FEDERAL COURT OF AUSTRALIA

Fraser v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1575

MIGRATION – application for review of decision of Migration Review Tribunal – applicant claimed to be “special need relative” of nominator – whether Tribunal misconstrued definition in regulation 1.03 of Migration Regulations 1994 (Cth) – whether Tribunal regarded itself as bound by policy in “Procedures Advice Manual” and failed to have regard to merits of case

Migration Act 1958 (Cth) s 31(1), (3), s 65(1)(a), (b), and Pt 8

Migration Regulations 1994 (Cth) reg 1.03

Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] 2 ALD 634 referred to

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

Braganza v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1542 referred to

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

Narayan v Minister for Immigration and Multicultural Affairs [2001] FCA 1745 followed

ASHLEY FRANCIS FRASER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V787 of 2001

WEINBERG J

19 DECEMBER 2000

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     This is an application under Pt 8 of the Migration Act 1958 (Cth) (“the Act”), prior to its repeal and replacement in October 2001, for review of a decision made by the Migration Review Tribunal (“the MRT”) on 9 July 2001.  The MRT affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs, who is now the Minister for Immigration and Multicultural and Indigenous Affairs (in both cases “the Minister”).  By that decision, made on 20 May 1999, the Minister refused to grant the applicant, Mr Ashley Francis Fraser, a Family (Residence) (Class AO) subclass 806 visa. 

2                     The applicant claimed before the MRT that he was a “special need relative”, within the meaning of that expression in reg 1.03 of the Migration Regulations 1994 (Cth) (“the Regulations”).  He claimed that his brother, Mr Denzil Fraser, who was his nominator for the visa sought, was relevantly in need of his support.  He therefore claimed that he qualified for that visa. 

The Facts

3                     The applicant, a national of India, was born on 10 June 1961.  On 7 December 1996 he entered Australia on a tourist visa which was valid until 7 March 1997.  He was thereafter granted several additional tourist visas, the last of which expired on 7 December 1997. 

4                     On 21 May 1986, the applicant’s brother married in India.  Upon migrating to Australia with his wife and two children in 1991, he suffered marital problems.  He subsequently divorced his wife in September 2000. 

5                     According to the evidence of Dr Edwin Kleynhans, a psychologist, which was adduced before the MRT, the applicant’s brother suffered from “Generalised Anxiety Disorder” owing, in part, to the break up of his marriage, and problems associated with his resettlement in Australia.  Dr Kleynhans prepared two reports, each of which was presented to the MRT. 

6                     In the first report he noted that the applicant and his brother had been close since childhood.  When the brother moved to Australia in 1991, they both became depressed as they missed each other.  The report observed that there had been a slight improvement in the brother’s depression and anxiety levels once the applicant had arrived in Australia.  However, Dr Kleynhans was of the view that the brother’s depression and anxiety would remain with him indefinitely.  The report concluded that the brother would suffer from “a long term psychological disorder” if the applicant were forced to leave Australia. 

7                     In the second report, Dr Kleynhans assessed the brother’s condition as chronic.  However, the MRT noted that much of the second report was based upon the premise that the brother was lonely and still suffering from the break up of his marriage.  After that report had been written, the MRT observed that it:

“… had the benefit of the oral evidence of the nominator who has remarried and appeared to be more animated and looking forward to married life with his new wife.  The nominator is also working in a job he likes, and is on closer terms with his children.”

8                     The applicant claimed, at his hearing before the MRT, that it was his brother’s loneliness and lack of support from other family members which had prompted him to come to this country.  In addition, he claimed that his brother had had difficulty in settling in Australia.  There was evidence at the hearing that the brother’s wife, and her family, were less than supportive of the brother.  There was also evidence that prior to the applicant’s arrival in this country, his brother had maintained contact with him.  They had regularly discussed the brother’s problems because he had few friends in Australia. 

9                     The application for the visa was lodged on 5 December 1997.  At that time, the applicant resided with his brother and his family.  That continued until the brother’s wife asked them both to leave.  The applicant claimed that her reason for doing so was that she was tired of the brother’s depressed condition.  The brother then moved to a house nearby which he occupied with “close family friends” he had known in India.  The applicant assisted his brother with that move.  The applicant himself moved to a different address which was closer to his place of work. 

10                  There was evidence before the MRT that since the applicant’s arrival in Australia in 1997 his brother had returned to India on four occasions.  It was on his most recent visit that he had remarried.  It was noted by the MRT that although the brother’s new wife was still in India, the brother was endeavouring to have her come to Australia.

Legislation

11                  Section 31(1) of the Act provides that there are to be prescribed classes of visas.  Section 31(3) provides that the Regulations may prescribe criteria for a visa, or visas, of a specified class.  Section 65(1)(a) provides that after considering a valid application for a visa, the Minister, if satisfied that the criteria prescribed by the Act, and the Regulations, have been satisfied, is to grant the visa.  Section 65(1)(b) provides that if the Minister is not so satisfied he is to refuse to grant the visa. 

12                  At the time the applicant applied for a Family (Residence) (Class AO) visa the criteria for such a visa were prescribed by the Regulations, schedule 2, subclass 806.  They relevantly provided:

“806.21 Criteria to be satisfied at time of application

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 applicant for the grant of the visa.”

13                  Clause 806.221 provided that the applicant must continue to satisfy the criterion in clause 806.213, as referred to above, at the time of the decision.

14                  The expression “special need relative” was relevantly defined in reg 1.03 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.”

The MRT’s decision

15                  The MRT referred to the reports of Dr Kleynhans, but noted that they had been prepared on the basis of a single interview.  It also noted that Dr Kleynhans had not identified, or recommended, any course of treatment for the applicant’s brother (hereafter referred to as “the nominator”) other than the continued presence of the applicant, and that the nominator seek professional counselling from community services.

16                  The MRT observed that Dr Kleynhans had concluded that the nominator’s illness, described as a “depressive disorder”, had been brought on by a number of factors.  These included his marital difficulties, his problems in settling in this country and the fact that he missed his brother. 

17                  The MRT accepted that at the time the application for a visa was lodged in December 1997, the nominator was suffering from depression.  It also accepted that this was a “prolonged illness” within the meaning of the definition of “special need relative” in reg 1.03.  In other words, it accepted that the applicant satisfied a number of the requirements for a subclass 806 visa as at the date of his original application, although it did not arrive at a final conclusion in relation to that matter.

18                  However, as noted above, clause 806.221 of the Regulations provided that the applicant had to continue to satisfy the criterion in clause 806.213 at the time of the decision.  In this case the time of the decision was 9 July 2001, the date on which the MRT published its reasons.  It was that date which was critical so far as the MRT’s rejection of the applicant’s claim was concerned. 

19                  The evidence which bore specifically upon the nominator’s condition, as at the time of the MRT’s decision, was largely that of the applicant, the nominator and Dr Kleynhans.  As noted earlier, the MRT discounted the second report of Dr Kleynhans because it was prepared without any apparent knowledge on his part of the fact that the nominator had since remarried. 

20                  In addition, the MRT noted that the nominator and the applicant had not resided at the same address since September 1999. 

21                  The MRT relevantly concluded:

“48.  Having regard to the definition of special need relative in the regulations and the policy considerations, on the balance of all the evidence before it, the Tribunal finds that even if it could be accepted that at the time of application the nominator was suffering from a prolonged illness that gave rise to a long term need for substantial and continuing assistance, at the time of this decision, the nominator’s circumstances have improved.  Although he may still suffer from depression, the Tribunal is not satisfied that it gives rise to a long term need for substantial and continuing assistance.  The nominator has settled after his divorce and remarried.  He sees his children frequently and enjoys a good relationship with them.  He has been in the same employment for eight years and likes his job.  He shares a flat with a close family friend, known from India.

49.  Moreover at the time of this decision the visa applicant lives separately from the nominator and works full time.  Although the Tribunal accepts the evidence that the visa applicant and nominator enjoy a close sibling relationship and bond, and that the visa applicant did at the time of application, and does at the time of decision provide some emotional and financial support, the Tribunal finds that the support that is provided is not substantial and continuing within the intention and scope of the definition and guidelines.  Such assistance as the visa applicant does give is in the nature of normal family support and companionship.  Emotional support may now also be given by the nominator’s new wife who will also provide physical companionship once they are living together. 

50.  For these reasons the Tribunal finds that the circumstances of the nominator and the visa applicant have changed since the application, and the Tribunal is not satisfied that, at the time of this decision, the visa applicant meets the definition of “special need relative” as set out in regulation 1.03.”

The applicant’s submissions

22                  It was common ground between the parties that the application to this Court, having been filed on 3 August 2001, was governed by the former Pt 8 of the Act rather than the new Pt 8 which was introduced by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).

23                  At the hearing of this proceeding, counsel for the applicant indicated that he would only press two contentions in support of the application for an order of review.  These contentions bore little resemblance to the grounds set out in the application, but were developed in the written submissions.  In any event, no objection was taken by counsel for the respondent.

24                  The first contention pressed on behalf of the applicant was that the MRT had interpreted the statutory definition of “special need relative” by reference to “policy considerations”.  This was a reference to par [48] of the MRT’s reasons for decision where it referred to the definition of “special need relative in the regulations and the policy considerations” before proceeding to consider the evidence before it.  It was also a reference to par [49] where the MRT found that the support that was provided was not substantial and continuing “within the intention and scope of the definition and guidelines”. 

25                  The applicant submitted that the MRT must have been referring to the provisions of the “Procedures Advice Manual 3”, to which it had referred in par [5] of its reasons for decision when it made these comments.  That submission seems to be correct, given that the MRT, in par [3] observed that:

“Some matters may be the subject of Departmental policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSI’s), produced by the Department of Immigration and Multicultural Affairs (DIMA).  The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.”

26                  In particular, it was submitted that the MRT had an impermissible regard in its reasons at par [35] to a specific aspect of policy, that separation from loved ones, and homesickness, were not “on their own” a basis for the grant of a “special need relative” visa. 

27                  It was submitted that the MRT was required to consider the statutory definition of the expression, as set out in reg 1.03, and nothing else.  It was further submitted that the MRT had erred in making findings of fact according to policy guidelines, rather than the evidence before it.  This was said to constitute an error of law within s 476(1)(e) of the Act.  It was also said that the decision involved an improper exercise of the power conferred by the Act, or the Regulations, in contravention of s 476(1)(d) and s 476(3)(c) of the Act because the MRT had determined the application in accordance with a rule, or policy, without regard to the merits of the particular case. 

28                  The second contention was that the MRT had erred in its application of the definition of the expression “special need relative”.  The error was said to emerge from a careful reading of pars [48] and [49] of the reasons for decision.  It was submitted that the MRT had found that the applicant was a “special need relative” at the time of the application, but had determined that the circumstances of the nominator had changed by the time the decision came to be made.  The MRT had concluded that the applicant did not meet the definition, as set out in reg 1.03, as at the date of the decision, and that this was entirely the product of confusion on its part when it “brought the various elements” of the definition together. 

29                  The argument that was advanced in the written submissions, and developed orally, was by no means easy to follow.  However, it seems that what was being argued was that there was an inconsistency of some sort between the finding that the applicant was a “special need relative” at the time of the application, and the finding that he had ceased to be a “special need relative” by the time the decision came to be made.  The inconsistency was said to arise from the fact that although the MRT accepted that the nominator “may still suffer from depression” it was not satisfied that this gave rise to a “long term need for substantial and continuing assistance”.  The submission, in effect, was that the MRT had moved the requirement of “special and continuing assistance” from the chapeau of the definition to par (a).  In addition, it was submitted that in construing par (a) the MRT had erred by having regard to “alternative sources of assistance” which was dealt with separately in par (b).

30                  The error was said to have been “reversed” in par [49] where the MRT considered possible alternative sources of assistance.  Here it was assumed that the nominator had a “need” for support, but determined that the support offered by the applicant was not “substantial and continuing”.  It was submitted that the MRT erred in determining whether or not the nature or quality of that support met that description by reference to support that might come from other sources.

31                  The second contention appeared to proceed on the assumption that the MRT had somehow erroneously conflated the various elements contained in the definition of  “special need relative” in reg 1.03.

The respondent’s submissions

32                  In response to the applicant’s first submission, it was submitted on behalf of the respondent that the MRT had been entitled to refer to, and rely upon, policy.  Counsel for the respondent referred to the decision of Brennan J in Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] 2 ALD 634, where his Honour stated at 645 that the Tribunal should adopt “a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary”.  The respondent noted that this language was similar to that adopted by the MRT in par [3] of its reasons to which reference has already been made.  

33                  In response to the applicant’s second submission, it was submitted that the MRT had not erred in characterising the level of assistance necessary to sustain a claim of being a “special need relative” as one of a “substantial and continuing” nature.

34                  Further, it was submitted that, contrary to the applicant’s submission, “no specific reliance was placed on paragraph (b)” of the definition.  It was submitted that, while the MRT may have found that the nominator had suffered from depression, and continued to do so, it was still open for it to find that no “long term assistance” was required.  Therefore, so it was submitted, an attempt to argue that the MRT had erred by incorporating some aspects of par (b) into par (a) was misconceived.  The MRT had not relied upon par (b) in rejecting the application.

Conclusion

35                  There is no substance in the first submission advanced on behalf of the applicant.  That submission would require the conclusion that the MRT was not entitled to have regard to policy at all when considering whether or not the applicant met the statutory definition of “special need relative”. 

36                  In Narayan v Minister for Immigration and Multicultural Affairs [2001] FCA 789 Sackville J dealt with an argument that was, in some respects, not dissimilar to that advanced on behalf of the applicant in the present case.  His Honour concluded at pars [53] and [54]:

“53  The applicants’ … complaint was that the MRT had regarded itself as bound by the policy in the Procedures Advice Manual and had failed to have regard to the merits of the case. …

54  Leaving aside the “discretionary powers” point, the applicants’ submission encounters the difficulty that the MRT addressed the significance of the Procedures Advice Manual … that it was “required to have regard to policy and apply it unless there are cogent reasons for departing from policy.”  Although the MRT did not cite authority for that proposition, its language was in fact drawn from the judgment of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, at 645.  … While the proposition stated by the MRT is stated as a matter of course in many MRT decisions, its recitation shows that the MRT was aware that it could depart from policy if there were cogent reasons for doing so.” (emphasis added)

37                  Although it was implicitly suggested by counsel for the applicant in the present case that the MRT had blindly applied the policy set out at par [35] of its reasons for decision without giving proper consideration to the evidence before it, there is no basis for that submission.  It is clear from the reasons given by the MRT that it gave the most careful consideration to the position of the applicant, and the nominator, before applying the policy.  In effect, the policy was applied in conjunction with the definition contained in reg 1.03, as it ought to have been: Braganza v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1542 at pars [54] to [64] per Jacobson J. 

38                  The MRT stated at par [3], as noted above, that it would have regard to the policy, and apply it, unless there were cogent reasons for departing from it.  It seems clear that the MRT must have had in mind the observations of Brennan J in Re Drake when it stated that principle.  There is nothing to suggest that it did not accord the policy its proper weight.  Manifestly, it did not apply the policy blindly, and in the face of evidence which suggested a contrary conclusion.  If there were cogent reasons to depart from that policy, they were not apparent to the MRT.  I must confess that they are equally not apparent to me. 

39                  The applicant’s second submission seems to me to be equally without merit.  The MRT properly considered the element of “substantial and continuing assistance”, as applicable to a proper construction of par (a).  Although, these words are contained in the chapeau, and not in par (a) itself, they are nevertheless applicable to a proper interpretation of par (a), and indeed par (b) as well. 

40                  It is important to noted that a Full Court of this Court in Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39 said at par [41]:

“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.”

41                  Similarly, a Full Court in Narayan v Minister for Immigration and Multicultural Affairs [2001] FCA 1745, in a joint judgment of Lindgren, Tamberlin and Merkel JJ, said at par [39] that the “opening paragraph and par (a) of the definition are closely related”.  Their Honours went on to say at par [40] that:

“We agree with the primary Judge’s observation (at [39]) that the definition of “special need relative” is “framed a little awkwardly”.  Perhaps some of the awkwardness is removed if the opening paragraph in par (a) are read purposively and as a whole.  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 need will be able to be met by nothing less than “substantial assistance”.”

42                  The MRT, in this case, went through each element of the definition contained in reg 1.03.  It asked itself a series of questions, each of which was directed towards resolving whether the applicant met the criteria contained within that definition.  For example, the MRT asked itself:

·                    Is there a death, disability, prolonged illness or other serious circumstance affecting the Australian citizen (the nominator)? at par [34]

·                    What is the need for assistance? at par [37]

·                    Is the need long term or permanent? at par [41]

·                    Is the need for assistance because of the death, disability, prolonged illness or other serious circumstances affecting the Australian citizen? at par [42]

·                    Whether the assistance cannot reasonably be obtained from another relative or welfare, hospital, nursing or community services? at par [45]

43                  The first four questions were all directed towards the requirements of par (a).  The fifth question was directed towards the requirements of par (b).  There was no conflation, of an impermissible kind, between the requirements of par (b) and the requirements of par (a).

44                  The applicant failed in his claim simply because the MRT concluded, as it was entitled to do, that the evidence no longer disclosed a need for substantial and continuing assistance to the nominator, having regard to his changed circumstances.  There was a supplementary conclusion at par [49] of the MRT’s reasons which might be regarded as falling within par (b), namely that the support that the applicant was providing was not “substantial and continuing”, and that there were alternative sources of support available.  However, the requirements of pars (a) and (b) are cumulative.  The finding in relation to par (a) was of itself dispositive. 

45                  For the reasons set out above the application for review must be dismissed.  The applicant must pay the respondent’s costs.

Associate:

Dated:              19 December 2002