FEDERAL COURT OF AUSTRALIA

Perera v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1120

MIGRATION – visa – applicant must be a ‘special need relative’ providing substantial and continuing assistance in respect of a nominating relative with permanent or long-term need at time of application – whether tribunal misconstrued or misapplied definition of special need relative – tribunal found assistance provided not ‘substantial’ – whether obliged to consider ‘substantial’ and ‘continuing’ together – whether denial of procedural fairness or unreasonableness in consideration of medical evidence

WORDS & PHRASES – ‘special need relative’

Judiciary Act 1903 (Cth) s 39B

Migration Regulations 1994 reg 1.03, items 806.213, 806.221

Perera v Minister for Immigration [2004] FMCA 353 affirmed

Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 88 cited

RAJAPAKSHA PATHIRAGE RIYAN PERERA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 817 of 2004

GRAY J

16 AUGUST 2005

MELBOURNE

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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 OF AUSTRALIA

REASONS FOR JUDGMENT

The nature and history of the proceeding

1                     This appeal is concerned with the question whether the Migration Review Tribunal (‘the Tribunal’) misconstrued or misapplied the definition of ‘special need relative’ in considering whether the appellant should be granted a visa available to a person falling within that definition. This appeal is from the judgment of the Federal Magistrates Court, delivered on 9 June 2004, in Perera v Minister for Immigration [2004] FMCA 353. The learned federal magistrate dismissed with costs an application for relief pursuant to s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Tribunal, dated 13 June 2002. 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’), refusing to grant to the appellant a Family (Residence) (Class AO) visa (‘a family visa’).

The legislation

2                     The criteria applicable to a family visa at the relevant time were found in subclass 806 of Sch 2 to the Migration Regulations 1994 (Cth) (‘the Migration Regulations’). By items 806.213 and 806.221 respectively, the appellant was required to satisfy the definition of ‘special need relative’, in respect of another person who had nominated him for the grant of the visa (‘the Nominator’), both at the time of his application for the visa and at the time of a decision whether to grant the visa. The term ‘special need relative’ was defined in reg 1.03 of the Migration Regulations as follows:

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

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

(b) the assistance cannot reasonably be obtained from:

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

(ii) welfare, hospital, nursing or community services in Australia;’

The facts

3                     The appellant is a citizen of Sri Lanka. He entered Australia on 29 December 1995 as the holder of a tourist visa, valid until 29 March 1996. On 23 February 1996, he was granted a further temporary visa, valid until 26 July 1996. On that date, he was granted a further temporary visa, valid until 31 July 1997. On 17 July 1997, he applied for a family visa. The Nominator is the appellant’s sister, an Australian citizen.

4                     In his visa application, the appellant referred to the Nominator’s psychological and emotional needs, and to his provision of emotional and psychological support for her. Subsequently, he submitted a report, dated 7 August 1997, from a psychologist, Mr Kleynhans, who had seen the Nominator once on 11 July 1997. The report described the Nominator as suffering from anxiety, and as being severely depressed, and suicidal. It also said that her husband was affected by the Nominator’s mental problems and was depressed as well. It referred to the appellant as providing assistance with household chores and as playing the crucial role of keeping the Nominator company at night when her husband was working. It said that the Nominator would suffer considerably, both emotionally and physically, if the appellant were unsuccessful in his visa application, and that no other person could play the ‘crucial empathetic’ role of supporting the Nominator.

5                     Before the Tribunal was a report from the Nominator’s treating doctor, Dr Hogan, dated 24 December 2001. This report referred to the Nominator’s eczema, recurrent rashes, hay fever and asthma, as well as to her anxiety and fear of the dark, and to a dislike of travelling alone after dark, since the arrival of her first child in 1996. The report said that the Nominator’s condition has been stable and tolerable with family support. In a report dated 11 April 2002, Dr Hogan repeated in substance what he had said in the report of 24 December 2001.

6                     The Tribunal conducted a hearing on 15 April 2002. Oral evidence was given by the appellant, the Nominator and the Nominator’s husband. Each gave detailed evidence of the Nominator’s condition, a disability suffered by one of her children, the appellant’s assistance to her, and the work commitments of her husband. The Tribunal also sought a further report of Dr Hogan. This was dated 21 April 2002. This report said:

‘I understand that there is now a need for increased detail to support the Perera’s [sic] application before the Tribunal. However, I find myself in a difficult position as a full & detailed discussion of Rosanna Perera’s medical condition in a non medical setting has the potential for harm to her. Therefore I will attempt to give sufficient detail to meet the Tribunal’s needs while attempting to preserve her privacy & not confront her with difficult psychological issues in a non clinical situation.

…

When each condition referred to in the report of 11 April 2002 was diagnosed

As stated the nominator Mrs Perera has multiple problems with anxiety, fear of the dark, intense dislike of travelling alone after dark of which I have only been aware since the arrival of her first child who is now five years old. Her condition has been stable & tolerable provided she has trusted family support.

She is embarrassed by this situation & her condition. As she is an intelligent woman she has been able to disguise her disability by organising her life & those around her.

I have had my suspicions since the birth of her first child, however her ability to cope has been overwhelmed with the arrival of her second child with all of his problems.

I became increasingly suspicious in November 2001 when her eczema flared as it may be aggravated by considerable anxiety.

…

I became highly suspicious in April when I consulted with the family & her & wrote the report. Subsequently I have had the opportunity of speaking to her in considerable detail on 17 April…

Today I believe she in fact has a more serious condition of a social phobia agravated [sic] by significant anxiety & depression. I intend to initate [sic] treatment & refer her to an appropriate specialist.

These conditions are often well hidden & only come to light when a person can no longer cope- [sic] as seemed to have happened here.

It is a complex condition & responds slowly to treatment requiring significant social support.’

The Tribunal’s reasons

7                     In the course of its written reasons for decision, the Tribunal said:

‘On the evidence presented to the Tribunal, the Tribunal cannot make a finding that the nominator had at the time of application a need for assistance because of death, disability, prolonged illness or other serious circumstances affecting members of her family unit. No reports from treating doctors have been submitted about the nominator’s husband or child at the time of application. While Mr Kleynhans has referred to the severe depression of the nominator’s husband, the Tribunal cannot on the evidence presented make a finding that this was a prolonged illness or disability giving rise to a need for substantial assistance. Regarding the problems experienced by the nominator with her first baby these had resolved by the time of application. In any event it has not been submitted that the nominator needed assistance because of a disability, prolonged illness or other serious circumstances affecting her husband or child at the time of application.’

8                     Subsequently, the Tribunal referred to the fact that no medical report from the Nominator’s treating doctor had been provided at the time of application, regarding the Nominator’s physical and emotional health. The Tribunal said:

‘On the basis of Dr Hogan’s medical report dated 24 December 2001, which was provided in response to the Tribunal’s request for further information, the Tribunal finds that at the time of application the nominator suffered from a prolonged illness namely a major allergic tendency with severe eczema, recurrent rashes, hayfever and asthma which had been present for many years and for which she takes medication. The Tribunal finds that because of these conditions, the nominator on occasions needs assistance with transportation to the doctors [sic] and receives this assistance both from the visa applicant and her husband. The Tribunal accepts that when her eczema is bad, the nominator needs assistance with washing, cooking and shopping and receives assistance both from the visa applicant and her husband. However the Tribunal finds that these conditions do not give rise to a need for substantial assistance as envisaged by Regulation 1.03. The Tribunal also finds that on the occasions that such assistance is required the assistance can reasonably be obtained from her husband.

The Tribunal considered the emotional needs of the nominator at the time of application. In regard to problems with anxiety, fear of the dark and a dislike of travelling alone after dark, the report of Dr Hogan dated 24 December 2001 indicated that that [sic] he has been aware of the problem since the arrival of her first child (on 3 August 1996). There is no indication by Dr Hogan that these problems required medical treatment or specialist referral at the time of application. The Tribunal considered the report of Mr Kleynhans. Mr Kleynhans does not refer to the nominator having a fear of the dark. He refers to the nominator being lonely prior to the visa applicant’s arrival especially when her husband worked the night shift, and to the isolation of the nominator after she moved to Sunbury. The Tribunal noted that the visa applicant worked for 32 hours a week from 1997 to June 2000. The Tribunal noted that Mr Kleynhans, who had only seen the nominator on one occasion, gives a totally different picture regarding the nominator’s emotional state to that of Dr Hogan who has treated her for years. Given the seriousness of Mr Kleynhans’ findings that the nominator is severely depressed and suicidal, it is inconceivable that he did not ask the nominator to return or refer her for further treatment. Accordingly the Tribunal has given his report little weight.’

9                     The Tribunal found that the amount of contact the Nominator had with her doctors, and the work details of her husband had been overstated in oral evidence. It then said:

‘Having considered the medical evidence and the emotional needs of the nominator at the time of application the Tribunal finds that the nominator did not have at the time of application, a permanent or long-term need for substantial assistance because of death, disability, prolonged illness or other serious circumstances.

Additionally, the Tribunal finds that the assistance provided by the visa applicant, in the home, with transportation and the emotional support provided on nights when the nominator’s husband was at work does not in this case constitute substantial assistance at the time of application.’

10                  The Tribunal therefore rejected the appellant’s application, on the basis that it was not satisfied that the appellant was a ‘special need relative’ of the Nominator at the time of his visa application. It found it unnecessary to consider whether the appellant met that definition at the time of decision. The visa could not be granted unless item 806.213 in Sch 2 to the Migration Regulations was satisfied.

The primary judgment

11                  At first instance, the appellant contended that the Tribunal had erred in law in considering whether the appellant was willing and able to provide ‘substantial’ assistance to the Nominator, rather than ‘substantial and continuing assistance’. He also alleged that the Tribunal had erred in law in failing to have regard to the cumulative effect of the physical and emotional needs of the Nominator. The appellant also contended that the Tribunal had denied him natural justice, and had reached unreasonable conclusions, in three respects: in relying on the absence of evidence from any treating medical practitioner at the time of the application; in failing to accept the evidence of Mr Kleynhans on the ground that he had not referred the Nominator for further treatment; and in dismissing the evidence of Dr Hogan without appreciating that the doctor was constrained in what he said about the Nominator by the need not to confront her with difficult psychological issues in a non-clinical situation.

12                  The federal magistrate rejected the arguments based on error of law. His Honour viewed the Tribunal’s conclusion that, at the time of the application for a visa, the Nominator did not have a need for substantial assistance, as a finding of fact, with which the court could not interfere. His Honour further found that the Tribunal’s failure to refer to the full phrase ‘substantial and continuing’ did not provide a basis for claiming that there was an error of law. His Honour held that, having found that the assistance of the appellant was not substantial, the Tribunal did not need to consider whether that assistance was continuing. His Honour also said that, having found there was no need for assistance of the requisite kind, the Tribunal did not have to proceed to make a finding as to whether the assistance provided was substantial and continuing. Even if the Tribunal did proceed to make such a finding, his Honour held that this did not disclose error of law.

13                  The federal magistrate also rejected the appellant’s arguments as to denial of procedural fairness. His Honour held that the question of the weight to be given to Mr Kleynhan’s report was a matter for the Tribunal and that its finding of fact on that report was not reviewable. Although his Honour was critical of the Tribunal’s suggestion that a person engaged simply to provide a report for submission to the Tribunal ought to have suggested further treatment, he was satisfied that the Tribunal otherwise properly considered the content of the report. His Honour expressed the view that the Tribunal made a decision based on the facts and on a comparative analysis of the conclusions in that report and other material, including reports from Dr Hogan. His Honour also rejected the argument that the Tribunal should have been aware that Dr Hogan was giving a guarded or ‘coded’ report, understating the psychological condition of the Nominator, because the contents of the report would be made known to her. Similarly, his Honour rejected the submission that the Tribunal erred when it concluded that there was a difference in opinion between Dr Hogan and Mr Kleynhans. In his Honour’s view, these were both findings of fact by the Tribunal. Misunderstanding of particular items of evidence could not amount to reviewable error. His Honour also rejected the submission that the Tribunal had not viewed the elements of the Nominator’s condition cumulatively. In his Honour’s view, the Tribunal’s findings were open to it on the evidence and the Tribunal had taken into account all relevant matters in reaching a decision adverse to the appellant.

14                  The federal magistrate also dealt with an additional argument, raised during the hearing of the application before the Federal Magistrates Court. This was an argument that the Tribunal erred in law in finding that the Nominator did not have ‘a permanent or long-term need for substantial assistance’. The argument was based on the Tribunal’s insertion of the word ‘substantial’ into the phrase found in reg 1.03(a). In rejecting this argument, his Honour followed the judgment of the Full Court in Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 88 at [20] – [24]. At [22], the Full Court expressed the view that the references to ‘assistance’ in (a) and (b) of the definition of ‘special need relative’ in reg 1.03 of the Migration Regulations must be references to ‘substantial and continuing assistance’, referred to earlier in the definition.

The grounds of appeal

15                  In his notice of appeal, and in submissions in support of his appeal, the appellant relied on the arguments he had put at first instance, with the exception of the argument related to the Tribunal’s insertion of the word ‘substantial’ into the phrase ‘permanent or long-term need for assistance’. Counsel for the appellant conceded that this argument could not be sustained, in the light of the authority of the Full Court in Chow.

The need for ‘substantial and continuing assistance’

16                  The phrase ‘substantial and continuing’, used to qualify ‘assistance’ in the definition of ‘special need relative’ in reg 1.03 of the Migration Regulations is a composite phrase, in the sense that its two elements are cumulative. To fall within the definition, an applicant for a visa must be willing to provide not only substantial assistance, and not only continuing assistance, but assistance which is both substantial and continuing. Counsel for the appellant submitted that the composite nature of the phrase made it essential that both elements be considered at the same time, and not in sequence. Such an argument would be more likely to succeed if it could be shown that the meaning of one element of a composite phrase could affect the meaning of the other element. That argument is difficult to apply to the phrase ‘substantial and continuing’, because of the difference in nature between the two elements. The word ‘substantial’ is directed to the level of assistance that a visa applicant is willing to provide. The word ‘continuing’ is directed to the duration of that assistance, in that it focuses attention on whether the assistance is short-term or sporadic. It is difficult to see how assistance not considered to be ‘substantial’, when the question of its substance is considered alone, could be said to become ‘substantial’ when its likely duration is taken into account.

17                  The argument on behalf of the appellant was novel. There is no hint of it in any of the authorities of which I am aware, relating to the definition of ‘special need relative’. The fact that an argument must be described as novel does not lead to the conclusion that it must fail. In my view, however, there is no substance in the argument. The Tribunal was obliged to consider whether the level of assistance that the appellant was willing and able to provide to the Nominator was ‘substantial’. It was open to the Tribunal to consider this question in isolation from the question whether the assistance was also ‘continuing’. If the Tribunal found, as it did, that the level of assistance was not sufficiently great as to warrant the description ‘substantial’, it was unnecessary for the Tribunal to proceed to consider whether the assistance that the appellant was willing and able to provide was ‘continuing’. The Tribunal made no error of law in considering whether the assistance was substantial, without simultaneously considering whether it was continuing. The federal magistrate made no error in rejecting the appellant’s argument in this respect.

The cumulative nature of the Nominator’s conditions

18                  The appellant’s argument that the Tribunal failed to consider the Nominator’s conditions cumulatively must also be rejected. The Tribunal did consider first the physical conditions, and did conclude that, by themselves these conditions did not give rise to a need for substantial assistance. See the passage I have quoted in [8]. The Tribunal then proceeded to consider the emotional and psychological needs in the passage I have quoted in [8]. It is plain from the passage I have quoted in [9] that the Tribunal did then proceed to deal with the Nominator’s conditions cumulatively. There the Tribunal made it clear that it had ‘considered the medical evidence and the emotional needs of the nominator’ at the relevant time. The Tribunal did not segment the case, as counsel for the appellant contended.

Denial of procedural fairness and unreasonableness

19                  Counsel for the appellant conceded frankly that it was difficult for him to avoid the accusation that he was seeking merits review from the Court in putting the arguments based on denial of procedural fairness and unreasonableness. In reality, the arguments put on behalf of the appellant were submissions that the Tribunal ought to have found in his favour on the evidence, and complaints that it did not so find.

20                  The weight to be given to the report of Mr Kleynhans was a matter for the Tribunal. Its decision to give little weight to that report is not a reviewable error. Even if it were the case that a court might have taken a different view of the role of a practitioner called upon to provide a report relevant to adjudication of a particular issue, it was nevertheless open to the Tribunal to discount the report. As the passage I have quoted in [8] indicates, the Tribunal was largely troubled by inconsistencies between the report of Mr Kleynhans and the information provided by Dr Hogan. It referred to the absence of any reference to a fear of the dark in the report of Mr Kleynhans. The Tribunal’s finding that the report of Mr Kleynhans ‘gives a totally different picture regarding the nominator’s emotional state to that of Dr Hogan’ was open on the evidence. It may have been expressed in strong terms, but the colloquial phrase ‘totally different’ does not necessarily convey a view that the two matters being compared have absolutely no element in common. The phrase ‘totally different’ is merely an emphatic means of drawing attention to variances between two accounts. If the Tribunal can be understood as suggesting that it was strange that Mr Kleynhans made no reference to the need for further treatment, despite describing the Nominator as ‘severely depressed and suicidal’, then its reference to it being ‘inconceivable’ that Mr Kleynhans did not offer further treatment or refer the Nominator for further treatment becomes considerably less important. In any event, if it were an error, it was an error within the Tribunal’s jurisdiction. It involved neither a denial of procedural fairness, nor a finding so unreasonable that no reasonable decision-maker could have made it. The federal magistrate acted correctly in rejecting this argument.

21                  In his report dated 21 April 2002, Dr Hogan dealt specifically with the question of the time at which he had diagnosed each of the conditions referred to in his report of 11 April 2002. He said that he had been aware of the Nominator’s anxiety and fear of the dark since the arrival of her first child, but that her ability to cope had been overwhelmed with the arrival of her second child. Only on 17 April 2002 did Dr Hogan diagnose a more serious condition, namely social phobia aggravated by significant anxiety and depression. In its reasons for decision, the Tribunal was plainly considering ‘the emotional needs of the nominator at the time of application.’ See the passage I have quoted from its reasons in [8]. It is apparent from Dr Hogan’s report of 21 April 2002 that his concerns about giving a detailed account of the Nominator’s condition were expressed by reference to developments subsequent to the date of the appellant’s application for a visa, namely the birth of the Nominator’s second child and Dr Hogan’s diagnosis on 17 April 2002. There was nothing that obliged the Tribunal to take the view that Dr Hogan was speaking in some code in relation to the Nominator’s condition at the date of the application for the visa.

22                  The crucial diagnosis in Dr Hogan’s report of 21 April 2002 was expressed in the sentence: ‘Today I believe she in fact has a more serious condition of a social phobia agravated [sic] by significant anxiety & depression.’ At the very best, this sentence is ambiguous. Counsel for the appellant argued that it indicated that, by 21 April 2002, Dr Hogan had become aware of a condition that had existed all along. The alternative meaning is that the condition had worsened, so that by 21 April 2002 it was as Dr Hogan described it. The remainder of the report seems more consistent with the latter meaning than with the former. In any event, the issue was one for the Tribunal. At worst, it was a mistaken view of the evidence, which could not amount to jurisdictional error. The federal magistrate was not in error in rejecting the appellant’s argument in this respect.

23                  The Tribunal’s conclusion that the Nominator’s emotional and psychological problems did not give rise to a need for permanent or long-term assistance was based on its finding that no medical report was filed at the time of application, and its finding that Dr Hogan did not state in his report dated 21 April 2002 that the Nominator’s problems required medical treatment at the time of application. Counsel for the appellant contended that Dr Hogan’s report of 21 April 2002 clearly indicated that the Nominator was almost certainly suffering from those problems since the birth of her first child in August 1996. On this basis, it was contended that the Tribunal denied the appellant procedural fairness, by failing to draw to his attention its proposed conclusions, and to give him an opportunity to be heard with respect to them. Alternatively, he contended that the Tribunal reached a conclusion that was so unreasonable that no reasonable decision-maker could reach it. Plainly, the appellant and his migration agent were aware of the terms of Dr Hogan’s report dated 21 April 2002. The appellant’s migration agent sent the report to the Tribunal with a letter dated 13 May 2002, which contained submissions about the contents of the report. It was always open to the appellant to make whatever submissions he wished about this report. The findings to be made on the basis of it were a matter for the Tribunal, and not for the Court. It was open to the Tribunal to take the view that Dr Hogan’s evidence was that the Nominator’s condition had become worse since the arrival of her second child. Dr Hogan said as much. It would have required the making of a number of assumptions before Dr Hogan’s report could be taken to have said anything of great significance as to the Nominator’s state of health at the date of the appellant’s application for the visa. His report indicated that he was only aware of ‘multiple problems with anxiety, fear of the dark, intense dislike of travelling alone after dark’ at that time. It is true that the Tribunal said that no medical report was filed at the time of the application. The point was not to say that it was a requirement that such a report be filed. The point was to draw attention to the dearth of material about the Nominator’s condition at the time of the visa application.

24                  Even if the Tribunal were found to have been wrong in its construction of Dr Hogan’s report, and made a mistake about the need for the filing of medical reports at the time of the visa application, such errors could not amount to jurisdictional error. Nor would they be indicative of a decision so unreasonable that no reasonable decision-maker could have made it. The federal magistrate was also correct to reject this argument.

Conclusion

25                  For the reasons I have stated, the appeal must be dismissed. No reason was advanced, and none appears, why the usual rule, that costs follow the event, should not be applied. The appellant should be ordered to pay the Minister’s costs of the appeal.

Associate:

Dated: 16 August 2005