VDAC v Minister for Immigration - [2004] FMCA 545

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VDAC v MINISTER FOR IMMIGRATION

[2004] FMCA 545

MIGRATION – Review of Migration Review Tribunal's decision affirming delegate's refusal of a Visa – whether applicant a "special need relative" – where Tribunal's decision is illogical and possibly perverse – whether decision is a bona fide attempt by the Tribunal to exercise its power – where no evidence to support conclusions reached by Tribunal – whether Tribunal has failed to act judicially.

Migration Act 1958
Federal Magistrates Court Rules 2001

Hussein v MlMA [1999] FCA 1621
NAAV v MIMIA [2002] FCAFC 228
R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134/2002 [2003] HCA 1
MIMA v Anthonypillai [2001] FCA 274
Bruce v Cole (1998) NSWLR 163
SBBS v Minister for Immigration (2002) FCAFC 361
MIMIA v SBAN (2002) FCAFC 431
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
MIMIA v Rajamanikkam (2002) HCA 32
Narayan v MIMA (2001) FCA 789
Wu v MIMA (2000) 182 ALR 548
Succary v MIMA (1997) 48 ALD 616
Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515
Azzi v MIMIA (2002) FCA 24

Applicant:

VDAC OF 2002

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 561 of 2002

Delivered on:

3 September 2004

Delivered at:

Melbourne

Hearing date:

4 November 2002

Judgment of:

Walters FM

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

Not Represented

Counsel for the Respondent:

Mr Horan

Solicitors for the Respondent:

Clayton Utz

ORDERS

The Court declares that the decision of the Migration Review Tribunal made on 11 April 2002 is invalid and of no effect.
A writ of certiorari shall issue, quashing the decision of the Migration Review Tribunal.
A writ of mandamus shall issue, requiring the Migration Review Tribunal to redetermine the matter according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 561 of 2002

VDAC OF 2002

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a national of Macedonia. She was born in July 1932.
The applicant and her husband (who was born in February 1934) arrived in Australia in April 1996. They were then the holders of Long Stay (Visitor) (Class TN) visas — which were valid until 27 October 1996.
In November 1996, the applicant and her husband were granted Citizens of Former Yugoslavia (Temporary) (Class TC) visas, which were valid until the end of July 1997.
On 31 July 1997, the applicant and her husband lodged an application for a Family (Residence) (Class AO) visa. The applicant was nominated as an aged dependant relative by her son ("S") – who was born on 13 April 1964 and is an Australian citizen.
I accept the following statement of background facts contained in paragraphs 4 to 10 (inclusive) of the written submissions prepared by Mr Horan on behalf of the respondent:
4.      On 18 June 1998, the Department wrote to the applicant, pointing out that she could not obtain a visa as an 'aged dependent relative' because she was married [CB43]. On 17 July 1998, the applicant submitted statutory declarations by S and his cousin in which it was claimed that S had emotional difficulties arising from his failed marriage, and that he depended on the applicant for support.
5.      On 29 July 1998, the Department wrote to the applicant, requesting the provision of S's medical history from both his general practitioner and his treating psychiatrist, together with details of any assistance provided to S in relation to his emotional problems [CB49]. No information had been provided to the Department at the time of the delegate's decision [CB57].
6.      On 7 June 2001, a delegate of the respondent refused to grant a visa [CB54-61]. The delegate was not satisfied that S has a permanent or long- term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting him or a member of his family unit. The delegate was therefore not satisfied that the applicant was a 'special need relative' of S for the purposes of the Regulations. The delegate also assessed the applicant against the other categories of sub-class 806 (remaining relative, aged dependent relative and orphan relative) and the other sub-classes of Class AO.
7.      On 2 July 2001, the applicant applied to the Migration Review Tribunal ('the Tribunal') for review of the delegate's decision. In this application, the applicant stated that she was currently organising a medical report on S's condition [CB65].
8.      On 7 November 2001, the Tribunal wrote to the applicant requesting a copy of the medical report for S [CB69-70]. On 29 November 2001, the Tribunal received a psychiatric report on S dated 10 October 2001 [CB71-72].
9.      The Tribunal conducted a hearing on 13 March 2002, at which the applicant, S and S's cousin gave evidence.
10.   On 11 Apri12002, the Tribunal affirmed the delegate's decision.

The Tribunal's Decision

Once again, I accept the following summary of the Tribunal's decision as contained in paragraphs 17 to 19 of Mr Horan's written submissions:
17.The Tribunal found that the applicant did not satisfy the definition of 'aged dependent relative', because she was married and had at all material times been living with her husband [CB87, para.23].
18.The Tribunal was not satisfied that the applicant was a 'special need relative' within the meaning of reg. l.03 at the time of the application [CB89-90, para.32].
(a)Referring to Hussein v MlMA [1999] FCA 1621, the Tribunal noted that the mere presence of a relative does not amount to providing assistance, and that a relative does not render assistance in relation to a nominator's depression simply because that depression may return if the relative returns to another country [CB88, para.28]. However, the Tribunal acknowledged that the definition of 'special need relative' was capable of applying to a person whose principal need is emotional support [CB88, para.29].
(b)The Tribunal took into account the medical opinion from S's psychiatrist that S had symptoms of major depression, but noted that this medical report was made in October 2001, and did not indicate that S had such a mental condition when the visa application was lodged. There was no medical evidence concerning two suicide attempts which S claimed to have occurred in 1990 and in June 1996 respectively. Despite requests for medical evidence as far back as July 1998, a medical report was not provided until November 2001. [CB89, para.31].
(c)The Tribunal concluded that there was no evidence that S's needs at the time of application went beyond those of companionship of a relative and general domestic assistance. Accordingly, the Tribunal found that, at the time of application, S did not have a permanent or long-term need for assistance because of a prolonged illness or other serious circumstances affecting him or a member of his family unit.
19.Because the applicant was not an aged dependent relative, an orphan relative, a remaining relative or a special need relative at the time of the application, she did not satisfy clause 806.213 of Schedule 2 of the Regulations.

Grounds for Review

The only ground appearing in the application for review is as follows:
The Tribunal Member failed to accept genuine information and documents in support of my application.
Mr Horan submitted that the ground referred to above does not specify the manner in which the Tribunal allegedly erred. It was also submitted on behalf of the respondent that, due to the manner in which it had been drafted, it was not possible to respond to the application with particularity. In my view, those submissions have considerable merit — but they do not prevent this Court from reviewing the Tribunal's decision.
During the course of the hearing before me, I invited the applicant (through her interpreter) to put to me anything that might assist in identifying a legal — or, relevantly, a jurisdictional — error. Apart from reiterating her dispute with certain findings of fact made with the Tribunal, she was unable to expand upon the ground contained in the application. That is not surprising, of course, given the fact that the applicant was not legally represented.
I gave the applicant a further opportunity to address me after Mr Horan had summarised his submissions. The applicant's interpreter was present at all relevant times, and everything that was said by either the Bench or Counsel was interpreted for the applicant. Similarly, everything that she had to say was duly interpreted.

The Law

Pursuant to s.483A of the Migration Act, this Court has the same jurisdiction as the Federal Court in relation to a matter rising under the Act. Under s.475A, it has jurisdiction in relation to a “privative clause decision” that is a decision made on a review by the Tribunal. “Privative clause decision” is defined in s.474(2) and (3) of the Act. Section 474(1) of the Act limits review by the Court of privative clause decisions as follows:
A privative clause decision:
a)is final and conclusive;
b)must not be challenged, appealed against, reviewed, quashed or called into question in any Court; and
c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court on any account.
In NAAV v MIMIA [2002] FCAFC 228, the Full Court of the Federal Court held that s.474 must be construed in the same manner as the kind of privative clause considered in the decision R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598. In other words, there were said to be three conditions which, if met, would ordinarily mean that a decision the subject of a provision such as s.474 would be valid. These are:
a)the decision is a bona fide attempt by the decision-maker to exercise its power;
b)the decision relates to the subject matter of the legislation; and
c)the decision is reasonably capable of reference to the power conferred on the decision-maker.
There was also broad agreement in NAAV that the purported exercise of power must not be one that contravenes an inviolable limitation on the operation of the Act.
In Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, the High Court held that as a matter of construction the expression ‘decision[s]… made under this Act’ in s.474(2) “must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act.”[1] If there has been a jurisdictional error, then the decision cannot properly be described as a decision made under this Act — and is thus not a privative clause decision as defined in s.474(2) and (3). Further, a decision flawed due to failure to comply with the principles of procedural fairness was also said not to be a privative clause decision within s.474(2).
[1] at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ, and also see [19] per Gleeson CJ and [163] per Callinan J
If there is no jurisdictional error affecting the Tribunal's decision, then the decision would be a privative clause decision and protected by s.474(1) — unless it could be shown that one of the Hickman provisos had not been met.
In Plaintiff S157/2002, the High Court confined itself to a general statement of principle in relation to jurisdictional error, and the particular issue of jurisdictional error by reason of a denial of procedural fairness as asserted by the applicant in that case. The precise scope of the notion of jurisdictional error in this context, and the determination of which provisions in the Migration Act constitute inviolable limitations or restraints, may raise some complex issues[2] ¾ but there is no need to consider such issues in the proceedings before the Court.
[2] see, for example, Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134/2002 [2003] HCA 1 — in relation to s.65 of the Migration Act

Discussion

Notwithstanding the summaries referred to above, it is important that the history of this matter be revisited at this stage.
On 31 July 1997, the applicant lodged an application for a Family (Residence) (Class AO) visa, (Subclass 806) — on the basis that she was an aged dependent relative of her son, S (who is an Australian citizen).
At the time that the application was lodged in July 1997, the applicant did not suggest (in the application) that she was a special need relative.
The Department wrote to the applicant on 18 June 1998. The letter reads (in part):
It appears that when you lodged your application you had not aware (sic) that applicants under this category can only be single people. As you are married this application would have to be refused. If you have made an error on applying you and your husband may wish to withdraw your application in writing and request a refund on the basis that you were not advised correctly prior to lodging your application.
The consequences of refusal (of the application) were explained to the applicant.
On 17 July 1998 the applicant’s migration agent wrote to the Department enclosing certain documents (CB 44). The documents included statements by S and by his cousin. (CB 45 and 47). In my opinion, it is clear from the two statements that the applicant was asserting – at that stage and thereafter – that she was a special need relative.
Relevant portions of the two statements are as follows:
·Cousin's statement (emphasis added)
1.I am an Australian citizen and a cousin of the sponsor who has special needs to his parents.
2.S married in Macedonia with three children and had to divorce in 1993. Since then, he had difficulty to communicate with anyone except his parents.
3.After dissolution of marriage, S. lost the encouragement of life due to the frustration of marriage, and had numerous attempts to commit suicide. He isolated himself at home sometimes for one week and resulted in our relatives worries (sic). As my experience with S, he has been a fragile man and lost confidence of life.
4.I regularly visited him with a purpose to give him a life hope, unfortunately, he remained unchangeable because of his marriage frustration. Sometimes, he refused to see us even though he understood that the purpose of my visit was for an assistance, he denied he needed assistance although he absolutely needed it. The reason for me to help him out of such emotional difficulties was authorised by his mother, his parent has kept so much worries (sic).
5.I could recall that one day what he said to me when I complained about his uncooperative attitude to our kindness, he teared (sic) and told the truth that the only person that he needs is his parent, no one else. Because he needs permanent emotional security.
6.That his neighbours had tried to give assistance emotionally and some of his relatives who residing in Melbourne tried their best to give him support too. However, what he wanted was not just console or sympathyetics (sic), but a long term purely emotional link and physically tangible.
· S's statement (emphasis added)
1.I married in Macedonia with three children and had to divorce in 1993. Since then, I had difficulty to communicate with anyone except my parent. My parent is the only person who could give me love and emotional support.
2.After dissolution of marriage, I lost the encouragement of life due to the frustration of marriage, and had numerous attempts to commit suicide. I isolated myself at home sometimes for one week. My neighbour had tried to give me assistance emotionally and some of my relatives who resided in Melbourne tried their best to give me support too. However, what I wanted was not just console or sympathyetics (sic), but long term purely emotional link and the physically tangible.
3.Sometimes, I thought that it was unfair for my parent to take such responsibility to me. I regularly had self blaming (sic), however, as my mother said to me that we were mutually reliable in this world due to our blood link and devoted love to each other. Suddenly, I realised that I am still important to my parent to even though my emotional reliance on them is more than they do on me (sic). In that case, I become more positive for life.
On 29 July 1998, the Department wrote to the applicant in the following terms (see CB 49):
I refer to your migration agent's letter of 17 July 1998.
In this letter you have asked that your claims be considered against the criteria of a Family (Residence) Class visa (Subclass 806 -- Family (Special Need Relative)). You have indicated that your son needs you as a result of his emotional problems including numerous suicide attempts.
Before your application for permanent residence can be considered any further, I will require that your son provide a copy of his entire medical history from his general practitioner outlining all of his emotional and other problems and the treatment which has been prescribed to your son, including all medication. I will also require that your son provide a copy of his entire medical history from his treating psychiatrist and that your son also provide any evidence of assistance provided to him by such persons as a social worker or any other agency or body which has assisted your son over the years which he has suffered from his emotional problems.
Please provide the above information within 28 days of the date of this letter.
It would appear that the applicant did not respond to this letter, and that no details of S's medical history were provided to the Department.
On 30 May 2001, the applicant's husband attended the Department's office in Melbourne. A file note was prepared by a departmental officer (within the "Special Need Relative Unit") (CB 53). The note is as follows:
(The applicant’s husband) attended the 25th floor DIMA office today. He asked why he was waiting so long before a decision. I explained that we hope to make a decision on his application before Christmas, and if he was requiring urgent processing, he should provide a written statement to explain why.
I asked him if he and his spouse were working. He said that they were both working. I asked him who was looking after his son. He stated that his son was also working, and they looked after him at night.
On 7 June 2001, the delegate wrote to the applicant to advise that her application had been refused (CB 54). The decision record (CB 56 to 61) reveals that the delegate was not satisfied that the applicant is a special need relative in respect of S. The decision record also clearly reveals that the applicant was applying for visa on the basis that she was a "special need relative".[3]
[3] See CB57
The delegate made reference to the Department's letter dated 29 July 1998 seeking further medical evidence in relation to S’s psychological and emotional condition, and observed that "no information has been provided to date". (CB 57)
On 2 July 2001, the applicant filed her application for review to the Tribunal. Once again, the application to the Tribunal makes it clear that the applicant was applying for a visa on the basis that she was a special need relative. (CB 65). In the application, the applicant stated:
My son is very ill. Without my support, and that of my husband, he will be unable to work, and be a cost to the government.
We are currently organising a medical report on his condition.
By letter dated 20 July 2001, the applicant's solicitors (Nevett Ford) advised the Department that they were no longer acting for the applicant.
By letter dated 7 November 2001, the Tribunal invited the applicant to provide the following additional information:
You are requested to provide the medical report for your son. This medical report was mentioned in the application for review lodged by you onto July 2001.

No other information was requested in the letter from the tribunal. No reference was made to the need to provide information regarding S's medical condition at the time of the visa application — or at any other time.
On 29 November 2001, the Department received a psychiatric report prepared by Dr M — who is a consultant psychiatrist. The report relates to S and is dated 10 October 2001 (CB 71).
The report is in the following terms:
This report is prepared by having an interview with S alone, and with his parents using an Albanian interpreter. S was initially referred to me by his general practitioner... for assessment and treatment of his medical condition. S is a 37-year-old single farm worker living with his parents. S complained of feeling unwell, feeling nervous, has difficulty with sleeping with interrupted sleep, suicidal ideas, low motivation, occasional palpitations and butterflies for the last three years and these symptoms have become worse over the last few months. S is the youngest of a family of five. He came to Australia in 1987 and has been married twice, both his marriages failed, the last one he was separated from the second wife in 1996. He has been living with his parents for the last few years and the parents are his main emotional and social support.
In terms of premorbid personality, S has dependent and obsessional traits. He does not abuse alcohol or any drugs. He does not have many close friends. He has never been in trouble with the law.
S was born in Macedonia; he has never lived alone in Macedonia and since coming to Australia he has lived alone only for a period of about six months. He finds it very hard to be living alone without any family and social support.
On mental state examination, S appeared as well built, middle-aged man who was tearful, anxious, depressed in his affect. His thought stream and form were normal. He did not have any guilt feelings. He did not have any serious suicidal ideation.
He does not have any abnormal experiences. His cognition was within normal limits. He has limited insight.
In summary, S has symptoms of major depression and he needs ongoing treatment with antidepressants. The parents are the only form of support he has in Australia. It is important for him to have the support of his parents in order to maintain reasonable mental health.
The hearing before the Tribunal took place on 13 March 2002. The evidence given that the hearing is summarised in paragraphs 16 to 22 of the Tribunal's Reasons (CB 85-6).

Analysis of the Tribunal's Findings

In paragraph 23 of its Reasons, the Tribunal concludes that the applicant "... does not satisfy the definition of aged dependent relative". It is difficult to understand, however, why the Tribunal made reference to this category. The fact of the matter is that the applicant had long since abandoned her application for a visa within this category. The letter from the Department dated 29 July 1998 makes that abundantly clear.[4]
[4] See CB 49
The discussion contained in paragraphs 24 to 27 of the Tribunal's Reasons is problematical. Whilst I have no discomfort with the extract from Narayan v MIMA (2001) FCA 1745 appearing in paragraph 27 of the Tribunal's Reasons, I prefer Allsop J's elucidation of the line of authority commencing with Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 in Azzi v MIMIA (2002) FCA 24:
86The decision of Burchett J in Fuduche for some time stood (see Davies J in Chen v Minister for Immigration and Ethnic Affairs (1994) 51 FCR 322; Foster J in Moskal v Minister for Immigration, Local Government and Ethnic Affairs (1994) 125 ALR 307; and see Ryan J in Vo'ifalelahi v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR 52) for the proposition advanced by his Honour that the definition of "special need relative" should, as part of the regulatory scheme of such visas, be given a broad and generous construction "in favour of those Australian citizens and residents that it was intended to benefit and in furtherance of the good name of Australia that its humanity maintains". This informed his Honour's approach to the construction of "the assistance" in the definition. The broad approach in Fuduche was, however, rejected by the Full Court in MIEA v Teo (1995) 57 FCA 194; see generally Tuamoheloa v Minister for Immigration and Multicultural Affairs [1998] FCA 1406 (Heerey J); Hussein v Minister for Immigration and Multicultural Affairs [1999] FCA 1621 (Emmett J); Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 392 (Lehane J)); also Huang v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 95 (Full Court), cf Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39 (Full Court). See also Minister for Immigration & Multicultural Affairs v Chan [2000] FCA 737 (Kenny J), Jun v Minister for Immigration and Multicultural Affairs [2000] FCA 867 (Mansfield J) and Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277 (French J); cf Narayan v Minister for Immigration and Multicultural Affairs [2001] FCA 789 (Sackville J); [2001] FCA 1745 (Full Court).
87However, there remains a degree of disagreement as to Burchett J's view that the assistance with which the Regulation is concerned is the assistance that the relative is able to provide, as distinct from the assistance required by the person in need. In Chan, supra, for example, Kenny J set aside the Tribunal's decision, holding (at [17], citing Teo) that the Tribunal had erred in treating the particular assistance that the relative could there provide as the assistance with which Reg 1.03 was concerned. On the other hand, Sackville J in Narayan, supra, at [38]-[40] while recognising the rejection in Teo of Burchett J's "benevolent" approach to construction, found no reason to doubt Burchett J's observations about the definition of `special need relative'. The Full Court in Narayan, supra, at [40] did not, it seems to me, direct itself specifically to the resolution of this issue.
88… I think that the structure and sense of (Regulation 1.03) indicates that the relevant assistance in para (b) of the definition is not the particular assistance being provided or capable of being provided by the applicant, but the assistance found to be required pursuant to the sorts of enquiries dealt with in para (a). The issue is the nominator's needs and how they might reasonably be met (Su v Minister for Immigration & Multicultural Affairs [2001] FCA 1409, [33]; Jun, supra, [32]). The definition is informed by the special need of the nominator, not simply the care that an applicant is able to provide, which may well exceed the objective needs of the nominator. The Tribunal must make a finding in relation to whether the applicant is able to provide substantial and continuing assistance towards a permanent or long-term need for assistance resulting from the prescribed circumstances and whether that assistance - ie the assistance found to be necessary - cannot be reasonably obtained from the other categories of sources prescribed.
At the commencement on paragraph 28 of the Tribunal's Reasons, there appears the following comment:
The mere presence of a person does not amount to providing assistance. Nor can it be said that a person would render assistance in relation to a circumstance, if the circumstance might return should the relative return to another country.
In my opinion, the two sentences quoted in the preceding paragraph are close to incomprehensible. They certainly do not sit comfortably with the following statement from paragraph 29 of the Tribunal's Reasons:
While it would appear that the definition of a "special need relative" is applicable to a person who's principal need is "emotional support", it is open to the Tribunal to make an objective assessment of the emotional support that an applicant proposes to provide; Narayan v MIMA (2001) FCA 789 and Succary v MIMA (1997) 48 ALD 616.
In Wu v MIMA (2000) 182 ALR 548, the Full Court held that the definition of "special need relative" can comprehend a situation where the citizen is a young child in need of substantial and continuing assistance from the relative and the need is a long term one. In paragraph 38 of the decision, their Honour's said:
… The definition (of "special need relative") is intended to identify, as a criterion or an element of a criterion, a class of person whom might remain in Australia to tend to the needs of a citizen who is unable to care for himself or herself for a lengthy period. It is… not self evident that a child of tender years was intended to be excluded from the group who are unable to care for themselves. A child's needs are, in many respects, no different from those of a very elderly person or a seriously ill person. Their survival can be dependant on the support and attention of others. The argument that "serious circumstances" cannot "reflect merely the tender age of a person" rather misses the point. The age, whether of a very young or very old person, would rarely be the sole relevant circumstance. But age can be a factor which, along with other circumstances, adds up to special circumstances.
As to the meaning of "… or other serious circumstances…" appearing in paragraph (a) of the definition of "special need relative", the Full Court in Wu said:[5]
However, there is nothing about the expression “other serious circumstances'’ or its immediate statutory context which suggests that a necessary feature of the circumstances is that they be out of the ordinary or unexpected. 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. That is, the circumstance is sufficiently serious that, in relation to a citizen, it would require assistance of the same sort that would be required if the citizen was suffering from a disability or prolonged illness. In our opinion, if a citizen or a member of the citizen’s family unit is in circumstances which create a need for substantial and continuing assistance of the citizen and the circumstances do not arise because of the death of a member of the family unit or the disability or prolonged illness of either the citizen or the member of the family unit then those circumstances are intended to be comprehended by the expression “other serious circumstances'’. There is no reason in logic or of policy that we can discern which might explain that the definition was intended to be enlivened in every circumstance where the requisite care of a citizen is required except young childhood and perhaps old age. We say perhaps old age because the long-term or permanent need for substantial and continuing assistance of an elderly person ordinarily arises through a disability or illness associated with old age. (Emphasis added)
[5] See paragraph 41.
Having suggested (in the passage quoted in paragraph 39 above) that it is "open to the Tribunal to make an objective assessment of the emotional support that an applicant proposes to provide", the Tribunal then ignored the question that it appears to have posed itself, and proceeded to consider whether S had a permanent or long term need for assistance because of death, disability, prolonged illness or other serious circumstances. Quite what the Tribunal's findings are in relation to the requirements posed by the definition of special need relative is almost impossible to ascertain from its Reasons.
In paragraph 32 of its Reasons, the Tribunal said:
In any event, there is no medical evidence to support S's contention that, at the time when the application was lodged in July 1997, he had a permanent or long term need for assistance because of a prolonged illness or other serious circumstance affecting him personally. There is accordingly no evidence that S's needs at that time went beyond those of companionship of a relative and a general domestic assistance. Applying Hussein and policy, the Tribunal finds that at the time of the application S did not have a permanent or long term need for assistance because of prolonged illness or other serious circumstances affecting him personally (emphasis added).
"Hussein" refers to the decision of Emmett J in Hussein v MIMA (1999) FCA 1621.
It is apparent from the above that the Tribunal has not relied upon "Hussein and policy" "… merely to reinforce the point that the fact that an applicant is a close and loving member of the nominator's family does not necessarily mean that the applicant provides 'substantial and continuing assistance' of the relevant kind to the nominator".[6] The Tribunal was concerned with S's need, and not the applicant's willingness or ability to provide appropriate assistance to satisfy that need.
[6] Cf Narayan v MIMA (2001) FCA 789 at para 46.
The facts in Hussein were very different from the facts in the case before the Tribunal. Hussein dealt with a widow who had sent her teenage son to Australia after the death of his father. The nominator in Hussein was, in effect, a schoolboy.
Emmett J in Hussein was dealing with a separation of a child from his parent. His Honour described Hussein as an "ordinary healthy son".
S is not a child. His need for the applicant's assistance is not "… the normal consequence that would ordinarily follow from the separation of parent and a child".[7]
[7] CF Hussein at para 18.
In my opinion, the Tribunal's reliance upon Hussein was inappropriate. It served to distract the Tribunal from focussing upon questions that were properly before it.
The Tribunal's reliance upon "policy" — as set out in PAM3 — is also inappropriate. Even if S's need for assistance from the applicant amounts to no more than a need for her emotional support, PAM3 states that "… It is policy that, in the absence of other extenuating circumstances, none of the following on their own constitutes a serious circumstance, a permanent or long term need or requires substantial and continuing assistance…" (emphasis added). In that regard, I have discussed the relevance of Dr M's evidence (and the evidence contained in the statutory declaration prepared by S and his cousin) elsewhere in these Reasons.
I now return to the passage from paragraph 28 of the Tribunal's Reasons quoted in paragraph 38 above.
It is clear that the evidence before the Tribunal was to the effect that the applicant was indeed providing assistance to S. In paragraph 16 of the Reasons, the Tribunal records that the applicant said that "... neither she nor her husband worked, and she prepared food for S, did his washing, and cheered him up when he felt depressed and angry." In paragraph 17, the Tribunal records that the applicant stated that "... she continues to look after S because he is on his own". In paragraph 21, the Tribunal wrote that S stated "... that he invited his parents to visit him in Australia so that they could look after him because he was ill.... at the time of the application he needed help with cooking and washing and generally being looked after." In paragraph 22, the Tribunal records that S’s cousin told the tribunal that "... S. needs to have someone to look after him, otherwise he is capable of harming himself".
To the extent that emotional assistance is considered relevant, the evidence contained in the statements referred to in paragraph 23 above, and in Dr M's report, makes it abundantly clear that S is in need of his mother's emotional support and assistance (even if someone else could provide him with general domestic assistance).
As I have stated, the Tribunal recognised (in paragraph 29 of its Reasons) that "... while it would appear that the definition of a special need relative is applicable to a person whose principal need is 'emotional support', it is open to the Tribunal to make an objective assessment of the emotional support that an applicant proposes to provide".
In paragraph 30, the Tribunal refers to PAM 3, which "provides guidance on the factors to be considered when assessing the requirements of 'special need relative'". After reproducing PAM 3, the Tribunal records the following (see paragraph 31):
(S) has claimed that he has a permanent or long-term need for the emotional and psychological support of the visa applicant, as well as assistance with such domestic tasks as cooking, cleaning and washing, because of prolonged illness or other serious circumstances. The Tribunal draws no adverse inference from the fact that the visa applicant did not apply for consideration as a special need relative. She is entitled to be considered under that category in any event.
The fact of the matter is, however, that the applicant did apply for consideration as a special need relative. That much is clear from the correspondence already referred to in these reasons. Further, the Department had already determined to treat the applicant's application on that basis.
The Tribunal continued (in paragraphs 31 and 32):
The Tribunal accepts that S has been twice married and divorced.... The tribunal takes into account the opinion of the psychiatrist, Dr M, that S has symptoms of major depression and needs ongoing treatment with antidepressants. However, his report is dated October 2001, and it does not include any opinion concerning the duration of S’s mental condition. Dr M does, however, state that S told him that his complaints occurred over the past three years, that is, more than one year after the visa application was lodged. The Tribunal notes that S claimed to have attempted suicide on two occasions. The first occasion is said to have occurred in about 1990, and the second in about June 1996. There is no medical evidence concerning either attempt, and Dr M does not refer to any attempt in the list of complaints reported to him by S. The Tribunal also takes into account that the visa applicant was asked, through the migration agent, to provide a medical report concerning S's condition as long ago as July 1998, about two years after the second attempt is said to have occurred, and a report was not provided until November 2001, after the application for review was lodged.
In any event, there is no medical evidence to support S's contention that, at the time when the application was lodged in July 1997, he had a permanent or long-term need for assistance because of the prolonged illness or other serious circumstance affecting him personally. There is accordingly no evidence that S's needs at that time went beyond those of companionship of a relative and general domestic assistance.
In my opinion, the Tribunal's approach as set out in the passages quoted above is incomprehensible. For example:
·The thrust of Dr M’s report is readily apparent (and I have set out all relevant parts of the report in these reasons).
·The Tribunal has chosen to completely overlook Dr M's comment that "the parents are the only form of support (S) has in Australia" and "it is important for him to have the support of his parents in order to maintain reasonable mental health" (emphasis added).
·To suggest that "the duration of S's medical condition" might be anything other than long-term would, in my opinion, be contrary to the evidence before the Tribunal.
·The reference to S telling Dr M that his complaints occurred over the past three years, and the observation that such a chronology suggests that they occurred "more than one year after the visa application was lodged" is disingenuous. Although the initial visa application was lodged on 31 July 1997, it was — to all intents and purposes — withdrawn and recommenced in June/July 1998. The withdrawal and recommencement was at the behest of the Department.
·It is not to the point that there may not be any medical evidence of S's two attempts at suicide. If the Tribunal was not inclined to accept S's evidence regarding the suicide attempts, then it was obliged to explain why his evidence in that regards was not credible. Further, in paragraph 21 of its Reasons, the Tribunal records that "S said that he told Dr M about his two attempts to take his own life, and he did not know why Dr M did not say so in his report". I would add that the tribunal does not state clearly that it does not accept that S attempted suicide on these two occasions. The subject is simply "left hanging" (as it were).
·Again, although the Tribunal refers to the delay in the provision of the medical report, it makes no clear finding as to the relevance of the delay. If an inference was to be drawn from the existence of the delay, then the Tribunal should have provided relevant details of the manner in which and basis upon which it was to be drawn.
·To suggest that "there is no medical evidence to support S's contention that, at the time when the application was lodged in July 1997, he had a permanent or long-term need for assistance because of prolonged illness or other serious circumstances affecting him personally" and that "there is... no evidence that S's needs at that time went beyond those of companionship of a relative and general domestic assistance" is also inexplicable. Quite apart from the relevant date being June/July 1998 (and not July 1997), I am simply unable to understand how the tribunal could have reached such a conclusion — and I have already stated that, in my opinion, the Tribunal's reliance upon "Hussein and policy" was inappropriate. In any event, and as the decision in Wu makes clear, there is no reason why the Tribunal should confine itself to a consideration of "medical evidence" only. Consideration of "other serious circumstances" cover any circumstances which do not arise from the death of a member of the family unit or the disability or prolonged illness of either the citizen or the member of the family unit. Medical evidence may have very little to do with such circumstances.

In my opinion, the Tribunal clearly failed to give proper, genuine and realistic consideration to the applicant's application. But this does not give rise (of itself) to a ground of review in this court (see MIMA v Anthonypillai [2001] FCA 274).
I am also conscious of the observations of Spigelman CJ in Bruce v Cole (1998) NSWLR 163, where his Honour said:
In cases which engage the sense of compassion of a judge such as this, it is necessary to avoid the temptation to express a conclusion in terms of one of the recognised grounds for judicial review, whilst in truth making a decision based on the merits. In a democratic society, such conduct transgress is the proper limits of judicial intervention...”
To the extent that the Tribunal’s decision is illogical (and I think it is) or perverse (and it may well be), the question arises whether the decision is a bona fide attempt by the tribunal to exercise its power. In SBBS v Minister for Immigration (2002) FCAFC 361, the Full Court said at paragraphs 43 to 48:
43First, an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved. Third, there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition. Fourth, the presence or absence of honesty will often be crucial…
44The fifth proposition is that the circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review…
45Sixth, mere error or irrationality does not of itself demonstrate lack of good faith…Bad faith is not to be found simply because of poor decision making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision maker did not undertake its task in a way which involves personal criticism…
46Seventh, errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness…
47Eighth, the Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do and from the extent to which the reasons disclose how the Tribunal approached its task…
48Ninth, it is not necessary to demonstrate that the decision maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power…
In MIMIA v SBAN (2002) FCAFC 431, Heerey and Keifel JJ said (at paragraph 8):
Illogical factual findings or procedural blunders along the way will usually not be sufficient to base the finding of bad faith. Such defects can be equally applicable as the result of obtuseness, overwork, forgetfulness, irritability or other human failings not inconsistent with an honest attempt to discharge the decision-maker’s duty.
Having regard to the above authorities, I cannot conclude that the tribunal has acted in bad faith. On the basis of the material presently before me, the decision appears to be a bona fide attempt by the Tribunal to exercise its power.
Broadly speaking, Mr Horan argued that no basis for review exists (even if a privative clause did not exist) simply because the court disagrees with a weight given by the tribunal to various factors relevant to its decision. Nor can the court set aside a decision merely because it regards the Tribunal as having followed a process of logical reasoning with which the court has discomfort. The Tribunal's process of reasoning (leading to a finding of fact) is not reviewable simply because the court may disagree with it — even if it considers that it was illogical or unreasonable to attribute weight to a factor (or to fail to attribute weight to another factor).
Reference can be made to the following passage of the decision of Mason C. J. in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356:
... at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference -- in other words, the particular inference is reasonably open -- even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
To the extent that I am able to understand her argument, however, the applicant does not complain of "want of logic". She does not complain of inferences which may have been drawn. She does not urge the court to give different weight to factors deemed relevant by the Tribunal. She says, quite simply, that the Tribunal's statements that "there is no medical evidence to support the nominator's contention that, at the time when the application was lodged in July 1997, he had a permanent or long-term need for assistance because of prolonged illness or other serious circumstances affecting him personally " and that "there is accordingly no evidence that the nominator's needs at that time went beyond those of companionship of a relative and general domestic assistance" are wrong and, to the extent that they may constitute findings, there is no evidence to support them. They are not illogical because they are not reasoned. They are simply wrong, and I agree with the applicant.
In my opinion, it is clear beyond argument that the findings referred to in the previous paragraph were critical steps in the Tribunal's ultimate conclusion. Given that I have found that there was no evidence to support them, a jurisdictional error has arisen.
The Tribunal must base its decision on evidence. It must act judicially, and it must act rationally and reasonably. A duty to act judicially (in accordance with the requirements of procedural fairness or natural justice) necessarily excludes the right to decide arbitrarily, irrationally or unreasonably. If a finding of fact upon which a decision is based is unsupported by probative material (and if inferences of fact on which such a decision is based cannot reasonably be drawn from such findings of fact) then the decision maker has failed in its duty to act judicially. A breach of such duty constitutes an error of law which will vitiate the decision (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 and MIMIA v Rajamanikkam (2002) HCA 32 at paragraph 25)
Even if I am wrong in this regard, the Tribunal clearly asked itself the wrong question, and misled itself in law, when it sought to apply "Hussein and policy" to the facts before it.
I conclude that the applicant must succeed in this matter. I propose to grant relief in the form of a declaration and orders in the nature of certiorari and mandamus.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Walters FM

Associate:

Date: 3 September 2004