Singh v Minister for Immigration - [2008] FMCA 587

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 587

MIGRATION – Application to review decision of Migration Review Tribunal – definition of “orphan relative” – whether Tribunal had regard to irrelevant considerations, failed to take account of relevant material or failed to apply the law to the facts as found – whether apprehended bias – whether independent basis for decision not affected by any jurisdictional error.

Migration Act 1958 (Cth), s.359A

Migration Regulation 1994 (Cth) r.1.14

Craig v South Australia (1995) 184 CLR 163
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Nguyen v Minister for Immigration & Multicultural Affairs (1998) 88 FCR 206
Re Refugee Review Tribunal ex parte H (2001) 179 ALR 425
Repatriation Commission v Moss (1982) 59 FLR 226

Applicant:

BALJINDER SINGH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2253 of 2007

Judgment of:

Barnes FM

Hearing date:

31 January 2008

Delivered at:

Sydney

Delivered on:

15 May 2008

REPRESENTATION

Solicitors for the Applicant:

Parish Patience Immigration Lawyers

Counsel for the Respondent:

Mr G. Kennett

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

That the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2253 of 2007

BALJINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Migration Review Tribunal handed down on 29 June 2007 affirming a decision of the delegate of the first respondent not to grant the applicant a Child (Residence) (Class BT) visa.
The applicant was born in India on 5 October 1986. He arrived in Australia in June 2004 as the holder of a visitor visa. On 30 August 2004 he applied for permanent residence on the basis that he was an “orphan relative” and was sponsored by his Australian citizen half-brother and hence met the criteria in Schedule 2 to the Migration Regulations for a Subclass 837 (orphan relative) visa.
“Orphan relative” is defined in Regulation 1.14 of the Migration Regulations as follows:
An applicant for a visa is an orphan relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if:
(a) the applicant:
(i)   has not turned 18; and
(ii)   does not have a spouse; and
(iii)   is a relative of that other person; and
(b) the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts; and
(c) there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant.
Sub-clause 837.213 of Schedule 2 to the Migration Regulations required the Tribunal to be satisfied that at the time of the application (31 August 2004) the applicant was an “orphan relative” of his sponsor. Clause 837.331 required the Tribunal to be satisfied that at the time of the decision the applicant continued to satisfy the criterion in clause 837.213 or that he would have continued to satisfy it but for having turned 18.
In connection with the visa application it was claimed by the applicant’s solicitor that the applicant’s father was deceased and that his mother was permanently incapacitated, suffering from “Debilitating serious diabetes, kidney stones and eye problems”, that she was unable to work to support herself and the applicant, that her health was deteriorating and that there was no likelihood of it improving and that, therefore, she was permanently incapacitated and that the incapacity related to her ability to care for the applicant.
It was said to be in the best interests of the applicant that he be granted the visa. Reference was made to the fact that he identified as a person of homosexual orientation. He claimed that he had not been accepted by his older brother who lived in India, that he had been tormented by school mates and that homosexuality was legally proscribed in India.
The applicant provided a statutory declaration in which he claimed that his mother was suffering “serious and permanent medical problems”, a statutory declaration from his half-brother stating that his “understanding” was that the mother’s health was “rapidly deteriorating” and a copy of an Indian medical certificate dated 23 June 2004 from a Dr R.K. Sharma, physician certifying that the applicant’s mother had been suffering from “PIVD/gouty diathesis since two years, (approx)”.
According to the Tribunal reasons for decision, a note on the Departmental file dated 29 September 2004 (which is not reproduced in the material before the Court) recorded that the wife of the sponsor had alleged that the application was not genuine. In a letter of 16 September 2004 (also not in the material before the Court) she made a number of claims, including that the applicant’s mother was in good health. These allegations were withdrawn in a letter of 15 April 2007 at the time the matter was before the Tribunal.
Relevantly however, the Department arranged for the applicant’s home in India to be visited in April or May 2006. A “site visit request form” in the court book records that the reason for the site visit was “Dependency verification”, and that two officers visited the applicant’s address and spoke with his mother. The “outcome of check” part of the form dated 2 May 2006 states that the applicant’s mother was asked about her medical problems during the previous two years, that she said she had “kidney stones” but no other kind of problem and that she did not have diabetes or eye problems. It was noted that she was not wearing glasses. She provided the officers with the only medical reports she had. She told them that she was not aware of what the documents contained and their meaning as she was uneducated. Those documents were recorded as a report and photographs from an ultrasound, a doctor’s prescription and two prescriptions for “Norflox, Spasmolysin”. There is no explanation in the report of the significance of any of these documents.
The officers recorded that in response to a question as to how her health was “at the moment” and whether she was able to do normal household duties, the applicant’s mother had said that “at present” she was not doing any of the duties and that a girl was with her to help. She was also recorded as having said that her health was fine, that she had joint pain in her legs sometimes but that she had not had any operations in the last two years. When asked if she had suffered from “PIVD/gouty diathesis” she “did not know what this was”.
The officers recorded that the applicant was able to “walk freely without assistance” and that she appeared “to be in good health for her age” and appeared not to be suffering from a “debilitating medical condition as claimed by the applicant”. The report stated “Conclusion: Non Genuine”.
The Department wrote to the applicant’s advisor informing him of the results of the site visit and seeking comment on information that it was “evident” that the mother did not suffer from multiple and permanent medical problems as the applicant had claimed or debilitating serious diabetes and eye problems or that her health was deteriorating and there was no likelihood of improvement as submitted. The Department put to the applicant’s adviser that the medical report provided with the visa application appeared to be “non-genuine”.
The solicitor for the applicant replied to the Department enclosing a further medical report dated 13 June 2006 from a Dr R. Ramteke, an Indian physician, in respect of the applicant’s mother, which was said to confirm the serious nature of her medical illnesses. The letter advised that a further report from Dr Sharma, her previous physician, could not be obtained as he had died.
The medical certificate from Dr Ramteke dated 13 June 2006 stated that the mother was “unable to walk properly due to vertebral disc problem and gout” and certified that she had been undergoing medical treatment for the disease “Prolapse – intervertebral disc syndrome + gout for the last 5 months”. It stated that the degree of incapacity as diagnosed by the late Dr Sharma who had treated the patient for about four years “still persisted and worst” (sic) and that “It will take a long time to cure but the prognosis is very poor even after long-term treatment”. The report confirmed: “The main treatment is to wear waist belt, and for gout is Zyloric Acid, 100 Tab/12 hourly twice daily till life”. The report concluded that the mother’s “eye visibility level was very poor and she cannot look after herself without the assistance of a caretaker”.
The response also addressed the site visit. Given that the discussion with the applicant’s mother apparently did not take part in Punjabi (which was said to be her language) and that there was no Punjabi interpreter present, the solicitor disputed whether she had provided the information allegedly provided. Issue was also taken with the expertise of the officers to make an assessment of the mother’s capacity based on the fact that she may have been able to walk unassisted in the familiar environment of her home. The applicant relied on the expert medical evidence of the current treating physician to support his claim that his mother was permanently incapacitated.
The visa application was refused. In reasons for decision the delegate referred to a report from a “Dr Ramteke Sharma” a “Child Specialist” (sic) from India. It seems that this is intended to be a reference to the medical certificate dated 13 June 2006 from Dr Ramteke, physician as it describes the contents of that certificate. On the information before the delegate and “having regard to the report of the site visit” the delegate was not satisfied that the applicant’s mother was “permanently incapacitated”. On that basis the applicant was said to fail to satisfy the definition of orphan relative.
The applicant sought review by application lodged with the Tribunal on 7 September 2006. He attended a Tribunal hearing on 26 March 2007, as did his sponsor. The Tribunal also took evidence via telephone from a neighbour of the applicant’s mother and received three written statements from acquaintances and neighbours of the mother on the issue of her capacity.
In its reasons for decision the Tribunal recorded that at the hearing the applicant provided a further medical report from Dr Ramteke concerning his mother. The parties agree for the purposes of these proceedings that in fact two reports from Dr Ramteke (one dated 15 December 2003 and the other dated 23 March 2007) were given to the Tribunal hearing officer after the hearing closed on 26 March 2007. The report dated 15 December 2003 appears to refer to investigations and medical tests. The report of 23 March 2007 states under the heading “Provisional Diagnosis” that this is an “old case of prolapse – intervertebral disc syndrome (illegible) weakness since 5 years and gout”, that the applicant’s mother’s eye visibility is “poor” and that she is “not able to walk properly”. It states that the treatment is to continue as advised by the late Dr Sharma and ends “Please look after her by Assistant in routine”.
At the Tribunal hearing it was agreed that the applicant would have 28 days to provide further evidence, including evidence on the issue of whether he could not be cared for by his mother because of her permanent incapacity.
After the hearing the Tribunal wrote to the applicant by letter dated 2 April 2007 under section 359A of the Migration Act 1958 (Cth) inviting him to comment on information the Tribunal considered would be the reason or a part of the reason for affirming the decision under review. In particular, he was invited to comment on the allegation the Department had received that his claims were fabricated, that his mother was not ill or incapacitated and on the observations in the record of the site visit which were said to be relevant as a decision-maker could form the view that the applicant was not an orphan relative because at the time of his application his mother was not permanently incapacitated.
The Tribunal also sought comment on the fact that as the applicant was born on 5 October 1986 he was about five weeks short of his 18th birthday at the date of the application for the visa. It was stated that on the basis of that fact a decision-maker could form the view that the applicant was not an orphan relative within Regulation 1.14 because the period of care in issue was so short.
On 26 April 2007 the agent requested a further 14 days to reply. On 4 May 2007 the Tribunal granted the request for an extension of time but stated that requested comments should be received by 31 May 2007. In its reasons for decision signed on 7 June 2007 and handed down on 29 June 2007 the Tribunal recorded “No response was received. It is now appropriate that a decision be made.”
However on 22 June 2007 the applicant’s migration agent had written to the Tribunal in response to the letter of 2 April 2007 submitting a statement from the sponsor’s wife withdrawing her allegations. The letter also reiterated claims about the mother’s illness and about problems associated with the site visit. It was suggested that because the applicant’s mother was not spoken to in a language with which she was familiar there were communication difficulties. The adviser provided a copy of another report said to be “dated 23 March 2007” although the parties agree that it was in fact a report of Dr Vishal Kumar, an ophthalmic surgeon, dated 3 May 2007.
The applicant’s adviser submitted to the Tribunal that in the absence of contrary medical evidence the Tribunal should accept the medical evidence as evidence of the medical problems of the applicant’s mother and that the knowledge or capacity of the Departmental officers who conducted the site interview should not be treated as expert evidence. The letter repeated that the applicant claimed that his mother had a significant number of medical problems including “depression, high blood pressure, heart problems, arthritis, eye problems, diabetes and kidney problems” and that she was bedridden for extended periods. It was submitted that a person with such multiple medical complications was permanently incapacitated.
It was also submitted that the applicant’s age at the time of application was not relevant, as the applicant was aged under 18 at the date of application and therefore met the relevant prescribed criteria. Consideration of the fact that the period of care required may be short was said to impose an additional requirement not contained in the Regulations. The applicant’s particular circumstances and the dispute he was having with other family members, in part arising from his growing awareness of his sexual orientation, was said to exacerbate the problem of him receiving proper family support. It was noted that a child could be “dependent” when aged over 18 and while continuing to be so dependent may require further care and support.
On 25 June 2007 a Tribunal officer emailed the Tribunal member attaching a copy of this submission with a request that the member advise whether this would mean a change to the decision or not. On the same day the member responded to the Tribunal officer by email as follows:
I have considered the material received from the applicant’s migration agent on 25 June 2007. Reflecting on this material has not caused me to alter the decision I have made in this matter.

The Tribunal decision

In its findings and reasons the Tribunal found that the applicant was the stepbrother of the sponsor. It appears that in fact the sponsor is the applicant’s half-brother, but the first respondent conceded that nothing turned on this fact. There is no suggestion that the Tribunal was wrong to regard the applicant as a relative of the sponsor for relevant purposes.
The Tribunal stated that the central issue was whether the applicant was an orphan relative of the sponsor as required under clause 837.213 of Schedule 2 to the Migration Regulations.
The Tribunal found that the applicant satisfied both paragraphs (a) and paragraph (c) of the definition of “orphan relative” in Regulation 1.14. In relation to paragraph (b) it accepted that the applicant’s father was dead. The Tribunal set out departmental policy in relation to the definition of orphan relative and referred to the discussion of the concept of “permanent incapacity” in Regulation 1.14 in Minh Quang Nguyen v Minister for Immigration & Multicultural Affairs (1998) 88 FCR 206 per Merkel J.
It then addressed whether the applicant’s mother was “permanently incapacitated” and if so whether this was the reason that she could not care for the applicant.
The Tribunal summarised the care that the applicant said at the hearing that he had needed in the six month period before he came to Australia as:
He said there was no-one to supervise him. Sometimes he wore the same clothes for a month. His breakfast was not prepared. There was no-one to supervise his homework and he wasn’t able to afford out of school tuition. He couldn’t buy sporting equipment. He said that his uncles, his father’s brothers did not help him nor did his mother’s brothers.
The Tribunal continued:
It cannot be ignored that the applicant was only about 5 weeks short of his 18 birthday when he applied for the visa on 21 August 2007. This is an aspect of the processing of orphan relative visas that is not picked up by the policy material or the case law discussed above. But as the inquiry is into whether the mother’s incapacity prevents her from caring for the applicant, some attention has to be given to the type and order of care required by the applicant. This feature of the case was notified to the applicant at the hearing and by way of the S359A letter. I note that no claim has been made along the lines suggested by Justice Merkel in Minh Quan Nguyen v Minister for Immigration & Multicultural Affairs. In other words, no claim has been made based on the applicant’s homosexuality that in some way this gave rise to social or cultural circumstances that resulted in incapacitation of the mother to care for the applicant. I am not satisfied that at the date of application for the visa the applicant was in need of the kind of care that his mother (whether incapacitated or not) could not provide for him.
I am also not satisfied that the applicant is an orphan relative for the more conventional reason that on the material before me I am not satisfied that he could not at the date of the application or cannot now be cared for by his mother because she was or is permanently incapacitated. Before me on this issue is the report of the site visit of 2 May 2006. It is pointed out that the investigating officers did not make use of an interpreter and were not qualified to assess the mother’s medical reports. However, there is no reason to doubt their observations of the mother’s mobility, despite her back and eye problems, and her apparent good health. Of course these observations were only as to the mother’s health at one point in time and they have to be evaluated in the context of the other material before me. However I do not consider this other material persuasive on the issue of the mother’s inability to care for the applicant due to her permanent incapacity.
The medical evidence before me (the reports of Dr Sharma and Dr Ramteke) do not in my view establish that the mother was permanently incapacitated to the extent that this stopped her caring for the applicant.
In addressing this issue the Tribunal referred to the claims about the mother’s ill health and lack of capacity made by the applicant, the sponsor, the neighbour and other acquaintances. It accepted “in general terms” that the mother was “at times unwell and that she needed someone to cook for her and do the washing and housework”. The Tribunal observed that these tasks were done by the neighbour or other people and that it was a fair assumption that the arrangements extended to cooking and washing for the applicant, as the neighbour had said that the applicant could not cook and wash for himself.

The Tribunal accepted that in the relevant period prior to the visa application the mother “at times cooked and cleaned for the applicant and provided other care” and that “[w]hen she could not do this because of her ill health then other people did these things; and possibly there were periods of time when the applicant, a 17 year old, had to attempt to do these things for himself.”
The Tribunal concluded that on all the material before it the applicant had not satisfied it that at the date of visa application or decision he could not be cared for by his mother because she was (or is) permanently incapacitated. Hence he was not an orphan relative at the date of application or at the date of decision and thus did not meet criteria for the class of visa for which he had applied.
The applicant sought review of the Tribunal decision by application filed in this court on 20 July 2007. There are four grounds in the application: that the Tribunal took account of irrelevant considerations; that it failed to take account of relevant material; that the decision was affected by apprehended bias and that the Tribunal failed to apply the law to the facts as found.

Irrelevant considerations

The first ground is that the Tribunal took into account irrelevant considerations. The particulars to this ground are:
The Tribunal took account of the fact that the applicant was 17 years and 45 weeks old at the time of the application. This consideration is irrelevant because the relevant definition only requires that a person be under 18 years of age, it does not specify to what degree they must be under that age.
The applicant contended that the relevant regulation (reg. 1.14) provided that anyone under 18 years of age was able to be an orphan relative. This was said to acknowledge that children under 18 years of age were in need of care. It was submitted that the uncontradicted evidence was that the applicant was in need of care of the nature set out in the Tribunal reasons for decision in describing his response when asked what care he said he needed (as set out at [32] above) and that it could not be argued that this was not the care required by a 17-year-old boy. It was also said that what was in issue was not what a person of some 5 weeks short of 18 years of age would require, but rather what this person of that age required.
It was submitted that the correct test in relation to permanent incapacity was the test adopted in Nguyen and that in this case the applicant’s circumstances met the policy requirements outlined by the Tribunal as well as the language of Regulation 1.14.
The applicant accepted that the age of the applicant was relevant in establishing the type of care that was required and conceded that if this was all that the Tribunal had done, there would be no issue. However it was submitted that in the reasons for decision (consistent with the approach taken in the section 359A letter) the only basis for the Tribunal’s finding that the applicant’s mother could, whether incapacitated or not, provide the assistance required, was that the applicant was five weeks short of his 18^th birthday. It was submitted that this consideration was not relevant to this issue, as it was envisaged by the definition of orphan relative in regulation 1.14 that a person under 18 years of age at the date of application, irrespective of how much such person was under that age, could be within the definition of “orphan relative” provided the other requirements were met.
It was said to be clear that when the Tribunal finding that whether or not the mother was incapacitated it was not satisfied that the applicant was in need of the kind of care his mother could not provide for him was read in the context of the paragraph in which it appeared and the decision as a whole, what was being said by the Tribunal was that because the applicant was almost 18 he could look after himself. This was said to be consistent with the fact that in the next paragraph the Tribunal provided an alternative basis for its decision, based on what it described as a “more conventional reason”. This indicated that there was an “unconventional” reason relating to the age of the applicant. It was also said to be consistent with the Tribunal’s subsequent finding that when the applicant’s mother or others could not cook and clean for him or provide other care there were possibly “periods of time when the applicant, a 17 year old, had to attempt to do these things for himself”. On this basis it was submitted that the Tribunal had erred in introducing an additional element into reg. 1.14.
As counsel for the first respondent contended, it is clear that the Tribunal regarded itself as reaching a conclusion on two quite distinct bases and this ground relates only to the first basis for the decision. The Tribunal did have regard to the fact that at the time of the visa application the applicant was only about five weeks short of turning 18 years. It stated (unobjectionably) that in assessing whether the mother's incapacity prevented her from caring for the applicant, some attention had to be given to the type and order of care required by the applicant. It is apparent that the Tribunal considered that that was largely dependent, in this instance, on the age of the applicant.
The Tribunal's conclusion that it was not satisfied that at the date of the application the applicant was in need of the kind of care that his mother, whether incapacitated or not, could not provide for him involved a refusal to accept at face value that the applicant's own assessment of what he needed (insofar as he had given evidence at the Tribunal hearing of the care he said he needed in the six month period before he came to Australia) demonstrated that his mother was unable to fulfil a parental role in relation to him as a nearly 18 year old. In effect the Tribunal did not accept that the absence of the matters he claimed he needed (ensuring he changed his clothes, preparation of his breakfast, supervision of his homework, payment for out of school tuition and sporting equipment) constituted an inability to fulfil a parental role in relation to the applicant, a young man of nearly 18 years of age. The Tribunal considered the possibility that an applicant’s sexual orientation could in some way give rise to social or cultural circumstances that resulted in incapacitation of his mother to care for him but noted that no such claim was made in this instance.
In this part of its decision the Tribunal resolved the issue of whether the applicant met the requirements of reg. 1.14 without forming a view about the mother's incapacity and without attempting to consider the medical evidence and to weigh that against the evidence of the site visit. The Tribunal was clearly of the view that even if it accepted that the applicant's mother had the health problems that had been claimed, it did not follow that she was unable to fulfil the role of a parent in relation to her son, a young man of nearly 18 years of age. This does not mean that the Tribunal was of the view that the applicant did not need any care at all, but rather that, even if the mother was incapacitated in the manner suggested, it did not follow that she could not provide the level of care that was needed by this particular applicant. Hence, in concluding that it was not satisfied that the applicant “was in need of the kind of care that his mother (whether incapacitated or nor) could not provide for him”, the Tribunal was indicating that even if the mother was incapacitated as claimed, having regard to the type and order of care required by the applicant as a young man of nearly 18 it was not satisfied that he was “in need of the kind of care” his mother could not provide.
The Tribunal did not treat the fact that the applicant was nearly 18 years old as relevant to whether paragraph (a) of the definition of "orphan relative" was met. It found that that part of the definition was satisfied, even though he was only a few weeks away from turning 18 years when his application was made. The Tribunal was entitled to regard the applicant's age as a factor relevant to whether his mother was capable of caring for him for the purposes of paragraph (b) of the definition which requires that the visa applicant "cannot be cared for" by either parent. As the Tribunal recognised, this test requires some consideration of the type and order of care that the particular visa applicant would require.
The Tribunal did not err in having regard to the applicant's age in deciding that it was not satisfied that he was in need of the kind of care that his mother (even if incapacitated in the manner claimed) could not provide for him. The Tribunal did not simply decide that the applicant necessarily failed simply because he was within five weeks or so of turning 18 years old. Rather it had regarded his age as a factor relevant to whether his mother was capable of caring for him. It was proper for the Tribunal to have regard to matters such as an expectation that, given the applicant's age, he would be capable of being reasonably self-reliant in many respects, consistent with the approach in Nguyen.
In Nguyen Merkel J (at 211) accepted that, as Fox J had stated in Repatriation Commission v Moss (1982) 59 FLR 226 at 232:
[T]he very notion of incapacity involves consideration of capacity for something; some external frame of reference is necessary.
This principle was relevant to the manner in which Merkel J found that (at 212):
For the purposes of the present case, the external frame of reference for "incapacitation" in relation to an orphan relative is that the relative, who is under 18 years of age, cannot be cared for, that is looked after, by a parent because that parent is permanently incapacitated from doing so. The requisite "incapacitation" must relate to an impairment of a parent's power, capacity or ability to care for his or her child. In that context, incapacitation will include impairment of the physical or mental faculties required to care for a child.
Nguyen makes it clear that the incapacity in issue in Regulation 1.14 is not incapacity in an abstract sense. Rather the issue is whether the applicant could not be cared for by either parent because each of them was dead or permanently incapacitated. This conceptual framework is reflected in the department's policy document which the Tribunal quoted at length in its reasons for decision. As departmental policy recognised, the concept "cared for" has no legislated meaning. It is policy however that the requirements of the definition of orphan relative are not met if the decision-maker considers that the child could be cared for by a parent. The policy (at PAM 3 para. 6.3) is that it is “open to [decision-makers] to decide that a child can be cared for if satisfied that a parent is (or will be in the foreseeable future) able to fulfil a parental role towards the child”, as the Tribunal determined in this instance. Further (see PAM 3 at 6.3) in assessing this criterion decision-makers “may have regard to whether the arrangements, if any, that parent has made for the care of the child reasonably suggest that the parent is able to fill a parental role towards the child”.
The nature of the parental role in a particular case can be said to depend to a large extent on the needs of the particular child. The age of the child is relevant to the enquiry as to the type and nature of care in issue. Permanent incapacity is relevant because it must be the reason why such parental care is absent. The incapacitation “must relate to an impairment of a parent’s power, capacity or ability” to care for the child for the requirements of reg. 1.14 to be met, as Merkel J stated in Nguyen at 212. Thus the extent of parental care required in the particular case is the starting point in the determination of what degree of incapacity would constitute permanent incapacity in the particular circumstances of the case in issue.
On this basis, insofar as the Tribunal took into account the age of the applicant, it did so in a manner that was permissible. No jurisdictional error is established on the basis contended for in ground 1 of the application.
In any event, even if the Tribunal did err in the manner contended by the applicant, it also adopted an alternative line of reasoning (the so-called “more conventional” reasoning) that did not involve reliance on findings about the applicant’s age beyond having regard to such a factor in establishing the type of care that was required. Even if ground 1 was made out, for the reasons that follow, I am satisfied there was an independent basis for the decision not affected by any such error.

Relevant material

The second ground in the application is that the Tribunal failed to take account of relevant material. The particulars are:
The Tribunal received a submission in relation to relevant matters under cover of the applicant’s advisor’s letter of 22 June 2007 and took no account of that material in its decision.
In its reasons for decision the Tribunal did not refer to the submission of 22 June 2007 or to the accompanying medical reports which it received after the decision was signed but before it was handed down. It was contended that such medical reports were relevant to the mother’s incapacity and were not taken into account by the Tribunal.
It was submitted that it was not sufficient for the Tribunal member to record in an email that “Reflecting on the matter has not caused me to alter the decision I have made in this matter”. Rather it was said that the Tribunal had to add this material to the evidence already before it and consider whether all the evidence viewed together established the mother’s incapacity.
It was acknowledged that if the Tribunal had simply stated that it had considered the information of 22 June 2007 there could be no complaint. It was submitted however that in simply asking itself whether the new information would “alter” its decision, the Tribunal had failed to give it the proper consideration that it required.
It was initially unclear on the material before the Court when various medical reports were provided to the Tribunal. However the parties agreed that the two reports of Dr Ramteke dated 15 December 2003 and 23 March 2007 were given to the hearing officer after the Tribunal hearing closed on 26 March 2007 and that the report of Dr Vishal Kumar dated 3 May 2007 was provided to the Tribunal with the letter dated 22 June 2007.
Hence the “new” material provided at 22 June 2007 consisted of the letter from the applicant's adviser belatedly responding to the s.359A matters, the withdrawal of allegations by the sponsor's wife (a matter not in issue as it played no part in the decision of the Tribunal) and the medical certificate from Dr Vishal Kumar of the Vishal Eye Hospital and Research Centre in India dated 3 May 2007 which appears to record the result of some form of eye test. It does not describe the impact of such results on the applicant mother's capacity or abilities, except that it is apparent that the word "glasses" appears on the certificate.
As acknowledged for the first respondent, it was necessary for the Tribunal to consider material received after the decision was signed but before it was handed down. I am satisfied that in this case the Tribunal did what it was required to do in such circumstances. Contrary to the submission for the applicant, the Tribunal did not treat the view it had reached as having some sort of legal status that meant an onus had to be met by the applicant before it would be reconsidered. It was open to the Tribunal to form the view that reflecting on the new material had not caused it to alter the decision. This amounted to taking that material into account in light of the other material before the Tribunal and considering whether it led to any different conclusion. The member who constituted the Tribunal did take the material provided on 22 June 2007 into account in recording in the email that reflecting on that further material had not caused him to alter the decision he had made.
The failure to refer expressly to or canvas the additional material in the Tribunal's formal statement of reasons does not have any legal significance in this case. While the Tribunal is obliged by s.368(1)(d) of the Migration Act 1958 (Cth) to refer to the evidence on which its findings were based, it is not under a statutory obligation to discuss other evidence. The matters raised in this material were addressed insofar as necessary. The applicant’s concerns about reliance on the site visit had already been expressed to the Department and that issue was canvassed by the Tribunal. The submissions about the relevance of the applicant’s age did not constitute fresh claims or integers of the applicant’s claims about the manner in which he met the requirements of reg 1.14 such as to require express consideration by the Tribunal (see Craig v South Australia (1995) 184 CLR 163). The relevance of the applicant’s sexual orientation to the claims made about his mother’s capacity to care for him was addressed by the Tribunal, which observed that he did not claim that in some way this “gave rise to social or cultural circumstances that resulted in incapacitation of the mother to care for the applicant” (cf Nguyen). The Tribunal did not rely on the sponsor’s wife’s allegations. Had the medical certificate from Dr Kumar raised fresh issues or made new claims about the mother’s capacity it may have been necessary for the Tribunal to refer to that material to avoid an inference being drawn that it failed to take relevant material into account. However, given the nature of that certificate, no jurisdictional error is established on the basis contended for in Ground 2.

Apprehended bias

The third ground is that the Tribunal’s decision was affected by apprehended bias. The particulars are as follows:
(a) The Tribunal stated the policy in respect of an orphan relative but failed to apply that policy;
(b) The Tribunal preferred the opinion of lay observers rather than the report of qualified medical professionals.
It was acknowledged that a claim of apprehended bias should not be made lightly. Nonetheless it was said that these two issues would lead a fair-minded lay person (informed of all the circumstances and evidence in this case and the relevant definition of orphan relative) to apprehend that the Tribunal might not have brought an open mind to its task.
First it was said that there was a failure to apply the relevant policy. It was acknowledged that the Tribunal set out the relevant policy. However it was submitted that it based its findings in part on issues relating to the care that was able to be given to the son by people other than the mother and that this was contrary to policy, which was said to be clear that such matters should not be taken into account.
The policy specifically stated the Tribunal should not have regard to whether the child could be cared for by a relative other than the parent or the Australian relative. It was contended that this would extend to neighbours and friends. Nonetheless the Tribunal had regard, in part, to the assistance that was given by the neighbour who had given evidence at the Tribunal hearing.
Further, while the policy was that claims of incapacity should preferably be supported by a medical report and the Tribunal had medical reports before it, it was said to have failed to base its decision on those reports, preferring the site visit conducted by lay observers. It was stressed that the applicant was not asking the court to conduct a review on the merits. It was submitted that where there was medical evidence which all went one way and which, it was said, established an incapacity on the part of the mother, and where there was first-hand knowledge of the type of assistance given to the mother because of that incapacity, for the Tribunal to prefer the lay evidence of the site visit with its inherent language problems, the shortness of association during the visit and the somewhat ambiguous report, that was an indication that the Tribunal could be apprehended as bringing a closed mind to its task.

It was also said that the structure of the section 359A letter and the Tribunal’s findings and reasons pointed clearly to the fact that the Tribunal was concerned primarily with the age of the applicant. It was suggested that having formed a view about this, the Tribunal did not bring an open mind to what was established by the rest of the evidence.
First, it is relevant to have regard to what is stated in the policy. Paragraph 6.5 of the part of PAM3 which set out departmental policy in relation to the definition of orphan relative at the time of the Tribunal decision provides:
Only the circumstances of the parents are relevant.
In assessing this factor, officers should give no regard to whether the child can be cared for by a relative other than their parent(s) or the Australian relative.
Paragraph 9.1 of the policy deals with assessing “permanent incapacity” as follows:
Claims that either one or both of the child’s parents are permanently incapacitated on the basis of physical or mental impairment should be supported by (preferably) a medical report of (otherwise) a background report from the child’s social worker. The report should describe
·    the nature of the parent’s disability and when it was diagnosed;
·    the nature and degree, if any, of incapacity caused by the disability;
·    whether medical opinion supports a view that the incapacity is permanent (and if so, why);
·    available treatment (if any) for the disability; and
·    prognosis.
However, the policy (which was set out by the Tribunal) expressly left room (at PAM3 para 6.3) for officers to decide that a child could be cared for if satisfied that the parent was able to fill a parental role towards the child and stated that in assessing the criterion of “care” in reg.1.14 decision-makers “may have regard to whether the arrangements, if any, that the parent has made for the care of the child reasonably suggest that the parent is able to fill a parental role towards the child”.
The Tribunal addressed this factor when it considered the arrangements in place for other people to assist the applicant’s mother (and on occasion, the applicant) with physical tasks such as cooking and washing. The policy made it clear that it was not necessary that the parent must him or herself physically fulfil all the tasks needed by the child and that the parent may provide care and fulfil a parental role by making “arrangements for the care of a child”, that is, by delegating or obtaining assistance with particular tasks. The fact the Tribunal had regard to the fact that, if they were to be regarded as aspects of necessary parental care in this instance, basic physical tasks may be carried out for the applicant and his mother by a neighbour or some other person, is not contrary to policy or indicative of bias. Having regard to the existence of such arrangements (as well as the fact that “there may have been periods of time when the applicant, a 17 year old, had to attempt to do these things for himself”) it was open to the Tribunal to be satisfied that the mother was able to fill a parental role towards the applicant. Its findings in that respect do not demonstrate apprehended bias.
As indicated, it is policy (see paragraph 9.3) that the parent’s incapacity must relate to the ability to care for the child. It is not, however, a question of incapacity in any abstract or absolute sense (see Nguyen). Indeed the fact that incapacity may be based on matters other than physical or mental impairment (as recognised by policy) indicates that it is necessary to consider all factors “in the context of the particular circumstances” of the parent as stated in Nguyen, including whether the child in question can be cared for by the parent, notwithstanding his or her impairment.
As Merkel J stated in Nguyen at 212:
… the external frame of reference for "incapacitation" in relation to an orphan relative is that the relative, who is under 18 years of age, cannot be cared for, that is looked after, by a parent because that parent is permanently incapacitated from doing so. The requisite "incapacitation" must relate to an impairment of a parent's power, capacity or ability to care for his or her child. In that context, incapacitation will include impairment of the physical or mental faculties required to care for a child. However, I see no reason to treat physical or mental impairment as exhaustive of the circumstances in which the relevant incapacity can occur. Obviously, the facts of each case will need to be considered in the context of the particular circumstances of the relevant parent, including the social or cultural environment within which the incapacitation of that parent is said to be occurring.
Further, while policy is that claims that the parent is permanently incapacitated should preferably be supported by a medical report, it does not follow that once a medical report has been provided, permanent incapacity is necessarily to be taken as established. It is still necessary for the Tribunal to consider the content of any medical report, whether it is persuasive and if so whether it is thought to establish the requisite degree of incapacity together with all the evidence in relation to the particular circumstances of the parent and the parental role in issue.
It has not been established that there was any significant departure from Departmental policy in this case. Moreover, even if there was a failure to apply policy set out in PAM, it would not be a legal error on the part of the Tribunal to depart from the policy document provided the Tribunal applied the terms of the statute – in this instance reg. 1.14.
In any event, if there was any failure to apply policy that would not necessarily be indicative of bias but rather of a different view being taken about what the regulation required. The applicant contends that the Tribunal was preoccupied with the age of the applicant in assessing the application of reg 1.14. However its consideration of that factor does not establish an apprehension of bias either taken alone or in conjunction with the matters in the second particular. In that respect it is relevant that the Tribunal provided two bases for its decision. Whatever view is taken of the first basis for the Tribunal decision, given the second basis for the decision it cannot be said that there was a preoccupation with the applicant’s age such as to give rise to an apprehension of bias.
In relation to the second particular, it is the case the Tribunal did not express clear disagreement with or expressly reject any particular evidence before it, particularly in relation to the site visit. The Tribunal acknowledged that issues were raised about the absence of an interpreter during the site visit and the officers’ lack of qualification to assess medical reports. While it did not indicate whether the criticisms made by the applicant's solicitor were accepted, the Tribunal's finding that there was no reason to doubt the officers “observations” of the mother's mobility and “apparent” good health despite her back and eye problems (albeit at one point in time) indicate that the Tribunal was aware of the inherent limitations of a site visit report as evidence and the criticisms made of this report, but was of the view that, as it stated, such evidence had to be evaluated in the context of the other material including medical reports, which the Tribunal addressed but did not consider persuasive on the issue of the mother’s inability to care for the applicant.
It is apparent that in the assessment of the evidence before it, the Tribunal was aware of the limits on the evidence stemming from the site visit to the mother's home. It did not question the genuineness or reliability of the medical reports to the extent that they reported that the applicant's mother was suffering from particular conditions. The Tribunal addressed the medical reports, finding however that they did not “establish that the mother was permanently incapacitated to the extent that this stopped her caring for the applicant” (emphasis added). Such conclusion was open to the Tribunal on the material before it. I note that the Tribunal also had regard to the clams made about the mother’s health and incapacity by the applicant, his sponsor and the neighbour in India. While accepting that “at times” the mother could not cook and do the washing and housework because of ill health, the Tribunal found on the evidence of the neighbour (which was accepted in general terms) that other people did these things and also that at times the mother performed these tasks.
Even if the Tribunal’s conclusion that it did not regard the medical reports as establishing a particular degree of incapacity (that is an incapacity which would prevent parental responsibilities being carried out) and that it regarded the lay observers as capable of observing the mother's mobility and "apparent good health" are conclusions which another decision-maker might not have reached, they were nonetheless conclusions that were open to the Tribunal. A complaint that they are evidence of bias or such as to indicate apprehended bias in substance takes issue with the merits of the decision.
As counsel for the first respondent submitted, the matters in the particulars do not provide a basis upon which "a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which was said to give rise to an apprehension of bias" could reasonably apprehend that the Tribunal might not bring an open mind to the issues for decision (Re Refugee Review Tribunal ex parte H (2001) 179 ALR 425 at 434 – 435 [27] - [28]). The manner in which the Tribunal addressed the medical and lay evidence before it and its approach to policy are not such as to establish apprehended bias. No jurisdictional error is established on the basis contended for in ground 3.

Failure to apply the law to the facts as found

The last ground is that the Tribunal failed to apply the law to the facts as found. Particulars for this ground are:
The findings of fact by the Tribunal lead to only one possible conclusion: that the Applicant’s mother was incapacitated. The Tribunal having so found, as a matter of fact, made an ultimate finding that the mother was not incapacitated.
It was submitted that the Tribunal had found that another person (the mother’s neighbour) was at times required to do the mother’s cooking, washing and housework and that the only conclusion that could flow from such a finding was that the mother was incapable of providing the care that her son required.
It was contended that the applicant had said he could not cook or wash for himself and it was said not to be disputed that this was what he required. There was evidence from the neighbour (accepted by the Tribunal) that the mother was at times unwell and could not provide these things and that while from time to time she did so, others also did so. Hence there was said to be uncontradicted evidence of what the applicant needed and acceptance of the neighbour’s evidence that these things were not being provided by the mother. On this basis it was submitted that the only possible conclusion was that the mother was incapable of providing such care. Despite this, the Tribunal had found that the applicant’s mother was not incapacitated. This was said to constitute either a failure to apply the law to the facts as found or a failure by the Tribunal to carry out its duty to review the application.
Counsel for the first respondent accepted that the Tribunal made a finding by way of accepting the neighbour's evidence that “at times” the applicant's mother was unwell and that she needed someone to cook for her and do the washing and housework and that these tasks were done by the neighbour or other people.
However the issue for determination was not whether the applicant's mother was "incapacitated" in some abstract sense, but whether she was unable to care for the applicant because of an incapacity. The Tribunal addressed that question on the two bases referred to above. The first basis was, in effect, that even if the mother was "incapacitated" as suggested by the applicant, that would not deprive the applicant of the degree of care that he needed as a young man of nearly 18 years of age. The “more conventional” reason had regard to a number of factors, including the fact that, despite some health problems, the applicant's mother at times cooked and cleaned for him and at times other people did those things (and at time he may have had to do these things for himself). On all the evidence the Tribunal was not satisfied that the applicant's mother was so incapacitated as to be unable to care for the applicant as a parent.
While the Tribunal accepted evidence that at times some domestic tasks were done by persons other than the applicant's mother, as discussed above it is not necessarily critical that such tasks are not done by the hands of the parent him or herself, provided that arrangements are put in place and that such necessary tasks are in fact performed. A finding that at various times physical help was needed and provided is not a finding that leads inexorably to a finding of incapacity related to the mother’s ability to care for the child in question.
Hence, neither of these lines of reasoning involve findings that the applicant's mother was incapacitated to the extent that this stopped her filling a parental role and thus caring for the applicant or findings that lead inexorably to that conclusion. No jurisdictional error is established on the basis contended for in ground 4.
As no jurisdictional error has been established the application should be dismissed.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 15 May 2008