Pereira v Minister for Immigration - [2003] FMCA 514

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PEREIRA & ANOR v MINISTER FOR IMMIGRATION & ORS

[2003] FMCA 514

MIGRATION – Review of Migration Review Tribunal decision – change in circumstances visa – special need relative – whether jurisdictional error by Tribunal failing to bring to attention of Applicant basis for decision found in Act and/or regulations.

Migration Act 1958, s.417

Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57
Muin v Refugee Review Tribunal and Ors [2001] HCA 30
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Ayan v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA FC 139

Applicants:

DELRINE HELEN PEREIRA and ANOTHER

Respondents:

THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND OTHERS

File No:

MZ 408 of 2003

Delivered on:

14 November 2003

Delivered at:

Melbourne

Hearing Date:

16 October 2003

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicants:

Mr B. Kissane

Solicitors for the Applicants:

Wimal & Associates

Counsel for the Respondents:

Dr S. Donaghue

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Amended Application filed 16 June 2003 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 408 of 2003

DELRINE HELEN PEREIRA and ANOTHER

Applicants

and

THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and OTHERS

Respondents

REASONS FOR JUDGMENT

Delrine Helen Pereira (the first applicant) has made an application along with the other applicants, namely, her husband and two children, seeking review of a decision by the Migration Review Tribunal (the MRT) made on 7 June 2002 whereby it was decided the first‑named applicant is not entitled to a change in circumstance (residence) (class AG) visa subclass 806.
The applicant applied for a change of circumstances visa on 29 July 1998. In her application the applicant nominated her uncle Noel Gordon Leonard (the nominator) an Australian citizen as a person of whom the applicant should be regarded as a special need relative.

A delegate of the first respondent refused to grant the visa on 5 December 2001. The applicant then applied to the MRT for review of the delegate's decision to refuse the visa. The MRT, as indicated, made a decision on 7 June 2002 affirming the delegate's decision.
The proceedings before this court had originally commenced on 3 July 2002 by way of an application to the High Court of Australia. That application was then in turn remitted to the Federal Court of Australia by order of the High Court on 7 February 2003. The proceeding was subsequently transferred by order of the Federal Court to the Federal Magistrates Court.
There is no issue taken in relation to the number of applicants, which, as indicated, include the first‑named applicant and her family, nor is any issue taken with the fact that a number of respondents have been named in the proceedings. In the circumstances, I am satisfied that the first‑named respondent is the appropriate party and that in the proceedings as they now appear before this court it is unnecessary to consider further the validity or otherwise of joining the second and third respondents who are referred to as the Migration Review Tribunal and the third respondent as principal member of the Migration Review Tribunal.
The background in this matter has been set out in written submissions by both parties. It is convenient for dealing with the background to note that the central issue in the case before the MRT was whether the first applicant, referred to as the visa applicant, was a special need relative of the nominator for the purpose of the visa application. It should further be noted that when the matter was agitated before this court, essentially the issues argued by counsel for the applicant related to a submission that there had been a breach of natural justice of a kind that would attract judicial review as a consequence of what is said to be jurisdictional error, and, likewise, further jurisdictional errors occurred by the MRT's failure to ‘ask the right question’.
By way of background it is noted that the first applicant had arrived in Australia with her family on 2 February 1996. When the family arrived, they did so on a subclass 676 tourist (short stay) visa which was valid for a visit of three months.
On 11 April 1996 the first-named applicant applied for a protection visa. Her spouse Mr Brian Periera (the second applicant) and two sons (the third and fourth applicants) were included as dependants on that application.
On 1 August 1996 the first applicant applied for a subclass 434 Sri Lankan humanitarian (temporary) visa. This visa was granted on 26 August 1996.
On 19 September 1996 the department refused the first applicant's application for a protection visa. On 15 October 1996 the first applicant applied to the Refugee Review Tribunal (the RRT) for a review of the departmental decision to refuse her protection visa. On 11 March 1997 the RRT affirmed the department's decision. On 30 April 1997 the first applicant appealed to the minister to exercise his power under s.417 of the Migration Act 1958 (the act).
On 11 August 1997 the first applicant applied for a subclass 435 Sri Lankan humanitarian (temporary) visa. However, that application was refused.
Significantly, the last substantive application made by the first applicant occurred on 9 December 1997 when the first applicant applied a second time for a subclass 435 Sri Lankan humanitarian (temporary) visa. That application was refused. On 13 May 1998 the minister decided not to exercise his discretionary powers in the first applicant's case.
On 29 July 1998 the first applicant applied for permanent residence in Australia on the grounds of being a special need relative to her uncle Mr Leonard and his wife Ms Christine Leonard. Again in that application the first applicant's spouse and two sons were included as dependants.
The nominator is an Australian citizen and there is no dispute that he had a serious heart attack in June 1997 and had heart surgery involving a double bypass operation in January 1998. In addition to heart problems, the nominator had suffered an injury at work in October 1995 that seriously damaged his leg. That injury has caused the nominator ongoing pain. In the court book there is a copy of a medical report from a medical practitioner relating to the nominator and it refers specifically to the work injury which occurred on 1 October 1995. The injury involved was described as an accident where the nominator suffered "a crush injury of his left leg". The injury resulted in what is described as a "fracture of fibula and soft tissue injury". The nominator had provided a statutory declaration (court book page 106) which refers to the accident of 1 October 1995. In that statutory declaration the nominator states:-
“Ever since the accident I have suffered from serious health problems and on 14 June 1997 I suffered two serious heart attacks”.
In the statutory declaration the nominator refers to suffering severe depression since the accident and in May 1999 he had sold his family home and then separated from his wife. He provides a reference to the first‑named applicant providing a great deal of support for him and in the circumstances there is now no dispute that assistance has been provided by the first applicant to the nominator. It is noteworthy that in a letter to the MRT dated 10 December 2001 (court book page 85) the first applicant refers to her assistance to the nominator in the following terms:-
“I have been helping and caring, for my uncle as he needs constant care in controlling his emotions and depression that he goes through everyday, ever since I came to Australia although there was no necessity to publish or bring it forward, until there came a day that he could not be left unaided as he need lots of care attention and support and took the opportunity of applying as a special need relative”.
The applicant then refers to the level and nature of the care and assistance provided by her to the nominator. In the submissions made to this court reference was made to the key finding in the MRT's decision which is the subject of review, which appears as follows:-
“The Tribunal finds that the visa applicant was a ‘special need relative’ at the of the visa application but the Tribunal also finds that the visa applicant became a special need relative before 9 December 1997 being the date on which the visa applicant last applied for a substantive visa. The Tribunal finds that the visa applicant does not satisfy subclause 806.211(d) and therefore fails to satisfy subdivision 806.21”.
Before reaching its decision, it is perhaps significant that in its findings the MRT recites the relevant criteria applicable to a visa application of this kind. It is appropriate to set out those findings which in turn provide a reference to the appropriate regulations as follows:-
“20.At the time the visa application was lodged, Class AG contained a number of subclasses. The only subclass in respect of which any claims have been advanced is Subclass 806, and then only in respect to the ‘special need relative’ ground. There is no evidence to suggest that the visa applicant meets the criteria for other subclass.
21.The time of application criteria are contained in subdivision 806.21. Clause 806.211 relevantly provides as follows:-
If …
(b)the Applicant is a person to whom section 48 of the Act applies;
the applicant: …
(c)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.
22.Section 48 of the Act relevantly provides:
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 …
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.
23.Regulation 2.12(1) prescribes the classes in the following relevant terms:
For the purposes of section 48 of the Act (which limits further applications by a person whose visa has been cancelled, or whose application for a visa has been refused) the following classes of visas are prescribed:
(a)Change in Circumstances (Residence) (Class AG) …”
Following recital of those terms as set out in the regulations and the statute, the MRT relevantly states the following:-
“24.On 11 April 1996 the visa application applied for a Protection (Class AZ) subclass 866 visa, which was refused by the Department on 19 September 1996 and finally determined by the Refugee Review Tribunal on 11 March 1997. The visa applicant holds a bridging visa and has been refused a substantive visa since last entering Australia and is therefore subject to section 48 and as a result she is also subject to the provisions of subclause 806.211(b) and therefore (d). The effect of paragraph (d) is that the visa applicant must have become a special need relative since her last application for a substantive visa which was made on 9 December 1997 when she applied for a subclass 435 visa and the date of the application for this subclass 806 visa which was made on 29 July 1998”.
It is not necessary to deal with the issue of whether the visa applicant was a special need relative as it is clear in the findings that the MRT has accepted that the nominator was indeed an Australian citizen and a person who is in need of what is described as permanent long-term need for assistance because of his prolonged illness or other serious circumstances. The MRT referred to medical evidence and otherwise recited the material which had been provided by the nominator in his statutory declaration. It is perhaps noteworthy that the need for support of the nominator is one which relates to disability, prolonged illness or serious circumstance but, based upon the evidence before the MRT, it would seem that although the nominator suffers from depression and although earlier reference was made to frequent angina with the depression commencing in late 1996 following the workplace accident, that the nominator in his evidence to the MRT stated that he "does not have angina pain". It is not disputed that before the MRT the nominator gave evidence about the extent of his disability to the leg, leading the MRT to state, "He is, however, severely disabled by the leg injury and the associated depression that followed the workplace accident that occurred on 1 October 1995."
It is clear that the MRT made a favourable finding that the visa applicant is willing and able to provide the substantial assistance required by the nominator. It is also clear that unlike the delegate, the MRT was satisfied on the evidence that there were no other relatives who could provide the assistance required by the nominator and concludes "it is troubled that the level of care required could only be obtained by admission to residential care". In other words, the MRT made findings on substantive issues which were clearly findings more favourable than those findings by the delegate. Specifically it is noted that the delegate found the type of care provided to the nominator was not care which would constitute “substantial and continuing support” within the meaning of migration regulation 1.03. The delegate had also rejected the claim by the visa applicant that she is the only person available to provide the kind of assistance the nominator requires. Hence, it would be seen that on substantive issues favourable findings were made by the MRT.
The cause of concern, however, is the finding referred to in paragraph 33 of the MRT decision referred to earlier in this judgment. It is that key finding that in the circumstances the applicant became a special need relative before 9 December 1997, being the date on which the visa applicant last applied for a substantive visa, which led the MRT to find that the visa applicant does not therefore satisfy subclause 806.211(d) and therefore fails to satisfy subdivision 806.21.
During the course of submissions counsel for the applicant noted that the ultimate conclusion reached by the MRT in relation to the chronology of events and the specific finding that the visa applicant had become a special need relative prior to 9 December 1997 was not a matter which had been brought to the attention of the applicant or the migration agent who appeared for the visa applicant at the MRT hearing. In those circumstances it was submitted that there had been a breach of natural justice of a kind which could be said to constitute jurisdictional error. Specifically, the amended application filed 16 June 2003 provides the following in relation to details of claim:-
“1.The decision of the Tribunal was made without jurisdiction or was affected by error of jurisdiction.
2.The decision of the Tribunal being affected by jurisdictional error is not a decision to which section 474 of the Migration Act as amended applies.
3.The decision of the Tribunal is affected by jurisdictional error in that the decision was made in breach of rules of natural justice.
Particulars
i)It acted in breach of the rules of natural justice and/or the duty of procedural fairness in that it failed to give the Applicant an opportunity or an adequate opportunity to respond to its view that the firstnamed Applicant became a 'special need relative' of the nominator before 9 December 1997.
ii)It acted in breach of the rules of natural justice and/or procedural fairness in that it failed to direct the attention of the applicant to the issue of the time at which the Applicant became a 'special need relative' and therefore to allow the Applicant to produce evidence about this issue.
4.Further, or in the alternative, the decision of the tribunal is affected by jurisdictional error in that the tribunal asked the wrong question, identified the wrong issue, failed to take account of relevant material and took into account irrelevant material.
Particulars
i)The Tribunal misinterpreted and/or misunderstood the criterion that the Applicant is a 'special need relative' as defined by regulation 1.03 in that it failed to consider or adequately consider the Applicants’ claims and the evidence in support of these claims.
ii)It failed to deal with and/or consider the case as presented and/or the claims of the Applicant in that its decision failed to deal with the evidence of when the Applicant became a 'special need relative' of the nominator.
iii)It failed to deal with and/or consider the case as presented and/or the claims of the Applicant in that its decision failed to deal with the claim that the situation of the nominator changed in 1998 such that the Applicant became a 'special need relative' of the nominator at this time.
5.Further, or in the alternative, the decision of the Tribunal was made in breach of an imperative duty imposed on the Tribunal or an essential pre-condition to or an inviolable limitation restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by s65 to grant or refuse the application. As a result the Tribunal exceeded its jurisdiction and/or constructively failed to exercise jurisdiction.
Particulars
The Applicant refers to and repeats the particulars set out in paragraphs 3 and 4 above.”
As indicated, the first issue that was agitated by counsel for the applicant relates to what is described as the breach of natural justice and/or procedural fairness. It is understandable that in the circumstances the first applicant may have been concerned that having in a sense achieved a favourable decision in relation to those substantive issues which the delegate had decided against the first applicant, that in the circumstances, having not specifically addressed the issue of the timing and chronology, that the first-named applicant is aggrieved by the decision. It was submitted by the applicant that in the present case the first applicant was at least entitled to be advised by the MRT as a matter of procedural fairness that it intended to consider that specific and narrow issue. The critical issue, it was submitted, is the issue which arises from what is described as the date when the visa applicant could be said to have become a special need relative. Because that was the key issue, the failure of the MRT to raise a question about that issue is sufficient, it was submitted, to constitute a breach of the rules of natural justice.
Counsel had referred in general terms to the issue of natural justice and in particular referred the court to the High Court decision in Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57. In that case it is useful to set out the following extracts from the court's decision which relate to the issue of procedural fairness, and in particular I refer to the decisions which appear at paragraph 97 per Gaudron J, paragraph 141 per McHugh J, and paragraph 194 per Kirby J.
“97. Of course, if a Minister rejects an application simply because he or she is not satisfied as to some or all of the information provided by an applicant, there will be no occasion for him or her to consider the exercise of his or her power to invite further submissions or further information. However, if he or she has regard to information other than that provided by the applicant, a question will arise whether procedural fairness requires that the powers conferred by ss 54(3) and 56(2) be exercised to permit the applicant to put submissions or provide further information. Inevitably, the answer to that question must depend on the nature of the claims made by the applicant and the information to which the Minister has had regard.
141.Section 56 is not a mandatory power, but a permissive power. It says nothing as to what must be done with the information that the Minister obtains under s 56 (1). Nothing in the section states, expressly or by necessary implication, that once the delegate chooses to exercise the power, natural justice does not condition its exercise. In some cases, exercises of the power, although conditioned by the rules of natural justice, will not require that the applicant have an opportunity to comment on the material. Examples of material that would not require comment by the applicant would include non-adverse country information, favourable or corroborative information in the public domain and information based on the circumstances already described in the application. But there are cases where the exercise of this power does require that the applicant be given an opportunity to comment on the material. An example is where the delegate proposes to use new material of which the applicant may be unaware and which is or could be decisive against the applicant's claim for refugee status. The need for disclosure by the delegate is even stronger where the material concerns circumstances that have changed since the date of application and is being used after considerable delay. It is stronger still when the material is equivocal or contains information that the applicant could not reasonably have expected to be used in the way the delegate uses it.
194.The requirement of disclosure, relevant to a case such as the present, has been expressed by the Full Court of the Federal Court in terms that I accept:
‘[The] entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.’”

It was submitted on behalf of the respondent that there is no duty on the MRT to provide advice and/or alert the applicant to the issue of the timing in relation to an application of this kind. Specifically it was noted that the very nature of the application, that is, a "change in circumstance" application, combined with a simple reference to the relevant regulations would be sufficient to alert the first applicant and/or her migration agent to the critical issue of the change of circumstances. Particular reference was made to clause 806.211(d) and the words in that provision which include "since last applying for an entry permit or substantive visa". In the circumstances, it is clear on the chronology that the last date upon which the visa applicant had applied for a substantive visa was clearly set out in the chronology to which I have referred and it is not in issue that that date was 9 December 1997.
It was submitted that a proper analysis of the material reveals that there were a number of references to the commencement date of the applicant becoming a special need relative, and indeed reference was made to her own statement to which I have already referred; that is, that she became a carer of the nominator at a time when the applicant came to Australia. Specifically reference was made to the words "ever since I came to Australia" she had been helping and caring for the nominator. As indicated, there is no dispute that the applicant came to Australia on or about 2 February 1996. It is equally clear on the material that was submitted by the respondent that the nominator's main injury was an injury which he had suffered arising from the accident which had occurred at work and that that accident occurred on 1 October 1995.
It was submitted by the Respondent that applying the relevant authorities, there is no requirement on the MRT to provide the first applicant with any notice or otherwise provide material which would bring the relevant matters to the attention of the first applicant. Indeed, in any event, it was submitted that there was correspondence to the first applicant which included a letter dated 5 December 2001 from the Department of Immigration and Multicultural Affairs which included the decision of the delegate to which I have referred. More importantly, the decision of the delegate had attached to it annexures which included the extract from the migration regulations where regulation 806.211 was set out. It was submitted that in an application of this kind, with that material being placed before the first applicant, there is no further requirement of the MRT to otherwise bring the matter to the attention of the first applicant.
The respondent, in dealing with the issue of procedural fairness, referred the court to the High Court authority of Muin v Refugee Review Tribunal and Ors [2001] HCA 30 and in particular referred to the following:-
“265. Procedural fairness required that Mr Muin have a reasonable opportunity to place before the Tribunal any submission and any material that he wished to advance in support of his claim. Unlike National Companies and Securities Commission v News Corporation Ltd and Mahon v Air New Zealand there was no question of allowing a person an opportunity to meet some adverse finding that might later be published. In such a case an investigating body may be obliged to provide an opportunity for rebuttal because the issue emerges with sufficient definition only at the stage where the body forms a tentative view that the adverse finding may be made. But that is not this case. As has already been pointed out, the issue of the willingness and ability of his country of citizenship to afford Mr Muin protection from persecution on Convention grounds was central to his claim. The Tribunal was not obliged to tell Mr Muin that it was minded to reach a view about that question, which was contrary to the view he sought to have it form, and then ask him whether he wished to contradict that view. That he had to make out his claim about this matter was apparent from the outset of the Tribunal's review. Indeed, it was apparent from the moment he made his claim to a protection visa. This was not some issue that emerged only in the course of the Tribunal's proceedings.
266. Nor was the Tribunal bound to draw attention to the material which it considered to be persuasive of the view that he was not a refugee and then ask him whether he wanted to contradict it. Of course he wanted to put the opposite view. Again, so much was clear from the moment he made his claim for a protection visa. But it is fundamentally wrong to speak, in this context, in terms of "contradiction" if that is to suggest some competition between cases put by adversaries. Here there was no adversary to Mr Muin's claim. It was for him to make good his claim that he was entitled to Australia's protection.
…
268. Yet in essence the plaintiff's case in relation to adverse material was, first, that he could legitimately expect the Tribunal to tell him that it was minded to find against him and, secondly, that he could legitimately expect the Tribunal to tell him what material, adverse to his claim, the Tribunal either was minded to accept or was considering accepting and, before concluding the matter, seek his comment about that predisposition and that material. Procedural fairness does not go so far. To accept these contentions would amount to casting the Tribunal in the role of an adversary to a claimant's claim to refugee status. Not only were the procedures prescribed by the Act not adversarial proceedings, the Tribunal is not to be cast in the role of contradictor.”
The respondent further referred to the decision of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 and in particular referred to the decision of the court which appears at page 592 where the court stated at page 591‑592 the following:-
“Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision‑maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision‑maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made”.
It was submitted by the respondent in the present case the issue particularly in an application for a change of circumstances visa and as set out in the regulations is clear from the material, that is, the statute and the regulations relied upon.
In the alternative, it was submitted that in any event in the present case the court is entitled to look at the issue of the practical difference that may or may not have been made in relation to the outcome in the present case. It was submitted that in the present case the outcome would not have been any different even if the MRT had raised the issue of timing with the first applicant. The respondent relied upon the way in which the matter was put by the applicant in the submissions and indeed before this court and invited the court to conclude that in the circumstances, even if the applicant had been provided with some notice that the MRT was going to rely upon the dates, that in the circumstances there would not have been any evidence to detract from the conclusion by the MRT regarding the date when the first applicant became a special need relative; that is, it was a date prior to the date of the last substantive application. The respondent referred the court to the decision of the Full Court of the Federal Court of Australia in Ayan v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA FC 139 and in particular paragraph 20 which provides as follows:-
“20.The question whether the respondent was required to provide the appellant with his own criminal record, or the particular form of his own criminal record relied upon, depends on all the circumstances of the case. Mr Henry, on behalf of the appellant, correctly emphasised the importance of the decision to the appellant and his family, the lack of any merits review of the decision made personally by the respondent, and the centrality of the appellant’s criminal record to the respondent’s decision. It is, however, also important to realise that the assessment as to whether there has been an absence of procedural fairness is one of assessment of ‘practical injustice’ (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 195 ALR 502, [34] and [38] per Gleeson CJ and see also [122] per Hayne J and [149] per Callinan J, and the Full Court of this Court in Untan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 69 at [96] to [99] or whether the procedure was ‘fair in all the circumstances’ (Wiseman v Borneman [1971] AC 197, 308 (per Lord Reid) applied by Brennan J in Kioa v West (1985) 159 CLR 550, 662) to enable the person the subject of the decision to understand the matters which he or she needs to address and to have a reasonable opportunity to address those matters. This assessment is not to be made by applying a priori logic, but by attendance to the particular circumstances of the case and the procedure adopted up to the point of decision making”.
It was submitted that based upon the preceding passage from Ayan's case and the authorities referred to in that passage, that in the present case it could not be said that there was any practical injustice which has arisen in the present application.

Denial of natural justice

In relation to this issue of denial of procedural fairness or natural justice, it is my view that the submissions of the respondent are correct. It is not the responsibility of the tribunal to bring to the attention of the first applicant, who in this case also had the advantage of being represented by a migration agent, the matters which may ultimately result in an adverse decision of the tribunal where the basis for that adverse decision is no more than a proper and appropriate interpretation of the relevant Act and regulations. The content of the act and regulations are evident and the nature of the significant issue about which an unfavourable finding was ultimately made is clear on the terms of the statute and regulations.
Where the applicant has been provided with the relevant copy of the material before the MRT hearing, it is not a denial of procedural fairness or breach of natural justice for the MRT to fail to then bring to the attention of the applicant that that threshold issue is one which is going to be addressed by the MRT on the basis of the evidence produced. The MRT is not obliged, in my view, having regard to the authorities to which reference has been made, including Muin's case, to point out to the applicant that the chronology of events may lead to an adverse conclusion based upon the obligation the MRT has to interpret the relevant statute and regulations. The fact that a tribunal acts in accordance with the criterion set out in an act and regulations is basic and indeed might be regarded as no more than would reasonably be expected from any applicant, whether advised or otherwise.
When a copy of the relevant material is provided to parties by the respondent, then it is incumbent upon the applicant to at least become familiar with the terms of that material. In the present case it could not be said, having regard to the nature of the claim, namely, a "change of circumstances" application, that there should be any surprise felt by the applicant that the MRT would consider, in having regard to all of the material, the fundamental question which it is required to consider in relation to what has occurred since the last substantive visa application had been made by the first applicant.
Applying the relevant authorities to which I have been referred and even assuming for the present case that procedural fairness in certain circumstances may constitute jurisdictional error in a matter of this kind, I am not satisfied on the material before me that there has indeed been procedural unfairness or denial of natural justice and therefore there is no jurisdictional error. In the alternative I further accept the Respondents submissions that there is no practical injustice.

Asking the wrong question

In the amended application a further ground which had been relied upon relates to the issue of the MRT identifying or asking the wrong question and that it had, in doing so, misinterpreted the criteria that the applicant is a special need relative as defined by regulation 1.03. It was submitted that in the circumstances what the MRT had done was to approach the matter in the wrong way, and reference was made to paragraphs 27 and 28 of the MRT decision as follows:-
“27.The Tribunal must consider whether the visa applicant is a ‘special need relative’ at the time of the visa application and whether the visa applicant remains such at the time of decision in the light of the above summary of the law. In addition in Jun v Minister for Immigration and Multicultural Affairs (supra) Kenny J held that when considering whether the visa applicant was a special need relative at the time of application and at the time of decision the Tribunal must address each aspect of the definition of ‘special need relative’. Having regard to the criteria set out in the legislation and the considerations set out in Departmental policy, the relevant matters are discussed under the following headings:
Whether the visa applicant was nominated for the visa by a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. Whether the nominated is settled and usually resident in Australia.
28.The visa applicant has been nominated by her uncle, who is a relative as that term is defined in regulation 1.03. The nominator is an Australian citizen who is settled and usually resident in Australia.
The permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances.”
I note in passing that in that paragraph reference is made to Kenny J in the case of Jun v Minister for Immigration and Multicultural Affairs and, as counsel for the applicant correctly pointed out, it should be Mansfield J. In any event, it was submitted that the way in which the MRT dealt with the issue from paragraph 27 up to and including paragraph 28 in dealing with the time of the application and the time of decision criteria, that it had misinterpreted its role. I understood the submission, it was sought to be argued that the tribunal had not necessarily provided a basis upon which it had reached its decision, and it would seem that the argument advanced for and on behalf of the applicant was concerned with the issue that in its reasons where the MRT set out the evidence relied upon to find that the visa applicant was a special need relative of the nominator before 9 December 1997, it failed to consider the issue properly and failed to consider whether the visa applicant was entitled to a visa as a special need relative of the nominator.
The respondent submitted that in the present case the finding by the MRT that the first applicant was a special need relative is not a finding of fact that could be attacked or criticised in these proceedings. At best, it would be a case of seeking to pursue on judicial review a merit review concerning the date upon which the first applicant had become a special need relative.
I had some difficulty understanding the way in which this issue was addressed by counsel for the applicant. It seems to me that in a sense the suggested fault in the MRT's reasons for decision is no more than again seeking to revisit the factual background which, in my view, was properly considered and which led to a finding open to the tribunal, that is, that in the circumstances the applicant had become a special need relative before 9 December 1997.
Otherwise, in my view, I am not satisfied that the second ground and grounds otherwise set out in the amended application had been established.
For those reasons it follows that the amended application filed 16 June 2003 should be dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 14 November 2003