FEDERAL COURT OF AUSTRALIA

Truong v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1035

MIGRATION – judicial review – application for review of decision by Migration Review Tribunal – applicant claimed to be “special need relative” of nominator – criteria for visa to be considered both at time application made and at time of decision – Tribunal found that nominator not in need of permanent or long-term assistance at time of application – Tribunal also found that assistance could reasonably be obtained from another – finding of fact lacked cogency – no ground of judicial review made out

Migration Act 1958 (Cth) ss 31(1), 65(1)(a) & (b)

Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39 at 46 referred to

Azzi v Minister for Immigration and Multicultural Affairs (2002) 120 FCR 48 at 90 referred to

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

Minister for Immigration and Multicultural Affairs v Epeabaka (1998) 84 FCR 411 referred to

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 referred to

NAMM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 32 referred to

Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59 at 71, and 89-90 referred to

TAN THI PHUONG TRUONG and CONG MIN PHAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V433 of 2002

WEINBERG J

30 SEPTEMBER 2003

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicants 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 for review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 14 June 2002.  By that decision, the Tribunal affirmed a refusal by a delegate of the respondent to grant a Family (Residence) (Class AO) visa.  The application for that visa was made on 16 October 1997. 

2                     The first applicant, Ms Tan Thi Phuong Troung (hereafter referred to as the “applicant” for convenience), brought the primary application, on her own behalf and that of the second applicant, her husband.  She was born on 22 December 1949, and is a national of Vietnam.  On 22 July 1997, she entered Australia on a Short Stay (Visitor) (Class TR) subclass 676 visa.  That visa was valid until 22 October 1997. 

3                     The applicant claimed before the Tribunal that she was a “special need relative”, within the meaning of that expression in reg 1.03 of the Migration Regulations 1994 (Cth) (“the Regulations”).  She claimed that her mother, Ms Thi Nguyet Le, the nominator, was relevantly in need of her support.  This was because the nominator’s husband, her primary care giver, had died on 5 October 1997.  Since that date the nominator had suffered from emotional trauma, and various medical conditions. 

Legislation

4                     Section 31(1) of the Migration Act 1958 (Cth) provides that there are to be prescribed classes of visas.  Section 31(3) provides that the Regulations may prescribe criteria for a visa, 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. 

5                     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.”

6                     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.

7                     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.”

Tribunal decision

8                     The applicant claimed before the Tribunal that the nominator suffered from depression and diabetes.  Evidence was led from a medical practitioner which certified that the nominator suffered from diabetes, osteoporosis, gastritis and debility.  The applicant contended that the nominator was reliant upon her, as she was weak and frail.  She claimed that she provided the nominator with emotional support, assistance with domestic chores, and supervision of medication. 

9                     In a statutory declaration filed with the Tribunal, the nominator declared that she had suffered from severe depression since the death of her husband to whom she had been married for 50 years.  She said that she had a close relationship with the applicant.  She described the applicant as her “favourite daughter”.  The nominator also indicated that her three other children in Australia could not provide her with support as they had other work and family commitments. 

10                  The Tribunal noted that the applicant had left Australia on four occasions after she lodged her application.  Her mother accompanied her on two of those trips, though, in the case of the first trip, her mother returned to Australia, on her own, approximately one month before the applicant did.  The applicant’s departures and returns were:

·                     1 January 1998 to 29 March 1998;

·                     5 September 1998 to 9 October 1998;

·                     15 February 1999 to 9 March 1999; and

·                     20 June 2000 to 21 July 2000.

11                  The Tribunal then stated:

“It is, in the Tribunal’s view, inconsistent with the stated severity of the nominator’s condition at the date of application and inconsistent with her claim that the only person who can assist her (at that time) is the visa applicant, that some months later, both the visa applicant and the nominator were capable of travel without each other. … The medical reports … indicate that the nominator at the time of application, required intermittent assistance.  The visa applicant initially came to visit her parents and during that visit her father passed away.  She then stayed on to comfort her mother and to be with her during her grief.  The Tribunal accepts that the nominator became understandably depressed after the death of her husband and needed comforting during her grief.  The above matters indicate to the Tribunal that although the nominator had some physical conditions and emotional difficulties including depression because of her husband’s death, at the time of application, they were not such that there was a permanent or long term need for assistance as the result of death, disability, prolonged illness or serious consideration.” (emphasis added)

12                  The Tribunal then went on to recognise that, at the time of the decision, “the nominator’s needs [had] changed and that … she [suffered] a prolonged illness … requiring permanent or long term need for assistance”. 

13                  The Tribunal also accepted that both at the time of application, and at the time of decision, the applicant was willing to provide “substantial and continuing assistance” to the nominator, although it observed that the “reasons for providing it were mixed …”. 

14                  The Tribunal then considered whether the assistance could not reasonably be obtained from another relative or welfare, hospital, nursing or community services.  The Tribunal first considered whether another relative was available to provide the requisite care.  It observed that the nominator’s other daughter, Dung, had cared for her prior to the applicant’s arrival in Australia in 1997.  It observed that on occasion, when the applicant was absent, Dung cared for the nominator.  It also observed that the nominator’s son and his wife lived in close proximity.  It found:

“… on the basis of the oral evidence at the hearing, that at the time of application, the nominator had other relatives namely her daughter Dung and to a lesser extent her son Luyen or a combination of them …, from whom the assistance she needed could reasonably have been obtained …”

15                  The Tribunal then considered whether assistance could be provided by “external organisations”.  It observed that, at the time of the application, there was no evidence that inquiries had been made of Australian or Vietnamese organisations that could provide her with assistance.  Further, it observed that there was no evidence that the nominator, at the time of application, could not attend to her personal hygiene. 

16                  The Tribunal noted the applicant’s claim that she and her daughter had tried, unsuccessfully, to arrange an aged care assessment for her mother.  It also noted that a doctor, on behalf of the nominator, had also failed to arrange an assessment with both the Sunshine Hospital Metropolitan Regional Aged Care Assessment Services and the Commonwealth Care Link Centre.  The Tribunal observed that the reasons given by the applicant for the failure to obtain an assessment – namely that requests for such assessments are ordinarily refused where they are done for migration purposes – were “erroneous”.  It observed that the nominator, as an Australian citizen, had a right to such an assessment and any refusal by the care provider would have been made upon a “misapprehension” on its part. 

17                  The Tribunal concluded that it was unable to find that, at the date of application, assistance could not reasonably be obtained from another relative, or welfare, hospital, nursing or community service.

18                  It should be noted that the applicant’s daughter withdrew her application for a “special need relative” visa before the Tribunal, and, with leave of the Court, was removed as an applicant to this proceeding. 

19                  Finally, the Tribunal concluded:

“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 visa applicant is a ‘special need relative’ at the time of the Tribunal’s decision.”

Submissions

20                  Mr Gilbert, on behalf of the applicants, submitted that the Tribunal had misconceived the test to be applied as at the date of application in a number of ways.

21                  He contended that the Tribunal had identified the wrong issue, asked itself the wrong question, and took into account irrelevant considerations.  It is convenient to set out the submissions of the parties under the following headings.

Permanent or long-term need for assistance

22                  Mr Gilbert submitted that the Tribunal misunderstood the nature of the test contained in reg 1.03.  He submitted that the Tribunal found that the applicant’s mother did not have the requisite need for assistance primarily because she was able to travel overseas some months after the application was made.  That approach was erroneous.  The test was not one which required “sedentary local presence or confinement”.  Although the Tribunal was required to assess whether, at the time of application, and at the time of decision, the applicant was prepared to provide “continuing and substantial assistance”, as well as whether the nominator had a permanent or long-term need for such assistance, an element of “prospection” [sic] was still required in that analysis: Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39 at 46.  In other words, the Tribunal should have had regard to what occurred after 16 October 1997 when determining what the nominator’s condition was at that date.  Plainly, consideration of the future arose because of the reference to “permanent or long-term” in the definition.

23                  In the alternative, it was submitted that the Tribunal erred in having regard to the nominator’s travel overseas when considering whether she was in need of assistance at the time of application.  There were two reasons for this.  The first was that her ability to travel on her own was irrelevant given that it took place some months after the time of application.  The second was that her capacity to travel independently of her daughter did not lead to the conclusion that she was not relevantly in need of assistance.

24                  The applicant’s counsel also submitted that the Tribunal failed to consider separately the question whether the death of the nominator’s husband created the need for permanent or long-term assistance, independent of her ill health.  Further, the nominator’s travel overseas did not answer such a claim, and indeed was irrelevant to that question. 

25                  Ms Moore, on behalf of the respondent, submitted that the Tribunal committed no error of any kind in concluding that the applicant had failed to establish that her mother had a permanent or long-term need for assistance as at the date of the visa application.  The applicant’s criticisms of the Tribunal’s reasons involved nothing more than an impermissible attempt to have this Court engage in merits review.

Assistance cannot reasonably be obtained from another

26                  Counsel for the applicant submitted that, in concluding that relatives other than the applicant were prepared to provide continuing and substantial assistance at the time of application, the Tribunal impermissibly relied upon assistance provided by other relatives after the date of application.  Such evidence was not relevant, and the Tribunal fell into jurisdictional error by relying upon it.

27                  Further, it was submitted that the Tribunal failed to comprehend “reasonableness” in light of a possible combination of relatives, in accord with the judgment of Allsop J in Azzi v Minister for Immigration and Multicultural Affairs (2002) 120 FCR 48 at 90.  Moreover, the Tribunal failed to explain why it rejected the uncontradicted evidence of the applicant’s siblings regarding their inability to look after their mother.  Its lack of specificity on this issue was said to be indicative of error.

28                  Finally, it was submitted that the Tribunal identified the wrong issue in that it required evidence of inquiry of external agencies as at the date of application.  That was not part of the test.  The applicant gave evidence that the nominator did not want anyone else to look after her, and that she had said that she would rather die than be cared for by anyone other than the applicant.  There was also evidence that the nominator did not speak English.  In those circumstances, it would hardly be reasonable to expect her to seek assistance from external agencies.

29                  Counsel for the respondent submitted that the Tribunal had been entitled to take into account the various matters which it did as throwing light upon circumstances as they existed at the time of application.  She submitted that no error of any kind had been demonstrated, still less an error that could be characterised as jurisdictional in nature.

Conclusions

30                  This case has several unusual features.  The date of application for the relevant visa was 16 October 1997.  It was not until almost five years later, on 14 June 2002, that the Tribunal delivered its decision.  The Regulations, as they stood at the relevant time, required an applicant to establish that the criteria for the grant of a particular visa existed both at the time of application and at the time of decision.  It is obviously difficult, in some cases, to establish with precision that a nominator had a particular need for assistance after the passage of such a long time.

31                  In the present case, the Tribunal focused upon whether, at the time of application, the visa applicant was a “special need relative” of the nominator.  It considered in particular whether the nominator had a permanent or long-term need for assistance, and whether such assistance could reasonably be obtained at that time from any other relative, or other source.

32                  At the time the visa application was lodged, the visa sought contained a number of subclasses.  The only subclass with regard to which any claims were advanced was subclass 806, and then only in relation to the “special need relative” criterion.

33                  In Jun v Minister for Immigration and Multicultural Affairs [2000] FCA 867, it was held that the Tribunal was required to address each aspect of the definition of “special need relative” in reg 1.03.  That is precisely what the Tribunal did in this case.

34                  The Tribunal found that, at the time of application, the nominator did not have a permanent or long-term need for assistance.  It relied to a considerable degree upon the fact that the nominator had been able to fly back to Australia from Vietnam, on her own, on at least one occasion, in support of that conclusion. 

35                  The Tribunal also relied upon various medical reports, one of which suggested that she required only “intermittent” assistance in the months immediately following the death of her husband.  This was a misreading of the report, since the word “intermittent” was used only in the context of frontal headaches, not in terms of “assistance”.  However, it was conceded that this error was not of itself sufficient to vitiate the decision.

36                  The Tribunal accepted that the nominator’s needs had changed dramatically since the time of application.  It accepted that she now suffered prolonged illness, and that she could no longer look after herself.  However, this was of no avail to the applicant as the criteria required for the grant of the visa necessitated a finding that she had also been in this state in 1997.  That was a conclusion that the Tribunal was not prepared to draw.

37                  The Tribunal’s reasoning regarding this issue is not particularly cogent.  I am not persuaded that the fact that the nominator was able to fly back, on her own, from Vietnam, meant that she was not depressed, or otherwise in need of permanent or long-term assistance.  Common sense suggests that people who are in need of assistance may, nevertheless, be able to board a plane, and travel overseas.  Even very young children routinely fly on their own.

38                  However, even if the Tribunal’s reasoning is less than satisfactory, it does not follow that jurisdictional error is made out.  In Minister for Immigration and Multicultural Affairs v Epeabaka (1998) 84 FCR 411, the Full Court agreed with an observation by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 to the effect that want of logic by an administrative decision-maker was not synonymous with error of law.  In NAMM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 32, the Full Court reiterated that, as the law presently stands, faulty logic in fact finding does not constitute jurisdictional error.  That proposition seems to accord with the most recent pronouncement on the subject by the High Court: Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59 at 71, and 89-90.

39                  It is clear that it was for the Tribunal, in the present case, to make findings of fact.  It was open to the Tribunal to consider the nominator’s ability to fly on her own as a relevant factor when determining whether she was in need of permanent or long-term assistance.  I would not have accorded the weight that the Tribunal did to that factor.  However, that only means that I disagree with the Tribunal’s reasoning in relation to a factual issue.  It does not follow that jurisdictional error has been shown.  It is not for this Court to substitute its own views for those of the Tribunal in relation to matters of this type.

40                  The contention that the Tribunal erred in having regard to later events when considering whether the criteria for the grant of the visa existed at the time of application cannot be sustained.  Circumstantial evidence can be both prospectant and retrospectant – see J D Heydon, Cross on Evidence, 6^th Australia edition, at [1120] and [1170] and following.  The doctrine of recent possession provides a useful example of this principle.  Whether or not the Tribunal ought to have drawn the inference it did was a matter for it.  No error of the kind for which counsel for the applicant contended has been established.

41                  The second area in which it is submitted that the Tribunal erred relates to its finding that, at the time the visa application was lodged, assistance could reasonably have been obtained from another relative or some other source.

42                  At the time of application, the applicant’s sister, Dung, was living with her parents.  She continued to live with her mother after her father died on 5 October 1997.  She looked after both her parents prior to the applicant’s arrival in this country, and continued to look after her mother until early 1999.  In addition, the applicant’s brother was studying at that time, and not working.  He lived only a few houses away from the nominator.  His wife did not work, and stayed at home with their children.

43                  The Tribunal’s finding that, at the time of application, the nominator’s son and daughter could have provided her with any assistance that she might have needed seems to me to be unassailable, at least on an application for judicial review.

44                  It is true that the Tribunal went on to observe that there was no evidence that, at the time of application, enquiries had been made of Australian or Vietnamese welfare organisations.  In fact, the only material placed before the Tribunal regarding any such enquiries related to an alleged inability to have an assessment done in 2002. 

45                  Counsel for the applicant attacked the Tribunal’s reasoning regarding this matter.  However, the respondent submitted, correctly in my view, that the Tribunal’s discussion of the availability of assistance from external agencies was, at best, peripheral.  Its decision regarding availability of assistance was based essentially upon its finding that the applicant’s brother and sister could have provided that assistance.

46                  The applicant’s case evokes some sympathy.  Though the Tribunal found it unnecessary to determine whether the applicant was a “special need relative” at the time of decision, it seems clear from its reasons that it accepted that the nominator was by then in need of her assistance. 

47                  However, it is clear that at the time of application, the criteria as they were then set out in reg 1.03 were not met.  The Tribunal had no choice but to conclude that the applicant was not a “special need relative” within the meaning of that expression in that regulation.  No jurisdictional error in the Tribunal’s reasoning has been demonstrated.  It follows that this application for review of the Tribunal’s decision must be dismissed.  The applicants must pay the respondent’s costs.

Associate:

Dated:              30 September 2003