FEDERAL COURT OF AUSTRALIA Rozairo v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 251 MIGRATION – No question of principle – appeal dismissed. Federal Court of Australia Act 1976 (Cth) s25(1A) Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; [2001] 206 CLR 323, referred to. VYAN PETER ROZAIRO, DAWN ROZAIRO, ONELLA SHANICE ROZAIRO AND MICHAELA TARAN ROZAIRO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 955 OF 2003 MARSHALL J 16 MARCH 2004 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 955 OF 2003 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT BETWEEN: VYAN PETER ROZAIRO FIRST APPELLANT DAWN ROZAIRO SECOND APPELLANT ONELLA SHANICE ROZAIRO THIRD APPELLANT MICHAELA TARAN ROZAIRO FOURTH APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: MARSHALL J DATE OF ORDER: 16 MARCH 2004 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants pay the respondent's costs of the appeal. 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 955 OF 2003 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT BETWEEN: VYAN PETER ROZAIRO FIRST APPELLANT DAWN ROZAIRO SECOND APPELLANT ONELLA SHANICE ROZAIRO THIRD APPELLANT MICHAELA TARAN ROZAIRO FOURTH APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: MARSHALL J DATE: 16 MARCH 2004 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This is an appeal from a judgment of a Federal Magistrate in which the appellants' application for judicial review of a decision of the Migration Review Tribunal ("the MRT") was dismissed. The question for resolution in this appeal is whether his Honour was in error in holding that the decision of the MRT was not affected by jurisdictional error, in the sense raised in the appellant's notice of appeal. Background facts/MRT's findings 2 The first appellant, Mr Rozairo, applied for a Change in Circumstance (Residence) (Class AG) visa ("the visa") on 30 July 1998. The other appellants were included in the application. They are respectively Mr Rozairo's spouse and his two daughters. A delegate of the respondent refused the application on 21 December 2000. On 17 January 2001 the appellants applied to the MRT to review the decision of the delegate. On 13 September 2002 the MRT published its reasons for deciding to affirm the decision of the delegate. 3 Mr Rozairo is a citizen of Sri Lanka. He first entered Australia on 14 December 1995 as the holder of a short stay (visitor) visa. He applied for the visa (the subject of the application to the MRT) on the basis that he was the special need relative of his mother, Mrs Sharon Rozairo ("the nominator"). 4 The MRT accepted that Mr Rozairo and the nominator have a close relationship and that Mr Rozairo had a strong attachment to her. It accepted that the nominator is a relative of Mr Rozairo, a person who is an Australian permanent resident and a person who is settled and usually resident in Australia. 5 The MRT found that the nominator suffered from a medical condition, which had been progressively deteriorating. However, it held that there was no medical evidence before it regarding the exact nature of her condition or the timing of the onset of the condition. 6 The MRT was also not satisfied that at the time of the application in July 1998 the nominator had a permanent or long term need for assistance because of death, prolonged illness or other serious circumstances. It was influenced in coming to that view by the fact that: "the nominator departed Australia without [Mr Rozairo] within three months after the visa application was lodged, and that she was absent for an aggregate period of nine months in the 29 months before the application was refused,…" 7 The MRT accepted that Mr Rozairo was willing and able to provide assistance to the nominator at the time of the application for the visa. However it was: "…not satisfied that any assistance provided by [Mr Rozairo] could properly be described as "substantial" for the purposes of regulation 1.03." 8 The MRT accepted that, at the time of the application for the visa, Mr Rozairo provided the nominator with accommodation and financial support, as well as company when he was not working. However, it was not satisfied that Mr Rozairo's presence in Australia constituted "substantial" assistance. The relevant regulations 9 At the material time, cl 806.211 of Sch 2 to the Migration Regulations 1994 ("the Regulations") provided the criteria to be satisfied at the time of the application for a subclass 806 visa. These included the criterion that the visa applicant had become a special need relative of a nominator since last applying for a substantive visa. 10 Clause 806.213 provided an alternative criterion, that is, that the visa applicant be a special need relative of a nominator. The term "special need relative" was defined in cl 1.03 of Sch 1 to the Regulations. The definition required the visa applicant to be: "..a relative who is willing and able to provide substantial and continuing assistance to the …[nominator] if: (a) [the nominator] has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting [the nominator] or a member of… her family unit; and(emphasis added) (b) the assistance cannot reasonably be obtained from; (i) any other relative of the [nominator] 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." 11 Pursuant to cl 806.22, the criteria contained in cl 806.213 must also have been satisfied as at the time of the MRT's decision. The MRT's reasoning 12 The MRT did not make a finding about whether Mr Rozairo fell within cl 806.211. The evidence before it did not establish when the nominator's condition commenced. It said at [34] that: "The Tribunal is not in a position to make a finding on this issue and, owing to the findings about other criteria, there is no need for the Tribunal to make a finding on clause 806.211(d)." 13 The MRT then considered whether Mr Rozairo met the definition of special need relative, in respect of the nominator. It noted that the visa applicant contended that the nominator required assistance because of the death of her parents, her prolonged illness and other serious circumstances. The MRT characterized the need for assistance as "the nominator's need for emotional support from the visa applicant." 14 The MRT emphasised that the definition of "special need relative" required "the need" to be "permanent or long-term". It held that neither description fitted the nominator's circumstances. It said at [36]: "Given that the nominator departed Australia without the visa applicant within three months after the visa application was lodged, and that she was absent for an aggregate period of nine months in the 29 months before the application was refused, it appears that the nominator did not require the assistance of the visa applicant on a permanent or long-term basis. Consequently the Tribunal is unable to be satisfied that, at the time of application in July 1998, the nominator or a member of her family unit had a permanent or long-term need for assistance because of death, prolonged illness, or other serious circumstances." 15 The definition of "special need relative" also required the visa applicant to be willing and able to provide "substantial…assistance to the [nominator]." The MRT at [37] was not satisfied that any assistance provided by Mr Rozairo "could properly be described as "substantial" for the purposes of regulation 1.03." 16 At [38] the MRT said: "In the present case, the Tribunal accepts that the visa applicant has a strong attachment to the nominator, and at the time of application the visa applicant assisted the nominator by providing her with accommodation, financial support, and company when he was not at work. However, the Tribunal notes the guidance in PAM 3 that 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. None of these factors are present in this case. Consequently the Tribunal is not satisfied that the visa applicant's presence in Australia constitutes "substantial" assistance to the nominator." 17 Further in respect of sub-cl (b) of the definition of "special need relative", the MRT found at [40] that the nominator had other relatives: "…who may well be able to jointly and collectively assist her if she does need substantial and continuing assistance..." 18 The MRT also noted at [42] that: "the nominator was absent from Australia without the visa applicant for almost six months from September 2001 to March 2002, and the Tribunal is not satisfied that the assistance provided by the visa applicant at the time of its decision can properly be described as "substantial"." 19 Consequently the MRT considered, although earlier at [42] noting that it was strictly unnecessary for it to do so, that cl 806.213 was not satisfied by Mr Rozairo as at the time of its decision. Review in the Federal Magistrates Court 20 The appellants sought judicial review in the Federal Magistrates Court. They were represented by counsel. The Court below held at [21] that the conclusion of the MRT that, as at July 1998, the nominator did not have a permanent or long-term need for assistance was one, which was reasonably open to it on the evidence before it. Further at [23] his Honour said: "It is sufficient to conclude…that the available evidence was properly considered and that the conclusion reached by the Tribunal in paragraph 36 was a conclusion which …was open to the Tribunal." 21 At [24] the learned Federal Magistrate said: "It was not in dispute that should the Tribunal make a finding of the kind in paragraph 36 which could not be challenged and had done so in relation to the state of affairs at the time of the application, then it is technically unnecessary to further consider the findings of the Tribunal in relation to other criteria. Once the Tribunal makes a finding that it is not satisfied that the nominator had a permanent or long term need for assistance due to death, prolonged illness or other serious circumstance at the time of the application, it is unnecessary to consider the matter further as that effectively concludes the reasoning process." 22 At [25] his Honour noted that counsel for Mr Rozairo submitted that the MRT committed a jurisdictional error by emphasising the companionship aspect of the support provided by the visa applicant and paying insufficient regard to other factors. His Honour found that no jurisdictional error had occurred. He dismissed the application on 23 September 2003. The notice of appeal 23 On 13 October 2003 the appellants appealed to this Court. Pursuant to s25(1A) of the Federal Court of Australia Act 1976 (Cth), the Chief Justice determined that the appeal should be heard by a single judge. 24 The notice of appeal set out two grounds of appeal. They were as follows: "GROUNDS 2. The learned Federal Magistrate erred in finding that the Migration Review Tribunal (the tribunal) had properly considered the case put by the first applicant, in particular, when the tribunal had in its reasons: (a) attached weight to the nominator's apparent failure to seek specialist treatment for her medical condition, a matter not required by the relevant criteria; and (b) attached weight to her failure to attend a psychologist until February 2001. 3. The learned Federal Magistrate erred in finding that the decision of the tribunal in relation to the medical condition of the nominator was open to it." 25 An allegation that the MRT had not properly considered the case put by the visa applicant will reveal a jurisdictional error if it can be shown that the MRT did not deal with a claim put to it by the visa applicant which would have demonstrated that he was, in fact, a special need relative of the nominator in accordance with the definition provided in the Regulations. 26 The matter addressed in sub-paragraph (a) of the first ground raised in the notice of appeal, at paragraph 2, does not allege a failure to deal with a matter advanced by the visa applicant. 27 At [36] in the MRT's reasons, it noted that there was no evidence before it that in July 1998 the nominator's condition required her to seek further specialised treatment for depression and anxiety. It was submitted on behalf of the appellants that that fact was extraneous to the criteria to be satisfied by the visa applicant. That is another way of saying that the MRT took into account an irrelevant consideration. However, the consideration taken into account was relevant. The MRT appropriately considered in accordance with the definition of special need relative, whether the nominator, as at July 1998, had a prolonged illness. No jurisdictional error is disclosed by the MRT's observation about the nominator's failure to seek specialist treatment in July 1998. Counsel for the appellant ultimately conceded that this issue essentially relates to a question of merit which was for the MRT to decide. 28 The second alleged jurisdictional error, referred to in the first ground of appeal, is that the MRT failed to consider properly the visa applicant's case in that it attached weight to the nominator's failure to attend a psychologist until February 2001. 29 The attaching of weight to a particular piece of evidence is a matter of merit and not a matter going to jurisdiction, unless the MRT thereby takes into account an irrelevant consideration in a way that affects the exercise of its power: see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; [2001] 206 CLR 323 at [82] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ. 30 It was a relevant matter for the MRT to consider that the nominator as at July 1998 had not consulted a psychologist and did not do so until 2001. It is a piece of evidence which tended against the suggestion that the nominator's condition was present in July 1998. 31 The second ground of appeal alleges that his Honour erred in finding that the decision of the MRT "in relation to the medical condition of the nominator" was open to it. This ground relates to the MRT's finding that there was no evidence, as at July 1998, that the nominator's condition required her to seek further specialised treatment for depression and anxiety. The submissions on behalf of the appellants did not explain adequately why the MRT was not entitled to come to that view on the evidence. It clearly was entitled to come to that view in my opinion. This ground of appeal discloses no jurisdictional error. Even if the MRT made a factual error on this issue it was a matter of merit for it to determine. Submissions beyond the notice of appeal 32 The solicitor for the appellants filed a document entitled "Appellant's Contentions" on 22 February 2004. Those contentions deal with some matters that are not relevant to the grounds of appeal. The appellants made no application to amend the notice of appeal. Those matters were not pressed by counsel for the appellants on the appeal. The same applied to those aspects of the revised contentions handed to the Court today, which were extraneous to the notice of appeal. Order 33 In light of the foregoing it is appropriate to order that the appeal be dismissed with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 16 March 2004 Counsel for the Appellants: Ms D Rasheva Solicitor for the Appellants: Ms S Dharnapala Counsel for the Respondent: Mr W Mosley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 16 March 2004 Date of Judgment: 16 March 2004