Jayah v Minister for Immigration
[2004] FMCA 228
•20 April 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JAYAH v MINISTER FOR IMMIGRATION | [2004] FMCA 228 |
| MIGRATION – Application for review of a decision of the Migration Review Tribunal affirming a decision affirming a decision not to grant a Family (Residence) (Class AO) visa – ‘special need relative’ – no jurisdictional error – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.430, 474, 474(1)(e), 475
Migration Regulations 1994 (Cth), Regs 806
Minister for Immigration and Multicultural Affairs ex parte Cohen (2001) 177 ALR 473
Moskal v Minister for Immigration, Local Government and Ethnic Affairs (1994) FCA 307
Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 418
Teo v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 194
Hussein v Minister for Immigration and Multicultural Affairs [1999] FCA 1621
Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194
Chow v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 88
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
| Applicant: | TUAN NISTHAR JAYAH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 584 of 2003 |
| Delivered on: | 20 April 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 16 April 2004 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Mr C Weerakoon |
| Solicitors for the Applicant: | Chandar Weerakoon |
| Counsel for the Respondent: | Mr G Gilbert |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
THAT the Application be dismissed.
THAT the Applicant pay the Respondent’s costs fixed in the sum of $6,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 584 of 2003
| TUAN NISTHAR JAYAH |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant Tuan Nisthar Jayah seeks a review under s.39B of the Judiciary Act 1903 (Cth) and s.475A of the Migration Act 1958 (Cth) (the Act) of a decision of the Migration Review Tribunal (the Tribunal). The Tribunal in a decision dated 9 May 2003 affirmed a decision of the delegate of the respondent to refuse the visa applicant a family (residence) (class AO) subclass 806 special need relative visa.
Background
The applicant is a Sri Lankan citizen who came to Australia on 1 December 1997 as the holder of a visitors visa. In an application dated 14 January 1998 he applied for a family (residence) (class AO) subclass 806 special need relative visa. The application was in relation to his older brother Tuan Kitschol Jayah (the nominator) who had come to Australia in 1990 and who had become an Australian citizen on 20 March 1995. The applicant and his wife and young child who were also included in the application lived with the nominator.
The basis of the application was that the nominator was said to suffer from anxiety and depression brought about by separation from his family in Sri Lanka and his concern for the safety of the applicant when he (the applicant) was in close proximity to a bomb blast in Sri Lanka during the civil unrest in that country. The applicant relied heavily on a report from a psychologist Mr Irvin DeJong dated 20 February 1998. The applicant said that the nominator required his psychological and emotional support and that this could not be obtained from any other source.
The relevant legislation
One of the criteria for the then subclass 806 visa was that the applicant be a "special need relative". This is found in subclause 806 of the Migration Regulations 1994 (the Regulations) which relevantly provided as follows:
806.21 Criteria to be satisfied at the time of application.
806.213 The applicant is ... a special need relative of another person who:
(a) is a settled Australian citizen ...;
(b) is usually resident in Australia; and
(c) has nominated the applicant for the grant of a visa.
Although this criterion was removed from the Regulations as of 1 December 1999 and the subclass of visas 806 was discontinued as from 1 November 1999, this does not affect the applicant's entitlement to have the matter determined on the criterion (see Minister for Immigration and Multicultural Affairs ex parte Cohen (2001) 177 ALR 473 at paragraph 23-29). The term "special need relative" was defined in Regulation 1.03 of the Regulations in the following terms:
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.
The Tribunal's decision
The Tribunal was critical of the report of Mr DeJong in a number of respects. It was concerned that the psychologist was expressing an opinion on the very question that the Tribunal needed to determine rather than confining himself to an assessment of the nominator's psychological state. However, it did not reject the evidence of the psychologist on that ground. It noted that Mr DeJong had seen the nominator only once for the specific purpose of the visa application and had not suggested any treatment or further medical testing, nor had he made any reference to the fact that the nominator had held the same full‑time work for six years and had not had to take any time off work during that time by reason of his depression. It noted that the report was internally contradictory in its analysis. It stated that the nominator did not suffer from depression and anxiety if his brother was with him, yet it found that he did suffer from these conditions despite the fact that his brother was with him.
The Tribunal ultimately rejected the report of Mr DeJong. It found that it was inadequate and concluded that it was not satisfied that the nominator suffered from clinical depression or an anxiety disorder. As appears from paragraph 29 of the reasons, the applicant's adviser indicated at the hearing that a report would be obtained from a second psychologist. An extension of time in which to provide this report was sought, but then the Tribunal was notified that it would not be forthcoming and was asked to proceed on the evidence already before it.
The Tribunal went on to consider whether the nominator fell within any of the other categories in the definition of special need relative, in particular whether there were other serious circumstances. The Tribunal took into account the policy in PAM 3 and found that more than a strong sibling bond was required. It found that the applicant's mere presence in Australia did not constitute assistance and that it did not amount to a serious circumstance if the nominator felt sad and depressed if the applicant left the country.
The Tribunal looked at all of the nominator's ailments cumulatively and concluded that they did not amount to a prolonged illness or other serious circumstance. The Tribunal looked also at the fact that there was a variety of treatments available to people suffering from anxiety and depression but the psychologist who had given the report did not suggest any treatment other than that the visa applicant be committed to stay in Australia. The Tribunal found that there was no evidence to indicate that the nominator suffered from a disability or prolonged illness or that the condition that it was claimed the nominator suffered from amounted to serious circumstances. The Tribunal noted that the nominator had been working full‑time and although medical practitioners had prescribed mediation to alleviate his condition, he was not prepared to take that medication.
The Tribunal noted that there was a special bond between the applicant and his brother and that his mere presence assisted the nominator but pointed out that to be a special need relative something more than a close family bond was needed. The Tribunal found that the mere fact that there was a strong bond between brothers does not lead to the conclusion that there was some serious circumstance so as to mean the visa applicant was a special need relative of the nominator. The Tribunal also noted that the mere presence of a person does not amount to providing assistance.
Although the Tribunal did not consider it strictly necessary, it went on to assess whether the type of assistance said to be provided was in fact substantial assistance as required by the Regulations. It found that companionship and help with a mutual hobby could not be so regarded. The Tribunal ultimately found that the applicant was not a special need relative at the time of his application and therefore could not meet the relevant criteria. Again, although not strictly necessary, given that finding, the Tribunal noted that there was no up-to-date medical information and found that the nominator could not in any event satisfy the time of decision criteria.
The applicant's grounds
The applicant's grounds are difficult to discern and to follow and the contentions do not greatly assist in that task. Some of them are simply broad assertions that the decision of the Tribunal was made without jurisdiction, affected with an error of law and made without authority and an improper exercise of the power under the Act. These grounds appear to be argued on the basis that the Tribunal had not addressed or properly considered the ongoing severe emotional anxiety and serious level of depression and failed to come to the conclusion that it was a disability, prolonged illness or other serious circumstance. It appears to be a "no evidence" ground which, in my view, on any reading of the Tribunal's decisions must fail.
Some of the contentions allege a breach of the now repealed s.474(1)(e) and a breach of s.430, which is not relevant to the Migration Review Tribunal but in any event is no longer a separate ground of review. The argument referring to a "breach of procedures" appears to be an argument no longer available.
The main basis of the contentions and the applicant's argument seems to stem from a line of authority in Moskal v Minister for Immigration, Local Government and Ethnic Affairs (1994) FCA 307 and Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 418. The reliance appears to be based upon an argument that the Tribunal did not apply sympathetic and careful consideration of the physical and emotional needs of the nominator, and in the case of Fuduche appears to rely on the fact that Fuduche is an example of a special need which an Australian resident had for the presence of her brother, a need which no‑one in Australia could fulfil. The general reliance upon these authorities miss the essential point of the Tribunal's reasoning, which simply was that the psychologist's report did not establish that the nominator suffered from a disability or prolonged illness or that the condition he had amounted from a serious circumstance. These were matters upon which the Tribunal, in my view, was entitled to come, having regard to the psychologist's report.
In any event, the line of authority in Moskal and Fuduche has since been disapproved (see Teo v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 194 at 206 and Hussein v Minister for Immigration and Multicultural Affairs [1999] FCA 1621). At paragraph 15 of Hussein, Emmett J referring to Fuduche said:
However, that is not the current approach to be taken in the construction of provisions such as these. The Migration Act 1958 (Cth) ("the Act") and the Regulations made under it taken as a whole in effect disclose a compromise which represents a balance between the various competing interests that are involved. The particular pattern that is set by the detailed provisions of both the Act and the Regulations should not be distorted by treating one element in it other than in accordance with the fair meaning allowed by the language that is used. For that reason there is no reason to give a broad and generous construction to such provisions since to do so may detract from the force given in the balance of the legislative scheme to the other interests that are involved (see Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 at 206). Accordingly, I consider that the construction of the language in question is to be undertaken according to the ordinary meaning of the words.
It is significant that the expression that is relied upon by the applicants appears at the end of a phrase, namely, "because of death, disability, prolonged illness or other serious circumstances affecting the citizen," that is to say, "serious circumstances" must be considered in the context of "death, disability and prolonged illness". All three of those matters are obviously serious. What constitutes "other serious circumstances" must be construed in light of those concepts.
It is difficult to discern any arguable ground therefore on the submissions of the applicant. The Tribunal made its decision on multiple bases, any one of which supports the decision. It found against the applicant at the time of application on two different limbs, namely, that the nominator did not suffer from a disability or prolonged illness or other circumstance which required assistance and that the applicant did not in any event provide assistance to the nominator which could be described as substantial. Alternatively, in the absence of any up-to-date medical information, it decided the time of decision criteria were not satisfied.
Generally in its findings the decision of the Tribunal was one of fact and those facts were clearly open to the Tribunal when it found that the nominator did not have clinical depression or anxiety disorder or other serious circumstances which require assistance. The Tribunal correctly understood its task and found that a strong bond between siblings or mere presence did not amount to the provision of assistance. These were findings of fact to which the Tribunal was entitled to come (see Chow v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 88). It was open to the Tribunal to conclude that the fact that the nominator might feel sad or depressed if the applicant left the country did not amount to "other serious circumstances".
Accordingly, I am not satisfied that there is any error by the Tribunal and certainly no jurisdictional error which would mean that this decision of the Tribunal was not a privative clause decision (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24) and as a result the application must be dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
Date: 20 April 2004
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