Oorloff v Minister for Immigration
[2004] FMCA 296
•20 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OORLOFF & ORS v MINISTER FOR IMMIGRATION | [2004] FMCA 296 |
| MIGRATION – Application for “special need relative” visa – whether previously refused visa when applied as member of family unit of applicant for protection visa – whether special need must arise after application for previous visa – whether failure by Tribunal to consider evidence of special need after date of previous application – whether failure to consider evidence constitutes jurisdictional error. |
Migration Act 1958, s.45,46,48.
Migration Regulations 1994, Reg 1.03, 2.02, 2.07, Sch 1 item 1126, Sch 2 item 866, 806.211
Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Cohen (2001) 177 ALR 473, [2001] HCA 10
| Applicant: | MARY CHRISTINE OORLOFF & ORS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 735 of 2002 |
| Delivered on: | 20 May 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 24 February 2003 |
| Judgment of: | Phipps FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Hurley |
| Solicitors for the Applicant: | Armstrong Ross |
| Counsel for the Respondent: | Mr Fairfield |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That the application is dismissed.
THAT the applicant pay the respondent’s costs fixed at $6.500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 735 of 2002
| MARY CHRISTINE OORLOFF & ORS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The first applicant is a national of Sri Lanka, born on 24 July 1956. On 30 July 1998, she applied for permanent residence by applying for a Change in Circumstances (Residence) (Class AG) visa, subclass 806. Her application was on the basis of being a special need relative of her brother. Her husband and two children were included in the primary application. A delegate of the respondent refused to grant the visa on
7 February 2002.
The applicants lodged an application for review to the Migration Review Tribunal ("the Tribunal") on 26 February 2002. On 28 June 2002, the Tribunal affirmed the decision under review. Relief is sought against the decision by way of prerogative writ. The granting of visas to the first applicant’s husband and two children are dependent upon her application succeeding.
The first applicant, her spouse and children entered Australia on
26 July 1996 as holders of a Short Stay (Visitor) (Class TR) subclass 676 visa valid until 26 October 1996. They were subsequently granted a Sri Lankan (Temporary) (Class TT) subclass 435 visa on
2 September 1996 which were valid until 31 July 1997. On 15 October 1996, the husband (the second applicant) lodged an application for Protection (Class AZ) subclass 866 visas. His wife and children, (the first, third and fourth applicants) were included in the application. This was refused on 17 February 1997 and an application for review and a request for Ministerial intervention pursuant to section 417 were unsuccessful. The applicants have, since 30 July 1998, held bridging visas granted on the basis of the application for a visa which is the subject of this review.
The visa application was made on 30 July 1998 on the basis that the first applicant was the special need relative of her brother, Oswald Theophilus Forbes (the nominator). The nominator arrived in Australia as the holder of a Close Family Visitor (Short Stay) Class 673 visa on 6 December 1993 and was granted a subclass 86 visa on 23 September 1996 (T1, f. 31). In her application, the first applicant stated that her brother experienced psychological and emotional needs.
The issue the Tribunal had to decide was whether the nominator was a "special need relative" as defined in Reg.1.03 of the Migration Regulations 1994. It provides:
`special need relative' in relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or an eligible New Zealand citizen, means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:
(a) the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and
(b) the assistance cannot reasonably be obtained from:
(i)any other relative of the citizen or resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or
(ii) welfare, hospital, nursing or community services in Australia;
The Tribunal proceeded on the basis that the applicant was a person to whom s.48(1) of the Migration Act 1958 applied. At the time of the application on 30 July 1998, it provided:
A non-citizen in the migration zone who:
(a) does not hold a substantive visa; and
(b) either:
(i) after last entering Australia, was refused a visa, other than a bridging visa, for which the non-citizen had applied (whether or not the application has been finally determined); or
(ii) held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 134 (business visas) or 501 (special power to refuse or cancel);
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class.
The applicant was a non-citizen in the migration zone who did not hold a substantive visa. If, since last entering Australia the applicant was refused a visa, s.48(1) applied. That meant that one of the criteria to be satisfied at the time of the application was that the applicant had become a "special need relative" since last applying for a substantive visa. This is because of item 806.211(b), (c) and (d) of Schedule 2 of the Migration Regulations 1994. They then provided:
If:
(b) the applicant is a person to whom section 48 of the Act applies;
the applicant:
(c)has not been refused a visa or had a visa cancelled under section 501 of the Act; and
(d) has become an aged dependent relative, an orphan relative, a remaining relative or a special need relative of an Australian citizen, of an Australian permanent resident, or of an eligible New Zealand citizen since last applying for an entry permit or substantive visa.
The Tribunal said that as the applicant had already applied for and had been refused a visa, this item applied.
The applicant’s submission was that this was incorrect, that there was an error of law and that it was a jurisdictional error. The submission was that the applicant had not been refused a visa, that when a protection visa was applied for on 15 October 1996 by the applicant's husband, he was the applicant and the wife and children, who sought visas as members of the husband’s family unit, were not. In those circumstances, it was submitted that it was the applicant's husband who had been refused a visa, not her.
The attempted distinction between the husband as applicant and members of his family unit for the purposes of s.48(1) does not exist. Section 45 of the Migration Act 1958 provided that a non-citizen who wants a visa must apply for a visa of a particular class. Section 46 set out what constitutes a valid visa application, including the requirement to comply with regulations. Regulation 2.07 of the Migration Regulations 1994 provided that, for the purposes of ss.45 and 46, matters required for a particular class of visa were set out in the relevant part of Schedule 1. The relevant item in schedule 1 was item 1126 which provided:
Protection (Class AZ)
(1)Form: 866
(2) Visa application charge:
(a) First instalment (payable at the time application is made):
(i)In the case of each applicant who is in immigration detention and has not been immigration cleared:
Nil
(ii) In any other case:
$30
(b)Second instalment (payable before grant of visa):
Nil
(3)Other:
(b)Application must be made in Australia.
(c)Applicant must be in Australia.
(d)Application by a person claiming to be a member of the family unit of a person who is an applicant for a Protection Visa may be made at the same time and place as, and combined with, the application by that person.
(4)Subclasses: 866 (Protection)
Regulation 2.02 (2) provided that a part of schedule 2 is relevant to a particular class of a visa if the part of schedule 2 is listed under the sub item "subclasses" in the item in schedule 1 that refers to that class of visa. Schedule 2 contained the following part:
SUBCLASS 866-PROTECTION
866.1 INTERPRETATION
866.111 In this Part:
"Refugees Convention" means the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.
866.112 For the purposes of this Part, a person ("A") is a member of the same family unit as another person ("B") if:
(a)A is a member of B's family unit; or
(b)B is a member of A's family unit; or
(c)A and B are members of the family unit of a third person.
866.2 PRIMARY CRITERIA
[NOTE: All applicants must satisfy the primary criteria.]
866.21 Criteria to be satisfied at time of application
866.211 The applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and: (a) makes specific claims under the Refugees Convention; or
(b) claims to be a member of the same family unit as a person who:
(i)has made specific claims under the Refugees Convention; and
(ii) is an applicant for a Protection (Class AZ) visa.
A person who claimed to be a member of the same family unit as a person who has made specific claims under the Refugee Convention and is an applicant for a Protection (Class AZ) visa is described as an applicant for a visa consistently throughout the relevant parts of the Migration Act and Migration Regulations. The person claiming to be a member of the same family unit applies for a visa. If the application is unsuccessful, that person has been refused a visa. Section 48(1) applied to the applicant in this case. The assumption that the Tribunal made was correct.
The second jurisdictional error alleged is that the Tribunal failed to consider evidence about the nominator’s state of health after
15 October 1996. The Tribunal had to consider whether the visa applicant was a "special need relative" both at the time of the application and at the time of the decision by the Tribunal. That meant that the nominators "permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances" had to have arisen after 15 October 1996, when the previous visa application was lodged and before 30 July 1998, when the application for a special need relative visa was made.
As evidence, the Tribunal had the written material and evidence at the hearing held on 11 June 2002. There was a report from a psychologist, Logan Elliott, which referred to an assessment of the nominator on
24 July 1998. The nominator’s brother died in a level crossing accident when his car was hit by a train. He suffered from unresolved grief from the loss of his brother. He complained of severe depression, bad dreams, excess alcohol intake, an inability to remember drinking episodes, sleep onset insomnia, repeated waking from sleep, crying suddenly for no apparent reason, episodes of acute distress, poor recall and concentration, and being startled unduly by minor events. The report concluded that the nominator would require emotional and psychological support to remain in the community. It was stated in the report that the nominator suffered from a combination of Post Traumatic Stress Disorder from unresolved grief from the loss of his brother and that there was a risk he would commit suicide. A death certificate for his brother was submitted as evidence that he died on
11 June 1995. A letter from the four siblings of the nominator dated
29 November 2000 stated that only the visa applicant was able to provide assistance to the nominator as they were all employed. A letter from the Monash Medical Centre dated 16 August 2001 advised that the nominator was admitted to hospital suffering from a disorder of the sympathetic nerve supply to the eye and face. It was further stated that he had been previously completely well but that he had experienced some weakness and clumsiness the night before.
At the hearing, the nominator, the nominator's wife and a psychologist, Mr Michael Haywood, gave evidence. A detailed psychological report from Mr Haywood dated 11 June 2002 was tabled. He had been treating the nominator for the past month and referred to him to a medical practitioner for assessment. The medical practitioner gave the nominator anti-depressant medication which he began taking on 3 May 2002. He said that the applicant had the requisite skills to help the nominator, that they have a very close relationship and she provided counselling and ongoing emotional support. No other relatives seemed to have the same ability. The other family members did not seem to appreciate what depression was.
The Tribunal, in its findings, discussed the evidence and various authorities where "special need relative" was discussed. The Tribunal stated its conclusion in the following way:
The visa applicant's [should be nominator’s] wife states that she is unable to assist her husband with his depression problems and that they have an argument with each other, rather than her assist him, she states her two adult sons who live at home are unable to assist their father. The three brothers and one sister who all live nearby in Melbourne, while stating that they are a close family, and are willing to provide some assistance for example financial assistance, state that they cannot provide the help in dealing with depression that only the visa applicant can provide. While the Tribunal accepts that the nominator prefers the help and companionship of the visa applicant, it would seem reasonable that with a wife, two sons who all live with the visa applicant, and four siblings, all on good terms with the nominator who live near by, help should be expected from them. There is also a problem with this application in that the cause of the stated illness, depression, stems from the death of a brother in 1995, yet the requirements of an AG visa are that the illness should come after 15 October 1996 the date when a subclass 866 visa was applied for. The further illness of the nominator, the stroke, comes after the date of 30 July 1998.
Given all these issues, it is not clear that at the time of application there was a serious illness, or that the circumstances prevailing then could be termed serious circumstances. Nor could it be said that the assistance required was substantial. Furthermore the Tribunal also found that it would be reasonable for assistance to be given to the nominator by his wife children and four siblings resident in Melbourne. The Tribunal finds that the visa applicant was not a `special need relative' at the time of the visa application. Having decided that the visa applicant was not a `special need relative' at time of visa application, it therefore is unnecessary for the Tribunal to consider whether the visa applicant is a `special need relative' at the time of the Tribunal's decision. The visa cannot be granted unless clause 806.213 is satisfied.
At the conclusion of his report, Mr Elliott said this:
It is my professional opinion as a Clinical Psychologist, having interviewed and tested Oswald Forbes and Mary Oorloff, that Oswald needs psychological, emotional, and practical support, is likely to need this support indefinitely, and that Mary is uniquely able to provide assistance.
I base my opinion on the following facts:
(a)Oswald suffers from a combination of Post Traumatic Stress Disorder and from unresolved grief for the loss of his brother. There is a risk that he will commit suicide.
(b) The unfortunate location of the death of his brother means that he will always be reminded of that. So the grieving process will be started again and again. Adaption will therefore be slow, and he will need culturally sensitive psychological and emotional support from someone he trusts.
(c) His sister Mary is the only person who is both willing and able to provide the support. Some other family members are not available, some are somewhat hostile, and the others (such as Philomena Forbes) have tried to support Oswald but have not been effective, probably because they do not have the longstanding special bond with him that Mary does.
(d)State Government agencies will have difficulty providing adequate service because of his cultural reasons for having difficulty co-operating with them.
The report refers to matters which had occurred since the death of the brother. The refusal of the application for a protection visa had exacerbated his distress. New symptoms were reported. He would get into his car and drive long distances with no particular destination. It seems that these are the matters which were submitted that the Tribunal had not taken into account.
In Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Cohen (2001] 177 ALR 473, [2001] HCA 10, McHugh J. said that [35-37]:
35.The applicant submits that the Tribunal “misunderstood the nature of the opinion which [it] is to form” [16]. He submits that the Tribunal did not understand the true meaning of "disability" and "other serious circumstance" in the definition of "special need relative" in reg 1.03. But, assuming that the Tribunal erred in determining the meaning of these expressions because it applied an erroneous precedent in determining the meaning of "disability" and "other serious circumstance", it does not follow that it committed a jurisdictional error. Adopting an incorrect interpretation is not always synonymous with jurisdictional error. Nor does it make a difference to the validity of that proposition that the relevant tribunal has applied an erroneous precedent rather than adopting its own erroneous interpretation.
36.The Tribunal understood the question that it had to answer. Even if it applied an erroneous precedent, it did not commit a jurisdictional error. The expressions "disability" and "other serious circumstances" were used in reg 1.03 in their ordinary, non-technical sense. The ordinary meaning or common understanding of a non-technical word is generally a question of fact [17]. Leaving aside questions of jurisdictional fact, an administrative tribunal will ordinarily not commit a jurisdictional error unless it has made an error of law [18]. A factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact. Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.
37.If an administrative tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short step to concluding that it did not decide the question that it had to decide. But questions of fact are ordinarily for an administrative tribunal to determine and so are the reasoning processes employed to make such findings. Disagreement with a finding of fact or the reasoning process used to find it is usually a slender ground for concluding that a tribunal misconceived its duty.
If the Tribunal made any error in its use of Mr Logan's report it was a factual error or a fault in the reasoning process. The Tribunal did not apply a wrong legal test or ask itself to decide a wrong legal question. What Mr Logan's report said about the time at which the nominator’s condition arose were questions for the Tribunal. They were not questions of law and not matters which could give rise to jurisdictional error.
Even if the Tribunal was wrong in deciding when the nominator's condition arose, other findings that the Tribunal had made meant that the application could not succeed. The Tribunal specifically found that it would be reasonable for assistance to be given to the nominator by his wife and children and four siblings that were resident in Melbourne. The application did not satisfy the requirements of paragraph (b) of the definition of "special need relative". That is a requirement which must be satisfied in addition to the nominator meeting the requirements of paragraph (a).
There has been no jurisdictional error and no basis for challenge to the Tribunal's decision. The application is dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Phipps FM
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