De La Zilwa v Minister for Immigration
[2004] FMCA 10
•17 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DE LA ZILWA & ORS v MINISTER FOR IMMIGRATION | [2004] FMCA 10 |
| MIGRATION – Application for review of decision of the Migration Review Tribunal refusing to grant the applicant a class AO family (residence) visa – special need relative – whether the Tribunal erred in its construction of Regulation 1.03 requiring the applicant to establish that the nominator suffered a medical condition – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.474, 474(1)
Judiciary Act 1903 (Cth), s.39B
Migration Regulations 1994, Regs, 1.03, Clause, 806.231
Craig v South Australia (1995) 184 CLR 163
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598
Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf (2001) 180 ALR 1
Wu v Minister for Immigration and Multicultural and Indigenous Affairs (2000) FCA 1817
| Applicant: | DORIS PAULINE DE LA ZILWA & ORS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 504 of 2002 |
| Delivered on: | 17 February 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 26 February 2003 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Mr Hurley |
| Solicitors for the Applicant: | Armstrong Ross |
| Counsel for the Respondent: | Ms Riley |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That the Application be dismissed.
That the Applicant pay the Respondent’s costs fixed in the sum of $6,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 504 of 2002
| DE LA ZILWA & ORS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
In these proceedings the applicant, a citizen of Sri Lanka, seeks relief under s.39B of the Judiciary Act 1903 (Cth) (the Judiciary Act) in respect of a decision of the Migration Review Tribunal (the Tribunal) made on 30 April 2002. The MRT affirmed the decision of a delegate of the respondent (the Minister) given on 19 October 2001 to refuse to grant to the applicant a class AO family (residence) visa.
Background
The applicant is a national of Sri Lanka who was born on 11 May 1960. She arrived in Australia with her husband and their two children on 28 November 1994 as holders of tourist visas. On 25 July 1997 the applicant lodged an application for a class AO family (residence) visa on the basis that she was a special need relative of her mother (the nominator). The nominator is an Australian citizen. She was born on 20 December 1925. She has two children, a son and the applicant in these proceedings. She travelled to Australia as a visitor in March 1990. In 1992 she was granted a Parent visa to remain in Australia permanently. She became an Australian citizen on 18 June 1996. The second applicant is the husband of the applicant and the third and forth applicants are their children. The applicant's husband and their two children were added to the primary application. In her application, the applicant claimed that the nominator suffered from depression and psychological pain and that the applicant provided support to the nominator by means of emotional, physical and psychological support.
On 19 October 2001 a delegate of the Minister refused to grant a visa to the applicant. On 30 April 2002 the MRT affirmed the delegate's decision.
At the time the visa application was lodged, Clause 806.231 of the Migration Regulations 1994 (the Regulations) set out the primary criterion applicable to visa subclause 806 (family):
"806.213 The applicant is an aged dependent relative, an orphan relative, a remaining relative or a special need relative of another person who
is a settled Australian citizen, a settled Australian permanent resident or a settled or eligible New Zealand citizen; and
is usually resident in Australia; and
has nominated the applicant for the grant of the visa."
Clause 806.221(1)(a) requires the applicant to continue to satisfy the above criterion at the time of the decision. Thus both at the time of application and the time of decision, the applicant was relevantly required to be a "special need relative" of an Australian citizen who is usually resident in Australia and who has nominated the applicant for the grant of the visa.
The definition of "special need relative" is set out in Regulation 1.03:
"Special need relative, a special need relative in relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or an eligible New Zealand citizen, means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:
(a)the citizen or resident has a permanent or long term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and
(b)the assistance cannot reasonably be obtained from:
(i)any other relative of the citizen or resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or
(ii)welfare, hospital, nursing or community services in Australia."
When the applicant's visa application was considered by the Minister's delegate he relied upon a report from a psychologist, Mr Kleynhans, dated 15 September 1997. At the applicant's review before the MRT the applicant submitted a further report from Mr Kleynhans dated
17 December 1997 which related to an assessment on 29 November 2001.
The MRT found that the applicant was not a special need relative of the nominator within the general meaning of Regulation 1.03 at the time of the application (25 July 1997) and therefore did not satisfy Clause 806.213 of Schedule 2 of the Regulations.
The applicant's contentions
The applicant contends:
a)That the MRT erred in law in it’s construction of the definition of "special need relative" in Regulation 1.03 of the Migration Regulations in relation to the phrase"….disability, prolonged illness…" In particular the Tribunal erred by requiring the applicant to establish the nominator suffered a medical condition which required pharmacological management and the conditions were not met where the nominator had a disability or prolonged illness which did not require pharmacological management;
b)The MRT erred in law by failing to consider whether the evidence as to the circumstances of the nominator in July 1997 for the purposes of clause 806.213 of the Migration Regulations constituted the applicant a "special need relative" to the nominator; and
c)The MRT erred in law by holding that a medical condition could not be found to have existed in fact at a time earlier than the condition was diagnosed by a medical practitioner.
The MRT's findings
The MRT considered whether the applicant was 'special need relative' at the time the visa application was made and the applicant remained a 'special need relative' at the time of the decision. The Tribunal considered whether the nominator had a permanent or long term need for support because of death, disability, prolonged illness or other serious circumstances at the time of the application.
The Tribunal noted that the nominator was diagnosed with hypertension in 1995 and it accepted that this was a prolonged illness at the time of the application. However, it considered that the report of Dr Dawood indicated that this condition did not require pharmacological management until 2001. The Tribunal found that this condition did not give rise to a need for substantial and continuing assistance. The Tribunal accepted that Mr Kleynhans' report dated
15 September 1997 indicated that the nominator suffered from a moderate level of depression and mild anxiety. The Tribunal noted that this was only the first consultation between Mr Kleynhans and the nominator, and that this report when read in conjunction with Dr Dawood's information on the nominator’s health did not support a finding that the depression and anxiety amounted to a prolonged illness at the time of the application which required treatment or created a need for substantial assistance.
The Tribunal considered whether the nominator exhibited emotional and psychological needs and whether these needs alone or in conjunction with the nominator's age and state of health constituted other serious circumstances at the time of the application. The Tribunal noted that both the applicant and nominator referred to the loneliness of the nominator.
The MRT then went on to cite from Wu v Minister for Immigration and Multicultural and Indigenous Affairs (2000) FCA 1817 where the Full Court said:
"That is, the circumstance is sufficiently serious that, in relation to a citizen, it would require assistance of the same sort that would be required if the citizen was suffering from a disability or prolonged illness. In our opinion, if a citizen or a member of the citizen's family unit is in circumstances which create a need for substantial and continuing assistance of the citizen and the circumstances do not arise because of the death of a member of the family unit or the disability or prolonged illness of either the citizen or the member of the family unit then those circumstances are intended to be comprehended by the expression "other serious circumstances"."
The Tribunal accepted that the Statement of Reverend De Krester, that it was the wish of the nominator to have both of her children in Australia with her after her emigration to Australia. The Tribunal accepted that at the time of the application the presence of the applicant in Australia, together with her companionship and practical assistance contributed to the emotional and psychological well being of the nominator. The Tribunal found that the nominator and the applicant had a closer relationship than that of the nominator and her son and his wife and that she was much happier living with the applicant.
The Tribunal found that with respect to the issue of loneliness, prior to the applicant’s arrival in Australia, the work patterns of the nominator was not consistent with the applicant's claims that the nominator was alone while her son and daughter-in-law were working. The Tribunal found that the nominator worked full time between 1996 and 1999, which meant that the nominator would have been away from the applicant during work hours. The Tribunal found that there was no evidence of estrangement between the nominator and her son and only accepted that the family was generally a close one. On the evidence before it, the Tribunal found that at the time of the application the circumstances of the nominator did not fall within the meaning of other serious circumstances as provided by Regulation 1.03.
The Tribunal went on to find that at the time of the application the nominator was not in need of substantial assistance as is provided by Regulation 1.03. The applicant told the Tribunal that at the time of her application, the nominator managed to cook and undertake household tasks.
The Tribunal accepted the applicant's evidence that at the time of the application, the presence of the applicant contributed to the nominator's physical and emotional well being. However, in this case the Tribunal found that the presence of the applicant when she was not at work even if beneficial emotionally to the nominator, could not be construed as meeting the requirements of providing substantial assistance.
The Tribunal found that the nominator was close to both of her children and that even when the applicant was still living in Sri Lanka, she would have continued living with her son and his wife.
Thus, the Tribunal found that any assistance the nominator needed at the time of the application could reasonably have been provided by her son.
The Tribunal went onto set out the policy factors in PAM 3 in considering the requirements of special need relative. In particular it noted that special need relative provisions are intended to cater for situations such as:
"The death or serious prolonged illness of a spouse leaving the partner with ongoing and significant problems in both bringing up very young children and coping generally; or
An incapacitating illness or disability creating a need for physical assistance in the home.
It is policy that, in the absence of other factors, none of the following constitutes a permanent or long term need:
Financial support, companionship or general domestic assistance;
Death of a spouse; or
Assistance in bringing up children."
Did the Migration Review Tribunal err?
The Tribunal found that the applicant did not fulfil the criteria for "special need relative" at the time of the application and it did not therefore need to consider the position at the date of hearing. The gravamen of the Reasons of the Tribunal are to be found in paragraphs 53 to 58 inclusive. The applicant's attack on the decision of the Tribunal in the main relates to the findings in paragraph 53. The applicant contends that her case was predicated on two relevant circumstances:
d)The evidence of Dr Darwood that she was diagnosed with hypertension in 1995 (Court Book , at page 186); and
e)That pursuant to the report of Mr Kleynens (Court Book, at page 74-86) she was suffering from a depressive illness.
On page 78 of the Court Book, Mr Kleynens says:
"Right now her depression is moderate and her anxiety mild, however, it is my opinion that it will increase to a serious level if Pauline has to go back to Sri Lanka."
On page 79:
"She scored 11 on this test, which indicates that she suffers from mild anxiety. However, this score could go up if Pauline has to go back to Sri Lanka."
At page 80:
"According to the personality instrument and depression/anxiety test, Mrs Irene Chapman can generally manage her stress but there are times [sic] when she has problems with sadness and guilt (part of depression) as well as anger."
At page 84:
Mrs Irene Chapman is psychologically dependent on Pauline for support.
The Tribunal found that the nominator was diagnosed with hypertension in 1995 and accepted that this was a prolonged illness at the time of the application (Court Book at paragraph 53). The
Tribunal noted that there was no pharmacological management required for her hypertension until October 2001 and its conclusion that there was no evidence that the condition gave rise to a need for substantial and continuing assistance, could not reasonably be challenged.
The Tribunal then went on to consider, independently, whether the nominator’s emotional and psychological needs constituted "other serious circumstances" at the time of application. The Tribunal here noted that the applicant wished to have both children with her when she migrated to Australia and at the time of the application the applicant's presence in Australia, companionship and practical assistance, contributed to the emotional and psychological well-being of the nominator. The Tribunal accepted the nominator was happier living with the visa applicant than with her son and daughter-in-law and that the nominator was closer to the visa applicant. The Tribunal further noted that the issue of the nominator's loneliness prior to the visa applicant's arrival, the evidence regarding work of the nominator's son and daughter-in-law and the fact that the nominator worked full time between1996 and 1999 would have meant that she would have been separated from the visa applicant during her working hours.
In any event, the Tribunal also noted that the assistance needed and provided by the visa applicant at the time of application was not ‘substantial assistance’ as envisaged in Regulation 1.03. At the time of the application the evidence was that the nominator could do cooking and household tasks on her own. The Tribunal accepted that at the time of application the presence of the visa applicant, who is the daughter of the nominator, contributed to her physical and emotional well being. However, the presence of the visa applicant, when she was not at work, even if emotionally beneficial to the nominator, could not be construed as meeting the requirement of providing substantial assistance.
The argument put on behalf of the applicant was that there was a jurisdictional error on the part of the Tribunal in that the Tribunal did not consider whether the two reports of Dr Darwood and Mr Kleynens when considered together, constituted an illness which in combination, constituted a prolonged illness in terms of the Regulation. Further, it was contended that the Tribunal had blurred Mr Kleynens advice re the psychological state of the applicant with Dr Darwood's evidence of her physical state.
It was further contended that the Tribunal had construed Dr Darwood's report (which was silent on the question of depression and psychological well being) as contradicting Mr Kleynens report about these matters. In particular, it is contended that Dr Darwood was never asked about her depressive state in 1997 and that when he responded to a letter from the Tribunal, his silence in relation to depressive illness was taken by the Tribunal as contradicting Mr Kleynens and led to the Tribunal not considering whether, in combination, there was a prolonged illness.
This contention needs to be seen in its fuller context. The first report from Dr Darwood is dated December 5, 2001 (Court Book, at page 138) and indicates several health problems of the applicant:
·Bilateral cataracts affecting her visual acuity;
·Cardiovascular problems, mainly hypertension, left ventricular hypertrophy;
·Thickened calcified aortic valve as well as calcification of the mitral valve causing mitral regurgitation.
There was no indication of when these problems first arose and the Tribunal wrote to Dr Darwood (Court Book at page 146) asking him to advise the Tribunal:
·When each of the nominator's medical conditions were diagnosed.
·What treatment was prescribed for each of those conditions and when the treatment commenced.
·If and when the nominator was referred to a specialist for any problems and if so when that occurred.
·How each of her medical conditions affected her functional capacity.
Dr Darwood replied by a letter dated 28 March 2002 (Court Book, at page 186). The only medical problem which was present at the time of the application was hypertension, which was diagnosed in 1995. Dr Darwood's comments on this were as follows:
Hypertension - diagnosed 1995.
Non-pharmacological management until October 2001.
No comment was made in relation to the psychological health of the nominator at all.
As indicated, the Tribunal accepted that hypertension constituted a prolonged illness at the time of the application. The report of Dr Darwood was not used, in my view, by the Tribunal, to contradict Mr Kleynens evidence. The Tribunal correctly considered whether or not the nominator had a prolonged illness and found that she had. The Tribunal then considered whether she had a long term need for assistance because of her illness and, due to lack of evidence, considered that she did not. This fact finding exercise was entirely the function of the Tribunal.
The Tribunal then correctly considered, as a separate matter, whether there were "other serious circumstances" affecting her which required permanent or long-term assistance and in that context considered the report of Mr Kleynens. The Tribunal correctly noted (Court Book at page 202, paragraph 53) that the nominator had:
A moderate level of depression and mild anxiety.
The Tribunal noted that:
"This report, read in conjunction with the information provided by the treating doctor (Dr Darwood) on the nominator's health, does not support a finding that the depression and anxiety constituted a prolonged illness at the time of application requiring treatment or creating a need for substantial assistance."
In my view it is clear that the Tribunal did consider the two reports in combination as to whether the nominator had a prolonged illness.
As to whether there were "other serious circumstances" affecting the nominator, whilst not specifying the considered matters in Mr Kleynens report, at paragraph 54 the Tribunal said:
"The visa applicant indicated in her application that the nominator had emotional and psychological needs. Both the visa applicant and the nominator referred to the loneliness of the nominator. The Tribunal considered whether the nominator's emotional and psychological needs alone or in conjunction with the nominator's age and state of health constituted "other serious circumstances" at the time of application ......"
The Tribunal then considered the evidence on behalf of the applicant and considered the assistance needed and provided at the time of the application. In my view, as a matter of fact, the Tribunal was entitled to conclude that at the time of the application no substantial assistance, as envisaged by Regulation 1.03 was required. The visa applicant was working full time and the nominator was able to cook and care for herself.
It is not clear whether the Tribunal considered Mr Kleynens' report again in relation to these matters. However, even if they did not, the Tribunal was entitled, on the evidence, in my view, to conclude that no substantial assistance was required and therefore the criteria in the Act were not met. These were questions of fact for the Tribunal and even if the Tribunal was found to be in error, it would not create a jurisdictional error in the sense specified in Craig v South Australia (1995) 184 CLR 163 and Minister for Immigration, Multicultural and Indigenous Affairs v Yusuf (2001) 180 ALR 1 at [39]-[44].
As no jurisdictional error has been established, the effect of s.474 of the Act is that the Court’s jurisdiction is not enlivened, absent satisfaction of any of the conditions in R v Hickman; Ex Parte Fox and Clinton (1945) 70 CLR 598 at 616. For those reasons the application must be dismissed.
The applicant is concerned, since the application in 1997, that the nominator's health does seem to have seriously deteriorated and at least at the time of the hearing, if the facts were all considered, might well bring her within the Regulations. Whilst the legislation requires that the elements be proved both at the time of the application and the time of the hearing, as a matter of compassion to the nominator the Minister may consider exercising her discretion favourably to the applicant given the current circumstances of the nominator.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
Date: 17 February 2004
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