Mayadeen v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1522

FEDERAL COURT OF AUSTRALIA

Mayadeen v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1522

MIGRATION – review of decision of Migration Review Tribunal – special need relative –care of children – whether failure to address emotional needs as well as learning difficulties amounted to jurisdictional error

WORDS AND PHRASES –“ integer”

Judiciary Act 1903 (Cth) s 39B
Migration Regulations 1994 (Cth) reg 1.03
Migration Act 1958 (Cth) s 359A

Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42] applied
Carlos v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 456 cited

CARMELITA CHRISTOBEL MAYADEEN & ANOR V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NO V 516 OF 2003

HEEREY J
19 DECEMBER 2003
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V516 OF 2003

BETWEEN:

CARMELITA CHISTOBEL MAYADEEN
FIRST APPLICANT

MARINCKA NISHREEN MAYADEEN
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MS GIUSEPPINA HOPKINS (in her capacity as a Member of the Migration Review Tribunal)
SECOND RESPONDENT

MR STEVE KARAS (in his capacity as principal member of the Migration Review Tribunal)
THIRD RESPONDENT

JUDGE:

HEEREY J

DATE OF ORDER:

19 DECEMBER 2003

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application is allowed.

2.The decision of the Migration Review Tribunal made on 5 June 2003 is quashed.

3.The matter is remitted to the third respondent for the Tribunal to be reconstituted by a different member to determine the applicants’ application according to law.

4.The first respondent pay the applicants’ costs to be taxed including reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V516 OF 2003

BETWEEN:

CARMELITA CHISTOBEL MAYADEEN
FIRST APPLICANT

MARINCKA NISHREEN MAYADEEN
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MS GIUSEPPINA HOPKINS (in her capacity as a Member of the Migration Review Tribunal)
SECOND RESPONDENT

MR STEVE KARAS (in his capacity as principal member of the Migration Review Tribunal)
THIRD RESPONDENT

JUDGE:	HEEREY J
DATE:	19 DECEMBER 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicants seek relief pursuant to s 39B of the Judiciary Act 1903 (Cth) to review a decision of the Migration Review Tribunal that affirmed a decision of a delegate of the Minister to refuse the grant of a Family (Residence) (Class AO) Visa sub-class 806.

2. The criteria to be satisfied at the time of application, relevantly for present purposes, included that prescribed by cl 806.213 of sch 2 of the Migration Regulations 1994 (Cth) which required the applicant to be a “special need relative” of another person who

   (a)       is a settled Australian citizen … and
   (b)       is usually resident in Australia and
   (c)       has nominated the applicant for the grant of the visa.

3. “Special need relative” is defined in reg 1.03 of the Regulations relevantly as follows:

   “Special need relative in relation to an Australian citizen usually resident in Australia … means a relative who is willing and able 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 … 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 … being a relative who is an Australian citizen; or

   (ii)welfare, hospital, nursing or community services in Australia.”

4. The first applicant (hereafter “the applicant”) is a female national of Sri Lanka born in 1986.  The second applicant is her daughter born in 1982.  The applicant’s brother Destry Carlon Shayne Oliver, born 1962, is the nominating special need relative.  The applicant relied on what was said to be special circumstances affecting Mr Oliver and two of his children, twin girls Rivkah and Devorah born in 1991. 

5. Mr Oliver arrived in Australia in December 1985 and became an Australian citizen in 1994.  It was not in dispute that he was “settled” and usually resident in Australia.  Mr Oliver had one child, now aged ten, by an earlier marriage.  He married his second wife Maria in 1992 but they divorced on 26 January 1996.  There were three children of that marriage, the twins already mentioned and Lorena born in 1996.  Mr Oliver subsequently reconciled with his first wife and they have another child now aged one. 

6. There have been ongoing legal proceedings between Mr Oliver and his second wife in the Family Court in relation to the care of the children from 1992 until 2001.  There have also been protection proceedings issued by the Department of Human Services in the Children’s Court of Victoria.  At the time of the visa application on 31 July 1998 the children resided with their mother, although Mr Oliver had contact with them on weekends.  In November 1998 the Family Court ordered that Rivkah lived with Mr Oliver, which she did for six months before returning to live with her mother.  From 24 September 2001 to March 2002 all three children went to live with Mr Oliver pursuant to Family Court orders.  During August to September 2002 the children and their mother were in the care of a refuge centre.

7. At the time of the Tribunal’s decision the children continued to reside with their mother and Mr Oliver had contact with them on the weekends and during school holidays and at other unscheduled times.  All contact has taken place at the applicant’s home rather than the home of Mr Oliver.

8. On 30 January 2002 a delegate of the Minister refused to grant the visa.  The applicant lodged an application for review with the Tribunal which conducted a hearing on 20 March 2003 and at the request of the applicant’s legal representative a further hearing on 9 May 2003.  The Tribunal’s decision confirming the delegate’s refusal was given on 5 June 2003. 

   The Tribunal’s reasons for decision

9. The Tribunal recorded in summary form a substantial amount of material put to it on behalf of the applicant.  It noted that the marital problems experienced by Mr Oliver with his second wife were said to be due to the wife’s psychiatric condition which caused her to suffer from depression.  Mr Oliver relied on the applicant a great deal to provide the necessary emotional and physical care his children do not receive when they are with their mother.  The applicant claimed that when Mr Oliver had access to the children he was unable to care for them on his own.  The twins had been emotionally distraught by their mother’s behaviour.  They were not capable of performing the most basic tasks unsupervised and have poor school attendance and poor hygiene.  Sometimes they come to school unkempt and without food.  Mr Oliver told the Tribunal that he could not provide for his three children.  At the moment he could not cope because the baby was sick.  He could not look after the children, mentally, physically and financially.  Mentally he had been in a bad state since 1993 and in 1995-96 he was alone and abused alcohol. 

10. A teacher from the school where the twins attended said that there were “positive qualities” about them.  Devorah sings and was learning the violin and Rivkah was a good runner.  The twins had no behavioural problems and their intellectual disability was “solely related to academic learning”.  They would be independent members of society, able to work and earn a living. 

11. In 1997 the twins were cognitively assessed as functioning in the intellectually disabled range because their performance exceeded only one per cent or less of similarly aged children.  They were then both assessed as requiring remedial support, and in the case of Devorah the possible need for a placement in a special school. The Tribunal found that the applicant has assisted and continues to assist in caring for the children during access/contact visits.  She was also available for emergencies when called by the school.  The applicant saw her role as that of a substitute mother, caring for the children physically and providing a role model.  She works full time and has been so employed since February 1997.  Her employer gives her flexibility so she has been able to attend to emergencies regarding the children. 

12. Mr Oliver works full time as a taxi driver and has been so employed for seven years.  At the time of the visa application and until 2001 he also worked as a cleaning contractor in his own business on a part-time basis.  He visits the applicant at her new home in Hallam and stays during weekend access time.  His care of the children during access excludes personal care, which the applicant attends to, but he has some involvement with the children such as taking them out, talking, playing with them and reading to them. 

13. The Tribunal noted that it was not in dispute that the twins suffered from a disability as they have learning problems.  The Tribunal then considered the special need claim on the basis of Mr Oliver’s own condition:

    “55.     It was submitted by the psychologist Joan James that the nominator in January 2001 met the criteria for both post traumatic stress disorder and that the visa applicant’s continued presence was crucial to the nominator’s ability to cope psychologically with his symptoms of trauma and depression.

    56.      There is no medical evidence that at the time of application the nominator suffered from depression, post traumatic stress disorder or other illness.  The visa applicant said that the nominator did not have any illness or disability and that her help was simply needed to care for the children.

    57.      The fact that the nominator was working full time or more at the time of application is also inconsistent with him suffering from depression or similar condition.  This and the lack of medical evidence leads the Tribunal to find that the nominator did not at that time suffers (sic) from an illness or disability.”

14. The Tribunal then went on to consider whether Mr Oliver was suffering from “serious circumstances” within the meaning of the regulation.  It concluded that he did because of the conflict evidenced by the various court proceedings between himself and his former wife as well as proceedings in the Children’s Court concerning the children which, combined with the fact of the twins’ learning disabilities, amounted to serious circumstances. 

15. The next issue was whether Mr Oliver had a permanent and long term need for assistance because of his children’s disability or other serious circumstances affecting him or his children.  The Tribunal concluded:

    “62.     The Tribunal notes that at the time of the visa application the wife had custody of the children.  The children saw the nominator during period [sic] of access.  The nominator was working at two jobs at that time and relying on the visa applicant to look after the children during access.

    63.      There is no Court order that access must be made through or in the company or presence of the visa applicant.  The fact that the visa applicant assisted with looking after the children was in the Tribunal’s view because of a choice or preference of the nominator rather than because of his need.  The nominator has not given convincing reasons why he could not fulfil his duties towards the children during periods of access. 

    64.      The Tribunal has taken into account that the twins suffer from some developmental delay and are less independent than would be expected at their age.  However, they are described as lovely girls with interests such as singing and running, without behavioural problems.  There is no evidence that the younger of the three girls has any special needs.  The Tribunal finds that the twins’ learning difficulties were catered for at school at the time of application and did not impinge significantly on their life outside school.  Therefore even though two of the children of the nominator had a disability, as acknowledged by the delegate, such disability was of such nature as not to give rise to a need in the nominator for a long term need for assistance in the care of the children.”

16. After referring to the case of Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1817 the Tribunal said:

    “66.     … In the present case the children were at the time of the visa application in the care and custody of their mother, who therefore had the primary responsibility for looking after them.  The nominator has had, at the time of the visa application and for most of the relevant times after that, access to the children on a fortnightly week end basis and for half of the school holidays.  The Tribunal is not persuaded that the nominator was affected by factors, which rendered him unable to look after his own children during the periods of access.  He is and was at the time of application, able bodied and physically able to interact with the children and assist them in their activities.  He has not convinced the Tribunal that he cannot spend more time and energy looking after his children during access periods.  The Tribunal finds as a fact that he chose to delegate his duty to care for his children to the visa applicant.  He did this as a matter of choice rather than as a matter of need.  Thus the Tribunal distinguishes Wu’s case on the facts.  In so finding, the Tribunal acknowledges that the visa applicant’s assistance in caring for the children has been valuable and appreciated by the nominator and that the children have affection towards her.  However the requirements of the definition of ’special need relative’ are not met in this case.”

    Application for review

17. In her amended application the applicant contended as her first ground of review that the decision of the Tribunal was made without jurisdiction or was affected by an error of jurisdiction.  Particulars given were as follows:

    (a)The Tribunal asked itself the wrong question and/or identified the wrong issue and/or failed to take into account a relevant consideration and/or failed to consider an integer of the applicant’s claim when it

    (i)limited the definition of assessment of the children’s disability to their learning difficulties

    (ii)failed to consider the children’s needs where physical and emotional

    (iii)failed to consider the nominator’s need for permanent or long term assistance was emotional and financial

    (iv)failed to consider that the nominator’s need for permanent or long term assistance could arise from the mother’s inability to care for them adequately.

18. The second ground was that the Tribunal breached s 359A of the Migration Act 1958 (Cth) and natural justice or procedural fairness by not giving the applicant particulars of the information that it considered would be the reason or a part of the reason for affirming the decision under review.

19. In argument Ms Moore for the applicant relied principally on what was said to be the failure of the Tribunal to deal with the emotional and physical needs of the twins and its restricting itself to the question of their learning disabilities.

    Conclusion

20. Certainly there was substantial mention of the emotional needs of Mr Oliver’s children, and in particular the twins, in the material advanced on behalf of the applicant.  In her solicitors’ lengthy letter to the Department (undated but apparently sent in late 2000) it was submitted that the applicant’s presence in Australia was “required to provide continued emotional and physical support to her brother and the children with whom she has extensive contact”. Psychologist Joan James in a report dated 19 January 2001 said that the children had experienced “emotional and physical neglect” and would benefit greatly from “guidance and nurturing”.

21. In a letter to the Tribunal dated 20 December 2002 the applicant’s solicitors said, inter alia, that the children

    “…have a dysfunctional mother and experience significant retardation in both their educational and social development. [reference is made to a psychological assessment and Cognitive Assessment Report by Marie Spinosa dated 20 February 1997 on the Departmental file] Further, the children experience substantial difficulties with their personal hygiene.  They desperately need a strong and above all, stable, adult figure in their lives to support them, both physically and emotionally.  Their needs are far greater than any ‘normal’ child.  Their needs are also clearly long-term as Rivkah and Devorah are eleven years of age and Lorena is only seven years of age.  They will certainly need assistance well into their adolescent years.

    After referring to the “ongoing volatility” between Mr Oliver and Maria which made it impossible for him to cope with his children alone the letter states

    “ In addition to the children’s long term disability and other extenuating circumstances, namely their psychological and intellectual difficulties which often mean that they require assistance with basic hygiene and personal care, they require companionship and the consistent love and support of an adult familial figure.” (emphasis in original)

    Later it is said that the applicant

    “has developed a deep understanding of the children’s emotional and physical needs and the children have become very attached to her. She assists them with personal hygiene, provides them with constant love and attention and helps them with their schooling difficulties.  Their physical and mental health and well-being are dependent on her remaining in Australia.  Given the very crucial stage they are at in respect of their development, the importance of this for their future adult lives cannot be underestimated.”

22. There was more material to the same effect.  Suffice to say that the case put to the Tribunal went beyond the educational needs of the twins and plainly encompassed the importance of the applicant for their emotional wellbeing.

23. Jurisdiction to make a decision which turns on the decision-maker’s assessment of an applicant’s claims in the light of statutory criteria requires the claims in fact made to be addressed.  It is now said that this involves consideration of the “component integers” of the claims: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42]. Integer is a term borrowed from the law of patents. No doubt it is useful enough, although it perhaps suggests a degree of scientific precision which may sometimes turn out to be illusory in the subtle discourse of administrative law. For example, in making a decision to refuse a protection visa, where the Act requires satisfaction that the applicant has a well-founded fear of persecution in the country of nationality on one or more of a number of specified grounds (race, religion, political opinion etc), to deal with fear on one ground but not on another raised by the applicant would be to fail to exercise the jurisdiction conferred. At a lower level of generality there may be a similar failure where fear on the one ground is raised in two distinct ways but only one is dealt with (as in Htun where fear of persecution for political opinion was based both on political activity in Australia and friendship with figures in a Burmese secessionist army).  But a failure to deal with a particular piece of evidence would amount to no more than a defect in the fact-finding process.  However the line will not always be easy to draw.

24. In the present case, as par 64 of the Tribunal’s reasons show, I think there was a failure to deal with one of the ways in which the relevant criterion was sought to be satisfied.  The focus was on learning difficulties.  It was said these difficulties were catered for at school and that they “did not impinge significantly on their life outside school”.  In other words the Tribunal was confining itself to the effect of one of the twins’ problems, ie learning difficulties, and how that was dealt with, both inside and outside school.

1. Since the matter will have to be remitted for rehearing it is not necessary to deal with the other grounds raised. However I should note that as to s 359A Ms Moore frankly conceded that she was unable to point to any particular material by which the information was conveyed. This was simply an evaluation of the evidence and as such did not trigger any obligation under s 359A: Carlos v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 456.

2. There will be orders that

   1.        The application is allowed.

   2.        The decision of the Migration Review Tribunal made on 5 June 2003 is quashed.

   3.        The matter is remitted to the third respondent for the Tribunal to be reconstituted by a 4.           different member to determine the applicants’ application according to law.

   5.        The first respondent pay the applicants’ costs to be taxed including reserved costs.

I certify that the preceding twenty six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:             18 December 2004

Counsel for the Applicants:	S E Moore
Solicitors for the Applicants:	Vernon Da Gama & Associates
Counsel for the Respondents:	P Gray
Solicitors for the Respondents:	Clayton Utz
Date of Hearing:	1 December 2003
Date of Judgment:	19 December 2003