Rozairo v Minister for Immigration - [2003] FMCA 405

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ROZAIRO & ORS v MINISTER FOR IMMIGRATION

[2003] FMCA 405

MIGRATION – Review of decision of Migration Review Tribunal – refusal to grant change in circumstances (residence) visa – consideration of special need relative.

Migration Act 1958

R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598
S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
SAAD v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 65
NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003)
Gho v Minister for Immigration and Multicultural Affairs (2002) FCA 655 (Whitlam J, 24 May 2002)
Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39
Videla v Minister for Immigration and Multicultural Affairs (2002) FCA 233 (6 March 2002)
Koulaxazov v Minister for Immigration and Multicultural Affairs (2002) FCA 554 (3 May 2002)
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Chow v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 88 (9 May 2003)
Minister for Immigration & Multicultural & Indigenous Affairs v Rajamanikkam (2002) 190 ALR 402

Applicants:

VYAN PETER ROZAIRO, DAWN ROZAIRO, ONELLA SHANICE ROZAIRO and MICHAELA TARAN ROZAIRO

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ1204 of 2002

Delivered on:

23 September 2003

Delivered at:

Melbourne

Hearing Date:

24 June 2003

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicants:

Mr B Kissane

Solicitors for the Applicants:

K P Aravindan

Counsel for the Respondent:

Mr W Mosley

Solicitors for the Respondent:

Australian Government Solicitor

ORDER

The amended application filed 22 May 2003 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ1204 of 2002

VYAN PETER ROZAIRO, DAWN ROZAIRO, ONELLA SHANICE ROZAIRO and MICHAELA TARAN ROZAIRO

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

By amended application filed 22 May 2003 the applicants seek to review a decision of the Migration Review Tribunal ("MRT") made on 13 September 2002 which decided to affirm a decision under review finding the visa applicants are not entitled to the grant of a change in circumstance (residence) (class AG) visa.
The first named applicant is a 36 year old citizen of Sri Lanka. The second, third and fourth named applicants are respectively the spouse and two children of the applicant and are also Sri Lankan citizens. It perhaps should be noted that the fourth applicant was born in Australia on 30 April 2000. The other members of the family had entered Australia on 14 December 1995. Upon their entry they were holders of a short stay (visitor) (class TR) subclass 676 visa which was valid for three months.
It is not in dispute that on 15 August 1996 the applicants were granted a further subclass 435 visa valid until 31 July 1997. On 30 June 1997 the visa applicant applied for a protection (class AZ) subclass 866 visa, and the application was refused on 24 July 1997. An application for a further subclass 435 visa lodged on 21 August 1997 was refused by the Department on 22 August 1997, and affirmed by the Migration Internal Review Office ("MIRO") on 5 December 1997. Since applying on

30 July 1998 for a subclass 806 visa, the subject of the current review, the visa applicants have held bridging visas granted on the basis of that application.
The current application which was before the MRT involved a claim that the first applicant is a special need relative of his mother, Sharon Gwyneth Rozairo ("the nominator"). The nominator, at the time of the MRT review, was 58 years of age. She had arrived in Australia on

27 October 1994 as the holder of a long stay (visitor) (class TN) subclass 683 visa. On 8 April 1997 she was granted a subclass 806 visa. At the time of the application the visa applicant and the nominator had lived at the same address. The visa applicant stated that the nominator needed assistance as a result of the death of her parents and her resulting depression, hypertension and constant sickness and a lack of accommodation and financial support. He had stated that he provided the nominator with constant supervision, encouragement and emotional support, as well as financial support and accommodation. He stated that his married brother who is an Australian citizen was unable to provide the required assistance and that his married sister is a citizen of the United States of America.
The visa applicant's father died in Sri Lanka in November 1989. The nominator's father died in Australia in November 1994 and her mother died on 15 September 1997. It was after the death of the nominator's mother that she then commenced living with the visa applicant and his family. It is noted, and not disputed, in the material that the nominator has two sisters and four brothers who are all Australian citizens living in Melbourne.
The submissions on behalf of the applicant essentially seek to persuade the Court that there has been jurisdictional error and/or that the applicants may be able to rely upon the provisos which are set out in the case of R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598. The Hickman provisos include that the decision was reached in a bona fide attempt to exercise the power in question, it relates to the subject matter and the relevant legislation and it is reasonably capable of reference to the power under which the decision maker has acted.
The main thrust however of the submissions seem to rely upon jurisdictional error and reference was made to the recent decision of the High Court in S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.
In considering the issue of jurisdictional error it is my view that in the light of the High Court decision in S157 perhaps contrary to the view of the Full Federal Court in NAAV, this Court is able to rely upon what is often described as the broad version of jurisdictional error identified in the High Court decision of Craig v South Australia cited by the decision of the High Court in Yusuf (per McHugh, Gummow and Hayne JJ) where that Court stated at paragraph 82 the following:-
“Jurisdictional error can thus be seen to embrace a number of different kinds of error, a 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 make 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 effects the exercise of power is to make an error of law. Further, doing so results in the decision maker exceeded 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 the 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.”
The applicant further relied upon the decision of the Full Court of the Federal Court in SAAD v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 65, per Carr J (with whom Cooper and Finkelstein JJ agreed). In dealing with the submission that there had been a failure of the Tribunal to deal with the claim, the Court states:-
“…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 should add that during the course of submissions I noted for the benefit of counsel 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 appear 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.’
Hill J also referred to the principles set out in the High Court case of Craig to which I have already referred.
In the present case, relying on those authorities, significant criticism was made of the reasoning of the Tribunal and in particular, paragraphs 36 and 38 of the Tribunal's decision as follows: -
“36.The claim in this case relates to the nominator’s need for emotional support from the visa applicant. In support of the claim, a medical report was submitted stating that the nominator suffers from ‘anxiety depression’. The report gave no indication of how long the nominator had suffered from this condition, the causes of the condition, or why the visa applicant’s mere present had such an ameliorating effect on her condition. Nor is there any evidence that, at the time of application in July 1998, the nominator’s condition required her to seek further specialised treatment for depression and anxiety. The Tribunal notes that the nominator did not consult the psychologist until February 2001, at which time she was referred to a psychiatrist. The Tribunal notes that Mr Wright did not have the benefit of examining the nominator’s mother, and he was unable to be definitive as to the duration of the nominator’s condition. Given that the nominator departed Australia without the visa applicant within three months after the visa application was lodged, and that she was absent for an aggregate period of nine months in the 29 months before the application was refused, it appears that the nominator did not require the assistance of the visa applicant on a permanent or long-term basis. Consequently the Tribunal is unable to be satisfied that, at the time of application in July 1998, the nominator or a member of her family unit had a permanent or long-term need for assistance because of death, prolonged illness, or other serious circumstances.
…
38.In the present case, the Tribunal accepts that the visa applicant has a strong attachment to the nominator, and at the time of application the visa applicant assisted the nomintaor by providing her with accommodation, financial support, and company when he was not at work. However, the Tribunal notes the guidance in PAM 3 that 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 the 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. None of these factors are present in this case. Consequently the Tribunal is not satisfied that the visa applicant’s presence in Australia constitutes ‘substantial’ assistance to the nominator.”
In relation to paragraph 36 it was submitted that there had been a failure to properly consider the case as put by the applicant in relation to the medical condition of the nominator and that it was not open to the Tribunal to conclude that it was unable to be satisfied that at the time of the application in July 1998 the nominator or member of the family unit had a permanent or long term need for assistance because of death, prolonged illness or other serious circumstances.
The respondent in relation to this issue submitted that the attack made upon the Tribunal's reasoning is no more than an attack on the merits of the decision and/or dealing with a factual issue which would not provide a basis for judicial review in this application. It was submitted that the Tribunal had considered whether the nominator had a permanent or long term need for assistance because of death, prolonged illness or other serious circumstances affecting her. In dealing with serious circumstances reference was made to the decision of Gho v Minister for Immigration and Multicultural Affairs (2002) FCA 655 (Whitlam J, 24 May 2002) and Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39 at [41].
It is useful to set out the legislative scheme applicable to the present application. The relevant regulation had been referred to in the judgment of Weinberg J in Videla v Minister for Immigration and Multicultural Affairs (2002) FCA 233 (6 March 2002) in the following extract: -
“THE LEGISLATIVE SCHEME
7 At the time that the visa application was lodged, reg 806.213 of the Migration Regulations 1994 ("the Regulations") set out a primary criterion applicable to a Family Residence class AO visa, subclass 806. That regulation was then in the following terms:
‘806.213 The applicant is an aged dependent relative, an orphan relative, a remaining relative or a special need relative of another person who:
(a) is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and
(b) is usually resident in Australia; and
(c) has nominated the applicant for the grant of the visa.’
8 The definition of ‘special need relative’ was set out in reg 1.03. That definition was as follows:
‘Special need relative in relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or an eligible New Zealand citizen means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:
(a) the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally or a member of his or her family unit; and
(b) the assistance cannot reasonably be obtained from:
(i) any other relative of the citizen or resident being a relative who is an Australia citizen, an Australian permanent resident or an eligible New Zealand citizen; or
(ii) welfare, hospital, nursing or community services in Australia.’
9 The concept of "special need relative" was removed with effect from 1 December 1998. It was replaced by the concept of a "carer", which is now defined in reg 1.03 as having the meaning given by reg 1.15AA. That definition is, of course, not relevant to the present application.”
It was submitted by the respondent that the Tribunal had properly referred to the relevant criteria in its reasons at paragraph 36 to which

I have referred.
The respondent referred the Court to the following further extracts from the decision of Weinberg J in the Videla case: -
“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.
I otherwise adopt the passage referred to be the respondent from O'Loughlin J in Koulaxazov v Minister for Immigration and Multicultural Affairs (2002) FCA 554 (3 May 2002) at paragraph [20]:
“20 The Tribunal next had to be satisfied that the mother has a permanent or long-term need for assistance because of one or more of the four identifiers that are referred to in par (a) of Reg 1.03. The Tribunal, in my opinion, unnecessarily, spent time in first considering whether "death, disability, prolonged illness or other serious circumstances" applied to Mrs Gamtcheff. In my view, the first task of the Tribunal was to inquire whether Mrs Gamtcheff had "a permanent or long-term need for assistance". If the Tribunal was satisfied that there was such a need, then its second task was to inquire into the cause of the need. As to that exercise, the need had to exist because of "death, disability, prolonged illness or other serious circumstances." In the case under review, the Tribunal concluded that Mrs Gamtcheff did not suffer "a permanent or long-term need for assistance". That being the case, it was not necessary for the Tribunal to address the four identifiers. The Tribunal, in addressing the subject of "disability" and relating it to the subject of "permanent or long-term need for assistance" found that:
"... there is no medical evidence before the Tribunal to the effect that the [mother] is permanently disabled or needs long-term assistance, except to the extent of her need for comfort from [her son] in an emotional sense."
That finding was, in my opinion, open to the Tribunal on the evidence that was before it. As the Tribunal noted in its reasons:
"[Mr Koulaxazov's] evidence was that he is required to assist his mother in a general domestic sense for some of the time. He has not had to assist in relation to her personal needs. With respect to [Mrs Gamtcheff's] psychiatric health, the Tribunal notes the opinion of Dr Elaine Jensen, psychiatrist, that it is `unlikely medication or the presence of her son will modify or affect her significantly'."
Counsel for the applicant criticised the Tribunal for saying:
"There is no medical evidence before the Tribunal to the effect that [Mrs Gamtcheff] is permanently disabled ..."
The insertion of the word "permanently" was, so it was argued, inappropriate, for the regulation merely referred to "disability" - not "permanent disability". Thus, so it was submitted, the Tribunal had asked itself the wrong question. I do not agree. The regulation refers to the citizen having a permanent need for assistance because of some disability. Surely that can only mean that the disability is permanent and, if that is the case, then the citizen has a "permanent disability".

It is noted that that decision was affirmed on appeal (see Koulaxazov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 75 (2 May 2003).
The Court was further referred to the authority of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 where the Court has held that in examining a Tribunal's reasons one should be mindful of the risk of becoming overzealous in judicial review and unduly concentrating on inadequacies of expression in the Tribunal's reasons.
In my view in the present case, applying the reasons of the Court in Videla and the relevant criteria, it is clear that the conclusion drawn by the Tribunal in paragraph 36 of its reasons was a conclusion that was reasonably open to it. The Tribunal had referred to the claim by the nominator for emotional support from the visa applicant and whilst not referring specifically to the medical report submitted indicating that the nominator suffers from anxiety – depression it did properly examine that material which was in the form of a medical report from a Dr Fernando dated 27 August 1998. In that report in relation to the nominator the doctor states,
“She suffers from anxiety - depression. She states she depends on her son, Vyan Rozairo, for financial and emotional support. I find that Vyan's presence in Australia has made Mrs Sharon Rozairo cope with her emotional problems better.”
In analysing that report the Tribunal makes the following statement: -
“The report gave no indication of how long the nominator had suffered from this condition, the cause of the condition, or why the visa applicant's mere presence had such an ameliorating effect on her condition. Nor is there any evidence that, at the time of the application in July 1998, the nominator's condition required her to seek further specialised treatment for depression and anxiety.”
Whilst it is true that in the further sentences in paragraph 36 the Tribunal proceeds to consider the failure of the nominator to consult a psychologist until February 2001, and otherwise in my view perhaps unduly places weight on the failure to seek specialist treatment, it is not appropriate for this Court to substitute its view on the weight to be attributed to such factors. It is sufficient to conclude, as I do, that the available evidence was properly considered and that the conclusion reached by the Tribunal in paragraph 36 was a conclusion which I find was open to the Tribunal. The reasoning process of the Tribunal clearly indicates it had had proper regard to the relevant criteria and available evidence.
It was not in dispute that should the Tribunal make a finding of the kind in paragraph 36 which could not be challenged and had done so in relation to the state of affairs at the time of the application, then it is technically unnecessary to further consider the findings of the Tribunal in relation to other criteria. Once the Tribunal makes a finding that it is not satisfied that the nominator had a permanent or long term need for assistance due to death, prolonged illness or other serious circumstance at the time of the application, it is unnecessary to consider the matter further as that effectively concludes the reasoning process.
In any event, further criticism was made to paragraph 38 which I have recited, and for the sake of completeness it is appropriate to note that the major criticism which is said to provide a basis for jurisdictional error is that the Tribunal in that paragraph had emphasised the companionship aspect of the support provided by the applicant to the nominator and had not paid sufficient regard to other factors.
The respondent submitted that in fact the Tribunal had considered all the relevant issues and indeed drew attention to the opening sentence in that paragraph where the Tribunal states:
“In the present case, the Tribunal accepts that the visa applicant has a strong attachment to the nominator, and at the time of application the visa applicant assisted the nominator by providing her with accommodation, financial support, and company when he was not at work.”
It was submitted that that is a factual question for the Tribunal which it had properly considered. (See Chow v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 88 (9 May 2003).
In my view, I am satisfied that the Tribunal has properly considered the relevant matters and although it may be argued that there is some technical deficiency in failing to consider one aspect of the claim in relation to the applicant's assistance, that does not of itself detract from the reasoning process of the Tribunal nor does it provide a sufficient basis for it to be said that a jurisdictional error has occurred.
It is interesting to note that the Tribunal in any event further considered the other factor of whether the assistance could reasonably be obtained from another relative, or welfare, hospital, nursing or community services. In my view, it effectively made a finding that the “nominator has other relatives in Australia who may well be able to jointly and collectively assist her if she does need substantial and continuing assistance”. It is then curiously stated it was not necessary to make a finding in relation to that leg of the definition of special need relative.
A further finding, in my view, of fact was made by the Tribunal that it was “not satisfied that the assistance provided by the visa applicant at the time of its decision can properly be described as ‘substantial’".
It was submitted by the respondent that it was unnecessary for the Tribunal to make that finding, having made what was said to be a correct and open finding as at the date of the application in relation to the other criteria. In any event, having made that finding, it was submitted, provides further conclusive material which would support the submission by the respondent that there is no jurisdictional error and that the matters raised essentially in the application are matters which essentially seek to challenge the fact finding of the Tribunal.
In my view, this application has failed to identify any jurisdictional error and/or any error of a kind which may be said to fall within the Hickman provisos and accordingly it is appropriate that the order of the Court should be that the amended application filed 22 May 2003 be dismissed.
I am not satisfied that there is any or any proper basis upon which the decision can be the subject of judicial review based upon the authorities which I have cited. In addition, it is perhaps useful to note that in my view this decision is consistent with the principles of judicial review referred to be Gleeson CJ in Minister for Immigration & Multicultural & Indigenous Affairs v Rajamanikkam (2002) 190 ALR 402 relied upon by the respondent where at paragraph 26 the Court states as follows: -
“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 [4]. 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.”
For those reasons I conclude that the application in this matter should be dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 23 September 2003