KAUR v Minister for Immigration
[2004] FMCA 110
•17 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KAUR v MINISTER FOR IMMIGRATION | [2004] FMCA 110 |
| MIGRATION – Application for review of a decision of the Migration Review Tribunal – applicant sister of the visa applicant – Preferential Relative (Migrant) (Class AY, subclass 104) visa – whether the Tribunal’s findings were errors constituting jurisdictional error and whether the decision falls within section 474 of the Migration Act therefore not invoking a privative clause decision – whether the Tribunal failed to address the proper meaning of special need relative – whether the Tribunal failed to characterise the nominator’s problems and needs – whether the Tribunal fell into error in failing to ask itself the correct question applying the definition of other serious circumstances. |
Migration Act 1958 (Cth), s.474
Migration Regulations 1994 (Cth), Regs 1.03
Federal Court Rules
Federal Magistrates Court Rules
Su v Minister for Immigration and Multicultural and Indigenous Affairs (2001) FCA 1409
Chow v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 88
Hussein v Minister for Immigration & Multicultural & Indigenous Affairs (1999) FCA 1621
Wu v Minister for Immigration & Multicultural & Indigenous Affairs (2000) FCA 1817
Plaintiff S157/2002 v Commonwealth of Australia (2003) HCA 2
Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194
Fudeche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515
| Applicant: | NARJAN KAUR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 155 of 2003 |
| Delivered on: | 17 June 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 8 August 2003 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Ms Langdon |
| Solicitors for the Applicant: | Buxton & Associates |
| Counsel for the Respondent: | Mr Livermore |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
In accordance with my reasons, I order that the Application be dismissed.
The Applicant pay the Respondent’s costs in default of agreement to be taxed pursuant to Order 62 of the Federal Court Rules having regard to Schedule 1 of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ155 of 2003
| NARJAN KAUR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is the sister of the visa applicant. The visa applicant applied for a Preferential Relative (migrant) (class AY, subclass 104) visa on 6 July 1998 on the basis that the visa applicant was a special need relative of the applicant.
The applicant claimed, in general terms, that she required the assistance of her sister to look after her son and to provide her with help and support. She said this was required because she had separated from her husband and was under a great deal of emotional stress as a result of the breakdown of her marriage and harassment by her estranged husband. The applicant provided copies of documents including reports from a consultant psychiatrist.
On 8 March 2001 a delegate of the respondent refused the application on the basis that the assistance required by the applicant did not fall within the statutory definition of special need relative. The applicant sought a review of the delegate's decision and submitted additional documents relating to her suffering from an arthritic condition and the impact of that condition upon her employment. The hearing was conducted on 10 October 2002 and the applicant gave evidence.
The legislative framework
The Migration Act 1958 (Cth) (the Act) and various Regulations made under the Act provide for different classes of visas and the criteria for the granting of visas. At the time the visa application was lodged, class AY, contained only one subclass: subclass 104 (preferential family). The visa application was made on the basis that the visa applicant claimed to be a special need relative of her sister.
A criterion to be satisfied at the time of that application for the grant of a Preferential Relative (migrant) (class AY) visa relevant to the Tribunal's consideration is clause 104.211. This clause in part provides that the visa applicant is a special need relative of another person called the "Australian relative" and is validly sponsored for the grant of the visa. Clause 104.221 provides that the visa applicant must continue to satisfy the criterion in clause 104.211 at the time of decision.
The term special need relative is defined in Regulation 1.03 of the Migration Regulations 1994:
Regulation 1.03 Special Need Relative
"Special need relative" in relation to an Australia 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 person, or a member or his or her family unit; and
b)the assistance cannot reasonably be obtained from:
i)any other relative of the citizen or relative, being a relative who is an Australia citizen, an Australian permanent resident or an eligible New Zealand citizen; or
ii)welfare, hospital, nursing or community services in Australia;
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. The definition of special need relative in the Regulations requires that the relative has a permanent or long term need because of death, disability, prolonged illness or other serious circumstances, both at the time of application and at the time of decision.
The Tribunal's decision
The Tribunal noted that the applicant had presented evidence that at the time of decision she suffered from disabling rheumatoid arthritis causing significant functional disturbance in both wrists. The Tribunal accepted that at the time of decision the review applicant was affected by a prolonged illness or disability for which she required substantial and continuing assistance.
The Tribunal did not consider whether that assistance could be provided by welfare, hospital or community services as the Tribunal was not satisfied that the applicant was affected by death, disability, prolonged illness or other serious circumstances at the time of application.
The Tribunal noted that the review applicant had advised the respondent's delegate in September 1999 that she suffered from rheumatoid arthritis in both hands and her feet but did not indicate that she required assistance because of that illness. The Tribunal noted that the earliest of the reports from the rheumatologist, Dr Littlejohn, dated 16 November 2000, stated that the review applicant had suffered from rheumatoid arthritis for a number of years. The Tribunal noted that subsequent reports described a deterioration in the condition affecting her arms, but did not mention any difficulty experienced by the review applicant in relation to her feet, which suggested to the Tribunal that her condition was less severe at the time of application than at the time of decision. There was no evidence of the degree of the review applicant's disability or any functional limitations caused by rheumatoid arthritis at the time of application. The review applicant was employed full time as a laundry hand since 1995 and was able to perform all duties required of her until an undisclosed date, when she changed to light work such as folding towels. The Tribunal noted that there was a letter from the review applicant's employer in September 1996 which failed to mention any physical limitations in the review applicant's work performance at that time.
Consequently, the Tribunal found that there was no evidence before it that the review applicant required any assistance at the time of application on the basis of her rheumatoid arthritis, and therefore insufficient evidence upon which the Tribunal could conclude that the review applicant required substantial and continuing assistance at the time of application the basis of her rheumatoid arthritis.
The claim before the respondent's delegate was that the review applicant had experienced a bad marriage and needed help to deal with her ex-husband and care for her son. She was described as being stressed, lonely and afraid. A report from a psychiatrist in May of 1998 suggested that the review applicant was probably suffering from an adjustment disorder with anxiety features. The psychiatrist provided two further reports in November 1999 and November 2000. He did not provide confirmation of his earlier provisional diagnosis or offer any alternative diagnosis. The Tribunal found therefore that there was insufficient evidence before it upon which a finding could be made that the review applicant suffered from a psychiatric illness or psychological condition at the time of application.
The Tribunal noted that the visa applicant had stated that the review applicant suffered from emotional stress due to harassment and threats from her ex-husband which caused her to live in constant fear. The review applicant reported to the psychiatrist in 1998 that she had been abused by her ex-husband and that he had continued to threaten to kill her after the separation. She reported that her ex-husband had attempted to collect her son from school several times. She reported to the psychiatrist in November 2000 that her ex-husband had tried to enter the house and had approached her wanting to talk, which made her feel extremely threatened. However, when asked at the hearing what threats or harassment she had suffered from her ex-husband, the review applicant stated that he stood at her front gate once in 1998 and wanted to take her son for a walk once in the same year. She was unable to recall any other incidents and stated that she had not seen her ex-husband since the divorce in 1999. The review applicant stated that although she had obtained an intervention order against her ex-husband, she did not want him to go to gaol and did not report any incidents to the police. The review applicant stated that she had earlier attempted to reconcile the relationship with her ex-husband.
The Tribunal accepted that the review applicant had obtained an interim intervention order against her ex-husband on 2 October 1997 and that she was granted a final order on 8 November 1999. The Tribunal noted however that at the hearing the review applicant described the situation as significantly less serious than that which was described by her previously. The Tribunal also noted that the review applicant attempted to reconcile her marriage and did not report any threats or harassment to the police. The Tribunal opined that it would expect that if a woman in the situation similar to that earlier described by the review applicant was genuinely in fear of physical harm, she would have taken all available steps to protect herself and her child. The Tribunal noted the review applicant had apparently taken no practical steps to do so, apart from obtaining intervention orders in 1997 and 1999 which she did not enforce. The Tribunal noted that the review applicant did not attend a doctor, psychiatrist or psychologist until two months prior to the date of application. There was no evidence that the review applicant attended the psychiatrist for counselling or that she received any treatment for the claimed emotional distress. The Tribunal therefore found that the review applicant's claim of domestic violence was most likely exaggerated for the purpose of the visa application.
The Tribunal accepted that in determining whether the nominator has a permanent or long term need for assistance, loneliness, mental deterioration, age and infirmity could when taken together constitute a disease, disability or prolonged illness (see Su v Minister for Immigration & Multicultural & Indigenous Affairs (2001) FCA 1409).
The Tribunal found however that the combination of the review applicant's loneliness and need for emotional support to cope with a failed marriage as well as the level of rheumatoid arthritis she suffered from at the time of the application did not amount to a disease, disability or prolonged illness which required substantial and continuing assistance.
The Tribunal also considered whether the review applicant's response to the breakdown of her marriage amounted to "other serious circumstances" for which she required substantial and continuing assistance. The Tribunal noted the approach previously established in Fudeche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 was that a special need relative may include a relative whose presence in Australia would benefit their relative but that this approach had been overturned by the Full Court in Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 and subsequent cases. The mere presence of a person does not amount to providing assistance.
The Tribunal then went on to consider the Procedures Advice Manual 3 (PAM3) which provides guidance on factors to be considered when assessing the requirements of special need relative. The Tribunal noted that the applicant claimed at the time of application that she was lonely and stressed and required emotional support and assistance to care for their young son. The Tribunal further noted that in the absence of extenuating circumstances none of those needs should be considered under policy as amounting to other serious circumstances. The Tribunal considered that the extenuating circumstances claimed by the review applicant were that she was a victim of domestic violence and was in fear from her ex-husband continued threats and harassment. However the Tribunal noted that it had previously found that her claim of domestic violence was most likely exaggerated for the purposes of the visa application and was thus not satisfied that the claimed domestic violence amounted to extenuating circumstances.
The Tribunal found that there was no evidence that the review applicant required any assistance apart from companionship and emotional support to help her cope with the marriage breakdown and help her in caring for her son before and after school. It found the assistance described was not substantial or of the same sort that would be required if the citizen was suffering from a disability or prolonged illness. Thus the Tribunal was not satisfied on the basis of the evidence before it that the review applicant was affected by other serious circumstances which required substantial and continuing assistance at the time of application. The Tribunal thus concluded that the visa applicant was not a special need relative as defined in Regulation 1.03 at the time of application and failed to satisfy clause 104.211. As she was not a special need relative at the time of application the Tribunal did not consider further whether she was a special need relative at the time of decision.
The applicant's grounds
The applicant identified three grounds which it is contended are errors constituting jurisdictional error and therefore s.474 of the Act is not enlivened and the decision therefore not a "privative clause" decision (see Plaintiff S157/2002 v Commonwealth of Australia (2003) HCA 2).
a)that the Tribunal failed to address the proper meaning of special need relative under Regulation 1.03 at the time of application and reached a conclusion that was incapable of supporting the finding which it made.
b)that the Tribunal erred in the process of characterising what were the nominator's problems and her resultant needs; and
c)that the Tribunal erred in failing to ask the correct question applying the definition of other serious circumstances.
In relation to the first ground the applicant contended that her case at the time of application was based upon, or based partly upon the fact that she had a psychiatric illness and that the Tribunal failed to consider the question of whether she had an illness. In particular it was contended that the psychiatric reports[1] were not properly considered by the Tribunal.
[1] See Court Book, pages38-39 and 55-56.
From a fair reading of the first report, the only possible illness which could arise is encapsulated in the following passage:
In my opinion, the patient has probably been suffering from an adjustment disorder with anxiety features[2].
[2] See Court Book, page 39.
The second report provides no diagnosis of an illness but says:
I found her extremely anxious, stressed out, depressed and tearful. She felt helpless, hopeless and useless. She was emotionally extremely liable, she was almost on the verge of a breakdown. She was definitely much worse than any other time I've seen her[3].
[3] See Court Book, page 55.
In relation to the assertion that there was illness on the basis of some psychiatric diagnosis, the Tribunal was required to consider whether the nominator had a "permanent or long term need for assistance because of …. prolonged illness"[4]. The Tribunal found that there was insufficient evidence upon which a finding could be made that the review applicant suffered from a psychiatric illness or psychological condition at the time of application.
[4] See Court Book, page 94.
To the contrary of the applicant's submission or contentions, it appears to me that the Tribunal did have regard to Regulation 1.03 when considering this issue. The whole of subparagraph (a) must be considered, namely whether the nominator has "a permanent or long term need for assistance because of … prolonged illness … affecting a citizen or resident personally". The Tribunal did an analysis of the evidence and found it wanting, in terms of regulation 1.03. That is demonstrably correct. There was no evidence that the review applicant had a permanent or long term need for assistance as a result of what the psychiatrist describes as a possible adjustment disorder with anxiety features prior to May 1998.
Furthermore, the Tribunal correctly considered the question of disability on the basis of her arthritis and found that there was no evidence at the time of application that she suffered from rheumatoid arthritis requiring assistance because of that disability. In particular the Tribunal noted there was no evidence of the degree of her disability or any functional limitations caused by the rheumatoid arthritis at the time of application. Finally, the Tribunal correctly considered whether there was a permanent or long term need for assistance due to loneliness, mental deterioration, age and/or infirmity which if considered together might constitute a disease, disability or prolonged illness as required by Su v Minister for Immigration and Multicultural Affairs (2001). The Tribunal found that the combination of the review applicant's loneliness and need for emotional support to cope with a failed marriage as well as the level of rheumatoid arthritis she suffered at the time of the application did not amount to a disease, disability or prolonged illness which required substantial and continuing assistance.
Finally, the Tribunal considered whether the review applicant's response to the breakdown of her marriage amounted to other serious circumstances and found that it did not.
The Tribunal correctly informed itself as to the manner of considering other serious circumstances set out in Hussein v Minister for Immigration & Multicultural Affairs (1999) FCA 1621 and Wu v Minister for Immigration & Multicultural Affairs (2000) FCA 1817.
The second ground relied upon by the applicant is that the Tribunal erred in the process of characterising what were the nominator's problems and her resultant needs as required by Su v Minister for Immigration and Multicultural Affairs (supra) and Chow v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 88. However in my view the Tribunal did properly and adequately characterise the nominator's problems and her resultant needs. In particular at the time of application the Tribunal considered whether she had a prolonged illness as a result of the psychiatric evidence and whether she had a disability as a result of her arthritis which required a substantial and continuing assistance. The Tribunal also correctly considered whether there were any other serious circumstances for which she required substantial and continuing assistance. In my view it is clear that the Tribunal considered all of the matters raised by the applicant and applied the appropriate test in relation to each.
The final ground was that the Tribunal failed in asking the correct question in applying the definition of other serious circumstances. It is contended that the Tribunal's analysis of serious circumstances was an incorrect interpretation of that expression set out in Wu. There is however nothing to suggest in my view that the Tribunal did err in considering whether the applicant's requirement for emotional support and assistance in the light of her claim to be a victim of domestic violence was incorrect. The Tribunal found that there was no evidence that she required any assistance apart from companionship and emotional support to help her cope with the marriage breakdown and help with caring for her son before and after school[5]. In view of the evidence given by the applicant at the hearing, which conflicted with earlier claims, this was a matter of fact and the Tribunal was entitled to come to the conclusion it did.
[5] See Court Book, page 96.
In my view the Tribunal considered appropriately and correctly all of the claims raised by the applicant and did not err in its consideration of the applicant's claim let alone in any manner which would constitute jurisdictional error. Thus the application must be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
Date: 17 June 2004
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