FEDERAL COURT OF AUSTRALIA Lopez v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 826 MIGRATION – application under s 39B Judiciary Act 1903 (Cth) for relief in respect of decision of Migration Review Tribunal – privative clause decision – whether the decision of Tribunal amounted to a jurisdictional error or non-compliance with an inviolable condition – whether the decision of Tribunal not reasonably capable of reference to power given to Tribunal Migration Act 1958 (Cth) s 474 Migration Regulations 1994 (Cth) reg 1.03 R v Hickman; Ex parte Fox v Clinton (1945) 70 CLR 598 at 615 applied Turcan v Minister for Immigration & Multicultural Affairs [2002] FCA 397 at [46] followed NABC v Minister for Immigration & Multicultural Affairs [2002] FCA 539 at [6] – [8] followed NAAG v Minister for Immigration & Multicultural Affairs [2002] FCA 713 at [13], [27] followed SABRINA HELENA LOPEZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 187 OF 2002 HEEREY J 21 JUNE 2002 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 187 OF 2002 BETWEEN: SABRINA HELENA LOPEZ MILDRED ELAINE SMITH LEANNE VERONICA SMITH ANDRE NATHANIEL LOPEZ CHEVON VIRGINIA LOPEZ KIMBERLY VANESSA LOPEZ APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: HEEREY J DATE OF ORDER: 21 JUNE 2002 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the costs of the respondent including reserved costs. 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 187 OF 2002 BETWEEN: SABRINA HELENA LOPEZ MILDRED ELAINE SMITH LEANNE VERONICA SMITH ANDRE NATHANIEL LOPEZ CHEVON VIRGINIA LOPEZ KIMBERLY VANESSA LOPEZ APPLICANTS AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: HEEREY J DATE: 21 JUNE 2002 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicants seek under s 39B of the Judiciary Act 1903 (Cth) orders in the nature of Constitutional writs to quash a decision of the Migration Review Tribunal (the Tribunal) made on 27 February 2002 which affirmed a decision of the delegate of the Minister to refuse to grant a family residence class AO visa. 2 The first-named applicant is a 44 year old citizen of India. The second applicant is her mother and the third to sixth applicants are her children. I shall refer hereafter to the first applicant simply as the applicant. 3 Mrs Sandra Hazel Mitchell, a sister of the applicant, is an Australian citizen ordinarily resident in Australia. Mrs Mitchell was the nominator of the applicant. The criterion in issue before the Tribunal was whether the applicant was a "special need relative" of the nominator within the meaning of cl 806.213 in Sch 2 of the Migration Regulations 1994 (Cth) (the Regulations). The expression "special need relative" was defined in reg 1.03 of the Regulations to mean: "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 or Australian permanent resident or an eligible New Zealand citizen; or (ii) welfare, hospital, nursing or community services in Australia." 4 The applicant entered Australia with her mother and children on 3 August 1996 and made an application for the visa on 25 October 1996. The delay until the decision of the delegate, made in April 2001, was due to limited numbers of these visas being available each year. No criticism is made of that delay by either side. 5 The case of the applicant was that the nominator suffered from depression. The nominator, who had no children of her own, was very close to the applicant's children and was virtually a second mother to them. There was psychological evidence before the Tribunal in the form of a report dated 12 September 1996 which expands on the nominator's emotional and psychological dependence on the applicant. 6 After a hearing on 6 December 2001 the Tribunal handed down its decision on 27 February 2002. For present purposes, the relevant parts of the Tribunal's reasons are contained in paragraphs 38 to 43 which are as follows (emphasis in original): "38. The Tribunal finds that the nominator suffered from depression prior to the date of the psychological assessment in August 1996 and again in December 2001 as a consequence of her worry about the needs of the review applicant, but has otherwise not suffered from a relevant illness or disability. The Tribunal finds that the occasional depression suffered by the nominator does not amount to a prolonged illness. As the nominator has not claimed that she is affected by death or disability, it remains for the Tribunal to consider whether she has a permanent or long-term need for assistance because of other serious circumstances. 39. The Tribunal accepts that the review applicant and the nominator have a special bond as sisters with a shared history and also accepts that the family unit including the review applicant's mother and children is a close one. The Tribunal also accepts that if the review applicant returns to India the nominator will suffer emotionally and may even require psychiatric or psychological treatment. 40. The Tribunal applies the case of Hussein [v Minister for Immigration & Multicultural Affairs [1999] FCA 1621] and finds that although the review applicant's continued presence in Australia may reduce the likelihood of the nominator suffering further depression or other mental illness, the Tribunal finds that the review applicant's mere presence does not amount to assistance as contemplated by the regulations. Further, while the nominator might need some assistance in the future if the review applicant departs Australia, there is no evidence that she required any assistance at the time of application or that she currently requires any assistance other than companionship. 41. The Tribunal applies the test of other serious circumstances in the case of Wu [v Minister for Immigration & Multicultural Affairs [2000] FCA 1817] and finds that there is no evidence that, either at the time of application or at the time of decision, the nominator required any assistance which was substantial and continuing in relation to a need for assistance which is permanent and long-term. The Tribunal finds that the nominator does not have a need for long-term assistance because of death, disability, prolonged illness or other disability. Whether the visa applicant is willing and able to provide substantial and continuing assistance to the nominator. 42. The Procedures Advice Manual provides advice as to the meaning of substantial and continuing assistance. Companionship is not regarded, in the absence of other factors, as constituting a permanent or long-term need. Such a need is usually intended to cater for situations such as the death or serious illness of a spouse leaving a partner with ongoing and significant problems in both bringing up very young children and coping generally; or an incapacitating illness or disability creating a need for physical assistance in the home. 43. Neither the review applicant nor the nominator have cited practical tasks such as housework, shopping and by paying bills in respect of the nature of the care provided. It would appear that the present relationship between the review applicant and the nominator is companionship and that they individually hold each other in high esteem." 7 At the outset, counsel for the applicant accepted that the decision of the Tribunal is a privative clause decision within the meaning of s 474(2) of the Migration Act 1958 (Cth) (the Act) and therefore the present application is subject to s 474(1), which provides as follows: "A privative clause decision (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account." 8 It was common ground nevertheless that, as is clear from the second reading speech when s 474 was introduced into the Act last year, judicial review is available if it can be established that one or more of the three pre-conditions to the valid exercise of decision-making power formulated by Dixon J in R v Hickman; Ex parte Fox v Clinton (1945) 70 CLR 598 at 615 is absent. Those pre-conditions of validity are that (a) the decision-maker has made a bona fide attempt to exercise its power; (b) the decision relates to the subject matter of the legislation and (c) the decision is reasonably capable of reference given to the power given to the decision-maker. I shall use the expression "Hickman ground" to mean the absence of one of these pre-conditions. 9 I said in Turcan v Minister for Immigration & Multicultural Affairs [2002] FCA 397 at [46] that the correct approach is, first, to consider whether s 474 applies. The Court should not assess the case as if that section did not exist and then only move to consider the section if satisfied that otherwise grounds for review are made out. That approach has been followed subsequently by Gyles J in NABC v Minister for Immigration & Multicultural Affairs [2002] FCA 539 at [6] to [8] and by Allsop J in NAAG v Minister for Immigration & Multicultural Affairs [2002] FCA 713 at [13]. However, it is obviously necessary for an applicant to identify the error sought so that a court can reach a conclusion as to whether or not it is of a kind which might fall within any of the Hickman grounds. 10 In the present case counsel for the applicant accepted that there was no question of any lack of good faith on the part of the Tribunal. He said, however, that there were two errors of law which amounted to "jurisdictional error" or non-compliance with an "inviolable condition". On this basis, although this was not said expressly, I take it that the third Hickman ground is relied on, that is to say, that the decision, by reason of this mistake, was not reasonably capable of reference to the power given to the decision-maker. Certainly there is no basis for thinking that, in terms of the second Hickman ground, the decision did not relate to the subject matter of the legislation, i.e. the grant or refusal of visas. 11 The first error alleged went to the Tribunal's conclusion as to "other serious circumstances". It was said that the condition of the nominator did in fact exist and the departure from Australia by the applicant if no visa were granted would render the condition symptomatic. 12 The second error was said to be the Tribunal's finding that the mere presence of the applicant in Australia, or her companionship that she could provide to the nominator, would not amount to "substantial and continuing assistance". 13 For the reasons I already mentioned, I say nothing as to the merits of these arguments. I am satisfied that, even if correct, they do not show that the decision of the Tribunal was not reasonably capable of reference to the power given to it under s 349 of the Act. 14 The meaning to be given to that third Hickman ground is, in my opinion, the explanation that was given in the Minister's second reading speech, that is to say, that the decision-maker had been given the authority to make the decision concerned. There cannot be any question that the decision here, that is, a decision to affirm a decision of a delegate of the Minister, fell within that description. I would agree with and adopt what was said by Allsop J in NAAG at [27]: "I do not read this third requirement as intended to mean that the limits of the power in question, absent the privative clause, are analysed (including notions of jurisdictional error of a kind discussed earlier) so as to find 'jurisdictional error' and so to find an absence of 'reasonable capacity of reference' to the power. To do so would be to drain the privative clause of all intended content and effect." 15 For those reasons the application will be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 1 July 2002 Counsel for the Appellant: Mr T V Hurley Solicitor for the Appellant: Armstrong Ross Counsel for the Respondent: Mr W Mosley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 21 June 2002 Date of Judgment: 21 June 2002