FEDERAL COURT OF AUSTRALIA

Aslaner v Minister for Immigration & Multicultural Affairs [2003] FCA 505

MIGRATION – family visa – special need relative – criteria to be satisfied at time of application and at time of decision – whether applicant willing and able to provide substantial and continuing assistance to nominator – Migration Review Tribunal found not satisfied at time of application – whether tribunal erred in relying on evidence of facts subsequent to application – whether tribunal failed to have regard to evidence – whether tribunal bound to consider if criteria to be satisfied at time of decision were satisfied – finding that it had not been shown that any assistance required was not available from sources other than applicant  – whether failure to make specific finding that applicant willing and able to provide substantial and continuing assistance invalidated decision – whether tribunal misinterpreted substantial assistance – whether tribunal applied wrong standard of proof

Migration Regulations 1994 (Cth) reg 1.03, item 806, Sch 2

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 (2003) 195 ALR 1 cited

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 195 ALR 24 cited

Narayan v Minister for Immigration & Multicultural Affairs [2001] FCA 1745 referred to

OZGUL ASLANER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 217 of 2002

GRAY J

22 MAY 2003

MELBOURNE

THE COURT ORDERS THAT:

1.         The application be dismissed.

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

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

REASONS FOR JUDGMENT

1                     In this proceeding, the applicant seeks to have the Court set aside a decision of the Migration Review Tribunal (“the Tribunal”).  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs) (in both cases, “the Minister”), finding that the applicant was not entitled to the grant of a Family (Residence) (Class AO) visa, subclass 806. 

2                     The applicant is a citizen of Turkey.  She entered Australia on 20 August 1998, as the holder of a visa entitling her to stay for three months.  On 20 November 1998, she applied for the visa the subject of this proceeding.  On 27 February 2001, the delegate of the Minister made a decision refusing to grant the visa.  The applicant then sought review by the Tribunal.  On 26 February 2002, the Tribunal conducted a hearing in which the applicant participated and at which she gave evidence.  The applicant’s sister, Meryem Sahin also gave evidence.  On 20 March 2002, the Tribunal published its decision and its written reasons for decision.  It affirmed the decision of the delegate of the Minister.  It is that decision of the Tribunal that is the subject of this proceeding.  The applicant invoked the jurisdiction given to the Court by s 39B of the Judiciary Act 1903 (Cth).  By her amended application, filed on 2 September 2002, she sought a declaration that the Tribunal’s decision is invalid in law, an order setting aside the decision of the Tribunal, an injunction restraining the Minister from giving effect to the Tribunal’s decision and an order directing the Tribunal to rehear and redetermine the application according to law.

The legislation

3                     At the time when the applicant applied for a Family (Residence) (Class AO) visa, subclass 806, the criteria for a visa of that kind were found in item 806 in Sch 2 to the Migration Regulations 1994 (Cth) (“the Migration Regulations”), made pursuant to the Migration Act 1958 (Cth) (“the Migration Act”).  By cl 806.213, a criterion to be satisfied at the time of the application for the visa was that the applicant be a “special need relative” of another person who had nominated the applicant for the grant of the visa.  By cl 806.221, the applicant was required to continue to satisfy the criterion in cl 806.213 at the time of decision. 

4                     The term “special need relative” was defined in reg 1.03 of the Migration Regulations as follows:

“‘special need relative’

in relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or an eligible New Zealand citizen, means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:

(a)       the citizen or resident has a permanent or long-term need for
            assistance because of death, disability, prolonged illness or other
            serious circumstances affecting the citizen or resident personally, or
            a member of his or her family unit; and

(b)       the assistance cannot reasonably be obtained from:

            (i)         any other relative of the citizen or resident, being a relative
                        who is an Australian citizen, an Australian permanent resident
                        or an eligible New Zealand citizen; or

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

The applicant’s case before the Tribunal

5                     The application was made on the basis that the applicant was a special need relative of her sister, Ms Sahin.  With her original visa application, the applicant had provided information, including medical opinion, that Ms Sahin suffered from depression.  With her application for review by the Tribunal, the applicant submitted a report from a psychologist, containing an assessment that Ms Sahin had become wholly dependent on others to assist her emotionally and physically.  Ms Sahin’s children had also become dependent on the applicant for their care.  Medical evidence was also supplied, including a letter from Dr Chaudhary, a psychiatrist, dated 16 May 2001, advising that Ms Sahin was suffering from severe depression, anxiety disorder, personality disorder and tension headaches.  Dr Chaudhary expressed the view that Ms Sahin would need some assistance from the applicant.  Other medical evidence, confirming Ms Sahin’s condition in March and November 2001, was also supplied.  As I have said, at the hearing it conducted, the Tribunal heard oral evidence from the applicant and from Ms Sahin.

The Tribunal’s reasons

6                     After a brief discussion of the medical evidence, the Tribunal said:

“The Tribunal is satisfied that the nominator has a prolonged illness.”

7                     The Tribunal then discussed the issue of substantial and continuing assistance.  The Tribunal said:

“The visa applicant has stated that she is providing care to the nominator.  The advice from Dr Chaudhary in May 2001 is that the nominator needs some assistance but this statement is not definitive and does not seem to equate [to] substantial assistance.  A later letter from Dr Chaudhary in November 2001 continued to use the term ‘some assistance’, even although [sic] he thought it was in the best interests of the nominator to have her sister.  The visa applicant has stated she does cooking, cleaning and domestic tasks as well as care for the children.  While [sic] she states that 24 hour care is required and that the nominator is incapable of looking after herself.  The visa applicant has provided details as to the level of care she does provide to the nominator.  While both the visa applicant and nominator speak of the inability of the nominator to help herself, and the need for 24-hour assistance, other evidence does not corroborate this.  The Turkish Association states it is unable to provide 24-hour assistance, but does not provide evidence that 24-hour assistance is required.  Dr Chaudhary’s letter of 7 November 2001, speaks of assistance from the sister being conducive to her health and providing on going [sic] support, which is not in the view of the Tribunal sufficient to equate with substantial assistance as required under regulation 1.03”.

8                     The Tribunal then discussed whether the assistance required could reasonably be obtained from another relative or welfare, hospital, nursing or community services.  It found that, despite evidence that Ms Sahin’s husband, the father of her children, was on drugs and wanted no responsibility for the children, there was no other evidence that he was unable or unwilling to assist the children.  The Tribunal held that the Turkish Association, while being unable to provide twenty-four hour assistance, could provide assistance, especially with language, and Ms Sahin had already made use of community resources.  The Tribunal said that no evidence was presented, aside from problems with language, that community services were unavailable for Ms Sahin or unsuitable for her condition.  It pointed out that a great part of the needs of Ms Sahin were for childcare, for which there was community provision available.  The Tribunal was unable to find that there was sufficient evidence of a need for twenty-four hour assistance.  It found that the requirement of par (b) of the definition of “special need relative” in reg 1.03 was not satisfied.

9                     The Tribunal then said:

“Having decided that the 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.”

The applicant’s case in the Court

10                  The grounds on which the amended application was made were set out in an affidavit filed at the same time as the amended application.  They can be summarised as follows:

·        The Tribunal failed to consider the evidence when it expressed the view that Dr Chaudhary’s opinion, that assistance from the applicant was conducive to the health and the provision of ongoing support for Ms Sahin, was not sufficient to equate with substantial assistance as required under reg 1.03. 

·        The Tribunal used the report dated 2001 to consider a situation in 1998. 

·        The Tribunal ignored relevant material, being the applicant’s evidence and Ms Sahin’s evidence and relied upon irrelevant material.

·        The decision was not in accordance with law in that, having found that the applicant was not a special need relative at the time of the application, the Tribunal determined that it was not necessary to consider whether the applicant was a special need relative at the time of the decision. 

·        The Tribunal wrongly equated substantial and continuing assistance with twenty-four hour assistance.

·        The finding of the Tribunal that it was not satisfied that assistance could not reasonably be obtained from either the father of Ms Sahin’s children or from welfare or community services available was wrong in law.

11                  At the hearing of the application, the solicitor who appeared on behalf of the applicant relied only on the first two points. 

12                  After the hearing, the High Court of Australia delivered judgments in two important cases concerning the effect of the privative clause in s 474 of the Migration Act.  See Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 (2003) 195 ALR 1 and Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 195 ALR 24.  The Court invited the parties to make further submissions in writing as to the effect of those judgments in the present case.  In written submissions filed on 27 February 2003, the solicitor for the applicant made the following points:

·        In separating the criteria to be met at the time of application and at the time of decision, finding that the applicant did not meet the criteria at the time of application and saying that it was not necessary for the Tribunal to consider whether the applicant met the criteria at the time of decision, the Tribunal misunderstood and misconceived its duties in that the definition of a special need relative required a continuing inability on the part of the nominator and a continuing willingness on the part of the applicant to provide ongoing assistance. 

·        In finding that it was satisfied that Ms Sahin had a prolonged illness at the time of application, the Tribunal relied on evidence much later in point of time to reach that conclusion.

·        There did not appear to be a finding by the Tribunal that the applicant was willing and able to provide assistance, and an assessment of what was “substantial assistance” at the time of application.  This finding was crucial to the Tribunal’s discharge of its statutory functions.

·        In finding that much of the needs of Ms Sahin were for childcare, for which there was community provision available, the Tribunal failed to apply itself to the question to be decided in relation to the prolonged illness of Ms Sahin. 

·        The Tribunal failed to interpret the meaning of “substantial assistance” and dealt only with whether there was evidence of sufficient need for twenty-four hour assistance.  The Tribunal misunderstood its role in relation to the assessment of evidence.  Although the proceedings were non-adversarial and the Tribunal was not bound by the rules of evidence, it considered the evidence from the aspect of proof beyond reasonable doubt when it dealt with allegations of illegal conduct on the part of Ms Sahin’s husband.  In so doing, the Tribunal did not act in accordance with s 353 of the Migration Act.

13                  Although some of the points made in the written submissions were new points, in the sense that they had not been raised at the hearing, I nonetheless consider them in determining the case. 

The correctness of the Tribunal’s approach

14                  There is no doubt that, in order to grant the applicant the visa she sought, the Tribunal had to be satisfied that the applicant met all of the criteria for that visa.  Section 65 of the Migration Act provides that the visa must be granted if the decision-maker is satisfied that various matters have been satisfied, including the criteria for the particular visa prescribed by the Migration Act or the Migration Regulations.  If not so satisfied, the decision-maker is bound to refuse to grant the visa. 

15                  As I have said, item 806 in the Second Schedule to the Migration Regulations contained criteria to be satisfied at the time of application and criteria to be satisfied at the time of decision.  Both kinds of criteria had to be satisfied in order for the visa to be granted.  Accordingly, if the Tribunal found that any one of the criteria to be satisfied had not been satisfied, it was bound not to grant the visa, but to affirm the decision of the delegate of the Minister to refuse to grant the visa.  In this case, the Tribunal did so find. 

16                  The Tribunal’s reasoning is not easy to follow, perhaps because it is expressed poorly.  Dealing with the question whether Ms Sahin had a prolonged illness, the Tribunal considered medical evidence submitted after the making of the application and pronounced its satisfaction in the present tense as to the existence of a prolonged illness.

17                  The manner in which the Tribunal dealt with the second question, whether the applicant was willing and able to provide substantial and continuing assistance to Ms Sahin, was unclear.  In the passage in its reasons for decision, quoted in [7] above, the Tribunal analysed the evidence for the purpose of determining whether Ms Sahin had a need for substantial and continuing assistance.  It appears to have taken the view that Ms Sahin’s need for assistance was not such as to require assistance at a level falling within the meaning of “substantial ... assistance” for the purposes of reg 1.03.  The Tribunal did not express a conclusion on this point, but went on to discuss in some detail Narayan v Minister for Immigration & Multicultural Affairs [2001] FCA 1745, before dealing with the next issue.

18                  In dealing with the third issue, whether the assistance could reasonably be obtained from another relative or other services, the Tribunal again looked at evidence of matters that had occurred after the making of the application.  It expressed itself in the present tense as to whether assistance could not reasonably be obtained from either the father of Ms Sahin’s children, or from welfare or community services available.

19                  The Tribunal then expressed its conclusion as to the failure of the applicant to satisfy the definition of “special need relative” at the time of the application.  It did so by saying:

“The Tribunal finds on the evidence available to it that 1.03(b) is not satisfied, that assistance cannot reasonably be obtained from either the father of the nominator, or from welfare or community services available.”

Because of the opening words of this sentence, I am prepared to act on the assumption that the Tribunal was reaching a conclusion adverse to the applicant on the question of the application of that part of the definition of “special need relative” appearing in reg 1.03(b).  The words following “satisfied” appear to be a clumsy attempt to express a finding that the applicant had failed to show, in the words of the regulation, that “the assistance cannot reasonably be obtained from” the sources to which the Tribunal referred.  I also assume that the reference to “the father of the nominator” is a reference to the father of Ms Sahin’s children, not to Ms Sahin’s father, of whom no mention had been made.

20                  Those who invoke the powers of the Tribunal to review decisions of delegates of the Minister unfavourable to them are entitled to expect greater clarity in the Tribunal’s written reasons than is to be found in the present case.  Despite the lack of clarity of the Tribunal’s reasoning and the inadequacies of its expression, however, it cannot be said that the Tribunal fell into error of a kind going to jurisdiction.  This was not a case in which the material before the Tribunal suggested that Ms Sahin’s condition had improved between the time when the applicant applied for her visa and the time of the Tribunal’s consideration.  There is nothing illegitimate about the Tribunal relying on evidence of subsequent events to the extent to which they cast light on the facts as they existed at a particular time.  The Tribunal’s survey of the subsequent evidence could only have been of benefit to the applicant, and not to her detriment.  The evidence she provided at the time of the application for a visa was minimal.  If the Tribunal had been able to find among the other evidence material that supported the proposition that the applicant satisfied the definition of “special need relative” at the time of application, the applicant would have been assisted.  The Tribunal was unable to find sufficient material.

21                  The contention that the Tribunal failed to consider the evidence is not made out.  Indeed, the Tribunal gave considerable attention to the evidence, not only of the applicant as to what she did for Ms Sahin and of Ms Sahin as to her condition and needs, but also to each of the documents submitted.  Apparently, the Tribunal was not persuaded that Ms Sahin’s condition was sufficiently serious to require a level of assistance from the applicant that could be described as “substantial” for the purposes of the definition of “special need relative”.  On the evidence, it was open to the Tribunal to reach that conclusion.  Likewise, it was open to the Tribunal to reach the conclusion that the kind of assistance required by Ms Sahin was assistance available from persons other than the applicant.  It was obviously significant, in the view of the Tribunal, that much of the assistance given by the applicant was in looking after Ms Sahin’s children.  It was open to the Tribunal not to be satisfied that the possibility that their father would care for the children had been excluded and that community services were unavailable or unsuitable for Ms Sahin.  The Tribunal was not shown to have ignored any relevant material.

22                  The Tribunal made no error in deciding that it was unnecessary for it to consider whether the applicant satisfied the definition of “special need relative” at the time of the Tribunal’s decision.  As I have said, it was necessary that all the criteria be satisfied.  A failure to satisfy a criterion applicable to the time of application was sufficient to disqualify the applicant from entitlement to the visa and the Tribunal made no error in declining to consider the case further when it had reached this view.

23                  Given the Tribunal’s finding that it had not been shown that any assistance required by Ms Sahin was not available from sources other than the applicant, its failure to make a specific finding as to whether the applicant was willing and able to provide substantial and continuing assistance is not fatal to the validity of its decision.  If the applicant did not come within one element of the definition of “special need relative”, she did not come within the definition.

24                  The contention that the Tribunal failed to apply itself to the question to be decided, or to interpret the meaning of substantial assistance cannot be sustained.  The Tribunal did not equate substantial assistance with twenty-four hour assistance when it made its finding that there was not sufficient evidence of a need for twenty-four hour assistance.  It was merely responding to the Turkish Association’s statement that it could not provide twenty-four hour assistance by saying that it was unable to find that there was sufficient evidence of a need for twenty-four hour assistance. 

25                  The late submission as to the Tribunal considering the evidence from the aspect of proof beyond reasonable doubt requires some explanation.  No reference to any such standard of proof appears in the Tribunal’s reasons.  An examination of the transcript of the hearing before the Tribunal discloses that the Tribunal member questioned both the applicant and Ms Sahin about whether Ms Sahin’s former husband took any interest in the children.  Late in the hearing, when the solicitor assisting the applicant was making submissions to the Tribunal, the Tribunal raised the question of the responsibility of the children’s father.  The transcript records the interpreter interrupting the exchange and saying, with respect to the father, “he is a drug user and he uses you know, guns and weapons ...”.  The Tribunal pointed out that there was no evidence of that and suggested that it was not possible to accuse someone of being a drug user and criminal without some evidence.  The interpreter responded, “I couldn’t possibly get evidence for that anyway.”  It was not clear whose evidence the interpreter was interpreting.  The exchange continued in a manner that made it clear that the interpreter had at least begun to interpret evidence given by Ms Sahin.  She then explained that she had
found out that her husband was using drugs six months after she had married him, that he was taking tablets and marijuana, and that he had an old pistol that perhaps was not working.

26                  In its reasons for decision, the Tribunal referred to the fact that Ms Sahin had stated that her husband, the father of the children, was on drugs and wanted no responsibility for the children, but pointed out that there was no other evidence that he was unable or unwilling to assist them.  There is no evidence at any stage that the Tribunal required proof of anything to a standard of beyond reasonable doubt.  The Tribunal member’s initial reaction to the attempt to give evidence about drugs and weapons may have been ill-considered, but the Tribunal member appears to have reconsidered the situation and to have been content to receive the evidence from Ms Sahin.  As I have said, it made a finding as to what was said.  The finding does not reveal whether the Tribunal accepted the evidence.  It merely referred to the evidence in the context of its finding of the absence of comprehensive evidence about the father’s availability and willingness to assist his children.  The submission that the Tribunal applied a strict standard of proof cannot be sustained. 

Conclusion

27                  It follows from what I have said that the applicant has failed to establish any error on the part of the Tribunal affecting the result of the applicant’s application.  It was open to the Tribunal to find as it did that it was not satisfied that the applicant fell within the definition of “special need relative” with respect to Ms Sahin at the date when her application for a visa was made.  Once the Tribunal was not satisfied as to that criterion, it was bound not to grant the visa.  There is therefore no occasion to consider whether any error the Tribunal may have made, in failing to make a clear finding on the issue of the applicant’s willingness and ability to provide substantial and continuing assistance to Ms Sahin, was a jurisdictional error.  The result did not depend upon the failure to make such a finding.  It depended upon the Tribunal’s positive finding that it was not satisfied that the assistance required by Ms Sahin was not available from other sources.

28                  For these reasons, it is necessary to dismiss the application.  In accordance with the usual rule that costs follow the event, the applicant should be ordered to pay the respondent’s costs of the proceeding.

Associate:

Dated:              22 May 2003