Singh v Minister for Immigration
[2004] FMCA 319
•27 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION | [2004] FMCA 319 |
| MIGRATION – Application for "special need relative" visa – whether Tribunal asked wrong question – whether "prolonged illness" required "substantial continuing assistance" to meet requirements of visa. |
Migration Regulations 1994, r.1.03
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [2001] HCA 30
Wu v Minister for Immigration and Multicultural Affairs (2000 ) 105 FCR 39, [2000]
Narayan v Minister for Immigration and Multicultural Affairs [2001] FCA 1745
| Applicant: | JASWINDER SINGH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 932 of 2002 |
| Delivered on: | 27 May 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 3 April 2003 |
| Judgment of: | Phipps FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Gilbert |
| Solicitors for the Applicant: | Erskine Rodan & Associates |
| Counsel for the Respondent: | Ms Kennedy SC |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the respondent’s costs fixed in the sum of $7,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 932 of 2002
| JASWINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The first applicant has been refused a special need relative visa. The other applicants are members of the first applicant’s family unit. For convenience, the first applicant is described as “the applicant”.
The applicant seeks review by way of prerogative writ of a decision of the Migration Review Tribunal made on 23 April 2002 by which the Tribunal affirmed the decision of a delegate of the respondent that the applicant was not entitled to be granted a Family (Residence) (Class AO) visa.
The applicant entered Australia on a subclass 676 Short Stay (Visitor) visa on 12 June 1997, which was valid until 12 September 1997. On 25 August 1997, the applicant was granted a Subclass 686 Long Stay (Visitor) visa valid until 12 March 1998. He has since held a bridging visa granted on the basis of the application for a visa which is the subject of this review.
The applicant claimed in the visa application on 5 March 1998 that he was the special need relative of his sister, Balwinder Singh (the nominator), who was born on 15 September 1957. The nominator entered Australia on 12 December 1991 with her spouse and three children, and was granted Australian citizenship on 14 June 1994. The visa application also included the nominator's three children as Australian citizens who needed his assistance. The nominator's eldest child, Amardip Kaur Sidhu, was born on 16 August 1981 and twins, Manminder Singh Sidhu and Sukhjit Singh Sidhu, were born on
1 September 1985. The nominator's children were aged 16 years and 13 years, respectively, at the date of the application.
The issue before the Tribunal was whether the applicant was a "special need relative" as defined in regulation 1.03 of the Migration Regulations 1994. That 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 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 Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or
(ii) welfare, hospital, nursing or community services in Australia;
The medical evidence concerning the nominator was that she had a variety of ailments and that she was suffering depression and anxiety; largely because her husband was an alcoholic. The applicant provided assistance to the nominator including driving her children to activities, buying things for them, maintaining the family car and taking the nominator to the doctor.
Only one ground of review was pursued by the applicant:
The Tribunal erred by the conflating the test imposed by regulation 1.03(a), namely by defining the term "prolonged illness” by the context of the assistance required by the nominator.
The argument was that the Tribunal consistently referred to regulation 1.03(a) as requiring "substantially continuing assistance". It did so when examining each aspect of regulation 1.03(a), namely, the question of disability, prolonged illness and other serious circumstances.
The applicant’s submission was that in so doing, the Tribunal asked itself the wrong question and/or identified the wrong issue and that the Tribunal fell into jurisdictional error as described in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [2001] HCA 30 at [82]:
It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal) "falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it."
The Tribunal considered the critical question under this heading:
The permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the nominator.
At several points throughout the reasons, the Tribunal expressed its findings in these terms. For instance:
The Tribunal finds that the combination of the nominator's medical and psychological illnesses, when viewed in the context of the assistance required by her, do not amount to the type of prolonged illness contemplated by the regulations, that is, one which requires substantial and continuing assistance.
The submission is that "substantially continuing assistance” qualifies only the relative referred to in the opening words of the regulation and not "permanent or long-term need for assistance because of death, diability, prolonged illness or other serious circumstances”, the words in paragraph (a) of the regulation.
Two decisions of the Full Court of the Federal Court are to the contrary. The applicant’s submission sought to distinguish them.
In Wu v Minister for Immigration and Multicultural Affairs (2000 ) 105 FCR 39, [2000] FCA 1817, the full Court considered the refusal of a special need relative visa where the nominator was the applicant's child. In considering the expression "other serious circumstances" the Full Court said at 54, [39-40]:
39 The definition of the expression "special need relative" contains several elements. It is convenient to analyse the definition as it applies to an Australian citizen (though it also applies to an Australian permanent resident or an eligible New Zealand citizen). The citizen must be usually resident in Australia. There must be another person who is a relative of the citizen. "Relative" is also defined in reg 1.03. The relative must be willing and able to provide substantial and continuing assistance to the citizen. The need for the assistance, as identified in par (a), must be permanent or long-term. "Long term" is not defined but it is probably used to signify a need which continues for years. The need must arise because either the citizen or "a member of his or her family unit" is affected in one of four ways. The first is that they are dead. Plainly this can only be a reference to the death of a member of the family unit of the citizen. The second is that the citizen or the member of the family unit is suffering from a disability and the third is that either the citizen or member is suffering from a prolonged illness.
40 The parties were asked to identify circumstances that might create the need for permanent or long term assistance that were not comprehended by the notions of "disability" or "prolonged illness". Counsel for the Minister identified four such circumstances namely depression which did not fall within any medical or clinical definition of that term (see Jun v Minister for Immigration & Multicultural Affairs [2000] FCA 867 at par 28), imprisonment (though accepting that this would probably have to be imprisonment of the member of the family unit), financial ruin or drug addiction. Even accepting, for present purposes, that none of these circumstances is either a "disability" (but see Marsden v HREOC & Coffs Harbour & District Ex-Servicemen & Women's Memorial Club Ltd [2000] FCA 1619) or a "prolonged illness", each exemplifies the disparate circumstances in which the need for long-term assistance might arise. Each is "serious" in the sense that it involves something having a substantial and negative effect on the person affecting their capacity to look after himself or herself or to look after another person. Another feature common to each is that they involve something which was out of the ordinary and perhaps could be said to be unexpected
A differently constituted Full Court considered the same regulation in Narayan v Minister for Immigration and Multicultural Affairs [2001] FCA 1745 and said at [38-40]:
38 Literally, and in schematic form, the definition of "special need relative" requires that the visa applicant be:
"willing and able to provide substantial and continuing assistance to the citizen or resident
if:
(a) the citizen or resident has a permanent or long-term need for assistance because of ... prolonged illness or other serious circumstances ...;
and
(b) the assistance cannot reasonably be obtained from [other sources of various kinds mentioned]"
39 The opening paragraph (a) of the definition are closely related. So much was accepted in Wu v Minister for Immigration & Multicultural Affairs (2000) 105 FCR 39, where the Full Court said (at [41]) of the definition of "special need relative" in reg 1.03:
"In our opinion the word `serious' is simply intended to reinforce the nature of the assistance that is central to the definition, namely assistance which is substantial and continuing in relation to a need for assistance which is permanent or long-term."
This passage suggests an interrelationship between the elements of the opening paragraph and those of par (a) of the definition.
40 We agree with the primary Judge's observation (at [39]) that the definition of "special need relative" is "framed a little awkwardly". Perhaps some of the awkwardness is removed if the opening paragraph and par (a) are read purposively and as a whole. Paragraph (a) describes the need which the citizen or resident must have. The opening paragraph describes the kind of assistance which the visa applicant must be able to provide in response. Although the relationship between the two paragraphs is not stated expressly, it is not surprising that that assistance which the visa applicant is willing and able to provide is required to be "continuing", since the need referred to in par (a) is "permanent or long-term". Similarly, since the cause of the permanent or long-term need must be "serious" circumstances as described in par (a), it seems likely that often such a need will be able to be met by nothing less than "substantial assistance".
The distinction which the applicant's submission sought to make was that Wu was a case concerning a child where "other serious circumstances" loomed at large. The Full Court looked specifically at circumstances that might create the need for permanent or long-term assistance that were not comprehended by the notions of "disability" or "prolonged illness". This was of significance in the case of a child where the child’s necessary dependence on an adult meant a condition less than a "disability" or "prolonged illness" might bring about "other serious circumstances".
There is not a distinction to be made relevant to this case. The way in which the regulation is to be interpreted and applied, as explained by the decisions of both Full Courts is not affected by the particular fact circumstances of each. The statements made which apply in this case are of general application.
In approaching the question of whether there was "disability, prolonged illness or other serious circumstances affecting the nominator" in the way it did, the tribunal was applying the regulation in the manner described in Wu and Narayan. The opening paragraph of the regulation containing the words "permanent or long-term need for assistance" describes the type of assistance which needs to be given. This is the approach the tribunal used.
There has been no error by the tribunal.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate: Sherryn Kwong
Date: 27th May 2004
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