FEDERAL COURT OF AUSTRALIA

Fale v MIMA [2001] FCA 1645

MALAKAI FALE & OTHERS V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

V308 OF 2001

NORTH J

2 OCTOBER 2001

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application is dismissed.

2.                  The applicants are to pay half of the respondent’s cost of and incidental to the proceeding.

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

REASONS FOR JUDGMENT

1                     Before the Court is an application for review of a decision of the Migration Review Tribunal (the Tribunal) made on 28 March 2001.  In that decision the Tribunal affirmed the refusal of the delegate of the respondent Minister for Immigration and Multicultural Affairs (the Minister), to grant a Family Residence (Class AO) Visa to the primary applicant, Malakai Fale.  The basis upon which that refusal was given was that the applicant did not fall within the definition of a ‘special need relative’ for the purposes of the particular visa application.

2                     The application for review relied upon two essential grounds.  The first ground concerned the circumstances in which an application for adjournment of the proceeding was handled.  Mr Hurley, who appeared as counsel on behalf of the applicants, relied upon s 476(1)(a) of the Migration Act 1958 (Cth) (the Act) for this aspect of the case.  That section allows for a review on the ground that procedures required by the Act or the regulations to be observed in connection with the making of the decision were not observed. 

3                     For the purpose of this ground of review, it was necessary for the applicant to identify the procedures required to be observed which were not observed.  In an attempt to isolate the relevant procedures Mr Hurley referred to s 360(1), which provides as follows:

“(1)     The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present argument relating to the issues arising in relation to the decision under review.”

4                     The applicants also referred to s 360(2)(b), which provides as follows:

“(2)     Subsection (1) does not apply if:

…

(b)       the applicant consents to the Tribunal deciding the review without the applicant appearing before it.”

5                     Section 362B(1) provides:

“If the applicant:

(a)               is invited under section 360 to appear before the Tribunal; and

(b)               does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;

the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.”

6                     The circumstances in which the application for adjournment was dealt with were set out in a minute to the file of the Tribunal.  The minute stated as follows: 

“At about 2 pm on Monday, 5/3/01 I received a call from the advisor of the above who, he said, is set to have a hearing tomorrow.  He stated that because he (the adviser) was not able to attend the hearing the applicant also has decided that he will not attend the hearing. 

The adviser said that they have tried to get the hearing postponed but the member has said ‘no’.  I told the advisor that in this case if the applicant did not attend the hearing tomorrow that he probably would not be able to attend a hearing at another time. 

The advisor was aware of this and stated that he would be putting in a submission tomorrow so the matter could be decided on the papers.  He wanted to tell us what he was going to do, and to let the member know that there would not be a hearing.  I told him to make out a fax to this effect and address it to one of the red team members, Sara O'Connor.  He said he would.  On looking at the system I notice that this is now a Steel Team case (file will be with Lilly Mojsin – member).”

7                     On the date fixed for the hearing, namely 6 March 2001, the Tribunal received two written statements, one of which was from the first applicant, Malakai Fale.  It commenced as follows:

“I wish to inform you that I will not be able to appear at your tribunal tomorrow morning as scheduled.  This is due to the unavailability of our adviser after my request to change our appearance time in order for him to attend.  However, I want you to consider this submissions [sic] together with the information already submitted in deciding our application.”

8                     In reciting the circumstances in which the matter came to be heard, the Tribunal said in par 14 of its decision:

“The Tribunal is satisfied that the applicant has received notice of the hearing and has consented to his application being decided on the evidence presently before the Tribunal.”

9                     Mr Hurley contended that there was a failure by the Tribunal to comply with the procedures required by the Act.  The arguments put by Mr Hurley appeared on a number of occasions to address other criticisms of the Tribunal’s decision.  For instance, he seems to have contended that the Tribunal erred in determining that the applicant consented to the matter proceeding without his appearance.  Alternatively he argued that the Tribunal proceeded under s 362B(1) under a ‘misapprehension’ of the true intention of the applicant.

10                  It is, I think, true to say that the reasons of the Tribunal do not clearly expose the relevance of its reference to consent in par 14 of its reasons for decision.  Perhaps the Tribunal was referring to the provision in s 362B whereby the Tribunal is empowered to proceed without providing the invitation referred to in s 360(1).  It is difficult to see that this approach assists the applicant’s argument because Mr Hurley accepted that the applicant did receive an invitation in terms of s 360(1).  If there was any issue about the ability of the Tribunal to proceed under s 360(1), then it appears that the Tribunal was satisfied that the events amounted to consent by the applicant to the Tribunal proceeding without any appearance.

11                  In my view, it is more likely that the Tribunal acted under s 362B(1).  That is to say, it proceeded to make a decision without taking any further action to allow the applicant to appear before it because the applicant did not appear at the time set for hearing.  If that is so, then the Tribunal was entitled to so proceed upon being satisfied that the applicant had been invited (subsection (a)), and not appeared (subsection (b)). 

12                  It seems likely that the reference in par 14 of the Tribunal’s decision to the consent of the applicant addressed the requirements of s 362B(1)(a) and (b).  In other words, the Tribunal was seeking to say that the prerequisites for the exercise of power under that section had been satisfied by the applicant agreeing to the course which the statute, in any event, permitted.

13                  Mr Hurley seemed then to rely upon an argument which related to the words in subsection (1)(b) “does not appear”.  As I understood the argument, Mr Hurley suggested that those words require something more than the applicant simply not appearing on the day of the hearing.  The concept of appearance involves the applicant choosing not to appear, rather than being placed in a position where the applicant had no ability to resist the failure to attend.  The position might be tested in the following way:  a person who intended to appear before the Tribunal but was struck by a car on the way to the Tribunal hearing and as a result did not attend would not be properly described as a person who “did not appear” before the Tribunal, even though that person did not attend at the time.

14                  Such an approach might be supported by reference to an authority mentioned by Ms Beaton-Wells, who appeared as counsel for the respondent.  In Hossain v Minister for Immigration and Multicultural Affairs [2000] FCA 842, Mansfield J indicated that whether a person does not appear within the meaning of the equivalent of section 362B(1)(b), might depend upon the circumstances of the non-appearance.  His Honour stated in pars 19 to 21 as follows:

“19.     It was further submitted that s 426A did not entitle the Tribunal to proceed with the review on 9 November 1999 because s 426A(1)(b) comes into operation only when the Tribunal is satisfied that a visa applicant has abandoned the application or abandoned the desire to give evidence before the Tribunal.  In my judgment, that is reading more into the plain words of s 426A(1)(b) than is warranted.  The plain words indicate that the section empowers the Tribunal to proceed to make a decision on the review without taking further action to allow or enable the applicant to appear before it.

20.              If the applicant has been invited under s 425(1) to appear before the Tribunal to give evidence, as was the case in this instance, and the applicant does not appear before the Tribunal on the day on which and at the time and place at which the applicant is scheduled to appear, an issue may arise as to whether the Tribunal can proceed whatever the reason for that non-appearance.  The expression “does not appear” in s 426A(1)(b) may require further judicial exposition in other cases.  For instance, it may be that there is clear evidence that a visa applicant is unable to attend although he has expressed a desire to attend.  He may be hospitalised.  There may be many explanatory circumstances.  No doubt the issue has not arisen because the Tribunal responds appropriately to true cases of hardship.

21.              I am not to be taken as accepting that non-appearance, whatever the Tribunal may know about the reason for non-appearance, will suffice to enable the Tribunal to proceed to determine the review without taking further action to allow a visa applicant to appear before it.  Whether it may do so under s 426A(1) may depend upon the circumstances.  But I do not think it is necessary or appropriate to take the extra step which the applicant contended for, namely that the Tribunal must be satisfied that the visa applicant has abandoned the opportunity to appear to give evidence before the Tribunal can proceed under s 426A.”

15                  In my view, this issue does not arise in the present case.  In the present case, the facts as found by the Tribunal accord with the evidence which was before it.  The facts also indicate that the applicant determined to accept the course, which no doubt was imposed upon him by the decision of the Tribunal not to set a different hearing date, of not appearing at the hearing. 

16                  Whatever scope the words “does not appear” might have, they do not stand in the way of the conclusion that the applicant, given the circumstances which faced him, determined that he would accept the process of submitting a written argument rather than appearing.  In those circumstances, the Tribunal was entitled under s 362B(1) to proceed without taking any further action to allow or enable the applicant to appear before it.

17                  That is the course which I glean from the cryptic reference in par 14 to the process adopted by the Tribunal.  Even if the Tribunal’s description of the process in par 14 of its reasons does not bear that meaning, nonetheless the Tribunal was entitled in the circumstances found by it to proceed under s 362B(1).  Consequently, no failure to follow the procedures required by the Act has been established by the applicant. 

18                  The applicants’ second argument depended on s 476(1)(e) of the Act.  The applicant alleged that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law.

19                  In order to understand this argument it is necessary to make some reference to the circumstances of the application.  The criteria for the grant of the sub-class 806 visa are set out in clause 806.213 as follows:

“The applicant is … a special-need relative of another person who:

(a)               is a settled Australian citizen, a settled eligible New Zealand citizen; and

(b)               is usually resident in Australia; and

(c)               has nominated the applicant for the grant of a visa.”

20                  Part 1 of Regulation 1.03 provides the definition of special-need relative 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;”

21                  Having set out the relevant definition, the Tribunal stated the question before it as follows:

“The Tribunal must determine whether the nominator has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstance.  There is no objective evidence on file to suggest that the nominator is suffering from a death, disability or prolonged illness.”

22                  Then, in paragraph 21, the claim of the applicant was posed by the Tribunal as follows:

“The primary applicant, however, claims that the nominator and her family are suffering from serious circumstances.”

23                  The essential evidence in support of the application before the Tribunal was contained in two short documents, being a statement from the applicant and a statement from his sister.  The sister was the nominator for the purpose of the visa application.  The applicant’s statement provided as follows:

“Dear Member,

I wish to inform you that I will not be able to appear at your tribunal tomorrow morning as scheduled.  This is due to unavailability of our adviser after my request to change our appearance time in order for him to attend.  However, I want you to consider this submission together with the information already submitted in deciding our application.

I have been in Australia now for few years and I really love to make Australia my home.  During this time I have a special bonds with my sister, Mele’ana Fale, together with her children.  That is because I have not seen her for many years until I arrived in Australia.

I helped her and her family financially and also contributed in many other ways including providing transport in a lot of times.  Mele’ana’s eldest children (Oloka Fale D.O.B 29/09/85 and Fonua Malakai Fale D.O.B 31/3/88) are often staying with us in our place and my children also visited their place many times as well.  I understand that the relationship between our children is developing very strongly and I hope it will continue like that in the future.  Since the problem took place between Oloka and her step father our place became the second home for her.  I always advise her and support her morally and try to guide her because of what happened to children who left home to live alone or stay with friends.

I worked at Flemington market and I managed to give food to my sister’s family.  I am sure in many ways my sisters family are very lucky that problems happened to them now is while I am here to support them.  I am sure our ethnic backgrounds gave me a special duty to my sister’s children especially in time of birthday and marriage.  I am sure my assistance to my sister and her family is needed in the long run.  If I was not in Australia Oloka may be on the street as other kids.  And because my sister has 8 children with 3 different father it means that most likely the future of the children is very delicate.  However, I only hope that you allow me to help securing the future of my sister’s children.”

24                  The sister’s statement provided as follows:

“I wish to make this statement regarding my brother Malakai Fale’s review application at the Migration Review Tribunal.

Malakai is very helpful to my family not just as a brother to me but he help me financially and food as well.  His job at the Flemington Market allow him to give us food.  He often take me to do shopping for my family.

At one time when my elder daughter, Oloka Fale, had a problem with my husband she then decided to live temporarily with Malakai Fale’s family until things quiet down because this matter was end up in district court.  And at the moment there is still a lot of bad feeling between my husband and my elder daughter and my husband live in a friends place as a result.  There was also an AVO on my husband as a result of the above matter.

My brother is very important for the future of my children in term of our customs.  That is one thing which I am very happy about to have Malakai in Australia.

We are of four children.  (three sisters and one brother).  I hope that Malakai may be able to stay with me in Australia, because I do not have any other family in Australia.  The relationship between our children are getting stronger and I hope it will be like that in the future.

My children are from three different father and I believe this explains my background in Australia.  And that is one of the reason why I wanted my brother to stay permanently in Australia.  A reverse decision on his application will be a bad news for my children.  I only hope that my eight children will have a better future.  That will be very much depend on you decision.”

25                  Although the statements were short, it is noteworthy that even a short description of their contents was omitted from the decision of the Tribunal.  In par 21 of the Tribunal’s decision the facts are recorded in the following way:

“The primary applicant claims to be the special need relative of his sister on the basis that she is in a de facto relationship and their two children have different fathers (D1, reverse p35).  The primary applicant also claims that the type of assistance he provides his sister includes performing uncle’s duties in their own cultural ceremonies and activities.  He also gives moral and family support to his sister and her children (D1, reverse p35).  The primary applicant claims that he would be required to provide this assistance for at least ten years (D1, reverse p35).  Further, the primary applicant claims he works and supports her children, financially culturally and emotionally.  He claims a special cultural duty to his sister during times of marriage and birthdays.”

26                  It is not surprising that the applicant, reading these reasons, would regard this recitation of the facts as cryptic, and as not revealing a careful understanding by the Tribunal of the essence of the claims made by the applicant.  Matters of particular concern in the statements have received no attention.  For instance, it appears that the elder daughter of the nominator and her stepfather had problems.  The problems seem to have given rise to the making of an apprehended violence order.  It is surprising that this fact was not recorded, as it was a powerful consideration in support of the existence of the necessary serious circumstances.  Nonetheless, it is clear that the Tribunal had regard to the statements in coming to its conclusion on the application. 

27                  The Tribunal then set out three elements in what perhaps constituted its reasoning.  Firstly, in par 22 it referred to the case of Hussein as follows:

“In Hussein v Minister for Immigration and Multicultural Affairs (at paragraph 20) it was held that a mere presence of a person (even a mother) does not amount to providing assistance.  Nor can it be said that a person would render assistance in relation to a circumstance, if the circumstance might return should the relative return to another country.”

28                  Paragraph 23 provided:

“PAM [Procedures Advice Manual] 3 states that the special need relative provisions are intended to cater for the following situations:

“… Special need relative provisions are intended to cater for situations such as

·        The death, disability or serious prolonged illness of a spouse or other member of the family unit (as defined in regulation 1.12) that may leave the Australian relative with permanent or continuing problems providing the degree of support that is required to meet the needs of the ill person or the family; or

·        An incapacitating illness or disability creating a need for physical assistance in the home.

3        It is policy that, in the absence of other extenuating circumstances, NONE OF THE FOLLOWING ON THEIR OWN CONSTITUTES A SERIOUS CIRCUMSTANCE, A PERMANENT OR LONG-TERM NEED OR REQUIRES SUBSTANTIAL AND CONTINUING ASSISTANCE:

·         companionship of a relative

·         homesickness

·         general domestic assistance

·         assistance in bringing-up children

·         financial support

·         assistance in managing a family business

·         bereavement over death of a spouse”

29                  In par 24 the Tribunal said as follows:

“In Tuamoheloa v Minister for Immigration & Multicultural Affairs it was stated that in determining whether there is a ‘permanent or long-term need for assistance’ there must be a causal link to the disability or other serious circumstances affecting the citizen.  The need for assistance must be because of the disability or other serious circumstances.”

30                  The Tribunal reached its conclusion in par 25 in the following terms:

“The visa applicant has provided no further information to indicate his assistance to his nominator as anything other than assistance in bringing up children and the companionship of a brother.  I find this is not a serious circumstance within the meaning of the Act.  The concern, love and affection that members of a close family have for each other are not, by themselves, sufficient to satisfy the definition of ‘special need relative’.”

31                  Again, I am bound to draw attention to the extreme brevity and lack of coherence in the primary findings and conclusion of the Tribunal.  I repeat, it is not surprising that the applicant, being dealt with in this way, found himself bound to come to the Court to agitate criticisms. 

32                  However, the criticisms are required to fall within the provisions of s 476 of the Act.  In an attempt to so frame them, Mr Hurley put two arguments on this aspect of the case.  First, he said that in determining that the applicant was not a special need relative, the Tribunal failed to give effect to the full definition, in that the Tribunal gave no separate consideration to the serious circumstances affecting the members of the nominator’s family unit.  The fault here was that the Tribunal, it was argued, did not deal with the position of the children of the nominator separately.  Ms Beaton-Wells rightly pointed out that the consideration of the circumstances of the children were relevant only in a consequential sense.

33                  The definition of special need relative begins by looking to a relative willing to provide substantial and continuing assistance to the citizen or resident.  Then it requires that the citizen or resident has a need for assistance because of serious circumstances affecting the person or a member of the person’s family.  Consequently, the primary focus of the definition is on the citizen or resident and that person’s need for assistance because of the circumstances affecting that person or a member of that person’s family unit.

34                  In the context of this case, this meant that the Tribunal was bound to consider the assistance to be given to the nominator sister.  The Tribunal only needed to consider the children’s circumstances if they bore upon the needs of the sister.  Although the way in which the Tribunal dealt with this matter was cryptic and unsatisfactory, I am not able to say that the reasons demonstrate an error of law in understanding of the definition, or of an error of law in the application of the facts to that definition. 

35                  In par 21 where the Tribunal sets out the claims of the applicant, the Tribunal made explicit reference to the suffering of serious circumstances by the nominator and her family.  The paragraph made reference to the situation of the children of the nominator in a number of places.  For instance, the Tribunal said:

“The primary applicant claims he works and supports her children financially culturally and emotionally.”

36                  Then, in the conclusion in par 25, the Tribunal again referred to the position of the children.  This is done in the context of the assistance needed by the nominator.  Thus, the Tribunal properly applied the definition.  On this aspect of the applicant’s challenge I find that no error as alleged has been made.

37                  The final argument relied upon by Mr Hurley related to the failure of the Tribunal to refer to the Full Court decision in Wu v Minister for Immigration & Multicultural Affairs (2000) 105 FCR 39; [2000] FCA 1817.  This was a decision made three months before the Tribunal determined this case.  Mr Hurley contended that the Tribunal referred to two cases and to the policy manual, but failed to refer to a decision which, he argued, was relevant to the consideration of the case.  The conclusion which he asked the Court to draw was that the Tribunal was unaware of the decision in Wu and failed to apply the law as enunciated in that case.  This, he said, was particularly stark because in the decision of Tuamoheloa v Minister for Immigration & Multicultural Affairs [1998] FCA 1406, to which the Tribunal did refer, there was a reference to a previous Full Court decision in Huang v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 95.  The Full Court in Wu disagreed with, if not overruled, the decision in Huang.

38                  There are a number of responses to this argument.  In Huang,the Court considered the scope of the phrase “other serious circumstances” in the definition of special need relative.  In the judgment of Hill J, with whom Jenkinson J agreed, his Honour said at 99:

“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 are not to the mere fact the citizen or resident is of tender years.”

39                  On this aspect of the case Lehane J, in a separate decision, came to the same conclusion. 

40                  In Wu, the Court said in relation to this issue as follows at par 38:

“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 the 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.”

41                  The point of disagreement between the Full Court in Wu and Huang is the case where the only factor in issue is the age, or tender age, of the relevant person.  In my view, that issue did not arise in this case.  The applicant did not put this case as being one case where the age of the children was, on its own, a serious circumstance.  Indeed, it is unlikely that such an argument could have been sensibly put, for in this case the children were 13 and 16 at the relevant times.  One can imagine that a case falling within this area of disagreement might be a case of a very young baby whose circumstances by their very nature involve dependency.  That might be a serious circumstance within the meaning of the definition.

42                  As the area of disagreement between those two decisions was not the issue in this case, it was unnecessary for the Tribunal to make reference to it.  In this case, the age of the children was a subsidiary factor lying in the background of the circumstances.  It was their cultural, moral and family wellbeing which the Tribunal was asked to rule upon.  Although it ruled upon it in a way which was terse, nonetheless it dealt with the issue which was before it.  It was not required to deal with Wu.  There was no error of law in the failure to refer to Wu. 

43                  In concluding these reasons, I should make two observations.  The first is that the decision of the Tribunal is unsatisfactory even though it has not disclosed errors giving rise to grounds for review under the Act.  The unsatisfactory and inadequate nature of the decision has been referred to in the course of these reasons.  In particular, the failure to set out the critical factual issues upon which the applicant relied amounts to a serious failing in proper decision making practice.  Indeed, counsel for the respondent did not seek to contend otherwise when this matter was raised by the Court in the course of argument.  In taking that approach, the respondent was, in my view, acting properly and responsibly.  Doubtless these criticisms will be relayed to the Tribunal member so that a higher standard can be expected in future.

44                  The respondent has sought the costs of the application.  Ordinarily the costs would follow the event and the respondent would receive his costs.  There are considerations in this case which suggest that the principle should not be applied.  A number of the arguments which the applicant agitated on appeal would not have been necessary if the decision had been expressed more clearly and comprehensively.  On the other hand, there are other arguments put by the applicant which, even on the state of the decision as it was, could not be sustained.  In those circumstance, the fair outcome is to allow the respondent’s application in part, and order that the applicant is to pay half of the respondent’s cost of and incident to the application.

45                  Finally, I should make particular mention of the quality of the submissions in this case.  The written submissions were of great assistance to the Court as were the oral submissions on both sides.  In particular, I should make mention of the submissions made on behalf of the respondent which were intelligent, to the point, and of great assistance to the Court.

46                  For these reasons, the application will be dismissed.

Associate:

Dated:              21 November 2001