Xiang v Minister for Immigration - [2003] FMCA 402

FEDERAL MAGISTRATES COURT OF AUSTRALIA

XIANG v MINISTER FOR IMMIGRATION

[2003] FMCA 402

MIGRATION – Review of decision of Migration Review Tribunal – subclass 806 visa – special need relative – substantial and continuing assistance – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth)

Migration Regulations 1994

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195ALR 24

Craig v South Australia (1984) CLR 163
Rao v Minister for Immigration & Multicultural Affairs (2001) FCA 1755
Narayan v Minister for Immigration & Multicultural Affairs (2001) FCA 1745
Avesta v Minister for Immigration & Multicultural Affairs (2002) FCAFC 121
Re MIMA; ex parte Cohen 177 ALR 473
Carlos v Minister for Immigration & Multicultural Affairs (2001) FCA 301

Applicant:

XIANG PING LI

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 15 of 2003

Delivered on:

19 September 2003

Delivered at:

Melbourne

Hearing date:

6 June 2003

Judgment of:

Hartnett FM

REPRESENTATION

Counsel for the Applicant:

Mr Hurley

Solicitors for the Applicant:

Armstrong Ross

Counsel for the Respondent:

Mr Fairfield

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant pay the respondent's costs pursuant to Order 62 of the Federal Court Rules.
It is certified that pursuant to rule 21.15 of the Federal Magistrates Court Rules2001 this matter reasonably required the attendance of counsel as advocate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 15 of 2003

XIANG PING LI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Migration Review Tribunal (MRT) made on 12 December 2002 affirming a decision of the delegate of the respondent to refuse the applicant a Family (Residence) (class AO) visa subclass 806. That application was filed in the Court on 9 January 2003 and was amended by amended application filed 16 April 2003. The applicant sought orders in the nature of prohibition, mandamus and certiorari on the basis that the MRT had committed jurisdictional errors of law and that its decision was not a decision reasonably capable of reference to the power given to the MRT by Part 5, division 2 of the Migration Act 1958 (Cth) on the grounds as set out in paragraph 3, subparagraph (a) to (f) inclusive of that amended application.
On 9 November 1996 the applicant arrived in Australia. She is a citizen of the People's Republic of China. She entered Australia on a subclass 676 tourist (short stay) visa valid until 9 February 1997. She was subsequently granted a subclass 686 tourist (long stay) visa valid until 9 May 1997 which was further extended until 9 August 1997.
By application made on 5 August 1997 the visa applicant applied for a Family (Residence) (class AO) visa. She claimed to be the "special need relative" of her aunt, Ms Lubov Alexandrova Jukova (the nominator) who herself had arrived in Australia on 9 May 1980 and at all material times for the purposes of this application was an Australian citizen. The nominator had acquired such citizenship on 6 June 1985.
By decision dated 1 March 2002 a delegate of the respondent had refused the applicant's application and by application received 22 March 2002 the applicant sought review of that decision by the MRT. By decision dated 12 December 2002 the MRT affirmed the decision of the delegate.

Applicant's claims

The applicant claimed that she was the special need relative of the nominator because she provided assistance to the nominator. She claimed to live with the nominator and the nominator's daughter. She claimed that the nominator was blind, suffered from systemic lupus erythematosus and had physical disabilities resulting from work related injuries sustained in 1988 and a fracture to her arm in September 2001.
She claimed to help the nominator with bathing, to take her on outings, prepare her food and read Chinese newspapers to her. In addition she performed household chores, massaged the nominator and helped her get into bed at night.
The applicant claimed that none of the nominator's Australian based relatives, including the nominator's daughter, were able to provide assistance to the nominator.
The applicant claimed that she herself had commenced employment in February 1998.
The applicant claimed that although she remained in Australia during a period of the nominator's travel unaccompanied abroad to China between 28 March 1998 and 12 December 1998, the nominator had been assisted by the applicant's mother whilst in China and during that same period had spent approximately three months in a hospital in China.
Upon the nominator's return to Australia on 12 December 1998, the applicant commenced to work from home until she resigned from her employment in September 2001.

MRT findings

The MRT accepted that the nominator suffered from a disability and a prolonged illness.
The MRT accepted that the nominator had a need for permanent assistance because of her circumstances at the time of application and continued to have that need at the time of decision (CB 146).
The MRT found the nominator had departed from Australia and remained in China between 28 March 1998 and 12 December 1998 and that during that period she was hospitalised for three months from April 1998.
The MRT found that the applicant did not satisfy clause 806.213 being that part of the definition of "special need relative" which formed the criterion for the grant of the visa that required the visa applicant be able to provide:
substantial and continuing assistance …
to the nominator (MRT reasons paragraph 49 to 52 (CB 147)). The MRT was not satisfied that at the time of application the applicant was able to provide "continuing assistance" to the nominator. The MRT concluded that the question was one of fact and degree as to whether a visa applicant could be found to be a special need relative where there had been a break in the provision of care - which occurred due to the nominator's absence in China between 28 March 1998 and 12 December 1998 (CB 148).
The MRT found there was a break of such duration in the care of the nominator, as a result of the absence of the nominator overseas, which could not be regarded as a temporary and expected interruption in the overall care provided by the visa applicant to the nominator such that the care provided by the visa applicant to the nominator was not continuing in nature. The MRT also found that the applicant's employment arrangements from February 1998 appeared “inconsistent with the type of substantial care envisaged by the Regulations” such that the applicant was not again able to provide substantial and continuing assistance to the nominator (CB 148).
The MRT was not satisfied that the care provided by the visa applicant to the nominator was continuing in nature. Therefore the Tribunal found the visa applicant not to fall within the definition of “special need relative” at the time of the visa application. (CB 148). Accordingly, the Tribunal affirmed the decision under review finding that the visa applicant was not entitled to the grant of a Family (Residence) (class AO) visa.

Consideration

The Court is asked to consider whether the decision of the MRT involved a jurisdictional error of law so as to be regarded in law as no decision at all (see Plaintiff S157/2002v Commonwealth of Australia (2003) 195 ALR 24 at [76]). If this is the case, the privative clause as contained in s 474(1) and (2) of the Migration Act 1958 (the Act) does not render the decision of the MRT unreviewable as to the jurisdictional error of law argued before me.
The basis definition of jurisdictional error is that as expressed in Craig v South Australia (1984) CLR 163 at 179 which I shall not set out here but rely upon.
The term "special need relative" is defined in Regulation 1.03 of the Migration Regulations 1994 (Cth). It is 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 Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or
(ii)welfare, hospital, nursing or community services in Australia.”
The MRT's consideration of whether an applicant is a special need relative relates to both the time of the visa application and the time of decision.
It was accepted by the Tribunal that the nominator suffered from a disability and a prolonged illness. Further, the Tribunal found that the nominator did have a need of permanent assistance at the time of application (clause 806.213) and continued to have such need at the time of decision (clause 806.221). (CB 146). The applicant failed to succeed because the applicant was determined to be a relative who although willing to provide assistance to the nominator at all relevant times was not able to provide substantial and continuing assistance to the nominator in view of the separation of the visa applicant from the nominator for eight and a half months in 1998 and in view of her employment (CB 146 to 147).
The Tribunal clearly turned its mind to a consideration of the meaning of the word “continuing” as referred to in Regulation 1.03 and the meaning of the word “continues” as referred to in clause 806.221 being "continues" to satisfy the definition of “special need relative” at the time of decision. Relevantly, the MRT said:
“The question is what is required in the intervening period? The fact that the word "continues" has been deliberately included in clause 806.221 must require the visa applicant to do more than merely meet his obligations as a special need relative at the time of application and at the time of decision.” (CB 147)
The Tribunal ultimately found that the break in the care provided by the applicant to the nominator between 28 March 1998 and 12 December 1998 was of such duration that it rendered the applicant unable to satisfy the definition of providing continuing assistance to the nominator. The continuation of the applicant's employment albeit based from home until September 2001 was also a factor in the decision.
The applicant argued that the MRT misconstrued the definition of “special need relative” by referring to the word continuous in its reasons and construing the term “special need relative” as if it contained the phrase:
“substantial and continuous”
assistance. This argument put forward by the applicant arose from the definition of the words continue and continuously as set out in paragraph 49 of the reasons of the MRT. However, the MRT's reference to the word “continuously” was not in a context of any consideration of the definition of “special need relative”. The word was used in an illustrative sense and indeed distinguished from the word "continues" which is the word adopted by the legislature. By way of contrast to “continuously” the MRT found that the term “continues” would seem to require that an activity has commenced and that it is ongoing, but would not appear to require that there be absolutely no break. (CB 147). This it noted was contrary to the definition of the word “continues” and indeed was an interpretation which favoured the applicant.
The applicant was required to satisfy subclauses 806.213 and 806.221. Subclause 806.221 provides that the visa applicant "continues" to satisfy the requirements in subclause 806.213. That is, the visa applicant must continue to be a “special need relative”. It is not sufficient simply to satisfy the definition at the time of application and then at the time of decision. See Rao v MIMIA (2001) FCA 1755 per Allsop J at 24.
In the above referred to decision, Allsop J notes the use of the word "continues" may cause difficulty (at 19). He then went on to say at [24]:
“I do not think that the use of the word continues was intended to limit the inquiry only to the precise date of the decision.”
He referred to at [23] the evident purpose of the need to assess compliance at and between the times of application and of decision.
Fact finding as to this intervening period is a matter for the Tribunal. It is not the role of this Court to engage in factual review. In Narayan v MIMA (2001) FCA 1745 being a decision of the Full Federal Court comprising Lindgren, Tamberlin and Merkel JJ the Court said at [42] of the definition of “special need relative” the following:
“The structure and the literal terms of the definition suggest that the legislature intended the opening paragraph to have the potential to disqualify a visa applicant,”
That opening paragraph includes the expression:
“substantial and continuing”
The Court in that case concluded that the opening paragraph itself imposed a criterion which must be satisfied (at 44). Whether assistance is substantial and continuing is a finding on a question of fact based on the meaning of non-technical words in the legislation. If the finding was open to the MRT on the material before it which I find it was, then the MRT has not erred in law in making such finding. The Tribunal's findings and reasons support the conclusions reached by it.
The applicant then argued that the MRT failed to take into account two relevant matters. The first was described as a failure of the MRT to appreciate that:
a)the nominator left Australia for traditional treatment in China;
b)the applicant had provided "assistance through a proxy"; and
c)for "a limited time" assistance was provided by "the Chinese health system".
The second relevant matter is said by the applicant to be the MRT's failure to appreciate all the evidence that was given in relation to the visa applicant's employment in Australia. In particular, that the MRT failed to appreciate that the applicant worked from home following the return of the nominator.
There is nothing in the reasons of the MRT to suggest that the MRT did not consider each and every element of the claim put before it by the applicant. Indeed, the MRT expressly adverts to the matters raised by the applicant and accepted that the nominator went to China and that whilst there was cared for by the applicant's mother and hospitalised for a period of three months. I accept Counsel for the respondent’s submission that there is nothing in the definition or Regulations which contemplates a concept of:
“assistance through a proxy”
Ultimately, it was a question of fact for the Tribunal to determine whether the assistance which the applicant was able to provide during the period of the nominator's trip to China was "continuing". Likewise, whether the assistance provided by the applicant to the nominator was "substantial" was a question of fact to be determined by the Tribunal. The findings of the Tribunal were open on the material before it.
A more interesting submission made by the applicant was that the MRT found the visa applicant to have not been a “special need relative” at the time of the visa application and therefore determined that it was not required to consider whether the visa applicant was a “special need relative” at the time of the Tribunal's decision. The time of the visa application was 5 August 1997. The date on which the nominator left Australia was 28 March 1998 and the period for which the nominator was absent from Australia was the period thereafter until December 1998. This was in effect the intervening period between the time of application and the time of the Tribunal's decision. The applicant argues that this is an error of law which was determinative of the application.
This is a complaint as to the process of reasoning adopted by the MRT looking forward as it were, rather than backward to the satisfaction by it of the "continuing assistance" provided by the applicant.
Unsatisfactory reasoning by the MRT does not constitute error of law (see Avesta v MIMA (2002) FCAFC 121 at [19] per Full Court). The applicant's argument is effectively that the Tribunal misconstrued the word “continuing” in the definition of “special need relative” as at the time of application as comprehending matters subsequent to that time. Such an error which I find was made was an error of fact and not a jurisdictional error of law.
The failure to take into account relevant considerations can constitute a jurisdictional error. However I am satisfied that the Tribunal did consider matters relevant to the satisfaction of clauses 806.213 and 806.221. Given the factual findings of the MRT it is clear that the applicant did not continue to satisfy the definition as at the time of decision. This relates not only to the nominator's period of time spent in China but also to the MRT's finding that the applicant was unable to provide substantial assistance to the nominator because of her employment in the period February 1998 to September 2001.
It is not indicated in the reasons that the MRT identified a wrong issue or asked itself a wrong question. Adopting an incorrect interpretation of an expression in legislation is not always synonymous with jurisdictional error (see Re MIMA; ex parte Cohen 177 ALR 473, McHugh J at 481).
It is clear the Tribunal understood the question that the definition of “special need relative” required it to answer. That answer was to be provided both at the time of application and time of decision. The expressions "substantial" and "continuing" were used in Regulation 1.03 in the ordinary, non-technical sense. The ordinary meaning or common understanding of a non-technical word is generally a question of fact (Re MIMA; ex parte Cohen at [481]). This is not ordinarily a jurisdictional error and is not so in this instance.
I conclude no error committed by the MRT goes to jurisdictional error and nor do I find does it deprive the applicant of the possibility of a different outcome were the matter to be remitted to the Tribunal. The decision arrived at by the Tribunal was clearly open to it on the material before it. It would be futile to remit this matter because the same result would be inevitable on the remitter. (see Carlos v Minister for Immigration and Multicultural Affairs (2001) FCA 301 at page 17).
The applicant has not demonstrated an arguable case of jurisdictional error of law. Her application must be dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate: T. Jones
Date: 19 September 2003