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

FEDERAL COURT OF AUSTRALIA

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

MIGRATION – application for review of decision of Migration Review Tribunal – Family (Residence) (Class AO) visa – Migration Regulations 1994 – definition of "special need relative" in reg 1.03 – whether an independent requirement that visa applicant be willing and able to provide "substantial and continuing assistance" – definition of "remaining relative" in reg 1.15(2) – whether Tribunal erred in finding definition not satisfied on facts

Migration Regulations 1994 (Cth), reg 1.03 ("special need relative"), reg 1.15(2) ("remaining relative")

Hussein v Minister for Immigration & Multicultural Affairs [1999] FCA 1621 cited Wu v Minister for Immigration & Multicultural Affairs (2000) 105 FCR 39 cited Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 followed

ANNE RAGINI NARAYAN & ANOR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 1091 OF 2001 LINDGREN, TAMBERLIN AND MERKEL JJ 10 DECEMBER 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1091 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: ANNE RAGINI NARAYAN AND FRANCIS DHIRENDRA NARAYAN

APPELLANTS

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LINDGREN, TAMBERLIN AND MERKEL JJ

DATE OF ORDER: 10 DECEMBER 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1091 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: ANNE RAGINI NARAYAN AND FRANCIS DHIRENDRA NARAYAN

APPELLANTS

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LINDGREN, TAMBERLIN AND MERKEL JJ

DATE: 10 DECEMBER 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT THE COURT:

INTRODUCTION 1 The appellants appeal from an order that their application at first instance be dismissed and that they pay the costs of the respondent ("the Minister"). Their application at first instance was for review of a decision made by the Migration Review Tribunal ("MRT") given on 2 April 2001, affirming a decision of a delegate of the Minister ("the Delegate") on 25 May 1999 refusing them and their three children Family (Residence) (Class AO) visas. 2 The first-named appellant and first applicant below ("Ms Narayan") was the primary visa applicant, and the second-named appellant and second applicant below is her husband. The husband was designated by the MRT as a secondary applicant for the visa.

background facts 3 Ms Narayan's sister, Swaran Lata Singh ("Ms Singh"), was born in Fiji on 17 July 1951. Ms Narayan was born there on 30 December 1958. On 25 April 1981 Ms Narayan married in Fiji. Between 1981 and the early 1990s, Ms Singh, then unmarried, resided with the Narayans in Fiji. On 12 June 1991 Ms Singh married Joseph Carmen Debono in Suva. 4 Ms Singh travelled to Australia on 22 February 1992 and has lived here since then with her husband, apparently until he died on 11 November 1996. Ms Singh is an Australian citizen. 5 On 6 December 1997 Ms Narayan and her three children arrived in Australia on Short Stay (Visitor) visas which expired on 6 March 1998. Shortly afterwards, on 23 December 1997, Ms Narayan's husband also arrived in Australia on a Short Stay (Visitor) visa which expired on 23 March 1998. 6 On 5 March 1998 Mr and Mrs Narayan and their three children applied for Family (Residence) (Class AO) visas. Ms Singh was their nominator. On 21 May 1999 the Delegate decided to refuse to grant the visas. Mr and Mrs Narayan and their three children applied to the MRT for review of the Delegate's decision. On 2 April 2001 the MRT affirmed the decision under review. 7 On 30 April 2001 Mr and Mrs Narayan filed an application in this Court for review of the MRT's decision. The primary Judge dismissed their application on 28 June 2001. On 17 July 2001 Mr and Mrs Narayan filed their notice of appeal.

reasoning of the mrt 8 The relevant visa subclass was "806 (Family)". The MRT set out the criteria for a Subclass 806 visa to be satisfied at the time of application and the time of decision respectively, reviewed the evidence and gave its findings and reasons. The criteria of a Subclass 806 visa to be satisfied at both the time of application and the time of decision included, in their application to the facts of this case, that Ms Narayan was a "remaining relative" or a "special need relative" of Ms Singh: cl 806.213 and cl 806.221 of Schedule 2 to the Migration Regulations 1994 (Cth) ("the Regulations"). The MRT considered that she was neither. 9 Most of the debate on the appeal concerned the "special need relative" issue rather than the "remaining relative" issue.

"Special need relative" 10 The definition of "special need relative" was found in reg 1.03 and was as follows: " 'special need relative' in relation to an Australian citizen usually resident in Australia…means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if: (a) the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and (b) the assistance cannot reasonably be obtained from: (i) any other relative of the citizen or resident, being a relative who is an Australian citizen…; or (ii) welfare, hospital, nursing or community services in Australia". 11 The MRT noted (at [42]) that the evidence was that Ms Singh suffered from depression and severe anxiety and was unable to cope on her own – a condition which had been "exacerbated by the death of her husband in 1996". The MRT observed that Ms Singh was largely estranged from the other members of her family in Australia, and that although she worked, this was to help her function normally and that she was still depressed and afraid to be by herself. The MRT then continued as follows (at [43]-[44]): "43. The Tribunal accepts the medical reports that the nominator suffers from depression, and anxiety although it notes that the report gave no account of the treatment that the nominator has been receiving or the prognosis for her illness other than that she would remain well and productive if she continues her treatment and the family remain together. Is this a prolonged illness or circumstance that falls within the definition? Policy guidelines state that the special need relative provisions are intended to cater for situations such as: 2. Special need relative provisions are intended to cater for situations such as: · the death, disability or serious prolonged illness of a spouse or other member of the family unit (as defined in regulation 1.12) that may leave the Australian relative with permanent or continuing problems providing the degree of support that is required to meet the needs of the ill person or the family; or · an incapacitating illness or disability creating a need for physical assistance in the home. 3. It is policy that, in the absence of other extenuating circumstances, none of the following on their own constitutes a serious circumstance, a permanent or long-term need or requires substantial and continuing assistance: · companionship of a relative · homesickness · general domestic assistance · assistance in bringing-up children · financial support · assistance in managing a family business · bereavement over death of a spouse. 44. It is clear that the nominator's main need is that of companionship and emotional support. This need for companionship arises from her 'severe anxiety depressive illness'. The illness does not stem from her sister's absence but has other roots, including that of being a 'timorous and rather dependent person' according to Mr Schureck [a reference to Mr Ralph J Schureck, Consultant General and Medico Legal Psychiatrist, and author of a report dated 26 February 2001 relating to Ms Singh]." (our emphasis) 12 After referring to Succary v Minister for Immigration & Multicultural Affairs (1997) 48 ALD 616 (Davies J) ("Succary"), the MRT posed the following question for itself (at [46]): "If it can be said that the nominator has a prolonged illness (depression) does the support rendered by the primary visa applicant amount to continuing and substantial assistance?" (our emphasis) Then (at [47]) the MRT noted that in Hussein v Minister for Immigration & Multicultural Affairs [1999] FCA 1621 ("Hussein") Emmett J had stated (at [20]) as follows: "I do not consider that it can be meaningfully said that Mrs Hussein would render assistance to Aiyaz in relation to his sadness and depression by remaining in Australia, simply because his sadness might return should she return to Fiji". 13 The MRT continued as follows: "48. In this case, the type of assistance being provided by the visa applicant is emotional and to a great extent consists of being close to the review applicant to provide her with the companionship she seeks. The nominator is not so incapacitated that she cannot work so that the companionship is limited to the times when the nominator is not working. She talks to her when she is depressed, and they go out together. Having regard then to the above two judgments [a reference to Succary and Hussein], the Tribunal is not satisfied that the companionship and affection shown by the primary visa applicant to the nominator is the type of assistance that falls within the scope of the legislation and policy intention. 49. The Tribunal notes further that the nominator has returned to Fiji to be with the primary visa applicant but after some months opted to return to Australia where she had her work and access to better social and health services. 50. The nominator has claimed to be estranged from her siblings in Australia and to have no friends outside her work. Statutory declarations on the DIMA file from two of her siblings and a friend do not refer to any estrangement but rather to the closeness of the relation between the primary visa applicant and the nominator and to their own commitments." (our emphasis) 14 Answering the question whether Ms Narayan could claim she was a special need relative because she was the only person who could provide the emotional support that Ms Singh needed in order to cope with her depression and anxiety, the MRT stated as follows (at [52]): "52. In this case, although the nominator would prefer not to live on her own, but have the visa applicant and her family with her, she continues to work, has some friends and colleagues as well as other family members. The Tribunal is not satisfied that the nominator cannot reasonably obtain emotional support and companionship from these other sources or from community services generally." 15 The MRT's concluding paragraph in relation to the "special need relative" issue was as follows: "55. The Tribunal accepts that the visa applicants provide great support to the nominator and that they may take the place of other immediate family as the nominator has no spouse or children of her own. The Tribunal also accepts that the visa applicants have settled well in Australia and that they may well find it difficult to resettle in Fiji given the political changes that have taken place there in the interim. However the Tribunal is not satisfied that the assistance the primary visa applicant provides to the nominator to help her cope with her anxiety and depression is substantial assistance of the kind that falls within the scope of the regulations. It follows that the Tribunal is not satisfied that the primary visa applicant meets the definition of special need relative as set out in the Regulations."

"Remaining relative" 16 The MRT disposed more briefly of the "remaining relative" question. It suffices to note that under the definition of "remaining relative" in reg 1.15 (2), an applicant for a visa was disqualified from being a "remaining relative" if: "(b) the applicant and the spouse (if any) of the applicant together have more than three overseas near relatives; ..." The expression "overseas near relative" was defined in reg 1.15(3) in terms which need not be noted. 17 In her application for the visa, Ms Narayan stated that her parents were deceased and that she had two overseas near relatives (two brothers, one in New Zealand and one in the United States). In that application she also stated that her husband had four overseas near relatives, namely, his parents, a sister and a brother, whose "country of residence" was shown in all four cases as being Canada. His birth certificate confirmed that he had two older siblings when he was born. 18 At the hearing before the MRT, Mr Narayan said that he had come from a broken family; that he had had no direct contact with his family since they left him with his grandparents when he was a child; and that he had had no direct or indirect information about his family since his grandparents had died 15-20 years earlier. 19 In the absence of any evidence to the contrary, the MRT accepted the evidence that Mr Narayan had four overseas near relatives. It followed, so the MRT concluded, that Mr and Mrs Narayan had a total of more than three overseas near relatives and that Ms Narayan was therefore disqualified from meeting the definition of "remaining relative".

reasoning of primary judge

"Special need relative" 20 The primary Judge first analysed the reasons for decision of the MRT. His Honour observed that the MRT had found that the assistance Ms Narayan was willing and able to provide to Ms Singh was not "substantial and continuing" and that it had made no finding as to whether Ms Singh's need for emotional support and companionship constituted a "permanent or long-term need for assistance". 21 His Honour noted that Mr and Mrs Narayan attacked the MRT's conclusion that Ms Narayan did not satisfy the definition of "special need relative" in reg 1.03 on three grounds, which his Honour set out as follows: "(i) the MRT's reliance on Hussein v Minister, a very different case, showed that it had misconstrued the definition;

(ii) the MRT had misinterpreted the definition, by construing it as inapplicable to a person whose principal need is companionship and emotional support; and

(iii) the MRT had regarded itself as bound by the policy stated in the Procedures Advice Manual to find that the nominator did not have a 'permanent or long term need for assistance' within the definition." 22 The primary Judge referred to the definition of "special need relative" in reg 1.03 as "framed a little awkwardly", and said (at [39]): "The awkwardness in drafting arises because the reference to the relative's willingness and ability to provide 'substantial and continuing assistance' precedes the reference to the citizen's 'permanent or long-term need for assistance'. Whether the relative can provide 'substantial and continuing assistance' to the citizen must be determined in the light of the citizen's 'permanent long-term need for assistance'. In order to satisfy the definition, the applicant must be able to provide assistance of the kind the citizen needs. In turn, the citizen's need for assistance must be because of prolonged illness or any of the other matters identified in par (a) of the definition (as Heerey J held in Tuamoheloa v Minister [FCA, 4 November 1998, unreported, at 8] ...)." 23 After reviewing the findings of the MRT, his Honour held in relation to ground (i) that the MRT had relied on Hussein, not as establishing a controlling principle of law, but merely as providing guidance as to whether Ms Narayan could in fact provide her sister with "substantial and continuing assistance" of the requisite kind. His Honour also said that even if the reference to Hussein in the MRT's reasons for decision was inappropriate, that inappropriateness did not constitute an error of law because the reasoning which that case was cited to support was reasoning on a factual question. 24 In relation to ground (ii), his Honour decided that the MRT had not misinterpreted the definition of "special need relative" by construing it as unable to be satisfied in a case where a person's principal need is for companionship and emotional support. Rather, his Honour thought that the MRT had rejected Ms Narayan's case because it concluded that the particular limited form of emotional support provided by her to her sister was in fact insufficient to amount to "substantial and continuing assistance". 25 Finally, in relation to ground (iii), his Honour thought that the MRT had not regarded itself as bound by the policy in the Procedures Advice Manual and that it had not failed to have regard to the merits of the case.

"Remaining relative" 26 Although the "remaining relative" issue did not occupy much time on the appeal, for reasons which will appear later, we will give a somewhat detailed account of his Honour's reasons in relation to it. 27 His Honour thought that the MRT had recognised that it was required to be positively satisfied that, relevantly, Mr Narayan had more than three overseas near relatives. 28 Before his Honour, counsel for Mr and Mrs Narayan submitted that the MRT had erred by paying insufficient attention to the evidence that Mr Narayan had not spoken to his parents or siblings for many years and had last heard of them from his grandparents who had died 15-20 years earlier. According to the submission, this should have led the MRT to conclude that, or at least to consider whether, Mr Narayan's parents or siblings had in fact died. 29 His Honour observed that even if this criticism of the MRT's finding was well-founded, it would amount to no more than an error of fact and would not establish a ground of review. In any event, his Honour thought, it was difficult to see why the finding was not well open to the MRT, since Ms Narayan herself, in her visa application, had identified her husband's parents and siblings as her "spouse's family" and their country of residence as Canada. The MRT had accepted that Mr Narayan had not seen or heard of his four family members in Canada for at least fifteen years, but observed that this did not compel, or even suggest, the conclusion that one or more of them had died. 30 The primary Judge observed that, as the MRT pointed out, there was no evidence that any of the husband's parents or siblings had died and Ms Narayan had never suggested to the MRT that any of them had. 31 His Honour thought that even if the rebuttable presumption of law referred to as the "presumption of death" applied to a proceeding before the MRT, on the evidence before it, the MRT had not erred in not invoking the presumption. 32 Finally, it was submitted on the hearing before the primary Judge (although not identified in the application as a ground of review) that the MRT had erred by unquestioningly accepting a policy in determining whether the definition of "remaining relative" in reg 1.15 was satisfied. His Honour rejected the submission, saying that there was nothing in the MRT's reasons to suggest that the MRT had regarded the Explanatory Statement to SR 259 of 1999 as "some form of policy it was bound to apply". In particular, his Honour thought that the MRT's reasons showed that it did not, by reference to the Explanatory Statement, impermissibly cast on Ms Narayan the onus of proving that her husband had fewer than three overseas near relatives.

reasoning on the appeal

"Special need relative" 33 The grounds of appeal were stated somewhat discursively in the notice of appeal and one ground was not pressed. We will address those that were pressed by reference to the submissions made in support of them by counsel for Ms Narayan. 34 The MRT found that Ms Narayan did not satisfy the definition of "special need relative" for two reasons: first, the assistance she had provided to Ms Singh, and therefore that which she was willing and able to provide to her, was not "substantial and continuing"; and, secondly, the assistance needed by Ms Singh could reasonably be obtained from other sources in Australia. 35 It is important background, we think, to appreciate the nature of the assistance to which the MRT was directing its mind. It found that Ms Singh continued to work and had some friends and colleagues and other family members. Accordingly, her need was found by the MRT to be for emotional support and companionship in respect of the periods of her life when she was not at work. It was this "supplementary" emotional support and companionship that the MRT found did not fall "within the scope of the legislation and policy intention" (at [48] set out at [13] above). 36 The learned primary Judge and the parties on the appeal treated, correctly in our view, this finding as a finding that this supplementary emotional support and companionship was not "substantial and continuing" for the purposes of the definition of "special need relative" in reg 1.03. This view of what the MRT meant is clearly supported by its statement (at [55] of its reasons for decision, set out at [15] above) that it was not satisfied that the assistance Ms Narayan provided to Ms Singh to help her cope with her anxiety and depression was "substantial assistance of the kind that falls within the scope of the regulations". 37 His Honour proceeded, again correctly in our view, on the footing that the MRT had refrained from deciding whether Ms Singh had, within the meaning of the definition, a "permanent or long-term need for assistance because of ... prolonged illness ... affecting [her]". That he was correct to do so is supported by the MRT's statement at [46] (set out at [12] above). 38 Literally, and in schematic form, the definition of "special need relative" requires that the visa applicant be: "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 ... prolonged illness or other serious circumstances ...; and (b) the assistance cannot reasonably be obtained from [other sources of various kinds mentioned]" 39 The opening paragraph and par (a) of the definition are closely related. So much was accepted in Wu v Minister for Immigration & Multicultural Affairs (2000) 105 FCR 39, where the Full Court said (at [41]) of the definition of "special need relative" in reg 1.03: "In our opinion the word 'serious' is simply intended to reinforce the nature of the assistance that is central to the definition, namely assistance which is substantial and continuing in relation to a need for assistance which is permanent or long-term." This passage suggests an interrelationship between the elements of the opening paragraph and those of par (a) of the definition. 40 We agree with the primary Judge's observation (at [39]) that the definition of "special need relative" is "framed a little awkwardly". Perhaps some of the awkwardness is removed if the opening paragraph and par (a) are read purposively and as a whole. 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". 41 Ms Narayan's chief submission on the appeal was that the learned primary Judge erred by construing the definition of "special need relative" as requiring "seriousness" or "substantiality" a second time rather than once only. Ms Narayan submits that, properly construed, the opening paragraph refers to nothing more (and, no doubt, nothing less) than the assistance described in par (a). She submits that the opening paragraph requires nothing more than that the visa applicant be willing and able to provide assistance of the kind described in par (a): in particular, that the opening paragraph does not require, in addition to that which is inherent in par (a), that the assistance which the visa applicant is willing and able to provide merit the epithets "substantial" and "continuing". 42 But this submission would allow the expression "substantial and continuing" no role at all. The structure and the literal terms of the definition suggest that the legislature intended the opening paragraph to have the potential to disqualify a visa applicant, even if the insubstantiality of the assistance to be provided by him or her will often signify that some other element of the definition is not satisfied either. 43 Assume that a resident or citizen lives with his or her spouse at a location remote from any relative or welfare, hospital, nursing or community services; that the resident or citizen, because of disability or prolonged illness, relies on the spouse to perform a particular minor household task; and that the spouse dies. A decision-maker may find that there is literally "a permanent or long-term need for assistance because of death" within par (a) of the definition, but that the assistance to be provided by the visa applicant is not "substantial" within its opening paragraph. On the other hand, the decision-maker may find, not only that the assistance to be provided is not substantial within that paragraph, but also that the optional and unimportant nature of the household task signifies that there is not truly "a permanent or long-term need for assistance" within the contemplation of par (a) of the definition. 44 We think the opening paragraph itself imposes a criterion which must be satisfied. "Substantial" means "of substance", "significant" or "real". At pars [48] and [55] of its reasons for decision, which were set out at [13] and [15] above respectively, the MRT found as a matter of fact that the "supplementary" emotional support and companionship which Ms Narayan was willing and able to provide was not "substantial ... assistance". That was a factual finding which was open to the MRT, the making of which betrays no error of law. 45 Before passing from this aspect of the "special need relative" issue, we note that, in our opinion, and contrary to Ms Narayan's submission: · the MRT did not proceed on the basis that in Hussein Emmett J decided that emotional support and companionship could not, as a matter of law, amount to "substantial and continuing assistance". We agree with the primary Judge (at [46]) that the MRT did not rely on Hussein as establishing a controlling principle of law, but referred to that case: "merely to reinforce the point that the fact that an applicant is a close and loving member of the nominator's family does not necessarily mean that the applicant provides 'substantial and continuing assistance' of the relative kind to the nominator";

· the MRT did not apply a requirement that the visa applicant must have been "at the root cause of the disability"; and

· the MRT did not regard itself as bound by the policy stated in the Procedures Advice Manual to find that Ms Singh did not have a "permanent or long-term need for assistance" within the definition of "special need relative". His Honour correctly explained that the MRT had regard to the policy and then decided that the present case was not an appropriate one in which to depart from it.

46 In addition to the ground that the assistance Ms Narayan was willing and able to provide was not "substantial and continuing assistance", the MRT relied on the ground that it was not satisfied that Ms Singh could not reasonably obtain the emotional support and companionship she needed from friends, colleagues and other family members (see [52] of the MRT's reasons for decision set out at [14] above). 47 This was a finding on a question of fact based on the meaning of non-technical words in the legislation: cf Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at [36]-[37] per McHugh J. The finding was open to the MRT on the material before it, and the MRT is not shown to have erred in law in making it. 48 For this further and independent reason, the MRT's conclusion that Ms Narayan did not satisfy the definition of "special need relative" is supportable and is not infected by error of law.

"Remaining relative" 49 In relation to the "remaining relative" issue, it is sufficient that we express our entire agreement with the reasons for decision of the learned primary Judge which we summarised at [26]-[32] above.

CONCLUSION 50 For the above reasons the appeal should be dismissed with costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 10 December 2001 Counsel for the Appellants: Mr C R de Robillard

Solicitors for the Appellants: Harish Prasad & Associates

Counsel for the Respondent: Ms N E Abadee

Solicitors for the Respondent: Blake Dawson Waldron

Date of Hearing: 13 November 2001

Date of Judgment: 10 December 2001