Medojevic v Minister for Immigration - [2003] FMCA 540

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MEDOJEVIC v MINISTER FOR IMMIGRATION

[2003] FMCA 540

MIGRATION – Application for review of decision of Migration Review Tribunal affirming decision of the Minister not to grant a Family (Residence) Visa (Class AO, subclass 806) – applicant Serbian national – special need relative – actual bias – applicant alleged that Member of Tribunal was biased in making her decision on the grounds of the Member's ethnicity and that the decision was reached without sufficient evidence in making her findings – privative clause – alleged jurisdictional error on the grounds that the nominator suffered a prolonged illness – no jurisdictional error found – application dismissed.

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Accident Compensation Act
Migration Act 1958 (Cth), ss.474, 474(1), 474(2)
Migration Regulations 1994, Reg 1.03
Family Law Act 1975 (Cth)

CSU v Minister for Immigration and Multicultural Affairs (2001) FCA 1409
Sun Xhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71
FCAA v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 668
Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421
Plaintiff s157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Schwart v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 169
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration and Multicultural Affairs v Yousef (2001) 206 CLR 323
Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321
Minister for Immigration and Multicultural Affairs v Rajamanikam & Anor (2002) 190 ALR 402
Azzi v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 24
Su v Minister for Immigration and Multicultural Affairs [2001] FCA 1409
VDAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 205
R v Criminal Injuries Compensation Board; ex parte (1999) 2 AC 330
R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 498

Applicant:

VESNA MEDOJEVIC

Respondent:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

File No:

MZ751 of 2002

Delivered on:

12 December 2003

Delivered at:

Melbourne

Hearing date:

13 March 2003

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

Mr Finklestein

Solicitors for the Applicant:

FLA Partners

Counsel for the Respondent:

Mr Barker

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

THAT the Application be dismissed.
That the Applicant pay the Respondent’s costs if not agreed to be taxed in accordance with the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ751 of 2002

VESNA MEDOJEVIC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of decision of a Member of Migration Review Tribunal (the Tribunal) on 17 July 2002. This decision affirmed a decision of the Minister not to grant a Family (Residence) Visa (Class AO, subclass 806).

Background

The Applicant was born in 1974 and is a citizen of Yugoslavia. On

23 April 1997, she entered Australia on a visitor’s visa (sub-class 686). On 17 April 1998, she applied for a family (residence ) (class AO sub-class 806 ) visa. She did so on the basis that she claimed to be a “special need relative” of her uncle, Dragoljup Medojovic (“the nominator”). The nominator entered Australia on 20 April 1984 and is an Australian citizen. On 4 January 2002, a Delegate of the Respondent made a decision to refuse to grant the visa. On 30 January the Applicant applied to the Tribunal for review of the Delegate’s decision.

The applicant 's case to the Tribunal

The visa applicant lived with the nominator, the nominator's spouse and children. She was 10 years old when the nominator, her uncle came to Australia in 1984 and he made return visits to Yugoslavia between that date and 1997 when the applicant came to Australia. She said came because she was aware that the nominator was not well. He had sustained a back injury at work in 1990 and since then had been unable to work due to constant back pain. The applicant stated that the nominator had difficulties in coming to terms with his injury and the fact that he cannot work and had become depressed. At first his family was patient with his condition but he became more depressed and over time the family situation began to deteriorate. When the visa applicant arrived in April 1997 she found the family home divided in two with the nominator living in one part and the nominator's wife and children living in another. In 1998 whilst driving the children to school he was involved in a car accident. Since then he prefers someone else to drive them to school. This exacerbated his depression. He had seen several doctor's regularly as well as different psychiatrists and had been prescribed medication. The nominator takes strong anti-depressant medication prescribed by his psychiatrist and daily medication for his ulcer and back pain. The visa applicant administers this medication to him. The visa applicant informed the Tribunal that she had successfully restored the nominator's relationship with his family and that when she arrived the family members were not speaking to each other and that the family was in chaos. The applicant said she assisted the nominator by talking and listening, taking him for walks, taking care of his general appearance and encouraged him to behave towards others within the margins of decent behaviour. She also assisted him with cooking, cleaning and shopping. Sometimes she assisted with tasks like dressing. She also takes him to his medical appointments as her English is now at a level where she can take on the role as interpreter for him.
The applicant commenced casual work as a process worker in late 1998. She works approximately 15 to 20 hours per week when work is available and on average will work 4 to 5 hours a day. In general she works form 10.00am to 2.00pm.
In September 2000 the applicant left Australia without the nominator who travelled 3 weeks later to see her ill mother and her brother. The nominator also left Australia in January 2000 to visit his ill father. There were friends travelling on the same flight who were able to assist him.
In the nominator's immediate family the nominator's youngest daughter is only 14 and is too young to care for herself let alone the nominator. His eldest daughter is undertaking her final year of secondary school and wanted to attend University and is too busy to assist the nominator. Although the nominator's relationship with his wife had improved since the applicant's arrival she works 20 hours a day doing three jobs and when she is at home she focuses on assisting her children. Further the nominator's wife is a psychiatric nurse and the nominator is paranoid that his wife is trying to institutionalise him.
The applicant stated that the nominator could only access welfare, hospital, nursing or community services as a last resort. She asserted that the nominator did not trust many people, especially strangers, and had an obsession that someone was trying to kill him. In addition there is nothing available in the Serbian language and the nominator speaks no English. She asserted that the nominator could not attend large group discussion sessions with an interpreter because he would find this humiliating. She asserted that he already finds it difficult to deal with the knowledge that he embarrasses his children.
The applicant stated that she would like to continue to take care of the nominator and to perhaps work and study part-time to become a nurse or something similar.
The nominator gave evidence to the Tribunal. He asserted that following an injury at work he was not currently employed and that the applicant had lived at his address since her arrival in Australia. At the time of the applicant's arrival in Australia the nominator's spouse was living with him. He has no other relatives in Australia apart from a distant cousin in Sydney.
He asserted that he injured his back in 1990 but has lived with constant pain since then. He takes medication for his condition and attends the spa and swimming pool as part of his current treatment. His ongoing back pain has led to a psychological condition as well and he has been seeing Dr Ots for some time. He informed the Tribunal that the applicant has cooked and cleaned for him, taken him to medical appointments, given him his medication and provided him with emotional support since her arrival in Australia. She continues to provide this level of support to the nominator. In general the nominator attends to his own personal needs although sometimes the applicant will be called upon to assist him when his mobility is restricted. When the applicant who works on a casual basis is at work, the nominator said that he looks after himself or his children may assist him. He said that his wife could not provide the same level of support because she works a lot and has no time. He informed the Tribunal that his marriage started to experience problems in about 1993/94 and that he and his wife have not really reconciled although they continue to live in the same house.
The nominator stated that he cannot access welfare, hospital, nursing or community services because his English is not good and the types of services they offer are not ones he could accept.
In relation to his overseas travel in September 2000 he explained that the purpose of this visit was to see his mother and brother both of whom were unwell. And he confirmed that he was unaccompanied on this trip and travelled overseas again in January 2002 because his father was dying. Some friends were also travelling on the same flight and accompanied the nominator to Yugoslavia. He said that he was allocated a disabled person's seat on the flight and that his wife and children were already overseas when he departed Australia in January 2002 but they all returned to Australia together.
The nominator's spouse, Mrs Medojevic, also gave evidence. She works full-time as a psychiatric nurse and has also taken on work through a nursing agency. She is employed as an interpreter with two interpreting translation agencies and is also a union delegate. At the time of the visa application she was living at the same address as the applicant and nominator and continues to do so.
She told the Tribunal that she made all of the decisions in relation to the children and had done so for most of their lives. As a result the children feel more comfortable approaching her rather than the nominator on matters affecting their lives.
She informed the Tribunal that the nominator has numerous physical and psychological problems and that she is aware treatment had been prescribed for him but did not really know what had been prescribed because the applicant attended to this. She said that she sometimes took the nominator to see his psychiatrist. The nominator's spouse told the Tribunal that the visa applicant attended to the nominator's needs and had done so since 1998. She said that she was not at home because she works and when she is at home she attends to the needs of her children. She told the Tribunal in response to a question that she was not better placed to care for and assist the nominator given her qualifications as a psychiatric nurse because he suspected that she wanted to institutionalise him and this led to the split in their relationship. She said that she and the nominator separated in 1996 for about 18 months and reconciled in 1997. The nominator's wife said it was the presence of the applicant that held the family together.
She informed the Tribunal that in relation to accessing welfare, hospital, nursing or community services there is nothing available in the Serbian language and little such services could benefit the nominator's physical condition. She submitted that given his chronic physical pain and emotional condition he lacked patience and had become prone to tirades. Therefore, it was submitted by her to ask a total stranger to deal with such demeanour would be extremely problematic.

The Tribunal decision

The Tribunal indicated that it must consider whether the applicant was a "special needs relative" at the time of the visa application and whether the visa applicant remains a "special needs relative" at the time of the decision. The Tribunal noted when considering whether the applicant was a "special needs relative" at either time, each aspect of that definition must be addressed. The Tribunal was not satisfied that the applicant was a "special needs relative".

The Tribunal addressed the various criteria under the Act:
1)the Tribunal accepted that the visa applicant was nominated by a relative who was an Australian citizen and is a relative as defined in Regulation 1.03 of the Migration Regulations 1994.

Whether the nominator had a permanent or long term need for assistance because of death, disability, prolonged illness or other serious circumstances

The Tribunal accepted the medical evidence provided on behalf of the nominator and found that the nominator suffered from a prolapsed hernia, chronic back and neck pain, migraines and anxiety both at the time of application and the time of decision. Therefore, the Tribunal found that the nominator suffers from a prolonged illness.

Did the nominator have a permanent or long term need for assistance at the time of the application and at the time of the hearing?

The Tribunal found that the nominator did not have a permanent or long term need for assistance at the time of the application in April 1998 because of his prolonged illness. In coming to this conclusion the Tribunal considered a medical report from Dr Barr dated 29 January 1998 setting out his medical condition and stating that he required:
"Treatment including medication, rest, heat and physiotherapy and gradual mobilisation, as well as further specialist opinions on procedures."
Dr Barr had stated that the nominator was not fit for any work which entailed:
"Ongoing repetitive/prolonged/exertive use or handling of weights over five kilograms. All bending/lifting manual jobs should be avoided."
His report of 29 May 1998 confirmed these findings however the Tribunal noted that neither report elaborated on the type or level of other assistance the nominator required because of his various medical conditions. The Tribunal noted that apart from the prescription of anti depressant medication Dr Greenbaum's report of 22 December 1995 also failed to set out what type of assistance is required by the nominator. The Tribunal noted that although the medical reports submitted to the Tribunal set out impairment assessment between 35 and 55 per cent and stated that the nominator had restricted mobility, the reports did not detail the type of assistance required by the nominator.
The Tribunal noted that in April 1998 there was little in terms of objective medical evidence outlining specific type of assistance the nominator required in relation to his physical condition. The applicant's evidence was that she administered his medication, cleaned and shopped for him. She also took him for walks to medical appointments and to hydrotherapy, talked and listened to him, took care of his general appearance including dressing him on some occasions, and encouraged him to behave within the margins of decent behaviour and to participate in a social network. The Tribunal noted that her evidence which was corroborated by the nominator was that at the time that the applicant came to Australia he needed emotional support and he continued to need that support. The Tribunal noted that in the absence of other factors, companionship or general domestic assistance did not constitute a permanent or long term need for assistance and was unable to find that he had a permanent or long term need for assistance at the time of the application in April 1998 because of his prolonged illness.
As a result of that finding the Tribunal did not consider whether the nominator had a need for assistance at the time of the hearing.

Whether the nominator's need for emotional and physical support from the applicant constitutes "other serious circumstances" within the terms of Regulation 1.03

The Tribunal noted that the evidence before it regarding the nominator's claim that he had a need for emotional support from the applicant came from a psychologist’s report dated 7 April 1998 and a report of Dr Ots his treating psychiatrist dated 6 April 1998. The psychologist's report stated that the nominator "needs psychological and physical support on a daily basis" and stated that the applicant was providing the support by meeting the nominator's cooking, washing, cleaning and shopping needs as well as taking him for walks and physically lifting things for him. The report from Dr Ots outlined the background and symptoms of his condition and concluded that a psychiatric impairment rating of 40 per cent was appropriate. Dr Ots assessed that the nominator was a person who only required minor help in terms of his ability to attend to the activities of daily living.
The Tribunal invited the applicant to submit evidence from his treating doctor regarding the type of assistance he currently requires. However the Tribunal only received a letter in support of the applicant from Dr Ots and the letter (dated 4 April 2002) did not detail the type of assistance required other than to say "total care" was required and the applicant had provided this care for the last four to five years.
The Tribunal noted that in considering 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; CSU v Minister for Immigration and Multicultural Affairs (2001) FCA 1409. The Tribunal noted that at the time of application the nominator was approximately 55 years of age and that despite his physical condition and emotional dependency upon the applicant, he was able to undertake lengthy air travel without both the applicant and the any other specialist assistance in 2000 and 2002. The psychologist had stated that at the time of application the assistance required by the nominator from the applicant was in the form of daily psychological and physical support and that no other family member was able to provide him with the "constant assistance and companionship he requires." The Tribunal found that a need for daily psychological and physical report as well as companionship was something experienced by many members of the community and does not, on its own, amount to a need for substantial assistance. The Tribunal gave greater weight to the assessment in an April 1998 report from Dr Ots that the nominator only required minor assistance for the activities of daily living, preferring that report to the psychologist's report. The Tribunal did so because it noted that as a psychiatrist Dr Ots was the more highly qualified expert and further that he had treated the nominator on an ongoing basis since 1998.
The Tribunal noted that the primary need of the nominator appears to have been companionship, together with some domestic assistance. The Tribunal noted that in the absence of other factors, companionship of a relative and domestic household assistance does not constitute a permanent or long-term need for assistance. Taking the nominator's age, loneliness, medical condition, and other evidence into account cumulatively the Tribunal found that although the nominator suffers from a prolonged illness, his condition did not give rise to a permanent or a long term need for assistance in the terms required by Regulation 1.03 at the time of application. Further, the Tribunal found that the nominator's medical condition, together with factors such as age and loneliness do not cumulatively constitute a "disability" at the time of application that gave rise to a permanent or long term need for assistance.

The Tribunal found that in the absence of other extenuating circumstances, the need for companionship and domestic household assistance does not constitute a serious circumstance or a permanent or long term need requiring substantial and continuing assistance. Further the Tribunal found there were no other serious circumstances affecting the nominator to bring the visa applicant within the definition of "special need relative" at the time of the application.

Whether the applicant is willing and able to provide substantial and continuing assistance to the nominator

The Tribunal noted that the issue was whether the applicant could be regarded as being "able" to provide substantial and continuing assistance if she ceased to provide care to the nominator for a period of time.
Having regard to the trips overseas by the nominator (in addition the applicant commenced part-time and casual employment in late 1998) the Tribunal took into account that the evidence from the nominator was that when the visa applicant is at work he looks after himself or his children may assist him. The Tribunal also took into account his ability to depart Australia in 2000 and 2002 without the applicant. In the circumstances the Tribunal found that although the visa applicant may have been "willing" she has not been "able" to provide substantial and continuing assistance to the nominator. The Tribunal found that the break in the care of the nominator as a result of the applicant's employment could not be regarded as merely a temporary and expected interruption to the overall care provided by her to the nominator. Even if this were not the case, as previously stated, assistance with domestic tasks and companionship of a relative are not regarded, in the absence of other factors, as constituting a permanent or long-term need. The Tribunal found that despite the applicant's genuine willingness to assist the nominator, the care provided by her to her uncle was not of a substantial and continuing nature and therefore the applicant does not fall within the definition of a "special need relative" and the application also failed on that ground.
Having decided the visa applicant was not a "special need relative" at the time of the visa application the Tribunal did not consider the issues at the time of the hearing.

Whether the assistance cannot reasonably be obtained from another relative or welfare, hospital, nursing or community services

The Tribunal noted that even if some of the obstacles that it had indicated could be overcome, there was no evidence that any attempts were made to seek any assistance that the nominator may require from available welfare, hospital, nursing or community services in Australia. The Tribunal noted that in a statement dated 19 May 2002 from the nominator's eldest daughter she feared that the nominator may be placed in a "special caring home" if the applicant were required to leave Australia. However the Tribunal noted that none of the medical reports before it recommend or even suggested this as an appropriate option for treatment of the nominator's various conditions. The Tribunal noted that the nominator gave evidence that when the applicant was at work he either took care of himself or his children assisted him.
The Tribunal took into account the nominator's spouse's evidence that she was unwilling to provide the assistance the nominator requires because their marital situation had broken down. The Tribunal noted however that several medical reports submitted to the Tribunal stated that there was a reconciliation in 1997 and at the time of the application the couple were living in the same house. The Tribunal noted that the nominator's spouse told the Tribunal that sometimes she takes him to his medical appointments. The Tribunal noted that the nominator's spouse and his family continue to live at the same address and that his spouse is a qualified psychiatric nurse.
The Tribunal accepted that the applicant and the nominator have a strong close relationship and that the latter is more comfortable receiving assistance from the applicant. The Tribunal also had regard to the possibility that the nominator's Australian relatives, that is his immediate family, may face some difficulties in providing assistance to him given the effect of his chronic back pain upon his personality. However the Tribunal noted the type of assistance required by the nominator is in the form of companionship and domestic assistance and that it was not satisfied that his requirements could not reasonably be obtained from a combination of all the resources available to him. As a result the Tribunal noted that the application failed on this ground as well.

The present case

The applicant relies upon two grounds, the first is that the decision was induced or affected by actual bias on the part of the presiding member of the Tribunal occasioned by the fact that the presiding member was of former Croatian origin and the applicant as well as the nominator and his wife were all of former Serbian origin – there having been significant hostility historically between Serbians and Croatians within Yugoslavia. Secondly, that the decision was reached without evidence (or sufficient evidence) or other material to justify the making of the formal findings that were adverse to the applicant.

Actual bias

The applicant contends that the actual bias created by the Tribunal member's ethnicity can be discerned from the following:
a)the Tribunal impeaching the nominator's bona fides concerning:
i)the genuineness of his lack of ability to speak and understand the English language as demonstrated in lines 17 to 22 on page 22 of the transcript of the hearing (the transcript)
ii)the genuineness of his need for assistance having regard to the recent prior overseas travel by him
iii)the genuineness of his need for assistance by characterising the nominator as being a person who is merely lonely and in need of companionship
b)the genuineness of the nominator's inability to call upon any other Australian relative by inferring a distant cousin bearing the same surname ought to be considered
c)ignoring the evidence available supported the finding that the nominator was in need of assistance having found that he suffered from "a prolonged illness".
Secondly, on the grounds that the decision was reached without evidence (or sufficient evidence) in making findings adverse to the applicant:
a)the finding that although the nominator suffered from a "prolonged illness" within the meaning of the relevant Regulations, this condition did not give rise to a permanent or long term need for assistance in the terms required by the Regulations at the time of the application – despite clear medical evidence supporting such a need.
b)the finding to the effect that the applicant was a person "willing" but not "able" within the meaning of the relevant Regulations to provide substantial and continuing assistance to the nominator - despite clear evidence to the effect that she was in fact sufficiently able to do so.
c)the finding to the effect that at the time of application, the nominator and his spouse were not separated within their marriage and that by inference, his wife should therefore be regarded as both willing and able to provide any assistance needed was contrary to evidence that she and the nominator were separated under the one roof within the meaning of the word "separation" under the provisions of the Family Law Act 1975 throughout the relevant period.
d)the finding to the effect that assistance could in fact be reasonably obtained from welfare, hospital, nursing or community services in Australia, despite evidence to the contrary that the nominator had been unable by reason of language and other difficulties to obtain the exact kind of assistance he needed from those sources.
The first example of actual bias alleged contains a passage which occurred at lines 17 to 22 of page 22 of the transcript. The transcript reads as follows:
17."And when did you reconcile?---It could have been - '97.
18.INTERPRETER: Who would know everything (indistinct).
19.MEMBER: I thought he said he didn't understand English.
20.INTERPRETER: Sorry?
21.MEMBER: I thought he said he didn't understand English.
22.INTERPRETER: Only little bit, yes."
The passages which relate to recent prior overseas travel by the nominator are found in the transcript at pages 10 and 11. The relevant passages it seems to me are page 11, line 25 onwards.
"So did anyone travel with your uncle?
26. INTERPRETER: She's saying, there is from family nobody but I asked some friend whose been travelling as well with him to take care if he needs. But I purchased for him a small box for the medications, so I packed exactly what he needed to take and when.
31. MEMBER: What would you say if someone said your uncle's travel means that he can cope without you?
Page 12, line 1 and 2:
INTERPRETER: What to say I would say - I believe that he went there and he got the strength from knowledge that that's where he's travelling, it's all people who belong to him, his family his dearest. From that, he extracted strength, because when he's here, he seems, arrive to Australia, and is suffering - he missed a lot, his father and mother, but his children is the obstacle for him to return."
The applicant contends that these four matters coupled with the ethnicity of the Tribunal member indicate actual bias and contended that actual bias may be subconscious provided it is real, and may be established by inference from the circumstances including from the decision itself. (See Sun Xhan Qui v Minister For Immigration and Ethnic Affairs (1997) 81 FCR 71 per paragraph 126 - 127 and at 134 – 135). In FCAA v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 668, Von Doussa J set out the law as to what must be established in relation to actual bias. Counsel for the respondent submitted that there were seven relevant to be derived from the reasons for judgment:
i)Actual bias arriving from prejudgment involves a state of mind by the decision maker whilst exercising the decision making power that is so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented. (Paragraph 36 of the Respondent’s written submissions)
ii)The party asserting actual bias on the part of the decision maker carries a heavy onus. (Paragraph 36).
iii)While actual bias involves a state of mind which must be established by the party making the allegation, proof of the intentional state of mind adverse to the case of that party is not the only way of establishing it. Actual bias may be subconscious, provided it is real and may be established by inference from the circumstances including the decision itself. (Paragraph 37)
iv)Errors in reasoning and fact-finding may be so egregious as to warrant an inference that the decision maker has prejudged the case to the point of being unable to decide it impartially. (Paragraph 37)
v)That it would be wrong in principle to make the leap too readily from factual error or faulty reasoning by a decision maker (even serious factual error or misconceived reasoning) to a finding of actual bias. (Paragraph 37)
vi)It will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Even were it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed that, without more is unlikely to demonstrate that the decision maker embarked on the case with a closed mind, not open to persuasion. (Paragraph 38)
vii)However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error, but also to conduct by the decision maker antithetical to that party's interests, such as a hostile attitude throughout the hearing, an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the culmination of factors and circumstances will clearly prove actual bias. (Paragraph 38)
To the extent that the bias contended by the applicant was alleged to be quite hostile and partisan questioning on the part of the Tribunal, no viable basis for that contention was proffered other than a reference to the passages referred to. The reference by the Tribunal to and surprise at, the nominator's capacity to speak English has to be seen in the context that the consistent theme to the whole application was the inability of the nominator to speak English, particularly having regard to the availability of assistance from external organisations. But in any event, the Tribunal appears not to have taken the matter further and no finding was based upon his facility with English.
The second complaint refers to questioning by the Tribunal about the nominator's capacity to travel overseas on two occasions unaccompanied by the visa applicant, and on the second occasion unaccompanied by anyone. The questions were fully responded to, were not unfair having regard to the context of the application and nothing said nor the finding suggests actual bias or absence of good faith.
The question of genuineness of the nominator's need for assistance was a finding made by the Tribunal after considering all the evidence and in particular, considering the medical evidence. Even if the finding is contrary to the evidence or unreasonable that itself does not demonstrate the decision maker embarked on the case with a closed mind not open to persuasion (FCAA v Minister for Immigration and Multicultural and Indigenous Affairs, paragraph 38).
Finally, as to the inference that a distant cousin ought to be considered similar considerations apply. However, I do not agree with the submission of the applicant that the Tribunal did consider any distant relative. At page 4 of the transcript the applicant was asked whether she knew who Dena Medojevic was and explained that it was a very long distant relative living in Sydney. The nominator was asked a similar question and gave a similar response. Similarly, the nominator's wife was asked the same question and referred to no other relevant relatives. These were quite proper questions to ask and there is no evidence that the Tribunal ever took the matter any further nor relied upon the existence of distant relatives as a means of support for the nominator.
Further, there is no evidence that the Tribunal member was of Croatian origin, other than her name nor, logically, could any inference be drawn that even if her name was Croatian, she was affected by any hostility towards Serbians. Actual bias involves a state of mind by the decision maker whilst exercising decision making power and it is so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented. No such prejudgment has been established by the applicant either overtly or by inference from the circumstances involving the decision. And the party asserting same carries a heavy onus which has not been discharged.
The allegation must be quite distinctly made and clearly proved.
See Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 at [69] per Gleeson CJ and Gummow J, and [127] per Kirby J. The applicant has failed to discharge that onus.
The fact that the Tribunal did not make a finding in favour of the applicant that the nominator was in need of assistance because the Tribunal had found that he suffered from a "prolonged illness" was a finding which even if resulting from factual error by the decision maker does not thereby infer actual bias, simply because the finding was not favourable to the applicant.
The second ground upon which the applicant attacks the decision of the Tribunal is that the decision was reached without evidence (or sufficient evidence) to justify the making of four findings adverse to the applicant.
In Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, the High Court considered the principles applicable to privative clauses such as s 474 of the Migration Act 1958 (Cth) (the Act). The joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 indicated that as a matter of construction the expression –
decision[s] made under this Act (in s 474(2)) which confines "privative clause decision[s]"
to decisions:
"made or proposed to be made or required to be made … under this Act 'must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act'." [76]
If there has been such a jurisdictional error, the decision in question is not a privative clause decision as defined in s.474(2) and (3) of the Act. To determine whether or not particular error are jurisdictional errors it is necessary to have regard to the whole of the Act including s.474 and to attempt to achieve a reconciliation between s.474 and the rest of the legislation (at [76] – [78], and see Gleeson CJ at [19], [26] and [33]). The alleged jurisdictional error in S157 was said to be a denial of natural justice and the Court held that s.474 on its true construction does not protect a decision –
flawed for reasons of a failure to comply with the principles of natural justice. [83]
In Schwart v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 169, Selway J suggests that errors that may be characterised as "jurisdictional errors" include errors of law in the sense considered in Craig v South Australia (1995) 184 CLR 163. In Craig v South Australia it was said that if an administrative tribunal:
"falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or power. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." (At [179])
In Minister for Immigration and Multicultural Affairs v Yousef (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ stated:
"What is important however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision maker acts." (At [74])

Was there any jurisdictional error?

To establish this ground the applicant must establish:
a)that the decision maker made a finding of fact;
b)that the fact is material or critical; and
c)that there is a complete lack of evidence to support the finding.
In Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321 at page 335-6, Mason CJ said:
"In the context of judicial review it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law … thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, a particular inference is reasonably open - even if that inference appears to have been drawn as the result of illogical reasoning, there is no place for judicial review because no error of law has taken place."

At page 367, Deane J said:
"If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably. It requires that regard be taken to material considerations and that immaterial or irrelevant considerations be ignored. … If the process of decision making is disclosed there will be a discernible breach of the duty of findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn by such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision."
A decision will be based upon a particular fact where that finding is critical to the making of the decision, that is, reference to a finding of fact without which the decision in question either could not or would not have been reached: per Gaudron J in Minister for Immigration and Multicultural Affairs v Rajamanikkam & Anor (2002) 190 ALR 402 at paragraph [56].
Four findings of fact are relied upon by the applicant in support of the "no evidence" contention. The first is the finding of the Tribunal that although the nominator suffered from a "prolonged illness" within the meaning of the relevant Regulations, his condition did not give rise to a permanent or long-term need for assistance. The contention of the applicant is that there is clear medical evidence supporting such a need and that as a consequence there was no evidence to support the Tribunal's finding.
The Tribunal's finding must be seen in the context that the Tribunal found that the nominator suffered from a prolonged illness but did not find that his medical condition together with factors such as age and loneliness constituted a "disability" that gave rise to a permanent or long term need for assistance at the time of the application. The failure to find that cumulatively these factors constituted a "disability" is not a ground upon which the decision was sought to be reviewed. The Tribunal concluded that:
The primary need of the nominator appears to have been companionship, together with some domestic assistance. (Paragraph 50 on page 151 of the Court Book)
Mr Kleynhans, a clinical psychologist, provided a report in relation to the nominator on 7 April 1998. In his report he recites the medical condition of the nominator and concludes (Court Book page 37):
Because of his medical condition, he needs psychological and physical support on a daily basis.
No description under this heading of the support needed is given. Mr Kleynhans report continues and (at Court Book page 38) he opines that for the last seven years the applicant portrayed symptoms of a dependent personality disorder (as per the diagnostic criteria of the publication DSM111).
He describes the general dependence (at Court Book 39) as covering the following:
– "cooking
– washing clothes
– cleaning
– shopping
– going with him for walks
– lifting of physical things"
He opines that the nominator needs the social interaction and emotional support he derives from the relationship with the applicant. He opined (at page 45 of the Court Book):
·    "That he is disabled and cannot participated in many physical activities and has hence become substantially dependent on Visna for his general needs.
·    That he is feeling extremely lonely which as led to helplessness, pessimism, and ultimately extreme depression and anxiety (panic attacks). Visna is satisfying his psychological and emotional needs by being physically present and keeping him company when he is lonely
·    They treat one another with their respect and dignity; he did not get it from his wife or children given the negative history of their relationship since 1990."
A medical report from Dr Barr who is the general practitioner treating the nominator dated 29 May 1998 sets out his injuries as being:
·    "Prolapsed and herniated L4-L5 disc
·    L5/S1 disk prolapse with damage
·    Lower back strain – musculoligamentis
·    Secondary upper back strain and neck strain
·    Associated headaches, tension, insomnia, anxiety state
·    Right sided sciatica with numbness and pins and needles
·    Left sided with numbness and pins and needles
·    Medication side effects – analgesic, gastritis and peptic ulcer
·    Bilateral shoulder and neck strain – also secondary sciatica
·    Associated headaches, migraine and depression."
The report (at Court Book page 58) after detailing his treatment from the time of the injury through to the present says:
"In his last visit to me on April 8th 1998, Mr Medojevic was still suffering from back ache, stiffness and discomfort, bilateral sciatica, numbness, pins and needles, neck ache, shoulder ache and headache with tension, migraines, leg stiffness, limping, insomnia, not coping and anxiety state.
He was very limited in his lifestyle. He did not play any sport and could not do exertive activities such as heavy lifting and prolonged bending. He was often tense and not coping and his sleep was often disturbed. Even showering and doing up shoelaces gave him great discomfort."
An impairment assessment (Court Book, page 59) assessed his total body impairment at 55 per cent relating to the following matters:
"L5/S1 disc derangement – 5 per cent
L4/5 disc derangement – 5 per cent
Back strain – 13 per cent
Gait and equilibrium – 5 per cent
Sciatica right – 8 per cent
Sciatica left – 8 per cent
Neck strain – 6 per cent
Headache/insomnia – 5 per cent
Agitated, depression/anxiety – 9 per cent
The condition is not stable and infrequently relapses that may drag on for weeks are to be expected. More required treatment including medication, rest, heat and physiotherapy and gradual remobilisation. Overall further management (indistinct) needed should also include specialist opinion and procedures."
The prognosis is described as:
Overall is pessimistic as his L5/S1 and L4/5 disc herniation prolapse are associated with a poor long-term result.
Under the heading "Special Comments" he said:
"Mr Medojevic has the opportunity to be cared for by his young niece, Visna Medojevic, who is making application for a visa. I fully support her application."
A further report from Dr Hugh Hadley, an orthopaedic specialist, dated 1 April 1998 was relied upon (Court Book, pages 112 to 114). At Court Book page 114 Mr Hadley says:
"Since his fall he has become increasingly nervous and depressed. As a result of his injuries and psychological reaction he is totally and permanently disabled.
On assessment with the American Medical Association Guide he has impairment of his whole person of 8 per cent in relation to his neck injury and 22 per cent in relation to his back injury. With having injury to his cervical discs would have referred pain to the back of his head and referred pain and numbness down to his fingers, and on referring to table 53 in the Guide, he also has impairment of his whole person of 5 per cent. With having injury to his lumbar discs with referred pain down both legs and on referring to table 53 in the Guide he also has impairment of his whole person of 5 per cent. On referring to the combined value charts in the Guide he therefore has total orthopaedic impairment of his whole person of 35 per cent and is therefore suffering from a serious injury."
Dr Peter Ots, psychiatrist, provided a report dated 6 April 1998 (Court Book pages 131 to 136) he found him to have a 40 per cent psychiatric impairment, being 25 per cent "primary" (indistinct) and secondary, depression and suicidal tendencies. An evaluation of psychiatric impairment in a tabular form was attached to the report. He noted that under "Mental State", his behaviour was between moderate and moderately severe problem and that he in relation to his ability under the heading "Activities for Daily Living" was circled:
Needs minor help
There is a further report from Dr Victor Wilk, a musculoskeletal physician, dated 2 March 1998 (Court Book pages 120 – 123). Under the heading "Opinion" Dr Wilk says:
"Mr Medojevic cooperated with the examination on education and history and examination of findings are consistent with the stated cause. This man developed severe lower back pain following slipping on a wet floor and landing on his buttocks whilst working at Milano's Hotel on 2 October 1990. He has been markedly disabled since that time."
Under the heading "Diagnosis" he says:
"… since the time of the injury he has become increasingly incapacitated with a worsening range of movement. He has also suffered considerable psychological distress, which appears to be secondary to the injury and has contributed to his ongoing disability …"
Under the heading "Work Capacity" he says:
"At the present time this man is totally incapacitated for all forms of work as he cannot sit or stand long enough to even travel to work. I believe that he does fall within the serious injury definition of the Accident Compensation Act."
The Tribunal accepted (Court Book page 149) the evidence of the doctors and found:
"That the nominator suffers from a prolapsed hernia, chronic back pain and neck pain, migraine and anxiety both at the time of application and at the time of decision. Therefore the Tribunal finds that the nominator suffers from a prolonged illness."
The Tribunal however then noted that despite the descriptions by Dr Barr as to what he could not do neither that report nor the report of Mr Hadley indicated type nor level of other assistance that the nominator required because of his various medical conditions. The Tribunal noted that notwithstanding the assessments of impairment between 35 to 55 percent and an indication that the nominator had restricted mobility, reports did not detail the type of assistance required by the nominator.
The whole of paragraph 44 of the decision deals with the functions carried out by the applicant but the lack of objective medical evidence outlined in the type of assistance the nominator required. The transcript of proceedings indicated that the nominator said that the applicant provided cooking, cleaning, psycho side, tablets, taking me to doctors as well. When asked what sort of physical assistance he needed, and in particular with showering and toileting he responded:
"There is the days when I can't reach the toilet ... for some things I'm trying to do on my own because I can't ask everything, many times she's helping me to reach those."
The lack of particularity in the reports appears to be what prompted the Tribunal to find that the primary needs of the nominator appeared to have been companionship.
I reject the respondent's submission that this finding was not critical to the making of a decision. This was the essence of the failure of the applicant's case on this ground, although there were other grounds upon which the case failed as well. It was however critical to this aspect of it. However, the contention that there was no evidence to support this finding has to be seen in context. In this case the context includes the fact that not only is there almost no medical evidence of the needs of the nominator arising from his illness but:
i)Dr Ots refers to him as "needs minor help" with daily activities.
ii)There are periods when the applicant is working and not available to assist the nominator.
iii)The nominator travelled overseas on two occasions in 2000 and 2002 without the assistance of the applicant.
Whilst the Tribunal took a somewhat literal approach to a lack of description of the nominator's needs and could have drawn inferences from the material before it, it could not be concluded that there was no evidence to justify the decision.
The next matter relied upon by the applicant was the finding that the applicant was a person "willing" but not "able" to provide substantial and continuous assistance to the nominator when there was clear evidence to the effect that she was in fact sufficiently able to do so. The respondent contends that the finding was not critical to the decision. I do not agree with that submission. It is not critical only in the sense that there were other aspects of the decision upon which adverse findings were made, but viewed in isolation as to this particular ground, it is a critical finding.
The Tribunal determined (Court Book, 153) that the applicant commenced part-time and casual employment in late 1998 and that when the applicant is at work the nominator looks after himself or his children may assist him. The Tribunal also took into account his ability to depart Australia in 2000 and 2002 without the applicant and that although she was quite "willing" she was not "quite able" to provide substantial and continuing assistance to him. The Tribunal found that the break in the care of the nominator as a result of the applicant's employment could not be regarded as merely a temporary and expected interruption to the overall care provided to him.
It is clearly a factual question although based upon appropriate medical evidence of the need of the particular nominator, In Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24, Alsop J, paragraph 88 said:
"I do not think it matters in this case which view is taken of the "the assistance" in paragraph (b) of 1.03. However, for my own part, I think the structure and sense of the provision indicates that the relative assistance in paragraph (b) of the definition is not the particular assistance being provided or capable of being provided by the applicant by the assistance bound to be required pursuant to the sorts of inquiries dealt with in paragraph (a). The issue is the nominator's needs and how they might reasonably be met (Su v Minister for Immigration and Multicultural Affairs)."
It was in relation to the lack of this evidence, namely the required assistance, that led the Tribunal to find that the nominator did not have a "permanent or long term need". But there was evidence before the Tribunal of the assistance being provided by the applicant but that does not fulfil the criterion in sub-paragraph (b).
In finding that the applicant was not willing and able to provide substantial and continuing assistance, there is a degree of illogicality in the Tribunal's finding that she was not "able" to provide substantial and continuing assistance to the nominator. It is difficult to see how the Tribunal could have come to this conclusion given that it did not find that there was a need for substantial and continuing assistance and was unable to find what that assistance was. The findings are somewhat speculative as to her inability to provide such assistance, given that such assistance (unspecified as it was) was necessary. Nevertheless, having determined that there was no need for substantial and continuing assistance on the evidence, the question of whether the applicant was able to provide it was not critical to the decision.
The third finding complained of was that the Tribunal should not have found that the nominator and his spouse were not separated and that by inference the wife should therefore be regarded as both willing and able to supply any assistance needed. First, the contention of the applicant needs to be seen in proper context. That context is that the Tribunal found that the type of assistance required by the nominator was in the form of companionship and domestic assistance. The Tribunal then found that it was not satisfied that that assistance could not reasonably be obtained from a combination of all the resources available to him. Those resources included his wife and children.
Secondly, the Tribunal was not required to make a finding of law as to whether the nominator and his wife were separated in the sense understood by the jurisprudence of the Family Law Act 1975. This was a question of fact to be determined by the domestic arrangements within the nominator's household and the state of mind of his wife. It was not dependent upon a finding of whether, as a matter of law the nominator and his wife were "separated".
The fourth finding which was attacked by the applicant was the Tribunal's finding that assistance could reasonably be obtained from welfare, hospital, nursing or community services in Australia. It is contended that this finding was made despite evidence to the contrary that the nominator had been unable, by reason of language and other difficulties to obtain the exact kind of assistance he needed from those sources. Again, the difficulty with this finding and indeed it's criticism, is that the Tribunal was unable to make a finding as to precisely what needs the applicant had and therefore has the obvious difficulty in finding whether or not they could be provided from welfare, hospital, nursing or community services.
I accept the respondent's submission that this was not a critical matter. The Tribunal describes it thus in paragraph 58:
“Even if the obstacles outlined above could be overcome, as a side issue, at the time of decision, the Tribunal notes there is no evidence that any attempt has been made to seek any assistance that the nominator may require from available welfare, hospital, nursing or community services in Australia."
The Tribunal noted that it was claimed that the necessary services could not be provided by welfare, hospital, nursing or community services due to cultural and language barriers. Given that there was a lack of particularity as to the services required by the nominator, it is easy to see why there was a failure to provide particularity as to why it was not available. Two things should be said about this contention. The first is that the Tribunal did not find that assistance could in fact be reasonably obtained from welfare, hospital, nursing or community services, but rather there was no evidence that it could not. At paragraph 58 the Tribunal said:
"The Tribunal notes there is no evidence that any attempt has been made to seek any assistance that the nominator may require from available welfare, hospital, nursing or community services in Australia."
At page 23 of the transcript the nominator's wife, in answer to a question by the Tribunal as to why the nominator could not access welfare and community services says:
--- there's nothing they can do on our language, and with him it's probably unpredictable with all his physical problems too though.
The Tribunal, in my view, could not be said to have been in error in being unable to make any finding about the exact kind of assistance that was needed by the applicant and whether any attempt had been made to obtain that kind of assistance for him.
Accordingly, it could not be said, in my view, that there was no evidence or other material to justify the decision of the Tribunal and accordingly the applicant has not established any jurisdictional error.
The decision is thus one to which s.474 applies and is a privative clause decision. I have already dealt with the applicant's submission that there was a failure to exercise jurisdiction in accordance with the principles in Hickman (from R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 498 at 614-616) [Requirement of a "bona fide attempt" to exercise the power vested in the Tribunal]. As I have found it has not been established that the decision of the Tribunal was flawed in the manner submitted it follows this ground has not been established.
The applicant does not contend, and there is nothing to suggest, that the Tribunal decision did not relate to the subject matter of the legislation or that it was not reasonably capable of reference to the power given to the Tribunal. Nor has it been suggested that any "inviolable" limitation was contravened or that there was denial of natural justice by the Tribunal. In these circumstances the applicant's claim for relief must be dismissed.
In any event, the applicant faces another difficulty in relation to the establishment of jurisdictional error. In VDAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 205 Ryan J at paragraph 33 said as follows:
"Whether "material error of fact" in the sense of there having been "no evidence or other material to justify the making of decision" can be relied upon, without more, as a ground of judicial review (other than under the Administrative Decisions (Judicial Review) Act 1977 (Cth)) was a question raised but not decided in R v Criminal Injuries Compensation Board, ex parte (1999) 2 AC 330, and adverted to in S134/2002 by Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ at [35-37] irrespective of its availability in the present case, it is not an error which would deprive the Tribunal of jurisdiction, making its decision a nullity."

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate: Peter Smith

Date: