Kaur v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 961

FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 961

MIGRATION – appeal from decision of Federal Magistrates Court dismissing application for review of decision of Migration Review Tribunal affirming decision not to grant a Family (Residence) (Class AO) visa – whether

Federal Court of Australia Act 1976 (Cth) s 25(1A)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth) reg 1.03

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 cited
Kaur v Minister for Immigration [2003] FMCA 165 cited
SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80 cited

JASWANT KAUR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N661 OF 2003

EMMETT J
4 AUGUST 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N661 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	JASWANT KAUR APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	4 AUGUST 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        the appeal be dismissed;

2.        the appellant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N661 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	JASWANT KAUR APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	4 AUGUST 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a national of India.  On 11 August 1997, she applied for a Family (Residence)(Class AO) visa under the Migration Act 1958 (Cth) (‘the Act’). The application was based on an assertion that the appellant is a ‘special need relative’ in relation to her mother, who is an Australian citizen.  A delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant the visa on 23 March 2001.  On 9 April 2001, the appellant lodged an application for review of that decision by the Migration Review Tribunal (‘the Tribunal’).  On 23 September 2002, the Tribunal affirmed the decision not to grant the visa.

2. The appellant then applied for relief under s 39B of the Judiciary Act 1903 (Cth) in respect of the decision of the Tribunal. That matter came before the Federal Magistrates Court for hearing on 1 May 2003. On 13 May 2003, Raphael FM ordered that the application be dismissed and the appellant pay the Minister’s costs: see Kaur v Minister for Immigration [2003] FMCA 165.

3. By notice of appeal filed on 2 June 1003, the appellant appeals to the Federal Court of Australia from the orders of the Federal Magistrates Court. On 11 July 2003, the Chief Justice directed, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), that the appeal be heard and determined by a single judge.

4. The grant of a visa to the appellant, pursuant to the nomination of her mother, depends upon whether, at relevant times, the appellant was a ‘special need relative’ in relation to her mother. Under reg 1.03 of the Migration Regulations 1994 (Cth) (as it was at the time the application for the visa was made), ‘special need relative’ in relation to an Australian citizen usually resident in Australia means a relative who is able and willing to provide substantial and continuing assistance to the citizen if:

   (a)the citizen has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen; and

   (b)the assistance cannot reasonably be obtained from any other relative of the citizen who is an Australian citizen, or from welfare, hospital, nursing or community services in Australia.

5. The appellant entered Australia on 4 September 1996 under a Tourist (Short Stay) visa.  She was granted Tourist (Long Stay) visas on 12 November 1996 and 4 March 1997.  The last visa, granted on 4 March 1997, was valid until 4 September 1997.  The appellant has held various bridging visas since that date, granted on the basis of the application that is the subject of this proceeding.

6. The appellant’s husband and two daughters, who were included in the application, live in India.  The appellant lived with her husband in India until she left that country on 4 September 1996 to care for her dying father and her mother.  She has a brother and sister living in Australia.  In her visa application, in response to the following questions, the appellant provided answers as indicated:

   ‘77.     What circumstance has led to your relative needing your assistance (eg  permanent disability, death of a close relative, etc)?

   Death of my father: I am my 70 year old widowed mother’s only companion in residence.  She has very poor English and is very dependent upon me.

   78.Give details of the assistance you provide to your relative.

   All washing, cooking, cleaning, housework, shopping, banking, accompanying to doctor, interpretation & translation, provision of general companionship & support.’

7. The appellant’s sister, who resides in Australia, supported the appellant’s application for the visa by a letter dated 8 August 1997, which said, inter alia:

   ‘My mother needs my sister’s assistance on a day to day basis and such support would not be available from community services or welfare because of the culture, language, religion, special diet, etc.  If it was not of [sic] my injury and the operation and the death of my father, my sister would not be needed on a long-term basis.’

8. The Tribunal held a hearing at which the appellant and her mother gave evidence.  The appellant’s evidence was relevantly summarised by the Tribunal as follows:

   ‘[The appellant] believes her mother’s health has deteriorated since the time of the application.  She continues to provide assistance with dressing, cleaning, cooking and attending doctor’s appointments.  She also assists her mother with toileting.  She accompanies her mother from time to time to the hospital in Griffith and Wagga.  She also accompanies her to the park near their unit, and they regularly visit their temple in Griffith. …  She now spends each day with her mother, but does go out alone to do tasks such as the shopping.’

9. The Tribunal summarised the appellant’s mother’s evidence relevantly as follows:

   ‘The [appellant] helps to dress her, with cooking and cleaning, and ensures that she takes her medicine.  She also accompanies her to the doctor, whom she attends approximately every two weeks.  This has generally been the pattern of assistance provided by the [appellant] since the application was lodged. 

   … [The appellant and her mother] moved to a unit in Leeton about 4 years ago.

   … [The appellant’s brother] has lived in Leeton for about one year.  He had previously had problems with his marriage, and he and his wife have been separated for about 1½ years.  … There is only a very small Sikh community in Leeton.’

10. In her amended application to the Federal Magistrates Court, the appellant asserted that:

    ‘The Tribunal exceeded its jurisdiction and constructively failed to exercise its jurisdiction by –

    (1)failing to make findings on my claims as to the care and assistance my mother required and the care and assistance I provided to her.

    (2)failing to consider whether my mother required care because of her age, lack of English skills, social isolation, dependant personality disorder or need for emotional support. 

    (3)Failing to have regard to the evidence of the non-expert witnesses about my mother’s problems, how they had progressed or the assistance she required.’

11. In its reasons, the Tribunal referred to the claims made in the original application, and also to evidence from medical practitioners and other professional providers of services, including a registered nurse with the Greater Murray Health Service.  The Tribunal observed that, while the appellant stated that her mother required assistance because of her father’s death, there was no medical or other professional evidence to support that claim as constituting a permanent or long-term need for assistance of a substantial and continuing nature.  The Tribunal referred to a psychologist’s report to the effect that the appellant’s mother ‘suffers from anxiety and depression, and still grieves for her late husband.’  The Tribunal did not consider that the report established that there was a permanent or long-term need for assistance because of the death of the appellant’s father. 

12. The Tribunal accepted that the appellant’s mother was suffering from medical conditions, in particular, osteoarthritis, peptic ulcers and asthma, and that those conditions caused her pain for which she required medication, and which resulted in decreased mobility.  The Tribunal thereby accepted that the appellant’s mother was affected by a prolonged illness at the time of the visa application.

13. The Tribunal observed that it had taken account of evidence in the form of a psychologist’s report concerning the anxiety and depression of the appellant’s mother.  The Tribunal did not consider that the report indicated that the appellant’s mother suffered from anxiety and depression such that she required permanent or long-term assistance.  The Tribunal observed that there was no other medical or professional evidence that established that assistance was required because of such a psychological condition. 

14. The Tribunal also had regard to a medical certificate of September 1999 to the effect that the appellant’s mother suffered from old age and infirmity.  The Tribunal, however, did not consider that the certificate established that a long-term or permanent need for assistance of a substantial and continuing nature resulted from that old age and infirmity.  The Tribunal said, therefore, that it was not satisfied that the evidence established that, at the time of the visa application, the appellant’s mother had a permanent or long-term need for assistance because of other serious circumstances affecting her.

15. The Tribunal then referred to the assertions of the visa applicant that her mother needed assistance with washing, cooking, cleaning, housework, shopping, banking, keeping medical appointments, being accompanied to the temple in Griffith, interpretation and provision of general companionship and support.  Having done so, the Tribunal then observed that there was very little medical or other professional evidence to indicate that, at the time of the visa application, the need of the appellant’s mother for assistance because of her illness was permanent or long-term.

16. The Tribunal referred to evidence from legal practitioners and from the Greater Murray Health Area Service, to the effect that the appellant’s mother had decreased mobility and required medication for her medical conditions and resulting pain.  The Tribunal, however, did not consider that that evidence clearly established the type and level of assistance needed at the time of the visa application because of the medical condition of the appellant’s mother.

17. The Tribunal was not satisfied, having regard to the evidence before it, that at the time of application for a visa, the appellant’s mother had a permanent and long-term need for assistance because of the death of her husband, or disability, prolonged illness, or other serious circumstances affecting her.  The Tribunal therefore found that the appellant was not a ‘special need relative’ of her mother.

18. The appellant’s complaint is that the Tribunal failed to respond to a substantial, clearly articulated argument relying upon established facts: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394[24]. She says that the Tribunal overlooked crucial material amounting to an integer of the appellant’s claim and that the Tribunal made its decision without having considered all the claims made by the appellant. Thus, the appellant asserts that the Tribunal failed to complete the exercise of jurisdiction embarked on by it: see SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80 at [29].

19. Those contentions were advanced before the Magistrate.  His Honour observed that the elements or integers of a claim for a visa of the class applied for was that the appellant was a ‘special need relative’ as defined in reg 1.03. That required the nominator, namely, the appellant’s mother, to have a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting her. They are the matters that the Tribunal is bound to consider. His Honour observed that the matters raised by the appellant, namely, her mother’s requirement for care of the type and for the reasons expressed were, at their highest, both assertions and evidence of that integer.

20. While his Honour found that the Tribunal’s reliance solely on expert evidence and its apparent disregard of the lay evidence regrettable, his Honour did not consider that that constituted the failure to exercise jurisdiction.  His Honour was unable to come to the conclusion pressed by the appellant that the Tribunal, having made no findings about whether the appellant’s mother required care because of her age, lack of English skills, etc, did not take those matters into account at all and thus failed to take into account relevant material.  Having regard to the extensive recitation of the evidence and the reference to those matters in the Tribunal’s reasons, his Honour did not consider that such an inference was open.

21. The grounds of appeal to this Court are as follows:

    ‘1.       His Honour erred in holding that the “[integers] of a claim” are that a person satisfies the criteria for the relevant visa.  His Honour should have held that the “[integers] of a claim” are the grounds on which an applicant claims to satisfy those criteria.

    2.His Honour erred in finding that it was sufficient for the Migration Review Tribunal to refer to claims made by and on behalf of the [a]ppellant.  His Honour should have held that the Tribunal's failure to make findings on those claims meant it did not consider [the] material, and, by disregarding them, had exceeded its jurisdiction or failed to exercise its jurisdiction.’

    The appellant, through her counsel, contended that the issue was whether the Federal Magistrates Court’s view of what constitutes the elements or integers of a claim was erroneous and whether that Court erred in holding the Tribunal had not failed to deal with elements or integers of the appellant’s claims.

22. The contention on behalf of the appellant was that the case formulated before the Tribunal was that her mother had a need for assistance because of:

    (1)       the loss of the support and companionship of her husband,

    (2)       her age,

    (3)the fact that she was an invalid with osteoarthritis of the knee and cervical spine and related pain and reduced mobility and a peptic ulcer, asthma and recurrent chest infections and the need for medication,

    (4)her lack of English and social isolation,

    (5)a dependant personality disorder and the need for emotional support on a daily basis.

23. The appellant asserts that her mother’s age, infirmity, lack of English skills, social isolation, dependant personality disorder and the need for emotional support were all material questions of fact going to whether ‘other serious circumstances’ existed within the meaning of the definition in the regulation.  She says that the Tribunal, by confining itself to the evidence of the expert witnesses, made no findings on, and gave no reasons for rejecting, the evidence of the other witnesses,  being the appellant, her mother and her sister.  I do not consider that a fair reading of the reasons of the Tribunal justifies such a complaint.

24. The Tribunal clearly had regard to the evidence of the appellant and her mother to the effect that her mother needs assistance with washing, cooking, cleaning, housework, shopping, banking, keeping medical appointments, being accompanied to the temple in Griffith, interpretation and provision of general companionship and support.  There is nothing in the reasons to indicate that the Tribunal did not accept those assertions as true.  The question, however, was whether, even if that be so, it can be said that the appellant’s mother has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting her.

25. I do not read the reasons as a rejection of the assertions made by the appellant and her mother. Rather, I consider that the reasons indicate that the Tribunal would not accept that those matters satisfy the criteria of reg 1.03, in the absence of medical and other professional evidence concerning the nature of the needs of the appellant’s mother. Thus, at one stage, the Tribunal observed that, while the appellant stated in her application that her mother required assistance because of her husband’s death, there is no medical or other professional evidence to support the claim that the appellant’s mother had a permanent or long-term need because of her husband’s death.

26. The Tribunal accepted that the appellant’s mother was affected by a prolonged illness at the time of application.  The Tribunal also accepted that the appellant’s mother suffered from anxiety and depression.  However, the Tribunal had regard to the fact that the medical and professional evidence did not establish that assistance was required because of that condition.  The Tribunal was not satisfied that the evidence established that the appellant's mother had a permanent and long-term need for assistance because of other serious circumstances affecting her.  That reference was to the evidence generally and not only to medical and professional evidence.  On a fair reading, the observation by the Tribunal that it was not satisfied that the evidence established that, at the time of the visa application, the appellant’s mother’s stated need for assistance was permanent or long-term and was a result of her illness is not limited to the medical and professional evidence, albeit that that observation appears at the end of a paragraph dealing with the paucity of medical and other professional evidence.

27. I do not consider that there was any error on the part of the Magistrate in formulating the integer or claim that was made on behalf of the appellant.  The claim was that, having regard to the matters about which the appellant gave evidence, her mother had a permanent or long-term need for assistance.  That claim was expressly dealt with by the Tribunal.  It was not necessary for the Tribunal to make specific findings about the assertions made by the appellant, assuming that it did not do so.  In my view, no error has been shown on the part of the Federal Magistrates Court. 

28. Accordingly, I consider that the appeal should be dismissed.

I certify that the preceding twenty eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             15 September 2003

Counsel for the Applicant:	C H P Colborne
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	4 August 2003
Date of Judgment:	4 August 2003