Tenorio v Minister for Immigration and Multicultural Affairs
[2001] FCA 917
•16 JULY 2001
FEDERAL COURT OF AUSTRALIA
Tenorio v Minister for Immigration & Multicultural Affairs [2001] FCA 917
MIGRATION – application for Family (Residence) (Class AO) as a “special need relative” – where applicant’s father is citizen of Australia and suffers from prolonged illness – where applicant has six siblings who reside in Australia – where Migration Regulations 1994 defines “special need relative” as “a relative who is willing and able to provide substantial and continuing assistance …” – where Department of Immigration and Multicultural Affairs guidelines provide assessment criteria for “who is willing and able to provide substantial and continuing assistance” – whether Refugee Review Tribunal misapplied criteria by defining “substantial and continuing assistance” as “full time or 24 hour care”
WORDS & PHRASES – “substantial and continuing assistance”
Migration Act 1958 (Cth) s 476(a), (e), (g)
Migration Regulations 1994 (Cth) r 1.03
Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367 referred to
Department of Immigration and Multicultural Affairs Procedures Advice Manual Part 1, Division 1.2, Regulation 1.03, Interpretation – Special Needs Relative
PENELOPE TENORIO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 296 OF 2001
EMMETT J
16 JULY 2001
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 296 OF 2001
BETWEEN:
PENELOPE TENORIO
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
EMMETT J
DATE OF ORDER:
16 JULY 2001
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 296 OF 2001
BETWEEN:
PENELOPE TENORIO
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
EMMETT J
DATE:
16 JULY 2001
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant is a national of the Philippines who entered Australia on 4 February 1995 on a Visitor Subclass 673 visa that expired on 24 July 1995. At that time, the applicant was granted a Long Stay (Visitor) (Class TN) Subclass 686 visa valid until 4 February 1996. However, on 30 January 1996, she applied for Family (Residence) (Class AO) visa. On 12 April 1999, a delegate of the respondent, the Minister for Immigration & Multicultural Affairs (“the Minister”), made a decision to refuse to grant the visa for which application had been made. The applicant lodged an application for internal review by a review officer on 7 May 1999.
By reason of the operation of the Migration Legislation Amendment Act (No. 1) 1998, that application for review was deemed to be application for review by the Migration Review Tribunal (“the Tribunal”) with effect on 1 June 1999. On 26 February 2001, the Tribunal made a decision affirming the decision that the applicant was not entitled to the grant of a Family (Residence) (Class AO) visa.
The applicant then sought an order of review by this Court. An amended application for an order of review was filed without objection. The applicant claimed to be eligible for the visa that she applied for on the basis that she is a special need relative to her parents, Jovencio and Aida Ponce. The applicant’s mother has since died and the only relevant evidence before the Tribunal related to the circumstances of her father, who is an Australian citizen normally resident in Australia.
It is common ground that the only question that arises is whether the applicant is a special need relative, as that expression is defined in Regulation 1.03. Relevantly, the definition is as follows:
““special need relative”
in relation to an Australian citizen usually resident in Australia, … means a relative who is willing and able to provide substantial and continuing assistance to the citizen if:(a)the citizen … has a permanent or long-term need for assistance because of … prolonged illness or other serious circumstances affecting the citizen …; and
(b)the assistance cannot reasonably be obtained from:
(i)any other relative of the citizen …,
(ii)welfare, hospital, nursing or community services in Australia;”
The circumstances of the applicant and her parents changed between the time when the application for a visa was first lodged and the time of the hearing before the Tribunal. As I have said, the applicant’s mother died in that intervening period. At the hearing before the Tribunal, the applicant said that she and her father rented a house together in Leumeah. The applicant’s father pays the rent for the Leumeah house from his pension. They have resided there since February 2000, when the applicant’s sister and her family moved to Mount Annan.
Until they moved to Mount Annan, the applicant’s sister and her husband had accommodated the applicant’s father and mother. However, because the applicant’s sister and her husband were both working, they could not give the applicant’s parents the constant care and attention that they needed. The sister and her husband also had other priorities to attend to in the rearing of their own children and maintenance of their home, which prevented them from providing due care to the applicant’s parents. The applicant has six siblings who are Australian citizens. Statements were provided by the other siblings to explain why they were unable to provide the assistance and support required by their parents. They cited primarily work and family commitments.
The applicant told the Tribunal that she works as a clerk at Parramatta five days a week from 8.30 am to 5.00 pm. She leaves the house by 7.30 am and is home by 5.50 pm. Since July 2000, she has been employed on a permanent basis. She leaves her father on his own during the day, with a lunch that she has prepared for him. Before she leaves she helps him get up if he needs assistance and she helps him take his medication. She said that he takes a lot of medication, but she was not sure what it was. She said that he took it twice a day, in the morning and in the evening. She said that she helps him bathe at times also.
The Tribunal formulated its task as follows:
“33. …The issue for the Tribunal to determine is whether the visa applicant meets the definition of “special need relative” as it is set out in regulation 1.03.
34. This requires the Tribunal to consider whether the nominator, the visa applicant’s elderly father, suffers from a permanent or long term need for assistance because of death, disability, prolonged illness or other serious circumstances. If the Tribunal determines that the nominator has a permanent or long-term need for assistance, it must then consider whether the visa applicant is able to provide the assistance which must be substantial and continuing, and further, whether that assistance cannot reasonably be obtained from any other relative who is an Australian citizen or permanent resident, or from welfare, hospital, nursing or community services in Australia.
35. Considering the various elements of this definition, the Tribunal must ask: does the nominator have a need for assistance because of a disability, prolonged illness or other serious circumstances? If so, is the need for assistance permanent or long term? What is the nature of the assistance required? Is the visa applicant able to provide that assistance? Is it substantial and continuing? Can that assistance be obtained elsewhere, in particular from other family members or community services in Australia?”
The Tribunal accepted the evidence before it concerning the applicant’s father’s poor state of health, and in particular his heart and renal conditions. The Tribunal was satisfied that the father has a long term need for assistance, because of prolonged illness. It found that he was not able to live on his own “without considerable assistance”, that he is old and infirm and needs personal and household care as he is not able to fully take care of himself and his house, although he is capable of dressing and feeding himself most of the time. The Tribunal also made the observation that family members had given evidence that the applicant's father requires full time or twenty-four hour care.
The Tribunal went on to make findings in the following terms:
“38. … At present the nominator lives with the visa applicant in a rented house. She takes care of the house, prepares the meals and assists the nominator with his personal needs when she is there. She helps him to take his medicine twice a day, but was not familiar with the medicine or what they (sic) were for. She has had no special training in nursing sick people. Moreover, the visa applicant is working full time and is absent from the house for long hours five days a week. The nominator is either at home on his own during that time or is collected by Community Services and taken to Liverpool Hospital for dialysis. The treatment takes up most of the day. The visa applicant is not able to drive so she could not take the nominator to the hospital or to see the doctor even if she were at home during the day. The nominator’s major need for transport to the dialysis treatment is met by Community Services. In those circumstances, it could not be said that the visa applicant is supplying the full time care that the nominator is said to require.”
That last observation clearly refers back to the evidence of family members that the applicant's father requires full time or twenty-four hour care. That observation is at the heart of the applicant's complaint in this Court.
The amended application refers to ss 476(1)(a) and 476(1)(e) of the Migration Act 1958 (Cth) (“the Migration Act”), giving the following particulars:
“The Tribunal accepted … that the nominator was old and infirm and had a long term need for assistance, but not round the clock assistance, as asserted by his family. Nevertheless, the Tribunal found that because the applicant could not provide 24 hour assistance, she did not meet that criterion, whereas the test established by the policy was no more than willingness and ability to provide substantial and continuing assistance.”
The applicant’s complaint is that the Tribunal did not characterise the assistance that the applicant could give to her father as substantial because she could not give full time care. The applicant relied on several authorities relating to the interpretation of the word, “substantial”. Specifically, reference was made to the observations made by Deane J (as he then was) in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367 at 382, to the effect that the word “substantial” when used in Part IV of the Trade Practices Act signifies a relative use regardless of whether it means large or weighty on the one hand, or real or of substance as distinct from ephemeral, or nominal, on the other.
Insofar as reliance is placed on s 476(1)(e) of the Migration Act, that reliance depends upon the second limb of that provision. Section 476(1)(e) provides as a ground of review that “the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law, or an incorrect application of the law to the facts as found by the person who made the decision”. It was not suggested that the Tribunal approached its task on the basis that “substantial” when used in the definition of special need relative, was interpreted by the Tribunal as invariably meaning twenty-four hour assistance. Rather, reliance was placed on the second limb, namely, that the error of law involved an incorrect application of the law to the facts as found by the Tribunal.
In order to consider that contention, it is necessary to say something further about the reasons of the Tribunal. In paragraph 37 of its reasons, the Tribunal indicated that it had regard to certain departmental guidelines in considering whether the applicant was willing and able to provide substantial continuing assistance. The guidelines provide that the ability to provide substantial and continuing assistance should be assessed, having regard to a number of factors, all of which are set out in the Tribunal’s reasons. They include the following:
“· the special need relative’s general capacity to provide the assistance needed;
· the nature of the assistance needed …;
·the special need relative's current understanding of the nature and duration of the assistance required;
·…whether the special need relative fully understands the exact nature of th[e] disability/illness;
· the exact nature and degree of care that will be required …
·…what efforts, if any, the special need relative has made to learn for about the above matters;
·how the special need relative … proposes to support herself financially …
·the degree of support to the assistance proposals shown by accompanying family members …
·whether the special need relative has had any training, employment experience, or personal factors that may help in providing assistance.”
The guidelines finish with the following observation:
“The level of assistance to be provided by the special need relative is that which is required to meet the need of the Australian relative. When the definition is read as a whole, the need for assistance is clearly to provide help that is substantial or continuing (or in other words, considerable and lasting).”
The criticism made of the Tribunal’s decision is that it is implicit, or perhaps explicit, in the reasons that the Tribunal concluded that, because the applicant was unable to provide twenty-four hour care for her father, she was unable to provide substantial and continuing assistance. I do not consider that that is a fair reading of the reasons. The Tribunal set out the guidelines and its findings in paragraph 38, to which I have referred above, are made in the light of those guidelines.
The Tribunal’s finding that the applicant’s father “is not able to live without considerable assistance” (see paragraph [9] above) refers to the interpretation given by the guidelines to the definition of special need relative. In effect, the guidelines equate “considerable” with “substantial”. The ultimate finding by the Tribunal was that it was not satisfied that the applicant is able to provide substantial and continuing assistance to her father, as required by the definition of special need relative.
I do not regard the reasons as stating a conclusion that the reason why the applicant is unable to provide substantial assistance is that she is unable to provide full time or twenty-four hour assistance. Both references by the Tribunal to “full time care” are made by way of aside. There is no express finding by the Tribunal that the applicant’s father requires full time or twenty-four hour care. Rather, the Tribunal records that the family members assert that he requires twenty-four hour care and then finds that, if that is so, the applicant is not, in fact, providing that care.
In substance, however, the Tribunal, in my view, made a finding that, having regard to the factors set out in the guidelines, the Tribunal concluded that the applicant was not capable of giving assistance to her father that was considerable or substantial, having regard to the nature of his needs. It is significant that the Tribunal observed that the applicant has no special training in nursing sick people. She was not familiar with the medicines that her father was taking, or what they were for. She is unable to drive and therefore is unable to take her father to hospital for the essential treatment that he requires. She would not even be able to take him to see the doctor if she were at home during the day. I do not consider that the reasons of the Tribunal disclose an error of law within s 476(1)(e) of the Migration Act.
Reference was also made to s 476(1)(a), which provides as a ground of review:
“that procedures that were required by this Act or the regulations to be observed in connection with the making of a decision were not observed;”
No procedures were specified in argument. I am not persuaded that this ground of review is applicable.
Finally, the amended application also refers to s 476(1)(g) of the Act, which provides a ground of review “that there is no evidence or other material to justify the making of the decision”. The particulars furnished in the amended application are as follows:
“The Tribunal found that the Applicant’s family, if her application were to succeed, would join her and create an encumbrance placing her in the same position as other siblings who through family commitments were not able to care for the nominator. This finding was without foundation and flew in the face of the compelling evidence that the Applicant’s nuclear family had endured years of separation in order to facilitate that Applicant taking care of her parents.”
Paragraph 39 of the reasons of the Tribunal is as follows:
“In addition, the visa applicant is married with three children of her own. She gave evidence that she is required to work to support the family in the Philippines, as her husband had lost hist job. Her family is currently in the Philippines, but would apply to join her if the visa application is successful. This would then place the visa applicant in a position similar to that of her married siblings, who have work and family commitments that prevent them from looking after their father. It is difficult to see how the visa applicant's position will differ, so that she will be able to provide the care that he needs.”
I do not consider that the requirements of s 476(1)(g) have been satisfied. The applicant herself gave evidence that her family would join her if her visa application is successful. Further, there was no evidence to prove that that fact did not exist, as is required by s 476(4)(b).
The Minister contended that the finding made in paragraph 39 is a complete answer to the complaint made by the applicant. The requirement in the definition of special leave relative is that the applicant be willing and able to provide substantial and continuing assistance. It may be that the reference to the fact that the applicant's family would be expected to come to Australia if she were granted a visa is intended to indicate that the Tribunal was not satisfied that the assistance that the applicant is presently providing would be continuing assistance. Paragraph 39 certainly indicates that upon the arrival of her family she would be in a position similar to that of her married siblings, all of whom have work and family commitments that prevent them from looking after their father. In any event, I read paragraph 39 as confirming the finding that the degree of assistance that the applicant is providing to her father is not substantial.
I consider that a fair reading of the reasons leads to the conclusion that the Tribunal made a finding of fact that the applicant is not able to provide substantial and continuing assistance needed by her father because of his prolonged illness. In those circumstances the grounds of review have not been made out. Accordingly, in my opinion, the application should be dismissed.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate:
Dated: 23 July 2001
Solicitor for the Applicant: Neuman & Associates Counsel for the Respondent: Mr D Jordan Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 16 July 2001 Date of Judgment: 16 July 2001
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