Su v Minister for Immigration & Multicultural Affairs [2001] FCA 1409 (5 October 2001)

Last Updated: 5 October 2001

FEDERAL COURT OF AUSTRALIA

Su v Minister for Immigration & Multicultural Affairs [2001] FCA 1409

IMMIGRATION - review of a decision of the Migration Review Tribunal ("the Tribunal") - Tribunal relied on the department's records relating to visa nominator's overseas travel - such material related to whether nominator was a special need relative - applicant not informed of these records and not asked to comment on them - procedure requires Tribunal to inform applicant - failure to comply with procedure an error of law - discretion to refuse relief.

IMMIGRATION - special need relative definition - whether Tribunal failed to properly apply the definition or interpreted the definition incorrectly - cumulation of loneliness and mental deterioration may amount to serious circumstances - discretion to refuse relief.

Migration Act 1958 (Cth), ss 359A, 379A, 476(1)(a), 476(1)(e), 481(1)

Migration Regulations 1994 (Cth), reg 1.03

Carlos v Minister for Immigration & Multicultural Affairs [2001] FCA 310, cited

Jun v Minister for Immigration & Multicultural Affairs [2000] FCA 867, cited

Wu v Minister for Immigration & Multicultural Affairs [2000] FCA 1817, applied

Huang v Minister for Immigration & Ethnic Affairs (1996) 71 FCR 95, referred to

Re Minister for Immigration & Multicultural Affairs, Ex parte Cohen (2001) 74 ALJR 542, referred to

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, applied

Minister for Immigration & Multicultural Affairs v Thiyagarajah [2000] HCA 9; (2000) 199 CLR 343, applied

Santa Sabina College v Minister for Education (1985) 58 ALR 527, followed

Guo v Minister for Immigration & Multicultural Affairs [2000] FCA 146, referred to

TONI SU & ANOR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N450 of 2001

MADGWICK J

5 OCTOBER 2001

SYDNE

YIN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N450 of 2001

BETWEEN:	TONI SU FIRST APPLICANT RODNEY SU SECOND APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	5 OCTOBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be allowed.

2. The decision of the Migration Review Tribunal of 21 March 2001 be set aside and the matter be remitted back to the Migration Review Tribunal, differently constituted, to be determined according to law.

3. The respondent pay the applicant's costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N450 of 2001

BETWEEN:	TONI SU FIRST APPLICANT RODNEY SU SECOND APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	5 OCTOBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

1 This is an application for judicial review under Pt 8 of the Migration Act 1958 (Cth) ("the Act") in respect of a decision of the Migration Review Tribunal ("the Tribunal"), delivered on 21 March 2001, affirming an earlier decision of a delegate of the respondent Minister refusing the applicants the grant of Family (Residence)(Class AO) Subclass 806 visas ("Family visa"). The applicant claims that the Tribunal erred in two manners. Firstly, it was alleged that procedures that were required by the Act to be followed in connection with the making of the decision were not followed, arising from the failure of the Tribunal to comply with ss 359A and 379A of the Act. Secondly, it was alleged that the Tribunal erred in its interpretation and application of the then applicable definition of "special need relative" in reg 1.03 of the Migration Regulations 1994 (Cth) ("the Regulations").

Background

2 The first applicant ("the applicant") is the father of the second applicant ("the son"). The applicant arrived in Australia on 5 December 1995 on a visa that was valid until 5 January 1996. On 19 December 1995, he was granted a visa of a different class that enabled him to remain in Australia as a visitor until 5 April 1996. The son arrived after the applicant, on 25 December 1995 and was granted a further visa allowing him to stay in Australia until 25 August 1996. On 2 April 1996, the applicant lodged an application for a Family visa, naming his son, who was 16 years old at the time, on his visa application. On 25 November 1996, the applicant lodged an amended application, identifying his elderly mother as the permanent resident who nominated him as a special need relative.

3 The application for a Family visa was based upon the applicant's role as the carer for his elderly mother, who was 80 years of age at the relevant time and suffering from a number of medical conditions and difficulties. The applicant's mother is and at all material times was a widow. She was born on 13 May 1916. Her late husband died in Australia on 5 October 1995. The death certificate records, among other matters, that the causes of death were septicaemia, coma of 16 days duration and "multiple cerebral vascular accidents" occurring over two years.

4 The applicant, born on 7 March 1944, is the eldest of his mother's children. He is himself a widower. He came to Australia in October 1995, to bury his father. He took his mother back to Western Samoa after the burial, and they returned to Australia in December 1995. The applicant has four siblings who also live in Australia. In particular, his sister Mrs Pritchard has a young daughter Maasina, born on 9 June 1998. The applicant and his son, who is now in year 10, reside with the applicant's mother in public housing. Maasina stays with her grandmother, the nominator, through the week while Mrs Pritchard works in a factory. It seems that, five years ago, when the application was originally made, Mrs Pritchard lived with her mother but does not now do so.

5 Notwithstanding possible involvement in using somebody else's passport to enter Australia in 1991 (to see his mother when she was in hospital), the applicant is said by responsible people to be of good character. Despite having had one hand amputated, he works part-time and has worked as a fruit-picker. In his original 1996 application, the applicant gave as his occupation "care for mum". He answered questions 77-79 as follows:

"77 What circumstance has led to your relative needing your assistance (e.g. permanent disability, death of a close relative, etc?)

To be with mother as she looked up to me as dad, very lonely both mum and myself both widow.

78 Give details of the assistance you provide to your relative

Cared for mum while my sister at work. Look after kids after school. Mother most important she too old.

79 For how long will your relative require your assistance?

Pernament [sic]"

6 Mrs Pritchard then furnished a statutory declaration in support of the applicant's application in which she said:

"My brother (Toni Su) born on the (7^th March 1944) Apiou Western Samoa, [he] apply as a permanent resident or related as a family need. I'm a younger sister of him and I am strongly need his help to care for mum, as he was the oldest of us, his duties to care for all of us especially mum, as he is a widow now and mum needs caring all the way as she spent the most of [the] times with Toni before dad passed away last 6 October. Also we [commit] our lives to work and raised our families that the hardest for us to be by mum side all the times. We do supply with food and any help but Toni help will make easier for us all. Doesnt matter how hard of the finance to deal with his application, always here to pack up. Please we do what mum wants us to so. Shes 80 years of age."

7 Mrs Pritchard in another document dated 2 April 1996 said:

"I declared that according to our custom, the eldest child is expected to look after our parents, especially if one died. My mother since the death of my father, now relies on (Toni) to take care of her."

8 A signature on a 1996 statutory declaration by the elderly nominator bespeaks frailty

9 In 1999 the delegate interviewed the applicant and Mrs Pritchard. The delegate seems to have received the impression that the mother was in good health. A number of misunderstandings, in the light of the Tribunal's findings, are evident in the report of the interview.

10 On 9 June 1999, the delegate refused to grant the visa.

The legislation

11 Section 359A relevantly provides:

"(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) Subject to subsection (3) [relating to an applicant in immigration detention], the invitation must be given to the applicant by one of the methods specified in section 379A."

12 Regulation 1.03, which has since been repealed, provided for the definition of "special need relative":

"`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 be readily 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;" (emphasis added)

It was common ground that such was the relevant prescription.

The Tribunal's decision

13 As the Tribunal observed, when the visa application was lodged, Class AO contained various subclasses; subclass 806 was the only one as to which any claim had been advanced. As to that subclass, the applicant relied on the "special need relative" ground. He claimed he was such a relative of his aged mother, his "nominator", who had settled in Australia and become an Australian citizen. Clauses 806.213 and 806.221 of Part 806 of Schedule 2 to the Regulations had the effect that the visa applicant must meet that definition or criterion, both at the time of making the application and at the time of the decision.

14 The applicant told the Tribunal in a further statement:

"6 State your understanding of the nominator's current need for assistance

As I'm the oldest of the family back home. My parents always stayed with me since they left the country. All my sisters and brother left the country to went oversea to settle down as we are poor. Left me behind to care for our parents. And I'm very close to mum and dad always. When dad died mum need me straight away as I'm a widow too. As she felt comfortable with me.

7. Describe in detail the kinds of assistance you provide the nominator on a daily basis

[continued from previous question] than the rest of us. I spent more times for mum/dad than the others. They were very good supporter with food. But they can't be for mum 24 hrs as they left her earlier. So I knew what mums need. And all the way of her life she always need my company. She felt so lonely talked to herself sometimes, she wanders. I'm always do things, work for mum. Even if only one hand. I did work part-time to help up, and love to work to keep me busy.

8. Describe in detail any other assistance you provide to the nominator.

I'm always there for her to cook and did the house work. Help up with the kids. Important has to be someone around as she old. She need a company like when dad was alive."

15 The Tribunal noted the report of a medical practitioner dated 8 November 2000, which certified that the applicant's mother "is totally dependent on [the applicant] to look after her. She cannot look after herself, wanders at night and talks to herself all the time. She has some psychotic symptoms". The mother's signature appears on a supposed declaration made by her on 9 November 2000. Her signature is of a piece with the impression conveyed by the medical report.

16 The applicant gave evidence before the Tribunal which the Tribunal summarised thus:

"There was nothing wrong with his mother except old age and she was sometimes out of her mind. He made her food and bathed her and looked after her all day long. When he went to work, he made her food before he left the house ..."

17 The Tribunal member set out what information needed, under Departmental guidelines, to be provided by a doctor, social worker or similar professional in support of a claim to be a special need relative under the relevant policy:

* describe the nature of the disability, prolonged illness or other serious circumstance, and when it occurred or was diagnosed;

* describe the current treatment;

* give the prognosis and future treatment or suggested handling of the individual or family;

* indicate whether the individual or the family is need of assistance;

* describe the type of assistance required;"

18 The Tribunal member then concluded:

"This report [mentioned in para 15 above] barely addresses any issue outlined in the ...policy. It does not describe any current treatment, does not give the prognosis and future treatment or suggested handling of the individual or family. ... It does indicate that the nominator is in need and dependant on her son.

Loneliness and mental deterioration, without further factors do not, in the opinion of the Tribunal, amount to a serious circumstance. The nominator's condition does not suggest that she did at the time of the application need permanent or long-term assistance over and above that already offered by her family in Australia. She was well enough to help her daughter, Mrs Pritchard, with the weekday care of her grand daughters and the daughters came around to help her at weekends. The first application form showed that Mrs Pritchard lived with her at that time.

The DIMA movement records show that the nominator has travelled out of Australia 4 times without the primary visa applicant's company after her husband passed away. The primary visa applicant gave evidence that he accompanied her in 1995 but did not explain the other absences or what occurred during that time. The nominator appears to have spent time outside Australia without support from the primary visa applicant.

...

It is policy that companionship of a relative, general domestic assistance and financial support could not be regarded as a permanent or long-term need to require substantial and continuing assistance. The assistance rendered to the nominator does not appear to be more substantial than companionship and general domestic assistance plus occasional financial support.

If the original claims are examined, the primary visa applicant also provides assistance to his sister in the form of helping her and the second nominator in bringing up Tanya and Maasina. Assistance in bringing up children also falls outside the policy for special need relative.

Having regard to the information and evidence from the parties, the type of assistance provided by the primary visa applicant does not fall within the scope of the policy intention

Whether the assistance cannot reasonably be obtained from another relative or welfare, hospital, nursing or community services.

Both the visa applicant and the nominator stated that they had not utilised any welfare, hospital, nursing or community service as the nominator did not speak English and she felt more comfortable to be with her family. Mrs Pritchard gave evidence to the Tribunal that they would not put their mother in a nursing home. The nominator stated on 9 November 2000, that `we don't need any community assistance'.

...

The primary visa applicant states that, although his siblings in Australia are very supportive, they can not care for the nominator day by day all the time. Whereas, he can do this and he knows what the nominator needs and would love to care for her for the rest of her life. However, the visa applicant has to [work] part part-time to support himself in Australia and he had picked grapes for a month in 1997 as well as working part-time for eight months for a transport company before a letter written on the company letterhead on 22 September 2000. He has not been by the nominator's side all the time.

Taking all of the above into account, there appears to be no reason to believe that the assistance cannot reasonably be obtained from any other relative of the nominator or from welfare, hospital or community services in Australia." (emphasis added)

Necessity to give information

19 It was submitted by counsel for the applicant that, since the Tribunal relied on the department's movement records in determining whether the nominator suffered a serious circumstance, it was obliged pursuant to s 359A to advise the applicant of the records and their relevance, and invite the applicant to comment on them. Failure by the Tribunal to provide the applicant with any such written request amounted to a failure to comply with a procedural obligation which is a reviewable error under s 476(1)(a). Counsel for the respondent Minister submitted that the references to the nominator's travel did not directly concern the issues raised by the special need relative criteria and were not material that was part of the Tribunal's reasons; therefore the obligation in s 359A was not enlivened. Alternatively, even if s 359A did require such information to be brought to the applicant's attention and comment sought, s 476(1)(a) did not apply as this section deals with legal errors that find a necessary consequence in the ultimate decision, which this did not.

20 Section 359A directs that the Tribunal must give certain information to the applicant, that being information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The obligation upon the Tribunal extends to ensuring, as far as is reasonably practicable, that the applicant understands why the information is relevant. The applicant must be invited to comment on it. Section 359A has a counterpart in s 424A which applies to the Refugee Review Tribunal. It has been established that the obligation to provide the information is triggered when the tribunal forms the view that there is knowledge communicated about some fact or circumstance that is relevant to the application and is adverse to the applicant: see Carlos v Minister for Immigration & Multicultural Affairs [2001] FCA 310 per Merkel J at para 21 and the authorities there cited.

21 The first issue that the Tribunal set out to determine was whether the nominator had "other serious circumstances" which warranted the need for permanent or long-term assistance. Under the heading "The serious circumstances affecting the nominator and the permanent or long-term need for assistance" the Tribunal made express reference to the department's movement records relating to the nominator's travel out of Australia. The Tribunal also noted that the nominator appeared to have spent time out of Australia without support from the primary visa applicant. This was information that was not given by the applicant. It related to the applicant's application and was adverse to the applicant. In my opinion, no matter how the member's reasons are read, the reference to the travel movement records was part of, or at the very least it is impossible to say that it was not part of, the Tribunal member's reasons for concluding that the nominator was not in serious circumstances. The Tribunal member evidently considered that she was able to make a number of trips overseas and that any adverse circumstance of the nominator did not require the sort of assistance from the applicant contemplated by the regulation, because she had travelled without him on all but one of the trips. In the preceding paragraphs of the Tribunal member's reasons, he had expressed doubts about the nature of any serious circumstances the nominator may have been labouring under. The information about the travel was plainly used in further support of this ultimate conclusion.

22 It can hardly be doubted that the issues raised by the travel documents were relevant. The member cannot be criticised for referring to these documents in making the factual determinations he was required to make. However, for that very reason this was material which needed to be drawn to the applicant's attention. What sort of answers the applicant may have given to such an inquiry is entirely a matter of speculation, but there may have been many matters the applicant and his family could have raised which may have assuaged the member's concerns about the nature of the applicant's circumstances. Accordingly, the failure by the Tribunal to comply with s 359A and provide the information to the applicant in the manner required by s 379A was a failure to comply with a procedure required to be observed by the Act in contravention of s 476(1)(a).

A special need relative

23 The applicant contended there were two errors of law within the meaning of s 476(1)(e) in relation to the way in which the Tribunal determined whether the applicant was a special need relative. Firstly, it was submitted that the Tribunal had failed to consider whether the nominator's infirmity, due to old age, combined with her mental deterioration, could constitute a "disability" or "prolonged illness" within the definition of special need relative. Secondly, it was claimed that the conclusion that the combined effect of the nominator's loneliness, mental deterioration and general infirmity, being due merely to her advanced age could not, without more, constitute "other serious circumstances" manifested legal error.

24 Counsel for the respondent Minister submitted that death, disability, prolonged illness or other serious circumstances are not of themselves sufficient grounds for the grant of the visa. It must also be shown that there is a need for permanent or long-term assistance and that such assistance is not available from sources other than the visa applicant. Accordingly, it was claimed that a legally unimpeachable finding in relation to any one of those three requirements would be enough to disentitle the applicant from relief from the Court. The findings of fact that (a) the assistance provided to the nominator by the applicant was no more than companionship and general domestic assistance plus some financial support; and (b) there was no reason to believe the assistance could not reasonably be obtained elsewhere were thus fatal for the applicant. Alternatively, it was submitted that there was no legal error as to the meaning of "serious circumstances". The Tribunal had asked itself the correct questions and carefully and thoroughly considered all the material before it, despite its brevity and vagueness. Having looked at the nominator's age and infirmity as well as the brief medical report, the Tribunal concluded that the nominator did not require the requisite degree of assistance, a factual conclusion which was open to it.

25 I turn to the applicant's first alleged error, that the Tribunal member limited himself only to determining whether the nominator could show "other serious circumstances". The Tribunal member correctly identified the matters that he needed to determine: whether permanent or long-term assistance was needed because of death, disability, prolonged illness or other serious circumstances. However, even on a generous reading of the member's reasons, he then proceeded to consider only whether each of loneliness, mental deterioration, age, infirmity and the other factors raised in the brief medical report provided by the doctor could be said to constitute other serious circumstances. The Tribunal gave no consideration to whether these factors taken together could constitute a "disability" or "prolonged illness". There was no express consideration of this question nor was it, in my opinion, implicit in the Tribunal's reasons. All that occurred was a failure to examine these questions and on assumption, under cover of silence, that they were not relevant criteria. Whether or not these factors taken together could constitute a disease or prolonged illness was clearly arguable and a matter of fact for the Tribunal to determine. A failure by the Tribunal member to turn his mind to these matters can and should be inferred: the case is reminiscent of Jun v Minister for Immigration & Multicultural Affairs [2000] FCA 867 where Mansfield J held that a failure to consider whether a clinical mental condition was a disability or prolonged illness because of an incorrect interpretation of a policy direction was an error of law. The approach of the Tribunal resulted in an incorrect application of the law to the facts and an error of law within s 476(1)(e).

26 In relation to the second alleged error, namely what can constitute "serious circumstances", the Tribunal in my opinion incorrectly interpreted the applicable law within the meaning of s 476(1)(e). The Tribunal stated that "[l]oneliness and mental deterioration, without further factors do not...amount to a serious circumstance". In Wu v Minister for Immigration & Multicultural Affairs [2000] FCA 1817 a Full Court of this Court considered this regulation in relation to a claim that a young child needed the care of its mother. The Court indicated that "serious" refers to something which has a substantial and negative effect on a person, affecting the capacity to look after oneself. The Court then went on to say:

"...there 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. In our opinion, if a citizen or a member of the citizen's family unit is in circumstances which create a need for substantial and continuing assistance of the citizen and the circumstances do not arise because of the death of a member of the family unit or the disability or prolonged illness of either the citizen or the member of the family unit then those circumstances are intended to be comprehended by the expression "other serious circumstances". There is no reason in logic or of policy that we can discern which might explain that the definition was intended to be enlivened in every circumstance where the requisite care of a citizen is required except young childhood and perhaps old age. We say perhaps old age because the long-term or permanent need for substantial and continuing assistance of an elderly person ordinarily arises through a disability or illness associated with old age." (emphasis added)

27 The Tribunal evidently interpreted the definition in reg 1.03 as requiring more than loneliness and mental deterioration to be considered as a serious circumstance. It failed to give due consideration to whether the nominator's level of loneliness and mental deterioration, viewed in the light of her age and her infirmity, could constitute a serious circumstance. Although the matter is not free from doubt, I am prepared to assume that, on a fair reading of the Tribunal's reasons, the Member did have regard to the age of the nominator and her general infirmity even though he did not expressly refer to them, and that, when he referred to other circumstances, it was in addition to age and infirmity. In any case it should be made clear that, at least if there are other factors, age can be a very pertinent factor. As the Full Court said in Wu (at para 38):

"A child's needs are, in many respects, no different to those of a very elderly person or a seriously ill person. Their survival can be dependent on the support and attention of others. The argument that "serious circumstances" cannot "reflect merely the tender age of a person" rather misses the point. The age, whether of a very young or very old person, would rarely be the sole relevant circumstance. But age can be a factor which, along with other circumstances, adds up to special circumstances."

28 It may be necessary to distinguish cases of old age accompanied by disability and/or illness from cases of need generated solely on account of a child's tender years. The Full Court in Wu did not follow Huang v Minister for Immigration & Ethnic Affairs (1996) 71 FCR 95, in which Hill J (Jenkinson J agreeing) said:

"It is hardly conceivable that the expression `serious circumstances' should reflect merely the tender age of a person."

The judgment in Wu was given before the decision of McHugh J in Re Minister for Immigration & Multicultural Affairs, Ex parte Cohen (2001) 74 ALJR 542. McHugh J, apparently without the decision in Wu having been drawn to his attention, "doubted" that Huang was wrongly decided. With respect, it appears to me that the distinction I have suggested is a cogent one and avoids the necessity to choose between Wu and Huang.

29 Although, as the Tribunal member noted, the medical material provided in support of the application was not as comprehensive as one may have expected making the Tribunal's fact-finding role more difficult, the belief on the part of the Tribunal that it did not need to consider the matter because, as a matter of law, evidence as to loneliness and mental deterioration could never constitute serious circumstances was clearly wrong. There is nothing to suggest that the definition of special need relative should be limited in the way in which the Tribunal member proposed. Wu makes it clear that the circumstances need not be out of the ordinary or unexpected. Accordingly, the Tribunal's interpretation of the regulation was an incorrect interpretation of the applicable law.

Discretion to refuse relief

30 It was submitted by counsel for the respondent Minister that, in the event that I determined that either or both alleged errors of law were made out by the applicant, the court should exercise its discretion under s 481 of the Act and refuse to grant relief. As indicated above, in substance the respondent pointed to the inability of the applicant to overcome the findings of fact that any assistance that the nominator did require could be provided by other relatives or organisations within Australia.

31 The discretion to grant relief pursuant to s 481(1) is a discretion that must be exercised judicially. Prima facie where an applicant can show that there has been an error of law in a decision, he or she is entitled to be granted relief unless it can be shown, by the respondent Minister in this case, that an appropriate reason exists as to why relief should not be granted. Nevertheless, an otherwise reviewable error must be shown to have been what may be termed an operative one in relation to the subject decision. If it is shown that the decision must have been the same, because of legally unassailable grounds relied on by the decision-maker alternative to that or those impugned before the Court, the Court will not intervene. In order for the court to intervene, the error of law alleged to have occurred, "must have contributed to the decision in some way or, at the very least, it must be impossible to say that it did not so contribute": Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 per Toohey and Gaudron JJ at 384; see also Minister for Immigration & Multicultural Affairs v Thiyagarajah [2000] HCA 9; (2000) 199 CLR 343 at 350. Yet, the Court should be careful in the exercise of such a discretion. The Court's discretion to refuse relief should not be granted if it is possible that the final result may be different on a further hearing of the matter: see, for example Santa Sabina College v Minister for Education (1985) 58 ALR 527 per Beaumont J at 540, and Guo v Minister for Immigration & Multicultural Affairs [2000] FCA 146 per O'Loughlin J at paras 21-22.

32 The errors committed by the Tribunal all arose in its consideration of whether the nominator suffered from a disability, prolonged illness or other serious circumstance. Counsel for the applicant submitted that the errors in relation to characterising what the nominator suffered from were on such a fundamental issue that the Court could not be confident that they had not flowed through and affected the determination of the kind of assistance required and also whether such assistance could be obtained elsewhere. I agree. Having gone on to consider para (b) of the regulation, it is not possible to say that the Tribunal necessarily correctly determined whether the assistance could otherwise be provided. Only after the application of legally correct tests could it be determined whether there was a need for "assistance because of ... disability, prolonged illness or other serious circumstances". It is not necessarily possible to say that a proper comprehension of the need for assistance or the ability of persons or institutions other than the applicant to provide it can be divorced from a correct characterisation of whether the need arises from "disability, prolonged illness or other serious circumstances", although in some cases it may be. I am not satisfied that this is one of those cases. The finding that adequate assistance for an elderly woman whose first language is Samoan and whose adult children evidently have some problems with English (as the extracts from their statements show) could be "readily" obtained from an Australian institution appears surprising. So does the finding that, in the case of a mentally deteriorated woman who is so incapable of self-care as to need to be bathed by her son, such assistance could be "readily" obtained from some other relative, when the only available candidates are either adults immersed in full-time work or children. Those findings are, of course, unreviewable in this Court but they raise grave doubt that, in fact, the issues were so impeccably segregated by the Tribunal as the respondent's submission would have it.

33 The errors identified in the Tribunal's reasons sufficiently affected the Tribunal's consideration of the threshold question that needed to be determined. The legally flawed, unfavourable determinations made by the Tribunal on the threshold question of the nominator's state of health and/or need for assistance, are not shown not to have coloured the way in which it assessed the level of assistance actually provided by the applicant and its consideration of whether that or other reasonably necessary assistance could be provided by someone other than the applicant. The fact that the Tribunal did not consider that the current assistance was being provided for a disease, prolonged illness or because of other serious circumstances may well have meant that the Tribunal was more likely to come to the view that any assistance that was needed could be provided by another relative or organisation. Furthermore, whether the assistance was "substantial" and the need for it "continuing" also may well have depended on the characterisation the Tribunal made of the nominator's state of health. The issue here was, given the nominator's problems and her needs, how could they be met: see Jun at para 32. The Tribunal made legal errors in the process of characterising what were the nominator's problems and her resultant needs. To look merely at what was the current level of assistance provided by the applicant and determine that this could be provided by another relative or organisation in Australia, did not adequately address that issue. There is or may be a clear link between the determinations required to be made by para (a) of the regulation and para (b). Accordingly, it cannot be said that the Tribunal's legal errors did not affect the final decision reached by the Tribunal, or that it is not possible that a different final decision would not have been reached, had the legal errors not been made.

Disposition

34 For the reasons given, the application will be allowed. The decision of the Tribunal will be aside and the matter will be remitted to Tribunal for determination according to law. The respondent will be ordered to pay the applicant's costs.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated: 5 October 2001

Counsel for the Applicant:	D Jordan
Solicitor for the Applicant:	Thomson Bentley & Partners
Counsel for the Respondent:	R Bromwich
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	12 July 2001
Date of Judgment:	5 October 2001