Perera v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1120
MIGRATION – visa – applicant must be a ‘special need relative’ providing substantial and continuing assistance in respect of a nominating relative with permanent or long-term need at time of application – whether tribunal misconstrued or misapplied definition of special need relative – tribunal found assistance provided not ‘substantial’ – whether obliged to consider ‘substantial’ and ‘continuing’ together – whether denial of procedural fairness or unreasonableness in consideration of medical evidence
RAJAPAKSHA PATHIRAGE RIYAN PERERA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 817 of 2004
GRAY J 16 AUGUST 2005 MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 817 of 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
RAJAPAKSHA PATHIRAGE RIYAN PERERA APPELLANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:
GRAY J
DATE OF ORDER:
16 AUGUST 2005
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 817 of 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
RAJAPAKSHA PATHIRAGE RIYAN PERERA APPELLANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:
GRAY J
DATE:
16 AUGUST 2005
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The nature and history of the proceeding
This appeal is concerned with the question whether the Migration Review Tribunal (‘the Tribunal’) misconstrued or misapplied the definition of ‘special need relative’ in considering whether the appellant should be granted a visa available to a person falling within that definition. This appeal is from the judgment of the Federal Magistrates Court, delivered on 9 June 2004, in Perera v Minister for Immigration [2004] FMCA 353. The learned federal magistrate dismissed with costs an application for relief pursuant to s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Tribunal, dated 13 June 2002. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs) (in both cases ‘the Minister’), refusing to grant to the appellant a Family (Residence) (Class AO) visa (‘a family visa’).
The legislation
The criteria applicable to a family visa at the relevant time were found in subclass 806 of Sch 2 to the Migration Regulations 1994 (Cth) (‘the Migration Regulations’). By items 806.213 and 806.221 respectively, the appellant was required to satisfy the definition of ‘special need relative’, in respect of another person who had nominated…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Perera v MIMIA [2005] FCA 1120
Case
[2005] FCA 1120
Decision Date
CaseChat Overview and Summary
The decision in Perera v MIMIA involved the appellant, a citizen of Sri Lanka, who applied for a family visa under the subclass 806 of the Migration Regulations 1994. The appellant’s sister, an Australian citizen, nominated him for the visa, citing his role in providing emotional and psychological support due to her mental health issues. The Tribunal rejected the appellant's application, determining that he did not meet the criteria of a 'special need relative' as defined by the regulations. The appellant appealed the decision, arguing that the Tribunal erred in its interpretation of the requirement for 'substantial and continuing assistance' and failed to consider the cumulative impact of the Nominator’s physical and emotional needs.
The court was required to determine whether the Tribunal's decision contained legal errors, particularly in its interpretation of the relevant regulations and its assessment of the evidence provided. The appellant contended that the Tribunal erred in focusing on the sufficiency of the assistance he provided rather than its continuity, and in not considering the totality of the Nominator's needs. Furthermore, the appellant argued that the Tribunal failed to properly weigh the evidence from the psychologist and the doctor, and did not appreciate the potential limitations of the doctor's report.
The court found that the Tribunal's conclusion about the appellant's eligibility as a'special need relative' was a matter of fact, not subject to judicial review. The court held that the Tribunal's failure to explicitly mention 'substantial and continuing assistance' did not constitute a legal error, as the finding that the assistance was not substantial was sufficient. The court also found that the Tribunal appropriately considered the evidence and made factual findings, which were not reviewable for error. The court further determined that the Tribunal did not deny procedural fairness and correctly assessed the weight of the evidence presented.
The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal. The court upheld the Tribunal’s decision, finding no basis for the appellant's claims of legal error or procedural unfairness.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of the appeal.
Background
Background to the litigation
The criteria applicable to a family visa at the relevant time were found in subclass 806 of Sch 2 to the Migration Regulations 1994 (Cth) (‘the Migration Regulations’). By items 806.213 and 806.221 respectively, the appellant was required to satisfy the definition of ‘special need relative’, in respect of another person who had nominated him for the grant of the visa (‘the Nominator’), both at the time of his application for the visa and at the time of a decision whether to grant the visa. The term ‘special need relative’ was defined in reg 1.03 of the Migration Regulations as follows:‘“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 otherserious circumstances affecting the citizen or resident personally, ora 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 relativewho is an Australian citizen, an Australian permanent residentor an eligible New Zealand citizen; or(ii)welfare, hospital, nursing or community services in Australia;’The facts The appellant is a citizen of Sri Lanka. He entered Australia on 29 December 1995 as the holder of a tourist visa, valid until 29 March 1996. On 23 February 1996, he was granted a further temporary visa, valid until 26 July 1996. On that date, he was granted a further temporary visa, valid until 31 July 1997. On 17 July 1997, he applied for a family visa. The Nominator is the appellant’s sister, an Australian citizen. In his visa application, the appellant referred to the Nominator’s psychological and emotional needs, and to his provision of emotional and psychological support for her. Subsequently, he submitted a report, dated 7 August 1997, from a psychologist, Mr Kleynhans, who had seen the Nominator once on 11 July 1997. The report described the Nominator as suffering from anxiety, and as being severely depressed, and suicidal. It also said that her husband was affected by the Nominator’s mental problems and was depressed as well. It referred to the appellant as providing assistance with household chores and as playing the crucial role of keeping the Nominator company at night when her husband was working. It said that the Nominator would suffer considerably, both emotionally and physically, if the appellant were unsuccessful in his visa application, and that no other person could play the ‘crucial empathetic’ role of supporting the Nominator. Before the Tribunal was a report from the Nominator’s treating doctor, Dr Hogan, dated 24 December 2001. This report referred to the Nominator’s eczema, recurrent rashes, hay fever and asthma, as well as to her anxiety and fear of the dark, and to a dislike of travelling alone after dark, since the arrival of her first child in 1996. The report said that the Nominator’s condition has been stable and tolerable with family support. In a report dated 11 April 2002, Dr Hogan repeated in substance what he had said in the report of 24 December 2001.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
GRAY J
The Tribunal therefore rejected the appellant’s application, on the basis that it was not satisfied that the appellant was a ‘special need relative’ of the Nominator at the time of his visa application. It found it unnecessary to consider whether the appellant met that definition at the time of decision. The visa could not be granted unless item 806.213 in Sch 2 to the Migration Regulations was satisfied.The primary judgment At first instance, the appellant contended that the Tribunal had erred in law in considering whether the appellant was willing and able to provide ‘substantial’ assistance to the Nominator, rather than ‘substantial and continuing assistance’. He also alleged that the Tribunal had erred in law in failing to have regard to the cumulative effect of the physical and emotional needs of the Nominator. The appellant also contended that the Tribunal had denied him natural justice, and had reached unreasonable conclusions, in three respects: in relying on the absence of evidence from any treating medical practitioner at the time of the application; in failing to accept the evidence of Mr Kleynhans on the ground that he had not referred the Nominator for further treatment; and in dismissing the evidence of Dr Hogan without appreciating that the doctor was constrained in what he said about the Nominator by the need not to confront her with difficult psychological issues in a non-clinical situation. The federal magistrate rejected the arguments based on error of law. His Honour viewed the Tribunal’s conclusion that, at the time of the application for a visa, the Nominator did not have a need for substantial assistance, as a finding of fact, with which the court could not interfere. His Honour further found that the Tribunal’s failure to refer to the full phrase ‘substantial and continuing’ did not provide a basis for claiming that there was an error of law. His Honour held that, having found that the assistance of the appellant was not substantial, the Tribunal did not need to consider whether that assistance was continuing. His Honour also said that, having found there was no need for assistance of the requisite kind, the Tribunal did not have to proceed to make a finding as to whether the assistance provided was substantial and continuing. Even if the Tribunal did proceed to make such a finding, his Honour held that this did not disclose error of law. The federal magistrate also rejected the appellant’s arguments as to denial of procedural fairness. His Honour held that the question of the weight to be given to Mr Kleynhan’s report was a matter for the Tribunal and that its finding of fact on that report was not reviewable. Although his Honour was critical of the Tribunal’s suggestion that a person engaged simply to provide a report for submission to the Tribunal ought to have suggested further treatment, he was satisfied that the Tribunal otherwise properly considered the content of the report. His Honour expressed the view that the Tribunal made a decision based on the facts and on a comparative analysis of the conclusions in that report and other material, including reports from Dr Hogan. His Honour also rejected the argument that the Tribunal should have been aware that Dr Hogan was giving a guarded or ‘coded’ report, understating the psychological condition of the Nominator, because the contents of the report would be made known to her. Similarly, his Honour rejected the submission that the Tribunal erred when it concluded that there was a difference in opinion between Dr Hogan and Mr Kleynhans. In his Honour’s view, these were both findings of fact by the Tribunal. Misunderstanding of particular items of evidence could not amount to reviewable error. His Honour also rejected the submission that the Tribunal had not viewed the elements of the Nominator’s condition cumulatively. In his Honour’s view, the Tribunal’s findings were open to it on the evidence and the Tribunal had taken into account all relevant matters in reaching a decision adverse to the appellant.