FEDERAL COURT OF AUSTRALIA

Hewajayalathge v Jayawardena [2001] FCA 913

Migration Regulations 1994 Sch 2 cl 806

Malik v Minister for Immigration and Multicultural Affairs [1997] FCA 200 applied

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 applied

CHINTHAKA THUSHARA HEWAJAYALATHGE v INDRANEE JAYAWARDENA and MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 89 OF 2000

SUNDBERG J

13 JULY 2001

MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent’s costs of the application.

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

EX‑TEMPORE REASONS FOR JUDGMENT

BACKGROUND

1                     The question for decision in this case is whether the applicant is a “special need relative” of his brother for the purposes of a Change in Circumstance (Residence) (Class AG) visa subclass 806. The Migration Review Tribunal affirmed the decision of the Department to refuse the grant of a visa, and the applicant has applied for review of the Tribunal’s decision. The expression “special need relative” is defined in reg 1.03 of the Migration Regulations 1994 as

“in relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or an eligible New Zealand citizen, … 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.”

MATERIAL BEFORE TRIBUNAL

2                     The Tribunal had before it three medical reports supporting the applicant’s claim that his brother is a person fitting the description in par (a) of the definition of “special need applicant”, namely that the brother has a “permanent or long‑term need for assistance because of … disability, prolonged illness or other serious circumstances …”. The first was a report from Ms Diana Des, a psychologist. The only part of the report that bore on the matter before the Tribunal was as follows:

“[The applicant] states that his brother … is suffering from a ‘depressive illness’. A report … written by Dr Nallaratnam, states that [the brother] ‘is very depressed and needs emotional and moral support’. The fact that his brother has been asked to leave Australia is ‘causing additional stress’ for him. [The brother] stated to the writer that he is very close to his brother and dependent on him for emotional and moral support and that he is not supported by any other relatives or friends.”

Dr Des thus merely reports what other people have said to her, and expresses no opinion of her own as to the brother’s psychological condition. Understandably the Tribunal described this report as “unhelpful” because “it offered no commentary whatsoever”.

3                     The Tribunal also had before it a report from another psychologist, Mr Irvin De Jong, which was in part as follows:

“[The brother] has developed a depression that the available evidence indicates is partly related to the possibility of his brother having to return to Sri Lanka. The symptoms of depression were not present prior to the issues in relation to his brother having to return to Sri Lanka.

However this is not the only source of his depression. The other source of the depression and the excessive anxiety that feeds into his depression is the issues in relation to his wife’s miscarriages.

…

An increased level of anxiety may also have a detrimental effect on [the brother’s] emotional state. He is very likely to experience a greater level of anger and frustration. This in turn could have a detrimental effect on his relationship with his wife, with the possibility of increased situations of anger directed towards her. This in turn is likely to have a detrimental effect on his marital relationship.”

There was also a medical report from the brother’s general practitioner, Dr Nallaratnam, who states that the brother is suffering from a “depressive illness” and needs emotional and moral support. The possible departure of the applicant is causing the brother additional stress.

TRIBUNAL’S REASONS

4                     The Tribunal identified the issue before it as whether the brother had a long term need for assistance because of death, disability, prolonged illness or other serious circumstances effecting him personally. The Tribunal said:

“This need not be a purely medical condition and its existence should be considered in a beneficial light (Fuduche v Minister for Immigration and Local Government and Ethnic Affairs (1993) 45 FCR 515). It is clear that depression is a condition that could qualify as a basis for the visa, however the Tribunal is not satisfied that it does so in the present case. Here the highest the evidence can be put in support of the need claimed by the nominator is that he has a chronic depressive condition that may worsen if the Visa Applicant is required to leave Australia. At present it has not caused him any significant incapacity, especially in relation to his ability to remain in gainful employment. It has not required intervention in the form of hospitalisation and does not require care. It clearly does not amount to a permanent or long‑term need for assistance (Vo’lfalelahi v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 370) as required for the visa. Even if it did, the visa would not be available to the Visa Applicant as the nominator lives with his wife and, although she often ‘falls sick’, there is no evidence to suggest that she (or for that matter, any community agency) would be incapable of assisting him …. The application is not within the meaning of a special needs relative ….”

GROUNDS OF REVIEW

Procedures not observed

5                     The complaint here was that the Tribunal did not examine all relevant documentation and evidence. The only particular given is that the Tribunal did not give consideration to the “final report from the Psychologist”. There were only two reports from psychologists before the Tribunal. It correctly put aside one as unhelpful, and examined the other in detail. There is no substance in this complaint.

Improper exercise of power

6                     The applicant has two complaints under this head. The first is his “doubt” as to whether the Tribunal obtained from the Department all the documentation supporting his claims. This is not particularised. The Tribunal stated that it had regard to the documents on its file and those from the Department’s file. It held a hearing at which the applicant and the brother gave evidence. In the absence of material showing that there was missing documentation that was relevant to the Tribunal’s consideration of the case, this complaint is not made out.

7                     The second complaint is that the Tribunal exercised its discretionary power in accordance with a rule or policy without regard to the merits of the applicant’s case. Both elements of this submission are without foundation. First, the Tribunal was not exercising a discretionary power. As Mansfield J said in Malik v Minister for Immigration and Multicultural Affairs [1997] FCA 200, “the power of the Tribunal was not discretionary, but adjudicative by reference to the criteria for eligibility for a … visa identified under the Act and Migration Regulations” (at 33‑34). See also Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 650. Secondly, there is no suggestion in the Tribunal’s reasons that the decision was made in accordance with any rule or policy, and the claim that it did not have regard to the merits of the particular case is totally without foundation. The Tribunal carefully examined the arguments put before it together with the medical evidence, and reasoned its way to a conclusion that was plainly open to it.

Error of law

8                     The complaint here is that the Tribunal did not regard the mental and emotional state of the brother and was only interested in his medical condition. This complaint is without substance. This is apparent from the passage I have quoted in par 4. The Tribunal noted that the brother’s need for assistance “need not be a purely medical condition”. The existence of the need should be considered “in a beneficial light”. In an appropriate case “depression is a condition that could qualify as a basis for the visa”. It carefully examined the brother’s chronic depressive illness but was not satisfied that he had a permanent or long term need for assistance because of that condition.

Actual bias

9                     None of the submissions made under this head had anything to do with the conduct or state of mind of the Tribunal member. Rather the applicant was expressing disagreement with the Tribunal’s decision on the merits. Since nothing was said that related to bias on the part of the Tribunal, let alone actual bias, I will say no more about this ground of review.

CONCLUSION

10                  The application is dismissed with costs.

Associate:

Dated: 13 July 2001