Estepa v Minister for Immigration

[2004] FMCA 15

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ESTEPA v MINISTER FOR IMMIGRATION [2004] FMCA 15

MIGRATION – Family (residence) visa – Application for review of Migration Review Tribunal decision – failure to correctly identify nominator – no jurisdictional error.

Judiciary Act 1903, s.39
Migration Act 1958, ss.46, 353, 474

Migration Regulations 1993
Migration Regulations 1994, r. 1.03, 1.13, 2.07, Schedule 2 clauses 806.213 and 806.221

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 69 ALD 1
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65
NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499
SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129
Santokh Mally v The Honourable Philip Ruddock MP, Minister for Immigration and Multicultural Affairs (1998) FCA 371
Yong v Minister for Immigration and Ethnic Affairs (1994) 54 FCR 176
McCarthy v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 204
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Wu v Minister for Immigration and Multicultural Affairs (2000) FCA 1817

Applicant: REGINO ESTEPA

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MZ 491 of 2002

Delivered on: 20 January 2004

Delivered at: Melbourne

Hearing Date: 23 August 2002

Judgment of: McInnis FM

REPRESENTATION

Counsel for the Applicant: Mr D. Porceddu

Solicitors for the Applicant: Joseph Italiano & Associates

Counsel for the Respondent: Mr C. Horan

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Applications be dismissed.

2. The Applicant pay the Respondent’s costs and disbursements pursuant to Rule 21.10 of the Federal Magistrates Court Rules 2001 with the costs in default of agreement to be taxed pursuant to Order 62 of the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 491 of 2002

REGINO ESTEPA

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. In this matter the Applicant had originally filed an Application in the Federal Court of Australia on 4 February 2002 seeking to review a decision of the Respondent refusing to grant a family (residence) (class AO) visa to the Applicant. The decision sought to be reviewed was made by the Migration Review Tribunal (the MRT) on 7 January 2002. The original Application was entitled, “Application Under Section 39B of the Judiciary Act 1903” and it relied upon one ground.

2. A consent order was made in the Federal Court on 27 February 2002 requiring the Applicant to file and serve an Amended Application for particulars on or before 3 April 2002.  The parties were otherwise ordered to file and serve contentions of fact and law.  Pursuant to that order, the Applicant filed an Amended Application on 3 April 2002, together with contentions of fact and law.  The Amended Application relied on two grounds.  The Respondent filed its contentions of fact and law on 19 April 2002.  The Application was then transferred from the Federal Court to the Federal Magistrates Court on 22 May 2002.

3. When the matter was heard on 23 August 2002, the Applicant then sought to rely upon a Second Amended Application comprising a third ground.  During the course of the hearing the Applicant concentrated on the third ground, though otherwise referred to and relied upon the grounds set out in the earlier Applications which were the subject of the Applicant's contentions of fact and law.  At the hearing the Applicant sought to further rely upon "additional contentions of fact and law".  It should be noted that just prior to the hearing of this matter the Full Court of the Federal Court had delivered a decision in the matter of NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 69 ALD 1 (NAAV). After the decision was reserved in this court, it was anticipated that the High Court would further consider the issue of jurisdictional error and the constitution or validity of s.474 of the Migration Act 1958 (Commonwealth) and it did so, in the case of Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 (S157) which was decided on 4 February 2003. Neither party has sought to make further submissions in the light of S157.

4. It is perhaps sufficient to set out briefly the law in relation to jurisdictional error, which applies since the High Court’s decision in S157.  Since that decision, in considering the issue of jurisdictional error, in my view the court is able to rely upon the broader version of jurisdictional error identified in the High Court decisions of Craig v State of South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. In Yusuf McHugh, Gummow and Hayne JJ at paragraph 82 of their judgment cited with approval an extract from Craig v South Australia and stated the following:-

   “82.It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal) "falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."

   ‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”

5. It is useful to note the following extract from the Full Court of the Federal Court in SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65, per Carr J (with whom Cooper and Finkelstein JJ agreed) as follows:-

   “…There is no mention in the above passage of the first sur place claim. Nor is that claim mentioned anywhere else in the Tribunal's reasoning. My assessment is that the Tribunal failed to consider the discrete, first sur place claim. This, in my view, was not (as the respondent submitted) simply a failure to refer to evidence in support of such a claim, but a complete failure to consider the claim at all. In my view, the Tribunal thereby fell into jurisdictional error of the type referred to in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. See also SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [14] and Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 at [79].”

6. I note a further recent decision of Hill J in NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003). In that case the following paragraphs are relevant: -

   “31 The question not decided in Plaintiff S157/2002 (because it was unnecessary to decide, other than in respect of denial of procedural fairness) is what constitutes jurisdictional error in the sense used by the High Court in that case. Clearly failure to afford natural justice will constitute jurisdictional error for that is what the High Court actually decided in Plaintiff S157/2002. However, the question of what constitutes jurisdictional error as a ground for the grant of the constitutional writs of prohibition and mandamus (or the ancillary relief of certiorari) such as to bring about the result that the decision in question is a nullity, has been the subject of discussion in a number of cases.

   …

   33 Gaudron and Kirby JJ noted that the question whether there was a failure or constructive failure, to exercise jurisdiction required consideration of the nature of the obligation imposed upon the Tribunal (and in relation to a decision of the Minister which was also challenged, by the Minister). Their Honours stated the effect of Plaintiff S157/2002 to be as follows (par 72):

   ‘... [Section] 474 does not prevent the grant of prohibition, mandamus or certiorari in respect of decisions on the part of officers of the Commonwealth involving jurisdictional error for such decisions are not regarded, in law, as decisions at all and are, thus, not properly described as `a decision ... under [the] Act'. However and as also explained in Plaintiff S157/2002 v The Commonwealth of Australia, the effect of a provision such as s474 of the Act is to necessitate an examination of statutory limitations or requirements to ascertain whether, in the light of s474's restrictions on judicial review, non-observance of those limitations or requirements does or does not result in jurisdictional error.’

   …

   35   What matters for present purposes is not whether a failure to consider the relevant criteria would be jurisdictional error, but rather whether a failure to consider at all the case or a substantial part of the case advanced by an applicant would constitute jurisdictional error. Clearly the Tribunal has the same powers as the original decision maker within the context that the Tribunal was obliged to review the original decision and acting in the shoes of the decision maker to do again what the decision maker was required to do. The powers thus conferred upon the Tribunal likewise involve the consideration of the application against the criteria which the Act and the Regulations prescribed. It is, I think, quite clear that in the view of Gaudron and Kirby JJ, at least, the failure of the Tribunal to give consideration to the argument or case put forward by an applicant would constitute jurisdictional error and result in a decision which would not be a decision made under the Act and accordingly not be protected by s 474.”

7. The Full Court of the Federal Court in SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129 at paragraphs 27 and 28 relevantly states the following:-

   “27 The statement that a particular error is a `jurisdictional error' is a statement of conclusion. The conclusion is that, be the error one of omission or commission, some essential or indispensable requirement for jurisdiction has not been met. An imperative duty has not been discharged or some inviolable limitation has been breached and therefore the action or decision is null and void; Plaintiff S157 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The error may be easy to detect (manifest error) or more difficult but, either way, an action or decision is either one which falls within the decision maker's lawful authority or it is not. If it falls within the decision maker's lawful authority then the error is made `within jurisdiction'. If it does not fall within the decision maker's lawful authority then the error is a `jurisdictional error' and as such it cannot be a valid action or decision.

   28 In relation to statutory jurisdiction, such as that of the Tribunal, a conclusion as to the full extent of the jurisdiction granted, that is whether the decision is or is not authorised, can properly be reached only by construction of the whole of the relevant statute, in this case the Migration Act. When the statute contains a privative clause there is an inevitable tension between the privative clause and those parts of the statute that confer jurisdiction. As Gleeson CJ commented in Plaintiff S157 at [17]:

   `The essential problem is the inconsistency between a provision in a statute, or an instrument, conferring a limited power or authority, and a provision which appears to mean that excess of power or authority may not be prohibited.'

   Resolving that tension involves the process of reconciliation referred to by the High Court in Plaintiff S157.”

8. Ultimately the Applicant, although emphasising the third ground in the Second Amended Application, has otherwise relied upon the following grounds in this matter:-

   “Ground 1

   1.The Tribunal erred in that its decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an in correct application of law to the facts as found by the Tribunal.

   Particulars

   (a) The Tribunal erred by misinterpreting the meaning of nominator, as referred to in sub-class 806.213 of the Regulations, to be limited to one person rather than to a class of persons;

   (b) By misinterpreting the meaning of nominator, the Tribunal erred by failing to apply regulation 806.213 to a class of nominators.

   Ground 2

   The tribunal erred pursuant to section 353(2)(a) and (b) of the act.  This is by failing to review the decision on the basis of a technicality, that is, because the nominator's name did not physically appear on the application form.  Section 353(2)(a) states, inter alia, that the tribunal is not bound by technicalities, legal forms or Rules of Evidence.  Additionally, and pursuant to paragraph (b), the tribunal member did not act according to 'substantial justice and [with regard to] the merits of the case'.

Ground 3

The Tribunal erred in that its decision involved jurisdictional error by ignoring relevant material, making erroneous findings and reaching a mistaken conclusion.

Particulars

(a) The Applicant contends that the Tribunal failed to consider whether the nominator's chronic depression; chronic anxiety, long‑term psychological disorders; and emotional problems, taken together could constitute a "serious circumstance" pursuant to Regulation 1.03(a).

(b) The Applicant further contends that the Tribunal failed to consider whether the nominator's chronic depression; chronic anxiety; long‑term psychological disorders; and emotional problems, taken together could constitute a "disability" or "prolonged illness" pursuant to Regulation 1.03(a).

(c) Further, the Tribunal failed to consider whether the nominator was providing "substantial and continuing assistance" pursuant to Regulation 1.03(a) at the time of application or at the time of decision.”

Background

1. The Application which was before the MRT had sought review of a decision made by a delegate to the minister whereby the Applicant, a male national of the Philippines, born 10 April 1944, applied for a family (residence) (class AO) visa on 24 November 1998.

2. The Application was based upon a claim by the Applicant that he was a special need relative of his sister, Mrs  Irene O'Sullivan.  Mrs O'Sullivan is an Australian citizen.  The Applicant claimed that his sister had emotional and psychological needs arising from depression and that he was the only person who was willing and able to provide long‑term assistance required to meet those needs.  Reliance was placed upon a psychologist's report on the Applicant's sister dated 2 November 1998.  The nomination section of the Application form, which appears in the Court Book at pages 21 and 22, was completed by Mrs O'Sullivan who signed the statutory declaration as "nominator".

3. The delegate of the Respondent refused the Visa Application on

   
   

   18 May 2001.  In the Application made to the MRT on 12 June 2001 (Court Book pages 77 to 82), the Applicant claimed the delegate had "ignored the role model and psychological support I provide to my nephew".  The nephew is understood to be the son of the sister, Mrs O'Sullivan, by a previous marriage.  A further report from a psychiatrist was provided by the Applicant which assessed the needs of the nephew.  At the hearing before the MRT, there is no dispute that the Applicant raised a substantive issue on being a special need relative not in relation to his sister but rather in relation to his nephew.

4. The MRT affirmed the delegate's decision and made the following findings: 

   “(i)the applicant's nephew had not nominated the applicant as a special need relative for the purposes of clause 806.213(c) of the Migration Regulations 1994 [CB97];

   (ii) the nephew was not a "dependant child" of Mrs Irene O'Sullivan (the nominator) at the time of the decision, and therefore was not a member of her family unit at that time [CB98];

   (iii) the nominator did not have a permanent long-term need for assistance arising from death, disability, prolonged illness or other serious circumstances affecting her personality, or a member of her family unit [CB98-99]:

   (iv) accordingly, the applicant was not a "special need relative" of the nominator at the time of the tribunal's decision, and did not satisfy clause 806.221 of the regulations [CB99].”

5. Clause 806.213 of the Migration Regulations which applied at the relevant time sets out the primary criterion applicable to visa subclass 806 (family) and provided as follows:

   “806.213 The applicant is an aged dependent relative, an orphan, relative, a remaining relative or a special need relative of another person who:

   (a)is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and

   (b)is usually resident in Australia; and

   (c)has nominated the applicant for the grant of the visa”

6. It is noted that clause 806.221(1)(a) of the Regulations requires the Applicant to continue to satisfy the criterion set out above at the time of the decision.

7. It was submitted by the Respondent that at the time of the Application and time of the decision, the Applicant was 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.

8. However, reference was made to the definition of "special need relative" set out in Regulation 1.03 as follows:

   ”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:

   (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.”

1. It was submitted and I accept that the law applicable to the Applicant's Application was the law in force at the time the Application was lodged on 24 November 1998 and amendments therefore which took effect from 1 December 1998 do not apply to the present case.

2. It is appropriate to deal with the three grounds now relied upon by the Applicant.

Ground 1 – error of law

1. The Applicant has submitted that the delegate erred in law by failing to correctly interpret the meaning of nominator and relied upon the decision of Santokh Mally v The Honourable Philip Ruddock MP, Minister for Immigration and Multicultural Affairs (1998) FCA 371 (9 April 1998) ("Mally case"). It was submitted in the Mally case that the court held that "nominator" should be interpreted widely and can include class of persons.  Reference was made to the decision of Finn J in the Mally case where the court followed an earlier decision of Moore J in the matter of Yong v Minister for Immigration and Ethnic Affairs (1994) 54 FCR 176 where at page 182 Moore J stated:

   “… an inference might be drawn from the fact that another nominator was identified in the application, that the brother was not a nominator.  I nonetheless consider that an applicant should enjoy the benefit of any uncertainty as to how the relation is intended to operate, not because of his interests, but because of the interests of the nominator whose circumstances are intended to be a par (d)(v): see Kuar v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 343 at 345.  The Court has adopted a liberal approach to the construction of migration regulations that are designed to benefit Australian citizens or residents.  As Burchett J said in Fuduce v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 at 527:

   'Indeed, such cases are probably at the heart of the benevolent intent of the regulation which, on ordinary principles, as I have already indicated, should be given a broad and generous construction in favour of the Australian citizens and residents that it was intended to benefit, and in furtherance of the good name of Australia that its humanity maintains.'

   I see no reason why a similar approach should not be adopted in determining how the regulation was intended to apply particularly given that, as appears to be common ground, there is no provision in the regulations identifying the manner in which a nominator should disclose that he or she is nominating an applicant.  Nor is there an express requirement that there be only one nominator …”

2. Finn J followed the decision of Moore J in Yong as indicated earlier.  It was submitted on behalf of the Applicant that in the present case, the MRT had erred in failing to treat the nephew as "nominator".

3. The Respondent submitted that the decisions of both Yong and Mally involve reliance on the fact that the Application form under the Migration (1993) Regulations did not have any statutory backing, which is no longer the case. Section 46 of the Migration Act and Regulation 2.07(1) and (a) and (3) of Schedule 1 of the Migration Regulations 1994 require visa Applications to be made on an approved form and in accordance with any directions on that form. It was submitted that, more importantly, the decision in Mally turned on the fact that there was "no provision in the Regulations identifying the manner in which a nominator should disclose that he or she is nominating an applicant".  Similarly, it was submitted that in Yong Moore J stated that the Applicant for an entry permit "should enjoy the benefit of any uncertainty as to how the Regulation is intended to operate".  It was submitted that the decisions of Yong and Mally can be distinguished from the present case which arises under the Migration Regulations 1994 and not the 1993 Regulations. There is now provision dealing with the meaning of "nominator". At the time of the Visa Application on 24 November 1998 Regulation 1.13 provided as follows:

   “1.13 Nominator

   For the purposes of these Regulations, "nominator", in relation to an applicant for a visa, means:

   (a) a person who puts forward, on the relevant approved form, the name of the applicant as an applicant for a visa of a particular class;

   but does not include:

   (b) a person who proposes another person for entry to Australia as applicant for a permanent humanitarian visa;

   (c) a person or body who gives an undertaking of a kind referred to in Part 209, 210, 211, 212, 213, 215, 216 or 217 of Schedule 2.”

4. It was submitted in the light of that express provision, it could no longer be claimed that there is "no provision in the Regulations identifying the manner in which a nominator should disclose that he or she is nominating an applicant" or that there is any "uncertainty" as to how the Regulation is intended to operate.  As the nephew had not put forward the Applicant's name anywhere on the Application form, the nephew did not become a nominator in relation to the Applicant.  It was submitted that even if one were to assume that Regulations contemplate the possibility of "multiple" nominators, it would be necessary for each person to be a "nominator" within the meaning of the Regulations.  The MRT was correct, it was submitted, in the present case to conclude that the Applicant's nephew had not nominated the Applicant for the grant of a visa.

5. The Applicant could not satisfy clause 806.213 as a special need relative of his nephew, even if he were to establish that he was a special need relative in relation to the nephew and the MRT, according to the Respondent's submissions, was correct to proceed to address the question of whether the Applicant was a special need relative of Mrs O'Sullivan, or a member of her family unit. Further, there is nothing in the present case to suggest the nephew had nominated the Applicant at the time of the Application, as required by clause 806.213(c). It is not sufficient from the material to indicate that some other person or persons may be adversely affected by the refusal of the Application (see McCarthy v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 204 at 209, 212‑213). It was submitted the only person identified as a nominator of the Applicant at the time of the Application was Mrs O'Sullivan.

6. In my view, the Respondent's submissions in relation to this ground are correct.  It is not appropriate to apply the reasoning of the Federal Court in the decisions of Mally and Yong in circumstances where there has been a change in the Regulation.  The nephew should at the very least have been referred to in the Application, as it is clear that both

   
   

   s.46 of the Migration Act and Regulation 2.07(1)(a) and (3) of Schedule 1 of the Migration Regulations 1994 require Applications to be made on an approved form and in accordance with any directions on that form.  I note that "nominator" is now defined in Regulation 1.13 and it is clear, as submitted by the Respondent, that unlike the situation confronting the courts in both Mally and Yong, there is now a provision identifying the manner in which a nominator should disclose that he or she is nominating the Applicant. I am satisfied there is no uncertainty as to how the Regulations are intended to operate. In those circumstances, the failure of the nephew to put forward the Applicant's name or for the Applicant to be nominated by the nephew means that the Applicant was not nominated by the nephew for the purposes of clause 806.213. I am satisfied in the circumstances that the MRT decision was correct and it was open to it to find as a matter of law that the Applicant's nephew had not nominated the Applicant for the grant of the visa as submitted by the Respondent.

Ground 2 – Section 353 of the Act: technicalities and substantial justice

1. The Applicant had submitted that the MRT had erred by incorrectly dismissing the review Application because the nominator was not included in the sponsorship form. The intent of s.353(1)(2) is to look at the merits of the case without being constrained by technicalities such as the omissions on particular forms and the like. Section 353(1)(2) provides:

“(2)The tribunal, in reviewing a decision:

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) shall act according to substantial justice and the merits of the case.”

1. The Respondent submitted that there is no inconsistency between the MRT decision and compliance with s.353(2) of the Migration Act. The MRT in fact was required to apply the Regulations according to their terms, including consideration of the definition of "nominator" set out in Regulation 1.13. This is not a "technicality" or act otherwise than according to "substantial justice and the merits of the case". It was submitted on behalf of the Respondent that the purpose of the section is to free MRT’s at least to some degree from constraints otherwise applicable to courts of law which may be regarded as inappropriate to MRT’s (see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [49] per Gleeson CJ and McHugh J).

2. In my view, the Respondent's submissions are correct. Ground 2 must fail, as there is no inconsistency with section 353(2) of the Migration Act in circumstances where the MRT has simply applied the meaning of "nominator" and otherwise made a finding that is consistent with the Regulations then applicable, as discussed in consideration of the first ground of appeal.

Ground 3 – Jurisdictional error: ignoring relevant material – making erroneous findings and reaching a mistaken conclusion

1. Having regard to my decision in relation to the first two grounds of appeal, it is unnecessary to consider in further detail the third ground of appeal relied upon.  Nevertheless, I am prepared to consider the broader issue of jurisdictional error, particularly in the light of law applicable since S157 and in the event that my reasoning in relation to grounds 1 and 2 may be in error.

2. In brief terms, the Applicant's additional contentions of fact and law relied heavily upon a report from a psychologist dated 2 November 1998 (Court Book page 29).  It refers to Mrs O'Sullivan suffering from depression and anxiety.  It was submitted that that assessment, when taken together with other factors, could constitute “serious circumstances” of a kind, which would justify a finding consistent with the definition of "special need relative" in Regulation 1.03.  The matter was clearly arguable and, according to submissions by the Applicant, should have been taken into account by the MRT (see Wu v Minister for Immigration and Multicultural Affairs (2000) FCA 1817).

3. A further error was submitted to have occurred when the MRT failed to give any consideration to whether the factors outlined in the psychologist's report could constitute "disability" or "prolonged illness", for the purpose of the definition of "special need relative".  A failure to take that into account, it was submitted, was an incorrect interpretation.

4. Again relying upon the psychologist's report, it was submitted that the MRT did not expressly consider whether notes about Mrs O'Sullivan being emotionally and psychologically reliant upon the Applicant could constitute "substantial and continuing assistance".

5. The Respondent again submitted that the MRT correctly concluded that the nephew was not a nominator.  Reference again was made to the Application which refers to the residents, the resident or citizen who needs assistance being named as the sister of the Applicant and, not the nephew.  The psychologist's report is written in the context of Mrs O'Sullivan being the nominator.

6. In any event, it was submitted by the Respondent that the criticism made by the Applicant of the decision of the MRT is misconceived, as the MRT has simply applied the appropriate Regulations correctly.  It was clear from the MRT's reasoning in any event that the MRT's attention was directed to the needs of the nephew in the context of the Applicant's sister's circumstances.  Reference was made to paragraph 17 of the MRT decision where it states:-

   “17.The migration agent representing the visa applicant submitted to the Tribunal that the substantive issue between the Tribunal was whether the visa applicant was a special need relative of his nephew.  He stated that while the visa applicant may be providing some emotional support to the nominator, the substantive issue was whether the visa applicant was a special need relative of his nephew and that all arguments were predicated on this fact.  He stated the case stands on the support to the nephew at the date of the application and decision.”

7. It was submitted the MRT was aware of the nature of the claims that were being made and that it made appropriate findings.  It was not necessary for it to recite all the findings given the narrow focus of the substantive issue advanced for and on behalf of the Applicant by the migration agent.

8. In my view, the MRT in the present Application appears to have considered the law correctly in relation to the fact that the nephew is not the nominator on the Application and, has indicated that would be a sufficient basis upon which this court should dismiss the Application.  However, in considering the broader issue of jurisdictional error as discussed earlier in this judgment, I can see nothing in the reasoning of the MRT which would persuade me that there has been jurisdictional error of a kind that would justify judicial review.  The MRT is entitled to act according to the submissions then made for and on behalf of the Applicant and, in any event, entitled to consider the evidence before it.  It clearly considered the psychological evidence and in particular, it is noted that in its findings at paragraph 31 the MRT states:-

   “31.The visa applicant’s application for a subclass 806 visa specifies his sister Irene O’SULLIVAN as the Australian resident who needs his assistance.  Irene O’SULLIVAN nominated the visa applicant.  The report of Mr Eddy Kleynhans, which was submitted in support of the visa application, assessed the role of the visa applicant in meeting his sister’s emotional and psychological needs.  There was a reference in the report to the role the visa applicant had undertaken in relation to the nominator’s son after her divorce, and to the attachment between the visa applicant and the nominator’s son.”

9. It further considered relevant issues in paragraph 32 as follows:-

   “32.In response to a request by this Tribunal for the nominator to provide information of her need for permanent or long-term need for assistance, a report by Dr Arulanantham dated 21 June 2001 was submitted.  This report addressed the needs for the nominator’s son Fernando Ivan ESTEPA.  The letter from the migration agent dated 5 October 2001 referred to the visa applicant’s role in assisting his nephew.”

10. The MRT, in my view, otherwise made relevant findings of fact.  In particular, I note the following in the findings at paragraph 41:-

    “41.At the date of decision the nominator’s son Fernando Ivan ESTEPA had turned 18.  There was no evidence before the Tribunal that Fernando Ivan ESTEPA relies wholly or substantially on the nominator for financial, psychological or physical support.  The evidence before the Tribunal was that the nominator provides occasional financial support to her son who receives youth allowance. Fernando Ivan ESTEPA gave evidence that he sees his mother twice a week.  (The Tribunal notes that he has not lived with the nominator since he was 10).  Irene O’SULLIVAN described her involvement with her son from the date of the application in 1998 as “just talking with him” and stated that the visa applicant made decisions regarding her son bud did consult with her.  The evidence before the Tribunal was that Fernando Ivan ESTEPA relies upon the visa applicant for psychological and emotional support.  The Tribunal finds therefore that Fernando Ivan ESTEPA is not a member of the nominator’s family unit at the date of decision.”

11. On a proper reading of the MRT's decision and applying the law in relation to jurisdictional error, I am satisfied that the MRT has properly applied the relevant Regulations and considered the facts in an appropriate manner.  It did not ignore relevant material and nor could it be said it has identified the wrong issues, or relied upon irrelevant material.  It is not appropriate in a review of this kind to be unduly analytical of the MRT's reasoning.  It is sufficient that it has acted according to law and otherwise acted in a manner, which could not be said to constitute jurisdictional error.  For those reasons, it is appropriate that the Applications be dismissed with costs. 

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  20 January 2004