Grenville Boward v Minister for Immigration
[2003] FMCA 4
•24 January 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GRENVILLE BOWARD v MINISTER FOR IMMIGRATION | [2003] FMCA 4 |
| MIGRATION – Review of decision of the Refugee Review Tribunal affirming the decision not to grant a family residence visa – where applicant was nominated as a “special need” relative – decision of Tribunal affirmed. Migration Act1958, ss.474, 474(1), NAAVv Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 228; |
| Applicant: | GRENVILLE BOWARD |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 574 of 2002 |
| Delivered on: | 24 January 2003 |
| Delivered at: | Melbourne |
| Hearing Date: | 6 November 2002 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Mr T. Hurley |
| Solicitors for the Applicant: | Armstrong and Ross |
| Counsel for the Respondent: | Mr C. Horan |
| Solicitors for the Respondent: | Blake Dawson Waldron |
FEDERAL MAGISTRATES |
MZ 574 of 2002
| GRENVILLE BOWARD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
In these proceedings the applicant, an Indian national, seeks relief under s.39B(1) of the Judiciary Act 1903 (Cth) ("Judiciary Act") in respect of a decision of the Migration Review Tribunal ("MRT") made on 8 May 2002. The MRT affirmed the decision of a delegate of the respondent ("the Minister") given on 19 April 2001 to refuse to grant to the applicant a class AO family (residence) visa.
Background
The applicant is a national of India who was born on 13 August 1966. He arrived in Australia on 19 July 1996 as a holder of a class TR short stay (visitor) visa which was valid until 19 October 1996. On 29 October 1996 the applicant lodged an application for a class AO family (residence) visa. The applicant was nominated as a "special need relative" by his sister, Ms Jennifer Patricia Gibson ("the nominator") who is an Australian citizen. In his application the applicant claimed that the nominator suffered from "sadness, depression and psychological pain" and that the applicant provided assistance to the nominator by means of "emotional, physical and psychological support".
On 19 April 2001 a delegate of the Minister refused to grant a visa to the applicant. On 8 May 2002 the MRT affirmed the delegate's decision.
At the time the visa application was lodged, clause 806.213 of the Migration Regulations ("the Regulations") set out a primary criterion applicable to visa subclass 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
(a)is a settled Australian citizen, a settled Australian permanent resident or a settled or eligible New Zealand citizen; and
(b)is usually resident in Australia; and
(c)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 Edwin Kleynhans, dated 30 October 1996. At his review before the MRT the applicant submitted a further report from Mr Kleynhans dated
20 August 2001 and a letter providing additional information about the tasks he undertakes each day for the support of the nominator and her three children.
The MRT found that the applicant was not a special need relative of the nominator within the meaning of regulation 1.03 at the time of the application and therefore did not satisfy clause 806.213 of Schedule 2 of the Regulations. The Tribunal's reasons were as follows:
1)The Tribunal was not satisfied that the nominator suffered from a disability or prolonged illness at the time of application or at the time of decision and referred to the nominator's evidence that she had not been prescribed any medication by her family doctor, Dr Benson, nor had she been referred to a psychologist or a psychiatrist. He noted that a report provided by Dr Benson in April 2002 did not indicate that the nominator had suffered from any illness.
2)The Tribunal placed no weight on the psychologist's report dated 20 August 2001 finding that it was not objective or reliable and noting that the opinion given as to the nominator's psychological state was not supported by the evidence given at the hearing and was not corroborated by medical evidence.
3)The assistance provided by the applicant to the nominator comprised general companionship, emotional support, household assistance and child care. The Tribunal found that such assistance was not "substantial".
4)The Tribunal found that the nominator's circumstances were not sufficiently serious at the time of application that they required assistance of the same sort that would be required if she was suffering from a disability or prolonged illness. The applicant provided an even lesser degree of assistance to the nominator at the time of decision. Accordingly, the Tribunal concluded that the nominator was not affected by serious circumstances requiring substantial and continuing assistance either at the time of the application or at the time of decision.
5)Finally, the Tribunal found the assistance required by the nominator could be obtained from other relatives in Australia.
Grounds of the application
Since the decision in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 228 ("NAAV") as comprehensively explained by Sackville J in Zahid v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 1108, it is clear that in general, jurisdictional errors, including breaches of the requirements of procedural fairness do not suffice to establish a reviewable error in the face of s.474(1) of the Migration Act. Subsequent Full Court decisions have endorsed and applied the construction adopted by the majority in NAAV that the effect of s.474(1) is to protect a privitive clause decision from a challenge under s.39B of the Judiciary Act 1903 provided that the three Hickman conditions are satisfied and the decision maker has not contravened an inviolable statutory limitation upon which the valid exercise of power depends. NAAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 300 at 23; NADR v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 293 at 16; NABM v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 294 at 24.
Under the principles developed in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616, s.474 is treated as altering the substantive law as to the limits of the powers conferred on the Tribunal so as to expand the area of valid decision making, provided the three Hickman conditions have been fulfilled, namely:
(i)the Tribunal has made a bona fide attempt to exercise its powers;
(ii)the decision relates to the subject matter of the legislation; and
(iii)the decision is reasonably capable of reference to the power given to the decision maker.
In particular, the majority in NAAV clearly rejected any view that a privitive clause decision can be reviewed for jurisdictional error under the principles discussed in Craig v South Australia (1995) 184 CLR 163 at 179 and Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf (2001) 180 ALR 1 at 39-44. Nevertheless, the applicant submitted on grounds referred to that s.474(1) does not constitute an insuperable obstacle to the applicant's case in this matter.
The applicant's contentions
The applicant contends:
(1)That the MRT did not have the jurisdiction to make the decision because it involved jurisdictional errors: -
(a)the MRT erred in failing to construe the term "special need relative" as defined in regulation 103 as including a reference to the term "other serious circumstances" and erred by limiting its consideration of the circumstances of the nominator to whether the nominator had suffered death, disability or prolonged illness;
(b)the MRT erred in law in failing to consider whether the circumstances of the nominator as at the date the applicant applied for the visa constituted the nominator as a citizen who by reason of "other serious circumstances” (affecting the nominator personally) as a special need relative;
(c)the MRT erred in law in failing to consider whether the circumstances of the nominator as at either the date the applicant applied for the visa (29 October 1996) or the date of the MRT decision (8 May 2002) constituted the nominator by reason of the needs of the children of the nominator as at either date, a citizen who had a permanent or long term need for assistance within the definition of "special need relative" which only the applicant could satisfy;
(d)the MRT erred in law in construing the reference in the definitions of "special need relative" in regulation 1.03 of the Regulations by reference to the statements in the policy contained in the PAM3 and failed to give effect to that term as defined in the Regulations;
(e)the MRT erred in law in concluding that the case of Su v Minister for Immigration and Multicultural and Indigenous Affairs (2001) FCA 1409 required consideration to be had of the entire circumstances of the nominator and the MRT erred in failing to consider whether the circumstances of the nominator constituted "other serious circumstances" within par (a) of the definition of special need relative.
(2)Secondly, the MRT erred in law in determining the application without giving the applicant an opportunity to be heard on whether the psychologist who provided evidence or other material on behalf of the applicant (Mr Kleynhans) was so lacking in "an objective professional perspective" or gave an opinion which was "not supported by the evidence given at the hearing and is not corroborated by medical evidence" or that he did "not represent an honest and reliable professional opinion" without giving either the applicant or Mr Kleynhans an opportunity to respond to those allegations.
The applicant contends in relation to the first ground that the MRT erred in law by failing to consider the totality of the circumstances of the nominator for the purpose of the definition of "other serious circumstances". The applicant contends that the MRT erred in considering the circumstances of the nominator only in terms of whether she was "suffering from a disease or other illness" in that the MRT failed to consider all the emotional, physical and financial circumstances of the nominator globally to determine whether the circumstances constituted "other serious circumstances”.
The MRT's reasons
When considering the position at the time of the application, the MRT noted that in Su v Minister for Immigration and Multicultural and Indigenous Affairs (2001) FCA 1409, loneliness, mental deterioration, age and infirmity could, when taken together, constitute disease or prolonged illness. The MRT further noted that the nominator indicated that she received counselling in 1996 in relation to difficulties with her husband's family and that the applicant assisted her in caring for her children while her husband was working. The MRT noted that the nominator stated that she was emotionally dependent on the applicant because of their family history and that she had a good relationship with her husband although he would not discuss family troubles with her. The MRT found that taking into account all the matters affecting the nominator at the time of the application there was insufficient evidence upon which it could conclude that she was suffering from a disability or prolonged illness.
As to whether or not she suffered from a disability or prolonged illness at the time of the decision, the MRT rejected the opinion of the psychologist dated 20 August 2001 in which he stated that the nominator suffered from depression, anxiety and post-natal depression at that time and that her condition was deteriorating. The MRT rejected that evidence because the psychologist had offered the opinion that:
“I've come to the conclusion that Grenville Boward is a special need relative to Jennifer … I am concluding that they are faced with serious circumstances and her brother is a special need relative to her.”
The MRT said in considering this matter:
“The determination of whether the review applicant is a special need relative of the nominator is a matter for the Tribunal alone, and it is inappropriate for a psychologist or other expert to offer an opinion on that matter. The Tribunal finds that the offering of such an opinion in this case is evidence that the psychologist has not maintained an objective professional perspective in this matter. The Tribunal also finds that the opinion given as to the nominator's psychological state in 2001 is not supported by the evidence given at the hearing and is not corroborated by medical evidence. The Tribunal finds, therefore, that the psychologist's report of 20 August 2001 does not represent an honest and reliable professional opinion of the nominator's psychological condition at that time, and the Tribunal can give it no weight in determining whether the nominator has a need for substantial and continuing assistance because of disability, prolonged illness or other serious circumstances at the time of decision.”
The MRT went on to consider whether there were "other serious circumstances" and noted that such circumstances could comprehend the circumstances of a young child in need of support and nurturing and support by parents, in particular by a mother. The MRT then went on to cite from Wu v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 1817 where the Full Court said:
“However, there is nothing about the expression "other serious circumstances" nor its immediate statutory context which suggests that a necessary feature of the circumstances is that they be out of the ordinary or unexpected. In our opinion the word "serious" is simply intended to reinforce the nature of the assistance that is central to the definition, namely assistance which is substantial and continuing in relation to a need for assistance which is permanent and long term. That is, in circumstances sufficiently serious that, in relation to a citizen, it would require assistance of the same sort that would be required for citizens suffering from a disability or prolonged illness. In our opinion, if a citizen or a member of a 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 a citizen or a member of the family unit, then in those circumstances are intended to be comprehended by the expression "other serious circumstances".”
The MRT then went on to set out the policy factors in PAM3 in considering the requirements of special need relatives. In particular they noted that:
“It is policy that, in the absence of other extenuating circumstances, none of the following on their own constitutes a serious circumstance, a permanent or long term need or requires substantial and continuing assistance”:
·Companionship of the relative
·Homesickness
·General domestic assistance
·Assistance in bringing up children
·Financial support
·Assistance in managing a family business
·Bereavement over death of a spouse
The MRT then found that assistance provided to the nominator by the applicant in 1996 included emotional support and household chores and child care because the nominator was busy with other things at that time. The MRT found that the emotional support provided by the applicant was in addition to the support that the nominator received from her spouse and her sisters and the practical support was provided to allow the nominator to pursue other interests including full time study and a canteen business. The MRT said:
“Applying policy, the Tribunal finds that the assistance provided was no more than general companionship, household assistance and child care. Applying the case of Wu, the Tribunal finds that the nominator's circumstances were not sufficiently serious at the time of application that they required assistance of the same sort that would be required if she was suffering from a disability or prolonged illness.”
The MRT then went on to find that the assistance provided by the applicant to the nominator at the time of decision was an even lesser degree than that provided at the time of application and that the nominator was not affected by serious circumstances requiring substantial and continuing assistance either at the time of application or at the time of the decision.
The Tribunal then found that the assistance could be obtained from her spouse and two sisters living in Melbourne and concluded that the review applicant was not a special need relative as defined in regulation 1.03 at the time of application and does not satisfy clause 806.213. As the review applicant failed to satisfy all the necessary criteria at the time of application, the remaining criteria were not considered by the Tribunal.
Did the MRT err?
One way of approaching this case would be to consider whether, assuming all the errors identified by the applicant are established, s.474(1) of the Act precludes the applicant obtaining relief under s.39B(1) of the Judiciary Act. If s.474(1) as construed by the Full Court in NAAV has that effect, there would be no need to consider whether independently of s.474(1) the MRT committed any jurisdictional errors in the sense as described in Craig v South Australia (1995) 184 CLR 163 at 179 and Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf (2001) 206 CLR 323 at 346.
I consider the more appropriate approach, in this case however is to address first whether any of the alleged errors have been established independently of s.474(1) and then consider the application of that provision. I take this course first because the parties themselves approached the case in this way, and secondly the High Court has reserved judgment in proceedings in which the validity of s.474(1) has been challenged: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte applicants S134/2002 (judgment reserved 4 December 2002). If the High Court challenge succeeds, or that Court takes a different view of the construction of s.474(1), any appeal from this decision may have to canvass the question of jurisdictional error without reference to the operation of s.474(1) as construed in NAAV.
The essence of the evidence on behalf of the applicant at the time of the application is contained in Mr Kleynhans' report dated 30 October 1996. He summarises the position and indicates that in his opinion the nominator is highly vulnerable to stress which has a negative effect on her mental and indirectly on her physical functioning. He opines that negative stress prolonged over a period can have long term and disastrous psychological and physiological consequences. He indicates that there is nobody else in Melbourne available to give the nominator the physical and emotional assistance in caring for her children whilst she is doing a course req uired as a precondition to obtain a pension and also as a means of retraining for employment opportunities in Australia. There is no assistance to her without having to pay money for babysitters which cannot be afforded (her husband was working full time). Her sisters in Melbourne are either working full time or have to look after their own children and the family of the husband is of no value as she has an acrimonious relationship with them. The applicant had worked as a primary school teacher in India but her qualifications were not accepted in Australia. She was instructed by the CES to do a course in cooking as there is a demand for people in the hospitality industry.
In Wu v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 1242 Sackville J indicated his understanding of the decision of the Full Court in Wu v Minister for Immigration and Multicultural and Indigenous Affairs (2000) FCA 1817 at par 27 where he said:
In my opinion, the Full Court in Wu intended to hold that the critical question in determining whether a young child has a long term need for assistance "because of … serious circumstances" is whether the circumstances of the nominator create a need for assistance of the same sort that would be required if he or she had a disability or prolonged illness. This interpretation of the Full Court's reasons is supported by
· The emphatic language the Court used in par 41;
· The way in which the Court defined the issue for decision; and
· The fact that in par 43 the Court implied that the matter was to be remitted to the MRT, not because it had any doubt that the nominator satisfied par (a) of the definition of "special need relative" but because the applicant had to satisfy other criteria that had not been addressed by the MRT.
In my view the MRT correctly applied the decision in Wu and the question of whether the circumstances of the nominator amounted to "other serious circumstances" for the purposes of the definition was a question of fact and degree for the Tribunal to determine. There is nothing in the decision of the MRT which would suggest that they did not take into account the totality of the applicant's circumstances when considering whether the nominator's circumstances amounted to "other serious circumstances". In particular, in paragraph 38 of its reasons, the MRT considered, in my view, all of the matters which were being put forward by the applicant which might constitute "other serious circumstances", and determined that those circumstances did not amount to "other serious circumstances", for the purpose of the definition of "special need relative". I find no error of law in the Tribunal's approach at the time of the application.
Whilst the MRT set out the policy guidelines to be considered, the findings of the MRT do not lead me to conclude that a wrong approach to the Regulations was adopted by the MRT or that they failed to take into account the totality of the nominator's circumstances.
The second ground of review alleges a breach of the requirements of procedural fairness in that the MRT failed to notify the applicant of its proposed rejection of the psychologist's report. The report which was rejected was that of 20 August 2001 (par 30 of the MRT's findings CB80). I find that the MRT erred in rejecting the evidence of the psychologist in particular and further failed to accord procedural fairness to the applicant in not advising that it intended to reject the evidence or to give the applicant a further opportunity to rectify or deal with that portion of the report which it found offensive. Whilst the MRT was correct in concluding that it was inappropriate for a psychologist or expert to offer an opinion on whether the review applicant is a special need relative, and that matter was a matter for the Tribunal, the fact that an opinion was offered does not of itself, make the report in its totality a less than honest and unreliable professional opinion of the nominator's psychological condition. The expression of an opinion alone, in my view is not a reason to reject all of the evidence in the report and certainly, the MRT ought to have given the applicant the opportunity to either have the report corrected or to explain the circumstances in which the opinion came to be given. The Tribunal is required to conduct the review fairly and in my opinion on this particular review it failed to do so; Muin v Refugee Review Tribunal (2002) HCA 30.
However the failure by the Tribunal to accord procedural fairness on this point does not effect the outcome of this review. First, the majority position in NAAV precludes the application of procedural fairness other than as expressly provided for in the Act. The review adopted by the majority of the five member Court that determined that case was that the rules concerning procedural fairness, which had previously been upheld in the High Court of Australia, for example in cases such as Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Miah (2001) 171 ALR 238 no longer applied. Thus any lack of procedural fairness does not advance the applicant's case.
Secondly, the applicant is required to establish compliance with the Regulations both at the time of the application and at the time of the hearing. As the applicant had not established the ground at the time of the application any positive findings which could be made at the time of the hearing would not be of assistance. Accordingly, the application must be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
Date: 20 January 2003
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