FEDERAL COURT OF AUSTRALIA

Berhardt v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1357

BERNADINE ROMAINE BERHARDT and ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 581 OF 2003

SELWAY J

21 NOVEMBER 2003

ADELAIDE

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant to pay the respondent’s costs to be taxed or agreed.

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

REASONS FOR JUDGMENT

1                     The applicant seeks orders of mandamus, prohibition and certiorari in relation to a decision of the Migration Review Tribunal (‘the Tribunal’) made on 25 June 2003.  It is accepted by the parties that, in order to succeed in these proceedings, the applicant must identify some jurisdictional error made by the Tribunal.

2                     The applicant is a Sri Lankan citizen.  She came to Australia on 7 August 1995.  On 30 July 1997, she applied for a permanent residency visa on behalf of herself, her husband and their two children.  The basis of the application was that she was a ‘special needs relative’ of a settled Australian citizen.  The relevant citizen was her brother.  In order to succeed in that application, the applicant must establish that she is a relative of an Australian citizen usually resident in Australia and that she 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:

                   (1)     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

                   (2)     welfare, hospital, nursing or community services in Australia.’

3                     The application was not considered for some time, apparently because of limits on the numbers of visas that could be granted on this ground.  In the interim, the applicant and her family were given bridging visas.  The application was finally considered and refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) on 14 December 2001.  The applicant sought a review of that decision from the Migration Review Tribunal.  The Tribunal heard from various witnesses and received various reports and statements submitted by the applicant.  The Tribunal summarised the applicant’s evidence as follows:

‘The visa applicant told the Tribunal that she lives in Narre Warren with her husband, her son aged 20 and her daughter aged 12.  Her brother (the nominator) also lived in Narre Warren with his wife and two children.  She said that when he becomes depressed or sick he goes to her house, usually about 3 or 4 times a months (sic).  She works approximately 2 to 3 hours a day 5 days a week.  She also has three sisters and her mother living in Australia either in Narre Warren or nearby in Dandenong.  Her sister Rose is divorced and lives with her 21 year old daughter in a flat in Dandenong.  She does not work as she suffers from back pain.  Her sister Michelle is married with two children aged 2 and 5 and lives in Narre Warren.  Her mother, who is waiting for her application for an Aged Parent visa to be finalised, lives with her sister Michelle.  Michelle is not employed.  Her sister Avril is married with two children aged 1 and 4 and lives in a flat in Dandenong.  She is not employed.

The visa applicant told the Tribunal that the nominator lived with her for approximately 3 months in 1997 after he had an operation.  She said that his wife had got the police to kick him out of the house.  She said that since then he visited her at least 4 times a month and stays for 1 or 2 days each time.  She feeds him, and looks after him.  She said he suffers from pain and depression and has problems with his wife.  His two children, aged 18 and 20 live at home and he only stays with his wife for their sake.  She said she has a four bedroom home and keeps one bedroom just for him.  The nominator works on and off but can only do light work due to the pain in his arm.  He sees his GP, Dr Gunawardena about three times a month.  As far as she is aware he is receiving no other medical treatment.  When asked to describe the assistance he required she said that she gave him a meal and consoled him.  She said he still suffers from the pain in his arm and also depression.  She said her three sisters and mother couldn’t assist him because of their own health and/or family commitments.  They have no time to see him whereas she can be with him all the time.  She said she sees her mother (and Michelle) every Sunday when she takes her to church and Avril 3 or 4 times a month.  Her other sister she sees only on special occasions like birthdays, Easter and Christmas.’

4                     The Tribunal summarised the brother’s evidence as follows:

‘Brian James, the visa applicant’s brother and nominator told the Tribunal that he lived with his wife who worked part-time and his two sons aged 17 and 20 who were students at university and school respectively.  He had worked as an electrical assembler for the last 7 to 8 months.  He worked from 8 am to 4.30 pm Monday to Thursday and from 8 am to 2.30 pm on Fridays.  He had had a number of jobs since 1999 and was restricted to jobs where he did not have to lift anything above shoulder height.  He said that he had a workplace accident in 1996, which exacerbated an injury from a car accident in 1991.  He underwent an operation in 1997, but he still suffered pain in his arm.  He was off work for 2 to 3 years and on sickness benefits around 1997 to 1998.  After his operation in 1997 his wife threw him out of the house and obtained an intervention order against him.  He lived with his sister for 2 to 3 months at that time.  Since then he stayed with his sister 3 or 4 times a month whenever his wife made trouble for him.

The nominator told the Tribunal that he visited his GP once or twice a month and has been prescribed sleeping tables (sic) and anti-inflammatory drugs.  He had also been taking anti-depressants in the past but had not taken them for the last 6 months.  He did not like taking medication.  He said he felt depressed.  He saw the psychiatrist Dr Williamson for 1 or 2 years and saw Joan James once in 2001 at the request of the visa applicant’s former solicitor.

When asked what assistance he required he said that he was too old at 46 to start again and he wanted to be with his sons and for that reason stayed with his wife.  However when she threw him out of the house he went to stay with his sister.  His sister and brother in law had been incredibly supportive.  He was not as close to his other sisters and they did not have a special room in their home set up for him as the visa applicant did.  Their husbands were not as supportive towards him either unlike the visa applicant’s husband.  He estimated that he saw his mother and Michelle about twice a month while he only saw Avril and Rose on special occasions.’

5                     In addition, there was some medical evidence.  That evidence suggested that the applicant’s brother suffered a cuff injury to his shoulder, which was severe in 1997 but had been subsequently treated and abated.  It appears he returned to work in 1998.  The cuff injury was still causing some pain, but he was able to work.  There was also evidence that in 1997 he had a renal calculus.  He had an operation.  It appeared that he was now fully recovered from that.  In addition, it appeared he had had - and continued to have - some mental difficulties.

6                     The primary issue before the Tribunal was whether the applicant’s brother still had a long-term need for assistance by reason of a disability, prolonged illness or other serious circumstance.  The applicant argued before the Tribunal that her brother’s continuing mental problems resulted in such a long-term need.  There was some medical evidence related to this.  The Tribunal discussed this evidence in its reasons:

‘Dr Williamson reported in July 1997 that the nominator presented with a recent development of depression due to chronic pain, inability to work and a worsening marital problem.  Later documents dated January 1998 from DSS refer to the nominator moving to the visa applicant’s address from Sylvia St Dandenong after a separation from his wife.  In November 2001 the visa applicant stated that she provided a room at her house for the nominator to stay when he was in distress and to make him feel happy.  The nominator received medication for his depressive condition.  According to the psychologist Joan James, without the visa applicant’s presence the nominator would not have coped at all and it was most likely he would have lost his family.  Joan James also stated that due to the visa applicant’s constant and unwavering support, the nominator had been able to improve psychologically and a recovery has been made possible.

The nominator told the Tribunal that he had not seen Dr Williamson for several years and he only went to Joan James once in 2001 to have a report provided at the behest of the visa applicant’s then representative.  There is no current psychiatrist or psychologist specialist evidence before the Tribunal.  The nominator’s GP wrote on 28 May 2003 that he suffered from depression but no further details are given and no evidence presented for this claim.  In 1997, Dr Williamson stated that he had put the nominator on a trial of certain medication and there had been some reduction of anxiety and it was proposed to review him in two weeks time.  No further report was submitted and the nominator is not currently receiving treatment from him. 

Joan James in a report of November 2000, did not diagnose the nominator as suffering from the mental illness characterised as clinical depression but rather from an “Adjustment Disorder with Anxiety and Depressed Mood” largely due to his inability to cope with being off work and his marital problems.  Based on these reports and the nominator’s evidence that he had not been to see Dr Williamson for some years and only saw Joan James once, the Tribunal is somewhat ambivalent as to whether the illness suffered by the nominator at the time of application could be described as a “disability or prolonged illness”.

At the time of decision, it has been some years since the nominator has consulted a psychiatrist.  His subsequent visit to a clinical psychologist was at the request of the visa applicant’s former representative.  Whilst the Tribunal accepts that he still has pain in his arm, he is not currently receiving any treatment for it and is able to work full time even if he is restricted in his duties.  The nominator has given oral evidence that he is not on any medication in relation to his depression.  The Tribunal has a report from a clinical psychologist who suggests that the nominator is suffering from “adjustment disorder with anxiety and depressed mood”.  However, this report is over two years old and the diagnosis by the clinical psychologist is based on self-reporting by the nominator at interview.  Given the nominator’s acknowledgment that he is not taking any medication or other treatment for depression, the Tribunal is unable to be satisfied that the nominator is suffering from a “disability or prolonged illness” at the time of decision.’

7                     The Tribunal also found that the assistance provided by the applicant to her brother did not constitute substantial and continuing assistance.  The Tribunal said:

‘In the circumstances of this case, the mere fact that the visa applicant and the nominator are sister and brother and that the nominator stays at her house when his wife kicks him out three or four times a month does not mean that the visa applicant provides “substantial and continuing assistance” of the relevant kind to the nominator.  When asked what she does for her brother, the visa applicant said that she cooks for him and talks to him about his problems.  The Tribunal accepts that the nominator and visa applicant were and are very close.  It also accepts that the visa applicant is sometimes a source of advice and support to the nominator.  The Tribunal also accepts that the visa applicant was then, and is now, willing and able to provide continuing assistance to the nominator.  However, the Tribunal is not satisfied that the assistance the nominator requires of the visa applicant amounts to “substantial” assistance at the time of its decision.’

8                     Finally, the Tribunal found that any required assistance needed by the brother could also be provided by other relatives.  The Tribunal said in its reasons:

‘Paragraph (b)(i) of the regulation requires that assistance cannot reasonably be obtained from 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.  The Tribunal has found that the nominator does not at time of decision have a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances.  The Tribunal has also found that the assistance given by the visa applicant is not ‘substantial’.

However even if the Tribunal were wrong in these conclusions it would not assist the visa applicant for the reasons outlined below. 

The visa applicant’s family in Australia at the time of application and decision consisted of 3 married sisters who were resident in Australia either as citizens or permanent residents.  It has been submitted that these 3 sisters are all preoccupied with their own families and are not willing to provide the nominator with the support he needs.  It was also claimed that the nominator had not developed close relationships with these 3 sisters whereas he has a close bond with the visa applicant.  Although the Tribunal accepts that there may be a closer bond between the nominator and the visa applicant than there is between the nominator and his three other sisters, the Tribunal is not satisfied that in the absence of the visa applicant, the nominator could not reasonably obtain assistance from his three other sisters.  None of them have provided any oral or written evidence as to why their circumstances mean that such assistance cannot reasonably be obtained from them.  They all live within close proximity to the nominator.  They are not employed but two of them care for young children.  The Tribunal does not accept that between the three of them they cannot balance family commitments to provide such assistance to the nominator.  Accordingly the Tribunal is not satisfied that assistance could not reasonably be obtained from the nominator’s three sisters who are residents or citizens of Australia.’

9                     For these reasons, the Tribunal affirmed the decision of the delegate.  The applicant says that the Tribunal failed to give proper consideration to the medical evidence, particularly that of Ms James.  This is simply incorrect.  The Tribunal discussed that evidence, noted what it said and concluded that the evidence did not establish a disability, a prolonged illness or a ‘serious circumstance’.  Given the nature of the brother’s problems as identified by Ms James, that conclusion was fairly open.  It is clear from Ms James’ report that the role played by the applicant involved companionship and support to her brother in his occasional times of personal crisis.  Clearly enough, this is important to him.  As Ms James put it in her report:

‘Her presence has been responsible for his successfully overcoming the debilitating effects of depression.  Not only is she still an invaluable source of comfort to him but the precarious state of his marriage and physical health could have him need her support at any time.  His need for her to be there will be ongoing.  It was only six months ago that he last moved in with her for a few weeks.  It enables his family to remain stable if he has somewhere he can go during times of tension.

He has physical damage to his shoulder and suffers anxiety contemplating the uncertainty attached to his future working ability.  With any physical deterioration he becomes frightened of what might lie ahead.  This fear is reduced with the knowledge that his sister will be able to take care of him, physically, emotionally and if necessary, financially.  It offers him a peace of mind not possible without her unconditional support.’

10                  It is clear that the Tribunal fully considered and took account of the evidence of Ms James.  It concluded however, that the evidence was insufficient to satisfy the Tribunal of relevant matters.  There was no relevant jurisdictional error in that regard.

11                  The applicant says that the Tribunal failed properly to consider the report from the brother’s general practitioner.  That report stated that the applicant’s brother was suffering from ‘chronic pain syndrome, anxiety and depression’.  That report was also dealt with by the Tribunal.  The Tribunal found that the report was simply inadequate, in light of the other evidence, to enable to the Tribunal to conclude that the applicant’s brother was suffering from a disability or a serious circumstance.  Again, it seems to me that was fairly open to the Tribunal in the circumstances.  In my view, it was fairly open to the Tribunal to find that the brother’s condition could not be described as a disability, a prolonged illness or a serious circumstance.  In any event, no jurisdictional error has been identified by the Tribunal in reaching that conclusion.

12                  The applicant also says that the Tribunal failed to take a relevant consideration into account, namely the role of the applicant as counsellor in respect of the management of her brother’s depression.  The short answer to this is that the Tribunal did not accept that her brother had clinical depression.  The applicant also argues that the Tribunal should have considered whether or not it was satisfied as to whether the applicant was a ‘special need relative’ at the time of its application.  It is true that the Tribunal held that it was unnecessary for it to reach any conclusion in relation to that matter:

‘As will become obvious later due to the other findings of the Tribunal, the Tribunal is not required to make a definitive finding on the nominator’s health at the time of application to determine the visa applicant’s claims to the visa.’

13                  However, it is plain that, in reaching that conclusion, the Tribunal was acting within the terms of regulations 806.21 and 806.22 of the Migration Regulations.  Pursuant to regulation 806.21, in order to grant a visa the Minister must be satisfied that at the time of application the applicant is a ‘special need relative’.  It is also clear under regulation 806.22 that, before granting such a visa, the Minister must also be satisfied at the time of decision that the applicant is a ‘special need relative’.  It is plain from the terms of those two regulations that, if the Tribunal is not satisfied as to the one, that is enough for it to determine that a visa should not be granted.  That is all the Tribunal meant in this context.  There is no jurisdictional error in it doing so.

14                  It would seem that no objection is made to the other two bases for the Tribunal’s decision, namely that the support provided by the applicant is not ‘substantial and continuing assistance’ and that the other relatives of the brother who are present in Australia could provide any necessary support.  The last of these bases is enough, by itself, to sustain the ultimate conclusion.  That, by itself, would require that the application be dismissed.

15                  I should say, however, that I am not convinced that it is necessary for the applicant to show that she is actually providing ‘substantial and continuing assistance’ in order to comply with the statutory test, merely that she is ready and able to do so and that the applicant requires the relevant assistance.  In this regard, the analysis by the Tribunal may involve the same error as that discussed by Kenny J in the Minister for Immigration and Multicultural Affairs v Chan [2000] FCA 737 at [17].  Given that the decision of the Tribunal can be supported on the other two bases discussed above and that no jurisdictional error has been identified in relation to those bases, it is unnecessary in this case to consider this question any further.  Consequently, the application is dismissed.

Associate:

Dated:              12 December 2003