FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Chan [2000] FCA 737

CITIZENSHIP AND MIGRATION – Family Residence Visa – special need relative – review of decision of Immigration Review Tribunal – whether error of law in construing special need relative requirement

WORDS & PHRASES – “special need relative”

Migration Act 1958, Part 8, s 349(2)(c), s 352, s 361, s 475(1)(a), s 476(1)(e)

Migration Legislation Amendment (No 1) Act 1998, Schedule 1, Part 2, item 42(2)

Migration Regulations, Regulation 1.03, Schedule 2, Part 806

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

Vo’ifalelahi v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR 52 discussed

Moskal v Minister for Immigration, Local Government and Ethnic Affairs (1994) 125 ALR 307 discussed

Minister for Immigration & Ethnic Affairs v Teo (1995) 57 FCR 194 followed

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

Tuamoheloa v Minister for Immigration & Multicultural Affairs [1998] FCA 1406 referred

Singh v Minister for Immigration & Ethnic Affairs (unreported, von Doussa J, 31 January 1996) referred

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v SHUI WAH CHAN

VG 232 of 1998

KENNY J

MELBOURNE

5 JUNE 2000

THE COURT ORDERS THAT:

1.                  The decision of the Immigration Review Tribunal made on 8 May 1998 be set aside.

2.                  The matter to which the decision relates be referred to the Migration Review Tribunal for further consideration according to law.

3.                  There be no orders as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for review of a decision of the Immigration Review Tribunal (“IRT”), which is a judicially-reviewable decision for the purpose of Part 8 of the Migration Act 1958 (“the Act”):  see s 476(1) and s 475(1)(a).  The ground upon which the applicant relies is s 476(1)(e), namely, that the decision involved an error of law.

background facts

2                     The IRT made few express findings of fact, although it apparently adopted as reliable a report by Dr Stella Kwong, consultant psychiatrist.  Dr Kwong had interviewed the respondent, with the aid of a Cantonese language interpreter, on or about 20 March 1998.  The report set out an account of the respondent’s history, as the respondent had related it to Dr Kwong at that interview.  The Tribunal also had before it a letter dated 14 September 1996 from the respondent to the Department of Immigration and Multicultural Affairs (“the Department”) in which the respondent described her history and her current situation in Australia.  There was no issue of credibility.  The following statement of background facts is drawn from Dr Kwong’s report, the respondent’s letter of 14 September 1996 and, where appropriate, other records before the Tribunal (the reliability of which was not an issue).

3                     The respondent, Shui [Chui or Chiu] Wah Chan, was born in China on 29 November 1931.  She has only one sibling, a sister, Siu How Chan, who was born in China on 13 August 1939.  The sisters were brought up in Shanghai.  Their father died in either 1940 or 1943.  The respondent left school after her father’s death and, in 1947, when she was about sixteen years of age, she began work as a weaver in a clothing factory.  She worked outside the home for about twenty-nine years, i.e., until she was about forty-five years of age.  She married at the age of twenty and she and her husband had three sons and a daughter.

4                     In 1955, the respondent’s sister, Siu How Chan, left China and settled in Hong Kong with her husband.  Between 1958 and 1969, Siu How Chan had four daughters and two sons.  In 1958, the respondent, together with two sons and a daughter, went to Hong Kong.  She and her children stayed with her sister, her children, their mother and her sister’s husband, for about two years.  Their residence was a small single room.  Meanwhile, on account of government policy, the respondent’s husband and her eldest son remained in China.  The respondent and her two youngest sons rejoined them in 1960.  The respondent’s daughter remained with the respondent’s sister in Hong Kong.  The family in Hong Kong subsequently obtained a Government flat.

5                     In 1961, she and her two youngest sons again travelled to Hong Kong.  Once again, she stayed with her sister in her sister’s flat.  Her eldest son joined her there during the following year.  In 1972, her husband was permitted to join her in Hong Kong.  By then, she and her husband and their children could afford to move into a separate dwelling, “just a few minutes walk away” from her sister’s residence. 

6                     In 1976, the respondent, who was suffering from ill health, ceased work.  In that year, her children began migrating to Australia.  Ultimately, all four came to this country.  In 1984, the respondent and her husband also migrated to Australia.  They began living with their eldest son in Wantirna, a suburb of Melbourne.  Sometime after December 1994, the respondent and her husband moved to a unit in East Doncaster to live with their youngest son and his family.  (In March 1998, her mother, then aged eighty-five, was also “alive and well living in Australia”.)

7                     In 1992, the respondent, who had suffered from childhood asthma, began suffering from asthma again.  According to Dr Kwong’s report, she has “lost hearing in both her ears gradually and slowly over the years.  Her right ear was almost completely deaf.”

8                     The respondent’s sister arrived in Australia on 6 September 1994.  She held a (multiple entry) visitor visa.  The respondent’s brother-in-law arrived shortly thereafter, on 11 September 1994.  He held a visitor’s visa.  In December 1994, after caring for the respondent (and, it seems, the respondent’s husband), Siu How Chan applied (on behalf of herself and her husband) for a Family (Residence) Class visa, the grant of which would enable the holder to remain permanently in Australia.  The visa application was made, relevantly, on the ground that Siu How Chan was a “special need relative” of the respondent.  The respondent stated on the application form that she wished to nominate her sister for permanent residence for this reason.

9                     In July 1996, a delegate of the applicant refused the visa application.  On 7 August 1996, Siu How Chan applied (on behalf of herself and her husband) for an internal review by the Migration Internal Review Office (“MIRO”).  MIRO affirmed the delegate’s decision on 15 May 1997.  The respondent applied to the IRT on 28 May 1997 for a review of the refusal of her sister’s visa application.

the proceedings before the tribunal

10                  On 1 September 1997, the IRT notified Siu How Chan in accordance with s 361 of the Act that, amongst other things, she might appear before the Tribunal to give evidence.  Siu How Chan indicated, by written notice received by the IRT on 12 September 1997, that she wanted a hearing.  Subsequently, the Tribunal fixed a hearing for 17 February 1998, commencing at 2.00pm.  On that day, Siu How Chan and her husband, together with a daughter, grandson, the respondent and her daughter, attended before the Tribunal.  There was, it seems, a Cantonese language interpreter available.  There is, however, little to show what occurred on that day.  A file minute of the hearing records that:

Member turned Hearing into a Preliminary conference.  Re-submit file in three months.  Member to write to City of Manningham.  Member to organise letter to Federation of Chinese Association.

There is no indication on the Tribunal’s file (so the parties said) or in the Tribunal’s reasons for decision that the IRT received any evidence from either the respondent or Siu How Chan (or anyone else) at the preliminary conference, although, as the respondent’s counsel observed, it is likely that there was some discussion between the Tribunal member and one or other of those attending the conference.  Just what was said and by whom does not appear.  At 3.00pm in the afternoon of the conference, however, the member telephoned the respondent’s migration agent and spoke with him for about twenty minutes.  Again, there is nothing before the Court to show what was said during that telephone call.  Apart from the preliminary conference, the IRT did not conduct any hearing before reaching the decision under review. 

11                  On 24 February 1998, the IRT wrote to Dr Stella Kwong, requesting a psychiatric assessment of the respondent, and to the Aged and Disability Services, City of Manningham, requesting an aged care assessment of the respondent and her husband.  There is nothing to show whether the Tribunal wrote to anyone else. 

12                  The IRT’s letters to Dr Kwong and the City of Manningham were in similar terms.  Its  letter to Dr Kwong read in part:

Madame Chan is seeking a review of a decision by the Department of Immigration and Multicultural Affairs to reject her sister, Siu How Chan’s, application for a subclass 104 (Preferential Family) visa as a ‘special need relative’. 

The Tribunal requires objective expert advice to assist in its deliberations into whether Madame Chan satisfies the definition of ‘special need relative’ as defined in Regulation 1.03 of the Migration Regulations 1994.  If Madam Chan satisfies this statutory criteria [sic] her sister has a prima facieentitlement to permanent residence subject to satisfying other statutory requirements such as health and character. 

I would appreciate your opinion in respect of this regulation given this couple’s age, health, current living/care arrangements and the efficacy of existing informal care networks.  I understand that the applicant’s daughter, Paula Chow, would like to be present at the assessment. …

To assist you in your assessment I am enclosing the following: 

Regulation 1.03 of the Migration Regulations 1994 defining ‘special need relative’;

two previous decisions of the Tribunal concerning ‘special need relative’:  Re Pucilowski and Re Chiam.

As we have seen, Dr Kwong responded by submitting a report dated 20 March 1998.  Ms Katherine Hopgood, Assessment/Policy Development Officer, City of Manningham, responded with a report dated 10 March 1998. 

the reasons for the tribunal’s decision

Siu How Chan sought a Family (Residence) Class visa pursuant to Part 806 of Schedule 2 of the Migration Regulations (“the Regulations”).  The critical issue for the IRT was whether, on the basis of the material before it, Siu How Chan qualified as a “special need relative” of an Australian citizen within the meaning of Regulation 1.03 and Part 806 of Schedule 2.  Regulation 1.03, which defined “special need relative” for the purpose of Part 806, read as follows:

‘special need relative’ in relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or an eligible New Zealand citizen, means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if: 

(a)       the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and

(b)       the assistance cannot reasonably be obtained from:

(i)                 any other relative of the citizen or resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

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

On the basis of the material before it, the Tribunal determined that, “with the exception of the prescribed public interest criteria and the criterion requiring an acceptable assurance of support”, Siu How Chan had “satisfied all prescribed criteria for a Family (Residence) (Class AO) Subclass 806 (Family) visa”, including the special need relative requirement.  In consequence, it remitted the visa application for reconsideration.

13                  In its reasons for decision, the Tribunal referred to the Department’s file, provided pursuant to s 352 of the Act, and set out, word for word, virtually all of the reports made by Dr Kwong and Ms Hopgood.  After referring to the observations of Burchett J in Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 (“Fuduche”) at 527, and Ryan J in Vo’ifalelahi v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR 52 (“Vo’ifalelahi”) at 60-61 (referring to the observations of Foster J in Moskal v Minister for Immigration, Local Government and Ethnic Affairs (1994) 125 ALR 307 (“Moskal”)), the Tribunal stated:

Having regard to the previous dicta of the Federal Court and specifically the observations of Ryan J in Vo’ifalelahi the fact that the affected Australian party is supported in his/her emotional or other requisite needs by his/her membership of or residence in the family unit or a spousal relationship does not necessarily disqualify that party from coming within the definition of a ‘special need relative’.  That special need assistance within the meaning of the legislation may need to be supplemented by an overseas near relative or may be a unique relationship such as a spouse or mother/daughter relationship where such bonds cannot be replicated or substituted by relatives within Australia.

The Tribunal also finds, having regard, inter alia, to expert evidence, particularly that from Dr Stella Kwong dated 20 March 1998 that the review applicant has no other close relatives available within Australia who could reasonably provide the requisite level of support to meet her psycho-social support needs, as well as assistance with activities of daily living, notwithstanding the presence of a spouse resident in Australia.

Furthermore, the Tribunal has noted the health, welfare and community services available to Mrs Chan’s [sic] but finds that such services are inapplicable or inappropriate to the review applicant’s primary requirement for sibling focussed emotional security and support in the management of her ‘permanent and severe disability, namely her asthma and profound deafness’.  Welfare, hospital, nursing or community services are therefore, at best, of marginal relevance to her given her specific diagnosis, ethnocultural circumstances, and given that welfare, hospital, nursing or community services are unable to provide the requisite level of specific sibling emotional support in terms of intensity and continuity (see Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 418 and Moskal v Minister for Immigration, Local Government and Ethnic Affairs (Federal Court, Foster J, 4 October 1994, unreported).

The review applicant’s primary need is for either live-in companionship with her sister or alternatively her residence in close proximity so that they can resume their emotional support severed, albeit, by voluntary migration.  It is clear that the visa applicant is ‘willing and able to provide substantial and continuing assistance’ in respect of her sister’s needs. 

Accordingly, the visa applicant qualifies as a ‘special need relative’ pursuant to Regulation 1.03 and clause 806.213 of the Regulations.

grounds for review

14                  The applicant challenged the Tribunal’s decision on two bases.  First, the applicant submitted that the Tribunal erred in its interpretation of the definition of “special need relative” in Regulation 1.03.  Secondly, the applicant submitted that the Tribunal erred in failing to exercise its own independent judgment in making the decision. 

(a)    Construction of “special need relative”

15                  As we have seen, the Tribunal purported to follow and apply Fuduche, Vo’ifalelahi (to the extent that it adopted Moskal)and Moskal.  These three cases concerned the definition of “special need relative” in the Migration Regulations applicable at the time.  For a while, Fuduche stood for the proposition that the definition “should be given a broad and generous construction in favour of the Australian citizens and residents that it was intended to benefit, and in furtherance of the good name of Australia that its humanity maintains”:  Fuduche at 527 per Burchett J.  This approach also characterised Moskal at 315-16and Vo’ifalelahi (in so far as it followed Moskal).  The approach was, however, rejected by the Full Court of this Court in Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 at 206-207.  It has not met with support in the Full Court since then:  cf Huang v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 95.  (Heerey J discussed the effect of these decisions in Tuamoheloa v Minister for Immigration and Multicultural Affairs [1998] FCA 1406.)  Judgments in Teo and Huang were delivered well before the IRT’s decision on 8 May 1998.

16                  The respondent’s counsel submitted, in effect, that the Tribunal’s error, if any, was immaterial.  The point of the references to Fuduche, Vo’ifalelahi and Moskal was, so he said, to acknowledge that the definition of special need relative was largely concerned with medical issues and that there must be some causal relationship between the need for particular assistance and the relevant serious circumstances.  Those propositions have not, so respondent’s counsel remarked, been doubted. 

17                  Plainly enough, the Tribunal relied on Fuduche, Vo’ifalelahi and Moskal to support its conclusion that because Siu How Chan and the respondent are sisters and, for that reason, have a unique relationship, then Siu How Chan’s willingness to provide “sibling focussed emotional security and support”, “the requisite level of specific sibling emotional support” and “live-in companionship with her sister” permits her to satisfy the special need relative requirement.  Although the approach once found support in Fuduche, Vo’ifalelahi and Moskal, the Tribunal fell into error.  Assuming, for the moment, that the Tribunal was entitled to accept that Dr Kwong was correct in attributing to the respondent a “permanent and severe disability, namely … asthma and profound deafness”, the Tribunal ought to have identified distinctly what the respondent actually needed by way of assistance as a result of these conditions.  The Tribunal did not do this.  Nor did the Tribunal identify whether Siu How Chan was able to meet these particular needs by providing assistance that was relevantly substantial and continuing:  cf Singh v Minister for Immigration and Ethnic Affairs (unreported, von Doussa J, 31 January 1996) at [20].  Instead, the Tribunal conflated the assistance with which the definition is primarily concerned and the assistance which Siu How Chan was able and willing to provide.  This was the approach taken by Burchett J in Fuduche where his Honour had observed, at 527, that “the assistance with which the Regulation is concerned is the assistance the relative is able to provide” (emphasis original).  In Moskal, Foster J, at 316, had remarked that “[c]ommon humanity demands that a disadvantaged citizen be not deprived of the special caring assistance of a near relative”.  This formed part of the passage quoted with approval by Ryan J in Vo’ifalelahi at 61, in considering the definition of special need relative.  The Full Court in Teo held, at 206-7, that this approach was incorrect.  That seems to have escaped the Tribunal when it treated the assistance that Siu How Chan could provide (“sibling focussed emotional security and support”, “the requisite level of specific sibling emotional support”, etc.) as the very assistance with which Regulation 1.03 was concerned.  Because of its erroneous reliance on Fuduche (and Vo’ifalelahi and Moskal)the Tribunal misconstrued the definition of “special need relative” and, for this reason, the Tribunal’s decision should be set aside. 

(b)    Failure to exercise independent judgment

18                  There was, as we have seen, a second basis for the applicant’s challenge to the Tribunal’s decision.  This was the Tribunal’s alleged failure to apply its own mind independently to the matters that fell for determination. 

19                  The Tribunal’s reasons for decision contained a number of simple errors which may be indicative of a lack of conscientious application to the decision-making task.  The principal errors of this kind were, first, the Tribunal’s mistaken reference to a hearing on 13 November 1997.  There was, as the parties agreed, no hearing on that day, or on any other.  There was just the preliminary conference on 17 February 1998, to which reference has already been made.  Secondly, the Tribunal was wrong in saying (as it did) that the primary decision-maker had refused the visa application because Siu How Chan failed to satisfy the “remaining relative outside Australia” criterion and that MIRO had also affirmed the decision for this reason.  Both the primary decision-maker and MIRO primarily rested their decisions on what they considered was Siu How Chan’s failure to satisfy the definition of “special need relative”. 

20                  Of more importance, perhaps, is the apparent lack of critical evaluation by the Tribunal of the reports of Dr Kwong and Ms Hopgood, both of which were, as we have seen, set out in the Tribunal’s reasons for decision.  There were obvious discrepancies between those reports and between Dr Kwong’s report and other documents before the Tribunal.  Some discrepancies related to relatively minor matters, as for example, the year of the respondent’s father’s death and the age at which she left school.  Others were of more significance.  The reports differed in the accounts they gave of the respondent’s marriage and the assistance given her by her husband.  They also differed in the accounts they gave of the respondent’s medical condition.  Dr Kwong attributed the respondent’s permanent and long-term need for assistance not to any psychiatric condition but to her “permanent and severe disabilities namely her asthma and profound deafness”.  Those conditions were, of course, outside her expertise.  Under the heading, “Mental State Examination”, Dr Kwong merely stated:

Ms Chan presented as a medium height and built, bespectacled, Chinese woman with greying hair and haggard face looking much older than her stated sixty-seven years of age.  She looked depressed.  She said that there was no more pleasure in life for her except the congenial company with her sister who understands her, cares for her, plays with her (mahjong), cooks good food and prepares special medicine for her.  She also feels a great sense of security if and when she would move in and live with her sister who is totally committed to their sisterhood. 

‘My husband is no longer interested in me.’ ‘Might be when we are separated we might get on better.’

Dr Kwong’s assessment is to be compared and contrasted with those of the respondent’s physician and Ms Hopgood.  In December 1995, the respondent’s physician reported that the respondent’s daily activities were affected by her “severe asthma”.  He did not mention deafness.  Ms Hopgood referred to the respondent’s chronic asthma and deafness, but described the latter as being only “a moderately severe hearing impairment”, noting that she “wears a hearing aide in (L) ear”. 

21                  As the applicant’s counsel submitted, the discrepancies between the reports of Dr Kwong, the physician and the social worker give rise almost inevitably to further questions.  The Tribunal did not, however, seek to address them in any way.  There was no hearing.  There was, it seems, no further enquiry made by the Tribunal.  The Tribunal did not discuss, or even acknowledge, these differences in its reasons for decision.  I accept that the Tribunal’s apparently uncritical adoption of the reports received by it, especially that of Dr Kwong, raises the very real possibility that the Tribunal did not exercise any real independent judgment on the matter before it.  The IRT’s letters of request upon which Dr Kwong and Ms Hopgood acted do nothing to dispel any doubts one may entertain in this regard.

22                  It follows that I reject the submission advanced by the respondent’s counsel that “there is nothing to suggest that the Tribunal did not ‘independently’ consider whether to accept the facts as set out in the reports”.  Accepting, for present purposes, that, as the respondent’s counsel submitted, “[i]t would have been irrational for the Tribunal to reject the evidence provided by Ms Kwong insofar as that that evidence was within the province of Ms Kwong’s expertise”, the critical part of her evidence, as to the respondent’s medical condition, was not within her expertise in any event.  The respondent’s counsel also submitted that the independent judgment ground did not fall within s 476(1)(e) of the Act.  This was the sole provision upon which the applicant relied.  It is unnecessary, however, to express any concluded view on this question or on the question whether the applicant ultimately made out this ground, because of the conclusion I have already reached as to the Tribunal’s misconstruction of the definition of “special need relative”.  Accordingly I do not do so.

23                  For the reasons stated, the decision of the Tribunal made on 8 May 1998 should be set aside and the matter should be remitted to the Migration Review Tribunal for reconsideration according to law:  see Migration Legislation Amendment (No 1) Act 1998, Schedule 1, Part 2, item 42(2).  Nothing in these reasons should be taken as precluding the possibility that the Tribunal may, upon reconsideration, again conclude that Siu How Chan satisfies the special need relative criterion for a Family (Residence) Class visa. 

Associate:

Dated:              5 June 2000