Abing v Minister for Immigration & Multicultural Affairs [2000] FCA 1217

FEDERAL COURT OF AUSTRALIA

Abing v Minister for Immigration & Multicultural Affairs [2000] FCA 1217

LUZVIMINDA ABING v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N1340 of 1999 JUDGE: BEAUMONT J DATE: 29 AUGUST 2000 PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1340 OF 1999

BETWEEN: LUZVIMINDA ABING

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: BEAUMONT J

DATE OF ORDER: 29 AUGUST 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Application be dismissed, with 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 N1340 OF 1999

BETWEEN: LUZVIMINDA ABING

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: BEAUMONT J

DATE: 29 AUGUST 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT

iNTRODUCTION 1 The Migration Review Tribunal ("the Tribunal") affirmed a decision of the Minister's delegate refusing a "Special Need Relative" visa under subclass 806.213. The applicant, a citizen of the Philippines, now seeks judicial review of the Tribunal's decision, which was given on 18 October 1999. 2 The relevant primary criteria are as follows: "806.213 [That] (t)he applicant is a Special Need Relative of another person who: (a) is a settled Australian citizen; and (b) is usually resident in Australia; and (c) has nominated the applicant for the grant of a visa."(emphasis added) 3 The applicant was nominated by her sister, Mrs Veronica Gonzales. 4 Before the Tribunal, no issue arose in respect of (a), (b) or (c), above. The area of contention centred on the definition of "Special Need Relative" in Reg 1.03 of the Migration Regulations, relevantly as follows:

"special need relative

in relation to an Australian citizen usually resident in Australia ("Special Need Relative")…… means a relative who is willing and able to provide substantial and continuing assistance to the citizen ….. if: (a) the citizen … has a permanent or long- term need for assistance because of … disability, prolonged illness or other serious circumstances affecting the citizen …; and (b) the assistance cannot reasonably be obtained from: (i) ….. (ii) welfare, hospital, nursing or community services in Australia."

The Tribunal's decision 5 The Tribunal referred to the evidence before it as follows: "9. Mrs Gonzales gave evidence that she continues to have panic attacks whenever she is upset about something. This problem has been ongoing since at least 4 August 1997, when she was seen by a counsellor at IPS Employee Assistance. 10. Mrs Gonzales's employer, Yellow Pages, sent her for counselling as her superiors were concerned that she could not continue in their employ if she had the attacks which were plaguing her. 11. Despite her problems, Mrs Gonzales has held down the same job for 13 years. Nevertheless, she fears she will not be able to cope if her sister leaves her alone in Australia. 12. Mrs Gonzales has no relatives in Australia since her husband left. She returned to the Philippines to be with her family and to see if her panic attacks and other symptoms responded better with family around her in [sic]. Instead, she found that her symptoms persisted and she fainted in a crowded shopping centre. She found the traffic and crowds gave her agoraphobia so she decided to come back to Australia. 13. The Applicant gave evidence that she has lived with her sister since she came to Australia. She also works and has a defacto husband and an infant who was born in Australia. They all live in the one household." 6 The Tribunal went on to refer to the evidence as follows: "14. She [the applicant] works in a dental clinic and was trained as a dentist in the Philippines. She has an arrangement with her employer to be able to leave at short notice if her sister needs her. 15. An incident recently meant that she spent 5 hours away from work and at Royal North Shore Hospital where her sister was sent by her GP for cardiology tests after one of her attacks. The attack took place at work after an incident with the other tenant at home which upset her. 16. Mrs Gonzales's suffers from "arterial hypertension", anxiety, irritable bowel syndrome, panic attack and depression. The panic attack symptoms include shaking which develops into palpitations, shortness of breath, sweating and light headedness. The most recent bout of panic attack, which occurred on 23 August 1999, was so alarming that the doctor who saw her at the Northern Sydney Health Service called an ambulance for her to be transported to the Royal North Shore Hospital. 17. The Hospital released Mrs Gonzales after checks. There appears to be no satisfactory treatment to prevent the attacks but she and the Applicant and her husband have changed their address so that no one else lives with them." 7 The Tribunal added: "19. The main evidence is that Mrs Gonzales responds well to her sister when she has an attack. No one else can help her when these incidents occur particularly if they happen in the middle of the night. The Applicant has some medical knowledge from her dentistry training and understands her sister. She is able to reassure and calm her and takes her for walks near where they live. 20. The two sisters (Applicant and Nominator) live together so the sisters can be together quickly in time of need. 21. The Applicant says the change in circumstance after she arrived in Australia, on which her claim is based, was the break up of her sister's marriage. She seems to have suffered from her ailments since before this time. At the time of the application, Ms Abing's sister had the same symptoms as she continue to exhibit from time to time. The most recent episode occurred on … 23 August 1999. The earliest evidence on the Department's file is dated 22 July 1997 from Dr Alan McLeay of Kirribilli Medicine." 8 In expressing its findings, the Tribunal said: "24. Some guidance about the interpretation of the "special need relative" criteria can be obtained from Departmental policy documents, particularly the Procedures Advice Manual 3 (PAM3) and from decided cases. Justice Burchett in Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 418 (at 429-430) said: 'It is appropriate to observe the definition of 'special need relative' is largely concerned with medical issues. There must be a need, not necessarily permanent but at least long term, for some form of assistance because of death, disability, prolonged illness or other serious circumstances… There must be an inability to obtain 'the assistance' from the other sources mentioned …' 25. This view has been modified by later cases and the circumstances need not be medical for special need to arise. Justice Ryan in Vo'ifaleahi v Minister for Immigration, Local Government and Ethnic Affairs (1995) 137 ALR 370 also discussed special needs. His Honour found special need does not have to be wholly or even primarily medical or even physical. Nor is the assistance restricted to physical assistance rather than, say psychological assistance." 9 The Tribunal went on to say: "28. The other main circumstance that must be examined is whether the assistance sought from the special need relative cannot reasonably be obtained from any other relative of the citizen or resident, being a relative who is an Australian citizen, or welfare, hospital, nursing or community services in Australia. In Minister for Immigration and Multicultural Affairs v Succary (Davies J [1997] 48 ALD 616), an application was rejected because the Court held that treatment for the nominator's severe medical condition was reasonably available in Australia. The nominator in that case required daily dialysis for a renal condition. 29. It can be seen from Succary that even very serious circumstances do not always mean that the person assisting the Australian relative in need give rise to the requisite degree of need. The Tuamheloa case ([1998] 1406 FCA, Heerey J) that separation from relatives, even in the instance of parent and child is not sufficiently serious to trigger the special need relative provisions." 10 The Tribunal expressed its conclusion thus: "30. The Tribunal must look at such matters as the nature of the problem or disability, the treatment or course of action dictated by the need, the prognosis, the need for psychological support (including emotional support) and why there is said to be a need for special assistance. 31. The Tribunal finds that the applicant does not meet the criteria for special need relative or any other subclass. The assistance that she is providing to Mrs Gonzales, while helpful and supportive for her sister, does not fall within the serious circumstances described in decided cases on the definition of "special need relative". 11 The Tribunal then said that its conclusions were reinforced by the Policy Advice Manual which, in this connection, relevantly states: "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 · Home sickness · General domestic assistance · Assistance in bringing up children · Financial support · Assistance in managing a family business …" 12 The Tribunal said: "33. The type of assistance she now receives is more in the nature of companionship and comfort or reassurance of a relative. The medical problems that arise as a result of the panic attacks, although they are frightening, may be met as they are at present, by counselling or attention from welfare, hospital, nursing or community services in Australia."

CONCLUSIONS ON THE APPLICATION FOR JUDICIAL REVIEW 13 Several grounds for review are sought to be relied on. It will be convenient to consider them in turn.

The first ground relied on: ALLEGED ERROR OF LAW [MIGRATION ACT, s 476(1)(e) 14 By s 476(1)(e) it is provided that a decision is judicially reviewable where an error of law is involved. 15 On behalf of the applicant, it is submitted that the Tribunal erred in law by wrongly restricting the definition of "Special Need Relative" so as to exclude a case of the present kind; that is to say, where, although there is no satisfactory professional treatment to prevent attacks, the applicant responds well to her sister's involvement. 16 I cannot accept the argument that any error of law was involved. Clearly, an exercise of judgment on the facts was called for. But, in my opinion, the Tribunal addressed the correct legal question, that is to say, whether the applicant was willing and able to provide substantial and continuing assistance where (a) there was "a permanent or long-term need for (that) assistance because of … prolonged illness or other serious circumstances affecting (the applicant) personally; and (b) that assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia." 17 In the present circumstances, a conclusion that either, or both, of these conditions had not been satisfied here was, in my opinion, reasonably open on the present facts. 18 Nor, in my view, did the Tribunal err in law, as suggested, by not considering all of the Nominator's medical complaints, noting that the applicant's assistance related mainly to the Nominator's panic attacks.

the second ground relied on: alleged failure to observe procedures [migration act: S 368] 19 By s 368 it is provided that the Tribunal must give reasons, and must refer to the evidence or other material on which its findings of fact were based. 20 On behalf of the applicant, reference is made to the Tribunal's description of the present situation as "more in the nature of companionship and comfort or reassurance of a relative". It is said that, in breach of s 368, no reasons for this finding were given, and no reference made to the evidence or other material to base that finding. 21 The meaning and operation of s 430 of the Act (the substantial equivalent of s 368) were considered by a recent Full Court in Singh [2000] FCA 845. The majority there decided: · a failure to comply with s 430(1) is a failure to observe procedures required by the Act to be observed in connection with the making of a decision and therefore constitutes a ground of review under s 476(1)(a): see [43]; · s 430(1) does not impose any obligation on the RRT to prepare a statement disclosing a satisfactory process of reasoning leading to the decision it reached, although the RRT is obliged to set out its findings on any material questions of fact: see [44] and [47]; · there is no specific requirement in s 430(1) for the RRT to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding it made, although if one of the reasons which actually induced the RRT to come to its decision was that it decided to reject or place no weight on particular material, then s 430(1)(b) would require disclosure of that element of the RRT's actual reasoning process: see [46]; · the RRT is under a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision it is required to make. Consequently, it must make findings on questions of fact "that are central to the case raised by the material and evidence before it" or upon which the "decision, one way or the other, turns", having regard to the process of reasoning the RRT has employed as the basis for its decision: see [48], [56] and [57]; · a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact must be dealt with: see [56]. Accordingly, a failure to comply with s 430 is not made out by reason only of the failure on the part of the RRT to explain why it had not accepted and acted upon material which was contrary to the findings which it had made on an issue: see [56] and [64]; · fundamentally, on a fair reading, the reasons of the RRT need to reveal to the parties why the decision went the way it did: see [62]." (See Najarian [2000] FCA 933 at para 130). 22 It is true that the Policy Statement indicated that, in the absence of extenuating circumstances, "companionship" of a relative will not qualify; and that the Tribunal, as mentioned, spoke of "something more in the nature of companionship and comfort or reassurance". But this does not, in my view, involve any failure to satisfy the requirements of s 368. It is plain that the words used in the statutory definition of the "Special Need Relative", and in the Policy Statement, are intended to have their ordinary [ie non-technical] meaning. It is equally plain that the language used by the Tribunal was intended to have its ordinary [ie non-technical] meaning. In other words, the Tribunal was not dealing with technical terms which might have called for some explanation for the sake of clarity. The point before the Tribunal was, in truth, short and essentially one of impression. In my opinion, the Tribunal's approach satisfied each of the various tests explained in Singh. 23 Accordingly, the application must be dismissed, with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate: Dated: 29 August 2000 Counsel for the Applicant: J Parnell

Solicitor for the Applicant: Belen Oag

Counsel for the Respondent: T Reilly

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 27 April 2000

Date of Judgment: 29 August 2000