Cole v Minister for Immigration
[2004] FMCA 456
•23 July 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COLE v MINISTER FOR IMMIGRATION | [2004] FMCA 456 |
| MIGRATION – Review of decision of Migration Review Tribunal – refusal to grant change of circumstances (residence) visa subclass 806 (family) – Tribunal’s use of website material – whether breach of natural justice and requirements of s.359A of the Migration Act. |
Migration Act 1958, ss.359A, 359A(4)(a)
Minister for Immigration & Multicultural & Indigenous Affairs v Awan (2003) FCAFC 140 (26 June 2003).
Singh v Minister for Immigration and Multicultural Affairs (2001) FCA 1679
Tin v Minister for Immigration and Multicultural Affairs (2000) FCA 1104 VAAM v Minister for Immigration and Multicultural Affairs (2002) FCA FC 120
WAGP of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs (2002) FCAFC 266
Hussein v Minister for Immigration & Multicultural Affairs (1999) FCA 1621
| Applicant: | ANDREW BRIAN COLE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 1198 of 2002 |
| Delivered on: | 23 July 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 15 October 2003 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Kissane |
| Solicitors for the Applicant: | Karthigesu P. Aravindan |
| Counsel for the Respondent: | Mr C.G. Fairfield |
| Solicitors for the Respondent: | Blake Dawson Waldron |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 1198 of 2002
| ANDREW BRIAN COLE |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant seeks review of a decision of the Migration Review Tribunal (the MRT) handed down on 10 September 2002 which had affirmed a decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs refusing to grant a change of circumstances (residence) (class AG) visa subclass 806 (family). The decision of the delegate was made on 19 January 2001.
The applicant had applied for a change of circumstances visa on 30 July 1998. The applicant in support of the change of circumstances claim has referred to there being special needs which arose from the applicant's relationship with his sister. The applicant has asserted that his grounds are established by virtue of his sister being a special need relative. The sister, who I shall refer to as the nominator, is described in the application by the applicant as a person suffering from depression. In particular, when asked the question “What circumstance has led to your relative needing your assistance?, the applicant answers, “My uncertain status has caused her depression.”
When asked to give details about the nominator's other relatives the applicant in the application states, “Her husband is the only person, apart from me, but they both need my assistance.”
When referring to assistance being sought from any Australian welfare organisation, doctor or health professional or the like the applicant in the application states, “She visits her family doctor regularly for treatment for lack of sleep/loss of appetite.”
The application relied upon is an amended application filed 13 May 2003. The applicant, in addition to making oral submissions, has also relied upon contentions of fact and law also filed 13 May 2003. The respondent, in addition to making oral submissions, has relied upon written contentions of fact and law filed on 19 August 2003.
In the amended application the applicant refers to the details of claim in the following terms:
“1.The decision of the Tribunal was made without jurisdiction or was affected by error of jurisdiction.
2.The decision of the Tribunal being affected by jurisdictional error is not a decision to which section 474 of the Migration Act as amended applies.
3.The decision of the Tribunal is affected by jurisdictional error in that the decision was made in breach of rules of natural justice.
Particulars:
i) The Tribunal misinterpreted and/or misunderstood the criterion that the Applicant is a 'special need relative' as defined by regulation 1.03 in that it failed to consider or adequately consider the Applicant's claims and the evidence in support of these claims.
ii)It acted in breach of the rules of natural justice and/or the duty of procedural fairness in that it failed to give the Applicant an opportunity or an adequate opportunity to respond to information available to the Tribunal and obtained by it from the internet about the depression suffered by the nominator of the Applicant.
iii)It acted in breach of the rules of procedural fairness by failing to comply with the procedures required by section 359A of the Migration Act by failing to give the Applicant the opportunity to comment on information available to it, and to comment on the relevance of such information, about clinical depression obtained from the internet.
iv)It acted in breach of the rules of procedural fairness by failing to comply with the procedures required by section 359A of the Migration Act by failing to indicate the relevance of and to give the Applicant the opportunity to comment on the failure of the Applicant to mention the asthma suffered by the nominator in the visa application.
v)It failed to deal with and/or consider the case as presented and/or the claims of the Applicant in that its decision failed to deal with the claim that the nominator suffered prolonged illness being depression and/or asthma and to consider each of these matters both at the time of application and time of decision.
vi)It failed to deal with and/or consider the case as presented and/or the claims of the Applicant in that its decision failed to deal with the question of whether the Applicant is willing and able to provide substantial and continuing assistance.
4.Further or in the alternative, the decision of the Tribunal is affected by jurisdictional error in the Tribunal asked the wrong question, identified the wrong issue, failed to take account relevant material and took into account irrelevant material.
Particulars
The Applicant refers to and repeats the particulars set out in paragraph 3 above.
5.Further, or in the alternative, the decision of the Tribunal was made in breach of an imperative duty imposed on the Tribunal or an essential pre-condition to or inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by s65 to grant or refuse the application. As a result the Tribunal exceeded its jurisdiction and/or constructively failed to exercise jurisdiction.
Particulars
The Applicant refers to and repeats the particulars set out in paragraph 3 above.”
In support of the application the applicant had drawn the court's attention to a passage in the MRT’s findings concerning the weight the tribunal would give to the evidence of a psychologist whose report had been produced in support of the applicant's claim. In particular, it is appropriate to set out the following relevant paragraphs from the MRT’s decision:
“39. The Tribunal must determine whether at the time of application the nominator has a permanent or long term need for assistance because of death, disability, prolonged illness or other serious circumstance affecting the nominator personally or a member of her family unit. There is no claim that assistance is required due to death or disability. In relation to whether the nominator requires assistance due to prolonged illness, either of her own or of a member of her family unit, the nominator gave evidence that she has suffered from asthma since 1998. It was not mentioned in the visa application. It was first mentioned in a medical report dated May 1999. The nominator has never required hospitalisation as a result of her asthma. The nominator was working at the time of application. The Tribunal finds that at the time of application the nominator's asthma (if she suffered from it at this time) did not amount to a prolonged illness that required long term assistance or it would have been mentioned in the visa application.
40. The visa applicant has also claimed that his uncertain status has caused the nominator to suffer from depression, that she visited her family doctor regularly for treatment of sleeplessness and loss of appetite. There was no medical evidence provided at the time of application to support this claim. A psychological report dated 21 March 2001 from Mr Irvin De Jong stated that the nominator has `reactive depression' and a severe level of anxiety which is `generated and maintained by the stressors in her life, these stressors are factors in her life, her husband's illness and her inability to have any of her immediate family with her.' The Tribunal notes the report states "purpose of assessment... `to determine if the applicant, Mr Andrew Cole `satisfied the requirements of a special need relative on the basis of ongoing emotional needs of the nominator.'" The report then goes on to quote the special need relative definition in regulation 1.03. It is of some concern that the report is couched in this way, as whether the visa applicant is a "special need relative" is a legal test set out in the Regulations and the very issue that the Tribunal must determine. Further, whether someone is a special need relative does not equate with them having "ongoing emotional needs". Although a psychologist may be qualified to comment on aspects of a person's condition and even to offer an opinion that they are suffering from a recognised psychological condition it would appear to the Tribunal that they are not qualified to determine whether someone is a "special need relative" which is not a recognised psychological condition.
41. The Psychologist has not diagnosed that the nominator suffers from the mental illness characterised as clinical depression. The Department of Human Services website indicates that there are a wide variety of treatments available to people suffering from clinical depression. The website (see Department of Human Services: What is depression? goes on to describe the different types of clinical depression that are regarded as mental illnesses. The psychologist has not recommended any of these treatments. The only "treatment" he proposes is that the visa applicant be permitted to stay in Australia. Similarly the Psychologist has not diagnosed that the nominator suffers from the mental illness characterised as an anxiety disorder. The Department of Human Services website describes the different types of anxiety disorders that are regarded as mental illnesses. The website also indicates that there are a variety of treatments available to people suffering from anxiety disorders. However again the only "treatment" he proposes is that the visa applicant be permitted to stay in Australia. The psychological evidence does not diagnose the applicant as suffering from any psychological disease or disorder. It confirms that she is under stress because of her husband's illness and concerned that her brother may have to return to Sri Lanka. The Tribunal finds based on the medical evidence that her depression does not amount to a prolonged illness.”
It is clear from paragraph 41 that there is an error in that paragraph namely in the sentence “The psychological evidence does not diagnose the Applicant as suffering from any psychological disease or disorder” should refer to the “nominator” and not the “Applicant”.
After referring to those paragraphs the applicant's counsel submitted that in the circumstances the use of the material obtained from the website of the Department of Human Services had been improperly used by the MRT and it had thereby failed to comply with s.359A of the Migration Act 1958 (the Act). That section provides as follows:
“359A Applicant must be given certain information
(1) Subject to subsection (2), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3)repealed
(4) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application; or
(c)that is non-disclosable information.”
In the alternative it was submitted by the Applicant that reliance upon the website material from the Department of Human Services, in any event, was sufficient to constitute a breach of the rules of natural justice. It was argued that the breach of the requirement that the applicant must be given certain information pursuant to s.359A of the Act is a breach which would be sufficient to constitute jurisdictional error. In the alternative, the breach of procedural fairness or natural justice in not giving the applicant an opportunity to provide evidence and/or to comment upon the material obtained by the tribunal from the website would be sufficient to constitute a breach of natural justice or procedural fairness of a kind which otherwise would attract the operation of a successful review of this application by providing a basis for a finding that there had been jurisdictional error.
It was submitted on behalf of the respondent that the use of the MRT of the material obtained from the Department of Human Services’ website was no more than an illustration of the findings and reasons given by the tribunal in the context of this case. As such, it could not be suggested that this information would be information of a kind which the tribunal could properly be said to constitute its reasons or part of its reasons for affirming the decision under review.
In the alternative, the respondent submitted that the material referred to in the Human Services' website would not constitute information. It was further argued that, in any event, even if the court were to be satisfied that there was a breach of s.359A of the Act, that this was not a breach of a kind which would constitute jurisdictional error. Reference was made to the decision of the Full Court of the Federal Court in the matter of Minister for Immigration & Multicultural & Indigenous Affairs v Awan (2003) FCAFC 140 (26 June 2003). Whilst the Court in that case unanimously dismissed an appeal relating to an issue of whether there was a failure by the tribunal to comply with its obligations under s.359A of the Act, particular reference was made by the Respondent to the decision of Gray ACJ and the Court was invited to conclude that His Honour’s decision was incorrect. It is sufficient to note that it would not be appropriate for this Court to make a finding of that kind as it is bound to follow the decision of the Full Federal Court. It is appropriate to set out relevant passages from the decision of Gray ACJ as follows:-
“5 At some point, the Tribunal must have reached the state of mind that it considered that there was information that would be the reason, or a part of the reason, for affirming the delegate's decision. That information fell into two categories. The first category was a statement or statements made at an earlier hearing by the Tribunal, differently constituted, in relation to the cancellation of an earlier visa. The second category consisted partly of a statement made to that Tribunal hearing and partly of a statement made to an officer of the Department of Immigration and Multicultural Affairs (now the Department of Immigration and Multicultural and Indigenous Affairs) (in both cases, "the Department") on the occasion when Mr Awan lodged his application, the rejection of which by the delegate of the Minister became the subject of the review the Tribunal was conducting. It was the inconsistency between these two statements that was part of the reason for the Tribunal taking an adverse view of Mr Awan's credit.
6 The precise moment at which the Tribunal came to the state of mind contemplated by s 359A, that the information concerned would be the reason, or a part of the reason, for affirming the decision of the delegate does not matter. Section 359A requires compliance by the Tribunal once it has reached that state of mind, even if that point of time is immediately prior to the time at which the Tribunal would otherwise wish to give a decision.
7 The exception in s 359A(4)(a) did not apply. The information was specifically about Mr Awan, who was the applicant. It is unnecessary to consider what, in many cases, will be the very real difficulties created by the form of the second limb of that exception.
8 The exception in s 359A(4)(b) perhaps causes greater difficulty. It has been held that what a person who later applied for a protection visa said in an interview at the airport upon the person's arrival in Australia was not information that the person gave "for the purpose of the application". See Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919 (2001) 110 FCR 27. In that case, for the reasons their Honours gave, the Full Court considered that the words "the application" in the equivalent provision in s 424A of the Migration Act were apt only to refer to the application before the Refugee Review Tribunal, that being the application to review a decision of a delegate of the Minister. Their Honours did not advert specifically to s 418(3) of the Migration Act, which has the effect that the Refugee Review Tribunal will be supplied with all of the documents held by the Department relevant to the review of a decision of a delegate. The equivalent provision in the case of the Tribunal is found in s 352(4). At least in most cases, this will include any information supplied by an applicant at an earlier stage of dealing with an application for a visa. In view of the fact that in all cases the Tribunal will have before it as a matter of course the documents available to the delegate who considered the application for the particular visa, it might be thought that parliament did not intend that the Tribunal should have to provide particulars of information in those documents to an applicant seeking review of the delegate's decision. In relation to information from elsewhere, s 57 imposes an obligation on the Minister and the Minister's delegates in terms similar to those imposed on the respective tribunals by ss 359A and 424A. An applicant could be expected to be cognisant of what he or she had said, at least in relation to an application for a particular visa. I am therefore inclined to the view that the words "the application" in s 359A and s 424A(3)(b) of the Migration Act are more apt to mean the application for the visa in question, and not just the application to the relevant tribunal for review of a decision of a delegate refusing the visa.”
The Respondent submitted that all that occurred in the present case was that the MRT having made observations about the content of the psychologist's report in the paragraphs which have been referred to earlier in this judgment did no more than simply proceed to refer to another source of information to identify forms of treatment.
Reasoning
In my view, it is appropriate to consider whether there has been a breach of s.359A. I note in passing the reference to the material as being no more than a reference in the circumstance of illustrative material. However, when one reads paragraph 41 of the MRT’s reasons for decision it seems clear that the tribunal acknowledges that in the circumstances the psychologist has not diagnosed that the nominator suffers from ‘clinical depression’ or ‘anxiety disorder’. Ironically, having made that observation and having analysed the psychologist's report to conclude quite properly that the only treatment proposed in that report was the applicant be permitted to remain in Australia, it was unnecessary for the MRT to access the website at all.
It is equally ironic that by accessing the website against the backdrop of a finding that the nominator had not been diagnosed as a person suffering ‘clinical depression’ or ‘anxiety disorder’ it is clear to me that the nominator, who is the relevant "other person" for the purpose of subsection 359A(4)(a) could not properly be regarded as being a person to whom the information taken off the website would be about or that she would be a class of persons or a member of a class of persons about which the information applies. The information clearly applies to a class of persons suffering from clinical depression or anxiety disorders Hence I am satisfied that the exception in subsection 359A(4)(a) does not apply.
The MRT then proceeds to look at the various types of clinical depression on the website and the types of anxiety disorders and the treatment for each condition despite having noted that the nominator has not been diagnosed as suffering from either condition. The MRT concludes in paragraph 41 that “The psychological evidence does not diagnose the applicant as suffering from any psychological disease or disorder”.
One would have to assume that conclusion is drawn after analysis and access to the website information. The MRT seems to have difficulty accepting that evidence from a psychologist may be appropriate evidence of a psychological condition and although noting that the psychologist refers to the nominator suffering from “reactive depression” and “a severe level of anxiety” then refers to there being no medical evidence provided “at the time of the application to support” the claim of the nominator suffering from depression. Whilst it is clear that the psychologist report does not specifically refer to “clinical depression” or “anxiety disorder” there seems to be based on the access to the website information some reliance upon that material in the MRT drawing a conclusion that the psychological evidence does not diagnose the Applicant as suffering from “any psychological disease or disorder”. The website information reference is only made to clinical depression and anxiety disorders. It is equally clear that the report from the psychologist, as noted by the MRT in paragraph 40, reveals that according to the psychological report the nominator has "reactive depression" and "a severe level of anxiety".
In the circumstances it is difficult to conclude that this material is anything other than material which could properly be characterised as information of a kind that should be given to the applicant pursuant to s.359A of the Act. I am satisfied that the information is information which at least forms part of the reason of the MRT for affirming the decision under review. Had that information accessed by the tribunal on the website been brought to the attention of the applicant, then he at least would have had an opportunity to refer the information to the psychologist who had prepared the report and perhaps a supplementary report prepared clarifying the diagnosis and/or at least meeting arguments concerning the lack of treatment.
In one sense it is unfortunate that the MRT even bothered to access the website as it may well have been entitled to in the circumstances draw a conclusion that the applicant had not received treatment for the conditions as diagnosed by the psychologist, namely, reactive depression and a severe level of anxiety and upon drawing that conclusion may well have then been entitled to draw the conclusion that there was on the evidence insufficient material to make a finding that the depression and/or anxiety did not amount to a "prolonged illness".
However, in the circumstances I am prepared to find that there has been a breach of the requirement of s.359A and/or a breach of the rules of natural justice in failing to alert the applicant in the present case to the conclusion that the tribunal was going to draw based upon material it had accessed on a website. There is a significant danger in accessing information on a website. Information, particularly of a medical or expert kind, remains untested. It ought to be put to those who provided expert reports and the MRT ought not seek independent expert advice in the form of website material without bringing to the attention of the applicant that it is seeking to do so.
Expert medical advice is advice of a particular kind and ought to be subject to proper testing or at the very least applicants should be given the opportunity to properly test that evidence in the appropriate forum. It is dangerous for courts or tribunals to access material which sometimes may be voluminous on websites, whether government websites or otherwise, in circumstances where the information provided on those websites may be significant and indeed lead a tribunal/court to draw an adverse conclusion against the interests of a party appearing before it without giving that party the opportunity to properly analyse and test the basis of that material or indeed test whether it is valid.
The reason I did not accept that the exception provided by subsection 359A(4)(a) does not apply is that on the material it clearly does not apply to a class of persons to whom the nominator belongs. Hence the material otherwise relied upon to provide a basis upon which the psychological evidence is rejected seems more likely to be material going to the issue directly of what may or may not constitute psychological disease or disorder. It is that threshold issue which seems to have been decided in part by reliance upon the website information which as I have indicated should have been provided to the Applicant for comment either by him or the expert relied upon. Whilst the MRT’s reservations about the evidence of the psychologist are understandable it could have simply rejected that evidence without resort to and/or reliance upon website information which in part it used to determine the crucial issue of whether or not there was evidence that the nominator suffered from any psychological disease or disorder.
It is further argued by the applicant that the MRT had wrongly relied upon the omission from the application of any reference to the nominator's asthma. In particular, reference was made to paragraph 39 of the reasons for decision to which I have referred to earlier in this judgment. It is argued on behalf of the applicant that by failing to mention that the MRT would rely upon the omission to mention asthma in the application that the tribunal again has breached the requirements of s.359A.
The respondent by way of reply submitted there has not been any breach arising from the facts asserted by the applicant. The respondent otherwise relied upon the authority of the case of Singh v Minister for Immigration and Multicultural Affairs (2001) FCA 1679 per Merkel J, and in particular, paragraph 25 of that judgment where his Honour states the following:
“25 In Al Shamry the Full Court held that the obligation of the RRT under s 424A was enlivened as the information relied upon by the RRT was information provided by the applicant at his airport interview which was inconsistent with later statements by him. The present case, however, is not concerned with earlier inconsistent statements; it is concerned with a perception (on the part of the RRT) of a lack of specificity and detail in the earlier statements. In those circumstances the complaint of the applicant is not in respect of the failure to provide particulars of information set out in the original application form. Rather, the complaint is about the information that was not set out in the original application form. Thus, the Minister is correct in contending that the information "in question in the present case is the subjective appraisal or thought process of the RRT in determining that the information provided by the applicant in his original application lacks specificity and detail". Put another way, it is the RRT's qualitative assessment of the information provided in the original application form, rather than its content, that was a reason for the RRT affirming the decision of the delegate of the Minister. As was explained by Sackville J in Tin at [53]-[54] and by Allsop J in Paul at [95] the reaches of s 424A do not extend to embrace that kind of ‘information’.”
Further reference was made to other decisions including Tin v Minister for Immigration and Multicultural Affairs (2000) FCA 1104 at [51] to [54], VAAM v Minister for Immigration and Multicultural Affairs (2002) FCA FC 120 at [13], WAGP of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs (2002) FCAFC 266 at [27] to [29].
In my view, a proper reading of paragraph 39 and the reference by the MRT to asthma should be undertaken in the context of the whole of that paragraph. It was open to the MRT to find in its fact-finding mission that in the circumstances given there was no mention of the asthma in the visa application, that it may not have been of significance at that time. There is of course a chronological issue that, on the one hand, the nominator claims to have suffered from asthma since 1998, but does not indicate whether that occurred prior to or after July 1998 when the application was filed. The tribunal, however, goes on to state that the nominator had never required hospitalisation as a result of asthma and that she was working at the time of the application.
Accordingly the combination of those findings were open to the tribunal and enabled it to further find that the asthma suffered by the applicant, if indeed it was suffered at the time of the application, was not sufficient to amount to a prolonged illness. In the circumstances,
I am satisfied that the MRT perception of the significance of the absence or omission to refer to asthma in the application is no more than just that and is not an issue relating to information of a kind which would otherwise attract the operation of s.359A of the Migration Act and no jurisdictional error arises in the context of the reference to the failure to refer to asthma in the application.
The matter then requires the court to consider the issue of whether there has indeed been any practical unfairness. A number of issues were referred to by the respondent which arise out of the claimed jurisdictional error. The matter which causes me significant concern was the third of four items referred to by the respondent; namely, that in the present circumstances the tribunal was able to, in any event, make a finding as it did that in all the circumstances it was able to find that the nominator did not have a need for substantial assistance. It is appropriate to set out the relevant paragraphs of the tribunal's decision on this issue:
“47. Although given the findings above regarding the existence of a relevant prolonged illness or other serious circumstances it is not necessary for the Tribunal to consider whether the nominator has a need for substantial assistance the Tribunal notes that the assistance that the visa applicant provides in relation to her asthma is in the way of domestic assistance and help with the children which does not amount to substantial assistance within the meaning of the regulations. In relation to her depression the visa applicant has indicated that his assistance is in the way of companionship and his presence alleviates her depression as it is caused by her fear that the visa applicant may have to leave. The mere presence of a person does not amount to providing assistance. Nor can it be said that a person would render assistance in relation to a circumstance, if the circumstance might return should the relative return to another country. In Hussein v Minister for Immigration and Multicultural Affairs, Emmet J said:
It is significant that the expression that is relied upon by the applicants appears at the end of a phrase, namely, "because of death, disability, prolonged illness or other serious circumstances affecting the citizen". That is to say "serious circumstances" must be considered in the context of "death, disability and prolonged illness". All three of those matters are obviously serious. What constitutes "other serious circumstances" must be construed in the light of those concepts[16].
….
50. The visa applicant provided assistance when the nominator and her family suffered from chicken pox however this assistance was of short duration and the family has fully recovered. The nominator's husband has taken on an extra employee to help him in his business since he suffered the heart attack the major assistance he requires is being provided by someone other than the visa applicant.
51.Therefore the Tribunal is not satisfied that the nominator at the time of application had a permanent or long term need for assistance because of death, disability, prolonged illness or other serious circumstance affecting the nominator personally or a member of her family and that the assistance it is proposed the visa applicant will provide is not substantial. The Tribunal finds that as at the time of application the visa applicant is not a special need relative in relation to the nominator and therefore cannot meet the criteria in 806.211 and 806.213.”
In my view notwithstanding the concerns I have relating to the use of website information, I am satisfied that there is no practical unfairness having regard to the findings by the MRT which were open it that the nominator did not have a need for substantial assistance. That finding was open to the tribunal and despite the fact that I would be prepared to otherwise find that there has been jurisdiction error as a result of the breach of natural justice by failing to give the Applicant an opportunity to comment on the website information, I am satisfied that it was open to the MRT to make a finding as to whether or not the nominator required substantial assistance and further find that the assistance provided by the Applicant does not amount to substantial assistance within the meaning of the regulations. It was further open for the MRT to find that the mere presence of a person or companionship does not amount to providing assistance. I accept that the MRT had otherwise correctly applied the reasoning in Hussein v Minister for Immigration & Multicultural Affairs (1999) FCA 1621 to the effect as submitted by the Respondent that a person does not render assistance in relation to a nominator’s condition if that condition might return upon the assisting party leaving the country.
In the circumstances the critical finding in relation to the question of substantial assistance would in any event otherwise defeat the claim and although I have expressed concern in relation to the use of website material it is my view that on balance there is insufficient to justify judicial review of the decision.
Accordingly it follows the application should be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 23 July 2004
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