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Federal Court of Australia |
Last Updated: 3 February 2005
FEDERAL COURT OF AUSTRALIA
Minister for Immigration and Multicultural and Indigenous Affairs v Hettiarchchige [2005] FCA 37
MIGRATION – appeal from judgment of the Federal Magistrates
Court – Change in Circumstances (Residence) (Class AG) visa –
definition of "special need relative" – whether breach of s 359A of
the Migration Act 1958 (Cth) - jurisdictional error – exercise of
discretion as to relief
WORDS AND PHRASES –
"able"
Federal Court of Australia Act 1976 (Cth) ss 24,
25, 27
Migration Act 1958 (Cth) ss 29, 31, 48, 65, 359A,
379A
Migration Legislation Amendment (Judicial Review) Act 2001
(Cth)
Migration Regulations 1994 (Cth) reg 1.03, cl 806.211
(repealed), 806.213 (repealed), 806.221 (repealed)
Migration Amendment
Regulations (No 2) 2000 (Cth)
Farrington v Deputy
Commissioner of Taxation [2002] FCA 1013, referred to
Low v
Commonwealth of Australia [2001] FCA 702, referred to
Allesch v
Maunz [2000] HCA 40; (2000) 203 CLR 172, referred to
Minister for Immigration and
Multicultural Affairs v Jia Lageng [2001] HCA 17; (2001) 205 CLR 507, referred
to
Coal and Allied Operations Pty Ltd v Australian Industrial Relations
Commission [2000] HCA 47; (2000) 203 CLR 194, referred to
Narayan v Minister for
Immigration and Multicultural Affairs [2001] FCA 1745, referred
to
NAHV of 2002 v Minister for Immigration & Multicultural &
Indigenous Affairs [2003] FCAFC 102; (2003) 129 FCR 214, cited
Fraser v Minister for
Immigration & Multicultural & Indigenous Affairs [2000] FCA 1575,
referred to
Re Drake and Minister for Immigration & Ethnic Affairs
(No 2) (1979) 2 ALD 634, referred to
Wu v Minister for Immigration
& Multicultural & Indigenous Affairs [2000] FCA 1817; (2000) 105 FCR 39,
discussed
Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54,
cited
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30;
(2001) 206 CLR 323, cited
VUAX v Minister for Immigration &
Multicultural & Indigenous Affairs [2004] FCAFC 158, applied
Xiang
v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCAFC 64, applied
Chow v Minister for Immigration &
Multicultural & Indigenous Affairs [2003] FCAFC 88, referred
to
Jackson v Minister for Immigration & Multicultural & Indigenous
Affairs [2003] FCAFC 203; (2004) 75 ALD 643, referred
to
Lobo v Minister for Immigration & Multicultural &
Indigenous Affairs [2003] FCAFC 168; (2003) 200 ALR 359, referred to
Plaintiff
S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476, referred
to
Re Minister for Immigration and Multicultural and Indigenous Affairs;
Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441, referred
to
Scargill v Minister for Immigration & Multicultural &
Indigenous Affairs [2003] FCAFC 116; (2003) 129 FCR 259, referred to
VAAC
v Minister for Immigration & Multicultural & Indigenous
Affairs [2003] FCAFC 74; (2003) 129 FCR 168, referred
to
Carlos v Minister for Immigration and Multicultural Affairs
(2001) 183 ALR 719, referred to
Minister for Immigration and
Multicultural Affairs v Al Shamry [2001] FCA 919; (2001) 110 FCR 27, applied
VAF v
Minister for Immigration & Multicultural & Indigenous Affairs [2004]
FCAFC 123; (2004) 206 ALR 471, applied
Ling v Minister for Immigration and
Multicultural and Indigenous Affairs [2004] FCA 1069
MINISTER
FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V DARMARUCHI
MANARANJANA HETTIARACHCHIGE
V 539 OF 2003
KENNY
J
3 FEBRUARY 2005
MELBOURNE
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT
|
BETWEEN:
|
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
APPELLANT |
|
AND:
|
DARMARUCHI MANARANJANA HETTIARACHCHIGE
RESPONDENT |
|
DATE OF ORDER:
|
3 FEBRUARY 2005
|
|
WHERE MADE:
|
THE COURT ORDERS THAT:
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court
Rules.
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT
|
AND:
|
REASONS FOR JUDGMENT
1 On 13 June 2003, a Federal Magistrate set aside a decision of the Migration Review Tribunal ("the Tribunal") and remitted the matter to the Tribunal for further hearing and determination. The Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") appeals to this Court pursuant to s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). The Chief Justice has directed that the matter be heard and determined by a single judge: see Federal Court of Australia Act 1976 (Cth), s 25(1A). By consent, orders have been made extending the time for the appellant to file and serve a Notice of Appeal.
THE CIRCUMSTANCES IN WHICH THE APPEAL IS MADE
2 The respondent, who is a citizen of Sri Lanka, arrived in Australia in January 1996, travelling on a tourist visa. He was later granted other visas. On 27 July 1998, the respondent applied for permanent residence in Australia, on the ground that he was a "special need relative" to his brother, who is an Australian citizen. On 31 January 2002, a delegate of the Minister refused the respondent’s application for permanent residence. On 15 February 2002, the respondent applied to the Tribunal for a review of the delegate’s decision. When this application failed, the respondent sought judicial review, pursuant to s 39B of the Judiciary Act 1903 (Cth): see also s 475A of the Migration Act 1958 (Cth) ("the Act"). The Federal Magistrates Court heard the matter and, as already noted, the respondent succeeded in having the Tribunal’s decision set aside.
3 By a notice of appeal dated 11 July 2003, the Minister appealed to this Court.
THE NATURE OF THE APPEAL
4 An appeal from a judgment of the Federal Magistrates Court is not an appeal by way of a hearing de novo, nor is it an appeal in the strict sense: cf Farrington v Deputy Commissioner of Taxation [2002] FCA 1013 at [4] per Kenny J; Low v Commonwealth of Australia [2001] FCA 702 at [3] per Marshall J. Such an appeal is conducted as a re-hearing. On an appeal by way of re-hearing, the powers of an appellate court are exercisable only if the appellant can demonstrate that, having regard to the evidence before the appellate court, the judgment under appeal is a consequence of some legal, factual or discretionary error: see Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at 180 [23] per Gaudron, McHugh, Gummow and Hayne JJ; Minister for Immigration and Multicultural Affairs v Jia Lageng [2001] HCA 17; (2001) 205 CLR 507 at 533 [75] per Gleeson CJ and Gummow J; and Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at 203-204 [13]- [14] per Gleeson CJ, Gaudron and Hayne JJ. On an appeal to this Court from the Federal Magistrates Court, this Court may receive evidence that was not adduced below. It may also draw inferences of fact from the evidence that was received below: see Federal Court of Australia Act 1976 (Cth), s 27.
LEGISLATIVE FRAMEWORK
5 Section 29(1) of the Act confers power on the Minister to grant a non-citizen permission, to be known as a visa, to travel and enter and/or remain in Australia. There are different classes of visa. Subsection 31(3) of the Act provides that the regulations may prescribe criteria for a visa or visas of a specified class. Section 65 of the Act obliges the Minister to grant a visa if the Minister is satisfied that the criteria prescribed by the Act and the Regulations have been met. At the time the respondent made his application, the criteria for Change in Circumstances (Residence) (Class AG) subclass 806 visas were set out in Sch 2 to the Migration Regulations 1994 (Cth) ("the Regulations"). (The Migration Amendment Regulations (No 2) 2000 (Cth) repealed the provisions relating to Change in Circumstances (Residence) (Class AG) visas. Nothing turns on this in the present case.)
6 The respondent could not be granted a Subclass 806 (Family) visa unless at the time of application he could satisfy the criteria set out in clause 806.211. These criteria were:
If -
(a) the applicant:
(i) was in Australia on 1 September 1994; and
(ii) was, immediately before 1 September 1994, a person to whom section 37 of the Act as in force immediately before that date applied; and
(iii) has not been granted a substantive visa on or after 1 September 1994; or
(b) the applicant is a person to whom section 48 of the Act applies;
the applicant:
(c) has not been refused a visa or had a visa cancelled, under section 501 of the Act; and
(d) has become an aged dependent relative, an orphan relative, a remaining relative or a special need relative of an Australian citizen, of an Australian permanent resident, or of an eligible New Zealand citizen since last applying for an entry permit or substantive visa.
(Emphasis added)
7 Clauses 806.212 and 806.213 stipulated other criteria to be satisfied at the time of application. In particular, clause 806.213 stated:
The applicant is an aged dependent relative, an orphan relative, a remaining relative or a special need relative of another person who:
(a) is a settled Australian citizen, a settled Australian permanent resident or settled eligible New Zealand citizen; and
(b) is usually resident in Australia; and
(c) has nominated the applicant for the grant of a visa.
(Emphasis added)
There were other criteria to be satisfied at the time of decision, including a criterion that also required the respondent to be a "special need relative" at the time of decision (clause 806.221(a)).
8 Regulation 1.03 relevantly provided:
"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.
9 As will appear hereafter, the Federal Magistrates Court also accepted the respondent’s submission that, in making its decision, the Tribunal had not complied with the relevant parts of s 359A of the Act, as it was required by law to do. This provision is set out below.
THE DECISION OF THE TRIBUNAL
10 The Tribunal recorded that "[t]he application was made on the grounds that the visa applicant was a special need relative of his married brother". The Tribunal had before it the relevant Departmental files and other material submitted on the behalf of the visa applicant, who is the respondent in this proceeding, including reports from a psychologist and a psychiatrist. The respondent, his brother ("the nominator") and the nominator’s spouse gave evidence at a hearing held on 2 October 2002.
11 The Tribunal commenced its discussion under the heading "Findings", by observing:
At the time the visa application was lodged, Change in Circumstance (Residence) (Class AG) contained a number of subclasses. The only subclass in respect of which any claims have been advanced is subclass 806, and then only in respect to the ‘special need relative’ ground. There is no evidence to suggest that the visa applicant meets key criteria for other subclasses or other grounds.
12 The Tribunal found that the respondent met the criterion in clause 806.211(b), being a person to whom s 48 of the Act applied, and the criterion in clause 806.212, relating to the time of the application. The balance of its reasons were concerned with whether the respondent was a "special need relative" as defined in reg 1.03 of the Regulations, for the purposes of clauses 806.213 and 806.221.
13 Before discussing the definition of "special need relative", the Tribunal remarked:
In this case the Tribunal did not find the evidence of the visa applicant and his witnesses to be particularly convincing. Frequently the evidence before the Tribunal was inconsistent with the claims being made by the visa applicant and the Tribunal finds that, at times, the statements of the visa applicant were inflated to advance his claims to be a special need relative.
14 The Tribunal held that the nominator was a relative within the meaning of reg 1.03 and that he had been granted a permanent visa in October 1996 and Australian citizenship on 9 March 2000. The Tribunal accepted that, "[o]n the basis of the evidence before it ... the nominator has suffered from bouts of depression". The Tribunal observed that, "[h]aving established that a condition exists", it was required to "identify distinctly what the nominator actually needs by way of assistance as a result of his condition".
15 The Tribunal noted that "the psychological and psychiatric reports submitted in support of the visa application [did] not elaborate further on the type or level of other assistance the nominator required in July 1998 or at present as a result of his condition". The Tribunal said:
The Tribunal is required to consider whether the nominator had a permanent or long-term need for assistance at the time of application in April 1998. ... The Tribunal observes that despite his fears for the visa applicant’s safety in Sri Lanka, the nominator was able to travel to Sri Lanka without the visa applicant in both 1998 and 2002. He has also engaged in fulltime employment since 1997. The psychologist has stated that the only suitable treatment for the nominator’s condition is to allow the visa applicant to remain in Australia. Although it was claimed that the visa applicant faces physical harm, if not death, if returned to Sri Lanka there is little objective evidence to support this claim. The evidence is that none of the members of the visa applicant’s family in Sri Lanka has been subjected to threats of harm and the nominator has travelled there without fear or incident.
The Tribunal further notes that in July 1998 there is little in terms of objective medical evidence outlining the specific type of assistance the nominator required in relation to his condition. The nominator gave evidence that he does not require assistance with administering his own medication or tasks like showering. The visa applicant gave evidence that he provided emotional [support] to the nominator and also with household chores, including taking the nominator to medical appointments. The nominator confirmed this in evidence to the tribunal. [The Procedures Advice Manual] provides the following commentary on the interpretation of special need relative:
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 in bringing-up children
• financial support
• assistance in managing a family business
• bereavement over death of a spouse.
On the evidence before the Tribunal the primary need of the nominator appears to have been companionship, together with some domestic assistance. As noted above, PAM3 provides that in the absence of other factors, companionship of a relative and domestic household assistance does not constitute a permanent or long-term need for assistance. The Tribunal has had regard to and applied the cases of [Hussein v Minister for Immigration and Multicultural Affairs [1999] FCA 1621] and [Su v Minister for Immigration and Multicultural Affairs [2001] FCA 1409] in considering whether the nominator is affected by other serious circumstances. The Tribunal finds that a need for daily emotional and physical support as well as companionship is something experienced by many members of the community and does not, on its own, amount to a need for substantial assistance. Further, the Tribunal considers that feelings of disappointment on the part of Australian based relatives are not unusual when a visa application is refused. Therefore, the Tribunal finds that such feelings also do not give rise to a need for substantial assistance.
On the basis of the evidence before it, the Tribunal finds that the nominator suffered from depression on an intermittent basis at the time of application. However, in the circumstances of this case the Tribunal does not accept that a condition that only arises in an intermittent fashion, upon receipt of negative news from the Department regarding a visa application, constitutes a prolonged illness within the meaning of a ‘special need relative’ as that term is defined in the Regulations. Taking into account the nominator’s age and mental state, including his fears for the visa applicant’s safety, the Tribunal finds that the nominator’s condition did not give rise to a permanent or long-term need for assistance in the terms required by regulation 1.03 at the time of application. Further, the Tribunal finds that these factors also do not cumulatively constitute a "disability" at the time of application that gave rise to a permanent or long-term need for assistance.
The Tribunal accepts that the nominator and the visa applicant have a close relationship and the nominator may be more comfortable if the visa applicant remains in Australia. However, in the light of the case law cited above, the Tribunal is not satisfied that this constitutes circumstances of such seriousness as to be similar to death, disability or prolonged illness or ‘other serious circumstances’ within the definition of special need relative. The Tribunal finds that in the absence of other circumstances, the need for companionship and domestic household assistance does not constitute a serious circumstance or a permanent or long-term need requiring substantial and continuing assistance. Further, the Tribunal finds that there are no other serious circumstances affecting the nominator so as to bring the visa applicant within the definition of special need relative.
For the purposes of clause 806.213 the relevant time for assessment is at the time of application and at that time the Tribunal finds that the nominator’s condition did not fall within the definition in regulation 1.03.
16 The Tribunal accepted that the respondent had been "willing and able in the past to provide assistance to the nominator in terms of household assistance, companionship and taking the nominator to medical appointments". After referring to Narayan v Minister for Immigration and Multicultural Affairs [2001] FCA 1745 ("Narayan"), the Tribunal found, however, that the respondent was not able to provide such assistance at the time of her application. The Tribunal’s treatment of this issue is discussed below.
17 In summary, the Tribunal held that the respondent was not entitled to the grant of a Change in Circumstance (Residence) (Class AG) visa because he did not satisfy the criterion in clause 806.213; that is, he failed to demonstrate that he was a "special need relative", as defined in reg 1.03.
THE DECISION OF THE FEDERAL MAGISTRATE
18 As already noted, the respondent challenged the Tribunal’s decision in the Federal Magistrates Court. The Federal Magistrate upheld his submission that, in relying upon international movement records maintained by the Department, the Tribunal had breached s 359A of the Act. Her Honour said:
It is implicit the Tribunal asked the visa applicant about such travel during the course of the hearing although in what manner I am unable to determine. The respondent is responsible for the filing of the court book but did not include in same a transcript of the [Tribunal] hearing. This is usual and ordinarily a transcript is not required. However, this court is being asked to determine whether the applicant was afforded a fair hearing. It is clear the nominator was asked about such travel. There is no evidence before this Court that the [Tribunal] ever put to the applicant or nominator during the hearing that the travelling overseas on two occasions as described ... would be a reason or part of the reason for decision to affirm the decision of the delegate. This also raises the question of the respondent’s compliance with s 359A of the Act.
It is clear that international movement records maintained by the Department was not information provided by the applicant. Such information related to the visa applicant’s application and was adverse to him. It, upon a fair reading of the Tribunal’s reasons, was information which formed a part of the Tribunal’s reasons for finding against the applicant. The Tribunal for instance found that the break in care as a result of the overseas travel of the nominator was such that the applicant was not ‘able’ to provide substantial and continuing assistance to the nominator. The Tribunal was obliged pursuant to s 359A of the [A]ct to advise the applicant of such records and their relevance to the proceedings and invite the applicant to comment on those records. There was a failure by the [Tribunal] to provide the applicant with such written request being a failure to comply with obligations imposed on it pursuant to sections 359A and 379A of Act. This contravened s 476(1)(a) of the Act.
[References omitted.]
19 The Federal Magistrate also found that the Tribunal’s decision involved other errors of law. The Federal Magistrate stated:
The Tribunal found the nominator to suffer from severe bouts of depression and described same as a ‘condition’. It then proceeded to determine whether that ‘condition’ was a prolonged illness, disability or serious circumstance on the basis of whether the nominator had a permanent or long-term need for substantial and continuing assistance on a false assumption as to the meaning of the term ‘substantial and continuing assistance’. It did not firstly conclude that the nominator suffered from a disability, prolonged illness or other serious circumstance as a result of which the nominator had such a need for assistance.
Clearly, whether the nominator is in need of ‘substantial and continuing assistance’ is a question of fact for the Tribunal to determine. The Tribunal however appears ... to have based its findings of fact on the basis that assistance in the nature of the performance of domestic chores and the provision of companionship could never satisfy the definition of ‘special need relative’. This is an error of law.
...
I accept counsel for the applicant’s submission that the [Tribunal] should have asked the question, whether as a matter of fact, the needs of the nominator for assistance, as identified, constituted a permanent or long-term need for substantial and continuing assistance. Rather, it reasoned in the taking into account of an irrelevant matter that the needs of the nominator could not satisfy the definition because those needs were ‘experienced by members of the community’.
Counsel for the applicant also submitted that the [Tribunal] erred in failing to ask the correct question in applying the definition of serious circumstances. I accept that submission. The correct approach is as set out by the Full Court of the Federal Court in Wu v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1817; (2000) 105 FCR 39 at page 54. It is not referrable to any list of prescribed circumstances but neither
"In our opinion the word ‘serious’ is simply intended to reinforce the nature of the assistance that is central to the definition, namely assistance which is substantial and continuing in relation to a need for assistance which is permanent or long-term. That is, the circumstance is sufficiently serious that, in relation to a citizen, it would require assistance of that same sort that would be required if the citizen was suffering from a disability or prolonged illness."
I conclude that the [Tribunal] decision is infected by jurisdiction [sic] error of law and thus is not a decision for the purposes of section 474 of the Act.
[Emphasis original.]
THE PARTIES’
SUBMISSIONS
The Minister’s submissions
20 The Minister’s case on appeal was that the Federal Magistrate had wrongly attributed error to the Tribunal. In substance, the Minister contended that the Federal Magistrate erred in her finding with respect to s 359A of the Act and in finding error in the Tribunal’s application of the definition of "special need relative".
21 In written contentions, augmented at the hearing of the appeal, the Minister submitted that the Federal Magistrate had erred in holding that the Tribunal had not complied with s 359A of the Act. At the hearing, counsel expressly abandoned any attempt to have the Court rely on the transcript of the Tribunal hearing, which, as previously noted, was not before the Federal Magistrate. The Minister submitted that it was apparent from the Tribunal’s reasons that the issue of the nominator’s travel had been dealt with in detail in evidence before the Tribunal and, in any case, the visa applicant provided the "information concerning travel by the nominator, without the visa applicant" and that, by virtue of s 359A(4), s 359A did not apply.
22 The Minister submitted that, if there was a breach of s 359A, the error was not a jurisdictional error attracting discretionary relief; alternatively, that a breach did not vitiate the decision. Referring to NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 102; (2003) 129 FCR 214 at 220 per Carr, Kiefel and Allsop JJ, the Minister submitted, first, that, in the circumstances, there was no failure to accord procedural fairness that could amount to a failure to exercise jurisdiction or an excess of jurisdiction. Secondly, the Minister submitted that, even if there was jurisdictional error, relief should be refused because: (a) the respondent did not file any material or make any submission to support a contention that he would have placed further material before the Tribunal if the matter had been drawn to his attention; (b) the respondent and the nominator gave evidence of the nominator’s travel and the reasons for it, and there was no unfairness to the respondent in a practical sense; (3) the application failed on other grounds, and the information in question "could in no sense be described as a matter critical to the adverse decision"; and (4) the Federal Magistrate’s reference to s 476(1)(a) of the Act was mistaken, since this provision had been repealed. The Minister submitted that the alleged breach could not vitiate the decision because it did not affect the critical finding that the nominator did not suffer a condition requiring a permanent or long-term need for assistance.
23 In written submissions, the Minister also challenged the Federal Magistrate’s finding that the Tribunal erred by proceeding upon the basis that, as a matter of law, assistance in the nature of domestic chores and companionship could never satisfy the definition of special need relative. The Minister submitted that "[a] fair reading of the Reasons for Decision of the Tribunal do not permit the conclusion reached by her Honour". Referring to the decision in Fraser v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1575 ("Fraser") at [32], [36]-[38] per Weinberg J, the Minister submitted that:
The passages in the Tribunal’s reasons referred to by her Honour ... further support the contention that the Tribunal correctly appreciated the role of policy.
...
In this case the Tribunal considered in detail the evidence regarding the condition of the nominator and any assistance that he required. It decided the matter on its merits, properly having regard to the PAM3 policy.
24 At the hearing of the appeal, counsel for the Minister contended that the Tribunal’s application of PAM 3 was consistent with the authorities, including Wu v Minister for Immigration & Multicultural Affairs [2000] FCA 1817; (2000) 105 FCR 39 ("Wu") and Narayan. Counsel submitted that, bearing in mind the Tribunal’s statements regarding the application of PAM 3 to the facts before it, it could not be said that the Tribunal "blindly" applied the policy. Further, contrary to the Federal Magistrate’s decision, the Tribunal did not ask itself the wrong question; rather, the Tribunal’s approach was "entirely consistent with the decision in Wu".
25 In written submissions and at the hearing, the Minister also contended that the Federal Magistrate erred in finding error in the Tribunal’s finding that "a need for daily emotional and physical support as well as companionship is something experienced by many members of the community and does not, on its own, amount to a need for substantial assistance". The Minister submitted that "[h]er Honour’s comments do not accurately reflect what the Tribunal said"; and that "[t]he finding of facts, including the degree of assistance required by the nominator was a matter for the Tribunal". Referring to Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 77-78 per Brennan J and Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 351-352 [83]- [84] per McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed), the Minister contended that "[e]ven if the Court would have come to a different conclusion on the facts, such an error is not reviewable".
26 At the hearing of the appeal, counsel for the Minister relied on the decision of the Full Court in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 ("VUAX") in submitting that the critical finding made by the Tribunal was that the nominator did not suffer a condition requiring a permanent or long-term need for assistance and, even if the Tribunal made the errors identified by the Federal Magistrate, none of these errors impugned this critical finding. The appellant submitted that the Tribunal had clearly considered the nature of the nominator’s condition and the need for assistance that arose as a consequence and made its findings accordingly.
27 Finally, at the hearing, the Minister submitted that a further ground of appeal agitated by the respondent, which relied on Xiang v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 64 ("Xiang"), could not be made out; and, even if it could, no such error could vitiate the Tribunal’s decision, because it did not affect the critical finding on which the decision turned.
The respondent’s submissions
28 At the hearing of the appeal, the respondent acknowledged that the Tribunal found that, at the relevant times, the nominator suffered from neither a prolonged illness nor a disability. The respondent contended that the Tribunal erred in its consideration of "other serious circumstances", because it did not apply the test in Wu and it excluded the identified need for assistance from its consideration. In written submissions, relying on Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 88 ("Chow"), Jackson v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 203 ("Jackson") and Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; (2003) 200 ALR 359 ("Lobo"), the respondent submitted that:
[U]pon a fair reading of the [Tribunal’s] reasons, it ... found that [the] needs [of the nominator], in the absence of other circumstances, could never constitute a permanent or long-term need for assistance, could never constitute substantial assistance and could never constitute a serious circumstance.
That reasoning was legally erroneous. The question the [Tribunal] should have asked itself was whether as a matter of fact, the needs of the nominator, as identified, constituted a permanent or long-term need for substantial and continuing assistance. Further, the [Tribunal’s] erroneous reasoning, in this respect, also constituted jurisdictional error.
...
Whatever the basis of the [Tribunal’s] reasoning, the effect of it was to exclude from its consideration whether the assistance needed by the nominator and provided by the respondent, as identified, did, as a matter of fact, satisfy the definition. It is submitted that that approach involved jurisdictional error by the [Tribunal].
However, to the extent necessary, even if the [Tribunal] reasoned as it did as a result of applying PAM3, the question is not whether the [Tribunal] applied that policy but whether the [Tribunal] correctly applied the relevant legislative requirements. The [Tribunal] will not correctly apply the legislative requirements if it blindly applies policy in the absence of a consideration of the merits of the case or where the policy is inconsistent with the legislative requirements.
The respondent elaborated these submissions at the hearing.
29 In written submissions, the respondent also contended that:
By the incorporation of the definition of ‘special need relative’, subclause 806 clearly contemplates the provision of a visa to a non-citizen where the non-citizen provides assistance needed by, inter alia, an Australian citizen and where the assistance needed is not available in Australia. It is therefore irrelevant to subclause 806 that the needs of the relevant Australian citizen are, as a matter of fact, "experienced by many members of the community".
The respondent contended that, by its reference to the experience of many members of the community, the Tribunal disclosed that it took into account an irrelevant matter. Referring to Wu, the respondent submitted that the Tribunal had erred by adopting a blanket approach that the needs identified in this case could not satisfy the definition of "special need relative".
30 Regarding the s 359A point, the respondent contended:
There is no evidence that the respondent was given any opportunity ... to comment upon the ‘international movement records’ which the [Tribunal] perceived to be adverse to the applicant’s case because they suggested that the respondent had not been able to provide substantial assistance to the nominator because of the "break in the care of the nominator".
Because that reasoning by the [Tribunal] was a reason or part of a reason for the [Tribunal’s] decision, the [Tribunal] had contravened s 359A of the Migration Act. Such a contravention will result in a decision which is not protected by s 474 of the Migration Act.
31 The respondent submitted that, for the purposes of s 359A, the relevant "information" was the "international movement records" database, which provided an authoritative source of information about the duration of the nominator’s travel overseas. The respondent argued that the international movement records were a reason or part of a reason for the Tribunal’s decision because:
(a) the [Tribunal] expressly referred to those records and that they disclosed the period spent overseas by the nominator; (b) the [Tribunal’s] reasons do not disclose that, in this respect, it attached sole, or indeed any, significance to the evidence of the respondent; (c) the [Tribunal] attached weight to the duration of the overseas travel and the material provided to the [Tribunal] upon the respondent’s behalf referred to the nominator simply having travelled to Sri Lanka for treatment ... ; and (d) the [Tribunal’s] reasons are not based upon any material provided by the respondent to the delegate as to the duration of the nominator’s travel to Sri Lanka. [Emphasis original]
The respondent added:
In any event, material given by the respondent to the appellant’s Department is not comprehended by s 359A(4)(b) because the words "for the purpose of the application" in s 359A(4)(b) refer to the application to the [Tribunal] and not to the application for the relevant visas.
...
Even if a narrow reading of s 359A(4)(b) comprehended material which the respondent did not "give", which is not conceded, the material question was whether or not the break in the care resulted in the respondent not being able to provide the requisite assistance. Thus even it there was material before the [Tribunal] to suggest that the respondent knew of the periods of overseas travel by the nominator that would not discharge the obligation to state how that information was relevant to the [Tribunal’s] decision. If that question had been raised with the respondent, it cannot be said that the result would not have been different. [Emphasis original]
The respondent submitted that, had his attention
been drawn to these matters, "[t]here may have been many matters [he] could have
raised"; and there was no certainty that the Tribunal would have come to the
same result.
32 At the hearing, the respondent also sought leave to raise an additional ground to support his contention that the Tribunal’s decision involved jurisdictional error. This ground was that:
[T]he decision of the [Tribunal] was made without jurisdiction or is affected by jurisdictional error because the [Tribunal] misconstrued and misapplied the word "able" in the statutory definition of "special need relative" and therefore misconstrued and misapplied subclause 806.213 of the Migration Regulations 1994.
As already noted, in
support of this ground, the respondent contended that the Tribunal in this case
had committed the same error
as in Xiang. The respondent contended that,
if the Tribunal had asked itself the right question, then it might well have
come to a different
decision.
CONSIDERATION
33 The scope of the Federal Magistrate’s review jurisdiction in this case was affected by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), which inserted s 474 into the Act, as explained by the decisions of the High Court of Australia in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 ("Plaintiff 157/2002") and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441. A decision that is affected by jurisdictional error does not fall within s 474, which is a privative provision: see Plaintiff S157/2002 at 506-508, 511 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
Was there misconstruction of "special need relative"?
34 The Full Court said in Lobo at 371 [43]:
Where the minister misconstrues one of the criteria prescribed in the Act or regulations and, because of that misconstruction he considers that the criterion has not been satisfied, it is as though he did not consider the criterion at all. For, on the face of it, he has failed to ask the question which the Act and the regulations, upon a proper construction of the criterion, require him to ask.
The question that arises first is whether the Tribunal misconstrued the criterion for the grant of the relevant visa; and, if so, whether, having regard to s 474, any misconstruction has the effect of vitiating the Tribunal’s decision. An error that has this effect is a jurisdictional error, which is not protected by s 474 of the Act: see Lobo at 376 [62] per French, Sackville and Hely JJ; also Scargill v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 116; (2003) 129 FCR 259 at 268 [31] per French, von Doussa and Marshall JJ.
35 The Tribunal considered the evidence and made findings by reference to the elements of the definition of "special need relative" in reg 1.03. As part of this process, in its reasons, it discussed the application of the definition to the facts of the case by reference to the following headings:
Whether the visa applicant was nominated for the visa by a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. Whether the nominator is settled and usually resident in Australia.
The permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances.
Whether the visa applicant is willing and able to provide substantial and continuing assistance to the nominator.
It was under the second heading that the Tribunal found that the nominator suffered from bouts of depression. Its next step was to consider whether the nominator had a permanent or long-term need for assistance because of the nominator’s condition, and whether this condition constituted "disability, prolonged illness or other serious circumstances".
36 Although the Tribunal’s reasons could have been expressed more clearly than they were, I accept the Minister’s submission that, on a fair reading, the Tribunal did not, as the Federal Magistrate held, approach its enquiry upon the basis that a need for companionship and domestic help could never satisfy the definition of special need relative. Further, I reject the respondent’s submission that the Tribunal applied the policy in PAM 3 blindly or pursued a "blanket" approach to the relevant questions concerning the assistance needed and the nominator’s condition.
37 The Tribunal’s approach cannot be evaluated properly without reference to the authorities. It is important to keep in mind the observation of the Full Court (consisting of Heerey, Moore and Goldberg JJ) in Wu at 54:
[T]here is nothing about the expression "other serious circumstances" nor its immediate statutory context which suggests that a necessary feature of the circumstances is that they be out of the ordinary or unexpected. In our opinion the word "serious" is simply intended to reinforce the nature of the assistance that is central to the definition, namely assistance which is substantial and continuing in relation to a need for assistance which is permanent or long-term. That is, the circumstance is sufficiently serious that, in relation to a citizen, it would require assistance of the same sort that would be required if the citizen was suffering from a disability or prolonged illness.
38 In a similar vein, Lindgren, Tamberlin and Merkel JJ noted, in their joint judgment in Narayan at [39], that "[t]he opening paragraph and par (a) of the definition are closely related". Their Honours added at [40] that:
We agree with the primary Judge’s observation ... that the definition of "special need relative" is "framed a little awkwardly". Perhaps some of the awkwardness is removed if the opening paragraph and par (a) are read purposively and as a whole. Paragraph (a) describes the need which the citizen or resident must have. The opening paragraph describes the kind of assistance which the visa applicant must be able to provide in response. Although the relationship between the two paragraphs is not stated expressly, it is not surprising that that assistance which the visa applicant is willing and able to provide is required to be "continuing", since the need referred to in par (a) is "permanent or long-term". Similarly, since the cause of the permanent or long-term need must be "serious" circumstances as described in par (a), it seems likely that often such a need will be able to be met by nothing less than "substantial assistance".
39 In Jackson at [17], the Full Court (constituted by Lee, Carr and Moore JJ) also remarked:
There is an obvious link drawn in the regulation between what can be provided by the relative and what is needed by the nominator: see Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 88 at [22].
Their Honours went on to say, at [22]:
The purpose of the definition (as it operates in the prescribed criteria) is to enable a citizen or resident to obtain assistance from a relative at times of real need which will continue for a prolonged period.
40 The Tribunal’s approach was consistent with the authorities. After finding that the nominator suffered from bouts of depression, the Tribunal sought to identify "what the nominator needs by way of assistance as a result of his condition", by referring to the psychological and psychiatric reports submitted in support of the respondent’s visa application. It noted that these reports did not specify the kind of assistance that the nominator required on account of his depression; and went on to refer to various disparate matters, which, taken together, militated against his case, including commentary in PAM 3, the nominator’s age, the nominator’s travelling to Sri Lanka in 1998 and 2002, the nominator’s engagement in full-time employment, a lack of objective evidence to support claims that the respondent was in danger in Sri Lanka, and a lack of medical evidence about the specific type of assistance the nominator required.
41 In considering the evidence of the respondent and his brother on this last-mentioned matter, the Tribunal noted the respondent’s evidence that he gave the nominator emotional support and assistance with household chores. It concluded, as it was open for it to do, that that the primary need of the nominator was for companionship and domestic assistance.
42 As part of its discussion about the assistance needed, the Tribunal referred to the relevant commentary in PAM 3, noting that the effect of PAM 3 was that, in the absence of other factors, companionship and household assistance did not constitute a permanent or long-term need for assistance. Neither this statement nor the Tribunal’s statement, at the outset of its reasons, that it was "required to have regard to policy and apply it unless there [were] cogent reasons for departing from policy" disclosed error.
43 There was no error in the statement concerning the role of policy. This statement derived from the judgment of Brennan J in Re Drake and Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 and has been accepted as correct for over twenty years: compare Narayan at [54] per Sackville J; Fraser at [36]-[38] per Weinberg J. Although the Tribunal treated the commentary in PAM 3 as an important consideration, the Tribunal carefully considered the evidence and other material before it. The Tribunal did not in fact say that there were no circumstances in which companionship and domestic assistance could amount to substantial and continuing assistance. This would be wrong. As Moore, Emmett and Bennett JJ said in their joint judgment in Chow at [28]:
The performing of domestic chores and the giving of companionship could constitute substantial and continuing assistance in some circumstances. If a resident had a permanent or long-term need for assistance, consisting of the provision of domestic chores and companionship, the pre-requisites of the definition could be satisfied.
As we have seen, the
Tribunal did not treat PAM 3 as requiring a contrary conclusion; and its
reasons showed that it fully appreciated
that each case depends on its own
facts. This was consistent with its understanding that the effect of PAM 3 was
that, in the absence of other factors, companionship and household
assistance would not amount to assistance of the requisite kind.
44 Further, the Tribunal’s reference to the experience of "many members of the community" did not mean that the Tribunal considered, contrary to Chow, that companionship and domestic assistance could never amount to "substantial and continuing assistance", or that the Tribunal had regard to an irrelevant consideration. The Tribunal was not propounding the view that companionship and domestic assistance could never satisfy the definition because many members of the community have these same needs. The Tribunal did not say this. What the Tribunal said was "that a need for daily emotional and physical support as well as companionship ... does not, on its own, amount to a need for substantial assistance" (emphasis added). When the Tribunal’s reasons are read as a whole, this was simply another way of saying that the respondent had not established that, in the circumstances of the particular case, the companionship and domestic help that he could provide amounted to substantial and continuing assistance. The Federal Magistrate was in error in so far as her Honour reached a contrary conclusion.
45 For these reasons, I reject the respondent’s submission that, considered as a whole, the Tribunal’s reasons showed that the Tribunal pursued a "blanket" approach or applied PAM 3 "blindly". The Tribunal emphasised the inadequacy of the medical evidence concerning the assistance needed by the nominator and, in making its determination, expressly had regard to particularities of the case, including the nominator’s age and other relevant circumstances.
46 There was, however, error in another aspect of the Tribunal’s consideration of the elements of the definition of "special need relative". As already noted, at the hearing, the respondent sought leave to rely on a further ground of challenge to the Tribunal’s decision, even though it was not raised before the Federal Magistrate. This ground was:
The decision of the Migration Review Tribunal was made without jurisdiction or is affected by jurisdictional error because [the Tribunal] misconstrued and misapplied the word "able" in the statutory definition of "special need relative" and therefore misconstrued and misapplied subclause 806.213 of the Migration Regulations 1994.
47 This ground raises an issue that was identified by a Full Court of this Court in Xiang. The Court published its reasons for judgment in Xiang on 23 March 2004, approximately nine months after the hearing of the matter by the Federal Magistrate. The appellant accepted that, in the absence of prejudice, leave should in fact be granted, "if a visa applicant has a sufficiently compelling point that ... would result in [an] adverse decision being overturned". I would grant the leave sought, bearing in mind the merit in the point, the explanation for failing to raise it before the Federal Magistrate, and the interests of the parties: see further VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74; (2003) 129 FCR 168 at 176-179 [23]- [38] per North, Merkel and Weinberg JJ; VUAX at [48] per Keifel, Weinberg and Stone JJ.
48 In Xiang, the tribunal found that, at the time of her application for a "special need relative" visa, Ms Xiang was not "able" to provide substantial and continuing assistance to her aunt, who was the nominator, because she had not provided assistance while her aunt was overseas and, prior to her aunt’s departure, she had commenced employment, which she later continued at home. The Full Court, consisting of Goldberg, Finkelstein and Weinberg JJ, held that the Tribunal misconstrued the criterion. The Court said, at [7]:
In the tribunal’s view a visa applicant is not "able" to provide the required assistance if the applicant does not in fact provide that assistance. That is not what the word means. A visa applicant must show that he or she is "willing and able" to provide the required assistance. The first limb (the applicant’s willingness) is concerned with the applicant’s state of mind. Is the applicant prepared to do what is necessary to provide the assistance? The second limb (whether the applicant is "able" to provide that assistance) calls for an objective inquiry. The question is whether the visa applicant is a person who is suitable or fit to provide the assistance. That the visa applicant may not have provided the assistance to a relative during the intervening period (or indeed at any time), especially for reasons beyond the applicant’s control, will normally be irrelevant to the tribunal’s inquiry.
The respondent submitted that the Tribunal in this case made the same error.
49 In the course of its reasons, the Tribunal said:
The issue before the Tribunal is whether a visa applicant can be regarded as being "able" to provide substantial and continuing assistance if he ceases to provide care to the nominator for a period of time. In this case the visa applicant has been engaged in employment since September 1996. The nominator has also been engaged in fulltime employment during the same period. In addition, the Tribunal takes into account the nominator’s ability to depart Australia in 1998 and 2002 without the visa applicant. In the circumstances the Tribunal finds that although the visa applicant may have been "willing", he has not been "able" to provide substantial and continuing assistance to the nominator. The Tribunal finds that the break in the care of the nominator as a result of the visa applicant and the nominator’s employment, as well as the nominator’s travel overseas, could not be regarded as merely a temporary and expected interruption to the overall care provided by the visa applicant to the nominator.
50 This passage shows clearly that the Tribunal did not ask itself the question that it should have asked. That is, the Tribunal did not consider whether the respondent was "suitable or fit to provide the assistance", as Xiang would require. The Tribunal in the present case committed the same error as the tribunal in Xiang because, in considering whether the visa applicant was "able" to provide the requisite assistance, it focussed on whether in fact the care had been provided and not the suitability and fitness of the applicant to provide the care. Xiang held that the resulting error was jurisdictional error: Xiang at [11]-[12]. I return to the consequences of this below.
Was there a breach of s 359A of the Act?
51 As the previous discussion shows, the Tribunal treated "the nominator’s ability to depart Australia in 1998 and 2002 without the visa applicant" as relevant to its conclusion that the respondent "has not been ‘able’ to provide substantial and continuing assistance to the nominator". As we have seen, the Federal Magistrate accepted the respondent’s submission that he was not given an opportunity as provided by s 359A of the Act to comment upon the "international movement records" evidencing the nominator’s travel abroad.
52 Section 359A provides as follows:
(1) Subject to subsection (2), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason or part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies -- by one of the methods specified in section 379A; or (b) if the applicant is in immigration detention -- by a method prescribed for the purposes of giving documents to such a person.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.
Section 379A
prescribes the methods by which the Tribunal gives documents to a person other
than the Secretary.
53 This Court has considered the operation of ss 359A and 424A (a counterpart provision governing the Refugee Review Tribunal) on a number of occasions. In relation to these provisions, Merkel J said, in Carlos v Minister for Immigration and Multicultural Affairs (2001) 183 ALR 719 at 725 [21], that the authorities establish the following propositions:
• The obligation to provide the information in question is enlivened when the tribunal forms the view that there is knowledge communicated about some fact or circumstance that is material to the review and is adverse to the applicant ... ; • If information adverse to an applicant is relied upon in the reasons of the tribunal, a failure to have complied with the statutory requirements in respect of that information will found a ground of review ... ; • Untested assertions communicated to, or received by, the tribunal can constitute information irrespective of whether the information received is reliable or has a sound factual basis; thus, the section can apply when the tribunal has received information ‘regardless of its source’ if it considers the information would be a reason or part of the reason for affirming the delegate’s decision ... ; • The section is concerned with information of which the tribunal becomes aware, rather than with its subjective decision-making process ... .
[Citations omitted]
For present purposes, I accept this summary as correct.
54 In Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919; (2001) 110 FCR 27 ("Al Shamry"), the Full Court held that, in s 424A, the word "applicant" means an "applicant for review by the Tribunal of a Ministerial decision" and "application" has the corresponding meaning of "the proceeding before the Tribunal which is the vehicle for such a claim for review": see Al Shamry at 34 [17] per Ryan and Conti JJ and 38-39 [35] per Merkel J. In s 359A, the same words must bear the same meaning as in s 424A, there being no relevant difference between the provisions.
55 In Al Shamry Merkel J went on to say, at 40 [39]-[40]:
Section 424A does not require the RRT to provide to an applicant all of the information upon which it proposes to act, other than information provided by an applicant for the purpose of the review. Rather, the section requires the RRT to provide the applicant with "particulars of any information" that the RRT considers would form part of its reason for refusing the application for review, to explain to the applicant why that information is relevant to the review and to invite a response to it. Thus, s 424A enacts a basic principle of the common law rules of natural justice that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise ... . By enacting s 424A and its counterparts elsewhere in the Act, the legislature has accepted that fairness dictates that an opportunity must be provided to applicants for visas or for review to respond to, or deal with, the adverse information.
An applicant for a protection visa will have provided information relevant to the outcome of the application prior to applying for the review of a delegate’s decision. Such information may, in some cases, have been provided prior to the application for a visa. The prescribed application form requires that the basis for the application be stated. Further, the information given may be supplemented by information provided subsequently to the Department or to the delegate of the Minister. An applicant may have no record of the information provided but, more importantly, may not be aware of its significance to the review ultimately to be conducted by the RRT. It is therefore understandable that the legislature would require that, in fairness, any adverse information provided prior to review, the significance of which the applicant may be unaware, be disclosed to the applicant to enable him or her to respond to it. That approach has particular importance in the context of the inquisitorial and non-adversarial nature of proceedings before the RRT ... . [Citations omitted; emphasis original]
Plainly enough,
this analysis is equally applicable to s 359A and assists in the resolution of
the present question.
56 As noted above, the respondent submitted that the Tribunal wrongly failed to give him particulars of the information "that the movements records database indicated the duration of the [nominator’s] travel overseas". He submitted that this was the information that attracted the obligations in s 359A(1), which also required that the Tribunal ensure, as far as is reasonably practicable, that he understood why the information was relevant and that it invite him to comment on it. I accept the respondent’s characterisation of the information in question. Under the heading "Evidence", the Tribunal itself described the information in this way, saying:
International movement records maintained by the Department show that the nominator departed Australia on 18 December 1998 and returned on 30 January 1999. He again departed Australia on 27 February 2002 and returned on 21 April 2002. On both occasions the nominator travelled without the visa applicant.
57 This was the evidence on which the Tribunal relied in its discussion of the respondent’s inability to provide substantial and continuing assistance to the nominator in this case. I reject the appellant’s submission that the information was merely the dates and duration of travel, because, as the respondent’s counsel said, the Tribunal’s statement of the evidence showed that it "relie[d] on the fact that [the information was] in a particular authorised departmental source".
58 Be this as it may, the appellant contended that s 359A(4)(b) relieved the Tribunal of the obligations imposed by s 359A(1). The appellant submitted that the respondent or his representatives informed the Tribunal about the fact of travel in communications made to the Tribunal, and that paragraph 30 of the Tribunal’s reasons showed that the fact of travel was raised with the respondent and the nominator in the course of their evidence. The respondent denied that he gave the information in question.
59 The material that the respondent placed before the Tribunal supports his case. A letter from the respondent’s migration agent to the Tribunal made only passing reference to travel by the nominator, in the context of addressing the question whether the requisite care could be provided by another relative. In that letter, the respondent’s migration agent stated:
It is further [the respondent’s] advice and as per folio 36 of the DIMIA file that no other siblings of the applicant are in Australia and the parents of the nominator and applicant are in Sri Lanka and unable to assist, though the nominator has made efforts by travelling to Sri Lanka to seek their assistance any way possible.
A letter from the
nominator’s treating physician, which was submitted to the Tribunal in
support of the respondent’s review
application, also referred to the
nominator’s travel, saying:
[The nominator] was referred again in May 2002 and according to the history provided has been depressed since November 2001. He has received treatment from a psychiatrist in Sri Lanka.
(Other documentary material corroborated the fact of the nominator’s treatment in Sri Lanka in April 2002.) The information in both these letters, however, was far short of the information constituted by the Department’s international movement records.
60 In recording the decision that was the subject of the Tribunal’s review, the delegate referred to the fact that the nominator had travelled overseas with his spouse and without the visa applicant in 1998. This is not, of course, the information now under consideration, although it may have been derived from it. In any event, for the reasons stated by Merkel J in Al Shamry, the delegate’s reference must be put to one side.
61 I reject the appellant’s submission that the Tribunal’s reasons showed that the Tribunal had complied with s 359A(1) of the Act, or was relieved of its obligations to do so by s 359A(4). In summarising the evidence before it, including the evidence of the respondent and the nominator, the Tribunal referred (at par 30 of its reasons) to the oral evidence given, it seems, by the nominator concerning his travel to Sri Lanka in 1998 and 2002. The Tribunal’s reasons do not show, however, the context in which this information was given. In particular, they do not disclose whether, in this context, the Tribunal drew the respondent’s attention to the Department’s international movement records (or gave particulars of them), explained the relevance of the information to its decision, and invited the respondent’s comments. Further, the reasons do not show that, by virtue of what occurred at the hearing before it, the Tribunal was relieved of its obligations under s 359A(1) by operation of s 359A(4).
62 Reference to the transcript of the hearing before the Tribunal may have answered these questions. At the hearing of the appeal, however, the appellant withdrew an application to tender an affidavit annexing a transcript of the Tribunal hearing (after the respondent objected to this course). The appellant stated that, although the transcript was included in a supplementary court book filed in the appeal, the Court should not have regard to it.
63 Section 359A(1) will not, however, be breached unless the information constituted by the international movement records was "the reason, or a part of the reason" for the Tribunal affirming the decision under review. It clearly was not "the reason", but was it "part of the reason"? A Full Court in VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 considered the expression "a part of the reason" in s 424A(1)(a). Its conclusions apply with equal force to s 359A(1)(a) In a joint judgment, Finn and Stone JJ said at [30]:
The information concerning the appellant’s behaviour clearly was not "the reason" for the Tribunal’s decision. But was it "a part of the reason"? As we have indicated, the Tribunal considered it to have some relevance to the determination to be made. And the Tribunal’s treatment of that information (i.e. the "significance" attributed to it) equally had a place in its reasoning process. However, it is not necessarily the case that for either or both of these reasons, the circumstances attract the obligation of s 424A(1)(a). The subsection itself requires identification of the reason for affirming the decision under review.
64 Their Honours continued at [33]:
It commonly is the case that the detail and complexity of the case advanced by a visa applicant, and the information that is given and garnered for the purposes of considering it, results in the Tribunal being confronted with issues that may be of varying importance, relevance and centrality both to the decision to be taken and to the reasoning that in the event sustains that decision. While the reasoning process may advert to, and express views on, such issues, all will not necessarily constitute part of the reason for the Tribunal’s decision. Tribunals, no less than courts, engage in their own species of dicta often enough for reasons related to haste and pressure in composition. When a Tribunal’s reasons are to be evaluated for s 424A(1) purposes, the Court as a matter of judgment is required to isolate what were the integral parts of the reasons for the Tribunal’s decision. That task, necessarily, is an interpretative one. In some instances the differentiation of the integral and the inessential may be by no means easy – and made the more so by less than explicit indications in the reasons themselves as to what the Tribunal itself considered to be integral.
65 Finally, their Honours concluded, at [41], that the information in question ought to be regarded as "relatively minor and unimportant in the scheme of things". The information "was not so integral to the reasoning process rejecting the appellant’s claim as to require as a matter of fairness that the appellant be told that information ... and why it was relevant to the review".
66 The Full Court in VAUX applied this approach, when it said, at [54]-[57]:
Applying the approach taken in VAF to the present case, we consider that the decision to affirm the delegate’s refusal to grant a protection visa had essentially been taken by the time the Tribunal came to deal with the appellant’s claims regarding his departure from Jordan. In our view, the information regarding the location of the airport was neither "integral to", nor an important aspect of, the Tribunal’s reasoning process.
In that regard, we note the structure of the Tribunal’s reasons. It first set out the appellant’s claims, and rejected them more or less in their entirety. It next arrived at the conclusion the appellant’s claim that his membership of Hamas had resulted in constant and increasing harassment, amounting to persecution, should be rejected. Having all but decided that he did not meet the requirements of the Refugees Convention, the Tribunal then stated that it had "also" considered his account of his last day in Amman and found it implausible. In substance, the Tribunal’s findings under the heading "Departure from Jordan" played little, if any, part in its decision that the appellant was not entitled to a protection visa. They were merely additional findings about matters that were no longer centrally in issue given the findings already made regarding the critical issues in the case.
Jacobson J took a similar approach to this issue in NAMB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 718. In that case, his Honour approached the matter of an alleged breach of s 424A upon the footing that the issue was whether denial of the opportunity to respond to the information in question could have made a difference. He referred to Aala, and to Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 195 ALR 502 at [37], and observed at [80]:
To ignore the question of whether a breach of s 424A could not have affected the outcome would be an entirely impractical approach.
His Honour concluded that because the Tribunal in that case had several separate and independent reasons for rejecting the applicant’s claims, any failure to comply withs 424A did not result in the invalidity of the decision.
It follows that the Tribunal did not contravene s 424A(1) by failing to draw to the appellant’s attention its reliance upon the information contained in the Lonely Planet Guide. Even if that conclusion were erroneous, the Tribunal’s breach of the section did not result in any practical injustice in the circumstances of this case. The Tribunal had already rejected the appellant’s claims on justifiable grounds by the time it came to this part of its decision, and nothing that the appellant might have said could have affected the critical part of its reasoning. If necessary, we would have refused relief on discretionary grounds.
67 It is clear from a reading of the Tribunal’s reasons as a whole that it affirmed the delegate’s decision because it found that the respondent did not satisfy the definition of "special need relative" in reg 1.03. The structure of the Tribunal’s reasons shows that it reached this conclusion first when it found that the respondent had not established that there was any permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances. This was the reason for the Tribunal’s decision. There was a further and separate reason why the respondent failed to satisfy the definition of "special need relative". This was the respondent’s failure to establish that he was "able to provide substantial and continuing assistance to the nominator". The Tribunal’s failure to comply with s 359A(1) affected only this further and separate reason. Following the approach adopted in VAF and VAUX, this was not the reason, or a part of the reason for the Tribunal’s decision. It follows that the Tribunal did not contravene s 359A(1) by failing to draw to the respondent’s attention its reliance on the information constituted by the international movement records.
The disposition of the appeal
68 Even if this conclusion was incorrect, since the Tribunal had already rejected the respondent’s claims on what the Court in VAUX termed "justifiable grounds" by the time it came to this part of its decision, the Tribunal’s breach of the provision did not result in "any practical injustice": see VAUX at [57]. Nothing that the respondent could have said on the significance of the international movement records could have affected the critical part of the Tribunal’s reasoning: compare also Ling v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1069 at [41]- [47] per Branson J.
69 For the same reason, the Tribunal’s misconstruction of the word "able" in the definition of "special need relative" in reg 1.03 did not result in any practical injustice, because the Tribunal had already decided that there was no permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances, as was also required by the definition of "special need relative". The Tribunal’s decision would have been the same whether or not it had considered the correct question of the respondent’s suitability or fitness.
70 In summary, the Federal Magistrate erred in so far as her Honour held that the Tribunal: (1) misconstrued "the permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances" element of the definition of "special need relative" in reg 1.03; and (2) contravened s 359A(1) of the Act. Her Honour was also mistaken in her view that a failure in respect of s 359A Act contravened s 476(1)(a) of the Act, since this provision had been repealed on 26 September 2001, by s 3 of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (Act 134 of 2001).
71 As we have seen, the Federal Magistrate had no occasion to consider the Xiang point. Bearing in mind that the Tribunal’s misconstruction of the word "able" worked no practical injustice, relief in respect of this misconstruction should be declined as a matter of discretion.
72 I would allow the appeal, with costs. I would set aside the declaration in paragraph 1 and the orders set out in paragraphs 2 and 3 of the orders made by the Federal Magistrate on 13 June 2003; and, in lieu thereof, order that the respondent’s application to the Federal Magistrate be dismissed with costs.
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I certify that the preceding seventy-two (72) numbered paragraphs are a
true copy of the Reasons for Judgment herein of the Honourable
Justice
Kenny.
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Associate:
Dated: 3 February 2005
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Counsel for the Appellant:
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G Livermore
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Solicitor for the Appellant:
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Australian Government Solicitor
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Counsel for the Respondent:
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C Fairfield
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Solicitor for the Respondent:
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S Dhanapala
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Date of Hearing:
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23 July 2004
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Date of Judgment:
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3 February 2005
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2005/37.html