Narayan v Minister for Immigration & Multicultural Affairs [2001] FCA 789 (28 June 2001)

Last Updated: 29 June 2001

FEDERAL COURT OF AUSTRALIA

Narayan v Minister for Immigration & Multicultural Affairs [2001] FCA 789

MIGRATION - whether error of law or improper exercise of power - "special need relative" - whether the Migration Review Tribunal misconstrued definition - whether Tribunal inflexibly adhered to policy.

MIGRATION -"remaining relative" - whether MRT incorrectly applied onus.

Migration Act, ss 31(1), 32(2), 65(1), 65(2), 353(2)(a), 476(1)(d), (e), 476(3)(c).

Migration Regulations 1994 (Cth), rr 1.03, 1.15, schedule 2 sub-class 806.

Statutory Rule 259 of 1999

Statutory Rule 306 of 1998

Re Minister for Immigration and Multicultural Affairs, Ex parte Cohen [2001] HCA 10; (2001) 177 ALR 473, applied.

Tuanmoheloa v Minister for Immigration and Multicultural Affairs, (unreported, 4 November 1998), cited.

Succary v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 616, cited.

Hussein v Minister for Immigration and Multicultural Affairs [1999] FCA 1621, cited.

Sanwant Singh (IRT V97/00941, 20 April 1998), cited.

Minister for Immigration and Multicultural Affairs v Hughes [1999] FCA 325; (1998) 86 FCR 567, cited.

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1, cited.

Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515, cited.

Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194, cited.

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259.

Huang v Minister for Immigration and Multicultural Affairs (1996) 71 FCR 95, cited.

Wu v Minister for Immigration and Multicultural Affairs [2000] FCA 1817; (2000) 105 FCR 39, cited.

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, cited.

Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189, cited.

Yong v Minister for Immigration & Multicultural Affairs [2000] FCA 1391, cited.

Lal v Minister for Immigration & Multicultural Affairs [2000] FCA 1488, cited.

Cross on Evidence (6^th Aust ed).

Procedures Advice Manual 3

ANNE RAGINI NARAYAN & ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N482 of 2001

SACKVILLE J

SYDNEY

28 JUNE 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 482 of 2001

BETWEEN	ANNE RAGINI NARAYAN FIRST APPLICANT FRANCIS DHIRENDRA NARAYAN SECOND APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	28 JUNE 2001
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 482 of 2001

BETWEEN:	ANNE RAGINI NARAYAN FIRST APPLICANT FRANCIS DHIRENDRA NARAYAN SECOND APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	28 JUNE 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE PROCEEDINGS

1 This is an application to review a decision made by the Migration Review Tribunal ("MRT") on 2 April 2001. The MRT affirmed a decision made by the Minister's delegate on 25 May 1999 to refuse the applicants and their three children Family Residence (Class AO) visas.

2 The applicants in this Court are the primary visa applicant ("the applicant") and her husband (the "husband"). The latter was designated by the MRT as a secondary applicant. They contend that the MRT's decision was on improper exercise of the power conferred by the Migration Act 1958 (Cth) ("Migration Act") or the Migration Regulations or, alternatively, involved an error of law: Migration Act, s 476(1)(d), (e).

BACKGROUND

3 The applicant was born on 30 December 1958 and is a citizen of Fiji. She and the husband made several visits to Australia on several occasions between 1993 and 1996. The applicant and her three children last arrived in Australia on Short Stay (Visitor) visas on 6 December 1997. Those visas expired on 6 March 1998. On 23 December 1997, the husband arrived in Australia on the same visa, which in his case, expired on 23 March 1998. On 5 March 1998, the applicant, the husband and their three children applied for permanent residence on the basis that the applicant was a "special need relative" of an Australian citizen, Ms Swaran Lata Singh (the "nominator"). The nominator, who sponsored the applicant, is the applicant's sister.

4 The nominator was born on 17 July 1951. She lived in Fiji with the applicant and the husband from 1981 to 1992, when she (the nominator) married and moved to Australia with her husband. The nominator's husband died in 1996. The nominator had worked since coming to Australia and, at the time of the MRT hearing, was employed by a bank as a customer service officer. The nominator had no children of her own and had little contact with the two children of her late husband's previous marriage. She had several siblings but claimed to be estranged from them.

5 According to the applicant's statutory declaration, she and the nominator had been close and emotionally and psychologically dependent on each other since birth. The applicant claimed that the death of the nominator's spouse in 1996 had made the nominator entirely dependent on her (the applicant) for emotional and psychological support. The applicant also claimed that the nominator suffered from a prolonged illness, by reason of physical and emotional difficulties, and that only she could provide the emotional and psychological support the nominator required. The nominator's statutory declaration was to similar effect. She claimed, however, that she was afraid to be on her own and that there were times when she felt like giving up and taking her own life.

THE LEGISLATION

6 Section 31(1) of the Migration Act provides that there are to be prescribed classes of visas. The regulations may prescribe criteria for a visa or visas of a specified class: s 31(3). After considering a valid application for a visa, the Minister, if satisfied, inter alia, that the criteria prescribed by the Migration Act and the Migration Regulations have been satisfied, is to grant the visa: s 65(1)(a). If not so satisfied, the Minister is not to grant the visa: s 65(1)(b).

7 When the applicant applied for a Family (Residence) (Class AO) visa, the criteria for such a visa were prescribed by the Migration Regulations 1994 (Cth), Schedule 2, sub-class 806. Insofar as relevant, they provided as follows:

"806.21 Criteria to be satisfied at time of application

806.213 The applicant is...a remaining relative or a special need relative of another person who:

(a) is a settled Australian citizen...;

(b) is usually resident in Australia; and

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

The term "settled", in relation to an Australian citizen, was defined to mean "lawfully resident in Australia for a reasonable period": reg 1.03.

8 Regulation 1.03 also defined the expression "special need relative", 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 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...; or

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

It was accepted by the MRT that the applicant was "a relative" of the nominator for the purposes of reg 1.03: see definition of "relative" and "close relative".

9 Regulation 1.15 defined the expression "remaining relative" as follows:

"1.15(1) An applicant for a visa is a remaining relative if the applicant has a relative who:

(a) is:

(i) a brother, sister or parent; or

(ii) ...;

of the applicant; and

(b) is:

(i) an Australian citizen; or

(ii) ...;

(iii) ...; and

(c) is usually resident in Australia;

unless the applicant is disqualified under subregulation (2).

(2) An applicant is disqualified if:

(a) ...; or

(b) the applicant and the spouse (if any) of the applicant together have more than 3 overseas near relatives; or

(c) ....

(3) In this regulation, `overseas near relative' means a person who is:

(a) a parent, brother, sister or non-dependent child; or

(b) ...;

(c) of the applicant or of the spouse (if any) of the applicant but is not a relative of a kind referred to in subregulation (1)."

10 As the MRT noted, the definition of "remaining relative" was amended by SR 259 of 1999, which came into force on 1 November 1999. Although the MRT did not say so, the "special need relative" criterion was omitted from the Migration Regulations by SR 306 of 1998, which commenced on 1 December 1998.

11 The MRT concluded that it was bound to apply the definition of "remaining relative" in force at the date of the application (5 March 1998). It took the view that this consequence flowed from reg 5(5) of SR 259 of 1999. Regulation 5(5) provides that, if an application for a Family (Residence) (Class AO) visa was made before 1 November 1999, but was not finally determined before that date, the Migration Regulations 1994, as in force immediately prior to 1 November 1999, continued to apply in relation to the application.

12 The MRT did not advert to the repeal of the special need relative criterion in 1998. It apparently assumed, however, that the criterion as in force at the date of the application (including the definition of "special need relative") continued to apply to the application. As it happens, that assumption has subsequently been held to be correct: Re Minister for Immigration and Multicultural Affairs, Ex parte Cohen [2001] HCA 10; (2001) 177 ALR 473, at 478-480, per McHugh J.

13 It was common ground on the application to this Court that the MRT had applied the correct form of the Migration Regulations.

THE MRT'S REASONS

14 The MRT referred to medical reports concerning the nominator which had been prepared in 1998. A more up to date report had been prepared, at the MRT's request, by the nominator's treating psychiatrist. The MRT summarised the report as follows:

"28. [The report stated] that the nominator had been his patient since February 1998 and that he treated her for severe anxiety depressive illness triggered by her husband's death which had been complicated by the fact that she is a timorous and rather dependent person. [The psychiatrist] assessed that the nominator could not cope without the ongoing support from the primary visa applicant with whom she had lived and been cared for many years. He stated that the nominator's `emotional and psychological needs are such that they are unlikely to be met outside the family, i.e. through the Australian health and welfare system. If the family are able to remain together and Mrs Singh continues to be compliant to her medication and other treatment, she will remain well and productive."

15 The MRT then recounted the evidence given by the applicant and the nominator. It also noted the evidence of the husband who said that his parents and siblings had left Fiji when he was a child. He had had no direct contact with them since that time and had heard nothing more about them after the death of his grandparents in Fiji some fifteen years before the hearing.

16 The MRT found that the applicant satisfied all criteria for the grant of the Family (Residence) (Class AO) visa, other than those specified in cl 806.213. The only issue so far as cl 806.213 was concerned was whether the applicant satisfied the definitions of "special need relative" or "remaining relative".

17 The MRT said (par 38) that the definition of "special need relative" in reg 1.03 required it

"to consider whether the nominator, the visa applicant's older sister, suffers from a permanent or long term need for assistance because of death, disability, prolonged illness or other serious circumstances. If the Tribunal determines that the nominator has a permanent or long-term need for assistance, it must then consider whether the visa application is able to provide the assistance, which must be substantial and continuing, and further, whether that assistance cannot reasonably be obtained from any other relative who is an Australian citizen or permanent resident, or from welfare, hospital, nursing or community services in Australia."

The MRT continued:

"39. Considering the various elements of this definition the Tribunal must ask: does the nominator have a need for assistance because of a disability, prolonged illness or other serious circumstances? If so, is the need for assistance permanent or long term? What is the nature of the assistance required? Is the visa applicant able to provide that assistance? Is it substantial and continuing? Can that assistance be obtained elsewhere, in particular from other family members or community services in Australia?"

18 The MRT identified the first question as whether the nominator suffered from a permanent and long term need for assistance because of death, disability, prolonged illness or other circumstances. The MRT noted the observation of Heerey J in Tuanmoheloa v Minister for Immigration and Multicultural Affairs, unreported, 4 November 1998, at 8, that the permanent or long term need for assistance must be causally linked to the disability.

19 The MRT observed that the evidence was that the nominator suffered from depression and anxiety and that she was unable to cope on her own. This had been exacerbated by the death of her husband. It accepted the medical evidence that the nominator suffered from depression and anxiety, but noted that the report gave no account of the treatment that the nominator had been receiving or the prognosis for her illness other than that she would remain well and productive if she continued her treatment and the family remained together.

20 The MRT then asked itself whether this was a prolonged illness in circumstances that fell within the definition. It quoted an extract from the policy guidelines (Procedures Advice Manual 3):

"2. Special need relative provisions are intended to cater for situations such as

the death, disability or serious prolonged illness of a spouse or other member of the family unit (as defined in regulation 1.12) that may leave the Australian relative with permanent or continuing problems providing the degree of support that is required to meet the needs of the ill person or the family, or

an incapacitating illness or disability creating a need for physical assistance in the home.

3. 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:

companionship of a relative

homesickness

general domestic assistance

assistance bringing-up children

financial support

assistance in managing a family business

bereavement over death of a spouse."

21 The MRT continued as follows:

"44. It is clear that the nominator's main need is that of companionship and emotional support. This need for companionship arises from her `severe anxiety depressive illness'. The illness does not stem from her sister's absence but has other roots, including that of being a `timorous and rather dependent person' according to [the psychiatrist].

45. It was held in Succary v Minister for Immigration and Multicultural Affairs [(1997) 48 ALD 616] that in determining what assistance is required it is necessary to refer to matters such as the nature of the disability, the treatment obtained, the prognosis, the need for psychological support (which is taken to include emotional support) and why there is the need for assistance. [The psychiatrist's] report covers some of these matters although he does not elaborate on the kind of assistance that the nominator requires other than emotional support by her presence.

46. If it can be said that the nominator has a prolonged illness (depression) does the support rendered by the primary visa applicant amount to continuing and substantial assistance?

47. It was argued in Hussein v Minister for Immigration and Multicultural Affairs [[1999] FCA 1621] that a mere presence of a person (even a mother) 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 that case Emmett J said `I do not consider that it can be meaningfully said that Mrs Hussein would render assistance to Aiyaz in relation to his sadness and depression by remaining in Australia, simply because his sadness might return should she return to Fiji.'

48. In this case, the type of assistance being provided by the visa applicant is emotional and to a great extent consists of being close to the review applicant to provide her with the companionship she seeks. The nominator is not so incapacitated that she cannot work so that the companionship is limited to the times when the nominator is not working. She talks to her when she is depressed, and they go out together. Having regard then to the above two judgments, the Tribunal is not satisfied that the companionship and affection shown by the primary visa applicant to the nominator is the type of assistance that falls within the scope of the legislation and policy intention."

22 The MRT then asked whether the visa applicant could claim that she was a special need relative because she was the only person who could provide the emotional support that the nominator required to cope with her depression and anxiety. It quoted (par 51) from an IRT decision (Sanwant Singh V97/00941, 20 April 1998), including the following passage:

"The test is not a subjective one where Ms Singh alone states who she prefers to be with or receive assistance from but one with an objective element where the Tribunal on the facts of the case must determine in part if the assistance required cannot reasonably be obtained from another relative here or from community welfare services and the like."

23 The MRT continued:

"52. In this case, although the nominator would prefer not to live on her own, but have the visa applicant and her family with her, she continues to work, has some friends and colleagues as well as other family members. The Tribunal is not satisfied that the nominator cannot reasonably obtain emotional support and companionship from these other sources or from community services generally."

24 Finally, the MRT addressed the applicant's claim that she met the definition of "remaining relative" in reg 1.15, as applied to cl 806.213. The MRT rejected the claim:

"53. The primary visa applicant is disqualified from being a remaining relative under subregulation 1.15(2)(b), if the applicant and the spouse (if any) of the applicant together have more than 3 overseas near relatives. The primary visa applicant stated in the application form that she has two overseas near relatives (a sibling in New Zealand and one in the United States). The primary visa applicant's spouse stated on the form that he has four overseas near relatives, his parents and two siblings living in Canada. His birth certificate confirms that he had two older siblings when he was born. At the hearing Mr Narayan said that he had no direct contact with his family since they left him with his grandparents when he was a child. He has had no direct or indirect information about them since his grandparents died more than 15 years ago. In [the] Hughes case [Minister for Immigration and Multicultural Affairs v Hughes [1999] FCA 325; (1998) 86 FCR 567] the court found that the onus was on the Tribunal to make a positive finding in relation to subparagraph 1.15(2)(a)(ii). In this case the relevant paragraph is 1.15(2)(b). A numerical test is applied and the primary visa applicant is disqualified if she and her spouse have more than three overseas near relatives between them. In the absence of any evidence to the contrary the Tribunal accepts the evidence that Mr Narayan has four overseas near relatives.

54. Therefore, together the primary applicant and her spouse have a total of more than three overseas near relatives and are disqualified from meeting the definition of `remaining relative' as set out in the Regulations."

25 The MRT added the following observation at the conclusion of its reasons:

"55. The Tribunal accepts that the visa applicants provide great support to the nominator and that they may take the place of other immediate family as the nominator has no spouse or children of her own. The Tribunal also accepts that the visa applicants have settled well in Australia and that they may well find it difficult to resettle in Fiji given the political changes that have taken place there in the interim. However the Tribunal is not satisfied that the assistance the primary visa applicant provides to the nominator to help her cope with her anxiety and depression is substantial assistance of the kind that falls within the scope of the regulations. It follows that the Tribunal is not satisfied that the primary visa applicant meets the definition of special need relative as set out in the Regulations."

THE GROUNDS OF REVIEW

26 The application identified three grounds for review of the MRT's decision. Two related to the MRT's approach to the "remaining relative" question and one to the MRT's approach to the definition of "special need relative". The grounds were stated in the application as follows:

"1. The decision involved an error of law, being an error involving an incorrect interpretation of the applicable law Section 476(1)(e) of the Migration Act 1958 (Cth) (`the Act').

PARTICULARS

(a) Failure to properly interpret the provisions Regulation 1.15 as to `remaining relative' in not considering whether the husband's siblings could be presumed at law to be dead or otherwise should not be considered remaining relatives.

(b) Failure to properly interpret the provisions of Regulation 1.03 in ruling that it could not apply to a nominator who required emotional assistance.

2. The decision was an improper exercise of the power conferred by the Act or the Regulations: Section 476(1)(d) and (3)(c).

PARTICULARS

Unquestioning acceptance of `policy' in interpreting Regulation 1.03."

27 Section 476(1) provides that the grounds of review include:

"(d) that the decision was an improper exercise of the power conferred by this Act or the regulations;

(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision...".

Section 476(3)(c) states that the reference in s 476(1)(d) to an improper exercise of a power is to be construed as a reference to:

"...

..(c) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case."

28 It should be noted that although counsel for the applicants indicated that he was familiar with the recent High Court decision in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1, no submissions were made on the basis of that decision.

THE "REMAINING RELATIVE" ISSUE

29 Prior to the amendments made by SR 259 of 1999, reg 1.15(1) provided that the applicant was a "remaining relative" if, inter alia, she had a sister who was an Australian citizen and resident, unless she was disqualified under reg 1.15(2). The MRT found that the applicant was disqualified because her husband had more than three "overseas near relatives", namely his parents and two siblings.

30 In Minister v Hughes, Merkel J, with whom Carr J agreed, considered (at 575) the interaction between sub-regs 1.15(1) and (2):

"The ordinary and natural meaning of the language used in regs 1.15(1) and (2) requires that two elements be established - qualification (reg 1.15(1)) and disqualification (reg 1.15(2)(a)). Once the qualifying elements are satisfied the criterion will be met `unless' the disqualifying element is satisfied, that is, that the applicant `usually resides in the same country, not being Australia, as an overseas near relative'. The disqualifying element requires a positive finding that the IRT is satisfied that the applicant usually resides in the same country, not being Australia, as the overseas near relative: see s 65(1)(a)(ii) of the Act. I cannot discern any proper basis for reading the subregulation as requiring disqualification if the applicant has not established to the satisfaction of the Minister or the IRT that he or she does not usually reside in the same foreign country as an overseas near relative." (Emphasis in original.)

31 Mr de Robillard, who appeared for the applicants, submitted that the MRT had misapplied Minister v Hughes, although it must be said that the basis for this submission was not made clear. It is true that the MRT said that the "onus" was on it to make a positive finding in relation to reg 1.15(2)(b). While the choice of the word "onus" was not entirely apposite, it is clear that the MRT recognised that Minister v Hughes required it to be positively satisfied that (relevantly) the husband had more than three overseas near relatives. The MRT in fact found that the husband had four overseas near relatives, namely his parents and the two siblings living in Canada. In my opinion, the MRT correctly understood and applied Minister v Hughes.

32 It became clear from the applicants' written and oral submissions that their real complaint was with the MRT's finding of fact. In substance, Mr de Robillard contended that the MRT had paid insufficient attention to the evidence that the husband had not spoken to his parents or siblings for many years and that he had last heard about them from his grandparents who had died fifteen years earlier. According to Mr de Robillard, this should have led the MRT to conclude that, or at least to consider whether, the husband's parents or siblings had died.

33 Even if Mr de Robillard's criticism of the MRT's finding was well-founded, it would amount merely to an error of fact and would not establish a ground of review. In any event, it is difficult to see why the MRT's finding was not well open to it. The applicant herself, in her application, identified the husband's parents and siblings as her "spouse's family" and identified their country of residence as Canada. (The MRT attributed the information in the application to the husband, but nothing turns on this.) The MRT accepted that the husband had not seen or heard about his four Canadian family members for at least fifteen years, but that of itself did not compel the conclusion, or even suggest, that at least one of them had died.

34 As the MRT pointed out, there was no positive evidence that any of the husband's parents or siblings had died and indeed the applicant never suggested to the MRT that any had. Mr de Robillard did not explain why, on the facts found by the MRT, the presumption of death (a rebuttable presumption of law: Cross on Evidence (6^th Aust ed), at [7275]) would arise. It is difficult to see why it would, since it was hardly to be expected that the husband would hear from his Canadian relatives, bearing in mind that he had lost contact with them many years earlier. Thus even if the presumption of death applies to proceedings before the MRT, a matter on which I express no view (cf Migration Act, s 353(2)(a)), the MRT did not err in law in not invoking the presumption in the present case.

35 The application filed in this Court identified as a ground of review that the MRT had unquestioningly accepted policy in determining whether reg 1.03 had been satisfied. No such claim was made in relation to reg 1.15. Nonetheless, Mr De Robillard advanced an argument to that effect in oral submissions. The basis for the argument was, to say the least, elusive. The contention appeared to be that the MRT had understood the Explanatory Statement to SR 259 of 1999 as imposing an evidentiary burden on the applicant of establishing that she was a "remaining relative". The MRT's reference to the Explanatory Statement was, however, merely for the purpose of drawing attention to the fact that the definition of "remaining relative" had been amended. As the MRT recognised, the amended definition was irrelevant to its decision. There is nothing in the reasons to suggest that the MRT regarded the Explanatory Statement as some form of policy it was bound to apply. On the contrary, the MRT's reasons show that it did not impermissibly cast the onus on the applicant of proving that the husband had fewer than three overseas near relatives.

36 The applicants' written submissions could be read as contending that the disqualification in reg 1.15(2) did not apply if the husband, although having more than three overseas near relatives, had no continuing relationship with them. The point was not referred to in oral argument. In any event, it is without substance.

THE "SPECIAL NEED RELATIVE" ISSUE

The Submissions

37 As I followed the applicants' submissions as ultimately formulated, they attacked the MRT's conclusion that the applicant did not satisfy the definition of "special need relative" in reg 1.03 on three grounds:

(i) the MRT's reliance on Hussein v Minister, a very different case, showed that it had misconstrued the definition;

(ii) the MRT had misinterpreted the definition, by construing it as inapplicable to a person whose principal need is companionship and emotional support; and

(iii) the MRT had regarded itself as bound by the policy stated in the Procedures Advice Manual to find that the nominator did not have a "permanent or long term need for assistance" within the definition.

38 The applicant also challenged the MRT's finding that it was not satisfied that the nominator could not reasonably obtain emotional support and companionship from other sources. According to Mr de Robillard, the MRT was bound to make a finding as to the nature of the assistance required by the nominator and to identify the alternative sources of such assistance, other than the applicant. It had not addressed these questions because it had assumed that a need for emotional support was not within reg 1.03.

The Construction of Regulation 1.03

39 The definition of "special need relative" in reg 1.03, as in force at the relevant time, is framed a little awkwardly. "Special need relative", in relation to an Australian citizen, is defined as 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 (relevantly) "prolonged illness" affecting the citizen; and

(b) "the assistance cannot reasonably be obtained" from other specified sources, notably another relative, or welfare or community services in Australia.

The awkwardness in drafting arises because the reference to the relative's willingness and ability to provide "substantial and continuing assistance" precedes the reference to the citizen's "permanent or long-term need for assistance". Whether the relative can provide "substantial and continuing assistance" to the citizen must be determined in the light of the citizen's "permanent long-term need for assistance". In order to satisfy the definition, the applicant must be able to provide assistance of the kind the citizen needs. In turn, the citizen's need for assistance must be because of prolonged illness or any of the other matters identified in par (a) of the definition (as Heerey J held in Tuamoheloa v Minister: see [18] above).

40 In Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515, Burchett J pointed out (at 527) that the reference to "the assistance" in par (b) of the definition is to the assistance the relative is willing and able to provide. His Honour also pointed out (at 528) that the word "reasonably" in par (b) implies that the question is not merely whether "the assistance" is replaceable, but whether it can reasonably be obtained from the nominated sources. While Burchett J's support in Fuduche for a generally "benevolent" approach to construction of the Migration Regulations has not been followed (see Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 (FC), at 206; Hussein v Minister), there is no reason to doubt the particular observations made by his Honour about the definition of "special need relative".

Reasoning

41 The MRT identified, in pars 38 and 39, the questions that it had to consider in order to determine whether the applicant satisfied the definition of "special need relative". Mr de Robillard did not suggest that the MRT erred in formulating the questions. Nor do I think it did. The case is therefore not one in which the MRT asked the wrong question or failed to identify the relevant questions requiring consideration. Such difficulty as there is in following the MRT's reasoning arises from its failure to make findings on some of the questions it identified. It is useful, therefore, to begin with an examination of the MRT's reasoning process.

42 The MRT found that the nominator suffered from depression and severe anxiety. Indeed, it referred to her as having a "severe anxiety depressive illness". It therefore plainly accepted that she suffered from an illness. It is less clear whether the MRT found that she suffered from a "prolonged illness" for the purposes of par (a) of the definition. Giving the reasons a beneficial construction as required by Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, at 272, I think the MRT did make that finding, at least implicitly. The MRT accepted the psychiatrist's evidence that the nominator's illness had been triggered by her husband's death (although the MRT used the word "exacerbated"). It therefore accepted that the illness had lasted for some five years. Moreover, the MRT itself used the expression "prolonged illness (depression)" (par 46) in a context which implies that it so regarded the nominator's condition.

43 The MRT found that the nominator's main need was that of "companionship and emotional support" arising from her illness. It made no express finding as to whether the need for companionship and emotional support constituted a "permanent or long-term need for assistance" within par (a) of the definition. A reading of the MRT's reasons as a whole suggests that it made no finding on this question, presumably because it did not consider it necessary to do so. Rather, having identified the nominator's main need, the MRT appears to have proceeded directly to the question posed by the opening words of the definition, namely whether the applicant was "willing and able to provide substantial and continuing assistance" to the nominator. On this issue, it found that the applicant had not supplied substantial and continuing assistance to the nominator and, by implication, that she was not willing and able to provide such assistance in the future.

44 That this, rather than the question of "permanent or long-term need for assistance", was the ground on which the applicant failed is reinforced by the MRT's explanation (par 55) for its conclusion. The MRT acknowledged that the applicants provided great support to the nominator and that they had taken the place of other immediate family, but said that it was

"not satisfied that the assistance the...applicant provides the nominator to help her cope with her anxiety and depression is substantial assistance of the kind that falls within the scope of [the definition]".

This explanation of the MRT's reasoning is consistent with its earlier conclusion (par 48) that it was not satisfied that the

"companionship and affection shown by the...applicant to the nominator is the type of assistance that falls within the scope of the legislation and policy intention".

45 The MRT's conclusion that the opening words of the definition were not satisfied seems to have rested on the finding (par 48) that the type of assistance provided by the applicant to the nominator

"is emotional and to a great extent consists of being close to the...applicant to provide her with the companionship she seeks.... [T]he companionship is limited to the times when the nominator is not working". (Emphasis added.)

46 The first of the applicant's complaints was that the MRT had relied on the decision in Hussein v Minister, a case decided on very different facts. The likelihood is that the MRT referred to Hussein v Minister 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. If that was the point, the reference to the facts of Hussein v Minister was not inappropriate, having regard to the MRT's findings in the present case that the emotional assistance provided by the applicant was largely in the form of companionship. In any event, an inappropriate reference to an earlier decision in support of reasoning on a factual question is, at worst, an error of fact.

47 The point can be illustrated by the recent decision of McHugh J in Ex parte Cohen. In that case, the MRT found that the applicant, the father of a child who was an Australian citizen, was not a "special need relative" within the definition of reg 1.03. The MRT applied the Full Court decision in Huang v Minister for Immigration and Multicultural Affairs (1996) 71 FCR 95, which held that a child, merely because of its tender years, could not be said to have a long term need for assistance because of "other serious circumstances" within par (a) of the definition. On an application to the High Court for constitutional writs it was argued that the MRT had committed a jurisdictional error in following Huang, which the applicant said had been wrongly decided.

48 McHugh J inclined to the view that Huang had not been wrongly decided. (His Honour's attention apparently was not drawn to the later Full Court decision in Wu v Minister for Immigration and Multicultural Affairs [2000] FCA 1817; (2000) 105 FCR 39, refusing to following Huang.) But McHugh J considered that even if Huang had been wrongly decided, the MRT had not committed a jurisdictional error. His Honour said this (at 482):

"At worst, it made an error of fact, because, by applying Huang, it erroneously reasoned that [the child] did not have `need for assistance because of a disability, prolonged illness or other serious circumstance'. I do not think that applying a case that wrongly decides a question of fact - the meaning of a non-technical word - can be equated to applying a wrong legal test. Huang decided a question of fact, not a question of law. If the Tribunal had adopted the meanings given in Huang, but without reference to that case, it would not have made a jurisdictional error. It makes no difference that it used Huang as its dictionary instead of interpreting the expressions itself."

49 The present case is stronger for the Minister than Ex parte Cohen. The MRT did not rely on Hussein v Minister as establishing a controlling principle of law, but merely as providing guidance as to whether the applicant could provide the nominator with "substantial and continuing assistance" of the requisite kind. Even if the reference to Hussein was inappropriate, the MRT did not thereby commit an error of law.

50 The applicants' second complaint was that the MRT had misinterpreted the definition of "special need relative" by construing it as inapplicable to a person whose principal need is "emotional support". There may be a question, in the light of the approach taken by McHugh J in Ex parte Cohen, whether such a "misinterpretation" would amount to an error of law rather than a mere error of fact. I am prepared to assume, however, that if the MRT construed the definition as incapable of applying to a person whose principal need is emotional support, the construction would be erroneous and would constitute an error of law.

51 In my opinion, the MRT did not adopt the construction of the definition imputed to it by Mr de Robillard. The MRT concluded that the applicant was not a "special need relative" because it was not satisfied that she could provide "substantial and continuing assistance" to the nominator. (I leave to one side for the moment the MRT's alternative ground, based on par (b) of the definition.) I do not interpret the MRT's reasons as indicating that it took the view that "emotional support" could never be substantial and continuing assistance of the kind contemplated by the definition. The reference in the reasons (par 45) to Succary v Minister shows that the MRT contemplated that psychological support, including emotional support, could satisfy a nominator's need for assistance and that such support, depending on its nature, could amount to "substantial and continuing assistance".

52 The critical finding of fact by the MRT was that the emotional assistance provided to the applicant to a great extent consisted of the applicant being close to the applicant in order to provide her with the companionship she needed. This finding plainly implies that if the emotional support was of a different kind, perhaps directed more specifically to the "roots" of her illness, the MRT might have taken a different view of the case. Had the MRT been of the view that emotional support was altogether outside the scope of the definition, it would not have made the finding in the terms it did. Its rejection of the applicant's case rested on the conclusion that the limited form of emotional support provided by her to the nominator was insufficient to amount to "substantial and continuing assistance". Other fact-finders may not have reached the same conclusion on the evidence, incomplete as it was. But in my view the MRT did not construe the definition as narrowly as Mr de Robillard's submissions suggested.

53 The applicants' third complaint was that the MRT had regarded itself as bound by the policy in the Procedures Advice Manual and had failed to have regard to the merits of the case. The applicants' submission appeared to assume that the MRT's decision involved the exercise of a "discretionary power" within the meaning of s 476(3)(c) of the Migration Act. Mr Jordan, who appeared for the Minister, disputed that assumption. He contended that the MRT was required to make a factual determination and if satisfied that the applicant met the definition of "special need relative", was obliged under s 65(1)(a) of the Migration Act to grant her and the husband the Family Residence (Class AO) visa.

54 Leaving aside the "discretionary powers" point, the applicants' submission encounters the difficulty that the MRT addressed the significance of the Procedures Advice Manual, noting (par 3) that it was "required to have regard to policy and apply it unless there are cogent reasons for departing from policy". Although the MRT did not cite authority for that proposition, its language was in fact drawn from the judgment of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, at 645. Mr de Robillard accepted that the proposition stated by the MRT did not disclose any error. While the proposition stated by the MRT is stated as a matter of course in many MRT decisions, its recitation shows that the MRT was aware that it could depart from policy if there were cogent reasons for doing so.

55 The MRT did not clearly explain why it regarded the Procedures Advice Manual as relevant to its consideration of the factual issues. It appears to have done so, however, because, on its findings, the type of assistance provided by the applicant to the nominator was largely in the nature of "companionship". The Manual stated, somewhat ungrammatically, that the "companionship of a relative", on its own, did not require "substantial and continuing assistance". This presumably was meant to convey that the "companionship of a relative" did not of itself constitute "substantial and continuing assistance" for the purposes of the definition.

56 Perhaps not all decision-makers would have characterised the assistance provided by the applicant to the nominator as "to a great extent [providing] her with the companionship she seeks". Perhaps even then not all decision-makers would have regarded the facts as attracting the policy laid down in the Procedures Advice Manual, bearing in mind the nature of the nominator's illness which gave rise to the need for "companionship and assistance". But these were factual questions for the MRT to resolve, it not being suggested that the MRT had misinterpreted the policy: cf Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189, at 208, per French and Drummond JJ. In this respect, the MRT seems to have been influenced by its finding that the nominator's depressive illness had not stemmed solely from the applicant's absence but had its roots in her personality traits. The MRT's approach to fact-finding does not suggest that it simply disregarded the principle it had set out in its reasons and refused to countenance a departure from the policy stated in the Procedures Advice Manual.

57 Having reached this conclusion, it is not necessary for me to resolve the question of whether the MRT was exercising a "discretionary power" for the purpose of s 476(3)(c) of the Migration Act. The contention, however, appears to have considerable force and is supported by authority: Yong v Minister for Immigration & Multicultural Affairs [2000] FCA 1391, at [11], per Goldberg J; Lal v Minister for Immigration & Multicultural Affairs [2000] FCA 1488, at [7]-[8], per Moore J, and see authorities cited there. Since the point was not fully argued (I was not referred to any of the authorities) I express no final view about it.

58 In view of the conclusions I have reached, it is not strictly necessary for me to consider the applicants' challenge to the MRT's finding that it was not satisfied that the nominator could not reasonably obtain emotional support and companionship from other sources. That finding constitutes only an alternative basis for the MRT's conclusion that the applicant had not satisfied the definition of "special need relative" in reg 1.03. In my opinion, however, the applicants' challenge to that finding did not succeed.

59 The MRT's reasoning on this issue was somewhat cryptic. Nonetheless, Mr de Robillard did not criticise the test applied by the MRT, which was consistent with the observations of Burchett J in Fuduche. The MRT's conclusion again rested on its finding that the nominator's main need arising from her illness was "companionship and emotional support". The MRT was also influenced by its finding that the nominator had friends and colleagues, as well as other family members, and was able to work. The significance of these matters was a factual issue for the MRT to assess. It is true that the MRT did not make clear why it regarded the existence of "other family members" as relevant in view of the nominator's evidence that she had been estranged from them (although the MRT expressed scepticism about the nominator's claim that she was estranged from other members of her family, it did not expressly reject the nominator's assertion). But the absence of a clear explanation goes only to the MRT's reasoning on the factual question it had to resolve.

CONCLUSION

60 The application must be dismissed. The applicants must pay the Minister's costs.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated: 28 June 2001

Counsel for the Applicant:	Mr C R de Robillard
Solicitor for the Applicant:	Harish Prasad & Associates
Counsel for the Respondent:	Mr D Jordan
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	22 June 2001
Date of Judgment:	28 June 2001