that there was dependence for psychological support on Mrs Harding.

9. In any case, merely residing under the same roof with Mrs Harding might be relevant to the quite separate issue of financial support, but in itself is equivocal as to psychological support. It is an unhappy fact of life that people can live together with no psychological support whatsoever, indeed psychological antipathy. And Mrs Harding herself says:
   

"My mother needs to live with my sister for emotional and psychological reasons. As my sister is tolerant of my mother's beliefs, my mother has always felt closer to her eldest child, whereas all the other children left home at a very young age for the purposes of study."

Again she says:

"I am aware from my younger days of my mother's attachment to my older sister. Since her visit in Australia it has always been her desire to move to stay with my sister since she has been dependent on her financially and psychologically. Furthermore, had my sister Shirin not looked after her mother-in-law, then my mother invariably

(sic) would have stayed with her."

1. The Tribunal did not suggest, and counsel on this appeal did not argue, that on the evidence Mrs Chakera was self-sufficient psychologically and did not receive or need support from anybody in that regard. If she was dependent on somebody for psychological support, as distinct from financial or physical support, the conclusion that the main or substantial support of that nature came from Mrs Harding rather than Mrs Chakera could not be sustained on any reasonable view of the evidence.

2. The support of Mrs Chakera had existed for many years prior to 1990, indeed probably back to the early 1970s, so no question arises as to the three year policy direction.

Orders
41. The appeal will be allowed with costs, including reserved costs. The decision of the Tribunal dated 26 February 1992 is set aside. The application will be remitted to a division of the Tribunal differently constituted for reconsideration in accordance with these reasons.