Kankanamge v Minister for Immigration
[2005] FMCA 1019
•25 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KANKANAMGE v MINISTER FOR IMMIGRATION | [2005] FMCA 1019 |
| MIGRATION – Migration Review Tribunal – special need relative visa – whether failure to properly consider medical evidence – whether interpretation of special need relative definition correct – no error – pro forma referred to law not an error. |
| Migration Act 1958, ss.29, 31, 31(3), 65 |
| Re Minister for Immigration and Multicultural Affairs Ex parte Cohen (2001) 177 ALR 473 Videla v Minister for Immigration and Multicultural Affairs (2002) FCA 233 |
| Applicant: | DAYARATHNA WICKRAMAPALA WANNIARACHI KANKANAMGE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 408 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 6 June 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 25 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Condliffe |
| Solicitors for the Applicant: | Chandra Weerakoon |
| Counsel for the Respondent: | Mr W.S. Mosley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application filed 31 March 2004 be dismissed.
The Applicant shall pay the Respondent’s costs fixed in the sum of $6,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 408 of 2004
| DAYARATHNA WICKRAMAPALA WANNIARACHI KANKANAMGE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
By an amended application filed 16 June 2004, the applicant seeks judicial review of a decision of the Migration Review Tribunal (the MRT) made on 18 February 2004. In its decision the MRT affirmed a decision of the delegate refusing to grant to the applicant a family visa.
The applicant is a 48-year old male Sri Lankan citizen of Sinhalese ethnicity who entered Australia in January 1996 as the holder of a short stay (visitor) (class TT) sub-class 435 visa. He subsequently held various other temporary visas and had made application for a protection visa which had been refused. The visa history is set out in the MRT decision in paragraphs 8 and 9 of the decision as follows:-
“8.The visa applicant arrived in Australia in January 1996 as the holder of a short stay visitor visa that ceased on 12 February 1996 when he then applied for and was granted a Sri Lankan (Temporary) (Class TT) visa, subclass 435 that was valid until 31 July 1996. He was later granted a further Sri Lankan (Temporary) (Class TT) visa, subclass 435 visa on 12 August 1996 that ceased on 31 July 1997. The visa applicant has held bridging visas since then and was the holder of a Bridging C (Class WC), subclass 030 when this application was made on 31 July 1998.
9. In the meantime, the visa applicant applied for a Protection visa on 30 June 1997. That application was refused on 27 August 1997 and the decision affirmed by the Refugee Review Tribunal on 2 June 2000. When the visa applicant applied for further stay on humanitarian grounds on 25 July 1996 he gave his address as Mildura Crescent in Endeavour Hills.”
On 31 July 1998 the applicant applied for a change in circumstance (residence) (class AG) sub-class 806 family (special need relative) visa. He claimed that he was a "special need relative" in relation to his brother ("the nominator").
The nominator is a 46-year old Australian permanent resident, ordinarily resident in Australia, who entered from Sri Lanka in 1991. He is married with two children aged 10 and 16. As indicated earlier, a delegate of the respondent refused to grant the visa on 10 September 2003 and an application for review of that decision was made to the MRT on 3 October 2003. A hearing was conducted on 10 January 2004 and a decision made, as indicated earlier, on 18 February 2004.
Relevant legislation
The relevant legislation in the present case arises from s.29 of the Migration Act 1958 (the Act) which provides for the granting of visas by the respondent to non-citizens to (inter alia) remain in Australia. Section 31 of the Act provides for proscribed classes of visas. Regulation 2.01 of the Migration Regulations ("the regulations") provides that for the purposes of s.31 of the Act, the proscribed classes of visas are set out in schedule 1. Regulation 2.02 of the regulations provides for the various sub-classes of visas. Regulation 2.03 provides that for the purposes of s.31(3) of the Act, the proscribed criteria for the grant to a person of a visa are as set out in the relevant part of schedule 2. Section 65 of the Act provides that where the minister is satisfied that the relevant criteria for a particular class of visa is satisfied, then 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 sub-class 806 visa is set out in part 806 of schedule 1 to the regulations. Although part 806 was repealed by statutory rule 259 of 1999, regulation 4 in schedule 2, the criteria in force at the date of the application in the present case, including the definition of "special need relative", continue to apply to the application (Re Minister for Immigration and Multicultural Affairs Ex parte Cohen (2001) 177 ALR 473 at 478-480 per McHugh J).
The criteria included criteria to be satisfied both at the time of application and at the time of decision. One of the matters to be satisfied at the time of application for the grant of a sub-class 806 visa is 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 clause 806.213 at time of decision. Clause 806.213 provided:-
“806.213 The applicant is an aged dependant 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 settle eligible New Zealand citizen; and
b) Is usually resident in Australia; and
c) Has nominated the applicant for the grant of the visa.”
Regulation 1.03 defines the expression "special need relative" 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 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 resident; or
(ii) welfare, hospital, nursing or community services in Australia.”
Jurisdictional error
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
Any jurisdictional error detected must of course affect the exercise or purported exercise of power in order to provide a proper basis upon which the Court should intervene by way of judicial review. A failure to take into account a relevant consideration would not of itself constitute an error unless it was a consideration that the Tribunal was bound to take into account (see Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24).
The issues
In the amended application, a number of grounds were referred to, though at the hearing grounds 1, 2, 3 and 4 were pursued. Grounds 5, 6 and 7 were not pursued. It is not necessary to refer in detail to the grounds, save and except that they rely upon jurisdictional error or otherwise assert that an error of law has been made leading to either an exercise of power by the MRT made without authority or constituting improper exercise of power. In submissions made before the court, however, the grounds were summarised in the following terms:-
·Failure to properly consider the medical evidence;
·Failure to apply regulation 1.03 of the regulations as it relates to the definition of "special need relative".
The medical evidence
It is useful to set out by way of background matters which were considered by the MRT in relation to the claim, and in particular the following paragraphs:-
“13.For the purposes of this application the visa applicant stated in the application form that he applied on special need relative grounds. He named his brother Thilakaratna A. Wanni Arachchi Kankanamage as the Australian resident who needed his assistance. In response to questions 77 to 82 in the application form the visa applicant stated that his brother needed his assistance because of his companionship and his own ‘unsure situation’. The visa applicant claimed he gave stable mental support and his brother had sought assistance from a medical professional for treatment for ‘pressures etc’. An accompanying statement provided by the applicant elaborated on his responses. The visa applicant stated that he joined his brother in Australia in 1996 because they had been closely attached to each other since childhood. The applicant lived with his brother and helped with daily chores, did housework and cared for his brother’s children. It was very distressing for his brother and himself that he has no permanent residence status in Australia. His Brother would be very depressed if he had to return to Sri Lanka as his life would be in danger in Colombo. His brother (the nominator) was undergoing treatment for blood pressure, food control, restlessness and other reasons.
14.On 31 August 2999 the Minister declined the visa applicant’s request to exercise his powers of intervention.
15.On 6 January 2003 the Department requested the visa applicant to provide an update on his claims as a special need relative to his brother. The applicant was requested to provide information about the nature of his brother’s disability or illness, the treatment and the nature of assistance given. The response was required to be supported by a report from the nominator’s treating doctor. The visa applicant was also requested to give details of his and the nominator’s employment and whether the nominator was married.
16.The visa applicant provided a response in which he provided a letter from Dr E Kanapathipilli dated 3 February 2003. Dr Kanapathipilli stated that the nominator had attended his/her surgery since 1998. The nominator’s medical conditions were listed as follows:-
·diabetes – of 5 years duration on Diamacron / diet / exercise;
·hypertension of 6 years duration on Amprace / ecercise;
·glaucoma – on Timoptol;
·recurrent Inguinal Hernia – surgery and light duty; and
·anxiety and depression – counselling.
Dr. Kanapathipilli stated that the visa applicant provides physical and emotional support to the nominator and that the anxiety of ‘separation’ from his brother Dayarathna has contributed to diabetes, hypertension and depression.”
It is further noted that in the claim the Tribunal referred to the employment of both the applicant and the nominator. The applicant claimed to have worked as a process worker with Nylex, but stopped work on 1 October 2003 and thereafter stayed at home with the nominator. The nominator apparently also stopped work on 1 October 2003. He worked as a polisher of plastic moulds, though claimed before the Tribunal that he was on a Centrelink pension, though not classified as having a disability.
The medical evidence was provided by the applicant through his then migrant agent and the MRT addressed questions to the applicant in relation to the nominator's medical condition. So much is evident from the following passages in the MRT decision:-
“30.Asked what his brother’s main problem was, the visa applicant said that his hernia was his main problem. He worried about it and he could not carry any weights. He also had medication three times a day, and takes a tablet for his diabetes but does not inject.
31.Asked about his brother at night, the visa applicant said that he goes to the toilet 2-3 times a night, and if uncomfortable would call him, otherwise manages himself. He takes a light snack at night so he does not aggravate his hernia.
32.The sponsor, the visa applicant’s brother gave evidence. He said he had come to Australia in 1991 and one of his sons was born here. He said he has worked for seven years with Telford Smith as a metal polisher. He was put off on
1 October 2003. As his hernia was troubling him he did not seek other work, but has an unemployment pension from Centrelink. He said his first health problem was hypertension, and he takes 2 tablets a day for that. He then was diagnosed with diabetes, and was first on a diet but now takes a tablet for that but does not need to inject insulin. He has had two hernia operations and had some physiotherapy to assist with his hernia problems. He does not take other medication other than Panadol etc when required.”
The medical evidence relied upon by the applicant included two medical reports from a treating general practitioner. It should be noted that in terms of the relevant dates in accordance with the legislation and regulations, the time of application was 31 July 1998 and the date of hearing 10 January 2004. The medical evidence relied upon also post-dated the time of application, and it appears that only one medical report pre-dated the date of hearing. The medical reports from the treating general practitioner, Dr Kanapathipillai, were dated 3 February 2003 (court book page 61) and 3 February 2004 (court book page 84). A further report was provided by a Dr Nallaratnam and is dated 3 February 2004 (court book page 86).
The extract from the MRT decision which sets out the details of the medical condition – that is, in particular, paragraph 16 does not need to be restated. It is evident, however, from that extract that the first report from the treating general practitioner provides at least some general information concerning the nominator's medical condition. It is noted in the first medical report that the reference to "anxiety and depression" also has next to it, presumably in relation to treatment, "counselling". The second medical report from the treating doctor confirms that the nominator had been a patient for "the last six years", which is consistent with the first report which refers to the nominator attending the doctor since 1998. It does not, however, provide further detailed information concerning the duration of the medical problems and/or treatment required.
During the course of submissions in support of the claim that the MRT had failed to properly consider the medical evidence, some criticism was made of the reference which the MRT had in return made to the report from Dr Nallaratnam. The MRT in its decision when referring to that material did not specifically note that the report was from a consultant psychiatrist. It is useful, however, to set out the full text of that report from Dr Nallaratnam as follows:-
“This is to certify that the abovenamed is under my care for the treatment of a nervous illness as a result of having undergone two operations. I am told a third operation is apparently under consideration. He also gives a history of injury to his left shoulder which necessitated Corticosteroids injections and analgesics. Over the past few months his condition has deteriorated. He requires someone who could care for & assist him on a routine regular basis. The individual also needs to be capable of understanding his dialect.”
A number of observations may be made about that extract. The first is that it does not specifically identify a psychiatric illness, and secondly there is little by way of information concerning any treatment offered over and above counselling. Thirdly, whilst there has been a suggestion made of the condition deteriorating over the past few months, the report dated 3 February 2004 does not indicate the date of first consultation, or indeed, as indicated earlier, the full extent and nature of any condition and treatment. It should be noted in relation to this ground that in my view it is not a matter for the MRT to then explore in further detail the medical condition in circumstances where medical reports have been submitted and relied upon. I do not see any error of law arising from the failure of the MRT to refer specifically to the qualification of the consultant psychiatrist, having regard to the brevity of the report available and its obvious inadequacy, and indeed limited use in support of the application before the MRT.
It is useful at this point to set out in part findings of the MRT in relation to the medical evidence as follows:-
“60.Paragraph (b)(i) of the definition of Special need relative provides that the assistance cannot reasonably be obtained from 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. There appears to be no evidence advanced as to why the nominator’s spouse cannot provide whatever assistance is required for the nominator, aside from her statement that she has to work and look after two sons aged 16 and 10 years.
61.Paragraph (b)(ii) of the definition provides that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. The nominator has sought medical assistance from Dr Kanapathipilli who outlined a number of treatments and remedies for each of the nominator’s medical conditions. As such it would appear that the nominator has obtained medical services from an appropriately qualified medical practitioner in Australia. The spouse of the sponsor states she has sought assistance from local bodies but has not indicated the response of the organisations or the actual organisations she approached. Whilst she states 24 hour care is not available, the case of 24 assistance being needed has not been made out.
62.The Tribunal has considered all the circumstances of this case. It is understandable that the two brothers wish to be together and that the visa applicant should want to have his wife and family with him. While the ailments and illnesses of the sponsor have been noted the Tribunal finds that they are not of a serious nature or constitute the serious circumstance envisaged by the regulations. The sponsor was able to work despite his health problems until recently. The Tribunal notes the medical evidence submitted on 10 February 2004, which shows deterioration in the condition of the sponsor, in that he now tends to become drowsy in the daytime, a condition known as narcolepsy, and that his shoulder has deteriorated and he has become more anxious. Mild narcolepsy is not an uncommon condition in middle aged men. While the letter of Dr Kanapathipillai of 3 February 2004 mentions that the sponsor needs ‘long term assistance by someone who can provide him direct, substantial and continuing assistance’, this is not detailed nor substantiated by other sources. None of the evidence presented suggests that this assistance provided by the visa applicant is ‘substantial’. He mainly provides companionship, drives him, and provides day time meals, with the brother’s wife undertaking household chores. The visa applicant also worked up until 1 October 2003 which diminished the time he could assist his brother, the sponsor. Both the visa applicant and his brother were working at the time of application. There appear to be adequate forms of assistance available to the sponsor. His wife should be able to assist him and his children too can provide companionship and solace. It would be expected too that his wife and children should be able to provide the emotional support required. The medical practitioner for the sponsor appears to provide adequate medical care and it has been shown to the Tribunal that these and other medical and hospital services could not be used. The spouse of the sponsor states that she has contacted local council and community services but no evidence has been provided to support this claim or show that these services are not able to provide any assistance. The Tribunal finds that the visa applicant does not meet the requirements of a special need relative at the time of application.”
The most significant finding in relation to the medical evidence is the conclusion by the MRT that the ailments and illnesses of the nominator are not "of a serious nature or constitute the serious circumstance envisaged by the regulations". In my view, the ground relying upon the failure to properly consider the medical evidence should fail. I do not see any error in the reasoning of the MRT of a kind which would justify a finding by this court that the MRT has made any jurisdictional error. It has simply assessed both the evidence provided in the medical reports and the material in answer to questions by the applicant.
Regulation 1.03
It is noted that in particular the MRT asked the applicant a number of specific questions concerning the main problem of the nominator and was told that "his hernia was the main problem". It is clear that the MRT otherwise considered the material as presented. I do not see any error in the way in which the MRT has considered the medical evidence. There is no obligation on the MRT to otherwise pursue by way of its own independent inquiry medical information where reports have been supplied for and on behalf of the applicant together with evidence in support of the application given by the applicant in relation to the nominator's condition.
The issue relating to a failure to apply the criteria in regulation 1.03 requires some analysis of the MRT decision. It is useful in considering the way in which the MRT approached its task to set out the following paragraphs:-
“42.One of the primary criteria is clause 806.212 of Schedule 2 of the Regulations. This in turn refers to clause 3002 of Schedule 3 of the Regulations, which requires that the visa application be validly made ‘within 12 months after the relevant day’.
43.A ‘substantive visa’ is defined in section 5 of the Act as a visa other than a ‘bridging visa’, a ‘criminal justice visa’ or an ‘enforcement visa’. Generally, ‘bridging visas’ provide an interim lawful status while an application for a substantive visa is being considered, or some other process is underway.
44.The ‘relevant day’ in relation to the visa applicant is 31 July 1997, the day on which he last held a substantive visa. As the application for the Class AG visa was made on 31 July 1998 the applicant meets clause 806.212.
45.A criterion to be satisfied at time of application for the grant of a subclass 806 visa is clause 806.213. This clause provides in part, that the visa applicant is a ‘special need relative’ of another person who has nominated the visa applicant for the grant of the visa. It also provides that the nominator must be ‘settled’. Clause 806.221 provides that the visa applicant must continue to satisfy the criterion in clause 806.213 at time of decision.
46.The term ‘special need relative’ and ‘settled’ are 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 or an eligible New Zealand citizen; and
(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 lawfully resident in Australia for a personable period;
47.The Tribunal must consider whether the visa applicant was a ‘special need relative’ at the time of the visa application and whether the visa applicant remains a ‘special need relative’ at the time of decision. Crucial to the definition of ‘special need relative’ in the Regulations is whether the relative has a permanent or long term need because of death, disability, prolonged illness or other serious circumstances. The Tribunal will first consider whether the particular needs of the nominator are in fact of this order. Furthermore, the needs of the nominator have to be present not only at the time of application but also at the time of this decision. In Jun v Minister for Immigration and Multicultural Affairs [2000] FCA 867 the Federal Court held that when considering whether the visa applicant was a special need relative at the time of application and at the time of decision the Tribunal must address each aspect of the definition of ‘special need relative’. Having regard to the criteria set out in the legislation and the considerations set out in Departmental policy, the relevant matters are discussed under the following hearings:
Whether the visa applicant was nominated for the visa by a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. Whether the nominator is settled and usually resident in Australia.
48.The visa applicant was nominated by his brother Thilakaratna A. WANNI ARACHCHI KANKANAMAGE (the nominator), who is a relative as defined in regulation 1.03. The nominator is an Australian permanent resident.
The permanent or long-term need for assistance.
49.To meet the definition of a special need relative, the nominator must have a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the nominator or a member of his/her family unit. The visa applicant must also be willing and able to provide substantial and continuing assistance.”
As I understood the applicant's submissions, it was claimed that the MRT had failed to apply the correct criteria arising from regulation 1.03 of the regulations. In particular, an attempt was made to ensure that a somewhat broader view might be taken when interpreting the criteria. The respondent set out in some detail in written contentions the question to be decided by the MRT in considering whether a person is a "special need relative". It was submitted and I accept that this is essentially a question of fact for the decision-maker. In Re Minister for Immigration and Multicultural Affairs & Ors Ex parte Cohen (2001) 177 ALR 473 (Cohen), McHugh J states the following when considering the definition of "special need relative" at paragraphs 35-36.
“35.The tribunal understood the question that it had to answer. Even if it applied an erroneous precedent, it did not commit a jurisdictional error. The 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.17 Leaving aside questions of jurisdictional fact, an administrative tribunal will ordinarily not commit a jurisdictional error unless it has made an error of law.18 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.
36.If an administrative tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short step to concluding that it did not decide the question that it had to decide. But questions of fact are ordinarily for an administrative tribunal to determine and so are the reasoning processes employed to make such findings. Disagreement with a finding of fact or the reasoning process used to find it is usually a slender ground for concluding that a tribunal misconceived its duty.”
I note further that similarly Weinberg J in Videla v Minister for Immigration and Multicultural Affairs (2002) FCA 233 (6 March 2002) at paragraph 16 to 18 states the following:-
“16 In order for the applicant to qualify as a "special need relative" under the Regulations, the Tribunal had to be satisfied of several distinct matters. These were:
·that he was willing and able to provide substantial and continuing assistance to his sister;
·that she had a permanent or long-term need for assistance;
·that that need arose by reason of "death, disability, prolonged illness or other serious circumstances"; and
·that the assistance could not reasonably be obtained from any other relative who was an Australian citizen or permanent resident, or from welfare, hospital, nursing or community services in Australia.
17 Whether or not the applicant was able to satisfy the Tribunal of each of these requirements involved a question of fact. It was for the Tribunal to determine that question, provided only that it approached the task correctly as a matter of law.
18 It is clear, in my view, that it was open to the Tribunal to conclude that Ms Pozo's depression and medical condition did not give rise to "a permanent or long-term need for assistance". It was also open to the Tribunal to conclude that, to the extent that she required such assistance, it was able to be provided by her other relatives in Australia.”
Counsel for the respondent referred the court to a decision of Sackville J in Zahid v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 670 (30 May 2002) where it is noted that the court cites the decision of the High Court in its decision in Cohen, to which I referred earlier, and otherwise sets out the criteria which it refers to as having "cumulative elements" (paragraph 29). In my view there is no significant divergence between the authorities to which I have referred. Applying the High Court authority of Cohen to the present case, however, it is my view that the MRT has applied the correct criteria and then embarked upon its fact finding mission in a manner consistent with the law. I do not see any factual error, let alone any error of law, in its reasoning process. I am not satisfied that the passages to which I have referred earlier, and in particular paragraph 62 of the MRT decision, could be criticised on the basis that it has failed to apply the appropriate criteria.
While some suggestion is made during the course of submissions for the applicant that a "pro forma" approach has been adopted in this decision, that is not of itself a basis upon which the court could then conclude that the fact finding specifically set out in paragraph 62 of itself would be subject to a successful challenge. It is not a matter for this court to criticise the MRT decision in circumstances where it sets out the relevant law to be applied, and then having considered the facts, makes findings accordingly, even if the decision has the appearance of what might be described in part as a "pro forma" approach. The critical issue is whether the law referred to, which often will appear to be ‘pro forma’, has been applied correctly to the facts of the case and indeed whether the criteria set out is indeed accurate and appropriate.
The authorities referred to by the MRT and the respondent include the decision of the Full Court of the Federal Court in Narayan v Minister for Immigration and Multicultural Affairs [2001] FCA 1745. Relevant paragraphs from that decision include the following:-
“44 We think the opening paragraph itself imposes a criterion which must be satisfied. "Substantial" means "of substance", "significant" or "real". At pars [48] and [55] of its reasons for decision, which were set out at [13] and [15] above respectively, the MRT found as a matter of fact that the "supplementary" emotional support and companionship which Ms Narayan was willing and able to provide was not "substantial ... assistance". That was a factual finding which was open to the MRT, the making of which betrays no error of law.
…..
46 In addition to the ground that the assistance Ms Narayan was willing and able to provide was not "substantial and continuing assistance", the MRT relied on the ground that it was not satisfied that Ms Singh could not reasonably obtain the emotional support and companionship she needed from friends, colleagues and other family members (see [52] of the MRT's reasons for decision set out at [14] above).
47 This was a finding on a question of fact based on the meaning of non-technical words in the legislation: cf Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at [36]-[37] per McHugh J. The finding was open to the MRT on the material before it, and the MRT is not shown to have erred in law in making it.
48 For this further and independent reason, the MRT's conclusion that Ms Narayan did not satisfy the definition of "special need relative" is supportable and is not infected by error of law.”
In my view that authority applies to the present case. The MRT, apart from making the substantive finding in relation to the nominator as not suffering from what is regarded as a condition which could be described as serious or constitute serious circumstances envisaged by the regulation, had proceeded to make a finding that in any event in all the circumstances the spouse and children of the nominator should be able to provide the emotional support required. Applying the decision of Narayan, to which I have referred, it is my conclusion that the MRT was able to proceed beyond an assessment of the condition of the nominator and make findings that there were others from whom the emotional support could be provided, which in this instance include the spouse and children of the nominator. That is a question of fact and on the material before me is not one which could be properly regarded as being infected by error of law.
I accept the respondent's submissions that in the present case, there being no successful challenge to the substantive finding by the MRT, namely that it was not satisfied the assistance provided by the applicant to the nominator was in any event substantial, or its finding that after considering the material it was not satisfied the ailments and illnesses of the nominator were of a serious nature or that they constituted a serious circumstance, that it did not need to proceed to make a finding that the assistance the nominator required could be provided by other relatives or community services in Australia. Nevertheless, having made that finding I accept as a matter of law that it alone would be fatal to this application.
In this case it is useful to be reminded of the comments of Gleeson CJ in Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 190 ALR 402 where his Honour states at paragraph 26 the following:-
“26.As that case showed, identification of the “decision” may constitute an important step in deciding whether there has been an error of law in the form of a breach of a duty to act in accordance with the requirements of procedural fairness. The requirement is to “base [a] decision on evidence”; a requirement as to the way the decision-maker is to go about the task of decision-making. The distinction between judicial review of administrative decision-making upon the ground that there has been an error of law, including a failure to comply with the requirements of procedural fairness, and comprehensive review of the merits of an administrative decision, would be obliterated if every step in a process of reasoning towards a decision were subject to judicial correction.4 The duty to base a decision on evidence, which is part of a legal requirement of procedural fairness, does not mean that any administrative decision may be quashed on judicial review if the reviewing court can be persuaded to a different view of the facts.”
I am satisfied that the applicant has effectively sought to re-agitate the issues which were before the MRT and essentially has sought to argue that there should be a different finding of fact. It is clearly not a matter for this court to substitute any view it may have in the event that it disagrees with the MRT's finding of fact, as to do so would be inappropriate during the course of judicial review. On the material before the court, I see no error of any kind whatsoever which would justify the granting of the application or which would lead the court to conclude that there has been any error of law. It follows that the application should be dismissed with costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 25 July 2005
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