FEDERAL COURT OF AUSTRALIA Koulaxazov v Minister for Immigration & Multicultural Affairs [2002] FCA 554 MIGRATION – application for an order of review – whether the Migration Review Tribunal erred in refusing to grant the Applicant a Special; Eligibility (Residence) (Class AO) Visa. Migration Act 1958 (Cth) s 353 KOULAXAZOV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS S 179 OF 2001 O'LOUGHLIN J 3 MAY 2002 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 179 OF 2001 BETWEEN: PETAR NIKOLOV KOULAXAZOV APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: O'LOUGHLIN J DATE OF ORDER: 3 MAY 2002 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The Application be dismissed. 2. The Applicant pay the Respondent's costs which costs are 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 SOUTH AUSTRALIA DISTRICT REGISTRY S 179 OF 2001 BETWEEN: PETAR NIKOLOV KOULAXAZOV APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: O'LOUGHLIN J DATE: 3 MAY 2002 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 The applicant in these proceedings, Petar Nikolov Koulaxazov (Mr Koulaxazov), who was born in Bulgaria on 29 April 1942, arrived in Australia on a Tourist (Short Stay) Subclass 676 Visa with an expiry date of 8 June 1997. On 12 May 1997, he sought and obtained a Tourist (Long Stay) Subclass 686 Visa which was due to expire on 8 September 1997. On 7 July 1997, he applied for a Special Eligibility (Residence) (Class AO) Visa. However, a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refused his application on 5 March 1999. 2 Mr Koulaxazov lodged an application with the Migration Internal Review Office for the internal review of the delegate's decision on 30 March 1999. That application became an application for review to the Migration Review Tribunal ("the Tribunal") as from 1 June 1999 as a consequence of the transitional provisions in the Migration Legislation Amendment Act (No 1) 1998 (Cth). On 14 September 2001, the Tribunal affirmed the original decision of the Minister's delegate. 3 Mr Koulaxazov now seeks from this Court a review of the decision of the Tribunal. His initial application, which was filed on 10 October 2001, has been replaced with an amended application that was filed on 26 February 2002. 4 In his amended application Mr Koulaxazov claimed that the Tribunal's decision contained a jurisdictional error. That error was alleged to be a combination of various factors in that it was claimed that the Tribunal identified wrong issues, asked the wrong questions, ignored relevant material, relied on irrelevant material and thereby exceeded the authority or powers that it enjoyed under the Migration Act 1958 (Cth) ("the Act"). That combination of errors was then particularised in the amended application in the following manner: · in the first place, it was submitted that the Tribunal failed to address, as it was required to do by reg 1.03, whether there were "other serious circumstances" present in this case; · secondly, the Tribunal misstated the applicable law in that it stated that each of the four criteria that are contained in reg 1.03 must be addressed; · thirdly, it was claimed that the Tribunal failed to make actual findings when it decided that the criteria that are contained in reg 1.03 had not been satisfied; and · finally, the Tribunal was in error when it held that there was "no medical evidence of permanent disability" because the language of reg 1.03 refers only to a "disability" – not a "permanent disability". 5 The application for the visa that is the subject of this review was made by Mr Koulaxazov on the basis that he was a "special need relative" of his mother. His mother, who was his nominator, was at the time of his application in 1997, seventy-seven years of age. 6 The term "special need relative" was defined in Reg 1.03 of the regulations at the time when Mr Koulaxazov lodged his application in the following terms: "… '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;" As the Tribunal pointed out in its reasons, it was necessary for the Tribunal, when considering whether an applicant for a visa was a "special need relative", to address each material aspect of that definition. The Tribunal further pointed out, correctly in my opinion, that these aspects had to be present at the time when the application for the visa was made and at the time when the Tribunal delivered its decision. 7 When interviewed by an officer of the Department, Mr Koulaxazov, who is presently living with his mother, said that he would stay with her in her house and help her. He added that he considered that it was important that he could provide her with "moral support". At the same time, he made it clear that he would like to work part-time to supplement his and his mother's income. He subsequently received departmental approval to do that. He explained during the course of his interview that he did not consider that he would be able to work full-time "because he needed to help his mother"; Mr Koulaxazov said that he helps her, for example, with her medication because she is forgetful. His mother contributes to the cleaning and the cooking but he assists her in that work. He also assists her with the laundry and the shopping. 8 Mrs Gamtcheff, Mr Koulaxazov's mother, has lived in Australia since 1971. She has been married on three occasions and her last husband died in 1994. In addition to Mr Koulaxazov, she has two other children, both of whom are citizens and residents of Bulgaria. Mrs Gamtcheff said, when she was interviewed by an officer of the Department, that she had asked her son, the applicant, to visit her in Australia because he was then divorced: her other children were married with families. Mrs Gamtcheff has two step-children as a result of her third marriage but, although both live in Adelaide, she has little or no contact with either of them. 9 It is quite obvious that Mrs Gamtcheff does not enjoy good health. The medical reports that were placed before the Tribunal show that she is diabetic with high blood pressure; she has problems resulting from a broken leg and is arthritic. The Tribunal noted: "She has also recently had a skin cancer removed, and will probably need a cataract operation, as well as hip/knee surgery. She said that her health had become worse over the last couple of years, which is why she then asked her son to come." 10 Mrs Gamtcheff is aware of the existence of support facilities; she has received Domiciliary Care in the provision of a shower rail and a walking stick. Her local council arranged for a cleaner on one occasion but Mrs Gamtcheff was not happy with the woman. She has not requested help from Meals on Wheels. The only recent assistance that she has sought by way of community services are visits from social workers. The Tribunal noted that the Departmental Officer who conducted the interview had recorded that: "It would appear that [Mrs Gamtcheff] could take advantage of more community services than she has so far." 11 The Tribunal questioned Mr Koulaxazov about the assistance that might be available to Mrs Gamtcheff through welfare and community services. He did not know anything about these services saying, instead, that he thought that his mother took "pride in receiving assistance from him rather than from a government agency". 12 In his evidence before the tribunal, Mr Koulaxazov said that his mother's health had declined to such an extent that there were now many things, such as shopping, that she could no longer do by herself. (She was, at the time of the hearing, in hospital recuperating from surgery for cancer and was not therefore available to give evidence). Mr Koulaxazov said that she would need permanent assistance when she came out of hospital. 13 A Mr Tchurbadjiev, a family friend, gave evidence on behalf of the applicant. He and his wife had visited Mrs Gamtcheff regularly. Significantly, the Tribunal recorded that Mr Tchurbadjiev had said that: "His wife has offered to help, but [Mr Koulaxazov] and his mother have refused. Assistance is not accepted because [Mrs Gamtcheff] and [Mr Koulaxazov] do not want anyone else involved for religious and personal reasons." 14 A substantial amount of medical evidence was produced to the Minister's delegate. The Tribunal, in turn, referred to much of that material. In addition, the Tribunal wrote Mr Koulaxazov on 27 April 2001, prior to the hearing, inviting him to provide "additional information by way of updated medical reports in relation to his mother's medical condition". In doing this, it showed that the Tribunal was acutely aware that, above all else, the state of Mrs Gamtcheff's health and her wellbeing, was central to the success of Mr Koulaxazov's application. No matter how concerned he may be about his mother – no matter how well intentioned he may be – he would not qualify for the visa unless his mother had a permanent or long-term need for assistance because of one or other of the four identifiers (ie death, disability, prolonged illness or other serious circumstances) and that assistance was not otherwise available from the sources referred to in the regulation. 15 A letter from Ms Pepple Shih, a social worker, was received by the Tribunal on 24 May 2001, presumably as a consequence of the Tribunal's letter to Mr Koulaxazov dated 27 April. The Tribunal noted that Ms Shih had written that Mrs Gamtcheff's mobility: "…has been greatly affected by severe arthritis and that she has difficulty maintaining daily activities without assistance." It then quoted from her letter, where she added: "Mr Koulaxazov's presence and assistance to his mother is of significant value not only to the mother and son relationship, the psychosocial health of both, but also as a cost saving in terms of the community resources Mrs Gamcheff would otherwise need." 16 At the conclusion of the proceedings, the Tribunal granted leave to Mr Koulaxazov to provide further medical reports in relation to his mother's health. The Tribunal subsequently received a letter from Dr David Middleton of St Margaret's Hospital which stated that Mrs Gamtcheff was an in-patient who had recently undergone surgery for a hysterectomy. She was described as suffering from severe ongoing 'chronic medical problems' including acute or chronic renal failure, hypertension, depression and ischaemic heart disease. The Tribunal also noted that Dr Middleton stated that she also suffers from non-insulin dependent diabetes. 17 Dr Mitev is Mrs Gamtcheff's general practitioner. She had supplied the delegate and the Tribunal with several reports on Mrs Gamtcheff's medical condition, the most recent of which was on 10 May 2001. In that report, the Tribunal noted that most of Mrs Gamtcheff's medical problems were controlled with medication. The Tribunal went on to say that the report indicated that Mrs Gamtcheff's depression was much improved but that she suffered anxiety attacks which, according to Dr Mitev's report: "… seem to be based on the very real worry about how she will manage if her son is not allowed to stay with her to look after her and support her emotionally. Without her son Mrs Gamtchev is completely alone here in Australia, as he is her only real family here, and, although her second (sic: third ?) husband (now deceased) had family they have apparently abandoned her completely and in fact don't even communicate with her al all… Since I started to look after Mrs Gamtchev I am convinced her health, and in particular her mental health would not be as 'good' as they are if she had not had her son nearby to support (and comfort) her … I think that if Mr Koulaxazov was not here Mrs Gamtchev would probably need to be a huge drain on the community in the form of home assistance or age care accommodation, due to her lack of mobility, from the arthritis she suffers. Even more than this I suspect her depression could deteriorate to the point where she would no longer be able to look after herself or perhaps even wish to." 18 What was written by Dr Mitev was, unwittingly, a strange and sad paradox. On the one hand, she emphasised that Mrs Gamtcheff would benefit from her son's presence yet, on the other hand, she indirectly acknowledged that Mrs Gamtcheff's needs – albeit at a cost to the community – could be catered for "in the form of home assistance or age care accommodation …". However, neither the Tribunal nor the Court is able to look at the practical economics of the case: both must act within the framework of the legislation. 19 In order for Mr Koulaxazov to qualify as a "special need relative" it would be necessary for the Tribunal to be satisfied that it had material before it that would identify his mother as a person to whom the regulation operates. That has been satisfied in this case. The Tribunal was satisfied that the applicant's mother was an Australian citizen who was usually resident in Australia. She has been an Australian citizen since 20 February 1973. The Tribunal also had to be satisfied that Mr Koulaxazov was, and is, a relative who is willing and able to provide substantial and continuing assistance to the first mentioned person – that is, his mother. It would seem that the Tribunal was satisfied about this qualification. It is implicit from its reasons that it accepted that the relationship of mother and son existed and that Mr Koulaxazov was willing and able to provide assistance to his mother. 20 The Tribunal next had to be satisfied that the mother has a permanent or long-term need for assistance because of one or more of the four identifiers that are referred to in par (a) of Reg 1.03. The Tribunal, in my opinion, unnecessarily, spent time in first considering whether "death, disability, prolonged illness or other serious circumstances" applied to Mrs Gamtcheff. In my view, the first task of the Tribunal was to inquire whether Mrs Gamtcheff had "a permanent or long-term need for assistance". If the Tribunal was satisfied that there was such a need, then its second task was to inquire into the cause of the need. As to that exercise, the need had to exist because of "death, disability, prolonged illness or other serious circumstances." In the case under review, the Tribunal concluded that Mrs Gamtcheff did not suffer "a permanent or long-term need for assistance". That being the case, it was not necessary for the Tribunal to address the four identifiers. The Tribunal, in addressing the subject of "disability" and relating it to the subject of "permanent or long-term need for assistance" found that: "… there is no medical evidence before the Tribunal to the effect that the [mother] is permanently disabled or needs long-term assistance, except to the extent of her need for comfort from [her son] in an emotional sense." That finding was, in my opinion, open to the Tribunal on the evidence that was before it. As the Tribunal noted in its reasons: "[Mr Koulaxazov's] evidence was that he is required to assist his mother in a general domestic sense for some of the time. He has not had to assist in relation to her personal needs. With respect to [Mrs Gamtcheff's] psychiatric health, the Tribunal notes the opinion of Dr Elaine Jensen, psychiatrist, that it is 'unlikely medication or the presence of her son will modify or affect her significantly'." Counsel for the applicant criticised the Tribunal for saying: "There is no medical evidence before the Tribunal to the effect that [Mrs Gamtcheff] is permanently disabled …" The insertion of the word "permanently" was, so it was argued, inappropriate, for the regulation merely referred to "disability" – not "permanent disability". Thus, so it was submitted, the Tribunal had asked itself the wrong question. I do not agree. The regulation refers to the citizen having a permanent need for assistance because of some disability. Surely that can only mean that the disability is permanent and, if that is the case, then the citizen has a "permanent disability"! 21 Finally, the Tribunal had to be satisfied that the requisite assistance could not reasonably be obtained from another relative (of the type specified in subpar (b)(1) of the Regulation) or from: "… welfare, hospital, nursing or community services in Australia." 22 There was no suggestion that another relative was available to assist Mrs Gamtcheff but the question of welfare and other services remained a live issue. The Tribunal addressed the question whether the assistance could reasonably be obtained from "welfare, hospital, nursing or community services" by saying: "Whilst the delegate acknowledged that [Mrs Gamtcheff] '… has a need for some help of a practical and emotional nature,' she considered [Mrs Gamtcheff] could access assistance from welfare, hospital, nursing or community services. The Tribunal notes Dr Mitev's statement '… because of her cultural background she is reluctant to use community services, which are daily becoming more overloaded and less available', and her recent submission that [Mrs Gamtcheff] is reverting to her native tongue, as she ages, and that if placed in aged care facility she would face difficulties in that regard. The Tribunal notes [Mr Koulaxazov's] statement that his mother has not sought assistance from other sources as a matter of pride rather than anything else. When questioned by the Tribunal, [Mr Koulaxazov] could not explain what Dr Mitev meant by stating [Mrs Gamtcheff's] 'cultural background' (above) gives rise to a reluctance to use services outside the home." The Tribunal concluded that the mother sought the presence of her son in Australia for her emotional support and for some domestic assistance. That is wholly understandable and, in most circumstances, one would wish it to be encouraged, for it is clear, from the material to which the Tribunal referred in its reasons, that the mother is in need of some practical support in her home life. That benevolent approach however must be considered in light of the language of the regulation. The conclusion at which the Tribunal arrived was: "As pointed out by the delegate in the decision of Carreno Arreno (IRT Decision No. Q91/1117 delivered 18 February 1992) the Immigration Review Tribunal has found, on a number of occasions, that 'more than companionship, emotional support and convenience is required for a special need relative to the meet the definition set out in the Regulations'." The Tribunal concluded its reasons by saying: "However, she could access that assistance from local community services, or welfare, hospital or nursing organisations. The Tribunal notes the parties have rejected help from a third party. This appears to be a case where familial pride has stood in the way of accessing help from outside sources. Of course, it is preferable to be cared for by members of one's own family, but if that was possible within the meaning of the Regulations, the special need category, or carer category as it is now known, would be overwhelmed with applicants. The purpose of this subclass is to enable assistance to be given by relatives where such assistance cannot reasonably be obtained from outside sources. In this case, it is apparent [Mrs Gamtcheff] has not attempted to access such services and there is no other evidence to convince the Tribunal that such assistance cannot reasonably be obtained." 23 Counsel for the applicant challenged the following passage from the Tribunal's reasons: "… In this case it is apparent [Mrs Gamtcheff] has not attempted to access such services and there is no other evidence to convince the Tribunal that such assistance cannot reasonably be obtained." That statement in the Tribunal's reasons obviously related to assistance in the nature of welfare, hospital, nursing or community services for it was clear that the mother had no other relatives in Australia or New Zealand who could help her. Counsel for the applicant submitted that the Tribunal had assumed that such assistance could be obtained in the absence of proof to the contrary and that, in doing so, it had asked itself the wrong question or identified the wrong issue. That being the case, the Tribunal had erred in law. In my opinion there is no substance in this complaint. Proceedings before the Tribunal are not adversarial. There is, for example, no obligation on the respondent Minister to adduce evidence in rebuttal of claims that may be made by an applicant for a visa. The task of the Tribunal is governed by the provisions of the Migration Act 1958 (Cth) ("the Act") of which s 353 is most important. It makes clear that the Tribunal is not bound by the conventional restraints that apply to normal proceedings in a court of law. The section is in the following terms: "(1) The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. (2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) shall act according to substantial justice and the merits of the case." 24 It is a well-known fact that nursing, domiciliary and other care is available to people in need through government and local government agencies and through several charitable organisations, of which "Meals on Wheels" would, quite likely, be an appropriate organisation to give assistance to Mrs Gamtcheff. The Tribunal was, in my opinion, quite within its rights to make the observation that there was no evidence that would convince it that these well known and worthwhile services would not be available. Counsel for the applicant argued that the Tribunal, in the compilation of its reasons, failed to address the category of "other serious circumstances". The argument proceeded upon the premise that this failure meant that the Tribunal failed to address one of the criteria that was required to be considered under reg 1.03. As I have already indicated, it was not necessary for the Tribunal to address "other serious circumstances" because it had concluded that Mrs Gamtcheff did not have a "permanent or long-term need for assistance." 25 The basis of the application for the visa centred upon Mrs Gamtcheff's health and whether she had a need for permanent or long-term assistance. Although there is no conventional onus of proof on an applicant for a visa, there is a practical necessity for him or her to place relevant material before the Tribunal so that the Tribunal can make an informed judgment. Material dealing with medical and social matters was available to the Tribunal and such material as was made available was duly and properly considered by the Tribunal. The Tribunal came to its decision and this Court's power to interfere with that decision is substantially limited. It is not for this Court to review the merits of the application nor can this court replace the Tribunal's decision with its own decision. This Court can only interfere to correct an error of law. In my opinion no such error has been identified. Furthermore, the applicant must demonstrate that the error was a material error before a review court could intervene. Mr Koulaxazov failed before the tribunal because the Tribunal was not satisfied that his mother had a permanent or long-term need for assistance. When the Tribunal came to that conclusion it became unnecessary to identify which, if any, of the four identifiers might have been present. They would only have to be considered if the Tribunal had formed the contrary opinion that Mrs Gamtcheff had a permanent or long-term need for assistance. There is a further reason why Mr Koulaxazov cannot succeed. It is this. Even if, contrary to its findings, the Tribunal had been of the opinion that Mrs Gamtcheff had a permanent or long-term need for assistance for any reason, the Tribunal was satisfied that her needs could be satisfied from "welfare, hospital, nursing or community services in Australia." 26 The application is dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin. Associate: Dated: 3 May 2002 Counsel for the Applicant: Mr AC Collett Solicitor for the Applicant: Hyams & Associates Counsel for the Respondent: Ms SJ Maharaj Solicitor for the Respondent: Sparke Helmore Date of Hearing: 25 March 2002 Date of Judgment: 3 May 2002