Videla v Minister for Immigration and Multicultural Affairs

[2002] FCA 233

FEDERAL COURT OF AUSTRALIA

Videla v Minister for Immigration & Multicultural Affairs [2002] FCA 233

MIGRATION – application for review of decision of Migration Review Tribunal – application for Family Residence class AO visa, subclass 806 – whether applicant’s sister’s marital problems constitute serious circumstance resulting in permanent or long term need for assistance

Migration Act 1958 (Cth) s 476

Re Minister for Immigration and Multicultural Affairs; ex parte Cohen [2001] 177 ALR 473 at 480 referred to
Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277 at [29] referred to
Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24 at [102-113] referred to
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39 referred to

JOSE PATRICIO SAN MARTIN VIDELA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V757 of 2001

WEINBERG J
6 MARCH 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 757 OF 2001

BETWEEN:	JOSE PATRICIO SAN MARTIN VIDELA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MELBOURNE
DATE OF ORDER:	6 MARCH 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 757 OF 2001

BETWEEN:	JOSE PATRICIO SAN MARTIN VIDELA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MELBOURNE
DATE:	6 MARCH 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an application under s 476 of the Migration Act 1958 (Cth) (“the Act”) for review of a decision of the Migration Review Tribunal (“the Tribunal”) which affirmed a decision of a delegate of the respondent Minister that the applicant was not entitled to the grant of a what was known as a Family Residence class AO visa, subclass 806. The applicant was legally represented when this application was originally filed, on 27 July 2001. However, he has been unrepresented since about October of last year.

   BACKGROUND

2. The applicant is a Chilean national who was born in 1968.  He arrived in Australia on 19 December 1995 on a Tourist (Long-Stay) class TN visa, subclass 686, which was valid to 21 May 1996.  On that date he was granted a further subclass 686 visa valid until 19 December 1996.

3. On 20 November 1996 the applicant applied for a Family Residence class AO visa.  He claimed to be a “special need relative” of his sister, Ms Ana Maria Pozo, who was his nominator.  Ms Pozo is an Australian citizen who is married with three adult children.  Two of those children are themselves married and are not living with her. 

4. In his application, the applicant claimed that Ms Pozo suffered from depression and felt happy with his support.  He gave details of the assistance that he had provided to her.  That assistance included housework, shopping and paying bills.  He provided a letter dated 18 November 1996 from Dr G.P. Kounnas, and a letter dated 21 November 2000 from Dr Maria Flores-Vivas, each stating that Ms Pozo suffered from depression and would be helped by her brother’s presence in Australia.  He also relied on a letter dated 9 November 2000 from Mr Richard Araya-Bishop, a family therapist, which was to the same effect. 

5. On 29 March 2001 a delegate of the Minister refused the visa application.  On 17 April 2001 the applicant applied to the Tribunal for review of that decision.  A hearing was held on 12 June 2001.  In addition to the material which had been relied upon before the delegate, the applicant provided the Tribunal with a psychologist’s report, dated 9 June 2001, confirming the condition of his sister, and detailing the benefit to her of his continued presence in this country. 

6. On 28 June 2001 the Tribunal affirmed the delegate's decision. 

   THE LEGISLATIVE SCHEME

7. At the time that the visa application was lodged, reg 806.213 of the Migration Regulations 1994 (“the Regulations”) set out a primary criterion applicable to a Family Residence class AO visa, subclass 806. That regulation was then in the following terms:

   “806.213  The applicant is an aged dependent relative, an orphan relative, a remaining relative or a special need relative of  another person who:

   (a)is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and

   (b)is usually resident in Australia; and

   (c)has nominated the applicant for the grant of the visa.”

8. The definition of “special need relative” was set out in reg 1.03.  That definition was as follows:

   “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 Australia citizen, an Australian permanent resident or an eligible New Zealand citizen; or

   (ii)welfare, hospital, nursing or community services in Australia.”

9. The concept of “special need relative” was removed with effect from 1 December 1998.  It was replaced by the concept of a “carer”, which is now defined in reg 1.03 as having the meaning given by reg 1.15AA.  That definition is, of course, not relevant to the present application.

10. Subclass 806, formerly found in Schedule 2 of the Regulations, was subsequently omitted altogether in respect of applications made on or after 1 November 1999. However, the law applicable to the applicant’s visa application is the law as in force at the time that his application was lodged on 20 November 1996: Re Minister for Immigration and Multicultural Affairs; ex parte Cohen [2001] 177 ALR 473 at 480.

    THE TRIBUNAL’S DECISION

11. The Tribunal accepted the evidence led on behalf of the applicant in relation to Ms Pozo’s depression and medical condition.  However, it was not satisfied that, at the time of the application, she had “a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances”.  Further, the Tribunal found that any assistance that she required could reasonably be supplied by her immediate family in Australia, namely her husband and children. 

12. Having found that Ms Pozo’s problems were caused by a deterioration in her marital relationship, the Tribunal concluded that they did not give rise to “a permanent or long-term need for assistance”.  That was because her marriage might break down at any time.  Accordingly, the Tribunal concluded that the applicant did not satisfy the definition of a “special need relative” contained in reg 1.03 as that regulation then stood. 

    THE APPLICATION FOR REVIEW TO THIS COURT

13. The applicant set out two grounds in support of his application for review to this Court.  They were first, that the Tribunal had taken into account irrelevant considerations and second, that it had failed to take into account a relevant consideration.  He provided some particulars of these grounds.  He complained that notwithstanding that he had submitted several medical and psychological reports supporting his claim, neither the delegate nor the Tribunal had arranged for his sister to be medically examined.  There was, therefore, no medical or psychological evidence to contradict these reports.

14. The applicant claimed that his sister had “suicidal ideation” and was generally in poor health.  He argued that her situation was likely to worsen if he were not allowed to remain in Australia.

15. It is important to note precisely what the Tribunal said regarding the evidence adduced in support of the applicant’s claim.  It observed:

    “The Tribunal accepts the evidence in relation to the nominator’s depression and medical condition.  However either the condition is one that could best be assisted by her husband, two daughters and son, or it is one that an end to the marriage would assist.  The nominator states that her depressed state is not of a long-term nature, but only occurred nine years ago when she had marital problems.  Consequently the Tribunal is not satisfied that, at the time of application, the nominator had a permanent disability namely of depression, or that at application she had 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.  As the nominator is still in a marital state with a family, she has assistance that could reasonably be supplied by her immediate family.  If the difficulties are due to marital problems, then they are not of a nature that are permanent or long term, or in the way of other conditions which are more serious circumstances than a difficult marriage that is likely to break up.”

    CONCLUSIONS

16. In order for the applicant to qualify as a “special need relative” under the Regulations, the Tribunal had to be satisfied of several distinct matters. These were:

    ·that he was willing and able to provide substantial and continuing assistance to his sister;

    ·that she had a permanent or long‑term need for assistance;

    ·that that need arose by reason of “death, disability, prolonged illness or other serious circumstances”; and

    ·that the assistance could not reasonably be obtained from any other relative who was an Australian citizen or permanent resident, or from welfare, hospital, nursing or community services in Australia. 

17. Whether or not the applicant was able to satisfy the Tribunal of each of these requirements involved a question of fact.  It was for the Tribunal to determine that question, provided only that it approached the task correctly as a matter of law.

18. It is clear, in my view, that it was open to the Tribunal to conclude that Ms Pozo’s depression and medical condition did not give rise to “a permanent or long-term need for assistance”.  It was also open to the Tribunal to conclude that, to the extent that she required such assistance, it was able to be provided by her other relatives in Australia. 

19. The applicant’s complaints regarding the Tribunal’s failure to have arranged for Ms Pozo to be medically examined are misconceived. The Tribunal accepted the evidence provided by the applicant as to his sister’s depression and medical condition. Its conclusion that he was not entitled to the visa that he sought was based rather upon a finding that her condition did not meet the requirements of the Regulations, a conclusion of fact that was open on the evidence before the Tribunal.

20. The authorities make it clear that the Tribunal was under no obligation to conduct its own inquiries into the mental or physical condition of the applicant’s sister:  Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277 at [29] and Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24 at [102-113].

21. The applicant’s complaint regarding the supposed failure of the Tribunal to take into account a relevant consideration is also misconceived.  The Tribunal was not, in any relevant sense, “bound” to take into account any of the matters which the applicant claimed it had ignored.  Nor for that matter was it “bound” to ignore any of the matters which he claimed it had taken into account:  Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39.

22. The applicant has failed to demonstrate any error on the part of the Tribunal which might warrant the intervention of this Court.  For the reasons set out above, the application must be dismissed with costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Associate:

Dated:             6 March 2002

The applicant appeared in person
Counsel for the Respondent:	Mr C.J. Horan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 March 2002
Date of Judgment:	6 March 2002