Sams v Minister for Immigration
[2005] FMCA 286
•15 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAMS v MINISTER FOR IMMIGRATION | [2005] FMCA 286 |
| MIGRATION – Review of decision of Migration Review Tribunal – application for Family (Residence) (Class AO) visa – “special need relative” – “emotional and psychological” needs – whether prolonged illness, disability or other serious circumstances – no jurisdictional error – application dismissed – costs. |
Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)
Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1
Minister for Immigration and Multicultural and Indigenous Affairs v Hettiarchchige [2005] FCA 37
| Applicant: | DEENA DENZIL SAMS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 1438 of 2003 |
| Delivered on: | 15 March 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 9 February 2005 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicant: | Ms S.E. Moore |
| Solicitors for the Applicant: | Vernon da Gama and Associates |
| Counsel for the Respondent: | Mr W.G. Gilbert |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDER
The application is dismissed.
The applicant pay the respondent's costs fixed in the sum of $6,500.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules2001 the Court certifies that it was reasonable for the parties to employ an advocate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1438 of 2003
| DEENA DENZIL SAMS |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant, a citizen of India, arrived in Australia in November 1999 on a Short Stay Visitor (Class TR) visa, subclass 676. That visa was valid until 24 February 1999.
On 30 November 1998 the applicant lodged an application with the Department of Immigration and Multicultural and Indigenous Affairs for a Family (Residence) (Class AO) visa on the basis that he was a "special need relative" to his sister, Mrs Ramona MacCartin. Accordingly, Mrs MacCartin was the applicant's nominator. She herself had come to Australia in 1991 and become an Australian citizen on 31 August 2000.
The visa application described Mrs MacCartin's needs as "emotional and psychological" and that the applicant provided emotional and psychological support which was required long term.
The applicant relied upon a report from a psychologist, Mr Logan Elliott, dated 14 December 1998 and a report from a psychiatrist, Dr Robert Mestrovic, dated 5 June 2002.
On 30 April 2002 a delegate of the respondent refused to grant the visa to the applicant and on 14 May 2002 the applicant lodged an application for a review of that decision with the Migration Review Tribunal (the Tribunal). A hearing was held on 22 October 2003 at which both the applicant and his sister gave oral evidence. The applicant was represented by his migration agent. On 21 November 2003 the Tribunal handed down its decision. The Tribunal affirmed the decision of the delegate. A copy of the decision was sent to the applicant and his migration agent under cover of a letter dated
21 November 2003. On 17 December 2003 the applicant filed with this Court an application for review of the Tribunal's decision. The applicant seeks review under section 39B of the Judiciary Act 1903 (Cth) and section 475A of the Migration Act 1958 (Cth) (the Act).
Legislative framework
Section 65 of the Act obliges the Minister to grant a visa if the Minister is satisfied that the criteria prescribed by the Act and the Regulations have been met. At the time the applicant applied for a visa the criteria for that visa were prescribed by the Regulations Schedule 2 subclass 806. They relevantly provided:
806.21 Criteria to be satisfied at time of application.
806.213 The applicant is ... a special need relative of another person who:
(a) is a settled Australian citizen ...
(b) is usually resident in Australia; and
(c) has nominated the applicant for the grant of the visa.
Clause 806.221 provided that the applicant must continue to satisfy the criterion in clause 806.213 at the time of the decision. This criterion was removed from the regulations as of 1 December 1999 by SR 306 of 1998 and the subclass of visa 806 was discontinued as from 1 November 1999 by SR 259 of 1999. However, this did not affect the applicant's entitlement to have the matter determined on the criterion (Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 per McHugh J at 23 to 29).
Regulation 1.03 relevantly provided:
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 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 Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or
(ii) welfare, hospital, nursing or community services in Australia.
The decision of the Tribunal
The Tribunal accepted that the visa applicant was nominated by an Australian permanent resident or citizen. The Tribunal noted that crucial to the definition of special need relative in the Regulations is whether the relative has a permanent or long-term need because of death, disability, prolonged illness or other serious circumstances. The Tribunal then went on to consider whether the particular needs of the nominator were in fact of that order. The Tribunal said:
In determining whether the nominator suffers from a disability or prolonged illness at the time of application and decision, the Tribunal notes the reports of Logan Elliott dated 14 December 1998 and the report of Dr Robert Mestrovic dated 5 June 2002 in relation to the question of whether the nominator is suffering from depression.
The Tribunal then considered and set out pertinent extracts from the Commonwealth government Department of Health web site on depression. The Tribunal said:
The Tribunal notes that the information given to Mr Elliott in the first psychological report, appears to have been accepted at face value and his recommendation based on that evidence. In the most recent psychiatric report, Dr Mestrovic stated that there is "a particular and important bond" between the nominator and the visa applicant and that, in the circumstances, this could "certainly contribute to reactive depressive states". While Dr Mestrovic accepted that such behaviour has been apparent and has caused distress, he nonetheless conceded that those instances were "not severe in the way that I as a psychiatrist would see severe depression". This comment in itself indicates that, while the nominator may have feelings of anxiety at the prospect of being separated from the visa applicant, she does not appear to be suffering from clinical depression. There is clearly no diagnosis of such in either the psychological or the psychiatric reports.
It is evident from Dr Mestrovic's statements that the level of the nominator's claimed depression does not appear to be to such an extent that it renders her unable to function in her daily living or unable to maintain satisfactory relationships. Dr Mestrovic's description of the nominator is one which indicates that the nominator is generally satisfied in areas of her marriage, work and family. Dr Mestrovic stated that the nominator has a good level of confidence and self‑esteem, that she has preserved interests in many activities, that she has been quite motivated to work and believes herself to have been seen as a valued employee. Dr Mestrovic has described the nominator's feelings toward her marriage and stated that it is not his assessment that the nominator's husband is not adequately supportive.
The Tribunal then noted that the nominator had been engaged in various paid employment for the preceding 10 years and gave some weight to the fact that the nominator's psychological condition in terms of her depression did not seem to have impeded her ability to do so.
In addition, the Tribunal took into account that PAM3 further stated that a prolonged illness means an illness which is continuing or ongoing and needs to be distinguished from illnesses which arise from the absence of a relative whose mere presence in Australia would alleviate the symptoms. In summary, the Tribunal found that the nominator did not suffer from a prolonged illness or disability either at time of application or time of decision. The Tribunal then went on to consider whether the applicant's position was within the phrase "other serious circumstances". The Tribunal again referred to PAM3 and gave some weight to the fact that neither Dr Mestrovic nor Mr Elliott had recommended any other specific treatment for the nominator, nor arranged follow‑up consultations. The Tribunal observed that the nominator's visit to both practitioners was to obtain reports for the department and the Tribunal respectively, and further that the visa applicant had not been prescribed any particular course of treatment for her condition.
On the evidence before it, the Tribunal concluded that the primary need of the nominator appeared to have been companionship. The Tribunal took into account the cumulative effect of the nominator's age, her close relationship with the visa applicant, the fact that her husband worked night shift and the other evidence before it, but noted that in light of the case law the Tribunal found that the nominator did not suffer from a prolonged illness, disability or other serious circumstances that gave rise to a permanent or long‑term need for assistance.
Consideration
The decision of the Tribunal as a `privative clause decision’ is defined in section 474 of the Act. The High Court held in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1 that a decision of the Refugee Review Tribunal will not be a privative clause decision as defined if it is affected by jurisdictional error. If it is so affected, it is not a decision made "under the Act". The applicant's argument is that, firstly, the Tribunal asked itself the wrong question or identified the wrong issue because it did not consider the applicant's case in terms of disability and/or construed that term too narrowly. Secondly, the applicant submitted the Tribunal erred by taking into account the definition of depression in the government web site and/or was in breach of section 359A of the Act and/or natural justice by not bringing this information to the attention of the applicant and inviting comment. Finally, the applicant argued that the Tribunal erred in its interpretation and application of policy in PAM3, in particular that it inflexibly applied policy rather than used it as a guide.
I reject each of the applicant's submissions. The applicant's case was not put before the Tribunal on the basis that the nominator was suffering from a disability. The applicant submitted that its case fell within the other serious circumstances category of special need relative, such submission being consistent with the reports as provided by the applicant from Mr Elliott and Dr Mestrovic, neither of which dealt with the nominator's position in terms of her having a disability.
I accept the respondent's submissions that the Tribunal was not under any obligation to consider the applicant's case on a basis not put. However, having said that, the Tribunal did generally consider the question of disability, albeit not in a discrete and separate manner. The case put was that the nominator suffered from depression and that her symptoms abated when the applicant was present. The claims of the applicant remained the same regardless of whether the categorisation was one of disability or other serious circumstances. The Tribunal did consider the question of the nominator's depression and its impact upon her everyday functioning. Whilst the applicant did not put to the department nor the Tribunal a case categorised as disability, nevertheless the facts and circumstances put before the department and Tribunal were the same whether categorised as disability or other serious circumstances. The Tribunal made specific findings in relation to prolonged illness and other serious circumstances and the Tribunal's findings were sufficient to deal with the question of disability.
I find the Tribunal did not take into account the web site information to which it referred in its reasons in reaching its decision. It did not take issue with the contents of the medical report in those reasons. It noted that the professionals who saw the nominator did not make a diagnosis of clinical depression which was factually correct. Mr Elliott gave no diagnosis at all. He reported the nominator's account that she had been depressed on being separated from the applicant. Mr Elliott stated that the nominator was dependent on her brother for emotional and psychological support. Dr Mestrovic noted from the history as given by the nominator that she had regular waves of reactive emotional disturbance and that the strength of the sibling bond could contribute to reactive depression states. However, he observed that the nominator was not suffering from a severe depression. The decision of the Tribunal did not turn upon whether the depression was clinical or otherwise. Even if the Tribunal was required to provide the information on the web site to the applicant, had that been the case, then such information would have fallen within the exception in section 359A(4)(a) of the Act. Such information was not specifically about the applicant or nominator, as conceded in any event by the applicant's counsel during the course of the hearing. Such information was about a class of persons of which the nominator was a member. Counsel then submitted that there was a breach of a natural justice obligation, but I reject such submission for the reason that the applicant was not deprived of any opportunity to put his case, the decision not turning upon the information in the web site. No practical injustice was afforded to the applicant.
On a fair reading of the Tribunal's decision, the Tribunal correctly understood the role of policy and did not inflexibly apply policy as set out in PAM3 in place of its own decision. PAM3 was used by the Tribunal as an adjunct to the fact‑finding processes as submitted by counsel for the respondent and it cannot be said, as argued by the applicant, that the Tribunal blindly followed policy. The Tribunal made a finding of fact as a threshold issue that the nominator did not suffer from a prolonged illness, disability or other serious circumstances that gave rise to a permanent or long‑term need for assistance and such finding of fact was open to the Tribunal on the material before it. That argument as put in the proceedings by counsel for the applicant can also not succeed in light of the decision of Kenny J in Minister for Immigration and Multicultural and Indigenous Affairs v Hettiarchchige [2005] FCA 37 on appeal from this Court. The Tribunal's approach to the application of PAM3 was similar in both Tribunal decisions. Although the Tribunal treated the commentary in PAM3 as an important consideration, it also considered the evidence and other material before it using the policy as an adjunct to its decision‑making process.
For these reasons the application must be dismissed and the applicant pay the respondent's costs.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Sophie Killen
Date: 15 March 2005
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