Valdes v Minister for Immigration & Multicultural Affairs [2000] FCA 115 (9 February 2000)

Last Updated: 16 February 2000

FEDERAL COURT OF AUSTRALIA

Valdes v Minister for Immigration & Multicultural Affairs [2000] FCA 115

MIGRATION - review of decision of Migration Review Tribunal ("the Tribunal") refusing application for Family (Residence) (Class AO) Visa- whether the Tribunal correctly decided that applicants did not meet criteria for "special need relative" in reg 1.03 of the Migration Regulations 1994 (Cth) - whether the Tribunal failed to observe procedures required by the Migration Act 1958 (Cth) ("the Act") to be observed - whether the Tribunal failed to set out findings on material questions of fact - whether the Tribunal failed to refer to evidence on which its findings were based - whether failure to comply with s 368 of the Act is a failure to comply with procedures required to be observed under s 476(1)(a) of the Act

WORDS & PHRASES - "special need relative" - "other serious circumstances"

Migration Act 1958 (Cth), ss 368, 430, 476(1)(a)

Migration Legislation Amendment Act 1998 (Cth), s 41

Migration Regulations 1994 (Cth), reg 1.03

Minister for Immigration & Multicultural Affairs v Yusuf [1999] FCA 1681 considered

Montes-Granados v Minister for Immigration & Multicultural Affairs [2000] FCA 60 considered

Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 followed

Tuamoheloa v Minister for Immigration & Multicultural Affairs [1998] FCA 1046 referred to

Xu v Minister for Immigration & Multicultural Affairs [1999] FCA 1741 considered

ENRIQUE VALDES & GERTRUDIS VALDES v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

N 1208 OF 1999

EMMETT J

9 FEBRUARY 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1208 OF 1999

BETWEEN:	ENRIQUE VALDES AND GERTRUDIS VALDES Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	EMMETT J
DATE OF ORDER:	9 FEBRUARY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed;

2. The applicants 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 1208 OF 1999

BETWEEN:	ENRIQUE VALDES AND GERTRUDIS VALDES Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	EMMETT J
DATE:	9 FEBRUARY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicants are citizens of the Philippines. They arrived in Australia on 2 June 1995 on visitor visas which, with one extension, enabled them to remain in Australia until 2 June 1996. The applicants have eight children, four of whom live in the Philippines, two in Australia and two in the United States. On 19 April 1996 the first applicant, Mr Enrique Valdes, applied for a Family (Residence) (Class AO) Visa on the grounds of being an aged dependent relative of one of his two daughters who live in Australia. In October 1996 the grounds of the application were amended to "special need relative", based on the needs of one of the applicants' daughters, Mrs Maria Cecelia Calimbas.

2 On 16 July 1998 the application was refused by the Minister's delegate. On 7 August 1998 the applicant sought review of the delegate's decision. On 16 February 1999 the delegate's decision was confirmed by the Migration Internal Review Office. On 16 March 1999 the applicants sought review of that decision by the Immigration Review Tribunal. That application became, on 1 June 1999, an application for review to the Migration Review Tribunal ("the Tribunal") by operation of section 41 of the Migration Legislation Amendment Act 1998 (Cth).

3 The Tribunal confirmed the decision of the Migration Internal Review Office. By application to this Court the applicants now seek an order of review of the decision of the Tribunal. The application is made under section 476 of the Migration Act 1958 (Cth) ("the Act"). The grounds of the application were amended by leave given without opposition. The grounds as contained in the amended application are as follows:

"1. Procedures that were required by the Act to be observed in connection with the making of the decision were not observed: s.476(1)(a) of the Act.

Particulars

The Tribunal failed to set out findings on material questions of fact and to refer to the evidence upon which those findings of fact were based - s.368 - in relation to the applicants' claims that the psychological health and well-being of the nominator's family would be damaged if the applicants were to return to the Philippines, because of the cultural and religious ties which existed in the family.

2. The decision involved an error of law being an error involving the incorrect interpretation of the applicable law or an error involving the incorrect application of the law to the facts as found by the Tribunal: s.476(1)(e).

Particulars

The Tribunal incorrectly applied the test for `special need relative' under regulation 1.03 of the Migration Regulations as they existed at the time of the application."

4 It is common ground that in order to succeed in the application for a visa, the applicants would need to satisfy the definition that was contained in regulation 1.03 of the Migration Regulations 1994 (Cth) and relevantly provided 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 death, disability, prolonged illness or other serious circumstances affecting the citizen...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...; or

(ii) welfare, hospital, nursing or community services in Australia;"

5 The thrust of the complaint on behalf of the applicants is that the Tribunal in its reasons failed to refer to psychiatric evidence that was tendered to the Tribunal in relation to the consequences of the applicants' returning to the Philippines. In order to explain the way in which the definition in regulation 1.03 is said to arise it is necessary to say something about the family of the applicants.

6 The Tribunal observed that the gist of the argument presented is that Mrs Calimbas, the daughter of the applicants and her husband, Dr Calimbas, are exceptional people who make an unusually valuable contribution to the regional Australia. Because they are both required to travel constantly in order to perform their duties, the grandparents, that is the applicants, are needed to look after the household during their absence more than in the usual case.

7 The evidence before the Tribunal of Dr Williams, a consultant psychiatrist, included a summary of the family circumstances. They are the circumstances relied upon as constituting "serious circumstances" affecting both Mrs Calimbas and her two children. I shall summarise them from the consultant psychiatrist's report.

8 Dr and Mrs Calimbas have been in Australia since August 1992. They lived in Punchbowl in Western Sydney before moving to Yagoona in 1998 where they remain. They have two children who as at July 1999 were an 18 year old son and a 14 year old daughter.

9 The son is attending the University of Western Sydney where he is studying social ecology with plans to study psychology. Mrs Calimbas worries about her son but his grandmother considers that there is no significant problem with him. Mrs Calimbas worries about the potential risk for her son in associating with others his own age who may not share the strong family and cultural values which her family has.

10 The daughter is attending Newtown School of Performing Arts. The school, and the area around it, is not a good area for children in Mrs Calimbas' estimation. She supports her daughter's choice in schooling but worries that her daughter could be followed or otherwise be in danger in such an inner western Sydney area.

11 Dr Calimbas is a medical practitioner with qualifications in the Philippines. Since coming to Australia he has had difficulty in obtaining employment. According to Dr Williams' report he was at home and applying for positions. The evidence before the Tribunal as summarised in the reasons was that Dr Calimbas had just been appointed under new government guidelines to act as doctor for a rural area of special need. He had studied long and hard to achieve that position and could not have succeeded without the help of his parents-in-law, the applicants, to keep the household running smoothly. Now that Dr Calimbas has received his appointment it will apparently require his lengthy absence from home leaving Mrs Calimbas, in effect, as sole parent for five years because she will be unable to accompany him and the children need to continue their studies in Sydney.

12 Mrs Calimbas had been a teacher in home economics for ten years in the Philippines mostly at high school level. She is now a project officer with the Department of Family and Community Services. It is her responsibility to monitor service providers in employment services for people with disabilities over a large area in both the south and west of New South Wales. That involves responsibility for the New South Wales south coast below Ulladulla as well as western New South Wales covering places such as West Wyalong. She has to travel at least twice a month to the south or west of the state for two or three days at a time.

13 The applicants first stayed with Dr and Mrs Calimbas in June 1995. Dr Williams reported that the applicants were able to delineate clearly the importance of their family ties to the Calimbas children and the related importance of ensuring that their traditional values were passed on to the children. They described, in a manner that was convincing to Dr Williams, their sound and positive relationship with their grandchildren. Mrs Calimbas told Dr Williams that when her parents stayed with her and her family in June 1995 she felt a huge load was lifted. Before their arrival she was stressed a lot and was taking a lot of sick leave. The applicants were, and are still, able to watch over the children.

14 The applicants are able to see the childrens' friends and assure themselves, as well as Dr and Mrs Calimbas, that the friends will be a good influence on the children. Dr Williams in his report says that the family has strong but not oppressive traditional Philippines cultural ties and values. That includes their Catholic faith which they see as an integral part of their personal and family life. It also includes such things as an emphasis on the importance of close family ties and respect for elders.

15 Mrs Calimbas considers that the presence of her parents allows her and her husband to spend relaxed quality time with their children when they are at home unencumbered by the uncertainty, doubts and fears they would otherwise have about their children. Dr Williams expresses the view that the approach of the family is "almost ideal". He observes that Dr and Mrs Calimbas are able to monitor their childrens' behaviour closely and through open, honest and free communication can influence the children in a positive way.

16 Dr Williams' conclusion, based on that material, is that there are serious circumstances which affect Dr and Mrs Calimbas, namely the difficulties that they continue to face in re-establishing and maintaining professional careers in a new country. He concludes that any obstacle placed in their way, such as the absence of the applicants from Australia, could be damaging to their own and their childrens' psychological health and well being, as well as reducing their potential contribution to the Australian community.

17 The Tribunal's findings are in a sense meagre. The main evidence is summarised in paragraph 14 of the Tribunal's decision as follows:

"Dr Willie Calimbas, the Applicants' son-in-law has just been appointed under the new government guidelines to act as a Doctor for a rural area of special need. He has studied long and hard to achieve this position and could not have succeeded without the help of his parents in law to keep the household running smoothly.

Both Dr Calimbas and his wife...have extremely challenging positions and render a service to the Australian community which is unique. Now that Dr Calimbas has been appointed, it will leave his wife as sole parent for five years because she will be unable to accompany him and his children need to continue their studies in Sydney.

Mrs Calimbas also has an extremely demanding and responsible position in her role as `project officer' with the Department of Family and Community Services. She must monitor service providers in employment services for people with disabilities over a large area in New South Wales.

She has responsibilities in centres on the South Coast below Ulladulla as well as Western New South Wales, as far removed as West Wyalong, Young and Temora and in other towns. She works very long hours even when at home in Sydney."

18 The Tribunal observed that the definition of "special need relative" and the expression "other serious circumstances" in regulation 1.03 refer to something more than the deprivation which ordinarily would follow from the separation of parent and child, undoubtedly serious as that usually will be (citing Heery J in Tuamoheloa v Minister for Immigration & Multicultural Affairs [1998] FCA 1406). The Tribunal also observed that the other main circumstance that must be examined is whether the assistance sought from the special need relative cannot reasonably be obtained from any other relative of the citizen or resident being a relative who is an Australia citizen or welfare, hospital, nursing or community services in Australia.

19 The Tribunal concluded from the authorities cited that even very serious circumstances do not always mean that the person assisting the Australian relative in need give rise to the requisite degree of need, but that the Tribunal must look at such matters as the nature of the problem or disability, the treatment or course of action dictated by the need, the prognosis, the need for psychological support including emotional support and why there is said to be a need for special assistance. The Tribunal concluded that the applicants do not meet the criteria for "special need relative" and that the assistance they are providing to Mrs Calimbas, while highly desirable to the welfare of the family, does not fall within the serious circumstances described in decided cases.

20 The Tribunal concluded that the contribution made by the applicants is more or less assistance in bringing up the children and general domestic assistance. Even if the Tribunal were to stretch the meaning of "serious circumstances" to take into account the services to regional Australia provided by Dr and Mrs Calimbas, the type of assistance given by the applicant is not the type to fall within the definition.

21 It is notable that the Tribunal in its reasons made no reference at all to the report from Dr Williams. In its reasons the Tribunal did refer to the fact that the applicants and Mrs Calimbas attended a hearing, gave oral evidence and presented arguments as well as making written submissions. The material before me indicates that there were in fact two written submissions made on behalf of the applicants. The first from their solicitors, Anne O'Donoghue and Associates, dated 13 August 1999, enclosed the report from Dr Williams and expounded on that report. The second submission made no reference to Dr Williams report although it did summarise some of the factual material that had been contained in that report. That factual material was also summarised in the Tribunal's reasons.

22 In their request for hearing to the Tribunal the applicants indicated a desire that the Tribunal take oral evidence from Dr Williams by telephone and that it receive the written report of Dr Williams. It is curious therefore that there is no mention at all of Dr Williams report. There is no complaint that the Tribunal failed to take further evidence from Dr Williams. The complaint is rather based on section 368 of the Act, namely failure to deal properly with the evidence of Dr Williams report in the reasons.

23 Section 476(1)(a) of the Act specifies that one of the grounds upon which an application may be made for review to this court is:

"That procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed"

The applicants contend that there was a failure to comply with section 368 of the Act and that that failure was a failure to observe procedures required by the Act to be observed.

24 Section 368 of the Act relevantly provides as follows:

"Where the Tribunal makes its decision on a review, the Tribunal must...prepare a written statement that:

(a) sets out the decision of the Tribunal on the review;

(b) sets out the reasons for the decision;

(c) sets out the findings on any material questions of fact; and

(d) refers to the evidence or any other material on which the findings of fact were based."

The particulars in the amended application in effect refer to sections 368(c) & (d).

25 At present there is disagreement among members of this court as to the significance of section 368 and its corresponding section 430 in relation to section 476(1)(a).

26 A question that has been ventilated before me is whether I should follow the decision of the Full Court in Minister for Immigration & Multicultural Affairs v Yusuf [1999] FCA 1681 ("Yusuf") or whether I should follow the views of the majority in Xu v Minister for Immigration & Multicultural Affairs [1999] FCA 1741 ("Xu"). Counsel for the Minister contended that I should not consider the argument based on section 368 because of the views expressed in the joint judgment of Whitlam and Gyles JJ in Xu.

27 Burchett J has recently expressed a view on that question in Montes-Granados v Minister for Immigration & Multicultural Affairs [2000] FCA 60. His Honour there suggested that, until the whole matter is reconsidered by a Full Court, a single Judge would be bound by the direct decision of the Full Court in Yusuf and by earlier decisions of Full Courts to the same effect (paragraph 16). On one view the question was not raised for decision in Xu. All three Judges who comprised the court in that case concluded that there had been no failure to comply with section 430 which, relevantly, is in identical terms to section 368. It was therefore unnecessary for any view to be expressed concerning the applicability of section 476(1)(a) to a failure to comply with section 430. Nevertheless, Whitlam and Gyles JJ did express views concluding, in effect, that a failure to comply with section 430 or section 368 is not a failure to observe procedures that are required by the Act. That is to say, the requirements of those provisions are not procedures required by the Act to be observed in connection with the making of a decision but rather are the requirements to be satisfied after a decision has been made to ensure that the parties understand why the decision has been made. I consider that it is desirable that I at least decide the question of whether section 368 has been complied with in the present case irrespective of the view that I may have concerning the applicability of section 476(1)(a) to that provision.

28 The notion of "other serious circumstances" must be considered in the context of the terms "death", "disability", and "prolonged illness" which precede it in regulation 1.03. All three of those matters are obviously serious. What constitutes "other serious circumstances" must be construed in the light of those concepts.

29 The Minister contends that on the material before the Tribunal there could not have been a finding of "serious circumstances" giving rise to the relevant need. The circumstances were in effect summarised as follows: Dr and Mrs Calimbas are working parents; they have teenage children; and their family is bound by cultural and religious beliefs including their Catholic faith, their close and life long family ties, and their respect for elders.

30 None of those matters, it seems to me, are capable by themselves of constituting serious circumstances affecting Dr and Mrs Calimbas or their children giving rise to a permanent or long term need for assistance within the meaning of the relevant provision. The one matter relied on by the applicants as being an additional factor in the circumstances such as to render them serious is the evidence of Dr Williams to the effect that the absence of the applicants from Australia, because of the particular circumstances just described, could be damaging to the psychological health of Dr and Mrs Calimbas and their children.

31 It may be that the particular psychological make-up of an Australian citizen taking into account factors such as those just referred to is such that that citizen does have a need for assistance. One could envisage circumstances where some psychological disorder was such that there was a permanent or long term need for assistance. There is however nothing in Dr Williams' report in my view which suggests a need beyond the need for family assistance in the raising of a family. The most that can be said from Dr Williams' report is that Mrs Calimbas was thankful to have her parents when they arrived. There is no suggestion that she had any psychological condition prior to the arrival of her parents that was assuaged by their presence. The load that was lifted was the load of working hard and looking after growing children, a load which nobody would suggest is anything other than heavy. It is, however, a load borne by probably the majority of parents. It is not, of itself, a circumstance of such seriousness as to fall within the same category as death, disability or prolonged illness.

32 Catholic faith, close and life-long family ties and respect for elders are not peculiar to people of Philippine extraction. Again one would expect that the majority of Australians bring up children in a similar context. The Tribunal's conclusion, as I have said, was that the contribution made by the applicants is, more or less, assistance in bringing up children and general domestic assistance. That is clearly all that it is. There is nothing, in my view, in Dr Williams' report to suggest that there is some particular psychological damage that might be done to the family by reason of the absence of their grandparents.

33 The question of whether or not serious circumstances exist is, of course, a question of fact and it is a material question of fact. The Tribunal has made a finding on that question. The issue, however, is whether it has set out the findings on material questions of fact and referred to the evidence or any other material on which the findings were based.

34 Section 430 of the Act, and its equivalent section 368, do not impose an obligation to do anything more than refer to the evidence on which the findings of fact are based. Section 430 does not require a decision maker to give reasons for rejecting evidence inconsistent with the findings made. It is not necessary in order to comply with section 430 for the Tribunal to give reasons for rejecting or attaching no weight to evidence or other material which would tend to undermine any findings which it made (Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [64] - [65]).

35 On the other hand, the obligations to set out the reasons for the decision, contained in section 368(b) of the Act, may well require a Tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Nevertheless, it is not necessary for the Tribunal to give a line by line refutation of the evidence of a claimant, either generally or in those respects where there is evidence contrary to findings of material fact made by the Tribunal. To do so may well be contrary to the direction contained in the Act that the Tribunal is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick and that the Tribunal is not bound by technicalities, legal forms or rules of evidence. It must act according to substantial justice in the merits of the case.

36 While, as I have said, it is curious that there is no mention of Dr Williams' report, I do not consider that I should draw the inference that the report was simply ignored. Indeed the thrust of the complaint is the failure to give reasons as to why the evidence contained in the report was rejected. I consider that whatever shortcomings the Tribunal's reasons have, it does set out the findings on material questions of fact and refers to the evidence on which those findings were based. The relevant finding is that there were no serious circumstances. It follows, in my view, that the application should be dismissed.

37 The orders I make are that:

1. The application be dismissed.

2. The applicants pay the Minister's costs.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 16 February 2000

Counsel for the Applicant:	N Poynder
Solicitor for the Applicant:	Anne O'Donoghue & Associates
Counsel for the Respondent:	J Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 February 2000
Date of Judgment:	9 February 2000