FEDERAL COURT OF AUSTRALIA Moussa v Minister for Immigration & Multicultural Affairs [2002] FCA 68 Migration Act (1958) (Cth) Hussein v Minister for Immigration & Multicultural Affairs [1999] FCA 1621 Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 SAMIA MOUSSA MOUSSA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1072 OF 2001 GYLES J SYDNEY 5 FEBRUARY 2002 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1072 OF 2001 BETWEEN: SAMIA MOUSSA MOUSSA APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: GYLES J DATE OF ORDER: 5 FEBRUARY 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The decision of the Migration Review Tribunal of 25 June 2001 be set aside. 3. The matter be remitted to the Migration Review Tribunal for consideration according to law. 4. The respondent pay the applicant's costs of the application. 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 1072 OF 2001 BETWEEN: SAMIA MOUSSA MOUSSA APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: GYLES J DATE: 5 FEBRUARY 2002 PLACE: SYDNEY REASONS FOR JUDGMENT (EX TEMPORE) 1 This is an application for review of a decision of the Migration Review Tribunal ("the Tribunal") in relation to refusal of an application for a Family (Residence) (Class AO) visa made on 9 October 1997. Because of the enormous delay which has taken place in dealing with that visa application and as I have formed a clear view as to the fate of the application, it is appropriate that I give judgment immediately rather than inflict further delay upon this applicant even though that means that the reasons for judgment may be less elaborate than they otherwise may have been. 2 The application has been amended on more than one occasion and is now a further amended application consisting of five grounds, including various particulars of those grounds. It is common ground that the principal issue for determination by the Tribunal, standing in the shoes of the original decision maker, is whether the applicant was a relative who was willing and able to provide substantial and continuing assistance to the nominator, who was her daughter, if the daughter had a permanent or long term need for assistance because of prolonged illness or other serious circumstances affecting that daughter and her children. If that were established, it would then be necessary to consider whether assistance could not reasonably be obtained from other sources. 3 I need not reproduce the grounds set out in the further amended application in this judgment. They may be seen from that further amended application. Written submissions have been filed prior to the hearing on behalf of both applicant and respondent. They are available and there has been a verbatim transcript taken of the argument which has proceeded today. I am not persuaded of any of the grounds put forward by the applicant save in two respects, to which I will return in a moment, substantially for the reasons outlined by the respondent's counsel in his written and oral submissions. 4 The two respects in which I do not accept the respondent's arguments are as follows. The first may be mentioned relatively briefly. It concerns the alleged misdirection by the Tribunal of itself in relation to the use of a decision of Emmett J in Hussein v Minister for Immigration & Multicultural Affairs [1999] FCA 1621 ("Hussein"). The Tribunal referred to that case in par 45 of its reasons for decision which was as follows: "45. Further, in Hussein v Minister for Immigration and Multicultural Affairs it was held that a mere presence of a person (even a mother) does not amount to providing assistance. 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." 5 It seems to me that the Tribunal did misread the effect of the decision in Hussein. That decision turned upon the fact that, in the view of the Tribunal and his Honour on review, there was no permanent or long term need for assistance because of prolonged illness or other serious circumstances affecting the citizen concerned. Thus, even though the presence of the mother may have alleviated the problems which the son was experiencing, as those problems did not answer the statutory criteria there was no need for assistance as required. In other words, the mother was not providing assistance within the meaning of the regulation. Once that is understood, it seems to me that the use of that authority in the present case was likely to mislead the Tribunal. In the present case the argument which was being addressed by the Tribunal was that there was, in fact, a prolonged illness and, if that hypothesis were established or accepted, then Hussein would have nothing to say about it. 6 However, it seems to me that any misunderstanding by the Tribunal of the effect of the decision in Hussein cannot be said to form a basis for the decision in a way which would lead to any form of error of law or jurisdictional error which would fall within s 476 of the Migration Act 1958 (Cth) ("the Act"). Paragraph 45 of the Tribunal's reasons is expressed to be a "further" reason and, in my opinion, it does not destroy the foundation of the decision which appears earlier if that foundation is not otherwise displaced. In any event, there is much to be said for the submission of counsel for the respondent that any misunderstanding or misapplication of Hussein was a mistake of fact rather than law. 7 That brings me to the matter which has occasioned me the greatest concern about the case and that is ground five of the further amended application and, in particular, (b) of that ground, which relates to the question of long term illness: "5. Further or in the alternative, there was no evidence or other material to justify the making of the decision in that the Tribunal based the decision on the existence of a particular fact, and that fact did not exist. … (b) The Tribunal found (at paragraph 46 of the reasons for the Tribunal's decision) that the nominator was not suffering from a long-term illness, namely depression, due to the fact (expressed in paragraph 43) that the medical reports tendered by the applicant established that "the major cause" or "one of the major causes" of the nominator's depression was the nominator's husband's behaviour towards her. The said medical reports do not and cannot establish any such finding and that fact did not exist." 8 This ground requires analysis of the much vexed interrelationship between s 476(1)(g) of the Act on the one hand and s 476(4)(b) on the other. There are a number of Full Court cases of this Court which have examined the question. It is submitted for the respondent that I will principally obtain assistance in relation to this ground from the decision of Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 ("Indatissa") and I have also been referred to Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 ("Al-Miahi"), particularly at [35]. Whilst all of the authorities on these sections do not speak with one voice and I do not think it can be said that Indatissa answers all questions about these sections, the steps which are set out at [35] of Al-Miahi are a convenient way of testing the argument in the present case. 9 The issue arises in the following way. The case for the applicant is that the nominator, her daughter, was suffering from a prolonged illness, namely, depression. That was based upon a number of medical reports which were before the Tribunal and are in evidence before me as Exhibit B. The Tribunal dealt with this issue at [43] to [46] of its reasons. I do not need to set all of that out, but I do set out [43], which is critical to the argument: "The nominator has also claimed that she is suffering from a prolonged illness as she is suffering from depression. The medical reports on this matter are on the file. Those reports indicate that the major cause of the nominator's depression was her husband's behaviour towards her and the difficulties in looking after her children. Dr Dalati suggested that the nominator was likely to suffer depression for a long time. However as noted above one of the major causes of the nominator's depression, her husband's abusive behaviour, is now removed. Although the Tribunal accepts that the nominator may be depressed by the break up of her marriage and require emotional support in the short term, it is not satisfied that the nominator will continue to require substantial and ongoing emotional assistance for depression in the long term." (emphasis added) 10 It will be seen that the Tribunal does not indicate any reservation or disagreement with the medical reports which were before it but finds, as a fact, that those reports indicate that the major cause of the nominator's depression was her husband's behaviour towards her and the difficulties in looking after her children. The consequence of that finding was that, since by the time of the Tribunal's decision the husband had left the nominator proposing divorce, one of the major causes of the depression had been removed. That gave rise to a finding (at [46]): "Given the change in the nominator's marital circumstances the Tribunal is not satisfied that this need (for assistance) is long term or permanent at the time of this decision." 11 It needs to be borne in mind that the medical reports, which extended from 25 June 1997 to 25 March 2001, were all given under circumstances where the nominator was living with her husband, albeit as time went by (particularly in relation to the reports of 2001) the marriage was unsatisfactory, and indeed, plainly in serious trouble. 12 After the date of these reports and after the Tribunal had reserved its decision, by communication in May 2001, the migration agent for the applicant advised the Tribunal as follows (omitting formal parts): "The nominator (applicant's daughter) phoned me today to advise that her husband has left her and she doesn't know of his whereabouts. He also made it quite clear that he will not return to her, and that she is "divorced". Under Islamic law the man can declare that his wife is "divorced" from him, and end the relationship by later advising the sheik of the matter, and sending her a divorce certificate. In view of the circumstance, I ask that you please give this case some priority by advising the member of the situation. The nominator is in a state of depression, and in need of emotional support which her mother would be able to provide." 13 There was no further material obtained consequent upon that advice. In other words, the Tribunal simply gave its decision, noting and taking into account the fact that the husband had left. There was, in particular, no further examination of the medical implications of that fact apart from such consideration as the Tribunal gave to it in the decision. 14 It is argued on behalf of the applicant that there is simply no indication in the medical reports that the major cause of the nominator's depression was her husband's behaviour towards her and her difficulties in looking after her children. Counsel for the respondent disagrees with this and has referred me to passages in the medical reports which refer in various ways to the unsatisfactory nature of the relationship between the nominator and her husband. I need not set those passages out in detail in this judgment: they are sufficiently identified in the transcript. In my opinion counsel for the applicant is correct in his submission. The nominator's condition and signs of depression, with what were described as psychotic and obsessive features, were first noticed in 1997 during her pregnancy. I can find no indication in any of these reports that it was the relationship with the husband which caused that clinical depression. It is a fair inference from what is said that her symptoms would not have been assisted by that relationship. However, that is a very different thing to attributing a cause to such a psychiatric illness. As counsel for the applicant said, there is a significant difference between depression of the type referred to by the medical practitioners and the psychologist here on the one hand and what laymen may call depression on the other. 15 Counsel for the respondent submits that, even if I were to come to that view, it would not lead to any relief pursuant to s 476 of the Act for various reasons. It is put that there is no particular fact identified. I disagree with this. This is a very particular and special case. In my view, the particular fact which was found was that the medical reports themselves indicated that the major cause of the depression was as the Tribunal found. It is submitted that a question as to the import of the reports is one of fact which is committed to the Tribunal and is not part of the Court's role. I agree with the principle upon which that submission is based and if there was arguably any indication along the lines found by the Tribunal then I would agree that it is no part of my function to weigh up the effect of medical reports. However, in my view, there is simply a lacunae as to the relevant fact. 16 It is then submitted that the decision was not based upon the fact as required by s 476(4). In my opinion, the most important fact in the case was the existence or otherwise of the prolonged illness. Once that was negatived, then the case for the applicant fell to the ground. The finding as to the contents of the medical reports was fundamental to the existence or otherwise of the prolonged illness. In relation to that, I should say that counsel for the respondent submitted that if the fact is narrowly defined, as I think it should be, namely a finding that the reports indicated the relevant matter, then it would be more difficult to find that the decision was based upon it. In this case, for the reasons that I have mentioned, it seems to me that the fact was critical to the decision. Furthermore, viewed as such, it is not necessary to call external or extraneous evidence to establish the non-existence of that fact. The non-existence of that fact is gleaned from consideration of the reports themselves and no external evidence is relevant to that. 17 I do not think that the fact that there would have been another criterion to be met, namely, the lack of other assistance, is relevant. Because of the way in which the matter was approached by the Tribunal, it was not necessary for this criterion to be dealt with by it. I should add that, as submitted by counsel for the respondent, the question of community assistance considered by the Tribunal was counselling in relation to the nominator's marriage break up, rather than the condition of depression. 18 That leaves consideration of s 476(1)(g), because merely complying with s 476(4)(b) does not establish the ground in s 476(1)(g). Indeed, there are many cases where it would not follow that the ground was established merely because the circumstances in s 476(4)(b) are made out. This is one of the major unresolved issues in relation to these sections. However, in the present case, given the nature of the decision which was to be made by the Tribunal, once it was found that the reports established that the nominator was not suffering from a prolonged illness, it followed that the claim would be rejected. There was no other evidence or other material to justify that fundamental element of the decision, so it seems to me that the ground is established. This is not a case in which it can be said that there is a body of other evidence which would lead to the same result. Therefore, in my opinion, in all the circumstances, the ground set out in s 476(1)(g) of the Act is established. 19 Counsel for the applicant has submitted that, if I were to come to that view, I should make a declaration that the statutory criteria have been established. A declaration is sought that the applicant was a special need relative having fulfilled all of the criteria for the grant of a visa (Sub-Class 806). As I indicated to counsel during the course of the hearing, even if in a case such as the present there is power in the court to make such a declaration (which is at least doubtful) I would not do so in the circumstances of this case. The problem lies in the fact that the Tribunal simply did not give consideration to the question which arose as to the effect of the husband leaving upon the psychiatric condition of the nominator. This was not a circumstance which was adverted to by any of the experts in their reports. Those reports themselves are now many months out of date. I have no idea what view would be come to by a properly instructed Tribunal considering that question in the circumstances that now exist on the basis of current information. I do not think that it is appropriate for me to enter upon that arena. 20 Therefore, the appeal will be allowed and I set aside the decision of the Tribunal dated 25 June 2001. I order that the matter be remitted to the Tribunal for consideration according to law. The application seeks an order that it be referred to a Tribunal differently constituted. In my opinion, that is not a course that should be taken in the absence of special circumstances. The constitution of the Tribunal is a matter for the Tribunal rather than for the Court. I order that the respondent pay the applicant's costs of the application. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 13 February 2002 Counsel for the Applicant: P Roberts SC Solicitor for the Applicant: Selby Kent Levitt Counsel for the Respondent: GT Johnson Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 5 February 2002 Date of Judgment: 5 February 2002