FEDERAL COURT OF AUSTRALIA

Abeyesinghe V Minister For Immigration And Multicultural And Indigenous Affairs [2004] FCA 1558

MIGRATION – appeal from judgment of the Federal Magistrates Court  -

Change of Circumstance (Residence) (Class AG) visa – definition of “special need relative” – whether jurisdictional error – no error shown - no question of principle

Federal Court of Australia Act 1976 (Cth) ss 24, 25, 27

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 29, 31, 65, 475A

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

Migration Regulations 1994 (Cth) regs 1.03, 1.08

Migration Amendment Regulations (No 2) 1994 (Cth)

Farrington v Deputy Commissioner of Taxation [2002] FCA 1013 referred to

Low v Commonwealth of Australia [2001] FCA 702 referred to

Allesch v Maunz (2000) 203 CLR 172 referred to

Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 referred to

Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 referred to

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 discussed

Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93 cited

Scargill v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 116 referred to

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1986) 185 CLR 259 followed

WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87 referred to

DEIDRE ABEYESINGHE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 286 of 2004

KENNY J

1 DECEMBER 2004

MELBOURNE

on appeal from the federal magistrates court

THE COURT ORDERS THAT:

1.      The appeal be dismissed.

2.      The appellant pay the respondent’s costs of the appeal.

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

on appeal from the federal magistrates court

REASONS FOR JUDGMENT

1                     On 17 February 2004, the Chief Federal Magistrate dismissed an appeal against a decision of the Migration Review Tribunal (“the Tribunal”) affirming a decision of the delegate not to grant the appellant a Change in Circumstance (Residence) (Class AG) visa.  The appellant appeals to this Court pursuant to s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth).  The Chief Justice has directed that the matter be heard and determined by a single judge: see Federal Court of Australia Act 1976 (Cth) s 25(1A).

the circumstances in which the appeal is made

2                     The appellant, who is a citizen of Sri Lanka, arrived in Australia on 2 April 1996, travelling on a short stay visa and was later granted other visas.  On 27 February 1998, she applied for permanent residence in Australia, on the ground that she was a “special need relative” to her brother, who is an Australian citizen.  Included in the application were the spouse of the appellant and their two children.  On 21 November 2001, a delegate of the Minister refused her application for permanent residence.  On 17 December 2001, the appellant applied to the Tribunal for a review of the delegate’s decision.  When this application failed, she sought judicial review, pursuant to s 39B of the Judiciary Act 1903 (Cth) and s 475A of the Migration Act 1958 (Cth) (“the Act”).  The Federal Magistrates Court heard the matter and, as already noted, the appellant failed to have the Tribunal’s decision set aside.

3                     By a notice of appeal dated 9 March 2003, the appellant appealed to this Court.

the nature of the appeal

4                     An appeal from a judgment of the Federal Magistrates Court is not an appeal by way of a hearing de novo, nor is it an appeal in the strict sense:  cf Farrington v Deputy Commissioner of Taxation [2002] FCA 1013 at [4] per Kenny J and Low v Commonwealth of Australia [2001] FCA 702 at [3] per Marshall J.  Such an appeal is conducted as a re-hearing.  On an appeal by way of re-hearing, the powers of an appellate court are exercisable only if the appellant can demonstrate that, having regard to the evidence before the appellate court, the judgment under appeal is a consequence of some legal, factual or discretionary error:  see Allesch v Maunz (2000) 203 CLR 172, at 178-9 per Gaudron, McHugh, Gummow and Hayne JJ; Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507, at 533 per Gleeson CJ and Gummow J; and Coal &  Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203 per Gleeson CJ, Gaudron and Hayne JJ.  On an appeal to this Court from the Federal Magistrates Court, this Court may receive evidence that was not adduced below.  It may also draw inferences of fact from the evidence that was received below: see Federal Court of Australia Act 1976 (Cth) s 27.

legislative framework

5                     Section 29(1) of the Act confers power on the Minister to grant a non-citizen permission, to be known as a visa, to travel and enter and/or remain in Australia.  There are different classes of visas. Section 31(3) of the Act provides that the regulations may prescribe criteria for a visa or visas of a specified class.  At the time the appellant made her application, the criteria for Change in Circumstances (Residence) (Class AG) subclass 806 visas were set out in Sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).  Section 65 of the Act obliges the Minister to grant a visa if the Minister is satisfied that the criteria prescribed by the Act and the Regulations have been met.  (As it happens, the Migration Amendment Regulations (No 2) 2000 (Cth) repealed the provisions relating to Change in Circumstances (Residence) (Class AG) visas.  Nothing turns on this here, because the Tribunal was required to determine the application for review by reference to the Regulations as they stood prior to the repeal.)

6                     At the relevant time, the applicant could not be granted a Subclass 806 (Family) visa unless she could, at the time of application, satisfy the criteria set out in clauses 806.211.  These criteria were:

If -

(a)               the applicant:

(i)                 was in Australia on 1 September 1994; and

(ii)        was, immediately before 1 September 1994, a person to whom section 37 of the Act as in force immediately before that date applied; and

(iii)      has not been granted a substantive visa on or after 1 September 1994; or

(b)               the applicant is a person to whom section 48 of the Act applies;

the applicant:

(c)        has not been refused a visa or had a visa cancelled, under section 501 of the Act; and

(d)               has become an aged dependent relative, an orphan relative, a remaining relative or a special need relative of an Australian citizen, of an Australian permanent resident, or of an eligible New Zealand citizen since last applying for an entry permit or substantive visa. 

[Emphasis added]

7                     Clauses 806.212 and 806.213 stipulated other criteria to be satisfied at the time of application.  In particular, clause 806.213 stated:

The applicant is an aged dependent relative, an orphan relative, a remaining relative or a special need relative of another person who:

(a)               is a settled Australian citizen, a settled Australian permanent resident or settled eligible New Zealand citizen; and

(b)               is usually resident in Australia; and

(c)               has nominated the applicant for the grant of the visa.

There were other criteria to be satisfied at the time of decision, including a criterion that required the visa applicant to be a “special need relative”.  Clause 806.22 sets out criteria to be satisfied at the time of decision and stipulates, at clause 806.221, that it is a requirement that “[t]he applicant continues to satisfy the criteria in clause 806.213.”

8                     Regulation 1.03 relevantly provided:

“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.

For the purposes of this appeal, it is unnecessary to set out any other provisions.

the decision of the tribunal

9                     The Tribunal recorded that the application was made “on the basis that the visa applicant is a special need relative of her brother”.  The Tribunal had before it the Departmental file and other documentary material submitted on behalf of the visa applicant, who is the appellant in this proceeding, including reports from a psychologist and the nominator’s doctor.  The appellant also attended the hearing and gave oral evidence.

10                  The Tribunal found that the appellant fell within s 48 of the Act and that the only subclass in respect of which any claims were advanced was subclass 806 (Family) and then, only in respect of the “Special need relative” ground.  The Tribunal found that the appellant met the criterion in clause 806.211(b), being a person to whom s 48 of the Act applied, as well as the criterion in clause 806.212.  The balance of its reasons were concerned with the question whether the appellant was a “special need relative” as defined in reg 1.03 of the Regulations.

11                  In discussing the specific elements of the definition of “special need relative”, the Tribunal noted that a brother was a “relative” as defined in reg 1.03 and proceeded on the basis that the claimed relationship existed for the purpose of the review, noting, however, that “there was no documentary evidence available to show that the visa applicant was the sister of the nominator [i.e., her brother]”.  Nothing turns on this.  The Tribunal was satisfied that the nominator (that is, the appellant’s brother) had “bec[o]me an Australian citizen on 14 November 1990”. 

12                  In the course of setting out the legislative criteria to be satisfied before a visa can be granted, the Tribunal stated that:

Clause 806.221 provides that the visa applicant must continue to satisfy the criterion in clause 806.213 at time of decision.  The Tribunal must consider whether the visa applicant was a ‘special need relative’ at the time of the visa application (Clause 806.213), whether the visa applicant became a special need relative “since last applying for an entry permit or substantive visa” (Clause 806.211(d)) and whether the visa applicant remains a ‘special need relative’ at the time of decision (Clause 806.221). “Substantive visa” is defined in section 5 of the Act: [sic] “means a visa other than a bridging visa or a criminal justice visa”.

The Tribunal went on to cite relevant authorities on the construction of reg 1.03(a).

13                  The Tribunal noted that, at the time of her initial application, the appellant’s application was based on the nominator’s claimed “need for her emotional support because he and his spouse were suffering from stress caused by the illness of his in‑laws”.  The Tribunal stated that the “claim made in the review application is that the nominator suffers depression brought about by his concern for the visa applicant and her family if she had to return to Sri Lanka.”  The Tribunal referred to the psychologist’s report submitted by the appellant and noted that the report:

·        was written after the her claim to be a refugee was finally determined and reports the claims made by her in support of that application “as if they were fact and appears to accept without doubt the claims made by the visa applicant”;

·        essentially stated that “the nominator would suffer mental breakdown if the visa applicant were to return to Sri Lanka … .”;

·        recorded the psychologist as stating that the nominator “had been stressed even before the arrival of the visa applicant in Australia due to incidents in Sri Lanka surrounding his sister’s perceived involvement in the civil unrest … .”;

·        failed to mention the nominator’s wife in any substantive way; and

·        repeats “the claim made by the visa applicant that the nominator ‘has no family member of his own in Australia with whom to share this responsibility for his wife’s family’”.

The Tribunal put “little weight” on the report.

14                  The Tribunal went on to state that:

The requirements of the Class AG visa is that the illness or the serious circumstances would have occurred after 5 August 1997 being the date of the application for the subclass 435 visa but before the date of the application under review which was made on 27 February 1998.  Dr Heentigala advised that the nominator was in good health until 28 July 1998 but this was not a date within the relevant dates which is required by the Class AG.  Alternatively, the psychological report advised that the nominator was suffering from stress even before the arrival of the visa applicant in Australia which also falls outside the relevant dates required by the Class AG visa.  In her application the visa applicant stated that her brother had a need for her to remain in Australia as he would be traumatised at her departure.  The visa applicant did not submit a psychological report or medical evidence that the nominator had a prolonged illness or that other serious circumstances existed as required for the grant of the visa between the period 5 August 1997 to 27 February 1998.

This statement was the basis for a ground of challenge in the Federal Magistrates Court and for a ground of appeal in this Court.

15                  The Tribunal did not find that the nominator was affected by circumstances of the requisite kind.  It considered the needs of the nominator and noted the nominator’s claim that “he requires the presence of the visa applicant”.  The Tribunal found that “[t]he mere presence of a person does not amount to providing assistance.”  Immediately after making this finding, the Tribunal continued:

Nor can it be said that a person would render assistance in relation to a circumstance, if the circumstance might return should the relative return to another country.  The Tribunal notes that the nominator has been and continues to be employed in a job which he described as “very busy”, and his wife also works full‑time.  The visa applicant and her husband also work full‑time. 

The Tribunal found that, “[i]n terms of [Jun v Minister for Immigration and Multicultural and Affairs [2000] FCA 867 (“Jun”)], there [was] no probative evidence that the lives of the nominator and his wife have been disrupted by death, disability, prolonged illness or other serious circumstances.”  The Tribunal was not satisfied that the nominator had 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.  The Tribunal found that the nominator did not have a permanent or long term need for assistance from his sister because of death, disability, prolonged illness or other serious circumstances.  The Tribunal held that the appellant did not meet the requirements of clause 806.213.

16                  The Tribunal went on to consider “whether the visa applicant is willing and able to provide the substantial and continuing assistance to the nominator”, and referred to the Procedures Advice Manual.  The Tribunal stated that the “desire for companionship is not regarded, in the absence of other factors, as constituting a permanent or long‑term need for substantial and continuing assistance.”  The Tribunal characterised the relationship betweens the appellant and the nominator as one where “companionship and family advice” is provided and one where the individuals “hold each other in high esteem”.  The Tribunal referred to the full‑time employment of the nominator, nominator’s spouse and the appellant and found that the appellant did not provide the nominator with “substantial and continuing assistance”.  The Tribunal did not consider it necessary to form a view on whether any assistance could reasonably be obtained from another relative or welfare, hospital, nursing or community services.  The Tribunal referred to authorities previously cited, and “especially” to Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 (“Teo”), Minister for Immigration v Chan [2000] FCA 737 (“Chan”) and Jun and found that the appellant did not meet the definition of special need relative set out in reg 1.03 and that, consequently, the appellant did not satisfy the criterion in clause 806.213 at the time of application nor at the time of decision.

the decision of the chief federal magistrate

17                  As already noted, the appellant challenged this decision in the Federal Magistrates Court.  The Chief Federal Magistrate dismissed the application, finding no error of fact or law in the Tribunal’s reasons.  The appellant made two key submissions to the Chief Federal Magistrate: (1) that the Tribunal had erred in its construction and application of sub‑clause 806.211(d); and (2) the reasons of the Tribunal failed to disclose the moment in time at which it assessed the appellant against the relevant criteria.

18                  The Chief Federal Magistrate dismissed the first submission, first observing:

In my view, the Tribunal did set out the correct criteria in paragraph 23, [see par 12 above] although in paragraph 30 [see par 14 above] the Tribunal states the requirements of the visa in different terms.  If the Tribunal had in fact applied the test as enunciated in paragraph 30, that is whether the illness or serious circumstances occurred after 5 August 1997 and before February 1998, and based its decision on that alone, then it would have committed an error.

The Chief Federal Magistrate found that such an error would not, however, assist the visa applicant because:

(a)               Whilst the correct test may not have been enunciated in paragraph 30, it is clear from paragraph 23 that the Tribunal understood the considerations which were relevant;

(b)               A proper reading of the reasons includes paragraph 31 to 34 inclusive, which deal with not only whether the nominator had an illness or other serious circumstances, but, as required, the other factors necessary for the finding of “special need relative”, namely that the applicant was willing and able to provide substantial and continuing assistance; and

(c)               The Tribunal correctly considered the question of the identification of what the nominator actually needed by way of assistance as a result of his condition [see Chan].  In Chan, Kenny J held, inter‑alia that the fact that the visa applicant and sponsor have a unique relationship does not of itself satisfy the special need relative requirement.  This was cited with approval in [Jun].

19                  The Chief Federal Magistrate went on to consider the medical and psychological reports and the use made of them by the Tribunal.  Her Honour said:

In my view, the Tribunal may have misconstrued the import of the report itself.  Notwithstanding his reference to the cause of the nominator’s stress, there does not appear to be any basis forrejection of the report for this reason.  The report does indicate that the nominator was in a stressful situation prior to the arrival of his sister and that the situation has been compounded by the ill health of his wife’s father andpossibility of his sister and her family’s forced return to Sri Lanka.

However, the error in not placing more weight on the psychologist’s report, in my view, does not assist the applicant.

20                  This was because, in the Chief Federal Magistrate’s opinion, the Tribunal was entitled to consider the report from the nominator’s doctor, and that report did not refer to any serious illness or other circumstance as envisaged by the Act.  Her Honour considered that the Tribunal was also entitled to look at the assistance being provided by the appellant and in this case found that it was emotional support.  Her Honour also noted the Tribunal’s finding that the appellant did not provide the nominator with substantial and continuing assistance, and noted the relevance of the nominator and the appellant’s full‑time employment in this connection.  Her Honour considered that, if the Tribunal was wrong about any of these matters, the errors were errors of fact and were solely matters for the Tribunal, referring to Waterford v Commonwealth (1987) 163 CLR 54 at 77; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353 and 384; and Minister for Immigration and Multicultural and Indigenous Affairs v Thiyaganajah (2000) 199 CLR 343 at [17].

21                  Reading the Tribunal’s reasons “fairly and as a whole”, her Honour considered that, even if an error had occurred, it was not a material error, and that the Tribunal’s finding that the appellant was not a “special need relative” as defined in reg 1.03 was “clearly open to” it, citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1986) 185 CLR 259 (“Wu Shan Liang”) at 272 and 291.  Her Honour stated that, when the Tribunal’s decision was “read as a whole”, it was clear “that the Tribunal did consider the nature of and reasons for the assistance which the applicant claimed both, in her initial application and in her review application”.  Her Honour stated that:

At best, the visa applicant could establish that the Tribunal asked itself the wrong question in not considering the definition of special need relative at the date of application.  However, even if this was so, which is not a view to which I have come, it was not a material error because there was no positive evidence which would have supported the applicant’s claim at the relevant period.  In any event, if such an error occurred it was an error of law and not an error outside jurisdiction.

Her Honour held that, even if the Tribunal erred in law, the error was not jurisdictional, citing NAAV v Minister for Immigration & Immigration & Multicultural and Indigenous Affairs [2002] FCAFC 228 (“NAAV”) at [36] per Black CJ in support.  This statement constituted the basis of the second ground for appeal in this Court.

the parties’ submissions

(a)        The applicant’s submissions

22                  By a notice of appeal filed on 9 March 2004, the appellant raised two grounds for appeal: (1) error in failing to accept that the Tribunal’s decision disclosed jurisdictional error; and (2) error in the description of “jurisdictional error”.

23                  In written submissions filed on 8 October 2004, the appellant submitted that for a substantive visa to be granted, an applicant must satisfy all the criteria for the grant of the visa at two points in time.  According to the appellant, clause  806.211(d) invited consideration of whether the applicant “has become” a special need relative of the nominator “since last applying for an entry permit”.  Clause 806.213 embodied the second point in time, that being a consideration of whether the applicant “is” a “special need relative” of the nominator.  These criteria are to be satisfied “at the time of application”: clause 806.221.  The appellant’s submission was that “the [Tribunal] did not keep clearly in its mind that there were two points in time to be considered.”  (The appellant did not dispute that the criterion of “special need relative” was also to be satisfied at the time of decision.)  The appellant conceded that paragraph 23 of the Tribunal’s reasons correctly stated the test, but contended that the rest of the Tribunal’s reasons “do not reveal that the [Tribunal] kept the provisions in mind”.  The appellant submitted that “the Tribunal appears to have been concerned with identifying something that ‘occurred’ between 5 August 1997 (application by the [a]ppellant for the subclass 435 visa) and 27 February 1998 (application by the appellant for the 806 visa)”.  According to the appellant, the Tribunal ought to have asked whether the nominator had become a “special need relative”.  The appellant submitted that the Tribunal ought to have considered the circumstances of the nominator and that it misdirected itself in looking for an “occurrence”.  According to the appellant, the Tribunal articulated the correct test at par 23 of its reasons only and at one point the Tribunal was “clearly in error”.  Further, so the appellant submitted, the circumstances considered by the Tribunal were not to the point if the Tribunal was in error as to the point in time it was to consider the circumstances.  The appellant contended that, although the question whether an Australian resident is a “special need relative” involved findings of fact, where those findings were based on an error in construing the legislative requirement, a jurisdictional error occurred: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [35] and [68].

24                  At the hearing, counsel for the appellant augmented these written submissions.  He submitted that the Tribunal erred by not directing its attention to the circumstances as they existed at the time of the application for the 806 visa, namely, 27 February 1998.  He contended that, in par 30 of its reasons, the Tribunal had considered this time from the wrong perspective.  The Tribunal’s failure to consider the matter correctly constituted, in his submission, jurisdictional error.

25                  In written submissions and at the hearing, the appellant submitted that her Honour was wrong to refer to NAAV in light of Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (“S157”). The appellant submitted that an error of law resulting from a failure to construe the operative legislative requirements was a jurisdictional error and cited Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93 (“Lobo”) at [45] in support.  Also at the hearing, counsel for the appellant contended that the Tribunal’s adverse findings regarding the appellant as at the time of the decision did not conclude the outcome of the appellant’s visa application.  He contended that, if the Tribunal had correctly considered the matter, it might have made a different decision.

(b)        The respondent’s submissions

26                  In written submissions, the respondent contended that, if the Tribunal found the appellant failed to satisfy at least one of the applicable criteria, it was bound to affirm the delegate’s decision refusing to grant the visa.  The respondent submitted that the Tribunal correctly set out the applicable criteria, considered the evidence before it and the relevant law, and found that the appellant did not satisfy the criteria in clause 806.213.  The respondent contended that the Tribunal provided detailed reasons for this finding and the finding was clearly open to it on the evidence.  According to the respondent, once the Tribunal found that the appellant was not a special need relative of the nominator and did not satisfy the criteria in clause 806.213, it was impossible for it to find that the appellant “continued” to satisfy the criterion at the time of hearing.  Accordingly, so the respondent submitted, the Tribunal correctly found that the appellant could not satisfy the criteria in clause 806.221.

27                  In written submissions and at the hearing, the respondent contended that there was no basis for the appellant’s submission that the Tribunal failed to apply the relevant criteria at the appropriate points in time.  The respondent submitted that the appellant’s submission was an impermissible attempt to “construe the Tribunal’s decision ‘minutely and finely with an eye keenly attuned to the perception of error’”, referring to Wu Shan Liang at 272 and 291.  The respondent submitted that the Tribunal made “clear and unambiguous findings about the appellant’s failure to satisfy the criteria in clauses 806.213 and 806.221”, and that these findings were clearly open to the Tribunal on the evidence, rendering any consideration of the criteria in clause 806.211 unnecessary.  At the hearing, the respondent contended, by reference to the reasons of the Tribunal, that the Tribunal expressly dealt with the criteria to be satisfied at the time of the 806 visa application (27 February 1998).  Counsel for the respondent also contended that par 30 of the Tribunal’s reasons set out some relevant factual findings, and contained no material error.

28                  In the alternative, the respondent submitted that, even if the Tribunal did make a finding about the appellant’s ability to satisfy clause 806.211, and erred in doing so, no such error could materially affect the Tribunal’s decision.  According to the respondent, this was because the Tribunal did not err in its finding that the appellant did not satisfy the criteria in clauses 806.213 and 806.221.  Therefore, according to the respondent, no jurisdictional error arose because the Tribunal’s exercise of power was not affected, referring to Craig v South Australia (1995) 184 CLR 163 at 179 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]. 

29                  The respondent conceded that her Honour erroneously referred to NAAV, but submitted that this had no bearing on the decision the subject of this appeal.  The respondent relied on her Honour’s statement at par 40 of her decision (see par 21 above), noting that her Honour found the Tribunal had made no error, let alone jurisdictional error. 

consideration

30                  The scope of judicial review in the Federal Magistrates Court of the Tribunal’s decision was affected by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), as explained by the decision of the High Court of Australia in S157.  The effect of S157 is that adecision that is affected by jurisdictional error does not fall within s 474 of the Act, which is a privative provision:  see S157 at 506-508, 511 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.

31                  As a Full Court said in Lobo at [43]:

Where the Minister misconstrues one of the criteria prescribed in the Act or Regulations and, because of that misconstruction he considers that the criterion has not been satisfied, it is as though he did not consider the criterion at all.  For, on the face of it, he has failed to ask the question which the Act and the Regulations, upon a proper construction of the criterion, require him to ask.

An error of this kind is a jurisdictional error and the decision will not be protected by s 474 of the Act:  see Lobo at [62] per French, Sackville and Hely JJ; also Scargill v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 116 at [31] per French, von Doussa and Marshall JJ.

(a)                Was the Tribunal in error?

32                  In this case, the Tribunal considered the evidence and made findings by reference to elements of the definition of “special need relative” in reg 1.03.  The critical question is whether the Tribunal misconstrued the requirements of clause 806.  I do not consider that it did.  When the Tribunal’s reasons are read fairly and as a whole, they do not disclose any error in construction: see Wu Shan Liang at 272 and 291.  Having regard to the passages in the Tribunal’s decision to which the respondent referred at the hearing, I accept that, as the respondent submitted, the Tribunal specifically considered the criteria that were to be satisfied as at the time of the application (27 February 1998).  It is clear from a reading of the Tribunal’s reasons as a whole that it affirmed the delegate’s decision because it concluded that the appellant did not satisfy the definition of “special need relative” either at that time or at the time of the decision.  The Tribunal found, moreover, that the evidence did not show that, at any time, the nominator had a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstance, or that the applicant was willing and able to provide substantial and continuing assistance to the nominator.  The appellant necessarily failed in her visa application.

33                  I reject the appellant’s submission that the Tribunal’s construction of the legislative requirements was erroneous.  The appellant’s reliance on par 30 of the Tribunal’s reasons as demonstrating that it considered that it had to find an “occurrence” (between 5 August 1997 and 27 February 1998) before the legislative criteria could be satisfied is misconceived.  I accept that, as the respondent’s counsel submitted, par 30 set out some relevant findings of fact, the effect of which was that the appellant was unable to satisfy clause 806.211(d).  The paragraph did not, however, set out a test for compliance with this clause.  Even if it did, for the reasons stated by the Chief Federal Magistrate, any error in par 30 of the kind suggested would not have had a material effect on the decision: see par 18 above.

34                  The appellant maintained that the Tribunal’s supposed “error” in par 30 affected the balance of its findings.  I reject this submission.  It must be borne in mind that, as already noted, the Tribunal was not satisfied that the nominator had at any time suffered from any disability, prolonged illness or other serious circumstance; and that he had a permanent or long term need for assistance.  Further, it found that the appellant did not at any time provide substantial and continuing assistance to the nominator, noting, amongst other things, the full-time employment of the nominator and the appellant.  These findings were clearly open to the Tribunal on the evidence.  The appellant did not suggest that the Tribunal had misstated the relevant law in this regard.

(b)               Jurisdictional error

35                  That her Honour erred in referring to NAAV was not in dispute between the parties.  The decision in S157, amongst others, authoritatively states the correct approach concerning jurisdictional error and its effect.  I accept, however, that for the reasons advanced by the respondent, this error on her Honour’s part was an immaterial one.  The fact was that her Honour found that there was no relevant error in the Tribunal’s decision and her Honour’s observations on the nature of jurisdictional error have, therefore, no relevant bearing on her Honour’s decision: compare WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87 at [66] per Lee, Carr and Tamberlin JJ.

36                  For the reasons stated, the appeal should be dismissed with costs.

Associate:

Dated:              1 December 2004