FEDERAL COURT OF AUSTRALIA Xiang v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 64 MIGRATION – judicial review – special need relative visa – visa refused because appellant not "able" to provide assistance – meaning of "able" – visa also refused because appellant did not continue to meet visa criteria between application and final decision – meaning of "continues" – jurisdictional error WORDS AND PHRASES – "able" – "continues" Migration Act 1958 (Cth) s 474 Migration Regulations 1994 (Cth) reg 806 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 referred to Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 applied Craig v State of South Australia (1995) 184 CLR 163 referred to Koulaxazov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 75 not followed NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298 not followed Rao v Minister for Immigration and Multicultural Affairs [2001] FCA 1755 considered S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 followed XIANG PING LI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 954 of 2003 GOLDBERG, FINKELSTEIN & WEINBERG JJ 23 MARCH 2004 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 954 of 2003 On Appeal from the Federal Magistrates Court of Australia BETWEEN: XIANG PING LI Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent JUDGES: GOLDBERG, FINKELSTEIN & WEINBERG JJ DATE OF ORDER: 23 MARCH 2004 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be allowed. 1. The orders of the Federal Magistrate made on 19 September 2003 be set aside. 1. A writ of certiorari issue to quash the decision of the Migration Review Tribunal made on 12 December 2002. 1. The matter be remitted to the Tribunal to be determined according to law. 1. The respondent pay the appellant's costs of the hearing in the Federal Magistrates Court and of this appeal, such costs to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 954 of 2003 On Appeal from the Federal Magistrates Court of Australia BETWEEN: XIANG PING LI Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent JUDGES: GOLDBERG, FINKELSTEIN & WEINBERG JJ DATE: 23 MARCH 2004 PLACE: MELBOURNE REASONS FOR JUDGMENT THE COURT: 1 Ms Xiang Ping Li, the appellant, is a Chinese national. She came to Australia in 1996 on a short stay tourist visa and later was granted a long stay tourist visa. In 1997 she applied for a Family (Residence) (class AO) subclass 806 visa on the basis that she was a "special need relative". This visa would enable her to remain in Australia for four years. The Minister for Immigration and Multicultural and Indigenous Affairs (by his delegate) was not satisfied that Ms Xiang met the criteria for a "special need relative" visa. On an application for review to the Migration Review Tribunal, the delegate's decision was affirmed. A challenge to the tribunal's decision in the Federal Magistrates Court was also unsuccessful. The appellant now appeals from the magistrate's decision. 2 The Migration Regulations 1994 (Cth), in force at the relevant time, set out the criteria for a "special need relative" visa. Relevantly, Reg 806 provided: "806.21 Criteria to be satisfied at time of application … 806.213 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 a settled eligible New Zealand citizen; and (b) is usually resident in Australia; and (c) has nominated the applicant for the grant of the visa. 806.22 Criteria to be satisfied at time of decision 806.221 The applicant continues to satisfy the criteria in clause 806.213." "Special need relative" is defined in regulation 1.03 to mean: "[I]n 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" 3 Ms Xiang claimed to be a "special need relative" of her aunt, Mrs Jukova, who is an Australian citizen. Mrs Jukova was 58 years old at the time of the visa application. She has been blind for many years, and suffers from a debilitating condition called systemic lupus erythematosus. This condition affects her immune system as well as the tissues and organs in her body. Mrs Jukova also suffers from "physical difficulties" resulting from work related injuries. It is common ground that Mrs Jukova has a permanent and long-term need for assistance because of her disabilities and requires 24 hour care. It is also common ground that Mrs Jukova cannot reasonably obtain that assistance from any relative in Australia or from an appropriate welfare, hospital, nursing or community service in Australia. 4 In these circumstances for Ms Xiang to fall within the definition of "special need relative" she was only required to satisfy the tribunal that she was "willing and able to provide [the requisite] assistance" at the time of her visa application (5 August 1997) and that she "continue[d]" to be "willing and able" to provide that assistance when the tribunal made its decision (12 December 2002). This she failed to do. The reason for her failure must be explained. 5 The starting point is with events which occurred between the application and the decision, the period that the tribunal referred to as "the intervening period". Mrs Jukova travelled to China on 28 March 1998 and returned on 12 December 1998. Shortly after Mrs Jukova left for China, Ms Xiang took up employment as a packer at a nursery. On her aunt's return, Ms Xiang retained her job but carried out the work from home. She gave up her employment in September 2001 when, as the tribunal put it, Mrs Jukova's "need for assistance became more demanding". These were the facts which led the tribunal and the magistrate to accept that Ms Xiang was not "willing and able to provide substantial and continuing assistance" to her aunt at the time she made the application for a visa. 6 In reaching this conclusion the tribunal fell into error in several respects. The first error is the tribunal's construction of the phrase "is willing and able to provide substantial and continuing assistance". Plainly two inquiries were called for. The first was whether Ms Xiang was "willing" to provide the required assistance. The tribunal was satisfied that she was willing to provide that assistance. However, the tribunal found that at the time of her application Ms Xiang was not "able" to do so. According to the tribunal, the reason Ms Xiang was not "able" to provide that assistance was because she had not provided any assistance while her aunt was overseas. The tribunal said: "The Tribunal finds that there was a break of such duration in the care of [Mrs Jukova] as a result of the absence of [Mrs Jukova] overseas which cannot be regarded as a temporary or expected interruption in the overall care provided by [Ms Xiang] to [Mrs Jukova]." It also relied upon a second factor to justify its conclusion. It said that Ms Xiang "commenced full time or nearly full time employment from February 1998, a month prior to [Mrs Jukova's] departure from Australia … this employment continued, although based from home [from] September 2001. This appears inconsistent with the type of substantial care envisaged by the regulations." 7 The error is apparent. The tribunal has misconstrued the word "able". In the tribunal's view a visa applicant is not "able" to provide the required assistance if the applicant does not in fact provide that assistance. That is not what the word means. A visa applicant must show that he or she is "willing and able" to provide the required assistance. The first limb (the applicant's willingness) is concerned with the applicant's state of mind. Is the applicant prepared to do what is necessary to provide the assistance? The second limb (whether the applicant is "able" to provide that assistance) calls for an objective inquiry. The question is whether the visa applicant is a person who is suitable or fit to provide the assistance. That the visa applicant may not have provided assistance to a relative during the intervening period (or indeed at any time), especially for reasons beyond the applicant's control, will normally be irrelevant to the tribunal's inquiry. 8 The tribunal also fell into error in the meaning it placed on the word "continues" in subcl 806.221. According to the tribunal it means that a visa applicant must do more than establish that he or she is a special need relative at the time of application and at the time of decision. It also requires the applicant to satisfy this definition throughout the entire intervening period, or at least for a substantial part of that period. According to the tribunal "[t]o hold otherwise would deny any use or purpose to the inclusion of the word 'continues' in the regulations." Although not the subject of complaint, it should be noted that the tribunal said that unless an applicant was a special need relative during the period between the time of the application and the time of decision, the applicant would not satisfy subcl 806.213. Even if the tribunal were correct in its construction (which it is not, for reasons soon to be explained), it was wrong to hold that this would result in a failure to satisfy subcl 806.213. It could only lead the tribunal to the conclusion that the visa applicant had failed to satisfy subcl 806.221, namely the criteria at the time of decision, and not that she had failed to do so at the time of the application. 9 Returning to the meaning of the word "continues" in subcl 806.221, that meaning cannot be considered in isolation. Its meaning must be gathered from the context. The context is that a visa applicant must be a "special need relative" both at the time of application, and at the time of decision, to satisfy that criteria. It will be remembered that a special need relative is defined as a relative who is willing and able to provide the requisite assistance to an Australian or New Zealand citizen or resident. The first point to note is that the word to be construed is the verb "continues" and not the adjective "continuing". Second, it is plain that the word "continues" is not concerned with any activity on the part of the visa applicant, but rather with the applicant's status; a status which has a temporal condition. 10 Finally, the question whether the applicant meets the criteria at the time of application and at the time of decision is determined at the time of decision. Relevantly, the question is whether the applicant was (at the time of application) and still is (at the time of decision) a "special need relative". That is to say, the applicant "continues" that status if the applicant still is a "special need relative" at a particular time; that time being when the decision is made. Possibly the draftsman assumed that a person who was a "special need relative" at the time of the application and continues to satisfy that condition on the day of decision would be a "special need relative" throughout the intervening period. But, whatever may be the assumption, there is no legal requirement that this be so. This conclusion is probably inconsistent with the decision in Rao v Minister for Immigration and Multicultural Affairs [2001] FCA 1755. There on a slightly differently worded regulation Allsop J decided that the word "continues" was not intended to limit the enquiry whether the visa applicant in that case had satisfied the relevant criteria at the time of the decision. On the other hand, the judgment in that case may be supported because the word "continues" was used in a different context. This issue need not be resolved. 11 The errors we have identified are jurisdictional errors "in the narrow original sense", to adopt the expression used by Lord Reid in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 at 171; see also Craig v State of South Australia (1995) 184 CLR 163 at 179. In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, Gleeson CJ, Gaudron and Hayne JJ said (at 208-209): "There would only have been jurisdictional error on the part of the Full Bench if it had misconceived its role or if, in terms used by Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council [(1947) 47 SR (NSW) 416 at 420] it 'misunder[stood] the nature of [its] jurisdiction' ... or 'misconceive[d] its duty' [or '[failed] to apply itself to the question which [the relevant Act] prescribes' … or '[misunderstood] the nature of the opinion which it [was] to form'." 12 Jurisdictional errors are errors which are not protected by the privative clause in s 474 of the Migration Act 1958 (Cth). The respondent says that NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298 ("NAAV") requires that all "narrow" jurisdictional errors, other than an error arising from a breach of the rules of natural justice, be protected by s 474. In our view, however, this argument is not correct. None of the majority reasoning in NAAV survives the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The concise but sharply expressed dissenting views of Madgwick J on this point in Koulaxazov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 75 at [10] – [13] are, we think, correct and do not require further exposition. The High Court confirmed this view when refusing special leave to appeal in Minister for Immigration and Multicultural and Indigenous Affairs v Lobo [2004] HCA Trans 21. 13 The appeal will be allowed, the decision of the Magistrate (who affirmed the tribunal's decision) will be set aside and a writ of certiorari will issue to quash the tribunal's decision. That leaves the question whether the matter should be remitted to the tribunal for reconsideration or whether it is best that we simply require, by writ of mandamus, that the tribunal render a decision that Ms Xiang has satisfied the definition. 14 After some hesitation we think that the preferable course is to remit the matter to the tribunal and leave it to resolve the matter in the usual way. We take this course not because we think there is much prospect of the tribunal making a finding adverse to Ms Xiang - on the evidence before the tribunal it is unlikely that it would do that. However, the safest course is to remit the matter because the tribunal failed to undertake the appropriate inquiry in virtue of the view it took of the regulations. There may be some fact of which we are unaware that takes Ms Xiang outside the definition. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Goldberg, Finkelstein & Weinberg. Associate: Dated: 23 March 2004 Counsel for the Appellant: Mr T Hurley Solicitor for the Appellant: Armstrong Ross Counsel for the Respondent: Mr C Fairfield Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 11 February 2004 Date of Judgment: 23 March 2004