KAKUMAustralian National University v Minister for Immigration - [2004] FMCA 231

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KAKUMANU v MINISTER FOR IMMIGRATION

[2004] FMCA 231

MIGRATION – Review of decision of Migration Review Tribunal – Application for Family (Residence) (Class (AO) Subclass 806) visa – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth)
Judiciary Act 1903(Cth)
Migration Regulations 1994 (Cth)

Craig v South Australia (1995) 184 CLR 163
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Re Minister for Immigration and Multicultural Affairs and Others; Ex parte Cohen (2001) 177 ALR 473
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Su and Minister for Immigration and Multicultural Affairs [2001] FCA 1409
Koulaxazov v Minister for Immigration and Multicultural Affairs [2002] FCA 554

Applicant:

TEREJAMMA KAKUMANU

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 241 of 2003

Delivered on:

21 April 2004

Delivered at:

Melbourne

Hearing date:

25 March 2004

Judgment of:

Hartnett FM

REPRESENTATION

Counsel for the Applicant:

Mr Kissane

Counsel for the Respondent:

Armstrong Ross

Solicitors for the Applicant:

Mr Mosley

Solicitors for the Respondent:

Australian Government Solicitor

ORDER

The application is dismissed.
The applicant pay the costs of the respondent as agreed and failing agreement, as determined by this Court upon application made to it.
It is certified that this matter reasonably required the attendance of counsel as advocate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 241 of 2003

TEREJAMMA KAKUMANU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

On 12 March 2003 the applicant filed an application to review a decision of the Migration Review Tribunal (MRT) under s.39B of the Judiciary Act 1903 (Commonwealth) and sections 475A, 477, 478 and 479 of the Migration Act 1958 (Commonwealth) (“the Act”).
The applicant sought orders in the nature of prohibition and certiorari and a declaration claiming the decision of the MRT was affected by jurisdictional error as set out in paragraphs 3, 4 and 5 of that application.

History

The visa applicant is the mother of Mrs Vijay Metlapalli, the nominator in the visa application. Mrs Metlapalli is a permanent resident of Australia. Her mother and father, both of whom were permanent residents of India, arrived in Australia in preparation for the birth of Mrs Metlapalli's first child. Mrs Metlapalli had immigrated to Australia in May 1993 as a skilled migrant. She had then sponsored her finance, who arrived in Australia in October 1993. They married on 29 October 1993 and their first child, a daughter was born on

1 April 1996.
On 9 January 1996 the visa applicant and her husband arrived in Australia on Subclass 686 Tourist (Long Stay) visas valid to 11 June 1996. On 11 June 1996 the visa applicant applied for and was granted her second Subclass 686 Tourist (Long Stay) visa valid to 9 January 1997.
On 13 September 1996 the visa applicant's husband applied for a Subclass 430 supported dependent (Temporary) visa. His spouse, the visa applicant in these proceedings, was included as a dependent in his application. At that time both the applicant and her spouse were said to be dependent on their daughter in Australia. In support of their application for that visa, the visa applicant in these proceedings, and her husband, were said to be –
psychologically, emotionally and especially financially dependent on [their daughter] either wholly or substantially for several years. Ever since her parents first arrived in Australia on 9 January 1996 they have lived with their daughter and have been totally dependent on her.
At the time the applicant’s daughter was working as a software engineer for NEC.
On 26 March 1997 the visa applicant's husband was granted a Subclass 430 supported dependent (Temporary) visa valid for a year.
On 19 February 1998 and before the expiration of the supported dependent (Temporary) visa the visa applicant applied for permanent residence in Australia on the grounds of being a special need relative to her daughter, Mrs Metlapalli and their granddaughter. The applicant's husband was included on that application as a family member. The visa applied for was a Family (Residence) Class (AO) Subclass 806 Family (Special Need Relative) visa.
Mrs Metlapalli obtained Australian citizenship in September 1995. She and her husband now have three children. Mrs Metlapalli nominated her mother, the applicant, as her special need relative. The nomination included the applicant's husband as a member of the applicant's family unit.
On the 6 December 2001 a delegate of the respondent refused to grant the Visa. Application for review of that decision was made to the Migration Review Tribunal on 20 December 2001. The Tribunal conducted a hearing on 4 February 2003 and affirmed the decision under review. The decision is dated 14 February 2003. The applicant made application to this Court for a review of that decision.
At the hearing held on 4 February 2003 the nominator, visa applicant and the nominator's husband all gave evidence.

Legislative framework

Section 65 of the Act provides that where the Minister is satisfied that the relevant criteria for a particular class of visa is satisfied, the Minister is to grant the visa and if not so satisfied is to refuse to grant the visa. The criteria for the grant of a Subclass 806 visa was set out in Part 806 of Schedule 2 to the Migration Regulations 1994. Part 806 was repealed by SR259 of 1999 Reg 4 and schedule 2. The criteria in force at the date of the application (including the definition of "special need relative") however continues to apply to the application (Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at 478 and 480 per McHugh J).
The criteria included criteria to be satisfied both at time of application and time of decision. One of the criteria to be satisfied at time of application for the grant of a Subclass 806 visa was clause 806.213 which required that a visa applicant is a special need relative of another person who has nominated the visa applicant for the grant of the visa. Clause 806.221 provided that:
A visa applicant must continue to satisfy the criterion in clause 806.213 at time of decision.
Clause 806.213 provided:
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.
The terms “special need relative” and “settled” were defined in Regulation 1.03:
Special need relative, in relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or an eligible New Zealand citizen, means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:
(a) the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and
(b) the assistance cannot 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.
"Settled" in relation to an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means lawful residence in Australia for a reasonable period.

Findings of the MRT

The MRT determined that the visa applicant was not a special need relative at the time of the visa application and therefore determined it unnecessary for the Tribunal to consider whether the visa applicant was a special need relative at the time of the Tribunal's decision.
The Tribunal had before it legislation, departmental policy as found in publications such as the Procedures Advice Manual Three (PAM3) and the Migration Series Instructions, the departmental file and the MRT case file. The Tribunal also had documentation submitted with the application, a report by psychologist Irvin De Jong dated 15 April 1998, written statements by the visa applicant, the husband of the nominator and reports by doctors Uday Dixit and Dr Patrick dated January 2001. A further report dated 9 March 2002 was submitted by the applicant's agent, being a clinical psychologist's report of Christine Brown.
The nominator's history prior to application was described in the report dated 9 March 2002 by the psychologist Christine Brown. The psychologist stated that the nominator studied and obtained Bachelor and Masters degrees in India and was a lecturer. When she came to Australia in 1993 it was her first time away from her mother. The nominator claimed she did not suffer migraines when in India or experience depression. However, she became depressed soon after her arrival. She experienced difficulties with her studies and was always thinking about her parents. The nominator commenced studies at RMIT, however, could not sit the first semester exams and discontinued. Six months later the nominator became a research student in Robotics at Monash University, which she studied for a year but ceased because of depression and migraines. The nominator worked as a part-time lecturer at Footscray TAFE when she studied at RMIT and while studying at Monash she worked as a part-time tutor. In between her two attempts to study, she worked as a process worker.
The visa applicant stated that the type of assistance she provided to her daughter and granddaughter was physical, emotional and psychological.
The nominator claimed she was very happy when her parents arrived in Australia when she was pregnant with her first child and that with their physical and emotional support she was able to get back to work and study again. She became a team leader in IT and completed a Masters Degree in Telecommunications. The nominator claimed she needed assistance from her mother for physical and emotional support due to her depression and migraine headaches. The nominator also claimed to require emotional and physical support from the visa applicant because of loneliness brought about by migrating to Australia and the loss of contact with her mother. The nominator claimed her husband could not provide the type of assistance she required as he worked long hours. In determining whether the nominator had a permanent or long term need for assistance the Tribunal noted that loneliness, mental deterioration, age and infirmity could, when taken together, constitute a disease, disability or prolonged illness (Su and Minister for Immigration and Multicultural Affairs [2001] FCA 1409)
In regard to the nominator's daughter, Lakshmi, who was also named as requiring assistance, there appeared to be no need advanced beyond that of an infant. The psychologist, Irvin De Jong, described Lakshmi as having developed a very dependent relationship on the visa applicant who was her "primary care giver".
The Tribunal considered what the nominator actually needed by way of assistance as a result of both her claimed condition and that of her daughter. In addition, the Tribunal considered whether the nominator's need for emotional and physical support from the visa applicant constituted other serious circumstances within the terms of Regulation 1.03.
The Tribunal noted that although the definition of a special need relative was applicable to a person whose principal need was emotional support, it was open to the Tribunal to make an objective assessment of the emotional support that an applicant proposed to provide.
The Tribunal found that the nominator had been able to continue to study and work in a relatively sophisticated and well paid field since her arrival in Australia. The Tribunal found that the nominator appeared to have had few breaks in her work and study which she performed at a relatively high level. The Tribunal found the nominator had not been referred for psychiatric care or prescribed drugs for any condition on prescription from a medical practitioner.
The Tribunal noted the psychologist, Irvin De Jong, stating in his report made at the time of application:
That the nominator had taken on the role of looking after her parents for the rest of their lives and felt she had a responsibility to look after them.
The visa applicant’s earlier claim that she was a dependant of the nominator appeared to contradict the nominator's claims in the application before the Tribunal which is now the subject of review. In 1996 the applicant and her husband were psychologically, emotionally and financially dependent on the nominator and two years later the situation was stated to be a dependence by the nominator psychologically and emotionally on the visa applicant covering in part the same period of time.
The Tribunal also looked to whether the assistance claimed to be needed by the nominator could reasonably be obtained from another relative or welfare, hospital, nursing or community services. The Tribunal noted the evidence of the nominator who stated that she had no close relatives in Australia who could provide assistance except her husband who was busy with his full time work and business activities. The Tribunal noted the assistance that could possibly be obtained from welfare, hospital, nursing or community services in Australia. The Tribunal noted no other consultations with psychologists were made other than those apparently made at the request of the Migration Agent with Irvin De Jong at application in February 1998 and Christine Brown in support of the review application in March 2002. Based on the type of assistance that appeared to be provided by the visa applicant, the Tribunal found a range of child care or child minding centres available, particularly for parents who were in professional employment and claimed, as the nominator had stated, to be earning "very good money".
The Tribunal did not find that the anxiety, depression and migraine attacks of the nominator constituted a serious circumstance within the meaning of the Regulation. While the migraine attacks were clearly debilitating, the nominator was still able to work. The Tribunal also found that assistance could reasonably be expected to be provided from the nominator's husband and that there were child care and other services available to assist with the children, especially when the nominator had a migraine attack. Considering those elements, the Tribunal did not regard the situation of the nominator or her daughter as one that was a serious circumstance or one that required substantial and continuing assistance.
The Tribunal noted that whilst it was obviously helpful to the nominator for her parents to assist with babysitting and housework and for her to have the companionship of her parents, all were elements that in PAM 3 that, in the absence of other factors, were said to not normally constituting a serious circumstance or permanent or long term need that required substantial and continuing assistance. The Tribunal noted that many households with children and both parents working experienced stress.

Consideration

The MRTs decision is a privative clause decision within section 474(2) of the Act. The phrase "privative clause decision" in s.474(1) is defined in s.474(2) so as to mean, relevantly, a –
decision ... made under this Act.
A decision will not be regarded as made under the Act if it involves a failure to exercise jurisdiction or an excess of jurisdiction. An administrative tribunal exceeds its power and thus commits a jurisdictional error if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material. Or in some circumstances, makes an erroneous finding or reaches a mistaken conclusion in a way that affects the exercise or purported exercise of the tribunal's power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This list is not exhaustive. Those different kinds of error may well overlap (Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 21). Whatever the scope or extent of jurisdictional error of law I must determine the matter in accordance with the law as set out in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.
The question of whether a person is a "special need relative" is essentially a question of fact for the decision-maker. As McHugh J said in Re Minister for Immigration and Multicultural Affairs and Others; Ex parte Cohen (2001) 177 ALR 473 when considering the same Regulation as in the present matter, at 35 to 36:
[T]he expressions "disability" and "other serious circumstances" were used in reg 1.03 in their ordinary, non-technical sense. The ordinary meaning or common understanding of a non-technical word is generally a question of fact: Hope v Bathurst City Council (1980) 144 CLR 1; Collector of Customs v AGFA-Gevaert Limited (1996) 186 CLR 389. Leaving aside questions of jurisdictional fact, an administrative tribunal will ordinarily not commit a jurisdictional error unless it has made an error of law (cf Craig v South Australia (1995) 184 CLR 163 at 179). A factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact. Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.
In examining the reasons of the Tribunal, the Court is also mindful of the High Court's injunction in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 against over-zealous judicial review and an undue concentration on inadequacies of expression in the Tribunal's reasons.
For the visa to be granted it was necessary for the Tribunal to be satisfied that the relevant criteria to be satisfied as at the time of application were in fact satisfied. This involved a question of fact finding for the Tribunal and it is not for this Court to determine otherwise, provided the Tribunal approached its task correctly as a matter of law. That process required the Tribunal to consider whether the applicant was a special need relative of her daughter and grand daughter as at 19 February 1998, which was the time of application. In order to determine that, the Tribunal was required to evaluate the evidence available to it and put before it by the applicant.
The applicant argued that the MRT failed to deal with the claim that the nominator had a permanent or long term need of assistance because of a prolonged illness. It said that the Tribunal made no findings as to whether the nominator's depression and/or migraines amounted to a prolonged illness. The applicant argued that by failing to make findings on this matter, the MRT failed to deal with the case of the visa applicant.
The applicant also argued that the MRT should have considered whether the nominator's depression, anxiety and migraines or a combination of those, amounted to other serious circumstance even if it did not amount to a prolonged illness.
The applicant further argued that the MRT failed to make findings on the psychological material presented to it and in its failure to make findings about whether the nominator suffered from a prolonged illness or other serious circumstance it precluded itself from making appropriate findings about whether the nominator had a permanent or long term need for assistance. It was asserted that no clear findings were made in relation to the latter part of the test. Further, it was said the MRT made no findings as to whether the visa applicant was willing and able to provide substantial and continuing assistance and thus overall failed to deal with the claims of the visa applicant and failed to make findings in relation to the test of special need relative.

I reject these submissions. It was clearly open on the evidence before it for the Tribunal to find that at the time of application the nominator did not have a permanent or long-term need for assistance. It was then not necessary for the Tribunal to consider, as it did, other aspects of the definition all of which needed to be satisfied and which the Tribunal as to those it considered found, in any event, could not be so satisfied (See Koulaxazov v Minister for Immigration and Multicultural Affairs [2002] FCA 554).
The Tribunal's findings were findings of fact open to it on the material before it It clearly considered all of the elements of the applicant's claim. There is no demonstrable error of law on the part of the MRT such as to vitiate its decision. I shall dismiss the application.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate: Sophie Killen

Date: 21 April 2004