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Federal Court of Australia |
Last Updated: 31 January 2002
Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24
MIGRATION - family residence visa - special need relative - application for review of decision of Migration Review Tribunal - whether Tribunal erred in construction of statutory definition of special need relative - whether Tribunal breached a duty to make inquiries of applicant - whether Tribunal enabled itself to form required state of satisfaction on visa criterion
Migration Act 1958 (Cth) ss 31, 45, 47, 65, 359, 359A, 475(1), 476
Migration Regulations 1984 Schedule 2, Subcl 806
Migration Legislation Amendment Act (No 1) 1998
Acts Interpretation Act 1901 ss 23, 46(1)(a)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10; (2001) 177 ALR 473 applied
Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 referred to
Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 referred to
Chen v Minister for Immigration and Ethnic Affairs (1994) 51 FCR 322 referred to
Moskal v Minister for Immigration, Local Government and Ethnic Affairs (1994) 125 ALR 307 referred to
Vo'ifalelahi v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR 52 referred to
Tuamoheloa v Minister for Immigration and Multicultural Affairs [1998] FCA 1406 referred to
Hussein v Minister for Immigration and Multicultural Affairs [1999] FCA 1621 referred to
Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 392 referred to
Huang v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 95 referred to
Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 29 referred to
Minister for Immigration & Multicultural Affairs v Chan [2000] FCA 737 referred to
Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277 referred to
Jun v Minister for Immigration & Multicultural Affairs [2000] FCA 867 referred to
Narayan v Minister for Immigration & Multicultural Affairs [2001] FCA 789 referred to
Narayan v Minister for Immigration & Multicultural Affairs [2001] FCA 1745 referred to
Su v Minister for Immigration & Multicultural Affairs [2001] FCA 1409 referred to
Grant v Repatriation Commission [1999] FCA 1629 referred to
Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287 referred to
Benjamin v Repatriation Commission [2001] FCA 1879 referred to
Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 referred to
Kioa v West (1985 ) [1985] HCA 81; 159 CLR 550 referred to
Enichem Anic Srl v Anti-Dumping Authority (1992) 111 ALR 178 referred to
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 referred to
Luu v Renevier (1989) 91 ALR 39 referred to
Detsongjarus v Minister for Immigration and Ethnic Affairs (1990) 21 ALD 139 referred to
Minister for Immigration and Ethnic Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 referred to
Li v Minister for Immigration & Multicultural Affairs [2000] FCA 19; (2000) 96 FCR 125 referred to
Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 referred to
Kabir and Others v Minister for Immigration and Multicultural Affairs [2001] FCA 248 referred to
Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 referred to
Al Shamry v Minister for Immigration and Multicultural Affairs [2000] FCA 1679 referred to
Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179 referred to
Yusuf v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 470 referred to
Kulwant Singh v Minister for Immigration and Ethnic Affairs (unreported, 21 November 1996) referred to
Majeed v Minister for Immigration and Multicultural Affairs [2000] FCA 470 referred to
Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 referred to
Ahmed v Minister for Immigration v Multicultural Affairs [2001] FCA 506 referred to
Hernandez v Minister for Immigration and Multicultural Affairs [2001] FCA 725 referred to
W41/01A v Minister for Immigration & Multicultural Affairs [2001] FCA 742 referred to
Raheem v Minister for Immigration and Multicultural Affairs [2001] FCA 940 referred to
Minister for Immigration & Multicultural Affairs v Amani [1999] FCA 1040 referred to
Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 referred to
Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim [2000] HCA 50; (2000) 175 ALR 209 referred to
Gomez v Minister for Immigration and Multicultural Affairs [2001] FCA 935 referred to
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 referred to
Jeanette Abdallah Azzi and Joseph Said Azzi v Minister for Immigration and Multicultural Affairs
N740 of 2001
ALLSOP J
SYDNEY
25 JANUARY 2002
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
BETWEEN: |
JEANETTE ABDALLAH AZZI JOSEPH SAID AZZI APPLICANTS |
AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT |
JUDGE: |
ALLSOP J |
DATE OF ORDER: |
25 JANUARY 2002 |
WHERE MADE: |
SYDNEY |
that the application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
BETWEEN: |
JEANETTE ABDALLAH AZZI JOSEPH SAID AZZI APPLICANTS |
AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT |
JUDGE: |
ALLSOP J |
DATE: |
25 JANUARY 2002 |
PLACE: |
SYDNEY |
1 This is an application for an order for review of a decision of the Migration Review Tribunal (the Tribunal) made on 23 April 2001 by which decision the Tribunal affirmed a decision of a delegate of the respondent Minister that the primary applicant, Mrs Azzi, was not entitled under the Migration Act 1958 (the Act) to the grant of a Family (Residence) visa (class AO, subclass 806). The application included Mrs Azzi's husband, who is also included as an applicant in the proceedings in this Court. I will refer to Mrs Azzi either as such or as the applicant. The determination of the issues in this matter does not call for any separate consideration of the position of Mr Azzi.
History of the Matter
2 Mrs Azzi is a national of Lebanon. She was born in 1939, the eldest of seven children of Abdallah and Rogina Azzi. Her father is now dead. Her mother, an Australian citizen, is 74 years of age and lives in Australia. Of her siblings, one is dead, one (a sister) lives in Lebanon and her four brothers George (55 years), Elias (51 years), Charbel (51 years) and Tony (43 years) live in Australia and are Australian citizens.
3 The applicant entered Australia on 19 February 1996 on a visitor's visa (subclass 686), and was granted a further visitor's visa that would have expired on 19 February 1997. On 2 January 1997, she lodged an application for a Family Residence visa. As indicated, her husband was included in that application.
4 Mrs Azzi applied for the family visa on the basis that she was a `special need relative' (a term defined in the Migration Regulations 1984) (the Regulations) of Rogina Azzi, her elderly mother who has acted as the nominator, as required, for the purposes of the visa application. The basis of the application was that, due to the poor health of her mother, Mrs Azzi's assistance was required by her mother on a daily basis in coping with her basic needs; and that no other relatives in Australia could provide the assistance required, as these relatives were either suffering or coping with health problems themselves or were occupied by business or employment commitments and/or their own children and families. Since making the application Mrs Azzi has held a bridging visa associated with, and granted on the basis of, having made the application.
5 On 19 April 1999, a delegate of the Minister refused to grant the family residence visa. The decision reflected a determination that Mrs Azzi as the main applicant did not meet the criterion of a `special need relative'. The decision record reveals that the delegate was of the opinion that the assistance required by the mother could reasonably be obtained from the applicant's four Australian citizen brothers. On 13 May 1999, Mrs Azzi lodged an application for internal review within the Department. On 1 June 1999, this became in effect an application for review to the Tribunal by the operation of a transitional provision in the Migration Legislation Amendment Act (No 1) 1998.
6 On 13 February 2001 a hearing was held before the Tribunal where Mrs Azzi and her mother gave oral evidence.
7 On 23 April 2001 the Tribunal informed the applicant by letter that the delegate's decision had been affirmed. Accompanying the letter was a copy of the Tribunal's statement under s 368 of the Act recording its decision on the review application. The Tribunal was not satisfied that such assistance as Mrs Azzi's mother needed could not reasonably be obtained from a combination of those of the mother's sons and adult grandchildren and the mother's siblings and their adult children who are Australian citizens or permanent residents "however they may wish to discharge their obligations individually". (I set out the claims made and the process of the Tribunal's reasoning in more detail below.)
8 It is this decision of which the applicant seeks review before the Court by application dated 18 May 2001.
9 The Court has jurisdiction to review decisions of the Tribunal: s 475(1)(b). However, that jurisdiction is limited to the grounds of review set out in s 476 of the Act, as it stood at the time of the application and the hearing.
10 The original application for an order of review stated as grounds for review that:
The applicants [Mr and Mrs Azzi] are the only people able to provide care for the nominator. Other relatives of the nominator are unable or unwilling.
11 It was said that the Tribunal "did not correctly assess the fact no other Australian resident family member of the nominator [is] able or willing to attend to the nominator's needs". The respondent's written submissions of 11 July, filed prior to the hearing, were such as to suggest no available ground of review under subs 476(1) of the Act.
12 On 17 July 2001, at the hearing of this matter, Mrs Azzi appeared in person with the assistance of an interpreter, through whom she articulated certain matters in relation to the manner in which the Tribunal allegedly dealt with the claims made at the hearing before it, and as to matters concerning other family members and their ability and willingness to care for the mother, which it was said the Tribunal in some way did not deal with. In the circumstances, orders were made that the respondent provide the Court with a copy of the transcript of proceedings before the Tribunal and that Mrs Azzi file a statutory declaration setting out why it was said that persons dealt with in the Tribunal's reasons were not persons reasonably able to provide Mrs Azzi's mother with assistance. Submissions were invited on the relevance, if any, of the transcript and its contents or of the statutory declaration. On 31 July a copy of the transcript was provided to the Court by the respondents, and the applicant filed a statutory declaration and a statement by way of submission. The respondent filed written submissions on 10 August 2001.
13 On 14 August 2001, I made an order under Order 80 Rule 4(1) of the Federal Court Rules for the issue of a certificate referring Mrs Azzi for legal assistance, noting that the nature of the referral was to obtain advice and, if thought appropriate, submissions from the practitioner appointed at the resumed hearing of the matter. Mr Leeming agreed to act pursuant to the referral order and filed written submissions on behalf of the applicant, to which the respondent has replied. The Court is grateful to counsel for so agreeing to act. By consent, no further hearing was sought on the substantial matters raised in the further submissions. On 19 September 2001 the transcript of proceedings was admitted, by consent, as an exhibit in these proceedings and leave was given to the applicant to amend the application so as to include certain matters raised in Mr Leeming's written submissions. The statutory declaration of Mrs Azzi and the audio tape of the transcript were not tendered by either party. I should add that there has been no document filed by way of an amended application to take advantage of the leave granted. That document should be filed to complete the record of the Court.
The Statutory and Regulatory Framework
14 The Act and the Regulations provide for different classes of visas (s 31). The Regulations may prescribe various criteria to be satisfied for the grant of a visa of a specified class (subs 31(3)). A non-citizen must apply for a visa of a particular class (s 45). The Minister must consider valid visa applications (s 47). After considering a valid application for a visa, and if satisfied that relevant criteria have been satisfied as prescribed by the Act or the Regulations and that other conditions, not presently relevant, have been met, the Minister is to grant the visa (para 65(1)(a)). If not so satisfied, the Minister is to refuse to grant the visa (para 65(1)(b)).
15 The visa applied for was a Family (Residence) (Class AO subclass 806) visa, as provided for by the Regulations. At the time at which Mrs Azzi applied for the visa, the criteria for grant of such a visa were prescribed by the Regulations: Schedule 2, sub-clause 806. Subclause 806 relevantly provided as follows:
806.21 Criteria to be satisfied at time of application806.213 The applicant is...a special need relative of another person who:
(a) is a settled Australian citizen...;
(b) is usually resident in Australia; and
(c) has nominated the applicant for the grant of the visa.
16 The relevant criterion was removed from the Regulations as of 1 December 1999 by SR 306 of 1998, and the subclass of visas 806 was discontinued as from 1 November 1999 by SR 259 of 1999. This does not affect the applicant's entitlement to have the matter determined on the criterion: Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10; (2001) 177 ALR 473 per McHugh J at [23]-[29]. There is no question but that the Tribunal has applied the correct form of the Regulations. The notion of a nominator in relation to an applicant for a visa meant a person who puts forward the name of the applicant as an applicant for a visa of a particular class: para 1.13(a) of the Regulations.
17 The Regulations defined (reg 1.03) the terms `special need relative', `relative' and `settled'. Relevantly, the definition of `special need relative' was as follows:
"special need relative," in relation to an Australian citizen usually resident in Australia...means a relative who is willing and able to provide substantial and continuing assistance to the citizen...if:(a) the citizen...has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen... personally, or a member of his or her family unit; and
(b) the assistance cannot reasonably be obtained from:
(i) any other relative of the citizen or resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or
(ii) welfare, hospital, nursing or community services in Australia;
18 Regulation 1.03 provided relevantly that `relative' meant:
(a) in the case of an applicant for [classes of visa not presently relevant](i) a close relative; or
(ii) a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew; or
(iii) a first or second cousin; or
(b) in any other case:
(i) a close relative; or
(ii) a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew;
[emphasis added]
19 Regulation 1.03 provided relevantly that `close relative' meant:
(a) the spouse of the person; or(b) a child, adopted child, parent, brother or sister of the person; or
(c) a step-child, adopted step-child, step-parent, step-brother or step-sister of the person;
[emphasis added]
20 `Settled' meant relevantly, in relation to an Australian citizen or permanent resident, lawfully resident in Australia for a reasonable period.
21 It is clear that Mrs Azzi's mother is settled in Australia. She is an Australian citizen who is also usually resident here (cl 806.213(b)). Further, the Tribunal accepted that Mrs Azzi's mother suffers from dementia diagnosed as Alzheimer's disease and so has and had a permanent long term need for assistance because of disability and illness.
22 Thus, the central question in relation to the grant of the visa was whether the assistance could not reasonably be obtained from a `relative' (as defined) of the mother who is an Australian citizen or an Australian permanent resident or from relevant services in Australia. However, as considered by the Tribunal, the degree of seriousness of the condition naturally affects the question of the level of assistance required.
23 From the above definitions, the position and circumstances of the following relatives of the mother became relevant:
(a) her husband (see `close relative')
- He was dead.
(b) her children (see `close relative')
- Mrs Azzi, the applicant;
- Mrs Azzi's four Australian citizen and resident brothers (see [2] above).
(c) her brothers and sisters (see `close relative')
- The identity and circumstances of the mother's siblings (Mrs Azzi's uncles and aunts) if citizens or Australian permanent residents, needed to be ascertained.
(d) her grandchildren (see `relative')
- The identity and circumstances of the children of Mrs Azzi and of Mrs Azzi's siblings needed to be ascertained;
- Four of Mrs Azzi's five children live in Lebanon and are not, I assume, Australian citizens. She has a 30 year old son who appears to be a permanent resident in Australia. The brothers have a number of children.
(e) her nieces and nephews (see `relative')
- The identity and circumstances of the children of the mother's siblings (Mrs Azzi's cousins) needed to be ascertained.
24 There are other logical possibilities from the above mentioned definitions, but, from the facts which I will later discuss, these were the relevant relatives. It should be noted that any such relative must have been an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen. I assume that the third of these categories is irrelevant.
25 Given the necessity for satisfaction of a negative arising from paragraph (b) of the definition of `special need relative' and s 65 of the Act it was always necessary, to satisfy a decision-maker under the Regulations, for Mrs Azzi to bring forward information about each and every one of these people. Without such comprehensive evidence the decision-maker would be able to say: "I am not satisfied on the material before me that the relatives (as defined) cannot reasonably provide the assistance."
26 It should be noted that the forms filled in by Mrs Azzi and her mother required family connections to be identified. The family connections of Mrs Azzi enquired of were: spouse, children, and any other dependants being family members included in the application (Mrs Azzi here referred only to her husband, all but one of her children living in Lebanon and the child in Australia not being, I assume, dependant); under the phrase "ALL your family" the following details were called for: parents, all brothers and sisters, all children, including from previous marriages or relationships, and all other dependants; under the phrase "ALL your spouse's family" the following details were called for - Mrs Azzi's husband's parents, his brothers and sisters, his children, and all other dependants.
27 In the section dealing with special need relative there was a question: "Does your relative have any other relatives in Australia?" No listing of them was required. Rather, if the answer was yes, a further question was asked: "Can any of these relatives provide the assistance required?" There was no definition of relative or of its intended width.
28 No questions were asked of the mother, as nominator, consistent with the definition of relative or close relative in the Regulations.
29 I note that the brothers and sisters of Mr Azzi and any of their children (Mrs Azzi's brothers-in-law and sisters-in-law and their children) were irrelevant for the purposes of the definition of `relative' and `close relative'.
The Application to the Delegate and the Delegate's Decision
30 In completing the relevant application form (form 887), Mrs Azzi provided in the relevant section headed "Your Family" details of her parents, siblings and children, as required. She did the same in respect of her husband's family. In the part of the form related to special need relative(s), Mrs Azzi gave, as the circumstance leading to her mother needing her assistance, the following:
My mother has been diagnosed as suffering from Alzheimer's disease and I have for the past 11 months forms a necessary close relationship with my mother. [sic]
31 The details of the assistance provided to her mother were given as follows:
I stay with her during the day and overnight and assist with all her physical needs (Guiding her within her own home, laundering, ironing, cooking, dressing, showering) and outside the home I buy all necessary goods and provisions for her. I also accompany her on all necessary visit and doctors and hospitals Etc. [sic]
32 Having answered "yes" to the question whether her mother had any relatives in Australia, Mrs Azzi indicated why none of those relatives could provide the assistance required:
Some of them are suffering from health problems and others are committed with business, employment and their own childrens [sic] and families.
33 The names of two medical practitioners were given in answer to assistance sought from any Australian welfare organisation, doctor or health professional, hospital, etc., in relation to the mother.
34 The form included spaces for inserting details of the nominator. As I have said, the form did not require details of the nominator's family to be given. There was a statutory declaration, which was completed by Mrs Azzi's mother, going to the correctness of the information supplied on the form.
35 Mrs Azzi's brother George Elazzi gave the required assurance of support under the Regulations in relation to Mrs Azzi and her husband.
36 On 12 March 1997 Mrs Azzi provided to the Department a medical report prepared by a Dr M Younan in relation to the mother's condition. The report was in these terms:
She is suffering from a depressive disorder on top of insidious dementia - "Alzhymers disease" [sic]. Both the memory disturbances and the depressed mood aggravate each other. ...Further, living on her own aggravates her depression and obviously subjects her to possible undesirable consequence [sic].
I am informed that, currently her married daughter is in a visit to Australia and is quite happy to look after her mother.
Unquestionably that would be an ideal solution. One would wish that the Department of Immigration look favourably into that matter.
37 The applicant's four brothers George, Elias, Charbel and Tony provided in September 1997 written statements as to their capacity to assist their mother. George stated:
...1. After living with me for a few years, there were many conflicts between her and my wife, therefore causing problems in my immediate family/household;
2. A few years ago, my wife became very ill having back problems, and at the same time, my mother was becoming ill. It became a strain on myself and my children trying to cope with 2 ill people in the household.
3. My mother needs a lot of care and supervision. It is very hard for my wife and myself to do, as well as housework, and our 3 sons (who still live with us) to take care of.
Elias stated:
I Elias Azzi run a 6 day fruit shop with my wife it requires our full attention leaving us with no time on our hands to take care of my mother who requires a lot of attention.
Charbel stated:
I Charbel Azzi of ... I can'ot [sic] look after my mother Rojina Azzi because I am a sick person and I am not working at the moment.
Tony stated:
I, Tony Kazzi, ... like to mention that I cannot take full care of my mother because my wife and I both work and on many occasions there is nobody at home. My mother doesn't like to stay on her own.
38 Also Mrs Azzi produced a written statement in September 1997 as follows:
As to the suggestion that we might have access to community nursing or the like for my mother because of her conditions, this would involve somebody speaking Lebanese/Arabic being involved at my mother's call because my mother can't speak English.As well, no health or community service can possibly replace relationship between a mother and her daughter or replace the love and care that a daughter can give to her mother.
39 There was a letter explaining why Charbel's address appeared on the medical reports.
40 The delegate accepted that the applicant suffered from an illness that would increase in severity and was one which "may be" (which I take to mean `can be') described as a "prolonged illness" (see the definition of `special need relative'). However, the delegate was not satisfied that the assistance could not be obtained from any other relative of the mother.
41 The decision record of 19 April 2001 shows that the delegate proceeded on the family details supplied by the applicant that she had four Australian citizen siblings, that is, that the mother had four other children that may be in a position to assist her. Narrating the reasons given by the four brothers why they were not in a position to assist, the delegate said:
...I am not satisfied that the reasons put forward by the applicant's siblings are sufficient to establish four separate families in Australia within the same city are unable to organise their circumstances such that they are able to care for and support the applicant.
On this basis, I am of the opinion that assistance could reasonably be obtained from the four siblings in Australia who are citizens of this country. Therefore I find the criterion at part (b)(i) of the definition of "special need relative" category not met.
...
The Material Put To The Tribunal for Review
42 The letter from the Department which enclosed the delegate's decision informed Mrs Azzi of her entitlement to a review of the decision. Mrs Azzi availed herself of this entitlement. At this point there did not appear to be any issue about the nature of her mother's condition. Also, the determining factor in the decision of the delegate appeared to be the lack of satisfaction in the delegate's mind as to the capacity and ability of her brothers to provide the required assistance to their mother.
43 In the form of application for review, received by the Department in May 1999, Mrs Azzi wrote, as to her disagreement with the delegate's decision, amongst other things, the following:
... Although my mother has 4 children in Australia but each one of my sibling is not in a position to be with my mother as special need because none of them is able to do so. Two of them for medical reasons namely George & Charbel and two for work commitments namely Elias & Tony. I draw your kind attention to the fact that what I have been doing for my mother as her daughter, no one else of her daughters in law is able to offer. Further evidence will be provided within 2 months. [sic]
44 The Tribunal wrote to Mrs Azzi on 20 October 2000. In this letter Mrs Azzi was told of the requirement for her to be a `special need relative'. No further details of family relationship were given. She was asked to complete a further form entitled "Further Statement By Visa Applicant". On that form Mrs Azzi stated that she was living with her mother in Marrickville, Sydney. Describing amongst other things the mother's need for assistance and the kind of assistance given, Mrs Azzi wrote:
My mother is totally dependent on me. Please refer to medical certificats [sic]. She needs me on 24 hrs basis. I support her, cook for her, talk to her, bath her she is my BABY.[emphasis in original]...
I am next to my mother every minute from early morning untill [sic] night. She always cries, she needs [special] care because of her illness and psychological disturbances. My mother is like a baby now I am her supporter & walking stick.
...
I assist my mother at all times. I give her shower, I feed her, I cook for her, I talk to her, we pray together, we walk together & most importantly my presence with her gives her satisfaction. She needs me at all times. She feels comfortable with me & very attached to me.
...
I have raised big family I have looked after sick people before, but my mother is my DEAR BABY. I dedicate all my life to her.
...
My brothers are all good and loving but all working & have circumstances which prevent them providing care/love to mum on 24 hrs basis.
45 Mrs Azzi stated the following about available welfare, hospital, nursing and community services:
Coming from Lebanon I feel proud that there are many services available to elderly people and sadly in my mother [sic] situation they can not meet her needs because special food, special language problems.
46 Mrs Azzi stated that she was financially supported by her children in Lebanon and had no financial needs.
47 Also completed was a further statement by the mother as nominator. This form asked what assistance the nominator received before the applicant arrived. The mother stated (in handwriting indicating that someone else physically filled in the form on her instruction):
My children are all loving but due to their committments [sic] & as a result of my health deterioration, I needed assistance on 24 hrs basis & my daughter is now the only daughter who is attending my needs: physically, psychologically & emotionally. Please refer to my medical conditions which are severe.George looked after me between 1980-1990 now his wife is ill.
48 In response to what assistance the nominator received from welfare and other services before the applicant arrived in Australia, she stated:
It is sad to say that welfare, hospital, community services can not meet my needs because of cultural & language problems. I have been under the supervision of specialists & other doctors but no one can assist me day & night: God has given me 3 daughters. Ivette passed away & Claudette in Lebanon and the only daughter in Australia is Janette [the applicant] I can not live without her.
49 The form required the nominator to list all relatives she had in Australia. No definition was given of the word. The mother listed George, Elias, Charbel and Tony. Responding to the question of what assistance these provided in the past and what assistance they could now provide, the mother stated that while she had lived with George for 10 years until 1990, his wife was sick; Elias owned a fruit shop open all week; Charbel was sick; Tony was a school teacher employed full time and his wife worked 4 days per week. The mother stated that "the physical assistance - support needed cannot be met by any of other children." She stated that nursing homes were not available for Arabic speakers and that she was very ill and needed the love, care and attention of Mrs Azzi. She stated that she had no need of financial support but that without Mrs Azzi she would die.
50 Mrs Azzi also provided to the Tribunal the following supporting material in addition to that which was before the delegate. She provided a psychologist's report of November 2000 as to Charbel's need for ongoing treatment for a disrupted psychological condition of such severity and persistence that he was considered unfit for work, perhaps permanently. This report stated the following:
Mr Charbel Azzi is being treated at Rehabilitation Assessment Professional[s] at Bankstown since 10 December, 1998. This patient is suffering from confusion, anxious, restless, sleep disorder, and difficulty with concentration and breathing. He also complains of nightmares, panic attacks, pain in the right and left shoulder,. He needs a ongoing treatment for his disrupted psychological condition.With the condition of Mr. Charbel Azzi, and the combination of the severity of his anxiety coupled with his persistence over an extended period of treatment is strong evidence in my view that he is unfit for work and this condition can last long term permanent more than two years.
Should you require further information, please contact our office.
51 Mrs Azzi provided a psychiatrist's report of November 2000 prepared by Dr Younan, the practitioner who had provided the prior report dated February 1997 in relation to Mrs Azzi's mother, which stated that the mother had been under the writer's care since February 1996 and that:
She is suffering from dementia, which requires ongoing care and supervision. This is best provided by her daughter who is currently a visitor to Australia.Granting the permanent residency to her daughter would be ideal course of action.
Her daughter's care cannot be provided by any other service in Australia.
52 Mrs Azzi also provided a medical report of Dr Maroun dated 9 June 1999 in respect of the brother George's wife Miriam. George had looked after his mother between 1980 and 1990. This report was to the effect that George's wife had numerous health problems which he identified including a degenerative back disease, anxiety and headaches such that she was unsuited to caring for elderly or ill persons and needed assistance herself. None of the conditions appeared on the face of the report to be necessarily short term or temporary.
53 Mrs Azzi also provided a report on Charbel's wife Gretta dated 9 June 1999 detailing her history of health problems including arthritis, chest pains and palpitations and noting that she was "looking after her own family with pain and is unable to look after anyone else."
54 Mrs Azzi also provided a report in relation to Georgina, who is apparently Mrs Azzi's daughter-in-law, detailing her complicated history of miscarriages.
55 Mrs Azzi also provided a statement of Mr Habib, a community aid program coordinator who worked in the Arabic community and had known Mrs Azzi's mother for many years and was well acquainted with the family circumstances, dated 3 June 1999. Mr Habib stated:
...Rojina was a member of my group until last year when her poor health prevented her from attending our activities. However, I have been regularly in touch with Rojina and her family and therefore I am fully aware of her and her family's circumstances.
Rojina is now over 70 years old and her health is deteriorating to a stage where she has not been able to cope on her own. Coupled her age, her future looks very bleak. Rojina has been fortunate in that her daughter, Jeanette Azzi, came from overseas to visit her and she has been looking after Rojina since she arrived.
Rojina is now facing the problem of finding somebody to look after her if her daughter leaves Australia. Rojina requires long term physical and emotional support. While doctors and hospitals can provide medical support they do not provide all the long term assistance Rojina requires. She needs 24 hr/day care and therefore somebody should be with her all the time.
Rojina has four sons in Australia. However, they are all married and have their own respective families. Her sons are paying of mortgages and could not afford to leave work to look after her. Her sons visit her as often as they could but could not provide the ongoing support she desperately needs. There have been frictions and conflicts between Rojina and her daughters in law and on those circumstances, the daughters in law would be very unsuitable to look after Rojina. Furthermore, there are no welfare organisations who can look after Rojina. As such, Rojina has no one to look after her if her daughter is obliged to leave Australia.
...
56 Thus, from the above it is plain that Mrs Azzi had directed her attention in some detail to the factual circumstances of her siblings. There appeared, on the papers, to be little doubt that the mother had significant need for 24 hour per day care with someone present with her all the time. George had previously provided assistance, but his wife was now in ill health and there had been family discord over the mother in the past; Charbel was apparently quite ill; Elias had a shop open all week; and Tony worked full time. If the relevant universe of relations was comprised of the mother's children who were Australian citizens a reasonably powerful case for the satisfaction of the Tribunal had been marshalled by Mrs Azzi. It should be remembered that this universe was the focus of consideration of the delegate (see [41] above). That is not a criticism of the delegate. That was the information before him.
The Tribunal Hearing
57 Mrs Azzi attended the Tribunal hearing with her mother and her husband. An interpreter was present. Only Mrs Azzi and her mother gave evidence.
58 Before taking any evidence the Tribunal explained various matters. The Tribunal is recorded as stating the following:
...I'll explain a little bit to you about the Tribunal and our proceedings. The Tribunal's completely separate from the Department. They don't come to the hearing but they send us their file papers, which I have, and have looked at. The Tribunal's role's [sic] to take a fresh look at the facts and see if you meet the criteria for the visa for which you applied. In this case you applied for a Family Residence visa on the basis that you were a special need relative of your mother.I'd like to tell you what the definition of special need relative under Australian law is. I must apply that definition and be satisfied that each element is met. A special need relative in relation to an Australian means a relative who is wiling and able to provide substantial and continuing assistance, if the Australian, your mother, has a permanent or long term need for assistance because of death, disability, or prolonged illness or other serious circumstances affecting her or a member of her family.
I also must be satisfied that the assistance cannot reasonably be obtained from any other Australian relative of your mother, or from welfare hospital, nursing or community services in Australia. ...
[emphasis added]
59 The above is the first time that any person or document had identified with any clarity to Mrs Azzi that the relevant issues included whether any other "Australian relative" of the mother could reasonably provide the assistance. This meant that if the mother had relatives of the kind referred to earlier (see [23] above) there would have to be material before the Tribunal sufficient to satisfy it that they (that is considering each and every one of them) could not provide the required assistance. This meant that dealing with only the four brothers, as Mrs Azzi appeared to have done, was necessarily going to be insufficient to satisfy the Tribunal about other relations. Clearly, material was required to be brought forward to negative the capacity of other relatives of the mother, if they existed and if they were Australian permanent residents.
60 The Tribunal first took evidence from the mother. The mother indicated that she lived most of the time with Mrs Azzi and sometimes with her sons. She said, amongst other things:
Tribunal: When you live with your sons, who looks after you?Interpreter: They look after me but I can still - I'm still okay, I can look after myself.
Tribunal: Is there any way in which you do need assistance from other people?
Interpreter: Thank God I'm able to look after myself. I can go and do things and I'm still strong.
Tribunal: Do you take any medicine?
Interpreter: The daughter says I can't take any medicine.
Tribunal: I'm not asking you, I'm asking your mother. I'll ask you similar questions afterwards. Mrs Azzi, do you take any medicine?
Interpreter: No, no, I don't take any medication. If I feel anything I take one Panadol, that's all.
Tribunal: Your doctor has suggested that there are some things wrong with you.
Interpreter: I don't think I - I don't know that I have anything. I don't feel anything, thank God for that.
Tribunal: In the mornings, can you get yourself up out of bed by yourself?
Interpreter: Yes, I get up, yes. I am very strong, like devil. Thank God for that.
Tribunal: And do you get yourself breakfast?
Interpreter: Yes, I make my breakfast. I sleep and I get up and -
61 She was then asked about her grandchildren:
Tribunal: How many grandchildren do you have?Interpreter: God bless them, I don't know. God bless them. They all have children, God bless them, and they all work.
62 She was then asked about her capacity to go out:
Tribunal: Do you do your own shopping or does somebody do it for you?Interpreter: No, I do my own shopping
Tribunal: How do you get to the shopping centre?
Interpreter: I walk and I know my way and I don't get lost.
Tribunal: Do you go by yourself?
Interpreter: Yes.
Tribunal: Is there anything that this daughter here does for you?
Interpreter: Well, she interrupt before I ask her the question
---
Tribunal: Yes.
Interpreter: --- but what she elaborate that, when my daughter with me she goes and buy me everything, but when she's not with me I go by myself.
Tribunal: Is your daughter not always with you?
Interpreter: It depend how things, because I move to the children myself, but sometimes she won't let me, she come and get me.
63 She was then asked about the assistance she needs:
Tribunal: Is there any assistance at all that you need on a day to day basis?Interpreter: It depends how it's happening, what's happening. It depends.
Tribunal: Can you explain a bit further?
Interpreter: Okay. Look , I - what can I explain? When I'm by myself, no-one around to help me, I'm unable to help myself, I go to my children, I get some help. But when I - my daughter, because she lives in the farm and she comes - she help every now and then.
Tribunal: What farm does your daughter live in?
Interpreter: I don't know. When ... help me, I don't know where. I live in Marrickville next to some bridges.
Tribunal: And where does your daughter live?
Interpreter: I don't know what she meant. She didn't say, "I don't know," but she's like this, "I don't know".
Tribunal: So does your daughter - this daughter here, does she live in Marrickville or does she live somewhere else?
Interpreter: I can't tell you.
Tribunal: But she doesn't live with you?
Interpreter: No, no. She doesn't live with me. She's married, she lives with her husband.
Tribunal: Okay. Do you know if your son-in-law or your daughter work?
Interpreter: Excuse me, you meant son-in-law - the one in the court, yes?
Tribunal: This son-in-law, yes.
Interpreter: I don't know, I haven't, I don't know, I'm far away from there, I don't know what they do. Everybody works. People want to work live. Everyone works.
Tribunal: So how often do you see this daughter?
Interpreter: I don't know. I don't count how often.
Tribunal: Does she come to visit you or do you go to visit her?
Interpreter: No, she come to visit. I don't know how to go and visit her. She come without any problem, God bless her, with my son-in-law.
Tribunal: And is she staying with you all the time or only some of the time?
Interpreter: Most of the time I live with her because I'm very happy to stay with her.
Tribunal: Is there anything else that you'd like to tell me?
Interpreter: No, what can I say?
Tribunal: Okay. Thank you very much. I've asked you all that I want to ask you?
64 Mrs Azzi then gave evidence. She was asked to comment on her mother's evidence:
Tribunal: Okay. Mrs Azzi, before I ask you questions, is there anything that you'd like to say about your mother's evidence?Interpreter: Yes, there's something. My mother - yes, I'd like to elaborate what my mother said. My mother, she's got very forgettable mind. We live at Liverpool and she lives in the Marrickville area. My mother, she doesn't know how to go around, she doesn't know how to go around and get by herself. I go up to Liverpool and then I come back to see her.
Tribunal: Sorry. Could you explain to me about Liverpool? You live at Liverpool?
Interpreter: Yes. I live at my sister-in-law because my husband, he's working with by brother-in-law, so we live at my sister-in-law in Liverpool because the house is not ours.
Tribunal: So you live with your sister-in-law who's married to which brother? Or is this a relative of your husband's?
Interpreter: My sister-in-law - my husband's sister, she lives in Liverpool and they gave us their house near the farm.
Tribunal: Mr Azzi, please don't interrupt. Sorry, what did you say, I didn't hear that? He gave them a house and a farm?
Interpreter: He gave us the house to live in it and he helps on the farm. My husband helps in the farm.
65 Mrs Azzi also indicated that her mother often was forgetful and that she took medication. She was then asked about her brothers.
66 Mrs Azzi told the Tribunal that Tony, her brother, had two children - 9 and 13; that George, her brother had five children, 17 years old and above. All George's children were born in Australia. She told the Tribunal that Elias, her brother, had four children, and in answer to a question whether they were adult she said: "Yes, one of his daughters [is] married." She told the Tribunal that Charbel was ill, that she didn't see him very often. No enquiries were made about his children.
67 Mrs Azzi was then asked about her mother's brothers and sisters in Australia. The following exchange took place.
Tribunal: Does your mother have any brothers and sisters in Australia?Interpreter: They're all here. There's only one in Lebanon. One of them in Lebanon. But all her brothers and sisters in Australia. My mother's brothers and sisters in Australia.
Tribunal: How many brothers and sisters does your mother have in Australia?
Interpreter: Two boys and two sister. Two brothers and two sisters.
Tribunal: So in addition to your mother there are four brothers and sisters in Australia?
Interpreter: Yes.
Tribunal: And those brothers and sisters, some of them have children?
Interpreter: All married and - they've been here for 40 years, they're all married and there are even grandchildren. They came before my mother.
Tribunal: Okay. So there's a very large family in Australia?
Interpreter: Yes. My husband and I, we have nothing here. My husband's brothers all in Lebanon. And I have a sister in Lebanon too. And everyone is here.
Tribunal: On the application form, in relation to your husband he's listed - one, two, three, four, five, six, seven brothers and sisters of his in Australia.
Interpreter: Yes, they're all here. Yes. He has nothing in Lebanon.
Tribunal: Sorry. I thought you said his brothers were in Lebanon.
Interpreter: Okay. I was talking about my mother's brother in Lebanon. My uncle in Lebanon.
Tribunal: Okay. So your mother has one brother in Lebanon?
Interpreter: And a sister. A brother and a sister in Lebanon, and they've been married for a long time.
Tribunal: I see. Okay. But your mother also has two brothers and two sisters in Australia?
Interpreter: Yes. Four.
Tribunal: You have a sister in Lebanon. Is that right?
Interpreter: Yes.
68 At this point the Tribunal said the following and the following exchange took place:
Tribunal: Okay. All right. Well, my concern is, with that large family that you have, if you weren't here why couldn't somebody else, or a number of other people, look after your mother?Interpreter: Ever since I came my mother preferred to live with me and I feel pity for her and she loves to stay with me. And the rest, the husband says the rest they all at work - working.
Tribunal: Mr Azzi, I quietly let you interrupt but I said before, you're not giving evidence, your wife is. You had the opportunity to say if you wished to give evidence. I would've been happy to hear from you.
Interpreter: We all were under oath for telling the truth.
Tribunal: Well, your husband's not under oath. He's chosen not to be a witness.
Interpreter: Please, darling, don't say anything.
Tribunal: Okay. I understand it's hard not to interrupt but it's very important - the proceedings are being tape recorded, it's very hard when more than one person is peaking. Okay. The other thing I have to look at is whether the assistance your mother needs couldn't be provided by Australian community nursing or other services.
69 Mrs Azzi was then asked about the availability of community services.
The Tribunal Decision
70 The Tribunal first set out what it understood to have been the applicant's claims to the delegate and as made before it either in writing or orally. The Tribunal had before it the various medical and community centre reports and statements dealing with the mother's condition and care needs in addition to further information and documents in support of the application, invited by the Tribunal on 20 October 2000, to which I have earlier referred. The Tribunal noted (and I summarise) the claim to be as follows: that Mrs Azzi's mother suffers from Alzheimer's disease or dementia; that Mrs Azzi takes care of her needs on a daily basis, including cooking, cleaning, dressing etc; that she requires full-time assistance and is fully dependent on Mrs Azzi; that she has four adult sons who are citizens of and resident in Australia, however they are not able to assist their mother due either to their own poor health or their own family and work commitments; that community or social services are not a suitable source of assistance because, amongst other things, the mother speaks no English, and in any event these services could not replace the love and care that Mrs Azzi would be able to provide.
71 The Tribunal stated that the application revealed that Mrs Azzi has an adult son who is an Australian resident. It also stated that Mr Azzi has seven Australian resident siblings. (Those brothers-in-law and sisters-in-law of Mrs Azzi were not relatives for the purposes of the Regulations.)
72 At the Tribunal hearing, as I have said, Mrs Azzi and her mother gave evidence. The Tribunal's reasons record that no other members of the family wished to make oral statements or give evidence.
73 There is then set out (paras [17] to [31]) what was said to the Tribunal by Mrs Azzi and her mother about the mother's condition, the family circumstances and the nature of assistance that Mrs Azzi had been providing. I do not propose to set out the Tribunal's summary of the matters put to it.
74 The Tribunal made the following findings. It was satisfied that Mrs Azzi's mother suffers from dementia or Alzheimer's disease and that this is a "prolonged illness" giving rise to a permanent or long-term need for assistance (reg 1.03(a)). The Tribunal noted that there was no medical evidence as to the severity of her condition aside from that describing memory disturbances, and no evidence of diagnosed physical disabilities. The Tribunal concluded that the sort and level of care that the mother needs is supervision on account of dementia.
75 The Tribunal accepted that Mrs Azzi was willing and able to provide assistance to her mother except to the extent that this required her to speak English.
76 The Tribunal then turned to the question, clearly framed by reference to the relevant part of regulation 1.03, of whether the assistance required could not reasonably be obtained from another relative or welfare, hospital, nursing or community services. The Tribunal returned to the condition of the mother. It was satisfied that she suffered from dementia or Alzheimer's disease. However in coming to the conclusion that it was not satisfied that the assistance required could not reasonably be obtained from her Australian relatives, the Tribunal made further comments on the condition of the mother, placing reliance upon what the mother had told the Tribunal about her being physically well. Considering the medical and social welfare reports I suspect a somewhat sanguine view was taken of the mother's needs based on a brief appearance before the Tribunal, and her at times less than coherent evidence ([60] to [63] above). However, such matters were squarely within the Tribunal's fact finding province and I make no further comment.
77 Thus characterising the mother's needs as only "companionship and supervision", and not 24 hour a day care and being unable to cope on her own, the latter being the needs as articulated by Mrs Azzi and the view of the community worker who had known the mother for many years, the Tribunal turned to the question of availability of family assistance.
78 The Tribunal found that Mrs Azzi's mother had a considerable number of relatives who were Australian citizens or permanent residents. It found that in addition to her four sons she had numerous adult grandchildren, four siblings and their adult children. There was material on which to base these conclusions. The Tribunal noted the claims of Mr Azzi's brothers that they are each individually unable to provide the care for their mother that Mrs Azzi requires because of work or family commitments or of ill health. The Tribunal noted that at least in respect of one brother, Charbel, the psychologist's report did not address the issue of his ability to provide the sort of assistance required by his mother. (I have earlier set that report out in full. See [50] above. I would have thought that the report clearly speaks of his inability to cope with a septuagenarian with dementia. However, again, to the extent this is fact finding, it is for the Tribunal.) It also noted the situation of certain of Mrs Azzi's sisters-in-law and their ability to provide assistance. Though strictly speaking irrelevant to the relevant definitions, the position of the wives of George and Elias were relevant to assessing the ability of these brothers to give assistance. The Tribunal then stated:
Apart from this, no evidence was provided as to why the nominator's adult grandchildren, her siblings and their children could not assist (other than a general statement that all the relatives work or are busy with their family).
79 The Tribunal concluded that while the mother would clearly prefer Mrs Azzi to stay in Australia to provide her with assistance and companionship, it was:
[n]ot satisfied that such assistance that the nominator needs cannot reasonably be obtained from a combination to those of her four sons and their adult children and her four siblings and their adult children who are Australian citizens or permanent residents however they may wish to discharge their obligation individually.
80 The Tribunal was therefore satisfied that the visa applicant, Mrs Azzi, did not meet the meaning of special need relative at the time of the application or of its decision and hence did not satisfy the criteria in sub-clauses 806.213 and 806.221 of the Regulations. This being so Mr Azzi could not satisfy the secondary criteria for the visa applied for.
Submissions
81 In his written submissions on behalf of the applicant, Mr Leeming said that the Tribunal made what amount to two errors of law, each amounting to identifying a wrong issue or asking itself a wrong question. The two errors were said to be:
a) rather than asking itself whether the assistance could reasonably be obtained from "any other relative", the Tribunal asked whether the assistance could be reasonably obtained from a combination of relatives;b) rather than considering whether to obtain further information as to the practicality of the nominator's other relatives providing assistance to her, the Tribunal assumed that it was reasonable that they do so.
82 In relation to the first error, it was said by Mr Leeming that the question the Tribunal was required to ask was whether assistance could be reasonably obtained from one other person who was a relative of the nominator, whereas the Tribunal's findings were expressly made in terms that the nominator's relatives collectively could provide the assistance which it was found the applicant, Mrs Azzi, was willing and able to provide. It was said that textual matters in Regulation 1.03(b), particularly the repeated use of the singular, point to the condition being satisfied only if the assistance can be reasonably obtained from a single relative who is an Australian citizen or permanent resident. Related to this, and said to underpin the single relative point, it was also submitted that the proper comparison is between the particular assistance capable of being provided by one person, the applicant, and that reasonably obtainable from another. It was said that the Tribunal proceeded on the erroneous basis that the mother was capable of being moved from the home of one relative to another and thus being looked after serially. The assistance that would be provided by such combination of relatives was not "the assistance" that the applicant was willing and able to provide but a different assistance. It was said also to be an inferior quality of assistance. Reference was made to the decision of Burchett J in Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 in support of the proposition. Burchett J's approach (at 527) was that "the assistance with which the Regulation is concerned is the assistance the relative is able to provide" [original emphasis]. Particular reference was also made in the submissions to the following passage of his Honour (also at 527):
Where what is involved is the personal support of a particular brother whose every word of encouragement must have the meaning of their shared experiences packed into it, that support is plainly irreplaceable whatever inferior (or even very valuable) substitutes might be sought.
83 Mr Leeming's submission was that although the broad and generous approach to the construction of the definition given by Burchett J was rejected by the Full Court in Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194, this affected neither the plain construction to be given to the repeated use of the singular in the definition of "special need relative" nor the difference in quality of the assistance capable of being provided by one individual as opposed to a group.
84 The respondent in its submission on this first point drew attention to s 23 of the Acts Interpretation Act 1901 to the effect that, unless the contrary intention appears, words in the singular include the plural. The Acts Interpretation Act applies to Regulations made under the Act: see para 46(1)(a) of the Acts Interpretation Act. It was said that there is no apparent intention that the words "any other relative" cannot include the plural. Moreover, the reference to "welfare, hospital, nursing or community services" suggested that if the assistance was capable of being obtained from several sources, the criterion has not been met. Thus the Tribunal did not err in law in coming to its conclusion based on a combination of relatives who could reasonably assist the mother. The respondent did not otherwise address the construction to be given to the term "the assistance" in the definition.
85 I turn to consider this first ground.
86 The decision of Burchett J in Fuduche for some time stood (see Davies J in Chen v Minister for Immigration and Ethnic Affairs (1994) 51 FCR 322; Foster J in Moskal v Minister for Immigration, Local Government and Ethnic Affairs (1994) 125 ALR 307; and see Ryan J in Vo'ifalelahi v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR 52) for the proposition advanced by his Honour that the definition of "special need relative" should, as part of the regulatory scheme of such visas, be given a broad and generous construction "in favour of those Australian citizens and residents that it was intended to benefit and in furtherance of the good name of Australia that its humanity maintains". This informed his Honour's approach to the construction of "the assistance" in the definition. The broad approach in Fuduche was, however, (as Mr Leeming noted) rejected by the Full Court in Teo, supra at 206-207; see generally Tuamoheloa v Minister for Immigration and Multicultural Affairs [1998] FCA 1406 (Heerey J); Hussein v Minister for Immigration and Multicultural Affairs [1999] FCA 1621 (Emmett J); Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 392 (Lehane J)); also Huang v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 95 (Full Court), cf Wu v Minister for Immigration and Multicultural Affairs [2000] FCA 1817; (2000) 105 FCR 39 (Full Court). See also Minister for Immigration & Multicultural Affairs v Chan [2000] FCA 737 (Kenny J), Jun v Minister for Immigration and Multicultural Affairs [2000] FCA 867 (Mansfield J) and Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277 (French J); cf Narayan v Minister for Immigration and Multicultural Affairs [2001] FCA 789 (Sackville J); [2001] FCA 1745 (Full Court).
87 However, there remains a degree of disagreement as to Burchett J's view that the assistance with which the Regulation is concerned is the assistance that the relative is able to provide, as distinct from the assistance required by the person in need. In Chan, supra, for example, Kenny J set aside the Tribunal's decision, holding (at [17], citing Teo) that the Tribunal had erred in treating the particular assistance that the relative could there provide as the assistance with which Reg 1.03 was concerned. On the other hand, Sackville J in Narayan, supra, at [38]-[40] while recognising the rejection in Teo of Burchett J's "benevolent" approach to construction, found no reason to doubt Burchett J's observations about the definition of `special need relative'. The Full Court in Narayan, supra, at [40] did not, it seems to me, direct itself specifically to the resolution of this issue.
88 I do not think it matters in this case which view is taken of the phrase "the assistance" in para (b) of 1.03. However, for my own part, I think that the structure and sense of the provision indicates that the relevant assistance in para (b) of the definition is not the particular assistance being provided or capable of being provided by the applicant, but the assistance found to be required pursuant to the sorts of enquiries dealt with in para (a). The issue is the nominator's needs and how they might reasonably be met (Su v Minister for Immigration & Multicultural Affairs [2001] FCA 1409, [33]; Jun, supra, [32]). The definition is informed by the special need of the nominator, not simply the care that an applicant is able to provide, which may well exceed the objective needs of the nominator. The Tribunal must make a finding in relation to whether the applicant is able to provide substantial and continuing assistance towards a permanent or long-term need for assistance resulting from the prescribed circumstances and whether that assistance - ie the assistance found to be necessary - cannot be reasonably obtained from the other categories of sources prescribed.
89 Irrespective of the content of the phrase "the assistance" in para (b) of 1.03, I see no contrary intention which would limit the provision to an examination of what one relevant relative can give. It is easier, perhaps, to reach that conclusion if the phrase is governed and given content by the objective need of the person in para (a) rather than the particular assistance capable of being provided by the applicant. However, in either case I see no reason to limit the enquiry to what one person can do. The Tribunal is required to be satisfied that the assistance could not reasonably be obtained from sources other than the applicant (see too Rahman, supra at [33] and [34]).
90 Thus, in my view, the Tribunal did not err in law holding that the criterion is not met if a combination of relatives, rather than a particular relative, could reasonably assist the nominator. A finding of fact that the assistance could be derived from a number of sources, or a number of relatives, would not itself involve an error of law for reasons only of the plurality of sources, although in given circumstances the plurality of sources might conceivably go to whether the assistance could still reasonably be obtained from resort to a combination of all sources.
91 The alleged second error was said to be the failure of the Tribunal to use its powers to obtain further evidence in relation to the mother's grandchildren, siblings and nieces and nephews.
92 At no time prior to the short hearing before the Tribunal did anyone or any document make it clear to Mrs Azzi that what she had to do was marshal evidence about each and every relative of her mother as fell within the definitions of `relative' and `close relative'. The forms she filled in did not require it. When the delegate rejected her application, this was done expressly on the basis of a lack of satisfaction in the ability of the four brothers. (Though this was based on the information provided.) No doubt in the light of that, in seeking the review of that decision, Mrs Azzi put together material concerning her brothers, the integrity of which was not impugned (though such limitations as it might be seen to have had were assiduously identified by the Tribunal). There has never been any suggestion that Mrs Azzi or her mother sought to conceal any information about the wider class of relatives. If the relevant universe of discourse was the ability of the four brothers to give assistance to their mother, bearing in mind the health problems of two of their wives and the other disclosed circumstances, I would have thought that any decision of lack of satisfaction of the criteria would have bordered on the perverse. Whether or not that would give a ground of review under s 476 need not be pursued here. The capacity of the four brothers was not the universe of discourse.
93 It must have been plain to the Tribunal from the history of the matter, from the terms of the decision of the delegate and from the material provided by Mrs Azzi for the review that Mrs Azzi thought the relevant issue to be whether her four brothers could give her mother the relevant assistance.
94 This was not the case. I have set out earlier what the Tribunal said at the hearing. What it did not say was that unless information was put to it about each and every adult grandchild of the mother, sibling of the mother and nephew and niece of the mother, the Tribunal would necessarily be unable to be satisfied that an Australian citizen relative could not provide the assistance.
95 What the Tribunal did was to ask some brief questions and obtained limited answers lacking any detail. Given the detail of the material which had been put on in relation to the brothers, it must have been apparent to the Tribunal that the likelihood, or at least very good possibility, was that Mrs Azzi simply had not given this wider class of people any attention.
96 In some cases it is undoubted that the Tribunal is obliged to go further than the material before it. Merely because the applicant approaches the matter in a particular way does not necessarily disoblige the Tribunal from examining other material thrown up before it. See Grant v Repatriation Commission [1999] FCA 1629 at [17]- [18]; Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287; and Benjamin v Repatriation Commission [2001] FCA 1879.
97 At the hearing, the Tribunal questioned Mrs Azzi and learnt from her that the mother had four adult siblings, themselves married with children and grandchildren (see [67] above). It had no material or evidence brought by the applicant in relation to these persons. It found as follows:
The nominator has a considerable number of relatives who are Australian citizens or permanent residents. In addition to her four sons she has numerous adult grandchildren, four siblings and their adult children. Her sons have claimed that they are each individually unable to provide the care for their mother that their sister provides because of work and family commitments or ill health. A psychologist suggests that Charbel suffers from a `disrupted psychological condition' which makes him unfit to work but does not address the issue of his ability to provide the sort of assistance required by his mother. There is also medical evidence from 1999 of conditions which would limit the ability of two of the nominator's daughters-in-law to provide physical assistance. It is also suggested that if the visa applicant's daughter-in-law suffered another miscarriage she would be unable to help during any period of her bed rest. It is noted that she now has a child and there is no evidence that she is affected by any on-going medical conditions. Apart from this, no evidence was provided as to why the nominator's adult grandchildren, her siblings and their children could not assist (other than a general statement that all the relatives work or are busy with their families).[emphasis added]
98 It then said:
The nominator told the Tribunal that she was physically well, and there is no medical evidence to suggest that this is not the case. As indicated above, the medically documented need of the nominator is for the presence and supervision of some other person. She told the Tribunal that she moved from the home of one child to another although she was usually with her daughter. The visa applicant dismissed this as forgetfulness on her mother's part, but it does suggest that the nominator is not adverse to the idea of moving from home to home. It is not in dispute that at present she does move from her home to that of her daughter. She also suggested that she spent some time with her sons. The visa applicant did advise the Tribunal that one of her brothers takes their mother to doctor's appointments, as the visa applicant does not speak English. She said that her brothers work but also said that she helped on the farm. At such times the assistance she renders to her mother is limited to companionship and supervision. Her mother sits and keeps her company. Other family members might also provide such companionship and supervision.
99 On this basis the Tribunal expressed its conclusion which I have earlier set out ([79] above) as follows:
The Tribunal is not satisfied that such assistance as the nominator needs cannot reasonably be obtained from a combination of those of her four sons and their adult children and her four siblings and their adult children who are Australian citizens or permanent however they may wish to discharge their obligations individually.
100 As I have already said, it is tolerably clear that no attention by way of preparation had been given by Mrs Azzi to statements or other materials or details in relation to the mother's siblings, grandchildren and nephews and nieces; and that Mrs Azzi appeared to have seen the relevant and significant relatives for the purposes of the Tribunal hearing as those detailed before and dealt with by the delegate, being her four brothers. The Tribunal first learned of their existence when questioning Mrs Azzi, and clearly their existence and the lack of information about them underlies the Tribunal's lack of satisfaction, in the sense that it expressed its conclusion significantly by reference to these relatives.
101 By virtue of subs 353(1), in carrying out its functions under the Act the Tribunal was required to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. In reviewing a decision it is not bound by technicalities, legal forms or rules of evidence and is required to act according to substantial justice and the merits of the case (subs 353(2)). Section 359 is headed "Tribunal may seek addition information" and provides relevantly that:
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.(2) Without limiting subsection (1), the Tribunal may invite a person to give additional information.
(3) Subject to subsection (4)[not presently relevant], an invitation to an applicant must be given to the applicant by one of the methods specified in section 379A.
102 In Rahman, supra, French J noted at [25] that generally a decision-maker is entitled to rely upon materials supplied by the applicant and has no duty to seek additional material. He referred to Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388, 392-93 (Toohey J), Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 587 (Mason J) and Enichem Anic Srl v Anti-Dumping Authority (1992) 111 ALR 178, 190 (Hill J, with whom Gummow J agreed). However, he noted that while it is no part of the duty of the decision-maker to make the applicant's case for it, there may be cases in general administrative law in which a decision-maker who unreasonably fails to ascertain relevant facts known to be readily available will be taken to have exercised the decision-making power improperly. His Honour referred to what was said in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170. Further, French J noted (at [30]) that upon judicial review at common law or under the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act):
The Court is entitled to consider those facts which were known to the decision-maker, actually or constructively, together only with such additional facts as the decision-maker would have learned but for any unreasonable conduct by him - Prasad at 169 (Wilcox J) and Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 at 178 (Toohey J).
103 French J noted that the Full Court in Luu v Renevier (1989) 91 ALR 39 had confirmed (at 50) the possibility that, in certain circumstances, the failure of a decision-maker to make inquires would vitiate, as being unreasonable, the purported exercise of a power. The Full Court there said:
One may say that the making of a particular decision was unreasonable - and, therefore, an improper exercise of the power - because it lacked a legally defensible foundation in the factual material or in logic. But, equally, one may be able to say that a decision is unreasonably made where, to the knowledge of the decision-maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained.
104 His Honour also noted the suggestion in Detsongjarus v Minister for Immigration and Ethnic Affairs (1990) 21 ALD 139 at 143 that a failure to enquire, by considering only the material produced by the applicant, may in some circumstances breach a duty to act fairly towards the applicant, so that while the decision-maker is not obliged to make the applicant's case and may ordinarily decide an application on what the applicant puts forward, the decision-maker may sometimes be obliged to make further inquiries where the decision-maker knows that there is available other factual material likely to be of critical importance in relation to a central issue for determination.
105 All of the cases cited by French J in Rahman arose, as his Honour noted, in the context of judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (which it is settled are grounds that are not all available in respect of decisions made under the Act as it stood at the time of the Tribunal's decision, where the grounds are confined to those set out in s 476) or arose in settings where there was, or was assumed to be, a wider range of grounds of review available than is now accepted to be the case under the Act.
106 In relation to the Refugee Review Tribunal's duty under s 420 to act according to substantial justice and merits of the case, it is now clear that this section does not impose a procedure to be observed in connection with the making of the decision such that failure to observe the procedure would be a ground of review under s 476(1)(a) of the Act: Minister for Immigration and Ethnic Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611. In relation to that Tribunal, s 420 may be said to the equivalent of s 353 in relation to the manner of operation of the Migration Review Tribunal, while s 424 may be said to be the equivalent provision to s 359 of the Act (see, as to s 424 and where the circumstances of the case may be such as to oblige the Tribunal to seek out information for itself, in order to discharge its duty as an administrative decision-maker to make its own decision, Li v Minister for Immigration & Multicultural Affairs [2000] FCA 19; (2000) 96 FCR 125 at [63] to [66].)
107 The Full Court in Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 confirmed that s 427(1)(d) of the Act (which provides that the Refugee Review Tribunal (the RRT) may require arrangements to be made for the making of any investigation that the Tribunal thinks necessary with respect to the review) does not impose any duty on that Tribunal to make further enquiries. The Full Court did not displace the conclusion of the primary judge that it was unlikely that the mere failure to exercise the power to cause enquiries to be made would amount to a breach of any duty by the RRT in the absence of some special or exceptional circumstances, such as failure by the Tribunal to honour an undertaking to enquire (although it did allow the appeal on the basis that to say that the Tribunal failed to give "proper, genuine and realistic consideration" to an application does not make out any available ground for review under Pt 8 of the Act). See too Kabir and Others v Minister for Immigration and Multicultural Affairs [2001] FCA 248 at [50] ff.
108 The applicant's submission was that the authorities are not settled on the question of whether a failure to consider whether to obtain additional evidence gives rise to reviewable error (although it was accepted that the proposition that there is a reviewable obligation actually to exercise the power has been rejected on numerous occasions). Reference was made by Mr Leeming to the decisions, said to be in favour of the proposition, in Sellamuthu, supra; Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 289 and Al Shamry v Minister for Immigration and Multicultural Affairs [2000] FCA 1679 at [38]- [42]. See also Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179, 192-93. However, as Mr Leeming properly points out, the proposition was specifically rejected in Yusuf v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 470. In that case Finn J approved of what was said by North J in Kulwant Singh v Minister for Immigration and Ethnic Affairs (unreported, 21 November 1996), in relation to whether s 427(1)(d) implicitly required the Tribunal to consider whether to arrange a medical examination so as to obtain further information. North J said:
The section is permissive. It gives the Tribunal a power. The Act does not require that the power be exercised, and it follows that it does not require the Tribunal to consider whether it should be exercised. Thus, although a failure to consider whether to exercise a power may be unwise in certain circumstances, it is not a failure to observe a procedure required to be observed by the Act.
109 Finn J acknowledged that a duty to consider whether to exercise such a power may arise at common law. At [20] he said:
This is not to say that the Minister or Minister's delegate or for that matter the Tribunal as the donee of the power is not, as a public official and as an holder of an office of public trust and confidence, obliged to consider whether or not a power so held ought be exercised.
110 Finn J's reasoning in Yusuf was not revisited by the Full Court on the appeal in that matter. It was cited with approval in Majeed v Minister for Immigration and Multicultural Affairs [2000] FCA 470 (Ryan J). See too Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 at [42] to [44]. No reference was made in Al Shamry to Yusuf (1999).
111 In Ahmed v Minister for Immigration v Multicultural Affairs [2001] FCA 506, Hely J held (in relation to the argument that it was open to the RRT to take a variety of additional steps to assess the applicant's claims), that the cases there relied upon in support of the existence of a reviewable error arising from breach of a duty to consider making further enquiries, which - save for Sellamuthu - were the same cases referred to by Mr Leeming, "are outside the mainstream of decisions of this Court on that question" so that if the RRT failed to consider whether to undertake further enquiries into the applicant's claims, that would not amount to reviewable error (at [39]). Hely J's decision has since been followed: see Hernandez v Minister for Immigration and Multicultural Affairs [2001] FCA 725, [16]; see also W41/01A v Minister for Immigration & Multicultural Affairs [2001] FCA 742 at [19]- [23] and the authorities cited therein; and Raheem v Minister for Immigration and Multicultural Affairs [2001] FCA 940, [23].
112 It may be, notwithstanding prevailing authority, that a duty to enquire may exist or be seen to arise in certain circumstances, but these are understood as being exceptional or rare: Prasad, supra; Minister for Immigration & Multicultural Affairs v Amani [1999] FCA 1040; W41/01A, supra; Raheem, supra. Before the High Court's decision in Eshetu it had been said by the Full Court of this Court in Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 in relation to s 420 that any such duty that might exist would arise only in rare cases; cf McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim [2000] HCA 50; (2000) 175 ALR 209 at [13].
113 In Gomez v Minister for Immigration and Multicultural Affairs [2001] FCA 935, I dealt with an argument founded upon a duty (said to arise out of ss 56 and 427(1)(d)) on the RRT to make enquiries of its own motion. I referred (see para [23] to [25]) to various cases contrary to the proposition. However, at [26] the observation was made that the general non-existence of a duty to exercise the power to obtain further information or make further inquiries does not gainsay the proposition (and the proposition drew support from the considerations of Ryan J in Majeed and Finn J in Yusuf (1999)) that there could be circumstances thrown up by a particular claim in its context where it could be said that the circumstances were such as to oblige the decision-maker to consider whether it ought exercise such a power or indeed to exercise the power. I noted that there could be circumstances such that the power to enquire had to be exercised in order to fulfil some obligation to deal adequately or fully with a particular matter such that jurisdiction was indeed exercised.
114 As I explain shortly, whatever might be the nature of any duty to enquire or to consider enquiring, if either such duty exists, there was no breach here. The Tribunal enquired of Mrs Azzi. It seems to me that Mrs Azzi's real complaint is that she was not made aware until the questioning in the hearing about what the relevant issues were. The problem was not the lack of enquiry, but the lack of focus given to the subject matter up to that point by Mrs Azzi.
115 Section 359A of the Act provides as follows:
[359A]Applicant must be given certain information
(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 a part of the reason, for the 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), the invitation must be given to the applicant by one of the methods specified in section 379A.
...
(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 the purpose of the application; or
(c) that is non-disclosable information.
[emphasis added]
116 The existence of the mother's siblings and their families and of her grandchildren was clearly part of the reason for the decision arrived at. In the circumstances, it is unnecessary for me to decide whether this is properly seen as "information" or whether the Tribunal in its various statements to the applicant evident in the transcript complied with paras 359A(1)(a) and (b) since, if it was "information", it was information provided by the applicant herself for the purposes of para 359A(4)(b).
117 Mr Leeming's submissions did not develop with any particularity how it was that the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 touched upon the existence, or otherwise, of any duty in the Tribunal of making or considering making further inquiries. It is not altogether clear how the second error alleged (that the Tribunal assumed that it was reasonable for the other relatives to provide assistance instead of considering whether to obtain or obtaining further information as to the practicality of this) involved the Tribunal identifying a wrong issue or asking itself a wrong question, which are the terms - taken as I see it from Yusuf at [82] - in which the error was put.
118 If any duty arose here, it arose out of the particular circumstances that it must have been plain to the Tribunal that Mrs Azzi, who had put on material going to one group, had not even begun to essay the task of providing material on the wider class. Was it an error of law for the Tribunal to ask about those people and not provide an opportunity to bring forward further information? It is not so much a question of the Tribunal not enquiring or not using its own power, but rather of whether it failed to give Mrs Azzi an understanding of what matters she had to direct her attention to, that is the wider class of relatives, and an opportunity to gather material about that wider group of people.
119 To the extent that such matters might otherwise invoke the principles of natural justice, they are excluded from an examination by para 476(2)(a) of the Act.
120 As I have said earlier, there appears to have been no breach of the natural justice analogue (s 359A) because the information about the grandchildren, siblings, nieces and nephews of the mother (if that was "information" for the purpose of the section) came from Mrs Azzi herself. Ironically, and somewhat arbitrarily, if someone else had provided this information (such as the mother or another family member) the Tribunal may well have been obliged to comply with s 359A, which would have included compliance with paras 359A(1)(a) and (b), which would have required the Tribunal to ensure that Mrs Azzi understood the relevance of this information about the existence of these relations, that is that unless she provided material about each and every one of them she was bound to fail in her application because the Tribunal had to be satisfied about a negative state of affairs, which state of affairs could be affected or influenced by any one or more of the members of this wider class.
121 Mrs Azzi was not told that. She profered no material about those people. She answered a few questions about them, through an interpreter, with her husband speaking in her ear, to the evident annoyance of the Tribunal member. See para [68] above. I would have thought that in all the circumstances fairness dictated that Mrs Azzi have an opportunity to put material to the Tribunal properly apprised of the issues for consideration. No form made the width of the class of relevant relatives clear to her. She apparently dealt with what must have appeared to her to the most obvious class - her Australian resident siblings. She approached the Tribunal apparently seeking to remedy the deficiency identified by the delegate in the material about her four brothers. Perhaps with legal advice she would have been better prepared. The Tribunal gave her an impromptu opportunity to deal with this wider class of people. It did not explain, in the way I have described, the fatal absence of material about the other relatives and the fatally lopsided nature of the material provided about the four brothers. Whether this would lead to a conclusion of a lack of procedural fairness or natural justice was not argued before me. I need take no final view of the matter.
122 Does this display any error for the purpose of s 476? In my view, no. Natural justice is removed: subs 476(2). Section 359A is not applicable (para [116] above). Even if there be available in some circumstances a duty to enquire and to exercise its own powers, or to consider enquiring, these circumstances do not throw it up. It is not a question of material being available to the Tribunal upon enquiry. Rather, it is a question of the applicant being given a (further) opportunity to gather information within her ken having been clearly disabused of an apparently held overly narrow view of the relevant factual and legal issues. If that be anything, it is a question of natural justice and reasonable expectations. But s 476 makes that an irrelevant enquiry.
123 Put another way, leaving aside an analysis based on natural justice, any attack on the decision would have to be based on the proposition that the Tribunal failed to complete its mandated jurisdictional task under the Act of reaching a state of satisfaction about the reasonable availability of assistance on the evidence without, either in its questioning or by making a request for more details, eliciting more information than it did.
124 Put that way I think any such attack fails. The transcript of proceedings before the Tribunal shows that the Tribunal explained the task before it to Mrs Azzi and her mother before commencing. It asked who of the persons then present wished to give evidence. It asked Mrs Azzi's mother certain questions. The Tribunal turned to Mrs Azzi, and took evidence from her. The Tribunal asked Mrs Azzi about each of her brothers. While it did not ask specifically, for example, "Why is it that these persons cannot reasonably assist the mother?" or seek to draw out matters relating to their capacity to assist, as arising from their statements, which it had, it asked, and received, answers about the marital status of Mrs Azzi's brothers, whether their wives worked, and the number and age and marital status, if any, of their children. After doing so it said (at 16.25):
You see, if I am satisfied that your mother has a need for assistance, and that's one of the issues, I have to be satisfied that none of the other family members could provide it, could reasonably provide it.
125 Mrs Azzi's response was that she was the only one who had time for the mother as the others all worked, and that the mother has said she only felt comfortable with Mrs Azzi. It asked about the mother's siblings and their children and grandchildren. It then asked Mrs Azzi (at 18.20):
[W]ell, my concern is, with that large family that you have, if you weren't here why couldn't somebody else, or a number of other people, look after your mother?
126 The response was again that the mother preferred to live with Mrs Azzi and loved to stay with her, and that the others all worked.
127 The Tribunal then said (18.43):
Okay. The other thing I have to look at is whether the assistance your mother needs couldn't be provided by Australian community or other services....
Have you made any inquiries about what services might be available?
128 Leaving to one side questions of natural justice, I do not think that it is open to say that the Tribunal failed to complete its jurisdictional task.
129 As I have said, what seems to me to have occurred is that Mrs Azzi went to the Tribunal believing the issues for determination were her brothers' capacities and abilities to care for their mother, when in fact, under the Regulations, the issues were wider. Whether or not Mrs Azzi would have been able to elaborate much further, whether any inability to do so could be satisfactorily explained (such as the possible lack of family contact between the mother and her siblings or their children), was not explored before me. It seems to me, however, that that is her complaint. If it has any force, such force arises from the principles of natural justice. Subsection 476(2) of the Act makes that enquiry irrelevant.
130 For the above reasons, the application must fail.
131 I do not propose to order costs against Mrs Azzi. I think Mrs Azzi could understandably feel as though she had only become fully aware of the inadequate extent and focus of the material which she had provided to the Tribunal upon reading the reasons of the Tribunal. Unaided as she was by any lawyer (up until Mr Leeming's assistance), she perhaps could have expected some hint in the forms that she had to fill in and the documents with which she was provided that she had to provide information about every single relative set out in the definition of `relative' and `close relative' so as to satisfy someone of a negative; or she might have expected, if it was apparent (as it was) that she had directed her material to only one part of the relevant class, that she would be told as much in sufficient time to enable her to marshal that material. These matters appeared to provoke her ill-defined complaint in her application. Mr Leeming gave it further focus. To put it shortly, I think it understandable that Mrs Azzi felt, and feels, aggrieved in relation to the Tribunal's decision. However, it is not vitiated by any flaw provided for in s 476. Taking into account all these matters, I do not propose to order costs against her.
132 The order of the Court will be that the application be dismissed.
133 Once again, I wish to express my thanks to Mr Leeming and Mr Smith for their assistance. They provided their customarily careful and thoughtful submissions.
I certify that the preceding one hundred and thirty three (133) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. |
Associate:
Dated: 25 January 2002
Counsel for the Applicant: |
Mr M Leeming |
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Counsel for the Respondent: |
Mr J Smith |
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Solicitor for the Respondent: |
Clayton Utz, Sydney |
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Dates of Hearing: |
17 July, 14 August, 19 September 2001 |
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Date of Judgment: |
25 January 2002 |
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