RAJAKARUNA v Minister for Immigration
[2004] FMCA 1021
•23 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RAJAKARUNA & ORS v MINISTER FOR IMMIGRATION & ORS | [2004] FMCA 1021 |
| MIGRATION – Review of Migration Review Tribunal decision affirming a delegate’s refusal of a visa – failure to consider applicant’s claim – special need relative. |
Migration Act 1958 (Cth); s.475
Judiciary Act 1903; s.39B
Migration Regulations 1994; Pt. 8, reg.1.03
Australian Constitution (Cth); s.75(v)
Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2
SAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 65
Re Minister for Immigration and Multicultural Affairs & Ors: Ex parte Cohen (2001) 177 ALR 473
Videla v Minister for Immigration & Multicultural Affairs [2002] FCA 233
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802
Minister for Immigration & Multicultural Affairs v Chan [2000] FCA 737
Minister for Immigration and Ethnic Affairs v Wu [1996] HCA 6
| First Applicant: | ARLENE RAJAKARUNA |
| Second Applicant: | MAHINDA RAJAKARUNA |
| Third Applicant: | RAJITH RAJAKARUNA |
| Fourth Applicant: | RANIL RAJAKARUNA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondents: | MR ALAN GREGORY (sitting as the Migration Review Tribunal) MS REGINA PERTON (in her capacity as Senior Member of the Migration Review Tribunal |
| File No: | MZ 882 of 2003 |
| Delivered on: | 23 December 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 1 June 2004 |
| Judgment of: | Bennett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Kissane |
| Solicitors for the Applicant: | Wimal & Associates |
| Counsel for the Respondent: | Mr W. Mosley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the decision of the Migration Review Tribunal made 4 April 2002 be set aside.
That the matter to which the decision relates be referred to the Migration Review Tribunal, differently constituted, for consideration according to law.
That the respondent to pay the applicants costs of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 882 of 2003
| ARELENE RAJAKARUNA |
First Applicant
And
| MAHINDA RAJAKARUNA |
Second Applicant
And
| RAJITH RAJAKARUNA |
Third Applicant
And
| RANIL RAJAKARUNA |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| MR ALAN GREGORY (sitting as the Migration Review Tribunal) & MS REGINA PERTON (in her capacity as Senior Member of the Migration Review Tribunal) |
Second Respondents
REASONS FOR JUDGMENT
This matter comes before me as an application under s.39B of the Judiciary Act1903 and s.475 of the amended Part 8 of the Migration Act 1958 (Cth) for judicial review of the decision of the Migration Review Tribunal (“MRT”) made on 4 April 2002 affirming the decision of a delegate made on 31 October 2001 not to grant the first named applicant a Family (Residence) (Class AO) visa, subclass 806.
The first named applicant ("the applicant") is a 48-year-old citizen of Sri Lanka. The second, third and fourth named applicants are respectively the spouse and two adult sons of the applicant and are also Sri Lankan citizens of secondary visa applicants. On 10 June 1996 the applicants, entered Australia. On entry, they were the holders of Short Stay (Visitor) (Class TR) subclass 676 visas that were valid until
26 August 1996.
The applicants subsequently held various other temporary visas and had made application for protection visas that were refused. The Migration Review Tribunal (“the Tribunal”) details the visa history in its decision (CB 63 at paras 8-9).
On 31 July 1998 the applicant applied for a Family (Residence)
(Class AG) subclass 806 - Special Need Relative visa. The applicant claimed that she was a “special need relative” in relation to her aunt, Francisca Antoinette Leonard who had nominated the applicant accordingly. The second, third and fourth named applicants were included in the application as family members or secondary applicants.
To be successful, the applicant must have been found to satisfy the prescribed definition of the term “special need relative” at the time of the application and at the time of the decision. The term “special need relative” is defined in reg.1.03 of the Migration Regulations 1994 (as it existed when this application was made) and provided as follows:-
In relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or an eligible New Zealand citizen, means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:
a)the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and
b)the assistance cannot reasonably be obtained form:
i)any other relative of the citizen or resident, being a relative who is and Australian citizen, and Australian permanent resident or an eligible New Zealand citizen; or
ii)welfare, hospital, nursing or community services in Australia.
Francisca Antoinette Leonard ("the nominator") is a 50 year-old Australian citizen who entered Australia from Sri Lanka on
25 September 1977. She was granted Australian citizenship on 7 May 1980.
As indicated, on 31 October 2001 a delegate of the respondent refused to grant the visa. The basis of the refusal was that the delegate was not satisfied that the nominator suffered from “death, disability, prolonged illness or other serious circumstances” within the meaning of reg.1.03 at the time of the application (31 July 1988) or at the time of the decision. The delegate referred to the fact that the Department had sought corroborative and expert evidence of the nominator’s medical condition from the applicant but that;
no expert medical opinion has been submitted to state when the nominator’s condition was first diagnosed, the prognosis and any future course of treatment. There is no compelling evidence to substantiate the applicant’s claims.
An application for review of that decision was made to the Tribunal on 27 November 2001. In due course some corroborative medical information was provided by the applicant to the Tribunal in the form of a letter from Professor N.M. Thomson, Head of the Department of Medicine, Director of the Department of Renal Medicine of the Alfred Hospital, dated 15 January 2002 which, omitting formal parts, read;
This is to certify that Mrs Leonard is a chronic dialysis patient of the Alfred Hospital. Kidney disease was first diagnosed about
15-20 years ago and she was initially looked after at Prince Henry’s Hospital in Melbourne. Her care was transferred to The Alfred Hospital and in 1996 recurrent haemodialysis was commenced.
A kidney transplant was performed in October 1997, but unfortunately it failed to function and had to be removed two days later. Since then Mrs Leonard has been kept alive on recurrent haemodialysis for 4-6 hours, three times a week.
Her general health has been quite severely compromised by a number of problems, which include:
1. Severe bone disease associated with kidney failure
2. Post-traumatic stress disorder related to the life threatening kidney transplant
3. Anaemia of kidney failure
4. Physical dependence because of her kidney failure
Mrs Leonard will require dialysis for the rest of her life, a procedure which although life saving, is associated with considerable morbidity and psychosocial complications.
Mrs Leonard needs constant support from the family, both physically and emotionally.
The Tribunal conducted a hearing on 13 March 2002 and on 4 April 2002, it affirmed the decision under review on the basis that the applicant did not at the time of the application provide the nominator with assistance that is as substantial as required by the definition of special need relative. The Tribunal also affirmed the decision on the alternative basis that the assistance provided by the visa applicant could be obtained from another relative or welfare, nursing or community services. The Tribunal did, however, accept the evidence of Professor Thomson and “therefore accepts that the nominator has permanent or long term need for assistance because of this prolonged illness”.
On 3 May 2002 the applicants made application to the High Court of Australia for constitutional writs under s.75(v) of the Constitution in respect of the Tribunal's decision. The application was supported by an affidavit of the applicant, sworn 1 May 2002, to which was exhibited a draft Order Nisi.
On 26 November 2002, the Honourable Justice Hayne ordered (inter alia), that the application for an Order Nisi be remitted to the Federal Court of Australia subject to a direction that it proceed as if the steps already taken in the application in the High Court had been taken in the Federal Court. There was no consideration of the matter on the merits in the High Court.
On 23 July 2003 the applicants filed in the Federal Court an amended application pursuant to s.39B of the Judiciary Act 1903.
It was common ground that the Tribunal’s decision was a privative clause decision, having regard to the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2.
The applicant’s case is that the Tribunal failed to deal with the case put before it because it failed to deal with the integers of the applicant’s case. In SAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 65 Carr J, (with whom Cooper and Finklestein JJ agreed), stated when dealing with the submission of the failure of the Tribunal to deal with a claim:
[40] “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].
The evidence before the Tribunal was documentary and oral.
In considering the applicant’s case the Tribunal has to consider the applicant’s claims in relation to the definition of ‘special need relative’ as defined in the Migration Regulations 1994 (see Court Book 65).
It was submitted by the applicant that the Tribunal failed to deal with the case put by the applicant that she provided the nominator with assistance after dialysis and with assistance in bathing, preparing meals, combing her hair, daily shopping, personal hygiene and general cleaning. The applicant in her letter dated 23 November 2000 (see Court Book 31) and also in her application (see Court Book 24) set out this assistance. Further evidence is provided of this assistance in the letter from Graceland Manor dated 13 November 2000 (Court Book 34). The claims relating to the assistance provided were repeated in the applicant’s review application (see Court Book 54).
For the applicant, it was submitted that in the section of the Tribunal’s decision headed “Evidence”, it did not identify the details of the assistance given by the applicant as set out by the applicant in her application and supporting documents. It recorded that the applicant gave evidence that she assisted the nominator in taking her for dialysis and with daily chores. It recorded details of evidence given by
Ms Helen Nicholson of the Graceland Manor about the nominator often needing support as she became tired and her arms were weak and she could not hold things but does not detail all of the matters set out in the letter from Graceland Manor. It was argued that it appears that the Tribunal failed to properly identify the circumstances of the claims or the evidence in support of the circumstances.
Under the heading relating to the need for assistance by the nominator, the Tribunal stated that “the main need of assistance of the nominator is for dialysis three times a week and for some domestic assistance when she tires or has limb problems”. The Tribunal then proceeded to make a finding that the assistance provided is of a “specific and limited nature” and therefore “is not substantial”, under the heading relating to the “Assistance” that “the visa applicant is willing and able to provide.”
The respondent contended that the question of whether a person is a "special need relative" is essentially a question of fact for the decision-maker. McHugh J said in Re Minister for Immigration and Multicultural Affairs & Ors: Ex parte Cohen (2001) 177 ALR 473, when considering the same regulation as in the present matter, at [35]-[36]:
"[35] … 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: Hope v Bathurst City Council (1980) 144 CLR 1; 29 ALR 577; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389. Leaving aside questions of jurisdictional fact, an administrative tribunal will ordinarily not commit a jurisdictional error unless it has made an error of law: cf Craig v South Australia (1995) 184 CLR 163 at 179. 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."
In a section headed ‘Findings’ the Tribunal set out a number of headings identifying the elements of the definition ‘special need relative’. The heading follows the matter set out by Weinberg J in Videla v Minister for Immigration & Multicultural Affairs [2002] FCA 233 (6 March 2002) where His Honour said (at [16]-[17]):
"[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.
The respondent contended that the Tribunal did not fail to consider the applicant’s claims or deal with the case put forward by the applicant. The respondent agreed that the Tribunal summarised the evidence in paragraphs 7 to 17 of the reasons for decision. In doing so it referred specifically to the letter from the applicant of 23 November 2000 in which the applicant set out the matters with which she assisted the nominator, apart from accompanying her on hospital dialysis visits. Those matters (assistance in bathing, preparing meals, combing her hair, shopping, personal hygiene and cleaning) were, it was submitted, clearly of a domestic assistance nature. Further, at the Tribunal hearing, the applicant gave evidence as to what assistance she provided to the nominator. She stated that apart from accompanying the nominator to the dialysis sessions 3 times a week she also assisted with ‘daily chores’. The Tribunal also made reference to the evidence of the proprietor of Graceland Manor that set out similar matters.
It was agreed that the Tribunal accepted that the nominator’s main need was for dialysis 3 times per week as well as some ‘domestic assistance’ which the applicant provided and this was a finding of fact. The respondent said that the Tribunal was not required to refer to each specific item of ‘domestic assistance’ that the applicant carried out for the nominator. It was submitted, that in order to complete its jurisdictional task, the Tribunal was not required to refer specifically to the other items of assistance such as help in bathing, preparing meals, combing the applicant’s hair, shopping, personal hygiene and cleaning.
It was submitted for the respondent that, first, the Tribunal proceeded on the basis of accepting the applicant’s claim to provide domestic assistance to the nominator, which included the claims made as to the specific assistance provided.
Second, it was submitted that this is not a case where, as in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 Tribunal failed to deal, “conceptually, and in a common sense way” with a distinct basis for a claim to be a special need relative. At the most it is said that the Tribunal did not refer expressly to specific items of evidence. It was agreed that, as Allsop J pointed put in Htun
(at [42]), this may in some circumstances constitute a factual error or “errant fact finding” but it is to be distinguished from making a decision without having considered all the claims and hence failing to complete the exercise of jurisdiction. In summary, that the Tribunal in this case did consider the applicant’s claim and how it was put.
I accept that the Tribunal did refer specifically to the letter from the applicant dated 23 November 2000. However, that is a letter of
3 pages containing 24 paragraphs. The letter, at least in the last
2 pages, contains a comprehensive description of the assistance that the applicant claimed to provide to the nominator. The references that the Tribunal made to the letter, and upon which the respondent rests the contention that the Tribunal took the entire contents of the letter into account, were as follows:-
a)In paragraph 10 of the Tribunal’s reasons:-
“The visa applicant in a letter dated 23 November 2000 advised that the nominator was being treated by Professor Thomason and Dr Sapto of the Dialysis Unit of the Alfred Hospital”.
b)In paragraph 11 of the Tribunal’s reasons:-
“The visa applicant is(sic) her letter dated 23 November 2000 advised that she accompanied her spouse at that time to visit his mother who was very ill and the nominator was cared for by the proprietor of Graceland Manor, and aged care hostel, during the absence of the visa applicant.”
Neither context in which the applicant’s letter was referred above to relate to the character or elements of the assistance which the applicant renders to the nominator.
The relevant parts of the letter provided as follows:
My aunt who had an unsuccessful kidney transplantation lives on haemodialysis and the situation will continue for ever. My aunt should be taken to hospital three days a week. She is incapable of looking after herself.
My above aunt cannot receive the help she is receiving from me and from my family members from any of her other relatives or from welfare, hospital or community services in Australia.
My uncle (above aunt’s husband) too cannot look after her due to his illness. My uncle who works as a Tram Driver is being treated at the Alfred Hospital and undergoing therapy for wear tendency his shoulder and neck.
My aunt’s only daughter is a student and hence she cannot look after mu aunt. Further, though my aunt has a few relatives in Australia other than my family, none of them had rendered any assistance to my aunt due to their various commitments.
Further, the welfare, hospital, nursing or community services could not render the assistance needed by my aunt continuously and more importantly at nights.
My above aunt requires a special need relative due to the nature of her disability which will continue indefinitely.
She is also advised by her doctors to undergo an operation for her tonsil. Further, last month my aunt’s hand was operated and she would not have managed on her own if not for my and my husband’s assistance.
Currently, she is being treated by Alfred hospital. In future too, she will treated by the Alfred hospital.
My aunt was advised by doctors that she needs continuous assistance.
Drs. P. Thompson and J. Sabto of Dialysis Unit in Alfred Hospital Melbourne are treating my aunt.
Further, I also wish to submit the following in respect of your questions in your letter;
[2] My aunt needs assistance because as she cannot look after herself after her kidney failure. I accompany her to the hospital and back to her residence after the dialysis, and helping her in bathing, preparing her meals, combing her hair, daily assistance in personal shopping, helping her maintain personal hygiene and general cleaning in the house.
My Aunt is a person who does not like to discuss with somebody abut (sic) her situation or reluctant to request any assistance whenever necessary because she always tries to maintain her privacy. But we know her present condition requires moral and physical supportive role until she finds a cure to the kidney failure. She usually uses her left hand for dialysis, but now it is declared unusable. When the doctors switched the Dialysis to her right hand, they diagnosed the need to perform a surgery and at the latter part of September 2000, the doctors performed a surgery on her right hand at Alfred Hospital.
[3] We believe this assistance is needed until she finds a permanent cure to the kidney failure.
[4] My aunt needs this assistance as she cannot attend to the above needs by herself. Further, I wish to reiterate what I have stated in paragraph 2 above.
At paragraph 29 of the statement of reasons, the Tribunal states:-
The Procedures Advice manual provides advice as to the meaning of ‘substantial and continuing assistance’. Companionship is not regarded, in the absence of other factors, as constituting a permanent or long-term need. Such a need is usually intended to cater for situations such as death or serious illness of a spouse leaving a partner with ongoing and significant problems in both bringing up very young children and coping generally; or an incapacitating illness or disability creating a need for physical assistance in the home. The main need of the nominator is for dialysis three times a week and for some domestic assistance when she tires or has limb problems. Given that the visa applicant works, and that the assistance required is of a specific and limited nature, the Tribunal finds that the assistance required is not substantial, although it is continuing.
At paragraph 30 of the statement of reasons, the Tribunal summarised the assistance provided by the applicant in the following terms:-
The form of assistance provided by the visa applicant to the nominator is taking her for dialysis three times a week and assisting with domestic chores as well as companionship.
In discussion with counsel for both parties, I queried whether in applications pertaining to this category of visa there was any distinction regularly drawn between “domestic assistance” offered by special need relatives and “personal care assistance” offered by a special need relative. I was considering the fact that the Tribunal had obviously grasped the assistance that was of a domestic, household nature, but had not referred to the assistance that I would more readily categorise as being personal care assistance. For example, bathing, preparing specific meals, combing the nominator’s hair, personal hygiene and the like in respect of which the applicant had stated in her letter of 23 November 2000:-
My Aunt is a person who does not like to discuss with somebody abut (sic) her situation or reluctant to request any assistance whenever necessary because she always tries to maintain her privacy.
The response of both counsel was that there is no distinction regularly drawn between personal and domestic assistance. I find that to be curious. I assume that there is a clear distinction within, say, the special accommodation industry between a domestic assistant (who cleans floors, bathrooms and changes linen) and a personal carer (who showers, toilets and dresses clients).
I accept that it was necessary for the Tribunal to identify distinctly what assistance is actually needed. In Minister for Immigration & Multicultural Affairs v Chan [2000] FCA 737 (5 June 2000), Kenny J, said:-
The Tribunal ought to have identified distinctly what the respondent actually needed by way of assistance as a result of these conditions. The Tribunal did not do this. Nor did the Tribunal identify whether [the visa applicant] was able to meet these particular needs by providing assistance that was relevantly and substantial and continuing.
In this case, the applicant concedes that whether the assistance which is needed and proffered was substantial and continuing are questions of fact for the Tribunal to find or to not find to the requisite degree. However, in purporting to undertake that task it is said that the Tribunal has failed to characterise the assistance accurately. That the Tribunal appears to only have referred to some of the component parts of the assistance such as taking the nominator to dialysis 3 times a week, assisting her with domestic chores and providing companionship. There is no mention in the relevant section of the Tribunal’s analysis of the personal care aspects of what was performed within the nominators home such as bathing, preparing specific meals, combing the nominator’s hair, personal hygiene and the like (which the applicant had stated in her letter of 23 November 2000). Nor does the Tribunal state or indicate that it rejects this evidence of the applicant.
I am satisfied that the Tribunal did not identify distinctly what the nominator needs by way of assistance and consequently what assistance the visa applicant is in a position to, and does, provide. It follows, therefore, that the Tribunal’s findings in relation to the assistance not being substantial or able to be provided from elsewhere by way of community services or by members of the nominator’s household, are similarly flawed as are the Tribunal’s conclusions with respect to the ability of the nominator to obtain appropriate assistance from others.
In making these findings I have regard to the comments by the High Court in Minister for Immigration and Ethnic Affairs v Wu [1996] HCA 6:-
30. … In [Collector of Customs v Pozzolanic], a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker. The Court continued:
"The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error".
31. These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (25).
Indeed, it appears from the face of the Tribunal’s decision that the member’s considerations of these and other factors were somewhat confused. For example:-
a)At paragraph [29] the member sets out that ‘companionship is not regarded, in the absence of the other factors, as constituting a permanent or long-term need.’ However the Tribunal had made no findings as to companionship. The applicant had set this out as part of her assistance which was presumably accepted (given the Tribunal discussed its relevance to the definition). However, the Tribunal dealt with companionship as if it were in isolation of the other needs and assistance. At paragraph 30 the Tribunal then appears to accept that companionship is provided.
b)
Referring to, and quoting, the comments of the Honourable Justice Kenny in Chan but not undertaking the very task
Her Honour there says ought to have be undertaken.
c)
Stating that ‘a medical opinion, or report from the nominators medical practitioner has not been forthcoming’ and in the next sentence accepting the evidence of the Renal Specialist,
Prof. Thomson who the Tribunal had recounted (at paragraph 10) was one of the nominators treating doctors at the Alfred Hospital Dialysis Unit.
d)In considering whether ‘assistance can not reasonably be obtained from another relative’ applying a test of requiring evidence that the nominators husband and daughter were ‘unwilling to provide assistance.’ Clearly there is a difference between ‘willing’ and ‘able’, which is highlighted by evidence outlined by the Tribunal at paragraph 14: that the daughter works and studies leaving her ‘no time to assist her mother’ and that the applicant’s husband is a tram driver who works shifts and cannot help when at work. Nor did the Tribunal appear to consider the evidence that the husband was undergoing treatment of his neck and shoulder (see court book p.24 and paragraph 13 of decision).
e)Failing to consider the nominator’s ‘mobility and psychosocial problems’ as outlined in the report of Prof. Thomson and determine if they were needs of the nominator, in order to consider whether the companionship referred to in the decision met one of the nominator’s specific needs.
f)At paragraph 31 of the Tribunal’s reasons,
The cumulative factors indicate that the nominator does have a prolonged illness and certain needs but does not affect the point about assistance being reasonably available from other sources, namely in this case that of the husband and daughter and the use of community services. The Tribunal finds on the evidence available to it that 1.03(b) is not satisfied, that assistance cannot reasonably be obtained from either the father of the nominator, or from welfare or community services available.
There is no evidence whatsoever as to the nominator’s “father”.
I am satisfied that the Tribunal erred in its task. It erred in that it did not ask itself the correct question.
In particular, I find:-
a)that the Tribunal failed identify the nominator’s actual needs with the effect that the subsequent assessments (of the gravity of those needs and the extent to which they could otherwise be met) are, necessarily, flawed;
b)that the Tribunal failed to consider the nominator’s needs as a whole, dealing with companionship as if it were a discrete consideration rather than one aspect of the case as a whole;
c)that the Tribunal failed to determine if assistance could be ‘reasonably obtained’ from relatives, determining instead whether relatives were ‘willing to assist’ or if there were ‘special circumstances’ preventing assistance in the face of evidence of their inability to assist in the ways described by the applicant;
d)that the Tribunal made findings of fact with respect to the nominators “father” that were entirely without any evidentiary foundation whatsoever.
Furthermore, in paragraph 30 of the Tribunal’s reasons the Tribunal appears to apply a standard of proof of ‘compelling evidence’ with respect to some points of or aspects of the applicant’s claim. There is no requirement in the Migration Act, in so far as it applies to this application that would require ‘compelling evidence’.
Similarly, the Tribunal erred in requiring ‘special circumstances’ to be established to show that other relatives were prevented from assisting the nominator.
In the circumstances, I allow the application.
I am satisfied that an order for costs should be made. In the circumstances of this matter, I will order that the applicant pay the respondent’s costs and disbursements of and incidental to the application and I will hear each party on the question of quantum.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Bennett FM
Associate: R. Campbell
Date: 23 December 2004
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