FEDERAL COURT OF AUSTRALIA

Basbas v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1042

MIGRATION - visa – whether applicant a special need relative of his mother – Migration Review Tribunal found mother had a long-term need for assistance, because of a prolonged illness – applicant provided emotional support, companionship and some practical assistance – whether Tribunal erred in finding that this was not substantial assistance

WORDS AND PHRASES – ‘special need relative’ – ‘substantial and continuing assistance’

Migration Act 1958 (Cth) s 474

Judiciary Act 1903 (Cth) s 39B

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

Basbas v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1602 referred to

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

FROILAN BASBAS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 583 of 2002

GRAY J

2 OCTOBER 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

The nature of the proceeding

1                     The applicant has invoked the jurisdiction given to the Court by s 39B of the Judiciary Act 1903 (Cth) in respect of 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’) that the applicant was not entitled to the grant of a Family (Residence) (Class AO) visa, pursuant to the Migration Act 1958 (Cth) (‘the Migration Act’). 

2                     The applicant is a citizen of the Philippines.  Having come to Australia with a visa, he applied on 10 February 1998 for a Family (Residence) (Class AO) visa, on the basis that his mother, Maria Perkins, was a ‘special need relative’ who needed the applicant to care for her.  On 9 January 2001, the Minister’s delegate decided to refuse to grant the visa.  The applicant applied to the Tribunal for review of that decision.  On 14 August 2002, the Tribunal published a written decision and reasons for decision, affirming the delegate’s decision.  In respect of the Tribunal’s decision, the applicant seeks writs of prohibition and certiorari, a
declaration that the decision is invalid and an order remitting the matter to the Tribunal, differently constituted, for determination according to law.

3                     The application to the Court, filed on 9 September 2002, named as applicant Maria Perkins.  The respondent filed a notice of objection to competency and Ms Perkins applied by notice of motion to amend the title to the proceeding by substituting ‘Froilan Basbas’ for ‘Maria Perkins’.  On 19 December 2002, I made orders enlarging the time limited for the filing of the notice of objection to competency, but dismissing the objection.  I also dismissed the notice of motion, but, of the Court’s own motion, amended the title to the proceeding by substituting the name ‘Froilan Basbas’ for the name ‘Maria Perkins’ (see Basbas v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1602).

The facts

4                     As the Tribunal found, Ms Perkins came to Australia on 5 December 1990.  She married Eric Perkins on 27 July 1991 and was granted permanent residence on 18 August 1993.  She became an Australian citizen on 22 May 1996.  Mr Perkins died suddenly on 7 April 1997.  Ms Perkins suffered from depression and anxiety as a consequence of her husband’s death.  She lived at Moe and the applicant, her son from her earlier marriage, moved in with her.  For the most part, the applicant was engaged in full-time employment.  He assisted Ms Perkins with cleaning and laundry and some household chores.  He provided emotional support to her by talking with her, and ensured that she took her medication.

The legislation

5                     The criteria for a visa of the kind the applicant sought were found in item 806 of the second schedule to the Migration Regulations 1994 (Cth) (‘the Migration Regulations’), made pursuant to the Migration Act.  Item 806.213 prescribed a criterion to be satisfied at the time of application for the grant of the visa.  That criterion included a requirement that the visa applicant be a ‘special need relative’ of another person who had nominated the visa applicant for the grant of the visa.

6                     The term ‘special need relative’ was defined in reg 1.03 of the Migration Regulations in the following terms:

‘“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 Tribunal’s reasons

7                     The Tribunal had before it documentary evidence by way of a doctor’s report, a psychologist’s report and three letters from welfare organisations.  It conducted a hearing on 18 July 2002 at which the applicant and Ms Perkins gave oral evidence.  Further documents concerning the applicant’s employment were also tendered. 

8                     The Tribunal found that the applicant had been nominated by his mother, who was a relative, within the definition in reg 1.03.  It also found that Ms Perkins was an Australian citizen.

9                     On the basis of the medical evidence, the Tribunal found that Ms Perkins had been suffering from anxiety, with at times depressive features, from the time of her husband’s death until the date of the Tribunal’s decision.  It was therefore satisfied that Ms Perkins had
a long-term need for assistance, because of a prolonged illness, at the time of the visa application.  As to this need, the Tribunal said:

‘The nature of her need was medical treatment and counselling which she obtained from her general practitioner and a senior welfare officer at her local community health service.  She also needed emotional support, companionship and some practical assistance with transport, which she obtained both from her friends and the visa applicant.’

10                  In its reasons for decision, the Tribunal then dealt with the question whether the applicant was willing and able to provide ‘substantial and continuing assistance’ to Ms Perkins.  After referring to the judgment of the Full Court in Narayan v Minister for Immigration & Multicultural Affairs [2001] FCA 1745, in relation to the meaning of ‘substantial’, the Tribunal summarised the evidence as to the assistance given by the applicant.  With reference to the assistance provided by the applicant to Ms Perkins at the time of making the application for the visa, the Tribunal said:

‘The evidence pertaining to that time is that the visa applicant provided companionship and emotional support through his presence in the house, especially by being in the house at night.  His help with practical tasks was minimal and consisted of driving the nominator to the doctor’s when needed.’

11                  The Tribunal then pointed out that the applicant was in full-time employment for a number of periods after that date.  The Tribunal went on:

‘Taking all the circumstances into account, the Tribunal accepts that the visa applicant was willing and able to provide assistance to the nominator mostly in terms of companionship and emotional support at the time of the visa application.  The Tribunal acknowledges the comfort the nominator derives from the presence of her son in her home and his companionship.  However the Tribunal finds that the degree and nature of the assistance, which the visa applicant was providing to the nominator, falls short of being “substantial” within the meaning of the regulation.  Therefore the Tribunal finds that the visa applicant does not fall within the definition of a special need relative and the application cannot succeed.’

The application to the Court

12                  In the amended application, filed on 12 February 2003, the applicant focussed on the Tribunal’s approach to the phrase ‘substantial assistance’.  He contended that the Tribunal fell into error by misinterpreting or misunderstanding that criterion or by failing to deal with or to consider, properly or at all, that criterion.  The error was said to amount to a violation of an imperative duty imposed on the Tribunal, or an essential pre-condition to the exercise of its power, or to the Tribunal asking itself the wrong question, identifying the wrong issue and failing to take account of relevant material.  The applicant therefore contended that the Tribunal had made a jurisdictional error, sufficient to take its decision outside the protection of the privative clause in s 474 of the Migration Act.

13                  Counsel for the applicant expanded on this theme in written submissions, and in oral argument at the hearing of the proceeding.  He drew attention to the Tribunal’s finding as to Ms Perkins’s need for assistance.  He argued that the Tribunal identified the need as one for emotional support and companionship.  As the Tribunal identified evidence that Ms Perkins’s other son did not desire to help her or have a close relationship with her, counsel submitted that the Tribunal must have accepted that the applicant was the only close relative who could and did supply emotional support and companionship to her.  On this basis, counsel argued that the Tribunal could not fail to find that the applicant was providing substantial and continuing assistance to Ms Perkins at the relevant date, unless it misunderstood the nature of the criterion.

The correctness of the Tribunal’s approach

14                  As I have said, the Tribunal referred to the judgment of the Full Court in Narayan.  In that case, the Full Court refused to overturn a finding of the Tribunal that what the Tribunal had described as ‘supplementary’ emotional support and companionship did not amount to ‘substantial...assistance’.  In its reasoning, the Full Court dealt at some length with the definition of ‘special need relative’ in reg 1.03 of the Migration Regulations.  At [40], the Full Court said:

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

15                  The Court then dismissed an argument that would have given the expression ‘substantial and continuing’ no role at all.  At [44], it said:

‘We think the opening paragraph itself imposes a criterion which must be satisfied.  “Substantial” means “of substance”, “significant” or “real”.’

16                  In referring to that judgment, the Tribunal could hardly be said to have been falling into error.  It was bound by the judgment of the Full Court.  Nor does anything said by the Tribunal indicate that it failed to apply the Full Court’s understanding of the meaning of the word ‘substantial’.  In the passage I have quoted above, the Tribunal acknowledged the comfort Ms Perkins derived from the presence of the applicant in her home and his companionship.  It found, nevertheless, that the degree and nature of the assistance which the applicant was providing to Ms Perkins fell short of being ‘substantial’ within the meaning of the regulation.  This was a finding of fact by which the applicant is bound in the present case.  It was the Tribunal’s task to assess whether the applicant met the criterion.  The Court cannot usurp that task under the guise of suggesting that the Tribunal misunderstood what it was doing. 

17                  In any event, the argument put on behalf of the applicant is based on a wrong premise.  It appears from the first passage I have quoted above from the Tribunal’s reasons that the Tribunal did not merely find that the need of Ms Perkins was limited to emotional support and companionship.  It identified a number of elements of her need.  The first was medical treatment and counselling.  The Tribunal found that she obtained those from a general practitioner and a senior welfare officer at her local community health service.  In relation to emotional support, companionship and some practical assistance with transport, the Tribunal found that she obtained these both from her friends and the applicant.  In other words, the Tribunal did not identify the applicant as the sole provider of assistance with respect to any one element of the need.  It identified him as one of the providers of assistance with respect to emotional support, companionship and practical assistance with transport.  It follows that there was nothing about the Tribunal’s finding in relation to Ms Perkins’s need that dictated that it should find that the applicant was providing substantial assistance with respect to that need.  It was open to the Tribunal to find, as it did, that the degree and nature of the assistance provided by the applicant fell short of being ‘substantial’ as that term was used in the definition. 

Conclusion

18                  For these reasons, the applicant has failed to establish that the Tribunal made any error in the manner in which it dealt with his case.  It is unnecessary to consider whether the error alleged, if it had occurred, would have caused the Tribunal’s decision to fall outside the protection of s 474 of the Migration Act.  The application must be dismissed.  In accordance with the usual rule, that costs follow the event, the applicant must be ordered to pay the respondent’s costs of the proceeding.

Associate:

Dated:              2 October 2003