Perera v Minister for Immigration
[2004] FMCA 353
•9 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PERERA v MINISTER FOR IMMIGRATION | [2004] FMCA 353 |
| MIGRATION – Migration Review Tribunal – Family Residence Visa – special need relative. |
Migration Act 1958, s.474
Migration Regulations 1994
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 69 ALR 1
Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65
NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003)
SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129
Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
R v Hickman; Ex Parte Fox & Clinton (1945) 70 CLR 598
Re Minister for Immigration & Multicultural Affairs & Ors Ex Parte Cohen (2001) 177 ALR 473
SCAT v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 962 (6 August 2002)
Videla v Minister for Immigration & Multicultural Affairs (2002) FCA 233
(6 March 2002)
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Narayan v Minister for Immigration & Multicultural Affairs (2001) FCA 1745
Giraldo v Minister for Immigration & Multicultural Affairs (2001) FCA 113 (23 February 2001)
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 162 ALR 577
NAFL v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 297 (8 April 2003)
Re Minister for Immigration & Multicultural Affairs Ex parte Durairajasinghan (2000) 168 ALR 407
Chow v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 88 (Moore, Emmett and Bennett JJ 9 May 2003)
| Applicant: | RAJAPAKSHA PERERA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ664 of 2002 |
| Delivered on: | 9 June 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 22 May 2003 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicant: | Mr T Hurley |
| Solicitors for the Applicant: | Armstrong Ross |
| Counsel for the Respondent: | Mr W Mosley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed with costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ664 of 2002
| RAJAPAKSHA PERERA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
In this matter the applicant seeks to review a decision of the Migration Review Tribunal (the MRT) made on 13 June 2002 (the MRT decision).
The applicant is a male national of Sri Lanka born on 16 January 1973. He applied for a Family (Residence) (class AO) Visa on 17 July 1997. A delegate's decision to refuse to grant the visa was made on
18 October 2001. On 29 October 2001 the applicant forwarded an application for review of the delegates decision to the MRT.
The basis of the applicant's claim to this Court and to the MRT is that he was a "special need relative" in relation to his sister who is an Australian citizen ordinarily resident in Australia, Mrs Rosanna Perera (the nominator).
The application to this Court for review of the MRT decision was filed on 10 July 2002. The applicant has relied upon a "second amended application" filed 31 March 2003. He was granted leave on the day of the hearing to further amend that application. Ultimately a “Third Amended Application” was filed by leave of the Court.
In the Third Amended Application the applicant seeks the following:-
(1)An order in the nature of prohibition to prohibit the respondent and his servants and agents from acting on the MRT decision;
(2)An order in the nature of Mandamus to require the respondent himself and his servants and agents, to cause the application by the applicant for a Family (Residence) (class AO) Visa sub-class 806 made by the applicant to be considered and determined according to law;
(3)An order in the nature of Certiorari to quash the MRT decision on the ground that it involved jurisdictional error being:
(a)the MRT erred in law in considering whether the applicant was a relative who was willing and able to provide "substantial" assistance to the nominator rather than considering the question posed by the definition of "special need relative" in reg.1.03 of whether the applicant was willing and able to provide "substantial and continuing assistance" to the nominator and the MRT thereby made an error in applying the substantive law in question;
(ab)the MRT erred in law in construing in paragraph [67] of its reasons the phrase in par (a) of the definition of "special need relative" in reg.1.03 of the Migration (1994) Regulations "the [nominator] has a permanent or long term need for assistance" as if it required the nominator to have a "permanent or long term need of substantial assistance".
(b)the decision of the MRT was made in breach of the requirements of natural justice, or alternatively was so unreasonable that no reasonable decision-maker could have made it, because the MRT proceeded on the basis unless medical evidence from treating medical practitioners was filed with the application for the visa subsequent evidence from the treating medical practitioner was inherently unreliable or unsatisfactory;
(c)the decision of the MRT was in breach of the requirements of natural justice, or alternatively was so unreasonable that no reasonable decision-maker could have made it, because the MRT concluded that unless a consultant psychologist who asked for a medico-legal opinion of the circumstances of the nominator who offered her treatment the opinion of the psychologist was to be criticised;
(d)the decision involved a breach of the rules of natural justice in that the MRT failed to appreciate the effect of the expert evidence given by Dr Hogan as to the psychological condition of the nominator and manifesting itself in both physical and emotional symptoms and the MRT erred in considering these symptoms separately and further failed to appreciated that Dr Hogan felt unable to provide a detailed report without an assurance of confidentiality so as not to confront his patient (the nominator) with difficult psychological issues in a non-clinical situation;
(e)the alternative the decision involved an error of law in that the MRT construed (indistinct) in the definition of "special need relative" to "...... disability, prolonged illness or other serious circumstances ....." as preventing it from looking at the overall picture of the nominator when her physical and emotional needs as at the date of application were combined.
The application seeks such further or other relief that the Court has jurisdiction to grant that may be appropriate and costs.
At the hearing counsel for the applicant, Mr Hurley, submitted that the MRT decision involved jurisdictional error which could be placed in two categories. The first is what is described as an "error of law" represented in paras 3(a) and (e) of the application. The second category is the "breach of natural justice" group comprising paras 3(b), (c) and (d) of the application. The applicant further relied upon an amendment for which leave was granted at the hearing namely paragraph 3(ab) above.
Background
It is useful to set out a brief background which I have taken from the MRT decision. The applicant had entered Australia on 29 December 1995 as a holder of a Tourist (short stay) (class TR) sub-class 676 visa valid until 29 March 1996. On 23 February 1996 the applicant was granted a Sri Lankan (Temporary Class TT) sub-class 435 visa valid until 26 July 1996. A subsequent sub-class 435 visa was granted on 26 July 1996 which was valid until 31 July 1997. Since applying on 17 July 1997 for a sub-class 806 visa, being the visa under review, the applicant has held a bridging visa granted on the basis of that application. The application was made on 17 July 1997 on the basis that the applicant is a "special need relative" of the nominator. The nominator entered Australia on 13 July 1988 as the holder of a Fiancee-Personally Acquainted Class K1041 Visa. The nominator became an Australia citizen on 13 December 1990.
In his application the applicant referred to his sister as being the person needing assistance under the heading "special need relative". In answer to the question, "What circumstances had led to your relative needing your assistance (eg permanent disability, death of a close relative etc)?" the applicant inserted, "emotional and psychological needs." In answer to the question "Give details of the assistance you provide to your relative" the applicant inserted, "emotional and psychological support." When asked on the form, "Does your relative have any other relatives in Australia?" the applicant answered "yes" but further indicated that that relative could not provide the assistance required and stated, "I am the only one willing and able to provide assistance required."
In its reasons for decision the MRT referred to the evidence provided by the applicant. In particular it referred to a report from a psychologist, Mr Eddie Kleynhans, dated 7 August 1997. The psychologist had met and assessed the nominator on one occasion, namely 11 July 1997. The MRT sets out in summary form the highlights of a psychologist's report. For present purposes it is sufficient to note that the psychologist's report suggests that the nominator suffers from anxiety, is severely depressed and is suicidal. Further the psychologist refers to the nominator suffering considerably both emotionally and physically if the applicant was unsuccessful in his visa application and that no other person could play the "crucial empathetic" role of supporting the nominator.
The MRT also noted that a report dated 24 December 2001 was submitted on 21 January 2002 and again the MRT refers to key elements of that report. Two other reports were provided by Dr Hogan, one dated 11 April 2002 which to a large extent is in similar terms to the earlier report and a further report dated 21 April 2002 where the doctor states the following:
“I understand that there is now a need for increased detail to support the Perera's application before the Tribunal. However, I find myself in a difficult position as a full & detailed discussion of Rosanna Perera's medical condition in a non medical setting has the potential for harm to her. Therefore I will attempt to give sufficient detail to meet the Tribunal's needs while attempting to preserve her privacy & not confront her with difficult psychological issues in a non clinical situation.
...
As stated the nominator Mrs Perera has multiple problems with anxiety, fear of the dark, intense dislike of travelling alone after dark of which I have only been aware since the arrival of her first child who is now five years old. Her condition has been stable & tolerable provided she has trusted family support.
She is embarrassed by this situation & her condition. As she is a an intelligent woman she has been able to disguise her disability by organising her life & those around her.
I have had my suspicions since the birth of her first child, however her ability to cope has been overwhelmed with the arrival of her second child with all of his problems.
I became increasingly suspicious in November 2001 when her eczema flared as it may be aggravated by considerable anxiety.
.....
I became highly suspicious in April when I consulted with the family & her & wrote the report. Subsequently I have had the opportunity of speaking to her in considerable detail on 17 April where Today I believe she in fact has a more serious condition of a social phobia aggravated by significant anxiety & depression.
I intend to initiate treatment & refer her to an appropriate specialist. The conditions are often well hidden & only come to light when a person can no longer cope - as seem to have happened here.”
The MRT's reasons
In its reasons the MRT made findings and in particular considered the issue of whether the applicant was a "special need relative" at the time of the visa application and whether the applicant remains a "special need relative" at the time of decision. It is not in issue that it correctly concluded that if the applicant is not a "special need relative" at the time of application then it is not necessary to consider whether he is a "special need relative" at the time of the decision.
In its findings the MRT referred to the definition of "special need relative" set out in reg.1.03 of the Migration Regulations 1994 (the Regulations). Regulation 1.03 provides:
“'Special need relative' in relation to an Australia 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 person, 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.”
It is not disputed that the applicant as the brother of the nominator is a close relative for the purpose of the regulation.
The key finding of the MRT was that "on the evidence presented to the MRT, the MRT cannot make a finding that the nominator had at the time of application a need for assistance because of death, disability, prolonged illness or other serious circumstances affecting members of her family unit."
After analysing the evidence including the material provided by the reports from Dr Hogan the MRT went on to conclude the following:-
“..... The Tribunal accepts that when her eczema is bad, the nominator needs assistance with washing, cooking and shopping and receives assistance both from the visa applicant and her husband. However the Tribunal finds that these conditions do not give rise to a need for substantial assistance as envisaged by Regulation 1.03. The Tribunal also finds that on the occasions that such assistance is required the assistance can reasonably be obtained from her husband.”
Further in its findings the MRT stated:
“Having considered the medical evidence and the emotional needs of the nominator at the time of application the Tribunal finds that the nominator did not have at the time of application, a permanent or long-term need for substantial assistance because of death, disability, prolonged illness or other serious circumstances.
Additionally, the Tribunal finds that the assistance provided by the visa applicant, in the home, with transportation and the emotional support provided on nights when the nominator's husband was at work does not in this case constitute substantial assistance at the time of application.”
Relevant law
There is no dispute that the legislation and in particular the regulation to which I have referred provides for the appropriate power for the granting of a visa by the respondent to non citizens to remain in Australia. As indicated earlier there is no dispute that the criteria for the grant of a sub-class 806 visa as set out in part 806 of schedule 2 of the regulations includes criteria which has to be satisfied both at the time of the application and at the time of the decision. Hence consideration must be given to the criteria to be satisfied that at the time of the application for the visa requiring the applicant to be a "special need relative" of another person who has nominated the applicant for the grant of a visa. I have already recited reg.1.03 which provides the definition of the expression "special need relative".
Both counsel in this application have referred the Court to the principles which govern the interpretation of privative clauses and in particular referred the Court to the recent High Court decision in the matter of Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 (Plaintiff S157) which was delivered on 4 February 2003. In that decision the High Court whilst upholding the constitutional validity of amendments made to the Migration Act 1958 in late 2001 nevertheless interpreted the privative clause in a manner which may be said to significantly reduce the practical operation of the privative clauses including s.474 of the Migration Act.
Prior to the High Court decision in the matter of Plaintiff S157 the Full Court of the Federal Court had decided by a majority in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 69 ALR 1 that s.474 was constitutionally valid.
Since Plaintiff S157 when considering the issue of jurisdictional error the Court is able to rely upon the broader version of jurisdictional error identified in the High Court decisions of Craig v State of South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. In Yusuf McHugh, Gummow and Hayne JJ at paragraph 82 of their judgment cited with approval an extract from Craig v South Australia and stated the following:-
“82.It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the 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 powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”
It is useful to note the following extract from the Full Court of the Federal Court in SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65, per Carr J (with whom Cooper and Finkelstein JJ agreed) as follows:-
“…There is no mention in the above passage of the first sur place claim. Nor is that claim mentioned anywhere else in the Tribunal's reasoning. My assessment is that the Tribunal failed to consider the discrete, first sur place claim. This, in my view, was not (as the respondent submitted) simply a failure to refer to evidence in support of such a claim, but a complete failure to consider the claim at all. In my view, the Tribunal thereby fell into jurisdictional error of the type referred to in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. See also SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [14] and Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 at [79].”
I note a further recent decision of Hill J in NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003). In that case the following paragraphs are relevant: -
“31 The question not decided in Plaintiff S157/2002 (because it was unnecessary to decide, other than in respect of denial of procedural fairness) is what constitutes jurisdictional error in the sense used by the High Court in that case. Clearly failure to afford natural justice will constitute jurisdictional error for that is what the High Court actually decided in Plaintiff S157/2002. However, the question of what constitutes jurisdictional error as a ground for the grant of the constitutional writs of prohibition and mandamus (or the ancillary relief of certiorari) such as to bring about the result that the decision in question is a nullity, has been the subject of discussion in a number of cases.
…
33 Gaudron and Kirby JJ noted that the question whether there was a failure or constructive failure, to exercise jurisdiction required consideration of the nature of the obligation imposed upon the Tribunal (and in relation to a decision of the Minister which was also challenged, by the Minister). Their Honours stated the effect of Plaintiff S157/2002 to be as follows (par 72):
‘... [Section] 474 does not prevent the grant of prohibition, mandamus or certiorari in respect of decisions on the part of officers of the Commonwealth involving jurisdictional error for such decisions are not regarded, in law, as decisions at all and are, thus, not properly described as `a decision ... under [the] Act'. However and as also explained in Plaintiff S157/2002 v The Commonwealth of Australia, the effect of a provision such as s474 of the Act is to necessitate an examination of statutory limitations or requirements to ascertain whether, in the light of s474's restrictions on judicial review, non-observance of those limitations or requirements does or does not result in jurisdictional error.’
…
35 What matters for present purposes is not whether a failure to consider the relevant criteria would be jurisdictional error, but rather whether a failure to consider at all the case or a substantial part of the case advanced by an applicant would constitute jurisdictional error. Clearly the Tribunal has the same powers as the original decision maker within the context that the Tribunal was obliged to review the original decision and acting in the shoes of the decision maker to do again what the decision maker was required to do. The powers thus conferred upon the Tribunal likewise involve the consideration of the application against the criteria which the Act and the Regulations prescribed. It is, I think, quite clear that in the view of Gaudron and Kirby JJ, at least, the failure of the Tribunal to give consideration to the argument or case put forward by an applicant would constitute jurisdictional error and result in a decision which would not be a decision made under the Act and accordingly not be protected by s 474.”
The Full Court of the Federal Court in SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129 at paragraphs 27 and 28 relevantly states the following:-
“27 The statement that a particular error is a `jurisdictional error' is a statement of conclusion. The conclusion is that, be the error one of omission or commission, some essential or indispensable requirement for jurisdiction has not been met. An imperative duty has not been discharged or some inviolable limitation has been breached and therefore the action or decision is null and void; Plaintiff S157 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The error may be easy to detect (manifest error) or more difficult but, either way, an action or decision is either one which falls within the decision maker's lawful authority or it is not. If it falls within the decision maker's lawful authority then the error is made `within jurisdiction'. If it does not fall within the decision maker's lawful authority then the error is a `jurisdictional error' and as such it cannot be a valid action or decision.
28 In relation to statutory jurisdiction, such as that of the Tribunal, a conclusion as to the full extent of the jurisdiction granted, that is whether the decision is or is not authorised, can properly be reached only by construction of the whole of the relevant statute, in this case the Migration Act. When the statute contains a privative clause there is an inevitable tension between the privative clause and those parts of the statute that confer jurisdiction. As Gleeson CJ commented in Plaintiff S157 at [17]:
`The essential problem is the inconsistency between a provision in a statute, or an instrument, conferring a limited power or authority, and a provision which appears to mean that excess of power or authority may not be prohibited.'
Resolving that tension involves the process of reconciliation referred to by the High Court in Plaintiff S157.”
It is also useful to set out a case to which the Applicant referred namely the High Court decision in Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 at paragraphs 86-88 as follows:-
“The applicant submitted that he was entitled to the issue of constitutional writs under s 75(v) on the basis that the Tribunal had constructively failed to exercise its jurisdiction in the manner contemplated by the Act. This principle of relief has been applied in recent times, including in immigration decisions, where it is shown that the decision-maker "failed to consider the substance of [the application] and could only have failed to do so because he misunderstood what is involved in the Convention definition of 'refugee'".
This Court has repeatedly held that, for the issue of prohibition or mandamus under s 75(v) of the Constitution, it is necessary to demonstrate jurisdictional error on the part of the proposed subject of such relief. Thus, it is essential to establish something more than an error of law within jurisdiction. Difficult as it may sometimes be to differentiate jurisdictional and non-jurisdictional error with exactitude, in a case where there has been a fundamental mistake at the threshold in expressing, and therefore considering, the legal claim propounded by an applicant, the error will be classified as an error of jurisdiction. It will be treated as a constructive failure of the decision-maker to exercise the jurisdiction and powers given to it.
Obviously, it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction. But where, as here, the mistake is essentially definitional, and amounts to a basic misunderstanding of the case brought by an applicant, the resulting flaw is so serious as to undermine the lawfulness of the decision in question in a fundamental way.”
For the sake of completeness in the event that there is no jurisdictional error then it is of course still open to the Court to consider the issue of whether or not the “Hickman provisos” apply namely “whether the decision was reached in a bona fide attempt to exercise the power in question, it relates to the subject matter of the relevant legislation and it is reasonably capable of reference to the power under which the decision maker had acted.” (See R v Hickman; Ex Parte Fox & Clinton (1945) 70 CLR 598).
I am satisfied that a breach of rules of procedural fairness or natural justice may constitute a relevant jurisdictional error for the purpose of determining whether s.474 applies. That does not mean that any breach of those rules should automatically be taken to invalidate the decision in question. Each case must be determined on its merit.
Error of Law – Grounds 3(a) and (e)
It was submitted by the applicant that the MRT throughout its decision referred to whether the applicant gave “substantial assistance” rather than “substantial and continuing assistance”. It was submitted that the phrase is a composite phrase whereby the assistance is judged by reference to whether it is substantial and continuing and that each of these elements affect the judgment of the other. It was submitted the MRT erred by only considering whether assistance was “substantial” and concluding that it was not. Reference was made to the reasons which appear at paragraph 56 of the MRT’s reasons as follows:-
‘56.On the evidence presented to the Tribunal, the Tribunal cannot make a finding that the nominator had at the time of application a need for assistance because of death, disability, prolonged illness or other serious circumstances affecting members of her family unit. No reports from treating doctors have been submitted about the nominator's husband or child at the time of application. While Mr Kleynhans has referred to the severe depression of the nominator's husband, the Tribunal cannot on the evidence presented make a finding that this was a prolonged illness or disability giving rise to a need for substantial assistance. Regarding the problems experienced by the nominator with her first baby these had resolved by the time of application. In any event it has not been submitted that the nominator needed assistance because of a disability, prolonged illness or other serious circumstances affecting her husband or child at the time of application.’
It was submitted by the applicant that this is not an application where the two elements can be viewed independently and the MRT erred in dividing a composite term into two elements when this was not the correct constructive of the phrase.
The respondent submitted that the question of whether a person is a “special need relative” is a question of fact for the decision maker. Reliance was placed upon the decision of McHugh J in Re Minister for Immigration & Multicultural Affairs & Ors Ex Parte Cohen (2001) 177 ALR 473 where at paragraphs 35 and 36 His Honour states:-
“35.The applicant submits that the Tribunal "misunderstood the nature of the opinion which [it] is to form”. 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. Leaving aside questions of jurisdictional fact, an administrative tribunal will ordinarily not commit a jurisdictional error unless it has made an error of law. 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.”
The respondent referred to the decision of Von Doussa J in SCAT v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 962 (6 August 2002) at paragraph 36 as follows:-
“36.Counsel for the husband contended that the Tribunal failed to consider the cumulative effect of all the conduct about which he and his wife complained as the basis for their asserted well-founded fear of persecution. The Tribunal considered each of the claims upon which the applications for protection visas were made and then summarised its ultimate conclusion by saying that, having considered the evidence as a whole, it was not satisfied that the applicants are persons to whom Australia has protection obligations. In terms, the Tribunal has purported to consider the cumulative effect of the various claims, and I am unconvinced that the Tribunal fell into the basic error of not considering the cumulative effect of individual claims made by the applicants. The obligation of the Tribunal was to engage in a qualitative assessment of the harm that it accepted had been suffered by the husband and the wife. That qualitative assessment led the Tribunal to its conclusion. Such a finding at the end of that exercise is a finding of fact: Minister for Immigration & Multicultural & Indigenous Affairs v Kord [2002] FCA 334 per Heerey J at [3] and W338/01A v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 544 at [13]. Even in the absence of a privative clause like s 474(1), if an administrative tribunal makes a wrong finding of fact, that does not give rise to an error of law that is reviewable by a Court on judicial review. In my opinion there is no substance to this ground of challenge to the Tribunal's decision.”
Reliance was further placed upon the decision of Weinberg J in Videla v Minister for Immigration & Multicultural Affairs (2002) FCA 233
(6 March 2002) at paragraphs 16 to 18 as follows:-
“16 In order for the applicant to qualify as a "special need relative" under the Regulations, the Tribunal had to be satisfied of several distinct matters. These were:
* that he was willing and able to provide substantial and continuing assistance to his sister;
* that she had a permanent or long-term need for assistance;
* that that need arose by reason of "death, disability, prolonged illness or other serious circumstances"; and
* that the assistance could not reasonably be obtained from any other relative who was an Australian citizen or permanent resident, or from welfare, hospital, nursing or community services in Australia.
17 Whether or not the applicant was able to satisfy the Tribunal of each of these requirements involved a question of fact. It was for the Tribunal to determine that question, provided only that it approached the task correctly as a matter of law.
18 It is clear, in my view, that it was open to the Tribunal to conclude that Ms Pozo's depression and medical condition did not give rise to "a permanent or long-term need for assistance". It was also open to the Tribunal to conclude that, to the extent that she required such assistance, it was able to be provided by her other relatives in Australia.”
The Court was reminded of the High Court’s decision in the Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 where the Court warned against over zealous judicial review and undue concentration on the inadequacies of expression in the MRT’s reasons.
It was submitted in the present case that the MRT had found that at the time of the application the nominator suffered from a prolonged illness from which she had suffered for many years and for which she took medication. It is perhaps useful to set out the relevant paragraph as follows:-
“64. On the basis of Dr Hogan's medical report dated 24 December 2001, which was provided in response to the Tribunal's request for further information, the Tribunal finds that at the time of application the nominator suffered from a prolonged illness namely a major allergic tendency with severe eczema, recurrent rashes, hayfever and asthma which had been present for many years and for which she takes medication. The Tribunal finds that because of these conditions, the nominator on occasions needs assistance with transportation to the doctors and receives this assistance both from the visa applicant and her husband. The Tribunal accepts that when her eczema is bad, the nominator needs assistance with washing, cooking and shopping and receives assistance both from the visa applicant and her husband. However the Tribunal finds that these conditions do not give rise to a need for substantial assistance as envisaged by Regulation 1.03. The Tribunal also finds that on the occasions that such assistance is required the assistance can reasonably be obtained from her husband.”
It was submitted that although the MRT had accepted that on occasions the nominator needed some assistance for transportation to doctors and when her eczema was bad she needed assistance with various household related duties, she had received that assistance from both the applicant and her husband. The MRT concluded that having considered the medical evidence and the emotional needs of the nominator at the time of the application the nominator did not have a permanent or long term need for substantial assistance because of death, disability, prolonged illness or other serious circumstances. The MRT had found in any event that the assistance which the applicant provided did not constitute substantial assistance at the time of the application.
It was submitted in this case the need which must be established by the nominator is a need for permanent or long term assistance and the assistance which the applicant must be able to provide in respect of that need is assistance which is substantial and continuing. The inter relationship between the elements of the opening paragraph and those of paragraph (a) of “substantial need relative” was dealt with by the Full Court of the Federal Court in Narayan v Minister for Immigration & Multicultural Affairs (2001) FCA 1745 at paragraphs 38 to 44 as follows:-
“38Literally, and in schematic form, the definition of "special need relative" requires that the visa applicant be:
"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 ... prolonged illness or other serious circumstances ...; and
(b) the assistance cannot reasonably be obtained from [other sources of various kinds mentioned]"
39 The opening paragraph and par (a) of the definition are closely related. So much was accepted in Wu v Minister for Immigration & Multicultural Affairs (2000) 105 FCR 39, where the Full Court said (at [41]) of the definition of "special need relative" in reg 1.03:
"In our opinion the word `serious' is simply intended to reinforce the nature of the assistance that is central to the definition, namely assistance which is substantial and continuing in relation to a need for assistance which is permanent or long-term."
This passage suggests an interrelationship between the elements of the opening paragraph and those of par (a) of the definition.
40We agree with the primary Judge's observation (at [39]) that the definition of "special need relative" is "framed a little awkwardly". Perhaps some of the awkwardness is removed if the opening paragraph and par (a) are read purposively and as a whole. Paragraph (a) describes the need which the citizen or resident must have. The opening paragraph describes the kind of assistance which the visa applicant must be able to provide in response. Although the relationship between the two paragraphs is not stated expressly, it is not surprising that that assistance which the visa applicant is willing and able to provide is required to be "continuing", since the need referred to in par (a) is "permanent or long-term". Similarly, since the cause of the permanent or long-term need must be "serious" circumstances as described in par (a), it seems likely that often such a need will be able to be met by nothing less than "substantial assistance".
41Ms Narayan's chief submission on the appeal was that the learned primary Judge erred by construing the definition of "special need relative" as requiring "seriousness" or "substantiality" a second time rather than once only. Ms Narayan submits that, properly construed, the opening paragraph refers to nothing more (and, no doubt, nothing less) than the assistance described in par (a). She submits that the opening paragraph requires nothing more than that the visa applicant be willing and able to provide assistance of the kind described in par (a): in particular, that the opening paragraph does not require, in addition to that which is inherent in par (a), that the assistance which the visa applicant is willing and able to provide merit the epithets "substantial" and "continuing".
42But this submission would allow the expression "substantial and continuing" no role at all. The structure and the literal terms of the definition suggest that the legislature intended the opening paragraph to have the potential to disqualify a visa applicant, even if the insubstantiality of the assistance to be provided by him or her will often signify that some other element of the definition is not satisfied either.
43Assume that a resident or citizen lives with his or her spouse at a location remote from any relative or welfare, hospital, nursing or community services; that the resident or citizen, because of disability or prolonged illness, relies on the spouse to perform a particular minor household task; and that the spouse dies. A decision-maker may find that there is literally "a permanent or long-term need for assistance because of death" within par (a) of the definition, but that the assistance to be provided by the visa applicant is not "substantial" within its opening paragraph. On the other hand, the decision-maker may find, not only that the assistance to be provided is not substantial within that paragraph, but also that the optional and unimportant nature of the household task signifies that there is not truly "a permanent or long-term need for assistance" within the contemplation of par (a) of the definition.
44We think the opening paragraph itself imposes a criterion which must be satisfied. "Substantial" means "of substance", "significant" or "real". At pars [48] and [55] of its reasons for decision, which were set out at [13] and [15] above respectively, the MRT found as a matter of fact that the "supplementary" emotional support and companionship which Ms Narayan was willing and able to provide was not "substantial ... assistance". That was a factual finding which was open to the MRT, the making of which betrays no error of law.”
In the present case the respondent submitted that the MRT had found in terms of the definition that there was no ‘need’. It was submitted that accordingly that finding was enough to determine the application adversely to the applicant though perhaps not required to do so, it was submitted the MRT additionally found the applicant’s assistance to the nominator was not in any event substantial assistance. Having found there was no “need” and even if there was some error identified as submitted by the applicant, it was submitted by the respondent that the finding was not material in the sense that it was not critical to the decision (See Giraldo v Minister for Immigration & Multicultural Affairs (2001) FCA 113 (23 February 2001) per Sackville J at paragraph 63).
It was submitted that applying the principles set out by the Full Court in Narayan and in particular paragraph 44 referred to above, the MRT in the present case could not be criticised for its finding on the issue of what the applicant was willing and able to provide as this does not demonstrate any error let alone jurisdictional error. The MRT it was submitted proceeded to make a finding on the element of the definition.
Reference was made to paragraph 55 of the MRT’s decision in Narayan cited by the Full Court at paragraph 25 of its decision:-
“25 The MRT added the following observation at the conclusion of its reasons:
‘55. The Tribunal accepts that the visa applicants provide great support to the nominator and that they may take the place of other immediate family as the nominator has no spouse or children of her own. The Tribunal also accepts that the visa applicants have settled well in Australia and that they may well find it difficult to resettle in Fiji given the political changes that have taken place there in the interim. However the Tribunal is not satisfied that the assistance the primary visa applicant provides to the nominator to help her cope with her anxiety and depression is substantial assistance of the kind that falls within the scope of the regulations. It follows that the Tribunal is not satisfied that the primary visa applicant meets the definition of special need relative as set out in the Regulations.’"
It was submitted that that was a finding regarded by the Full Court as open to the MRT in that case and that there is no error of law in that finding.
It was further submitted by the respondent that if the assistance the applicant provided was found by the MRT to be not substantial it could not be argued that the applicant could then satisfy any further requirement that the assistance be “substantial and continuing”. It was submitted the word ‘and’ being used conjunctively not disjunctively.
In my view the respondent’s submissions on this issue are correct. Once the MRT has made a finding that there was no ‘need’ and I am satisfied that applying the authorities to which I have been referred that this is sufficient to determine the application adversely to the applicant. It is incorrect to suggest that having made that finding and having referred to the issue of whether or not the applicant’s assistance is substantial can somehow expose the MRT’s reasoning to judicial review when on the significant threshold issue it has already found that there was no “need”.
In the event that I am incorrect in my conclusion I further find that in any event there is no error displayed in the MRT’s reasoning whereby it made a finding that the applicant’s assistance is not substantial assistance “of the kind that falls within the scope of the regulations”. The mere fact that the MRT does not refer to the full phrase “substantial and continuing” does not in my view provide a basis upon which it could be claimed that there is an error of law. Having found that the assistance of the applicant is not substantial then it would be absurd to suggest that the MRT needs to further consider the issue of whether it is continuing. The MRT was obliged to consider at the time of the application the need and the assistance. Having made an adverse finding in relation to the issue of need, it was not necessary to then proceed to make a further finding as to whether the assistance provided by the applicant could properly be regarded as substantial within the meaning of the regulations. The fact that it proceeded to do so does not in my opinion disclose an error of law and I do not accept the submissions made for and on behalf of the applicant that an error has been disclosed by reference of the MRT to the issue of “substantial assistance” rather than “substantial and continuing assistance”. To uphold an error of law in that context in my view would be to artificially analyse the reasoning of the MRT and in the circumstances would otherwise embark upon an analytical task of a kind which might properly be regarded as over zealous judicial review (see Liang).
It follows that grounds 3(a) and (e) should fail.
Natural justice
Grounds 3(b), (c) and (d)
Reference was made to the report from the psychologist Mr Kleynhans dated 17 August 1997 which related to a consultation which occurred on 11 July 1997 (Appeal Book p.27). As indicated earlier in this judgment the MRT set out in summary form the highlights of the psychologist’s report. It was submitted by the applicant that the MRT had misunderstood the role of Mr Kleynhans which was to provide a report and not embark upon treatment. The approach of the MRT to the report on that basis and without warning to the applicant constituted a denial to the applicant of a fair hearing of the substance of his claim. The criticism of the MRT’s reasoning in relation to the report of Mr Kleynhans arises from the following paragraph of the MRT’s decision:
“65.The Tribunal considered the emotional needs of the nominator at the time of application. In regard to problems with anxiety, fear of the dark and a dislike of travelling alone after dark, the report of Dr Hogan dated 24 December 2001 indicated that that he has been aware of the problem since the arrival of her first child (on 3 August 1996). There is no indication by Dr Hogan that these problems required medical treatment or specialist referral at the time of application. The Tribunal considered the report of Mr Kleynhans. Mr Kleynhans does not refer to the nominator having a fear of the dark. He refers to the nominator being lonely prior to the visa applicant's arrival especially when her husband worked the night shift, and to the isolation of the nominator after she moved to Sunbury. The Tribunal noted that the visa applicant worked for 32 hours a week from 1997 to June 2000. The Tribunal noted that Mr Kleynhans, who had only seen the nominator on one occasion, gives a totally different picture regarding the nominator's emotional state to that of Dr Hogan who has treated her for years. Given the seriousness of Mr Kleynhans' findings that the nominator is severely depressed and suicidal, it is inconceivable that he did not ask the nominator to return or refer her for further treatment. Accordingly the Tribunal has given his report little weight.”
In relation to the issue of the MRT’s findings regarding Mr Kelynhans report the respondent submitted that there was no denial of procedural fairness in the treatment of Kleynhans report. The MRT had undertaken a comparison between that report and the report of the treating doctor namely Dr Hogan. Any weight given by the MRT to the report it was submitted is solely a matter within the discretion of the MRT. It was submitted that the reasoning process of the MRT leading to a finding of fact is not reviewable simply because a Court may disagree with it or even if it considers it was illogical or unreasonable to attribute weight to that factor at all (see Minister for Immigration & Multicultural Affairs v Eshetu (1999) 162 ALR 577 per McHugh J at 587 [40]).
Reliance was placed upon the decision of Gleeson J in Minister for Immigration & Multicultural Affairs v Rajamanikkam (2002) 190 ALR 402 where at paragraph 26 the Court states the following:-
“26.That case showed, identification of the "decision" may constitute an important step in deciding whether there has been an error of law in the form of a breach of a duty to act in accordance with the requirements of procedural fairness. The requirement is to "base [a] decision on evidence"; a requirement as to the way the decision-maker is to go about the task of decision-making. The distinction between judicial review of administrative decision-making upon the ground that there has been an error of law, including a failure to comply with the requirements of procedural fairness, and comprehensive review of the merits of an administrative decision, would be obliterated if every step in a process of reasoning towards a decision were subject to judicial correction. The duty to base a decision on evidence, which is part of a legal requirement of procedural fairness, does not mean that any administrative decision may be quashed on judicial review if the reviewing court can be persuaded to a different view of the facts.
In my view whilst the criticism of the report by Mr Kleynhans may be unfortunate to the extent that the MRT refers to it being “inconceivable that he did not ask the nominator to return or refer her for further treatment”, that in my view is simply a finding of fact or part of the reasoning process which on judicial review cannot be challenged on the basis of the authorities to which reference has been made by the respondent. Obviously a medico legal report may not necessarily give rise to any suggestion that there should be a return to the author of that report by the patient for treatment. Nevertheless I am satisfied that the MRT otherwise properly considered the content of the report and made a decision based on the facts and a comparative analysis between the conclusions in that report and other material before it including reports from the treating general practitioner.
In my view there is no error in the manner in which the MRT had considered the Kleynhans material.
A further submission was made in relation to the evidence of Dr Hogan who as indicated had been the treating doctor of the nominator. It was submitted that the MRT should have been aware on seeing the report of Dr Hogan which appears in the material (Court Book p.114) that he was giving a guarded or “coded” report which understates the psychological condition or symptoms of the nominator. It was submitted the MRT misunderstood what the report of Dr Hogan was referring to when in its reasons at paragraph 65 it concluded there was a difference in opinion between Dr Hogan and Mr Kleynhans. It was submitted that the MRT conducted the review in breach of the requirement of natural justice by failing to appreciate the significance of the comments of Dr Hogan. Reference was made to paragraph 47 of the MRT decision which provided as follows:-
“47. The Tribunal also sought further information from Dr Hogan who had provided a report dated 11 April 2002. In that report, Dr Hogan referred to the nominator's major allergic tendency with severe eczema, recurrent rashes, hayfever and asthma, which has been present for many years and to the nominator's problems with anxiety, fear of the dark and a dislike of travelling alone after dark, which he has been aware of since the birth of her first child (on 3 August 1996). Specifically the Tribunal asked when the nominator's medical conditions were diagnosed and for details of treatment and specialist referral. The Tribunal was unaware that the nominator was consulting other doctors at the practice and Dr Hogan limited his response to his consultations but has indicated that there were an additional 24 consultations with other doctors or nurses at the practice since 1997. Regarding the nominator's problems with anxiety, fear of the dark and a dislike of travelling alone after dark, Dr Hogan stated that he "had his suspicions" since the birth of the first child, and that the nominator's ability to cope "has been overwhelmed since the arrival of the second child" (in November 2000). He was "increasingly suspicious in November 2001 when her eczema flared as it may be aggravated by considerable anxiety". He became highly suspicious in April 2002 when he consulted with the family and wrote the report. After a consultation on 17 April 2002, Dr Hogan believed that the nominator has a social phobia aggravated by anxiety and depression and indicated that he would be initiating treatment. He stated that these conditions are often well hidden and come to light when a person can no longer cope. The nominator was initiated with Doxepin on 8 November 2001 (which from the Tribunal's inquiries is an antidepressant (mood elevator), used to treat depression and anxiety). Details of specialist referrals by Dr Hogan were to an obstetrician in 2000 for antenatal care in the nominator's second pregnancy and to an orthopaedic surgeon in 2000 in relation to knee pain experienced by the nominator when she gets out of bed and from her bike riding.”
It was submitted that it is not evident from the reasons set out in that paragraph that the MRT understood why Dr Hogan only revealed “his suspicions” and otherwise spoke elliptically.
It was submitted on behalf of the respondent that this is simply an invitation by the applicant to the Court to challenge the factual findings of the MRT in relation to the Hogan material. Again reliance was placed upon the extract from the decision of Gleeson CJ in Rajamanikkam. Reliance was placed upon the decision of Hely J in NAFL v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 297 (8 April 2003) where the Court states:-
“14.… In any event each of these complaints rises no higher than an assertion that the RRT misunderstood the import of particular pieces of evidence. That does not constitute an error of law let alone jurisdictional error”.
In my view any claimed misunderstanding by the MRT of the evidence of Dr Hogan falls clearly within the category of a misunderstanding of the input of particular pieces of evidence and applying the principles set out by Hely J in the NAFL decision and otherwise applying the decision of Gleeson in Rajamanikkam I cannot find any error of law arising out of the MRT’s treatment of Hogan material. Accordingly this part of the appeal should fail.
It was further submitted that the MRT considered the circumstance of the nominator as at the date of the application in two phases. At one point it concluded that the applicant did not have a need for substantial assistance and then at a further point considered whether the nominator had a prolonged illness by reason of her physical ailments and the “emotional needs of the nominator”. It was submitted that the MRT erred in considering only the separate manifestations and not looking at the overall circumstances of the applicant. Had it looked at the overall circumstances then it was submitted at the date of the application it would have found that the combined physical and emotional needs rendered the nominator a person who had a “substantial and continuing” need for assistance. The respondent in reply submitted that the MRT gave careful consideration to the overall circumstances and again referred to paragraphs 64, 65 and 67 of the decision, part of which is reproduced above. In any event it was submitted that as stated by McHugh J in Re Minister for Immigration & Multicultural Affairs Ex parte Durairajasinghan (2000) 168 ALR 407 at paragraphs 48-49 the language of cumulative effects adds nothing.
On a proper reading of the MRT’s decision in my view, it clearly considered the overall circumstances of the applicant and reached a decision which was open to it on the material. It is not a proper basis for judicial review to simply criticise the MRT for perhaps a wrong emphasis or failure to express the matter in terms which might satisfy an applicant that all relevant issues have been considered. It is clear on the proper reading of the decision as a whole that it has taken into account all relevant matters and reached a decision adverse to the applicant particularly in relation to the issue of the applicant’s “relevant need”. Again this basis for the appeal should fail.
Ground 3(ab)
The MRT erred in law in construing in paragraph [67] of its reasons the phrase in par (a) of the definition of "special need relative" in reg.1.03 of the Migration (1994) Regulations "the [nominator] has a permanent or long term need for assistance" as if it required the nominator to have a "permanent or long term need of substantial assistance".
This ground arose during the course of submissions and leave was granted to the applicant to amend the application accordingly. Reference was made to paragraph 67 of the MRT decision as follows:-
“67. Having considered the medical evidence and the emotional needs of the nominator at the time of application the Tribunal finds that the nominator did not have at the time of application, a permanent or long-term need for substantial assistance because of death, disability, prolonged illness or other serious circumstances.”
On reflection there does not appear to be any substance in this ground. On a proper reading of the findings of the MRT both in paragraphs 67 and earlier at paragraph 64 (set out above at paragraph 35 of this judgment) where it found the nominator suffered from a prolonged illness for which she needed some assistance but found that that did not give rise to a need for substantial assistance as envisaged by the regulations. There would not appear to be any error in these findings.
I accept that the decision of the Full Court of the Federal Court in Chow v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 88 (Moore, Emmett and Bennett JJ 9 May 2003) applies. In that case the Court considered that the “assistance” referred to in paragraph (a) of the definition of “special need relative” in regulation 1.03 was a reference to “substantial and continuing assistance. Relevantly it stated and I apply the following paragraphs:-
“20 There is no quarrel on the part of the Minister with the finding by the Tribunal that each of the appellant's father and stepmother is affected by prolonged illness. The Tribunal also appears to have found that the prolonged illnesses that affect each of them together constitute a serious circumstance. That second finding may indicate a misapprehension on the part of the Tribunal. Once it is found that a resident is affected personally by death, disability or prolonged illness, it is unnecessary to consider whether the resident is also affected personally by other serious circumstances. However, that misapprehension does not appear to have played a part in the Tribunal's reasoning.
21 Having concluded that the appellant's father and stepmother are affected by prolonged illness, the next step should have been to consider whether either of them had a permanent or long-term need for substantial and continuing assistance because of that prolonged illness. If a positive determination were made on that question, the next step would be to determine whether the appellant was willing and able to provide such assistance to his father and stepmother.
22 The term `assistance' referred to in par (a) and par (b) of the definition of `special need relative' in reg 1.03 must be a reference to `substantial and continuing assistance' referred to in the definition before the conditions that follow the word `if'. Thus, the condition in par (a) is that the citizen has a permanent or long-term need for substantial and continuing assistance because of prolonged illness affecting the citizen personally or a member of his family unit. The Tribunal, in its reasons, embarked on a consideration of `[t]he permanent or long-term need for assistance' but concluded, at the end of that section of its reasons, that each of the appellant's father and stepmother has prolonged illnesses. That section finished with the expression of doubt on the part of the Tribunal that the nature of the assistance required by the appellant's father and stepmother came within the definition.
23 Instead of embarking on a consideration of whether the appellant's father and stepmother have a permanent or long-term need for substantial and continuing assistance, the Tribunal embarked on a consideration of whether the appellant was `willing and able to provide substantial and continuing assistance' to his father. Its conclusion was that the majority of the assistance provided by the appellant was not `substantial'. The Tribunal did not at any stage address and answer, in terms, the question of whether either of the appellant's father or stepmother has `a permanent or long-term need for [substantial and continuing] assistance'.
24 That question is one of fact. Provided the Tribunal addressed the question and did not misapprehend the meaning of the term `substantial and continuing assistance', there would not normally be any basis for review of such a finding.”
Although superficially there may have appeared to be some error which then led to the amendment of the application I am now satisfied on reflection applying the decision of the Court in the Chow case that there is no substance in this ground.
Conclusion
It follows having regard to the reasons in this judgment that the application should be dismissed with costs.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 9 June 2004