FEDERAL COURT OF AUSTRALIA

Perera v Minister for Immigration and Multicultural Affairs [2002] FCA 743

MIGRATION - Review of decision of Migration Review Tribunal - Whether main applicant special needs relative of an Australian citizen - Meaning of “other serious circumstances” in relation to special needs relative - Whether ground of review under s 476(1)(b), (c) or (e) made out - Whether failure of Tribunal to refer to letter from medical practitioner was failure to have regard to additional information in response to request by Tribunal as required by s 359(1) - Whether failure to refer to letter was failure to review decision as required by s 348(1) - Whether s 54 and s 55 require Tribunal to consider information not available to Minister’s delegate - Whether ground of review under s 476(1)(a), (b) or (c) made out.

Migration Act 1958 (Cth) ss 54, 55, 348(1), 358, 359(1), 368(1),  476(1)

Migration Regulations 1994 Regs 1.03, 1.12

Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 418

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

Tuamoheloa v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, 4 November 1997)

Hussein v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, 5 November 1999)

Minister for Immigration and Multicultural Affairs v Chan [2000] FCA 537

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

Jun v Minister for Immigration and Multicultural Affairs [2000] FCA 867

Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39

Chen v Minister for Immigration and Ethnic Affairs (1994) 51 FCR 322

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

Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2000) 177 ALR 473

El Bkassini v Minister for Immigration and Multicultural Affairs [2002] FCA 612

Minister for Immigration and Multicultural Affairs v Yusuf 180 ALR 1

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

Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56

Applicant F v Minister for Immigration and Multicultural Affairs [2001] FCA 304

Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274

R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228

Thirukkumar v Minister for Immigration and Multicultural Affairs [2001] FCA 864)

KALUARACHCHIGE INDRATHILAKE PERERA and PALAGASINGHE KODITUWAKKUGE RANJANI PERERA  v  MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 7 of 2001

RYAN J

13 JUNE 2002

MELBOURNE

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The decision of the Migration Review Tribunal of 12 December 2000 be affirmed.

3.         The applicants pay the respondent’s costs of the application, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

Background.

1                     This is an application for review of a decision of the Migration Review Tribunal (“the Tribunal”) given on 12 December 2000 affirming the refusal by a delegate of the respondent Minister (“the Minister”) to grant to each of the applicants a Change of Circumstances (Residence) (Class AO) Visa, Subclass 806 (Family). 

2                     The applicants are husband and wife.  The first applicant, Kaluarachchige Indrathilake Perera, the husband, applied for the visa in question and included his wife, the second applicant, in his application. 

3                     Mr Perera entered Australia on 27 October 1995 on a Short Stay (Visitor) (Class TR) Visa, Subclass 676 and was granted permission to stay in this country until 27 January 1996.  His wife had earlier entered Australia on 11 April 1995 on a Student (Class TU) Visa, Subclass 560 valid until 31 March 1998.  However, her visa was cancelled on 3 June 1996.  In the meantime, Mr Perera and his wife had applied on 5 March 1996 for a protection visa.  That application was refused on 6 May 1996 and the refusal was affirmed by the Refugee Review Tribunal (“the RRT”) on 1 November 1996.  The applicants also applied for and were granted Sri Lanka Humanitarian visas.  Those visas were valid until 31 July 1997.  Consequently, as the Tribunal noted in its reasons, the applicants have not held substantive Australian visas since 31 July 1997. 

4                     The application for the visa, which is the subject of the present application to this Court, was made on 31 July 1998.  By it, Mr Perera claimed that he and his wife were “special need” relatives of his sister, Kaluarachchige Leel Perera, an Australian citizen, who had nominated Mr Perera for Australian residence.  The basis on which the “special need” was said to arise was described by the Tribunal in its reasons in these terms;

“The visa applicant stated that he was a special need relative to his sister, the nominator.  He stated that his sister was suffering from depression as a result of the visa applicant’s “uncertain condition”, and the fact that his wife was undergoing IVF treatment.  He stated that as a result of the depression, his sister had lost weight and appetite, and was also suffering from headaches.  She was undergoing treatment for these conditions, and the applicant wished to remain in Australia permanently in order to stabilise his sister’s condition.”

5                     By letter dated 15 March 1999, the Minister’s delegate invited Mr Perera to provide evidence, particularly professional medical opinion, in support of his claim to be a special need relative of his sister.  That elicited the following reply dated 6 April 1999;

“I have enclosed herewith a letter from the treating doctor of my sister Dr N.M. Fernando that gives you proof of her illness.  I do not think that it is that possible to obtain a very detailed letter from the treating doctor, as the actual medication is my emotional and moral support, which I believe she has mentioned in the letter.  I am answering the questions you have asked in detail as much as I understand.

Q/No.1             By being there for her and comforting her and supporting her emotionally.

            Q/No.2             She needs peace of mind and moral support.

            Q/No.3             On going.

Q/No.4             My sister needs my assistance as she is depressed to the fact that she is loosing my company and since my life will be in danger should I return back to Sri Lanka.  My sister requires me to live here with her and so she knows that I am safe.  She also needs my moral and emotional support and this is circumstantial and I am the only person whom could prevent this situation.

Q/No.5             I learn more and know how my sister feels for me and how devastating it she will be effected as I am her sister and we have been close to each other that we are troubled when separated.  I do not think that I require experience to be of a kind an caring brother and I wish to state that we have been very attached to each other and that’s the reason I feel for her and she requires my company.

Q/No.6             I require to work and earn my living during the period I am staying in this country.

Q/No.7             I do intend to live with my relative as long as she requires me to be with her and overcomes the depression and stress and no longer needs my assistance.

I also wish to request that when considering this application to please consider that my wife is now 3 ½ months pregnant and she has gone through a long period of treatment and IVF programs carried out by Monash Medical Centre in this country.  We have been longing for a child for several years and at last our dream has come true with my wife’s pregnancy.  At the age of 46 now I am going to be a father and my wife 39 years and I hope and pray that this time she will get through with this pregnancy and she has had miscarriages before and should we receive a unfavourable decision on this application, am also worried that that would be a harsh effect on her and harm her health.”

6                     The Tribunal accepted that a child, K Chathuki Perera, was subsequently born to the applicants on 16 June 1999.  However, on 13 September 1999 the delegate of the Respondent refused the applicants’ application for the issue to them of a visa as special need relatives of the husband applicant’s sister.  As the Tribunal noted at the end of [12] of its reasons;

“No decision appears to have been made in relation to the child, who, according to regulation 2.08(1)(c), was taken to have been included in the application at the time she was born.  The visa applicant sought review of the decision by the Tribunal on 7 October 1999.  The child was included in the application for review.”

7                     Further information was placed before the Tribunal which it summarised as follows;

“In response to a request for the Tribunal for further information, by letter dated 13 June 2000 the visa applicant submitted that his sister’s illness was not a medical condition but an emotional situation which would be threatened by the return of his family to Sri Lanka.  Their child would not be able to have the necessary medical attention in Sri Lanka which would cause his sister stress and trauma because she and her family were most concerned about their safety and the child’s condition.  The child had been born three months prematurely and required specialist attention.

The visa applicant provided a letter from the neonatal paediatrician at Monash Medical Centre dated 27 October 1999.  The letter stated that the child was born at Monash Medical Centre at 26 weeks gestation, weighing 536 grams.  After a prolonged period in Neonatal Intensive Care on a ventilator because of lung immaturity she was discharged from hospital on 26 September 1999.  The paediatrician stated that the child had chronic lung disease, requiring continuous oxygen which limited her ability to travel.  It was expected that her lung function would become completely normal by 2- 3 years with no long term lung impairment.  The paediatrician further stated that the child’s feeding remained a problem and her weight gain was slow, requiring continuous supervision by a Dietician.  The Paediatrician stated:

            From a medical point of view it is very important that Chathuki does not leave Australia until she is out of oxygen and safely able to fly (approx six months) and desirable that she remain under medical supervision at this hospital until she is at least 12-15 months old.”

8                     The Tribunal then noted that, at a hearing, which it conducted on 6 July 2000, evidence had been given about the applicants’ child who had been born 3 months prematurely with weak lungs.  The Tribunal’s recital of that evidence concluded;

“She was still under treatment, attending hospital four times per month.  She was recently hospitalised when her level of oxygen was reduced which resulted in her being unable to take milk.  She still requires constant oxygen.

The doctor at Monash Medical Centre has advised that the child would not be able to fly and it would take two years for her present condition to improve.  She would live a normal life however the visa applicant was concerned that she would not be able to receive the treatment that she required in Sri Lanka.”

9                     In its findings, the Tribunal noted the definition of “special need relative” in reg 1.03 of the Migration Regulations (“the Regulations”) which is;

“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 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.”

10                  It then noted that the view which Burchett J had expressed in Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 418 that the Regulations, including the definition of “special need relative”, should be given a broad and generous construction in favour of Australian citizens and residents, had been disapproved in subsequent decisions of this Court.  Those decisions were Huang v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 95, Tuamoheloa v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, 4 November 1997) and Hussein v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, 5 November 1999).  The Tribunal then referred to the more recent judgment of Kenny J in Minister for Immigration and Multicultural Affairs v Chan [2000] FCA 537 where her Honour considered that the proposition in Fuduche that “special need relative” should be given a broad construction had been rejected by a Full Court of this Court in Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194, at 206-207.  It was also noted that her Honour’s view had been endorsed by Mansfield J in Jun v Minister for Immigration and Multicultural Affairs [2000] FCA 867.

11                  After that review of the authorities, the Tribunal applied its understanding of the concept of “special need relative” to the circumstances of the present applicants.  It said at [25] of its reasons:

“To meet the definition of a special need relative, the nominator must have a permanent or long term need for assistance because of death, disability, prolonged illness or other serious circumstances and the visa applicant must be willing and able to provide substantial and continuing assistance.  Although there was some mention of depression on the part of the nominator, and the Tribunal accepts that in certain circumstances depression can constitute an illness, the visa applicant has stated that the nominator is perfectly healthy, however she is reliant upon him for emotional support and his presence relieves her anxiety.  The nominator’s doctor’s certificate also indicated that the nominator was anxious and relied upon the visa applicant for emotional support.  There is no documentary evidence that the nominator suffers from any illness and the Tribunal is not satisfied that the nominator has a permanent or long term need for assistance because of death, disability or prolonged illness affecting her personally.”

12                  The Tribunal went on to find that for the applicant to come within the definition of a “special need” relative on the basis of the illness of their child, it was necessary for the child to be a member of the nominator’s family unit.  Having regard to the definition of “member of the family unit” in reg 1.12 and the circumstances that the nominator was married and not usually resident in the first applicant’s household, the necessary connection could not be established.  That conclusion has not been challenged in the present proceedings.

13                  The Tribunal’s conclusion as to whether the nominator’s relationship with the first applicant constituted the latter a “special need relative” was set out in these terms at [28] of its reasons for decision;

“The Tribunal has considered whether the nominator’s condition and her psychological dependence on the visa applicant for emotional support constitute “other serious circumstances” affecting the nominator.  As stated by the Full Court of the Federal Court in Huang v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 95 the concept of “other serious circumstances” refers to “circumstances similar to death, disability or prolonged illness”.  What constitutes “a serious circumstance” is something that must be considered in light of the concepts of death, disability and prolonged illness (Hussein).  The Tribunal accepts that the nominator and the visa applicant have a strong and close relationship.  However in light of the case law cited above the Tribunal is not satisfied that this constitutes circumstances of such seriousness as to be similar to death, disability or prolonged illness or “other serious circumstances” within the definition of special need relative.  The Tribunal considers that this also applies in relation to any concerns that the nominator may have for the visa applicant’s child (although the regulations also stipulate that the definition of special need relative must be met [at] the time of application, at which stage the child had not yet been born).”

14                  After excluding the medical condition of the applicant’s child as “other serious circumstances” for the purpose of the definition of “special need relative”, the Tribunal went on to conclude, at [29];

“On the evidence presented to it, the Tribunal is not satisfied that the nominator or a member of her family unit, suffers from death, disability or prolonged illness which results in a permanent or long term need for assistance, nor that there are other serious circumstances affecting the nominator or a member of her family unit so as to bring the visa applicant within the definition of special need relative since he last held a substantive visa, at the time of application or at the time of decision.”

15                  No issue was taken before this Court in respect of the Tribunal’s remaining findings that the first applicant was neither an “aged relative” of the nominator within the meaning of reg 1.03 nor a “remaining relative” of the nominator within reg 1.15.  Similarly, the applicants did not contest the Tribunal’s finding that the first applicant was not an “orphan relative” of the nominator as defined in reg 1.14 and did not fall within any of the other subclasses of persons (other than that of special needs relative) who might qualify for a Change of Circumstance (Residence) (Class AG) visa.

16                  The applicants seek review of the Tribunal’s decision.  The grounds upon which the applicants seek review are set out in their Further Amended Application for an Order for Review dated 3 July 2001 in the following manner;

“1.       The Tribunal made an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision:  s.476(1)(e) of the Act.

PARTICULARS

The Tribunal misconstrued and misapplied the definition of ‘special need relative’ for the purposes of reg.1.03 and reg.806.213, in particular by construing the phrase “other serious circumstances” contained within that definition as meaning “circumstances similar to death, disability or prolonged illness”.

2.         [deleted]

3.         The Tribunal failed to observe procedures required to be observed in connection with the making of the decision:  ss.47, 54, 55, 348(1), 359(1) and 476(1)(a) of the Act

PARTICULARS

The Tribunal failed to have regard to a letter dated 4 September 2000 from Dr Carse of the Monash Medical Centre to the Tribunal.  The letter was given to the Tribunal by the first applicant prior to 12 December 2000.  The Tribunal’s failure to have regard to this letter constitutes a failure to have regard to additional information supplied by the applicant in response to requests for information by the Tribunal in contravention of s.359(1) of the Act and/or failure to consider or review the application in contravention of ss.47, 54, 55 and 348(1) of the Act.

4.         [deleted]

5.         The Tribunal did not have jurisdiction to make the decision: s.476(1)(b) of the Act.

PARTICULARS

            The Tribunal made jurisdictional errors in that it:

(i)                 asked the wrong question, by adopting an incorrect interpretation of the definition of ‘special need relative’ for the purposes of reg.1.03 and reg.806.213, in particular by construing the phrase “other serious circumstances” contained within that definition as meaning “circumstances similar to death, disability or prolonged illness”;  and

(ii)               ignored relevant material, namely, the letter dated 4 September 2000 from Dr Carse of the Monash Medical Centre to the Tribunal.

6.         The Tribunal’s decision was not authorised by the Act or the regulations:  s.476(1)(c) of the Act.

PARTICULARS

                        The applicants refer to and repeat the particulars to ground 4 above.”

17                  The relevant paragraphs of s 476(1) relied upon by the applicants provide, subject to subsection (2) which is not presently relevant, that;

“... ... ... application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a)               that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

(b)               that the person who purported to make the decision did not have jurisdiction to make the decision;

(c)                that the decision was not authorised by this Act or the regulations;

(d)               ... ... ...

(e)                that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the face of the record of the decision;”

The meaning of “special need relative”

18                  The applicants contend that the Tribunal misconstrued and misapplied the definition of “special need relative”, particularly in light of its construction of the phrase “other serious circumstances” forming part of that definition.

19                  The applicants point to [28] of the Tribunals’ reasons, which is reproduced at [13] above, as illustrating that the Tribunal relied upon a line of authority beginning with the Full Court of this Court in Huang v Minister for Immigration and Ethnic Affairs (supra) to construe the expression “other serious circumstances” as requiring circumstances similar to death, disability or prolonged illness.  The applicants contend that this approach has been rejected by the Full Court of this Court in Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39.  In that later case, the applicants contend, the Court adopted a wider approach to the meaning of the expression “other serious circumstances” which requires the Tribunal to focus on the nature of the assistance required.

20                  The applicants further contend that an error is further revealed by the Tribunal’s failure to set out findings of fact as to the nature and extent of the nominator’s medical condition, and the nature and extent of the assistance required by the nominator apart from finding that the nominator and the visa applicant have a “strong and close relationship”.  The applicants contend that, in light of the obligations imposed on the Tribunal by s 368(1)(c) of the Act, its failure to set out findings of fact on those questions indicates that the Tribunal did not regard those questions as material to its decision.  It was said that the judgment of the Full Court of this Court in Wu required the Tribunal to ask whether the assistance required by the nominator was “substantial and continuing in relation to a need for assistance which is permanent or long-term” and whether the nominator was “in circumstances which create a need for substantial and continuing assistance”, being “assistance of the same sort that would be required if the citizen was suffering from a disability or prolonged illness.”

21                  The applicants contend that in light of the approach formulated in Wu, the Tribunal’s reliance on Huang and construction of the expression “other serious circumstances” as requiring circumstances similar to death, disability or prolonged illness amounts to a reviewable error of law within the meaning of s 476(1)(e) of the Act.  The applicants also contend that the Tribunal’s construction amounts to a judicially reviewable decision pursuant to paragraphs (b) and (c) of s 476(1) of the Act.

22                  The respondent contends that, to the extent that there is an inconsistency between Huang and Wu, it is not relevant to the present case.  In Wu, the respondent submits, the Full Court doubted the correctness of the decision in Huang insofar as it held that the expression “other special circumstances” can never affect a child merely because of his or her tender years.  As the present case is not one in which the nominator is a person of tender age, the inconsistency between Huang and Wu is not relevant to the present case.

23                  The respondent further contends that the comments of the Full Court in Wu regarding the expression “other serious circumstances” are not inconsistent with the approach of the Tribunal in the present case.  Consistently with Wu, the respondent contends, to constitute “other serious circumstances” the circumstances must be sufficiently serious to require assistance of the same sort that would be required if the citizen were suffering from a disability or prolonged illness.  The respondent contends that there is no inconsistency between this construction and the statement in Huang that the words “other serious circumstances” refer to circumstances similar to death, disability or prolonged illness.

24                  The phrases “serious circumstances” and “special need relative” have been differently interpreted by Judges of this Court over the last decade.  In Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (supra), Burchett J held that the “benevolent intent of the regulation … should be given a broad and generous construction in favour of Australian citizens and residents that it was intended to benefit, and in the furtherance of the good name of Australia that its humanity maintains”.  A similar view was taken by Davies J in Chen v Minister for Immigration and Ethnic Affairs (1994) 51 FCR 322 at 327-328 and by Foster J in Moskal v Minister for Immigration, Local Government and Ethnic Affairs (1994) 125 ALR 307 at 313-314, 315.  However, a Full Court of this Court in Minister for Immigration and Ethnic Affairs v Teo (supra) rejected that earlier, more liberal, approach.

25                  In Huang, another Full Court of this Court considered the meaning of the expression “other serious circumstances” in the context of an appeal from a decision of a single judge dismissing an application for judicial review of a decision of the respondent Minister that the appellant, Ms Huang, be refused a preferential family visa to enter Australia.  Ms Huang, a citizen of the People’s Republic of China, had one child born on 31 October 1994 in Australia.  The child was an Australian citizen.  The primary judge had affirmed the decision to reject Ms Huang’s application for a visa on the basis of a finding that a criterion for that type of visa was sponsorship of the special need relative by a citizen at least 18 years old and Ms Huang had not been able to satisfy that criterion. 

26                  On appeal, Hill J (with whom Jenkinson J agreed) upheld the primary judge’s finding that a criterion for a preferential family visa was sponsorship.  His Honour went on to say, at 99;

“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.”

27                  Lehane J, the remaining member of the Court in Huang, 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 visa.  His Honour (at 101 - 102) went on to make the following remarks concerning the application of the criterion to the circumstances of a young child;

“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 “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.”

28                  After Huang had been decided, Kenny J in Minister for Immigration and Multicultural Affairs v Chan (supra) and Mansfield J in Jun v Minister for Immigration and Multicultural Affairs (supra) reinforced the application of a “normal and fair reading” of the Regulations, at least in applying the concept of a “special need relative”.  In Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2000) 177 ALR 473, at 482, McHugh J doubted that Huang had been wrongly decided.

29                  Despite the trend of authority, a Full Court of this Court in Wu considered that what had been said by members of the Full Court in Huang about the meaning of “other serious circumstances” did not form part of the ratio of that case.  Accordingly, the Court in Wu concluded that it was strictly unnecessary to consider whether it was bound to follow the decision in Huang and went on to hold (at [54]) that a child of tender years is not necessarily excluded from the category of persons who are unable to care for themselves.  As such, age may be a matter which, together with other matters, constitutes “other serious circumstances” as one of the criteria for “special need relative”.  It was only in that respect that the Court in Wu declined to follow the conclusion of Jenkinson and Hill JJ in Huang.

30                  On my reading of Wu, their Honours did not consider that Hill J embarked on any general explanation or formulation of a test as to the meaning of “other serious circumstances”.  They said, at 53;

“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.”

31                  Their Honours went on to state, at 53-54;

“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.

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.

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.

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 with old age.”

32                  As I said in El Bkassini v Minister for Immigration and Multicultural Affairs [2002] FCA 612, the effect of the decision in Wu seems to be to reaffirm that reg 1.3 was to be construed on the basis of a “normal and fair reading” but that such an approach leads to a less restrictive interpretation of “other special circumstances” than that adverted to by the members of the Full Court in Huang.

Grounds for review under s 476(1)(b), (c) and (e) of the Act?

33                  In analysing the grounds for review under paragraphs (b) (c) and (e) of s 476(1) of the Act, McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) said in Minister for Immigration and Multicultural Affairs v Yusuf 180 ALR 1, at 21;

“It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error.  As was said in Craig v South Australia [(1995) 184 CLR 163 at 179; 131 ALR 595 at 602], if an administrative tribunal (like the Tribunal)

… falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.  Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

"Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive [cf Re Refugee Review Tribunal; Ex parte Aala (2000) 176 ALR 219; 75 ALJR 52].  Those different kinds of error may well overlap.  The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material.  What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law.  Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute.  In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.  Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.  [Craig (1995) 184 CLR 163 at 179; 131 ALR 595 at 602]

No doubt full weight must be given to s 476(3) and the limitations which it prescribes in the construction of improper exercise of power in par (d) of s 476(1). Equally, however, it is important to recognise that these limitations, unlike those prescribed by s 476(2), are limitations on only one of the grounds specified in s 476(1). All this being so, there is no reason to give either par (b) or par (c) of s 476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs. In particular, it is important to recognise that, if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it "exceeds its authority or powers". If that is so, the person who purported to make the decision "did not have jurisdiction" to make the decision he or she made, and the decision "was not authorised" by the Act.”

Moreover, in such a case, the decision may well, within the meaning of par (e) of s 476(1), involve an error of law which involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That it cannot be said to be an improper exercise of power (as that expression is to be understood in s 476(1)(d), read in light of s 476(3)) is not to the point. No doubt it must be recognised that the ground stated in par (e) is not described simply as making an error of law. The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That qualification emphasises that factual error by the Tribunal will not found review. Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which par (e) deals. That having been said, the addition of the qualification to par (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language. If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found. If that is so, the ground in s 476(1)(e) is made out.”  (original emphasis)

Did the Tribunal make an error of law?

34                  In the present case, the Tribunal was required to consider whether the facts fell within the expression “other serious circumstances”.  To answer that question it had to apply that expression, once its meaning had been ascertained, to the facts which it found in respect of the circumstances of the nominator.  Although the Tribunal did not expressly refer to the decision of the Full Court in Wu, I am not persuaded that it made an error of law in the manner explained in the passage from Yusuf quoted at [33] above.  At [28] of its reasons the Tribunal expressly stated that it had considered the nominator’s condition and her dependence on the first applicant for support.  Although the Tribunal said that it had considered the relationship in light of the case law to which it had referred earlier in its reasons, I do not understand it to have regarded Huang as establishing a principle of law but rather, as providing guidance as to whether the applicant was a special needs relative.

35                  In any event, I agree with the observation of Sackville J in Narayan v Minister for Immigration and Multicultural Affairs [2001] FCA 789 at [46] that an inappropriate reference to an earlier decision in support of reasoning on a factual question is, at worst, an error of fact.  His Honour went on to say that the point can be illustrated by the decision of McHugh J in Re Minister for Immigration and Multicultural Affairs, Ex parte Cohen (supra) the effect of which he explained at [47] - [49] as follows;

“In that case, the MRT found that the applicant, the father of the child who was an Australian citizen, was not a “special need relative” within the definition of reg 1.03.  The MRT applied the Full Court decision in Huang v Minister for Immigration and Multicultural Affairs (1996) 71 FCR 95, which held that a child, merely because of its tender years, could not be said to have a long term need for assistance because of “other serious circumstances” within par (a) of the definition.  On an application to the High Court for constitutional writs it was argued that the MRT had committed a jurisdictional error in following Huang, which the applicant said had been wrongly decided. 

McHugh J formed the view that Huang had not been wrongly decided. (His Honour’s attention apparently was not drawn to the later Full Court decision in Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39, refusing to follow Huang.)  But McHugh J considered that even if Huang had been wrongly decided, the MRT had not committed a jurisdictional error.  His Honour said this (at 482):

“At worst, it made an error of fact, because, by applying Huang, it erroneously reasoned that [the child] did not have ‘need for assistance because of a disability, prolonged illness or other serious circumstance’.  I do not think that applying a case that wrongly decides a question of fact – the meaning of a non-technical word – can be equated to applying a wrong legal test.  Huang decided a question of fact, not a question of law.  If the Tribunal had adopted the meanings given in Huang, but without reference to that case, it would not have made a jurisdictional error.  It makes no difference that it used Huang as its dictionary instead of interpreting the expressions itself.”

The present case is stronger for the Minister than Ex parte Cohen.  The MRT did not rely on Hussein v Minister as establishing a controlling principle of law, but merely as providing guidance as to whether the applicant could provide the nominator with “substantial and continuing assistance” of the requisite kind. Even if the reference to Hussein was inappropriate, the MRT did not thereby commit an error of law.”

36                  As already indicated, I do not consider that the Tribunal regarded Huang as establishing a controlling principle of law.  In that respect, the applicants’ case is similar to that analysed by Sackville J in Narayan (supra).  Accordingly, I am not satisfied the Tribunal made an error of law within the meaning of s 476(1)(e) of the Act. 

37                  I have also been led by similar reasoning to conclude that the Tribunal’s approach to the meaning of the expression “other serious circumstances” in the definition of “special needs relative” did not involve jurisdictional error within the meaning of s 476(1)(b).  Nor, in my view, was the decision not authorised by the Act or the regulations for the purposes of s 476(1)(c) of the Act.

The letter from Dr. Carse

38                  The applicants contend that the Tribunal’s failure to make any reference to the letter from Dr Carse dated 4 September 2000 or to any of its contents constituted a failure to have regard to additional information supplied by the applicants in response to requests for information by the Tribunal in contravention of s 359(1) amounting to a reviewable error under s 476(1)(a) of the Act.

39                  In addition, it was said that the Tribunal’s disregard of the letter involved a failure to review the decision of the Minister’s delegate as required by s 348(1) amounting to a reviewable error under s 476(1)(a) of the Act.  It was said that in performing its function of review the Tribunal is under a similar obligation to that imposed on the Minister by ss 54 and 55 of the Act, the combined effect of which requires the Minister to have regard to all information set out in or attached to an application, together with any additional information furnished by an applicant at any time before the making of the decision.  The Tribunal was said to be under a similar obligation which required it, amongst other things, to have regard to any additional relevant information available to it. 

40                  Counsel for the respondent contended that the information in the letter did not disclose any substantially new and relevant material bearing on the outcome of the application.  The Tribunal’s failure to refer to it was therefore not material and did not afford a ground of review under s 476(1)(a) of the Act.

41                  In the alternative, the Minister contended that s 359(1) is to be equated with s 424(1) of the Act which has been held to be concerned with information the Tribunal obtains by its own initiative and not information proffered by an applicant.  In this respect, the Minister relied on the decisions of this Court in Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 and Applicant F v Minister for Immigration and Multicultural Affairs [2001] FCA 304.  The Minister further contended that the letter from Dr Carse was not properly to be characterised as additional information provided by the applicants in response to requests for such information by the Tribunal pursuant to s 359.  The information requested by the Tribunal pursuant to that section, the Minister argued, was made in two letters from the Tribunal to the applicants dated 16 May 2000 and 6 July 2000 and did not request information of the kind supplied in Dr Carse’s letter.  In any event, the applicants sent Dr Carse’s letter some five months later in December 2000.

42                  In response to the applicants submissions invoking s 348(1), the Minister contended that the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274, had restricted the availability of review on the ground that the Tribunal has not considered the application for a visa to very limited circumstances where it can be shown that the Tribunal has not in truth “considered” the application for a visa at all.  The present case, on the Minister’s argument, falls far short of disclosing such a complete failure to consider the application.

43                  Section 359(1) of the Act provides, so far as is relevant;

 “(1)    In conducting the review, the Tribunal may get any information that it considers relevant.  However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

(2)        Without limiting subsection (1), the Tribunal may invite a person to give additional information.”

44                  I uphold the Minister’s contention that the information to which s 359(1) refers is information which the Tribunal obtains on its own initiative and does not include information proffered by or on behalf of an applicant.  Section 358 deals with information in writing proffered by an applicant:  (see Applicant F v Minister for Immigration and Multicultural and Indigenous Affairs (supra) at [31] - [32] where Carr J examined the corresponding provision in s 424(1) of the Act).  This view of s 358 leads me to consider whether the letter from Dr Carse was information proffered by or on behalf of the applicants.

45                  It appears from a handwritten file note on the respondent’s file dated 7 December 2000 that the first applicant telephoned the Tribunal and asked whether he could submit a  letter from Dr Carse.  The person at the Tribunal to whom Mr Perera spoke is not identifiable from the file note but the note indicates that the person informed Mr Perera that he or she would need to check what stage his application had reached and get back to him.  A further handwritten note on the file indicates that enquiries were made with the relevant Tribunal member who suggested that the applicants send the letter to the Tribunal before 12 December and that when received it be placed on the file.  The file note further indicates that this information was conveyed by telephone to the second applicant.  I am satisfied on the evidence that the letter from Dr Carse was information proffered by the applicants and was not information obtained by the Tribunal on its own initiative pursuant to s 359(1).  The Tribunal’s request for additional information pursuant to that section was contained in its letters to the first applicant on 16 May 2000 and later on 6 July 2000.  In any event, those requests did not seek information of the type contained in Dr Carse’s letter.  Accordingly, it is unnecessary to determine whether the Tribunal’s failure to refer to the letter amounted to a failure to observe a procedure within the meaning of s 476(1)(a).

46                  I turn now to the applicant’s contention based on s 348(1) of the Act, which provides;

“348    Migration Review Tribunal must review decisions

(1)               Subject to subsection (2), if an application is properly made under section 347 for review of an MRT- reviewable decision, the Tribunal must review the decision.”

47                  In Minister for Immigration and Multicultural Affairs v Anthonypillai (supra), a Full Court of this Court considered whether a failure by the Tribunal to give “proper, genuine and realistic consideration’ to an application gives rise to a ground of review under s 476 and the circumstances in which it could be said that the Tribunal had failed to “review” a decision or “consider” an applicant’s claim.  After examining the legislative framework, their Honours concluded that a claim that the Tribunal failed to give “proper, genuine and realistic consideration” to an application does not afford an available ground for review under Part 8.  They continued, at [69];

“It was determined in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 that when the Administrative Appeals Tribunal was asked to review a decision of the Minister it stood in his or her shoes.  As Bowen CJ and Deane J observed at 589:

"The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal." (Full Court’s emphasis)

Those comments were directed specifically to the Administrative Appeals Tribunal. An application to the Refugee Review Tribunal is dealt with in exactly the same way. The review is by way of rehearing de novo . It follows that the Tribunal must "consider" a valid application for a visa. If the Tribunal is satisfied that the criteria for the grant of that visa are satisfied, it must grant the visa. If the Tribunal is not so satisfied, it must refuse to grant the visa.

The word "consider" is defined in the Oxford English Dictionary , in part, as:

"to view or contemplate attentively...examine…scrutinise...to fix the mind upon…to reflect upon".

It is precisely that obligation which s 414 imposes, albeit indirectly, upon the Tribunal. If the Tribunal fails to discharge that obligation that does not, of itself, give rise to a right of review in this Court. However, if the Tribunal fails to discharge that obligation by reason of any of the grounds set out in s 476(1), there is such a right of review.”

48                  Their Honours continued, at [78];

“... ... ... it seems to us that there is some scope, albeit limited, for the argument that the Tribunal may, in a particular case, have failed to "review" the decision of the Minister. In other words, although we consider the use of the formula "proper, genuine and realistic consideration" to be an unsuitable method of expressing the circumstances in which that contention can be maintained, we accept that there may be some cases where it can properly be said that the Tribunal has not in truth " considered" the application for a visa at all.

It is often dangerous to seek to elucidate a principle by the use of examples, particularly when they are far removed from the facts before the Court. However, were the Tribunal to misconceive the nature of its statutory obligation, as for example by mistakenly believing that it was engaged in appellate review of the Minister´s decision (rather than a rehearing de novo ), it would be difficult to avoid the conclusion that it had failed to " review" the decision, in accordance with the requirements of the Act. Similarly, were the Tribunal to address the wrong question, rather than the question properly before it, there would be a constructive failure to exercise jurisdiction. Again, speaking hypothetically, were the Tribunal merely to pay lip service to its task, as for example by determining an application without reading the material filed before it, it would be difficult to conclude that it had "considered" the application.

These examples are admittedly extreme. However, they serve to illustrate the principle. Where an applicant for review in this Court contends that there has been a failure on the part of the Tribunal to perform its statutory duty, that submission must be shown to fall within an existing ground of review contained in s 476(1). A failure of that type may well fall within the ambit of s 476(1)(e).  The first two of the examples set out above would seem to do so.

The third example is more problematic, though it might be said that the obligation which s 54 of the Act imposes upon the Minister "to have regard to all of the information in the application" is relevantly a " procedure required by the Act to be observed in connection with the making of the decision" for the purpose of s 476(1)(a).  ... ... ...”

49                  Their Honour’s observations in relation to s 414 of the Act apply equally to the functions reposed in the Tribunal by s 348(1) of the Act.  The Tribunal is required to “review” the decision in light of the material before it.  This requires it to “consider” the material placed before it, including all the information placed before the Minister pursuant to ss 54 and 55.  However, it does not follow that in failing to refer specifically to information that was not available to the Minister’s delegate, the Tribunal has failed to comply with a procedure set out in s 54 or s 55 so as to commit a reviewable error under s 476(1)(a).  Part 5 Division 5 of the Act makes provision for the conduct of the review by the Tribunal.  Section 358 enables an applicant for review to give the Tribunal a written statement in relation to any matter of fact that the applicant wishes the Tribunal to consider and to furnish written arguments relating to issues arising in relation to the decision under review.  If the Tribunal seeks additional information from an applicant, it is obliged by s 359 to consider that material.  I am not persuaded that the Tribunal is under any additional obligation by virtue of s 55 of the Act to consider material submitted to it by an applicant, on his or her own initiative, if that information was not before the Minister’s delegate. 

50                  Even if the construction of s 55 which I have just ventured be wrong, I do not consider that, by omitting to refer to the letter from Dr Carse, the Tribunal failed to observe a procedure within the meaning of s 476(1)(a).  Dr Carse’s letter to the Tribunal set out the medical condition of the applicants’ child at the time of the letter.  In it Dr Carse stated that the long term needs of the child were difficult to assess but that her lung function would eventually be normal or near normal.  The letter ended by stating that it would be advantageous for the child to remain in Australia until she was clearly no longer oxygen dependent and had good health and growth for a period of several months. 

51                  At [26] of its reasons, the Tribunal accepted that there was significant evidence demonstrating that the applicants’ child suffered from a prolonged illness.  However, the Tribunal went on to note that for the applicants to be “special need relatives” on the basis of the child’s illness, the child would have to be a member of the nominator’s family for the purposes of reg 1.12.  As stated above, no objection has been made to the Tribunal’s findings that the child and the nominator are not members of the same family unit for the purposes of that regulation.  The question before the Tribunal was whether the first applicant was a “special need relative” of the nominator.  Before it could be said that the Tribunal had failed to “consider” or “review” the application in the sense contended for, the Court would have to be satisfied that the determination was not a real performance of the duty imposed on the Tribunal:  (see R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228, at 242 per Rich, Dixon and McTiernan JJ;  Anthonypillai at [75];   Thirukkumar v Minister for Immigration and Multicultural Affairs [2001] FCA 864).  The letter from Dr Carse was no more than a piece of evidence and it was not necessary for the Tribunal to give a line-by line refutation of the evidence of the applicants.  In any event, the matters contained in the letter were not contrary to any finding of material fact made by the Tribunal.  For these reasons I am satisfied that the Tribunal paid adequate regard to the condition of the child for the purposes of the issues it was required to consider.  Accordingly, I am satisfied that the Tribunal did not make a procedural error within the meaning of s 476(1)(a) of the Act. 

52                  For the same reasons, I do not consider that the absence from the Tribunal’s reasons of specific mention of the letter from Dr Carse affords a ground of review under either s 476(1)(b) or (c).

Conclusion

53                  For the reasons explained above, the applicants have failed to make out any of the errors of law or jurisdictional or procedural grounds remaining in their amended application.  The application must therefore be dismissed with costs.

Associate:

Dated:              13 June 2002