FEDERAL COURT OF AUSTRALIA

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

MIGRATION – appellant sought visa on the basis of being a “special need relative” in relation to her infant Australian child – meaning of “special need relative” – meaning of “other serious circumstances”

COURTS – precedent – whether construction of regulation formed part of ratio – circumstances in which a Full Court can adopt a different construction of a statutory provision from an earlier Full Court

WORDS AND PHRASES – “special need relative”, “other serious circumstances”

Migration Regulations 1994 (Cth) reg 1.03

Chen v Minister for Immigration and Ethnic Affairs (No 2) (1994) 51 FCR 322 considered

Huang v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 95 not followed

Bristol-Myers Squibb Company v F H Faulding & Co Ltd (2000) 97 FCR 524 considered

Woolworths Ltd v Commissioner of Taxation [1999] FCA 102 considered

Telstra Corporation Limited v Treloar [2000] FCA 1170 considered

GUI RONG WU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 813 OF 2000

HEEREY, MOORE AND GOLDBERG JJ

15 DECEMBER 2000

SYDNEY

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The orders of the primary judge be set aside.

3.                  The matter be remitted to the Migration Review Tribunal for reconsideration according to law.

4.                  The respondent pay such legal costs as may have been incurred by the appellant in the appeal and in the proceedings before the primary judge.

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

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

Introduction

1                     This is an appeal against a judgment dismissing an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”).  On 30 August 1999 the Tribunal affirmed a decision made on 24 March 1998 to refuse Ms Gui Rong Wu ("the appellant") a subclass 806 Family (Class AG) Change in Circumstances (Residence) visa ("subclass 806 visa") which had been sought on the basis the appellant was a “special need relative” of the nominator who was her child.  The child was an Australian citizen born on 9 November 1997.  The application for judicial review was dismissed on 17 May 2000 when the learned primary judge affirmed the decision of the Tribunal and ordered the appellant to pay the costs of the Minister for Immigration and Multicultural Affairs (“the Minister”).

2                     The appellant was represented in these proceedings, and at the hearing before the primary judge, by her de facto husband ("the husband") (an Australian citizen) who is not legally qualified and not fluent in English.  However the notice of appeal was filed by a firm of solicitors who appear to have acted for the appellant for a brief period after leave was given to file the appeal out of time: see [2000] FCA 878.

The approach of the Tribunal

3                     A criterion for the grant of the relevant visa was that the appellant was a “special need relative” which was defined in reg 1.03 of the Migration Regulations 1994 (Cth) (“the Regulations”):

“... ‘special need relative’, in relation to an Australian citizen usually resident in Australia [or] an Australian permanent resident usually resident in Australia … means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:

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

(b)   the assistance cannot reasonably be obtained from:

(i) any other relative of the citizen or resident, being a relative who is an Australian citizen [or] an Australian permanent resident … ; or

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

4                     The substance of the Tribunal's reasoning on the question of whether the appellant was a special need relative was as follows:

7. The only evidence presented in support of this application is to the following effect:

The Applicant is 41 years of age, living in a defacto relationship with 1 child.  The applicant attended the hearing on 29 July 1999 without the nominator [the child].  The father of the nominator did not attend the hearing, as he was at home caring for the child.  The Tribunal asked for evidence that the father was an Australian citizen and his passport was produced.  The files contained evidence of certain health problems of the nominator, but under questioning the Applicant could not establish that any follow up treatment or examinations of the child were undertaken for some considerable time since the first claims of medical problems were made.  Claims were made, in the file and at the hearing, as to the health problems of the father of the child.  The evidence given by the Applicant confirmed that the father was well enough to travel to China during April/May 1997.  The Applicant conceded that she wanted to stay in Australia to care for her son, as she did not trust the father to care for the child on a correct and proper basis.  The medical evidence discloses only minor matters, which have not been supported by medical evidence that would bring the Applicant within the definition of a special care [sic] relative.

8. The mere fact that the Applicant is the mother of an Australian citizen child, is not sufficient, in itself, for the Applicant to have grounds to apply for an entry permit ‘as a special needs relative’.  The Tribunal has previously held that childhood alone is not a ‘disability’ or ‘other serious circumstance’ [sic] giving rise to a need for assistance within the definition of a ‘special need relative’.  There must be evidence that the child has some illness or disability beyond merely being a child and there is no such evidence in this case.

9. The above is essentially the evidence.

10. Based on the evidence, I find the definition of special need relative is not met.

11. The only evidence of assistance which is needed in this case is for domestic assistance and for babysitting.  Such need for assistance does not satisfy the relevant part of the definition of special need relative as set out earlier, because it does not arise from death, disability or other serious circumstances effecting [sic] the Nominator [the child] or a member of his family unit.”  (Emphasis added)

5                     In the application for the visa, the child was identified as the relevant Australian citizen.  The father was the husband.  The Tribunal considered whether the child had "a permanent or a long-term need for assistance because of death, disability, prolonged illness or other serious circumstances” affecting the child.  The Tribunal concluded that the child did not have a need for such assistance.  This conclusion was based on a view that childhood alone is not a "disability" or "other serious circumstances" and, in relation to the particular circumstances of this case, the child did not suffer from any illness of any consequence.

The approach of the primary judge

6                     The primary judge commenced her reasons for judgment by setting out the background and relevant statutory provisions.  Her Honour then referred to the evidence and the reasons of the Tribunal.  She then commenced to deal with what she understood to be the issues, noting that no grounds of review were identified in the application.  The primary judge did not accept that the appellant could be a "special need relative" of her son merely because the child was of tender years.  In doing so, her Honour followed a decision of a Full Court in Huang v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 95.  The primary judge also did not accept a criticism of the finding of the Tribunal that the medical evidence concerning the child disclosed "only minor matters".  Her Honour rejected a contention that the Tribunal had misconstrued reg 1.03 of the Regulations.

7                     The primary judge then dealt with a submission concerning the approach the Tribunal had taken to the evidence about a trip to China the husband had undertaken in 1997 and the relevance of this to the health of the husband at the time of the Tribunal's decision.  The primary judge considered the approach the Tribunal took to the position of the husband on the basis that the application for the visa had raised a question about the husband's need for assistance from the appellant.  Her Honour concluded that it had been open to the Tribunal to conclude that the husband did not have a permanent or long-term need for assistance from the appellant.

The grounds of appeal in summary

8                     As noted earlier, the notice of appeal appears to have been drawn by solicitors then retained by the appellant.  It is couched in terms intended to raise grounds of appeal (by reference to the approach of the primary judge to the decision of the Tribunal) that one might expect in proceedings such as these.  However because the appellant was represented at the hearing of this appeal by her husband, submissions were made that travelled beyond the grounds of appeal concerning matters that ordinarily do not arise in applications for judicial review (whether at first instance or on appeal).  Nonetheless we will endeavour to identify the issues raised by either the notice of appeal and the submissions that warrant comment either because they are issues of substance or because they appear to be matters of particular concern to the appellant and her husband.  The issues are:

·        Whether the Tribunal erred in its consideration of the medical evidence concerning the husband.

·        Whether the definition of "special need relative" might be satisfied if the relevant Australian citizen (in this case the child) has a need for permanent or long-term assistance because a person (in this case the husband) who might otherwise care for the citizen is suffering from a disability or prolonged illness.

·        Whether the definition of "special need relative” might be satisfied if the need for permanent or long-term assistance was not a need existing at the time the decision was made to grant or refuse the visa.  That is, can the need be one that might arise after (and perhaps because) the visa was not granted to the putative special need relative?

·        Whether the definition of "special need relative" comprehends circumstances in which the relevant Australian citizen is a young child who, by virtue of its age and inability to fend for itself, has a need for assistance from the putative special need relative.  This raises for consideration whether the expression "other serious circumstances" comprehends circumstances of a baby, a young child or even a child.  It also raises for consideration the correctness of the decision of the Full Court in Huang v Minister for Immigration and Ethnic Affairs.

9                     We now consider each of these issues.  We should add, however, that some of these issues were not raised expressly by the appellant before the primary judge.  In addition some of these issues were not considered by her Honour when she dealt with what she quite appropriately perceived to be the issues raised in the application for judicial review.  We make this point because this is an appeal from the judgment of the primary judge.  This appeal is not simply another consideration of the application for judicial review by reference only to the decision of the Tribunal and errors it is alleged to have made.  Subject to fresh grounds being raised, a Full Court considers whether the primary judge erred in any respect.  Nonetheless we propose to deal with the issues raised in this appeal on the basis that, if not raised or considered below, it is expedient and in the interests of justice that leave be given to raise them in this appeal.  Counsel for the Minister did not object to us considering all issues raised by the appellant in the notice of appeal or at the hearing of the appeal. 

The Tribunal's consideration of the medical evidence

10                  The appellant submitted that the Tribunal erred in its consideration of the medical evidence as it concerned the husband.  The Tribunal had before it two medical certificates relating to the husband which were in a form apparently intended to be used to obtain sickness benefits from the Department of Social Security.  The Tribunal also had before it some pathology reports concerning the husband.  The certificates revealed that the husband was suffering from chronic hepatitis/liver disease in late 1997 and early 1998.  However each certificate recorded, under a heading "Prognosis", that the incapacity suffered by the husband was not likely to last more than six months.  While it may be thought that there is a tension between the use of the word "chronic” and the prognosis, what the certificates meant and the ultimate factual question of what was the state of health of the husband, were matters of fact entrusted to the Tribunal to determine.  It is to be recalled that the Tribunal said in the passage quoted in par 4 above that the medical evidence disclosed only minor matters.  On one view of its reasons, the Tribunal was referring only to the evidence concerning the child and was not referring to the evidence that the husband suffered from chronic hepatitis and a dysfunctional liver.  This may have been the view of the primary judge.  However, in our opinion, on a fair reading of its reasons, the Tribunal was dealing with the medical evidence relating to both the child and the husband.  The Tribunal's finding was that the evidence "disclose(d) only minor matters".  This was a finding that was open to the Tribunal and it does not reveal reviewable error.

11                  The more up to date medical evidence the appellant provided both to the primary judge and to this Full Court is irrelevant.  It is irrelevant because, in a case such as the present, it is not open to this Court to review findings of fact and the evidence on which they were based for the purpose of this Court making its own findings.  To do so would be beyond the Court's function in the judicial review of an administrative decision.

Could the illness of the husband be a prolonged illness for the purposes of par (a) of the definition of "special need relative"?

12                  In her original application for the visa, the appellant signified that the required assistance (that she provided as a special need relative) could be provided by her husband (the father).  When she gave evidence to the Tribunal she was asked whether her husband would be able to "look after the baby" and her answer might, on one view, be taken to be an acknowledgment that he could.  However in a statement prepared by the appellant for the purposes of the review by the Tribunal, the appellant said her husband suffered from chronic hepatitis for a long time and that:

“4.  My spouse could not look after [the child] who could not obtain assistance from some community services in Australia because he is so young.

It is a serious circumstance without his mum's care with my son.”

13                  While she did so obliquely, the appellant raised for consideration by the Tribunal the question of whether she was a "special need relative" because of what she contended was her husband's inability to look after the child because of his (the husband's) illness. Looking only at the words used in the definition of "special need relative", they appear to comprehend these circumstances.  That is, the definition appears to apply to a situation where the long-term need of a child for substantial and continuing assistance (to be provided by the appellant) arises from (or to use language of the definition - "because of") the disability or prolonged illness of a member of the child’s family unit (the husband and father).

14                  However the words "a member of his or her family unit" are specially defined.  They are not simply a reference to family unit as commonly understood.  Regulation 1.12 identifies when one person (in this case the husband) is a member of the family unit of another person (in this case the child).  In the regulation that latter person is called "the family head".  The regulation identifies (in pars (a) to (e) of sub-reg (1)) five situations in which, relevantly, a person might be a member of the family unit of another person.  The only situation that might apply in the present case is identified in par (d).  That paragraph concerns a situation where the member (in this case the husband) is a relative of the family head (in this case the child).  That relationship is satisfied in the present case.  However there is a further requirement in that paragraph that is almost certainly not satisfied, namely that the member (in this case the husband) is dependent on the family head (in this case the child).  The word "dependent" is defined in the Regulations as meaning wholly or substantially dependent on another person for financial, psychological or physical support.  It is conceivable (though only as the remotest of possibilities) that it might be concluded, as a matter of fact, that in this case the husband was substantially dependent on the child for psychological support.  Such questions of fact would be matters for the Tribunal.  However this issue was not raised at the hearing of the appeal and, for reasons which will become apparent shortly, it is a matter we need not consider further.  Suffice it to say, it is highly unlikely that the husband is dependent on the child and, accordingly, highly unlikely that the husband is a member of the child's family unit as that expression is defined in the Regulations.  If that is so, then the Tribunal did not err by not considering (at least expressly) the application of the definition of "special need relative" on the basis that the illness of the husband might be the relevant illness. 

15                  In any event, the finding of fact of the Tribunal that the illness of the husband concerned "only minor matters" rendered it unnecessary for the Tribunal to address the question of whether the husband was a member of the family unit of the child.  It would have been necessary for the Tribunal to consider the matter if it had concluded, as a matter of fact, that the husband suffered from a prolonged illness.  Accordingly no error is established on this ground.

The relevance of future circumstances

16                  In the notice of appeal, it was contended that the primary judge erred in not holding that the Tribunal erred in law by misconstruing the definition of "special need relative" as it related to the circumstances of the child were he to return to the People's Republic of China with the appellant.  It was not a contention raised before or dealt with by her Honour.  The contention is based on the proposition that if the appellant was not granted the visa, she would leave Australia and return to China with the child and there the child might suffer hardship (arising, for example, from difficulties in obtaining accommodation).  It is unnecessary to consider whether this contention is based on any finding the Tribunal made about the probable future conduct of the appellant or indeed whether it was a matter fairly raised by the appellant with the Tribunal.  The thrust of at least much of the appellant's case before the Tribunal was that the child would remain in Australia with the husband.

17                  Counsel for the Minister submitted that because the definition of "special need relative" refers to a situation where the citizen "has a permanent or long-term need" (emphasis added), it is necessary for the need to be an existing one.  That is, the definition does not comprehend situations where the need might arise in the future but does not presently exist.  We agree with this submission.  Plainly consideration of the future arises because of the reference to "permanent or long-term" in the definition.  Nonetheless the definition proceeds on the basis that there is an existing need and that the existing need will endure.  A future need of the type identified in the appellant's contentions is not, in our opinion, a need of the defined type.

The meaning of "other serious circumstances"

18                  The notice of appeal raises the issue of whether the primary judge erred in not holding that the Tribunal erred by not approaching the matter on the basis that childhood alone might be "special circumstances" giving rise to a need for assistance within the definition of "special need relative".  The primary judge concluded there had been no such error and followed the decision of the Full Court in Huang v Minister for Immigration and Ethnic Affairs.  In substance, the appellant challenges the correctness of the decision.

19                  Before considering the judgment of the Full Court, mention should be made of Chen v Minister for Immigration and Ethnic Affairs (No 2) (1994) 51 FCR 322.  In that matter Davies J concluded that "serious circumstances" in the definition of "special need relative" could comprehend the circumstances of a young child in need of support and nurturing by parents and, in particular, by a mother.  However in Huang v Minister for Immigration and Ethnic Affairs the Full Court concluded, in relation to a provision arising in a different statutory context, that the definition of "special need relative" did not comprehend a person attending the needs of a young child, in so far as the definition spoke of a citizen (the child) having a permanent or long-term need for assistance because of "other serious circumstances".

20                  It is convenient to refer first to the reasons of Hill J with whom Jenkinson J agreed.  As to the meaning of the expression "other serious circumstances" and the construction adopted by Davies J, his Honour said (at 99):

“In support of a submission that we should apply Chen in the present case, the appellant relied upon the rule that in re-enacting legislation (in this case the definition of "special need relative") Parliament must be taken as having sanctioned or approved the construction placed upon earlier versions of that legislation.  Such a rule must be approached with some caution.  If the definition of "special need relative" had been re-enacted without any alteration of context, it would, no doubt, have been appropriate to give the present definition the same meaning as that discussed by Davies J.  However, that is not the case here.  What happened in 1995 is that the entire regulations to the Migration Act were repealed and new Regulations substituted, but in a somewhat different context.  In my view, the circumstances are not such as to give rise to a presumption that the framer of the regulations intended to adopt the interpretation put on the words by Davies J in Chen: cf Williams v Official Assignee of Dunne (1908) 6 CLR 425 at 441 per Griffith CJ.  In any event the rule should not be permitted to prevail over an interpretation otherwise appearing to be correct: cf per Mason ACJ, Wilson and Dawson JJ in Flaherty v Girgis (1987) 162 CLR 574.

            In my opinion, the present definition of "special need relative" relevant to subclass 104 visas, should not be construed so as to include every case involving a child of tender years unable to care for himself or herself.  The words "other serious circumstances" affecting the citizen or resident personally, or a member of his or her family unit, refer to circumstances similar to death, disability or prolonged illness and not to the mere fact that the citizen or resident is of tender years.  It is hardly conceivable that the expression "serious circumstances" should reflect merely the tender age of a person.  In so holding, I express no view as to whether Chen's case was correctly decided on the regulations and in the context then prevailing.”

21                  His Honour had earlier concluded that a criterion for a subclass 104 visa (a preferential family visa) was sponsorship of the special need relative by the citizen and the sponsoring citizen (or his/her spouse) had to be at least 18 years old.  His Honour noted that any application made on the basis that an infant child was ill and requiring long-term assistance would be unsuccessful because the sponsorship criterion could not be satisfied.  Of this his Honour said (at 100):

“The policy behind cl 104 is, in my view, to this extent difficult to discern.  It is a matter to which attention should be given when the regulations are reviewed for amendment.”

22                  The remaining member of the Full Court was Lehane J.  His Honour did not agree with Hill J that the applicable regulation, properly construed, rendered it necessary that there be a sponsor in order to obtain a preferential family visa.  As to the application of the criteria to the circumstances of a young child, Lehane J said (at 101):

“I respectfully agree with Hill J, for the reasons given by his Honour, that a young child is not, in the absence of other circumstances, under the Regulations as they now stand to be regarded for the purposes of the definition of "special need relative" as having "a permanent or long‑term need for assistance because of death, disability, prolonged illness or other serious circumstances".  That conclusion leads, in any event, to the dismissal of the appeal.  However, as Hill J points out, it would be odd if on the true construction of cl 104.211 serious circumstances affecting an Australian citizen or resident aged less than 18 could never justify the grant of a visa in subclass 104 to a relative who was willing and able to provide substantial and continuing assistance to the citizen or resident.  As I have indicated, in my view a construction is open which avoids this result; and what follows if the construction is not adopted sufficiently establishes it, I think, as the construction which is preferable, and correct.”

23                  Several points can be made about the judgment of the Full Court.  The first is that the conclusions of Jenkinson and Hill JJ were determinative of the appeal.  Their Honours concluded that the appellant had failed to demonstrate error on the part of the primary decision maker.  The alleged error was that the primary decision maker had decided that a prescribed criterion for a preferential family visa was that the applicant was sponsored.  This raised the proper construction of the regulation and both the primary judge and Jenkinson and Hill JJ concluded that the construction adopted by the primary decision maker was correct.  That is, as a matter of construction of the regulation, a criterion for a preferential family visa was that the applicant be sponsored.  This conclusion was sufficient to dispose of the appeal.  The question that then arises is what is the status of the conclusion of Jenkinson and Hill JJ, explained in the reasons of Hill J and adopted by Lehane J, that the expression "other serious circumstances" does not refer "to the mere fact that the citizen or resident is of tender years".  In particular, it is necessary to ascertain whether the conclusion forms part of the ratio because if it does certain legal consequences follow in relation to the consideration of the same issue by this Full Court.

24                  The principles governing how a Court determines what is the ratio of an earlier judgment are difficult to articulate with precision and can be difficult to apply.  A recent example of differing approaches to this issue is found in Bristol-Myers Squibb Company v F H Faulding & Co Ltd (2000) 97 FCR 524.  In that matter a Full Court considered whether observations of two members an earlier Full Court in Anaesthetic Supplies Pty Ltd v Rescare Ltd (1994) 50 FCR 1 about whether a method of medical treatment of the human body is patentable under the Patents Act 1990 (Cth) formed part of the ratio or were obiter dicta.  Black CJ and Lehane J were prepared to assume (at 529) the observations were obiter.  Their Honours then considered the issue themselves and came to the same conclusion.  Another specific question arose in Bristol-Myers Squibb Company v F H Faulding & Co Ltd about the operation of s 117 of the Patents Act 1990 (Cth).  That specific question had been the subject of observations by the same members of the Full Court in Anaesthetic Supplies Pty Ltd v Rescare Ltd.  Black CJ and Lehane J viewed the earlier observations on this question as obiter. That was because the observations were unnecessary to the decision and made without elaboration and in passing.

25                  The other member of the Full Court in Bristol-Myers Squibb Company v F H Faulding & Co Ltd was Finkelstein J.  His Honour addressed directly the question of whether the Full Court in Anaesthetic Supplies Pty Ltd v Rescare Ltd had determined the question of whether a method of medical treatment of the human body was patentable. After surveying at length authorities (569-573) concerning what constitutes the ratio of a judgment, Finkelstein J concluded (at 573) that the answer given by the majority in the earlier case formed part of the ratio.  His Honour adopted a fairly broad view of what, as a matter of general principle, should be viewed as constituting the ratio.

26                  Another recent example where the Court (a single judge) had to consider whether observations of an early at Full Court formed part of the ratio is found inWoolworths Ltd v Commissioner of Taxation [1999] FCA 102.  Hely J had to determine whether observations of Lehane J (with whom the other members of the Full Court agreed) in CCA Beverages (Sydney) Pty Ltd v Federal Commissioner of Taxation (1997) 143 ALR 212 about a credit ground of Table 3 of Schedule 1 to the Sales Tax Assessment Act 1992 (Cth) were obiter.  While Lehane J had considered a ground (CR 5) different to the one (CR 4) confronting Hely J, there was no material difference in the language of the two grounds.  On the question of whether the observations of Lehane J were obiter or not, Hely J said:

“The respondent submits that the observations which I have quoted are obiter, uncritical in character, unsupported by any reasoning process and that they cannot be correct.

Professor Cross described the ratio decidendi as:

            ‘Any rule of law expressly or implicitly treated by the judge as a necessary step in reaching his conclusion having regard to the line of reasoning adopted by him ….’

R Cross and J W Harris: Precedent in English Law (4th Edn) p 72.

Sir Anthony Mason, when writing extra-judicially, said:

            ‘The ratio is the principle or statement of law on which the previous decision is based to the extent to which it is essential to the decision.’;

The Use and Abuse of Precedent (1988) Australian Bar Review 93 at p 103.

The trial judge expressly stated (at 133 ALR 776) that he was not required to determine whether CCA was entitled to a credit for the purpose of deciding its entitlement to the relief sought.  Nor did the full Court treat it as “necessary” to determine whether there was a credit entitlement in order to determine the appeal.  The observations earlier quoted were amongst a number of reasons why CCA’s arguments based on s 95 of STAA failed.  The Commissioner did not seek to disturb the trial judge’s conclusion that there was an entitlement to a credit under CR4, and, in any event, the sale of the containers to CCA was subject to an exemption by virtue of Item 27 of Schedule I to the E & C Act.

That being so, I do not believe that I am bound to reach a result in the present case which accords with the declaration as to the entitlement to a credit made in CCA.  Nor is there any reasoning process to be found in the judgments which, if applied to CR5, would require a conclusion that goods which have ceased to be assessable goods are nonetheless covered by Table 1, when the effect of Note (1) is that Table 1 does not apply to a dealing with them.”

27                  The question of whether an earlier authority was a binding precedent has also recently been considered by another Full Court though in relation to the effect in this Court of a decision of the High Court: see Foster v Northern Territory of Australia [1999] FCA 1235.

28                  If the conclusions of the members of the Full Court in Huang v Minister for Immigration and Ethnic Affairs about what was meant by "other serious circumstances" formed part of the ratio and there were no material differences between the statutory scheme considered in that matter and the scheme presently under consideration, there are compelling reasons why this Full Court should follow the earlier decision.  Those reasons were discussed recently by a Full Court in Telstra Corporation Limited v Treloar [2000] FCA 1170.  Branson and Finkelstein JJ said (at par 23 and following):

“The doctrine of stare decisis takes its name from the Latin phrase “stare decisis et non quieta movere” which translates as “stand by the thing decided and do not disturb the calm”.  It is a doctrine based on policy.  The rationale for the doctrine can be grouped into four categories:  certainty, equality, efficiency and the appearance of justice.  Stare decisis promotes certainty because the law is then able to furnish a clear guide for the conduct of individuals.  Citizens are able to arrange their affairs with confidence knowing that the law that will be applied to them in future will be the same as is currently applied.  The doctrine achieves equality by treating like cases alike.  Stare decisis promotes efficiency.  Once a court has determined an issue, subsequent courts need not expend the time and resources to reconsider it.  Finally, stare decisis promotes the appearance of justice by creating impartial rules of law not dependent upon the personal views or biases of a particular judge.  It achieves this result by impersonal and reasoned judgments.

In Australia, however, intermediate appellate courts regard themselves as free to depart from previous decisions:  Nguyen v Nguyen (1990) 169 CLR 245 at 268-270.  This is not so in England where until 1966 even the House of Lords regarded itself as bound by its own decisions.  In Young v Bristol Aeroplane Co Limited [1944] KB 718 at 729-730 the Court of Appeal held that, in the exercise of its civil jurisdiction, it should follow its own previous decisions unless a case fell within one of three exceptional situations:  (a) where there were conflicting decisions; (b) where a previous decision, though not expressly overruled, was inconsistent with a decision of the House of Lords; (c) where a previous decision was given per incuriam in the sense that the court had overlooked a relevant statute, acted in ignorance of a previous decision of its own or of a court of co-ordinate jurisdiction.

As has been recognised in this country, rigid adherence to the doctrine of precedent preventing a court from overruling its own earlier decisions cannot be justified.  Experience and better reasoning, academic and judicial criticism, the observation of unintended consequences, and other factors, may demonstrate judicial error or the need to reconsider a statement of legal principle.  However, in those jurisdictions where a superior court will overrule its own decision it is by no means clear in what circumstances it will undertake that task.  In the absence of firm rules to indicate when a court will review an earlier decision, there is a risk that reviews will be occasioned by subjective reference to judges’ political, social, judicial or moral philosophies.

Speaking generally, appellate courts accept that they should act with caution before reviewing an earlier decision: see, eg, Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 at 99-101.  Courts have said it may be done if the earlier decision is ‘manifestly wrong’ or ‘clearly erroneous’, or if ‘strong reasons’ are shown, or if the ‘maintenance [of the earlier authority] is contrary to the public interest’:  see the examples given by Aickin J in Queensland v Commonwealth (1977) 139 CLR 585 at 620ff; see also Transurban City Link Ltd v Allan (1999) 168 ALR 687 at 694.  But, apart from suggesting caution, the cases provide little real guidance as to the circumstances in which it will be appropriate to review an earlier decision.

The problem is very real when what is at issue is the construction of a statute.  For one thing, statutory language is often ambiguous.  Courts can struggle to determine the legislative intent.  It is often impossible to discover any legislative intent.  In many instances the generality of the statutory language is deliberate and allows the courts to develop a body of law to fill the gaps.  This may lead to disagreement among judges about what the statute means.  It would be sound policy that once that intent has been discerned by an appellate court then that should be the end of the matter.

The view which we prefer is that unless an error in construction is patent, or has produced unintended and perhaps irrational consequences not foreseen by the court that created the precedent, the first decision should stand.  In other areas of the law a precedent may be reconsidered if its underlying reasoning is outdated or is inconsistent with other legal developments.  Perhaps, with some modification, in some instances these factors could also be applied to cases concerned with the construction of statutes.  Accordingly, we venture to suggest it would be on a rare occasion that an intermediate appellate court (contrast the position of the High Court, as to which see Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1) will allow an issue concerning the construction of a statute, past and closed and especially a repealed statute, to be thrown open, producing as it clearly will, uncertainty, disruption to the conduct of affairs, a sense of grievance in those who may consequently receive treatment less favourable than that received by others under the same statute and additional cost and expense.”

See also the approach of the Full Court in Brooks v Federal Commissioner of Taxation (2000) 173 ALR 235 at 253.

29                  However the principles emerging from Telstra Corporation Limited v Treloar have no direct application in this matterbecausethe conclusions expressed by the Full Court in Huang v Minister for Immigration and Ethnic Affairs did not, in our opinion, form part of the ratio.  It may be accepted that the construction of the expression "other serious circumstances" adopted by Lehane J lead his Honour to dismiss the appeal.  That construction was essential to his Honour's reasoning though it did not address directly the error of law alleged by the appellant.  His Honour appears to have accepted that the appellant had made good the error alleged in the application for judicial review and in the appeal but that the error was not a material one because, on another basis, the appellant had not satisfied the specified criteria.

30                  However it is necessary to consider whether the conclusion of Jenkinson and Hill JJ about the meaning of the expression "other serious circumstances" was an essential step in the reasoning leading to the order dismissing the appeal.  While Jenkinson J simply agreed with the reasons of Hill J it is convenient to refer to the reasons of Hill J as if they were the reasons of both their Honours published in a joint judgment.  Their Honours did not accept that there had been an error of the type alleged.  That is, they did not accept that either the Minister or the primary judge had erred in law in concluding that sponsorship was a criterion for a preferential family visa.  That conclusion disposed of the issue raised in the appeal.  However, it is necessary to identify the chain of reasoning which led to that conclusion.

31                  Their Honours noted that the appellant had one child born on 31 October 1994 who was an Australian citizen. She applied for a preferential family visa on 8 March 1995.  Their Honours set out the relevant part of the schedule to the regulations then in force specifying the criteria for such a visa.  It was noted that the application for the visa had been rejected because the appellant had not satisfied the prescribed criteria because she was not sponsored.  It was also noted that the appellant had alleged in the application for judicial review that the relevant part of the regulation specifying sponsorship as a criterion, should not be construed literally.  It should be read on the basis that it was qualified by words such as "if applicable".  The primary judge had rejected this construction as it would have involved reading words into the statutory instrument.

32                  Their Honours then said there was no evident parliamentary purpose in reading words into the regulation and the relevant purpose was, in their view, that an applicant satisfied both of two conditions, the second of which was that the applicant be sponsored.  This passage then appears in the reasons (at 98):

“If a subclass 104 visa [the preferential family visa] were the only visa available to permit the entry into Australia of a person to look after an infant child, this might give some cause for hesitation in accepting the view taken by the decision-maker and by his Honour the learned primary judge.  But it is not.

Subclass 103 deals specifically with the case of a parent applying to enter into Australia to join, inter alia, a child of that person.  Not only does it deal specifically with that class of case, but it also deals specifically with sponsorship, both where the child is under the age of 18 years as well as where the child is over that age.”

33                  Their Honours then referred to differences between the two types of visa and pointed out that if they covered the same ground, at least in respect of children of tender years, one test arising in relation to the subclass 103 visa would not need to be satisfied for a subclass 104 visa.  Other differences between the criteria for the two visas were also pointed out.  This was then said:

“At the heart of the applicant's submission lies the argument that cl 103 [this should probably be cl 104] is apt to cover an application for a visa by a parent wishing to come to Australia to care for an otherwise normal child of tender years unable to care for himself or herself.”

34                  Their Honours then referred to the judgment of Davies J in Chen v Minister for Immigration & Ethnic Affairs.  Their Honours noted that since that decision the statutory regime had altered.  At the time of the decision in Chen there had been no sponsorship requirement in a provision equivalent to cl 103 dealing with a parent/child reunion.  Their Honours rejected a submission that Parliament sanctioned or approved the construction adopted by Davies J.  The discussion of this question appears in the passage from the reasons of Hill J set out in par 20 above.

35                  It is difficult to say with any certainty whether the conclusion reached by their Honours about the meaning of the expression "other serious circumstances" was an essential part of their reasoning.  They appear to have concluded that the express requirement that there be a sponsor could not, as a matter of construction, be overlooked.  That conclusion directly addressed the issue raised in the application for judicial review and pursued in the appeal and had the result that the appeal would fail.  The construction of the expression "other serious circumstances" arose as part of considering what was described as the argument "(a)t the heart of the applicant's submission".  It appears to have been a matter that was addressed because the correct construction of the expression was supportive of the construction of the provision apparently requiring sponsorship.  However, as was pointed out in the reasons, that created a difficulty, in terms of discerning the policy of the provision, if one considered the circumstances of an infant child who was ill and requiring long-term assistance.  The better view is that the construction of the expression "other serious circumstances" was not an essential step in the reasoning process leading to the dismissal of the appeal having regard to the reasons given by Jenkinson and Hill JJ.

36                  Because the conclusion of Jenkinson and Hill JJ about the meaning of the expression "other serious circumstances" did not form part of the ratio, it is strictly unnecessary to consider, consistently with the reasoning of the Full Court in Telstra Corporation Limited v Treloar, whether this Full Court is bound to follow the earlier decision.  In addition, even if the meaning of the expression did form part of the ratio, there was a material difference between the provision in the regulations presently under consideration and the provision of the regulations considered by the Full Court in Huang v Minister for Immigration and Ethnic Affairs. In the present case, there was no criterion for a subclass 806 visa that there be sponsorship.  Hill J saw the existence of sponsorship as a material difference between the provision considered by Davies J and the provision considered by the Full Court.  There is no reason to assume that the materiality of sponsorship as a criterion (or its absence) would be any different as between the provision considered by the earlier Full Court and the provision presently under consideration.

37                  Plainly, however, regard must be had to the views of the members of the Full Court in Huang v Minister for Immigration and Ethnic Affairs when determining the meaning of the expression in the present statutory context.  However, the reasons for judgment of Hill J on this question (which, as noted already, were adopted by both Jenkinson J (entirely) and Lehane J (substantially)), do not explain what the expression "other serious circumstances" may comprehend if, as could reasonably be assumed, it is intended to refer to circumstances other than death, disability or prolonged illness (of either the citizen or a member of his or her family unit).  His Honour simply stated that it was "hardly conceivable" that the expression should reflect merely the tender age of person.  No reasoning for this conclusion was provided. 

38                  The definition of the expression “special need relative” is found in the principal part of the Regulations (reg 1.03) and not in Schedule 2.  However by operation of reg 2.03 and the use of the expression in Schedule 2, the definition operates to establish criteria for several classes of visa.  In doing so the definition is intended to identify, as a criterion or an element of a criterion, a class of person who might remain in Australia to tend to the needs of a citizen who is unable to care for himself or herself for a lengthy period.  It is, with respect, not self-evident that a child of tender years was intended to be excluded from the group who are unable to care for themselves.  A child's needs are, in many respects, no different to those of a very elderly person or a seriously ill person.  Their survival can be dependent on the support and attention of others.  The argument that “serious circumstances” cannot “reflect merely the tender age of a person” rather misses the point.  The age, whether of a very young or very old person, would rarely be the sole relevant circumstance.  But age can be a factor which, along with other circumstances, adds up to special circumstances.

39                  The definition of the expression “special need relative” contains several elements.  It is convenient to analyse the definition as it applies to an Australian citizen (though it also applies to an Australian permanent resident or an eligible New Zealand citizen).  The citizen must be usually resident in Australia.  There must be another person who is a relative of the citizen.  "Relative" is also defined in reg 1.03.  The relative must be willing and able to provide substantial and continuing assistance to the citizen. The need for the assistance, as identified in par (a), must be permanent or long-term.  "Long term" is not defined but it is probably used to signify a need which continues for years.  The need must arise because either the citizen or "a member of his or her family unit" is affected in one of four ways.  The first is that they are dead.  Plainly this can only be a reference to the death of a member of the family unit of the citizen.  The second is that the citizen or the member of the family unit is suffering from a disability and the third is that either the citizen or member is suffering from a prolonged illness.

40                  The parties were asked to identify circumstances that might create the need for permanent or long term assistance that were not comprehended by the notions of "disability" or "prolonged illness".  Counsel for the Minister identified four such circumstances namely depression which did not fall within any medical or clinical definition of that term (see Jun v Minister for Immigration & Multicultural Affairs [2000] FCA 867 at par 28), imprisonment (though accepting that this would probably have to be imprisonment of the member of the family unit), financial ruin or drug addiction.  Even accepting, for present purposes, that none of these circumstances is either a "disability" (but see Marsden v HREOC & Coffs Harbour & District Ex-Servicemen & Women’s Memorial Club Ltd [2000] FCA 1619) or a "prolonged illness", each exemplifies the disparate circumstances in which the need for long-term assistance might arise.  Each is "serious" in the sense that it involves something having a substantial and negative effect on the person affecting their capacity to look after himself or herself or to look after another person.  Another feature common to each is that they involve something which was out of the ordinary and perhaps could be said to be unexpected.

41                  However there is nothing about the expression "other serious circumstances" nor its immediate statutory context which suggests that a necessary feature of the circumstances is that they be out of the ordinary or unexpected.  In our opinion the word "serious" is simply intended to reinforce the nature of the assistance that is central to the definition, namely assistance which is substantial and continuing in relation to a need for assistance which is permanent or long-term.  That is, the circumstance is sufficiently serious that, in relation to a citizen, it would require assistance of the same sort that would be required if the citizen was suffering from a disability or prolonged illness.  In our opinion, if a citizen or a member of the citizen's family unit is in circumstances which create a need for substantial and continuing assistance of the citizen and the circumstances do not arise because of the death of a member of the family unit or the disability or prolonged illness of either the citizen or the member of the family unit then those circumstances are intended to be comprehended by the expression "other serious circumstances".  There is no reason in logic or of policy that we can discern which might explain that the definition was intended to be enlivened in every circumstance where the requisite care of a citizen is required except young childhood and perhaps old age.  We say perhaps old age because the long-term or permanent need for substantial and continuing assistance of an elderly person ordinarily arises through a disability or illness associated withold age.

42                  We should add that the additional feature of the definition, in par (b), concerning alternative sources of assistance appears to us to be neutral on the question of whether young childhood is comprehended by the expression "other serious circumstances".  Sub-paragraph (i) would have application to a young child and the expression "welfare, hospital, nursing or community services" in sub-par (ii) would reasonably comprehend facilities that might be available to provide care for a young child as an alternative to care by a "special need relative".  Whether, in fact, such facilities were available would have to be determined in the circumstances of each case.

43                  In our opinion, the definition of "special need relative" can comprehend a situation where the citizen is a young child in need of substantial and continuing assistance from a relative and the need is a long-term one.  Accordingly the primary judge erred in concluding that the Tribunal was correct in reaching the contrary conclusion.  Whether the appellant satisfies all the criteria for a subclass 806 visa is another question.  For example the question of whether, in the present matter, the child could have nominated the appellant (see cl 806.213 (c)) having regard to the definition of "nominator" deriving from regs 1.03 and 1.13 ("a person who puts forward, on the relevant approved form, the name of the applicant …") may not be a straightforward one.  However it is a question that is not before us.

44                  We would allow the appeal, set aside the orders of the primary judge and order that the matter be remitted to the Tribunal for reconsideration according to law.

Associate:

Dated:              15 December 2000