FEDERAL COURT OF AUSTRALIA

Zahid v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 670

MIGRATION – “special need relative” – whether MRT erred in finding that nominator did not have a long-term need for assistance – whether MRT erred in finding that applicant was not willing and able to provide substantial and continuing assistance.

PRACTICE AND PROCEDURE – whether applicant should be referred for advice pursuant to Federal Court Rules, O 80.

Judiciary Act 1903 (Cth), s 39B(1)

Migration Act 1958 (Cth), s 31(1), 32(2), 65(1), 65(2), 474

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

Migration Regulations 1994 (Cth), rr 1.03, 1.15, schedule 2 sub-class 806

Statutory Rule 259 of 1999

Statutory Rule 306 of 1998

Federal Court Rules, O 80 r 4(1)

Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473, cited.

Narayan v Minister for Immigration and Multicultural Affairs [2001] FCA 789, cited.

Narayan v Minister for Immigration & Multicultural Affairs [2001] FCA 1745, cited.

Azzi v Minister for Immigration & Multicultural Affairs [2002] FCA 24, cited.

MOHAMMED ZAHID v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 91 of 2002

SACKVILLE J

SYDNEY

30 MAY 2002

THE COURT ORDERS THAT:

1.      The proceedings be stood over for directions on 28 June 2002 at 9-30 am.

2.      The applicant be referred to the Registrar pursuant to O 80 r 4(1) of the Federal Court Rules for the purpose of receiving advice, such advice being limited to the question of whether the applicant has a claim for relief under s 39B(1) of the Judiciary Act 1903 (Cth)by reason of the Migration Review Tribunal not finding that he was a “remaining relative” within the meaning of cl 806.213 of schedule 2 to the Migration Regulations 1994 (Cth).

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

REASONS FOR JUDGMENT

THE PROCEEDINGS

1                     This is an application to review a decision of the Migration Review Tribunal (“MRT”) made on 9 January 2002.  The MRT affirmed a decision of a delegate of the respondent (“the Minister”), given on 15 March 1996, to refuse to grant the applicant, his wife and son Family Residence (Class AO) visas.

2                     The most remarkable feature of this case is the length of time the applicant has been in the country.  He is a Fijian national, born on 19 December 1964.  He, his wife and son arrived in Australia on tourist visas on 21 April 1985 and they seem to have remained in this country ever since. They have therefore lived in Australia for over seventeen years.  Indeed, the son, who is now aged eighteen, has lived for all but the first eighteen months of his life in Australia.

3                     For most of the seventeen year period, the applicant has been lawfully in Australia.  The applicant and his family overstayed their tourist visas, which expired on 12 May 1985, and seem to have been unlawful non-citizens for about three years.  However, following the 1988 coup in Fiji, the applicant applied for a protection visa.  According to the MRT this application, allowing for all appeal mechanisms, was not finally resolved until 1996, some eight years after the original application had been lodged.  Presumably the applicant held bridging visas pending the determination of his application for a protection visa.

4                     The application for a Family Residence (Class AO) visa was lodged on 15 March 1996.  The applicant has held bridging visas since that time to allow for determination of the application.  Since the applicant was advised of the delegate’s determination on 21 December 1999, it appears that the delegate took three and a half years to make a decision.  In comparison, the MRT’s decision-making process was relatively swift, its decision being handed down almost exactly two years after the applicant sought review of the delegate’s decision.  If account is taken of the current application for judicial review, the application has been on foot for more than six years.

5                     At the time the visa application was lodged, Family Residence (Class AO) contained a number of sub-classes.  According to the MRT, the only sub-class in respect of which claims were advanced, was sub-class 806, and then only in respect of the “special need relative” category.  It will be necessary to return to the possibility that another sub-class may have been open to the applicant.

6                     The applicant’s claim before the MRT was that he was a “special need relative” of his mother (the “nominator”), who had become an Australian citizen on 21 February 1995.  It is this claim that the MRT rejected. 

7                     The application to this Court appears to have been drafted without the benefit of legal advice.  Although the application does not specify the source of the Court’s jurisdiction, I think that the appropriate course is to treat the application as having been made under s 39B(1) of the Judiciary Act 1903 (Cth) (“Judiciary Act”).  Section 39B(1) confers jurisdiction on the Federal Court

“with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth”.

I shall refer later to the grounds identified in the application.

the legislation

8                     Section 31(1) of the Migration Act 1958 (Cth) (“Migration Act”) provides that there are to be prescribed classes of visas.  The regulations may prescribe criteria for a visa or visas of a specified class: s 31(3).  After considering a valid application for a visa, the Minister, if satisfied, inter alia, that the criteria prescribed by the Migration Act and the regulations have been satisfied, is to grant the visa: s 65(1)(a).  If not so satisfied, the Minister is not to grant the visa: s 65(1)(b).

9                     When the applicant applied for a Family Resident (Class AO) visa, the criteria for such a visa were prescribed by the Migration Regulations 1994 (Cth) schedule 2, sub-class 806.  In so far as relevant, they provided as follows:

“806.21           Criteria to be satisfied at time of application

806.213                    The applicant is…a remaining relative or a special need relative of another person who:

(a)               is a settled Australian citizen…;

(b)               is usually resident in Australia; and

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

10                  The term “settled”, in relation to an Australian citizen, was defined to mean “lawfully resident in Australia for a reasonable period”: reg 1.03.  Clause 806.221 provided that the visa applicant had to continue to satisfy the criterion in cl 806.213 at the time of the decision. 

11                  Regulation 1.03 defined the expression “special need relative” as follows:

“‘special need relative’ in relation to an Australian citizen usually resident in Australia…means a relative who is willing and able to provide substantial and continuing assistance to the citizen 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…; or

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

It was accepted by the MRT that the applicant was “a relative” of the nominator for the purposes of reg 1.03: see definition of “relative” and “close relative”.

12                  Regulation 1.15 defined the expression “remaining relative” as follows:

“1.15(1)          An applicant for a visa is a remaining relative if the applicant has a relative who:

(a)               is:

(i)                 a brother, sister or parent; or

(ii)               …

            of the applicant; and

(b)               is:

(i)                 an Australian citizen; or

(ii)               an Australian permanent resident; or

(iii)             …; and

(c)               is usually resident in Australia;

            unless the applicant is disqualified under subregulation (2).

(2)       An applicant is disqualified if:

(a)               the applicant or spouse (if any) of the applicant:

(i)                 usually resides in the same country, not being Australia, as an overseas near relative; or

(ii)               has had contact with an overseas near relative during a reasonable period preceding the application; or

(b)               …;

(c)                ….

(3)       In this regulation ‘overseas near relative’ means a person who is

(a)               a parent, brother, sister or non-dependent child; or

(b)               …

of the applicant or of the spouse (if any) of the applicant but is not a relative of the kind referred to in sub-regulation (1).”

That definition was amended by SR 259 of 1999, which came into force on 1 November 1999.  It is not, however, necessary to set out the definition in its amended form.

13                  Since the present application was filed after the commencement date of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), the proceedings are governed by the new Part 8 of the Migration Act.  The key provision in Part 8 is s 474(1), which provides as follows:

“(1)     A privative clause decision

(a)               is final and conclusive;

(b)               must not be challenged, appealed against, reviewed, quashed or called into question in any Court; and

(c)                is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.”

The decision of the MRT in the present case is clearly a “privative clause decision” as defined in s 474(2) of the Migration Act.

the mrt’s reasoning

14                  The MRT said that, in general, it has regard to the Migration Regulations as they stood at the time of an application.  The MRT did not expressly advert to the fact that the “special need relative” provisions were omitted from the Migration Regulations by SR 306 of 1998, which commenced on 1 December 1998.  The MRT appears to have assumed that the Migration Regulations, as in force at the date of the application or immediately before SR 306 of 1998 came into force (there was no relevant difference between the two), continued to apply to the application.  This approach is in conformity with the decision of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at 478-480, although the MRT did not refer to that decision.

15                  The MRT noted that the nominator, who speaks very little English, claimed to have a permanent or long term need for assistance because of the death of her husband in July 1995.  It also noted that the nominator claimed to suffer from osteoarthritis and hypertension, a claim supported by a medical certificate issued on 11 March 1996. 

16                  The MRT recorded the applicant’s claim that, at the time of the application, the nominator was also suffering from a depressive illness of a permanent or long-term nature.  The applicant had reiterated that claim subsequently, asserting that the uncertainty associated with the review process had caused the nominator extreme stress.  The RRT found, however, that:

“[N]o psychiatric or psychological evidence has been provided that indicates that at the time of the application the nominator was suffering with a depressive illness of a permanent or long-term nature”.

17                  The MRT further found that the applicant’s parents had been sponsored as migrants to Australia by the applicant’s sister, Amrul.  The MRT made no finding as to when the parents had arrived in Australia, beyond implying that it must have been before they were granted citizenship in February 1995.  The evidence, however, as the MRT noted, clearly indicated that the father had lived with Amrul and her husband until the father’s death in July 1995 and that the nominator had continued to live with Amrul and her husband until the latter part of 1997.

18                  The MRT said that it had attempted to ascertain what the nominator’s needs were at the time of the application.  The applicant had given evidence at the hearing that the nominator had suffered high blood pressure at that time and that Amrul had administered the necessary medication, as well as taking her mother to medical appointments and attending to domestic duties.  The applicant also gave evidence that he was working full-time at this stage, although he gave conflicting evidence as to the shifts he had worked.

19                  The MRT recorded the following concerning the nominator’s evidence:

“When asked about what she was able to do at the time of the application the nominator stated that

            ‘I was well then.  I was feeling better and was able to do more.’

When asked what assistance she provided she advised that in 1996 she was able to cook and care for the children and that she was able to hang the clothes on the washing line”.

20                  Next, the MRT considered whether the assistance could not reasonably have been obtained from another relative.  In this section, the MRT recorded that the applicant had two sisters living in Australia and one in Fiji.  It also recorded his claim that the sisters in Australia were unable or unwilling to help the nominator.  According to the applicant, Amrul and her husband were “wealthy and successful”, but their work commitments prevented them from caring for the nominator.  The applicant had also said that, after his father’s death, he had cared for the nominator and, for a period of six months, had taken his mother to visit her husband’s grave.  The applicant also stated that, according to Fijian custom, parents always live with a son and, as the nominator’s only son, he was responsible for her care.  He further claimed that the nominator could not live by herself because of her illness.

21                  The MRT’s section on “FINDINGS” was brief.  I set out that section in its entirety:

“18.     The Tribunal finds that the primary visa applicant was not a ‘special need relative’ at the time of the visa application.

19.       At the time of the application clause 806.213 required that the primary visa applicant was a special need relative of the person who had nominated him as an applicant for a visa.  The Tribunal must therefore initially determine whether, at the time the application was made, the nominator had a permanent or long term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting herself or a member of her family unit.

20.       This application relies upon the medical certificate of Dr Berto which states that the nominator as at the 11 March 1996 suffered with osteoarthritis and hypertension and that her husband had died and she is alone and needs her son.  The certificate does not talk about the permanent and long term need for assistance because of death, disability, prolonged illness or other serious circumstance.  The nominator in fact in her evidence to the Tribunal stated that at the time of the application in 1996 she was ‘well then’ and able to assist in babysitting and domestic needs.  The primary visa applicant stated that at the time of the visa application his mother did not even reside with him and resided with his sister Amrul until the middle of 1997.  This is corroborated in evidence provided to the delegate who concludes based on this evidence that ‘I am satisfied that emotional support and other assistance has been available to the nominator from the resident daughter with whom she has lived for the past five or six years’.  Indeed the primary visa applicant advised that at the time of the application both he and his wife were working on a full-time basis which would negate their capacity to provide the level of care envisaged under the legislation.

21.       Having decided that the primary visa applicant was not a ‘special need relative’ at time of visa application, it therefore is unnecessary for the Tribunal to consider whether the visa applicant is a ‘special need relative’ at the time of the Tribunal’s decision.  The visa cannot be granted unless clause 806.213 is satisfied.

22.       Given the findings made above, the Tribunal has no alternative but to affirm the decision under review.”

the applicant’s contentions

22                  At a directions hearing in this matter, I strongly recommended to the applicant that he obtain legal advice.  Nonetheless, he appeared unrepresented at the hearing.  He did not file any written submissions. 

23                  The grounds specified in the application for review appear to raise two issues relating to the MRT’s rejection of the applicant’s claim to be a “special need relative” of the nominator:

(i)         the MRT had erred in law in that it accepted that the nominator, following the death of her husband, had a prolonged illness, but refused to grant a visa by reason of the availability of the applicant’s sister to care for the nominator; and

(ii)        the MRT had failed to take into account the cultural obligations of a male child to look after his mother whose circumstances are “compelling”.

24                  The application raised a third ground, namely that the MRT had failed to consider whether the applicant was a “remaining relative” of the nominator for the purposes of cl 806.213.  As I have already noted, this was not an issue addressed by the MRT and appears not to have been raised by the applicant’s legal advisers at the MRT hearing.

reasoning

25                  The circumstances of this case, in particular the fact that the applicant and his immediate family have been in this country for over 17 years, are disquieting.  Nonetheless, the only question before the Court is whether the MRT committed an error that justifies the grant of relief under s 39B(1) of the Judiciary Act, having regard to the terms of s 474(1) of the Migration Act.  Disquiet cannot take the place of legal analysis.

26                  In Narayan v Minister for Immigration and Multicultural Affairs [2001] FCA 789, I observed (at [39]) that the definition of “special need relative” is framed “a little awkwardly”.  I identified the awkwardness as arising because the reference to the relative’s willingness and ability to provide “substantial and continuing assistance” precedes the reference to the nominator’s “permanent or long-term need for assistance”. I pointed out that whether the relative can provide “substantial and continuing assistance” to the nominator must be determined in the light of the nominator’s “permanent or long-term need for assistance”.

27                  On appeal, the Full Court agreed that the definition is framed somewhat awkwardly: Narayan v Minister for Immigration & Multicultural Affairs [2001] FCA 1745, at [40].  The Court said that literally, and in schematic form, the definition requires that the relative be

“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…;

                                                and

(b)               the assistance cannot reasonably be obtained from [other sources of various kinds mentioned]”.

Their Honours observed that some of the awkwardness in the definition is removed if the opening paragraph and par (a) are read as a whole and purposively:

“Paragraph (a) describes the need which the citizen or resident must have.  The opening paragraph describes the kind of assistance which the visa applicant must be able to provide in response.  Although the relationship between the two paragraphs is not stated expressly, it is not surprising that that assistance which the visa applicant is willing and able to provide is required to be ‘continuing’, since the need referred to in par (a) is ‘permanent or long-term’.  Similarly, since the cause of the permanent or long-term need must be ‘serious’ circumstances as described in par (a), it seems likely that often such a need will be able to be met by nothing less than ‘substantial assistance’.”

28                  The Full Court pointed out that the opening paragraph itself imposes a criterion that must be satisfied.  Moreover, that criterion requires more than that the relative simply be willing and able to provide assistance of the kind described in par (a).  The assistance which the relative is willing and able to provide must be “substantial and continuing”: see at [41]-[43].

29                  It follows, as Mr Smith submitted on behalf of the Minister, that the definition of “special need relative” has the following cumulative elements:

• the nominator has a permanent or long-term need for assistance;
• the need for assistance must arise because of death, disability, prolonged illness or other serious circumstances;
• the relative must be willing and able to provide substantial and continuing assistance to the nominator in response to the nominator’s need; and
• the assistance cannot be reasonably obtained from the other sources mentioned.

There is a question as to whether “the assistance” referred to in par (b) of the definition means the assistance needed by the nominator, or the assistance provided or capable of being provided by the applicant: Azzi v Minister for Immigration & Multicultural Affairs [2002] FCA 24, at [88], per Allsop J.  That question need not be resolved in this case.

30                  As Mr Smith acknowledged, the MRT’s reasoning is not a model of clarity.  While it refers to evidence under various sub-headings corresponding to the criteria incorporated in the definition of “special need relative”, its findings are not so presented.  Nor are the MRT’s factual findings stated clearly or precisely; the “findings” section runs a number of separate issues together in a single paragraph.  Identifying the MRT’s process of reasoning therefore requires the reasons to be read carefully and as a whole.

31                  The first element of the case advanced by the applicant before the MRT was that the nominator had a permanent or long-term need for assistance arising from three sources:

• her osteoarthritis and hypertension;
• depression consequential upon the death of her husband; and
• a permanent or long term need for emotional support, independently of any depressive illness, arising from the death of her husband.

32                  On my reading of the MRT’s reasons, it rejected the first two ways in which the case was put, by making findings adverse to the applicant.  The MRT referred to the nominator’s evidence that at the time of the application she was well and able to assist with babysitting and domestic needs.  It also noted the absence of any medical evidence supporting the proposition that the nominator’s medical condition had created a permanent and long-term need for assistance.  While the MRT did not specifically state that this evidence led it to conclude that the nominator did not have a permanent or long-term need for assistance because of illness or disability, that could have been the only point of referring to the evidence in the terms that it did.  In short, when the MRT’s reasons are read as a whole, the MRT found that the nominator did not have a permanent or long-term need for assistance at the relevant time by reason of her osteoarthritis or hypertension.  The applicant’s submissions assumed, incorrectly, that the issue facing the MRT was simply whether the nominator had a long-term medical condition.  The factual question, which was resolved against the applicant, was whether her medical conditions gave rise to a permanent or long-term need for assistance.

33                  Similarly, the MRT rejected the claim that, at the time of the application, the nominator was suffering depression brought on by her husband’s death.  In the section of the reasons headed “Evidence”, the MRT observed that no psychiatric or psychological evidence had been provided which indicated that at the time of the application the nominator was suffering from a depressive illness of a permanent or long-term nature.  While the MRT again did not make an explicit finding on the issue, it is clear enough that it intended to convey that it was not satisfied that the nominator was suffering from a depressive illness giving rise to a permanent or long-term need for assistance.

34                  The MRT did not make a finding, explicitly or implicitly, as to whether the nominator had a permanent or long-term need for assistance in the form of emotional support by reason of the death of her husband.  Mr Smith did not suggest otherwise.  He did, however, submit that the MRT addressed this aspect of the applicant’s case in another way.

35                  In the latter part of par [20] of its reasons, the MRT noted that at the time of the application the nominator did not even reside with the applicant.  The MRT then said “this” was corroborated by evidence provided to the delegate who had concluded that emotional support and other assistance had been available to the nominator from the daughter with whom she lived.  Finally, the MRT pointed out that the applicant and his wife, at the relevant time, were working on a full-time basis “which would negate their capacity to provide the level of care envisaged under the legislation”.

36                  It is difficult to see why the MRT would have referred to these matters unless it was intending to address the questions of whether the assistance could not reasonably be obtained from Amrul and whether the applicant was willing and able to provide substantial and continuing assistance to the nominator.  The last sentence of par [20] of the MRT’s reasons (reproduced at [21] above) is tantamount to an explicit finding that the applicant could not provide the assistance contemplated by the definition of “special need relative”.

37                  In my view, on a fair reading of the MRT’s reasons it found that, if at the relevant time the nominator had a permanent or long-term need for emotional support arising from the death of her husband, then:

• it was not satisfied that that support could not reasonably be obtained from another relative, namely Amrul with whom the nominator was then living; and
• in any event, it was not satisfied that the applicant was willing and able at that time to provide “substantial and continuing assistance” to the nominator, given his work commitments and the fact that the nominator was living with her daughter.

These findings were fatal to that part of the applicant’s case that had not already been disposed of by the MRT.

38                  In my opinion, contrary to the applicant’s submission, it cannot be said that the MRT overlooked the importance, in accordance with Fijian custom, of a son caring for his mother’s needs after the death of his father.  The MRT specifically adverted to that claim in the course of its recitation of the evidence.  Other decision-makers might have given that consideration greater weight or, at least, explained in more detail why they did not consider it to be a decisive factor in favour of the applicant.  But no error justifying relief of the kind referred to in s 39B(1) of the Judiciary Act is disclosed by the MRT’s findings.

39                  It follows that the applicant’s claim for relief in this Court, in so far as it attacks the decision that the applicant was not a “special need relative” of the nominator, must fail.

a further issue

40                  In the course of argument, I asked Mr Smith why the applicant did not qualify as a “remaining relative” for the purposes of cl 806.213.  It is clear that, a the time of the application, the applicant had a relative (the nominator) who was an Australian citizen usually resident in Australia.  Thus the applicant clearly satisfied sub-reg (1) of reg 1.15.  Mr Smith accepted this, but said that the applicant was disqualified under reg 1.15(2)(a)(i), because he “usually reside[d] in the same country, not being Australia, as an overseas near relative”: that is, he usually resided in Fiji, the same country in which one of his sisters was resident.

41                  It seemed to me that it was arguable that, in 1996, the applicant usually resided in Australia, rather than Fiji.  I suggested to Mr Smith that perhaps the most appropriate course was that I should refer the applicant to the Registrar for referral to a legal practitioner on the pro bono panel, pursuant to Federal Court Rules (“FCR”), O 80 r 4(1).  Mr Smith, very fairly, did not object to that course being taken.  Nor did he object to the proceedings being stood over to enable the applicant to receive advice on the “remaining relative” point.

42                  Having taken into account the matters identified in FCR, O 80 r 4(2), I consider it appropriate to refer the applicant to the Registrar pursuant to O 80 r 4(1) for the purpose of the applicant receiving advice in relation to the present proceeding.  The advice should be limited to the question of whether the applicant has a claim for relief under s 39B(1) of the Judiciary Act by reason of the MRT’s failure to find that he was a “remaining relative” within the meaning of cl 806.213.  The referral should include, if counsel thinks appropriate, representation in these proceedings.

43                  I should make it clear that the referral to the Registrar pursuant to FCR, O 80 r 4 does not imply that I have formed any view on this issue.

44                  I propose to adjourn the proceedings for further directions to a date which will enable the applicant to receive the advice to which I have referred.

Associate:

Dated:              30 May 2002

The applicant was not represented.