Fox v Minister for Immigration

[2004] FMCA 283

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FOX v MINISTER FOR IMMIGRATION [2004] FMCA 283

MIGRATION – Special needs relative visa – whether Tribunal should have made further inquiries about medical evidence – whether breach of natural justice in failing to make further inquiries about medical evidence – whether Tribunal failed to aggregate medical factors – whether the Tribunal failed to consider material evidence about special circumstances.

Migration Regulations 1994, r.1.03,

Migration Act 1958

Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24
NACC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 333
Su v Minister for Immigration and Multicultural Affairs [2001] FCA 1409
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [2001] HCA 30
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
McAuliffe v Secretary of Department of Social Security (1992) 28 ALD 609
Avesta v Minister for Immigration and Multicultural Affairs [2002] FCAFC 121

Applicant: MARIAN GWENDOLYN FOX

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MZ 715 of 2002

Delivered on: 13 May 2004

Delivered at: Melbourne

Hearing date: 12 February 2003

Judgment of: Phipps FM

REPRESENTATION

Counsel for the Applicant: Mr Porceddu

Solicitors for the Applicant: Armstrong Ross

Counsel for the Respondent: Mr Fairfield

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the respondent’s costs fixed in the sum of $6,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 715 of 2002

MARIAN GWENDOLYN FOX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant, a female citizen of India, arrived in Australia on 25 July 1998 on a Short Stay (Visitor) (Class TR) subclass 674 visa.  On

   
   

   22 October 1998 she applied for permanent residency by applying for a subclass 806 visa.  The application was made on the basis that she is the special need relative of her mother, Pearl Louisa Fox ("the nominator").  The nominator entered Australia on 27 December 1983 as the holder of a Working Age Parent Class K 1221 visa and was permanent upon arrival.  She became an Australian citizen on

   
   

   1 September 1986.

2. On 15 August 2001, a delegate of the respondent refused to grant the visa.  On 12 September 2001 the applicant applied for review of that decision to the Migration Review Tribunal (“the Tribunal”).  By decision dated 22 June 2002 the Tribunal affirmed the primary decision.  The applicant seeks relief by way of prerogative writ against the Tribunal’s decision.

3. The issue to be determined by the Tribunal was whether the nominator was a "special need relative" as defined in r.1.03 of the Migration Regulations 1994.  That definition is:

   `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;

4. The Tribunal described the material upon which the application was made. In her application the applicant stated that her mother had psychological and emotional needs and that the assistance she provided was emotional and psychological support.  A report from Mr Eddy Kleynans, psychologist, dated 12 October 1998 accompanied the application.  He listed a number of medical conditions that the nominator suffered from.  He diagnosed her suffering from a dependent personality disorder, needing emotional and psychological support.

5. The applicant and the nominator live with another of the nominator's daughters.  In a letter dated 5 October 1998 that daughter advised that she works full-time and cannot provide the necessary care for her mother.  There is another daughter interstate.  In an undated letter she stated that she had her own family commitments and had lived in Perth for 21 years.  She could not care for the nominator.

6. The Tribunal referred to the delegate’s reasons for refusal to grant the visa.  In particular, the delegate noted that it was claimed that the nominator suffered from high blood pressure, short-term memory loss, partial deafness and high cholesterol levels however there was no medical evidence to support these claims.

7. The applicant was represented by an agent for the purpose of the review hearing.  Prior to the hearing the Tribunal received from the applicant's adviser a further letter from the daughter living in Perth and a report from the nominator's doctor, Dr Habib.  He stated that the nominator was suffering from a variety of problems which included, memory loss, general tiredness, bronchial asthma, partial deafness, poor sleep pattern and declining eyesight.

8. The nominator and members of her family gave evidence to the Tribunal.  In recording the nominator's evidence, the Tribunal noted that apart from Mr Kleynans the nominator had not seen a psychologist for counselling.

9. The Tribunal held a hearing on 17 March 2002.  As recorded in its reasons, the Tribunal member indicated that it required a further detailed medical report in relation to the nominator's condition and also an arrangement should be made to have an aged care assessment by the local council.  The invitation to provide an aged care assessment was repeated in a letter dated 27 March 2002 from the Tribunal to the applicant's adviser.

10. The applicant's adviser responded by letter dated 28 March 2002.  The letter refers to the request made at the formal hearing for a more comprehensive medical report and enclosed a further report from Dr Habib.  The applicant's adviser wrote again by letter dated 10 May 2002 enclosing a report from Hume Council Home Care Assessment Team.  Both letters from the adviser contained further submissions.  Included in the material before the Tribunal was a report dated

    
    

    24 February 2002 from The Northern Hospital.

11. In its findings and reasons the Tribunal referred to the regulations and said that in the circumstances of the case it must consider whether the nominator has a permanent or long-term need for assistance because of disability, prolonged illness or other serious circumstances.

12. The Tribunal said that the medical evidence was not satisfactory.  The applicant’s doctor had not provided any details as to the seriousness of the ailments or how they affect the nominator.  The Tribunal said there was no doctor's report provided at the time of application and although the doctor had treated her since 1991 he does not indicate when the various ailments manifested themselves.  Based on the reports the Tribunal found that the nominator did not have a prolonged illness.  The Tribunal found there was insufficient evidence to determine whether the nominator had a long-term need for assistance as a result of a disability.  The Tribunal said they accepted that the nominator is an elderly woman who has a number of medical ailments.

13. The Tribunal analysed the psychologist's report in some detail.  The Tribunal concluded that due to the inadequacies in the medical evidence provided it was difficult for the Tribunal to determine whether, at the time of application, and also subsequently at the time of decision, the nominator was suffering from special circumstances that required long-term assistance.

14. The Tribunal noted that the nominator was living with her other daughter and husband, that although this daughter was working, she is able to drive the nominator to the doctor and does the shopping.  The Tribunal said that the report of the Hume City Council indicated they could provide the nominator with assistance in getting dressed and showered.  They could also check on her a second time each weekday.  The nominator's other daughter would be able to assist her at night.  The only additional assistance that the applicant would provide would be companionship.

15. The Tribunal referred to the respondent’s Procedures Advice Manual which provided advice as to the meaning of "substantial and continuing assistance".  Companionship is not regarded, in the absence of other factors, as constituting a permanent or long-term need.

16. The Tribunal said that the applicant's mere presence assists the nominator, but to be a special need relative something more than a close family bond is needed.  The Tribunal found, based on the report from Hume City Council and the evidence provided at the hearing that any assistance the applicant required could reasonably be obtained from other community service providers in Australia namely the Hume City Council.

17. The applicant alleged jurisdictional errors:

    a)Breach of natural justice in failing to notify the applicant that further medical evidence was needed.

    b)Constructive failure to exercise jurisdiction in failing to consider relevant matters.

18. In making the submission of natural justice counsel for the applicant referred to Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24 where Allsop J said at [96]:

    In some cases it is undoubted that the Tribunal is obliged to go further than the material before it. Merely because the applicant approaches the matter in a particular way does not necessarily disoblige the Tribunal from examining other material thrown up before it. See Grant v Repatriation Commission [1999] FCA 1629 at [17]-[18]; Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287; and Benjamin v Repatriation Commission [2001] FCA 1879.

19. His Honour's statement was made in the context of a similar application for a special needs relative visa.  The applicant had concentrated on whether her four brothers could provide assistance. The Tribunal had found that relatives other than the brothers were able to do this.  In the context of the way the case had been conducted, including the way the delegate had approached the issue of assistance, His Honour said it must have been apparent to the Tribunal that the likelihood, or at least very good possibility, was that the applicant simply had not given this class of people any attention.  In circumstances such as these it might be that the Tribunal needed to widen its inquiry.

20. In the subsequent case of NACC v  Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 333 His Honour said at [29]:

    I have elsewhere expressed in Azzi v Minister for Immigration & Multicultural Affairs [2002] FCA 24 my views as to the possible existence of a duty to inquire or a duty to consider inquiry. I noted in particular at [102] and following a number of decisions of this Court which deal with the possibility of such obligations. However, it does appear that if some duty exists upon the Tribunal, from the interstices of the Act and the common law, to make further inquiries, that would only likely arise in rare and exceptional cases. See in particular Azzi, [111], [112] and [113].

21. The need for medical evidence to satisfy the criteria set out in the regulations is obvious.  The applicant's agent’s letter dated 18 February 2002 accompanying the application to the Tribunal refers to the nominator's medical problems.  At the hearing the Tribunal specifically said that further medical evidence was needed and it was provided.  The Tribunal did not say that the medical evidence required needed to deal with both the applicant's medical condition at the time of application as well as the time of hearing.  The lack of medical evidence of the nominator's condition at the time of application was relevant to the way the Tribunal subsequently made its findings.  There was no need for the Tribunal to say what times the medical evidence should relate to.  It is obvious that medical evidence is relevant to the application and must be concerned with both the time of application for the visa and the time of hearing before the Tribunal.  The Tribunal said it considered that further medical evidence was needed.  The submission made was that it should have made further inquiries based on Dr Habib's reports and the report of the Northern Hospital.  This is not one of those rare and exceptional cases where the Tribunal might have to make its own inquiries.  The applicant was not misled or disadvantaged.  The applicant had ample notice of the need to have medical evidence.  In the circumstances of this case, there was no obligation on the Tribunal to do any more than it did.

22. The submission that there was a constructive failure to exercise jurisdiction has several aspects.  It was submitted that the Tribunal looked at individual illnesses and did not consider the accumulation of them.  This, it was submitted, was an error in two ways.  The Tribunal erred in determining whether there was a prolonged illness by failing to aggregate the various factors, and it erred in determining whether there were other serious circumstances by failing to aggregate the various factors.  The submission referred to Su v Minister for Immigration and Multicultural Affairs [2001] FCA 1409 at [25], Madgwick J:

    I turn to the applicant's first alleged error, that the Tribunal member limited himself only to determining whether the nominator could show "other serious circumstances". The Tribunal member correctly identified the matters that he needed to determine: whether permanent or long-term assistance was needed because of death, disability, prolonged illness or other serious circumstances. However, even on a generous reading of the member's reasons, he then proceeded to consider only whether each of loneliness, mental deterioration, age, infirmity and the other factors raised in the brief medical report provided by the doctor could be said to constitute other serious circumstances. The Tribunal gave no consideration to whether these factors taken together could constitute a "disability" or "prolonged illness". There was no express consideration of this question nor was it, in my opinion, implicit in the Tribunal's reasons. All that occurred was a failure to examine these questions and on assumption, under cover of silence, that they were not relevant criteria. Whether or not these factors taken together could constitute a disease or prolonged illness was clearly arguable and a matter of fact for the Tribunal to determine. A failure by the Tribunal member to turn his mind to these matters can and should be inferred: the case is reminiscent of Jun v Minister for Immigration & Multicultural Affairs [2000] FCA 867 where Mansfield J held that a failure to consider whether a clinical mental condition was a disability or prolonged illness because of an incorrect interpretation of a policy direction was an error of law. The approach of the Tribunal resulted in an incorrect application of the law to the facts and an error of law within s.476(1)(e).

23. This is a case decided before the amendments to Part VIII of the Migration Act 1958.  It is concerned with error of law and not jurisdictional error as described in  Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [2001] HCA 30 at [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."(citation omitted)

24. Jurisdictional error in the Yusuf sense is to be distinguished from errant fact finding (e.g Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [42]). The reasons of an administrative decision maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and others (1996) 185 CLR. 259, Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, McAuliffe v Secretary of Department of Social Security (1992) 28 ALD 609.)  Fact-finding is a matter for the Tribunal.  Unsatisfactory or illogical reasoning does not involve jurisdictional error (Avesta v Minister for Immigration and Multicultural Affairs [2002] FCAFC 121)

25. The submission was that the Tribunal summarised the applicant's condition as loneliness and did not look at the individual factors.  This is not correct.  The Tribunal properly summarised both medical reports from Dr Habib.  The Tribunal said at [14] and [24]:

    14.  On 19 February 2002 the Tribunal received from the applicant's adviser, a further letter from the visa applicant's sister (nominator's daughter) explaining that she lived in Perth and that she works part time and has a family of her own so cannot care for the nominator. Also provided was a report from Dr Habib who stated that the nominator was suffering from a variety of problems which included; memory loss, general tiredness, bronchial asthma, partial deafness, poor sleep pattern and declining eyesight.  He stated that she is receiving sympathetic treatment.

    24.  On 2 April 2002 the Tribunal received a medical report from Dr Habib. That report stated that the nominator had been his patient since 1991. She suffers from; memory loss for recent events, declining eyesight, partial deafness, bronchial asthma, feeling of tiredness and weakness all over her body with weakness and aching joints (fibro-myalgia), depression and insomnia. He states that the visa applicant came to Australia from India to care for her and they have an emotional bond.

26. The Tribunal referred to the nominator's evidence about her state of health.  It set out what was contained in the psychologist’s report.

27. The submission that the Tribunal did not consider each of the various illnesses suffered by the nominator is not correct.  The Tribunal set out these illnesses and the evidence about them.  It then came to the conclusion, based on the reports of Dr Habib that the nominator did not have a prolonged illness.  The Tribunal, in stating this finding, did not make it separately in relation to the date of application or the date of hearing.  It did not need to.  It is clear that its finding relates to both dates.  In stating the finding it does not recite again the various ailments.  It did not need to because it had already done so.

28. Criticism was made of the Tribunal's analysis of the psychologist’s report.  The Tribunal concluded that inadequacies in the medical evidence made it difficult for the Tribunal to determine whether, at the time of application, and also subsequently at the time of decision, the nominator was suffering from special circumstances that require long-term assistance.  The Tribunal was entitled to reach this conclusion.  It did not involve a failure to take into account some mandatory consideration.  The Tribunal considered the evidence overall in relation to both the question of whether there was a prolonged illness and whether there were special circumstances.

1. The applicant's submission was that there was jurisdictional error in the way the Tribunal concluded that any assistance the applicant required could reasonably be obtained from other relatives, namely the daughter with whom she lived, and community services in Australia, namely the Hume City Council.

2. The criticism of the Tribunal's approach was that it had been selective in the way it treated the report from the council.  The report said, for instance, that the nominator was alone the majority of the day and it was during this time that she was most at risk of falling or injuring herself.  It was submitted that the Tribunal failed to have regard to this particular piece of the report.  That is not correct.  It is assuming that because the Tribunal did not specifically refer to the assistance available to the nominator in their reasoning and findings that they did not have regard to it.  That assumption cannot be made.  The same can be said of the other criticisms.  In any event, even if the Tribunal ignored certain sections of the report, that is not jurisdictional error.

3. No jurisdictional error been shown and therefore the application is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: 

Date: