ENANO v Minister for Immigration
[2004] FMCA 534
•3 September 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ENANO v MINISTER FOR IMMIGRATION | [2004] FMCA 534 |
| MIGRATION – Appeal from Migration Review Tribunal decision – jurisdictional error – “special need relative” – substantial and continuing assistance – assistance reasonably obtainable from other sources – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.474
Migration Regulations 1994 (Cth), regulation 1.03, Schedule 2
Craig v South Australia (1995) 184 CLR 163
Jun v Minister for Immigration & Multicultural Affairs [2000] FCA 867
Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
| Applicant: | MERLINA ENANO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 24 of 2003 |
| Delivered on: | 3 September 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 28 October 2003 |
| Judgment of: | Connolly FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Hurley |
| Solicitors for the Applicant: | Armstrong Ross |
| Counsel for the Respondent: | Mr Horan |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
THAT the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 24 of 2003
| MERLINA ENANO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from an application filed by the applicant on
18 January 2003 seeking judicial review of the decision of the Migration Review Tribunal on 19 December 2002 to affirm the decision of delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a Family (Residence) (Class AO) (sub-class 806 “special need relative”) visa.
The history
The applicant is a female national of The Phillipines. She came to Australia on 31 January 1998 on a Short-Stay (Visitor) (Class TR) visa, which was valid until 31 April 1998. On 17 April 1998 the applicant applied for a Family (Residence) (Class AO) (sub-class 806 “special need relative”) visa. The applicant claimed that she was a special need relative of her father (“the nominator”) who has numerous medical problems. Specifically, the applicant claimed that the medical and welfare services in Australia could not provide the emotional and psychological support required by her father and the father’s other relatives in Australia (the applicant’s siblings) could not, or were unwilling to, provide the necessary emotional, psychological and physical assistance.
On 17 October 2001, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant the visa; the applicant applied to the Migration Review Tribunal (“the Tribunal”) for review of that decision on 7 November 2001. In the decision made by the Tribunal on 19 December 2002, the Tribunal affirmed the decision of the delegate not to grant the visa. Specifically, the Tribunal held that the applicant was not a “special need relative” at the time she lodged her application and thus the Tribunal did not need to consider whether the applicant was a “special need relative” at the time of the Tribunal’s determination (as required by clauses 806.213 and 806.221 of Schedule 2 of the Migration Regulations 1994 (Cth)). The Tribunal was not satisfied that the applicant’s four siblings, two of whom are registered nurses, or Australia’s medical and welfare services could not provide the assistance needed by the applicant’s father. The Tribunal also added that it was not satisfied that the applicant, who had held continuing, often full-time, employment since her arrival in Australia, could provide ongoing and substantial support to her father.
On 18 January 2003, the applicant lodged an application in the Federal Magistrates Court, being MZ 24 of 2003, pursuant to s. 39B of the Judiciary Act 1903 (Cth), for review of the Tribunal’s decision. The applicant claimed that the Tribunal had erred in finding that the applicant was not entitled to the visa. Summarily, the applicant claimed that the Tribunal had misconstrued and failed to correctly interpret the definition of “special need relative” as set out in regulations 1.03 (a) and (b) of the Migration Regulations 1994 (Cth). The applicant argued specifically that:
a)the Tribunal had failed to take into account a report of the father’s doctor which stated that the applicant would be of great benefit to her father in terms of his medical problems; and
b)the Tribunal incorrectly interpreted the meaning of the phrase “the assistance cannot be reasonably obtained” in regulations 1.03 (a) and (b).
The law
Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act 1958 (Cth) (“Migration Act”) does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Migration Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 (“Yusef”) at 351.
An administrative tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Yusef).
A criterion to be satisfied at the time of application for grant of a subclass 806 visa is clause 806.213. This clause provides, in part, that the visa applicant is a “special need relative” of another person who has nominated the visa applicant for the grant of the visa. Clause 806.221 provides that the visa applicant must continue to satisfy the criterion in clause 806.213 at time of decision.
The term “special need relative” is defined in regulation 1.03:
“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 be reasonably obtained from:
any other relative of the citizen or resident, being a relative who is an Australian citizen, an Australian permanent resident if an eligible New Zealand citizen; or
welfare, hospital, nursing or community services in Australia.
In Jun v Minister for Immigration & Multicultural Affairs [2000] FCA 867 the Federal Court held that when considering whether the visa applicant was a “special need relative” at the time of application and at the time of decision, the Tribunal must address each aspect of the definition of “special need relative”.
Conclusions and findings
The applicant submits that the Tribunal initially erred in law pursuant to paragraph 3(c) of the applicant’s amended application, filed 11 April 2003, in failing to recognise that:
reference to “permanent or long term” need for assistance in the definition of “special need relative” posed a disjunctive test and that where the MRT [Tribunal] accepted that a need for assistance was long term that part of the visa criterion was satisfied.
I do not accept that the Tribunal failed to apply a disjunctive test. The Tribunal clearly found that there was a long term need for assistance. It says at paragraph 31 (Court Book (“CB”) 152):
The reports of Dr Foenander do, however, establish that the nominator has been suffering from various medical conditions which the Tribunal accepts give rise to a long term, if not permanent need for assistance.
In paragraphs 3(d) and (e) of the amended application, the applicant claims that the Tribunal erred in construing the statutory requirements, together with policy, or erred in applying the policy by failing to find that the elements in the policy which the Tribunal was satisfied existed did not cumulatively constitute a serious circumstance. The Tribunal at the end of paragraph 31 (CB 152) recites that Dr. Foenander “was more specific about the assistance needed, stating them as supervision of medication, accompanying the nominator to the doctor and hospital, assistance with food preparation, washing and household chores and emotional support and encouragement” in his letter dated August 2001. The Tribunal also said “it has been claimed by the visa applicant that the nominator needs her to be there, especially at night”. In stating at paragraph 32 (CB 151), the Tribunal “does not find extenuating circumstances for not applying the policy” (referring to PAM 3), it would appear that the Tribunal failed to take into account that the nominator was affected by factors one (“companionship of a relative”), three (“general domestic assistance”) and seven (“bereavement over death of a spouse”), and thereby satisfied the policy. However I agree with the respondent’s submissions that the Tribunal’s decision did not turn on the questions of whether the nominator had a permanent or long term need for assistance, whether the need arose for other serious circumstances or whether the assistance needed was substantial and continuing. The Tribunal made the following findings:
a)the nominator had a long term need for assistance;
b)it may be assumed that the Tribunal accepted that this need arose due to the nominator’s prolonged illness, the death of his wife or other serious circumstance;
c)whilst the Tribunal did not make any express finding as to whether the assistance needed was substantial and continuing it did assume the applicant was willing (although unable) to provide substantial and continuing assistance (paragraph 33, CB 152); and
d)ultimately the basis of the Tribunal’s decision was:
i)the availability of other sources of assistance; and
ii)the inability of the applicant to provide substantial and continuing assistance (paragraphs 32-33, CB 152).
Accordingly I agree with the respondent’s contention that the application of the policy did not affect the Tribunal’s findings on these issues and therefore could not have materially affected the Tribunal’s decision.
The applicant further contended at paragraphs 3(a) and (b) of the amended application that the Tribunal erred in law:
(a) in construing the terms “the assistance cannot reasonably be obtained from: (i) any other relative or the citizen or resident, being a relative who is an Australian citizen, and Australian permanent resident or an eligible New Zealand citizen; or (ii) welfare, hospital, nursing or community services in Australia; as found in the definition of “special need relative” in Ref. 1.03(a) and (b) of the Migration (1994) Regulations, because the MRT in not being satisfied that the assistance needed could not have been obtained from one or more or from a combination of the four other children of the nominator in Australia or from welfare, hospital or community services in Australia failed to consider the 1998 report of Dr Foenander that the Applicant would be of great benefit in the long term outcome of the nominator’s other medical problems;
(b) the MRT erred in law by failing to correctly interpret which aspect of the definition of “special need relative” in Ref. 1.03 namely that the MRT failed to accept that the assistance required by the nominator could not be reasonably obtained by the persons and organisations specified in the Ref. 1.03(b)(i) and (ii) because Dr Foenander was of the view that the nominator would benefit from the Applicant’s assistance therefore the MRT failed to properly determine the correct meaning of the legislation namely “the assistance cannot be reasonably obtained”.
In alleging that the Tribunal failed to consider the 1998 report of Dr Foenander, the applicant is clearly wrong. The report is reproduced at CB 56 and is referred to in its reasons at paragraph 10 (CB 145) and paragraph 31 (CB 152). It was clearly considered by the Tribunal. However, the Tribunal also considered the subsequent letter. Notwithstanding the report, the Tribunal was not satisfied that the assistance required by the nominator could not reasonably be obtained from various sources other than the applicant. The report from Dr Foenander in May 1998 did not require the Tribunal to find otherwise. That was a question of fact for the Tribunal.
The applicant further submits that the Tribunal erred in considering whether the visa applicant satisfied the criterion for “special need relative” at the time of the decision by reference to the events which occurred after the application for the visa was made on 17 April 1998. In relation to the applicant’s inability to provide a level of assistance that was substantial and continuing, the Tribunal referred to the fact that she had a financial need to work and has been in continuing employment since 1998. The applicant gave evidence of her employment history since 10 September 1998 (CB 153). Counsel for the respondent argued that even assuming the applicant’s employment commenced after the application was lodged, such employment was capable of evidencing a financial need to work which existed at the time of the application. I agree with that contention and, in any event, even if the Tribunal wrongly took into account evidence of the applicant’s continuing employment after the date of the application, this was an error of fact. It is not an error of law for the Tribunal to make an incorrect finding of fact at least where there is some material before the Tribunal which is capable of supporting the finding.
Further, it is not clear that any error would have affected the Tribunal’s decision, given that the applicant was required by clause 806.221(1)(a) to continue to satisfy the definition of a special need relative at the time of the decision.
Finally, the Tribunal’s decision is capable of being supported by its finding on whether the assistance could, at the time of the application, reasonably have been obtained from sources other than the applicant.
The final contention advanced by the applicant is that the Tribunal erred by taking into account irrelevant matters, in that it took into account that two of the nominator’s children were registered nurses, and that the applicant lacked some understanding of the nominator’s medication. In circumstances where the assistance needed by the nominator included “supervision of medication” those matters were clearly relevant to the issues where the assistance needed could reasonably be obtained from other sources, and whether the applicant was able to provide substantial and continuing assistance. It cannot be said that the Tribunal was required to disregard these matters in reaching its decision.
I am accordingly satisfied in all the circumstances that there is no jurisdictional error and that the application should be dismissed with costs.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: N. Lane
Date: 3 September 2004
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