FEDERAL COURT OF AUSTRALIA Talasinga v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 535 MIGRATION – visa – family visa – special need relative – whether denial of natural justice – statement by Tribunal member at hearing that 'I'm satisfied about the evidence' – Tribunal found it was not satisfied that criterion met at date of application for visa – whether Tribunal misled applicant and caused her not to lead further evidence – whether applicant denied opportunity to lead further evidence – whether error of law – whether emotional, cultural and linguistic needs of nominator relevant – whether Tribunal failed to take emotional, cultural and linguistic needs into account WORDS AND PHRASES – 'special need relative' Judiciary Act 1903 (Cth) s 39B Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 Migration Act 1958 (Cth) ss 351, 359A, 474(2), 477, 479 Migration Regulations 1994 (Cth) item 806 of Sch 2, reg 1.03, Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 211 CLR 476 referred to FITALIKA TALASINGA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, W R WILD (IN HIS CAPACITY AS A MEMBER OF THE MIGRATION REVIEW TRIBUNAL AND STEVE KARAS (IN HIS CAPACITY AS PRINCIPAL MEMBER OF THE MIGRATION REVIEW TRIBUNAL) V 114 of 2003 GRAY J 6 MAY 2004 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 114 of 2003 BETWEEN: FITALIKA TALASINGA APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT W R WILD (In his capacity as a Member of the Migration Review Tribunal) SECOND RESPONDENT STEVE KARAS (in his capacity as Principal Member of the Migration Review Tribunal) THIRD RESPONDENT JUDGE: GRAY J DATE OF ORDER: 6 MAY 2004 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondents' costs of the proceeding. 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 114 of 2003 BETWEEN: FITALIKA TALASINGA APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT W R WILD (In his capacity as a Member of the Migration Review Tribunal) SECOND RESPONDENT STEVE KARAS (in his capacity as Principal Member of the Migration Review Tribunal) THIRD RESPONDENT JUDGE: GRAY J DATE: 6 MAY 2004 PLACE: MELBOURNE REASONS FOR JUDGMENT The nature of the proceeding 1 This application is for relief pursuant to s 39B of the Judiciary Act 1903 (Cth) and s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) in respect of a decision of the Migration Review Tribunal ('the Tribunal'). The Tribunal's decision, made by the second respondent, on 15 October 2001, was to affirm a decision of a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs) (in both cases, 'the Minister') to refuse to grant to the applicant a visa of the kind known as a Family (Residence) (Class AO) visa, subclass 806 (Family). The Minister is the first respondent to this proceeding. The third respondent is the principal member of the Tribunal, who has responsibilities for allocating work within the Tribunal. 2 Application was not made to the Court until 6 March 2003, almost 17 months after the Tribunal's decision. The applicant contended that, because the Tribunal's decision is attended by jurisdictional error, it is not a 'privative clause decision', within the meaning of s 474(2) of the Migration Act 1958 (Cth) ('the Migration Act'). See Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 211 CLR 476 at [97] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. For this reason, it was argued, the time limit in s 477 of the Migration Act did not apply, and the second and third respondents were appropriate parties to the proceeding, despite the provisions of s 479 of the Migration Act. The first respondent entered an appearance. The second respondent did not. The third respondent entered a conditional appearance. Because these issues depend upon the question whether the Tribunal's decision was attended by jurisdictional error, it was convenient to have all issues argued together at a hearing, rather than to deal with the time limits and parties issues as preliminary points. The legislation 3 The applicant made her application for a visa as long ago as 13 August 1996. At that time, the Migration Regulations 1994 (Cth) ('the Migration Regulations') provided for the type of visa described as a Family (Residence) (Class AO) visa, subclass 806 (Family). The criteria for such a visa were found in item 806 in Sch 2 to the Migration Regulations. Among those criteria, in item 806.21, were criteria to be satisfied at the time of the application for a visa. They included: '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.' 4 The applicant applied on the basis that she was a special need relative of her grandmother, an Australian citizen. The phrase 'special need relative' was defined in reg 1.03 of the Migration Regulations as follows: '"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'. The facts 5 With her original application for a visa, the applicant submitted a medical report from Dr Prasad at the Heidelberg Medical Centre. The report was dated 5 August 1996. According to it, the applicant's grandmother would be 81 years old on 7 August 1996. The report said: 'Due to her age and her generalised decline in general health she requires assistance with daily living activities e.g. cooking, house-cleaning, washing etc. She is not able to live on her own without assistance.' 6 On 14 August 1998, the applicant and her husband attended for an interview with an officer of the Department of Immigration and Multicultural Affairs(now the Department of Immigration and Multicultural and Indigenous Affairs) (in both cases, 'the Department'). In his record of the interview, the officer recorded that the applicant did not work but stayed home and cared for her grandmother. The record contains the following: '84 y.o. grandmother is never left alone as she is absent minded and frets when applicant is not there as they are very close. She also has asthma attacks and requires her medication at short notice, and so needs to have someone nearby all the time. A/N and her husband sleep in the same room as grandmother in case she has an attack in the night. She often forgets to feed herself and requires assistance with bathing, and is too weak to walk very far or to do any cooking, cleaning or washing. She does toilet herself though. Grandmother also needs help with her day to day affairs as she speaks no English. … On the basis of their claims, it appears that A/N satisfies SNR criteria, but I have requested that they provide a specialist's report (geriatrician) detailing the grandmother's condition and need for care, as well as produce the correspondence between A/N and grandmother that she had referred to, to confirm their claims.' 7 In fact, the applicant obtained several more medical reports about her grandmother's condition. One, dated 13 August 1998, from FAHO Medical Services Pty Ltd, referred to her grandmother's asthma. It continued: 'Also due to age and general poor health, lack of English she would need regular care and attention from her grandaughter [sic] who is currently temporarily in Australia. It would be greatly appreciated if permant [sic] residency is considered for her granddaughter (Fitalika).' 8 Another report, dated 20 August 1998, from Dr Hoang Thanh Le, said in relation to the grandmother: 'Her general health is very poor. She has poor mobility, unable to move with-out [sic] assistant [sic] of one person. Mild dementia due to old age. She needs assistant [sic] with her daily living activities such as helping in and out of the bed, toilet, cooking, prepare [sic] food, (she can eat herself) Bathing changing clothes, hair combing, supervise [sic] for her medications. Her medical condition [sic] apart from weakness due to old age are Asthma and constipation which needs Regular suppository for Bowel motion. Her hearing is poor. This patient need [sic] those support [sic] as mentioned above until she pass [sic] away, the case is permanent and required [sic] 24 hours supervision to protect her from falling and deterioration in her medical condition.' 9 In response to the request noted in the record of interview with the officer of the Department, the applicant's grandmother saw Professor S T McCarthy, Professor in Geriatric Medicine at Princess Alexandra Hospital in Brisbane. Professor McCarthy's report said: 'Our occupational therapy department noted that her English is not good, however on her mental status questionnaire she scored 8 out of 10 and her memory recall was 3 out of 3. She may have a very early dementia, but some of her problems probably relate to her language problems. We conducted a full-modified Barthel scale of her activities of daily living on which she scored 60 out of 100, indicating a moderate degree of dependence. However, it was our view that she could have done more for herself but culturally it is traditional for her daughter to care for her mother. Our physiotherapy assessment showed she was quite capable of doing everything for herself that is required for daily living, however she accepts extensive help from her daughter. There does not seem any physical reason why this lady appears as dependent as she does, again cultural factors probably apply. In summary, this elderly Tongan lady has a "learned" dependence on her daughter, which the daughter understands and is quite prepared to accept. I do not feel she will become dependent on the health or welfare services her [sic] as she is at present.' 10 By letter dated 10 June 1999, the applicant was advised that her application for a visa had been refused. The delegate of the Minister found that the applicant did not satisfy the criterion in item 806.213(a) of Sch 2 to the Migration Regulations. The delegate found that: 'Professor McCarthy's report demonstrates that the nominator does not have a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances.' 11 The applicant applied to the Tribunal for review of the delegate's decision. She did so with the assistance of a legally-qualified migration consultant. In her application to the Tribunal, the applicant complained that the delegate had based his decision solely on the report from Professor McCarthy, who was not the treating doctor. The applicant complained of not having been provided with a copy of Professor McCarthy's report or given any opportunity to comment on it. She pointed out that, because of language difficulties, Professor McCarthy may not have understood the grandmother. The applicant offered to provide further medical reports. She indicated that further evidence should be obtained from her grandmother, as well as from herself and other close associates. 12 As well as the medical reports to which I have referred, the applicant provided to the Tribunal a report of a naturopath, dated 3 September 1998. He described the grandmother's symptoms as asthma, poor mobility and slight dementia. He said that she would need care constantly, as well as ongoing medical attention. 13 By letter dated 8 May 2001, pursuant to s 359A of the Migration Act, the Tribunal drew the applicant's attention to material it considered would be the reason, or a part of the reason, for affirming the decision under review, and invited her to comment in writing on that material. The material concerned was that set out in the delegate's decision of 10 June 1999, and Professor McCarthy's report. The explanation of the relevance of this material to the review of the delegate's decision was: 'This information is relevant to the review because the delegate assessed it as a major reason why they initially refused your visa application on "special need relative" grounds, i.e. that the nominator can care for herself, and that she does not have "a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally."' 14 On 20 June 2001, the Tribunal conducted a hearing. The applicant's migration consultant attended. An interpreter was present. At the outset, the applicant, her husband and one or two (it is not clear precisely how many) witnesses took oaths administered by an officer of the Tribunal. The applicant and one other witness gave evidence. The other witness was a clergyman, whose evidence was very brief. The applicant's migration consultant made submissions. He pointed out that the application for a visa had been made in 1996 and that the applicant had since been caring for her grandmother for about five years. He referred to the grandmother as a lady of 85 years old 'who doesn't know English, doesn't know much of the culture which is common in this country and depends upon, her dressing and everything, on [sic] the granddaughter'. He then submitted that the applicant was the best person to look after her grandmother. The Tribunal member, the second respondent, commented: '[The second respondent]: I do understand that, yes. I need to look at that in the context of the regulations but I fully understand the arguments. It's really just a question of how that fits into the requirements of the regulations. INTERPRETER: Thank you. [The second respondent]: All right. If there's no more issues she wants to raise, that's it, is it? Okay. [The applicant's migration agent]: Maybe tribunal likes to talk with the grandmother or maybe not. I guess it is up to you (indistinct) which way we can make (indistinct) [The second respondent]: Look, I'm satisfied about the medical deterioration, I'm satisfied about the broader issues. The only question is, as I said, whether the regulations have been satisfied I think. So I'm satisfied on the evidence. [The applicant's migration agent]: Thank you very much.' 15 The second respondent then closed the hearing. The Tribunal's reasons 16 In its written reasons for decision, the Tribunal summarised the evidence, particularly the medical evidence relating to the applicant's grandmother's condition. In dealing with the report of Professor McCarthy, the Tribunal drew attention to the fact that the applicant is the granddaughter, and not the daughter, of the subject of the report. The Tribunal referred to the reasons of the delegate and to the applicant's complaint about his reliance on Professor McCarthy's report. The Tribunal also summarised the evidence before it, to some of which I have not referred, and the evidence given at the hearing. 17 The Tribunal then considered whether the requirements of the definition of 'special need relative' were satisfied at the date of the application for a visa, 13 August 1996. It pointed out that there was not a great deal of evidence regarding the grandmother's condition at that time. The applicant had not described in any detail the nature and extent of the assistance her grandmother required. Dr Prasad's report was the only other evidence. 18 The Tribunal then referred to the conflicting reports of August, September and October 1998, which included that of Professor McCarthy. It said: 'The Tribunal finds the evidence of Professor McCarthy to be more persuasive given that his conclusions are evidence-based, having conducted formal assessment of the nominator's mental state, memory recall, and activities of daily living as described … above. The Tribunal has now had regard to the evidence that was available at the time of application, and even the subsequent evidence to the extent that it can reflect back to that time. Leaving aside the emotional (cultural/linguistic) assistance referred to by the visa applicant, the Tribunal is not satisfied that the actual physical assistance needed with daily living because of the nominator's physical condition, and possible very early/slight/mild dementia, was so substantial and continuing that it could be said, at 13 August 1996, that her need for assistance was permanent or long-term, in the sense required by the definition of "special need relative". The question arises whether the emotional assistance referred to by and on behalf of the visa applicant, in terms of the cultural and linguistic issues, affects that conclusion.' 19 The Tribunal appears to have accepted that, in Tongan culture, the care of the elderly is the responsibility of the family. It continued: 'Assuming that the emotional (cultural/linguistic) assistance must be taken into account as part of all the circumstances of the case, the further question raised by this issue is whether the need for assistance that arises in respect of Tongan culture and language is, in terms of the definition of "special need relative", a "need for assistance because of death, disability, prolonged illness or other serious circumstances affecting" the nominator. If the answer is automatically in the affirmative then it means that the "special need relative" requirements must be satisfied in every situation where there is a cultural and linguistic gap or barrier because of the nominator's reliance on their native, as opposed to English-based, culture and language, even if due to old age as per the Association's submissions. This is in effect the end result of the arguments put by and on behalf of the visa applicant. The Tribunal finds that this would not be a correct interpretation of the regulations and that the need for such assistance in this case is not assistance because of any of the "serious circumstances" outlined in the definition. It is therefore not "assistance" of the kind described by the definition. The alternate argument is that such assistance does constitute "assistance" within the meaning of the definition. On that basis it must be taken into account as part of all the circumstances of the case. The Tribunal has also considered the case on this basis. Even on this basis the Tribunal is not satisfied that, at the time of the application on 13 August 1996, the emotional/cultural issues impacted on the real level of the nominator's physical condition to such an extent that the nominator's condition was sufficiently serious to conclude that permanent or long term assistance was needed, in the sense required by the definition, as explained earlier in these reasons. Assistance was required, but the Tribunal finds that it was not so substantial, at that stage, as to reach the level contemplated by the Regulations as justifying the issue of a permanent visa to provide that assistance.' 20 The Tribunal then went on to consider the requirements of par (b) of the definition of 'special need relative'. It pointed out that the applicant had assumed that her full-time assistance was necessary and had made no attempt to ascertain what community, hospital, nursing or welfare services were available and what standard of care was available from such services. The Tribunal found that, at the time of application, assistance on a 24-hour basis was not necessary. Even if full-time assistance had been required, it may have been able to be provided by a combination of part-time assistance from other services and contributions from Australian relatives of the applicant's grandmother. The applicant had not canvassed this possibility. The Tribunal also rejected the assumption that nursing homes and other providers were not able to provide a reasonable level of care for people with similar cultural difficulties to those of the applicant's grandmother. The Tribunal was not satisfied that, at the time of application, the requisite assistance could not reasonably be obtained from other relatives or other services. 21 Having found that the applicant did not meet the definition of 'special need relative' at the time of the application for a visa, the Tribunal did not proceed to consider whether she met the requirements of the Migration Regulations at the time of the Tribunal's decision. The applicant's case 22 As expressed in her amended application, filed on 23 July 2002, and her contentions of fact and law, filed on the same date, the applicant's case had two aspects. It was said that the Tribunal denied her natural justice by misleading her into believing that it was satisfied about the evidence, but rejecting her application on the ground that the evidence of her grandmother's condition at the time of the application for a visa was insufficient. It was also said that the Tribunal had misunderstood the law, particularly the meaning of 'assistance' and the meaning of 'other serious circumstances' in the definition of 'special need relative'. It had excluded from consideration language and cultural difficulties as relevant to the need for assistance, and had failed to make any findings about what assistance was required by the grandmother at the time of the application. The Tribunal had not dealt with the applicant's case, which did not distinguish between her grandmother's need for physical assistance and for emotional assistance. Denial of natural justice 23 The applicant's case on denial of natural justice was based largely on the Tribunal's comments to the effect that the second respondent was satisfied on the evidence. Counsel for the applicant pointed to the fact that the grandmother was not among those sworn as witnesses at the start of the hearing. He also submitted that the Tribunal had rejected the migration consultant's attempt to call the grandmother to give evidence. The Tribunal did not draw the applicant's attention to the question of satisfaction of the definition of 'special need relative' at the time of application. What passed between the Tribunal and the applicant was all in the present tense. 24 It is somewhat difficult to see what it was that the second respondent was expressing his satisfaction about, when he said that he was 'satisfied on the evidence'. It was clearly not that the applicant had established her entitlement to the visa she sought, because the second respondent was making it clear that the question was how the evidence fitted into the regulations. It may be that the second respondent had overlooked the fact that there was a criterion requiring that the applicant satisfy the definition of 'special need relative' at the time of her application for a visa. If so, the second respondent was not alone in this. The applicant's own migration consultant appears also to have overlooked this issue. This is somewhat surprising, as this was the very ground on which the delegate had rejected the applicant's case. Both the applicant and her migration consultant had been notified in writing of the delegate's reasons. 25 In an affidavit filed with the Court, and tendered to me during the hearing, the applicant gave detailed evidence of her grandmother's condition on 13 August 1996. She says that, if the Tribunal had raised with her the inadequacy of the evidence about her grandmother's condition on 13 August 1996, she would have been able to obtain another, more detailed, report from Dr Prasad. She also says that she, her husband and her grandmother would have been able to give further evidence to convince the Tribunal of the seriousness of her grandmother's condition. I am left to wonder why she did not place this kind of evidence before the Tribunal in any event. As I have said, the delegate rejected the applicant's application on the basis of her failure to satisfy the definition of 'special need relative' as at 13 August 1996. If notice were needed of the paucity of evidence about the applicant's grandmother's condition at that time, and of the importance of the issue to the outcome of the applicant's case, the applicant and her adviser had it. It might also be pointed out that something more than further detail might have been required of Dr Prasad, if a further report had been obtained. In her report, which I have quoted above, Dr Prasad referred to 'generalised decline in general health'. She did not refer to asthma, or to dementia, which appear to be the two significant elements of the additional evidence that the applicant says she would have given, if prompted. 26 It was for the applicant to place before the Tribunal such material as she wished to rely on in support of her case, and for the Tribunal to evaluate that material. At no time was any restriction placed on the applicant's ability to give to the Tribunal all of the evidence that she set out in her affidavit filed in this proceeding. Nothing prevented her from obtaining a further report from Dr Prasad, assuming Dr Prasad's willingness to provide one. Indeed, given the delegate's reason for rejecting the application, it is difficult to see why these things were not done, if they could have been. 27 The Tribunal's failure to take advantage of the opportunity offered to hear evidence from the grandmother is something of a red herring at this stage. The Tribunal member might have been able to form an opinion of the condition of the grandmother at the date of the hearing if she had given evidence. It is unlikely that she would have been able to give any evidence that would have assisted the Tribunal in relation to the crucial issue, her condition on 13 August 1996. 28 It seems probable that the second respondent was expressing his satisfaction on the evidence as to the state of the applicant's grandmother's health at the date of the Tribunal's hearing. This would explain the second respondent's concern about how the evidence fitted into the requirements of the Migration Regulations. The second respondent was at least aware that there were various requirements of the definition of 'special need relative' that had to be satisfied, even if he was not aware that they had to be satisfied at the time of the application for a visa. If, as the applicant asserted in her affidavit, she believed that her application had succeeded, in consequence of what the second respondent said, she was very much mistaken. At the very least, what was involved in the exchange was a clear statement that the second respondent would have to examine the evidence against the requirements of the regulations to see if the case were made out. 29 Certainly, what happened at the Tribunal hearing was unfortunate. It did not amount to a denial of natural justice. It may have been helpful if the second respondent had drawn to the applicant's migration consultant's attention the fact that there was a criterion to be satisfied at the time of application, so that some attention could have been given to the state of the evidence about that time. The Tribunal was not under any duty to point this out. As I have said, the applicant and her migration consultant should have been aware of the issue, because of the reasoning of the delegate. The migration consultant should have looked at the Migration Regulations himself, so as to be sure that the material the applicant placed before the Tribunal covered all necessary aspects of the case. The Tribunal's approach to the law 30 I have set out earlier in some detail the path that the Tribunal's reasoning followed. The question of the state of health of the applicant's grandmother at the time of the application was one of fact, for the Tribunal to determine. No complaint can be made in a judicial review proceeding such as this as to the Tribunal's preference for the opinion of Professor McCarthy over the other medical evidence. The Tribunal chose to prefer Professor McCarthy's evidence for a particular reason, namely that it was based on testing, rather than on impression. This was a rational ground for preferring Professor McCarthy's view. 31 The Tribunal did not reject the evidence of the grandmother's requirement for emotional assistance as irrelevant. It first determined the question of the need for physical assistance. It discussed whether it could take into account what it described as the 'emotional (cultural/linguistic)' assistance and held that it could not, because this would foreclose the question of the application of that aspect of the definition of 'special need relative' for every non-English speaking person. The Tribunal's reasoning about this is false. There is every reason why a person's emotional state, ability to speak English and cultural background are relevant to his or her need for assistance. The error is not determinative of this issue, however. What the Tribunal did next was to assume that its conclusion on the law was wrong and to consider the material in any event. It reached the factual conclusion that, even taking into account the emotional and cultural issues, it was not satisfied that the grandmother's condition was sufficiently serious at 13 August 1996 to conclude that permanent or long-term assistance was needed. This finding of fact, which the applicant cannot challenge in this proceeding, was fatal to her case. It is not true to say that the Tribunal did not make a finding as to what assistance the grandmother required. It did make such a finding, to the extent that it found that the assistance required was not so substantial as to reach the level contemplated by the Migration Regulations as justifying the issue of a visa to provide that assistance. 32 The Tribunal's reasoning about the reasonable availability of assistance for the applicant's grandmother from sources other than the applicant may or may not have been wrong. It was not fundamental to the Tribunal's decision. As I have said, once the Tribunal had made its finding of fact as to the insufficiency of the level of assistance required by the applicant's grandmother as at the date of application for the visa, the case had to be determined against the applicant. Even if the Tribunal were wrong to make the findings of fact it made about the reasonableness of the assistance provided by the applicant being made up from a number of other sources, any such error could not give the applicant a right to overturn the decision, which was based on another ground. Conclusion 33 The applicant has therefore failed to make out the case she put to the Court of error on the part of the Tribunal. It is unnecessary for me to consider whether, if she had established some error affecting the Tribunal's decision, that error would have amounted to jurisdictional error. The question whether an error of law is a jurisdictional error is not free of difficulty. 34 It is also unnecessary for me to consider the questions of time limitations and joinder of parties, because the outcome of those questions depended upon the applicant establishing jurisdictional error on the part of the Tribunal. 35 The application to the Court must be dismissed. No reason appears to depart from the normal rule that costs follow the event. The applicant will be ordered to pay the respondents' costs of the proceeding. Further remarks 36 It is apparent that this is an unfortunate case. There is every reason to suppose that the applicant had a good case for saying that her grandmother required her care by the time the case came before the Tribunal. The length of time that elapsed between the application for a visa and the Tribunal hearing seems to have led to a situation in which everybody concerned overlooked the requirement that the applicant satisfy the definition of 'special need relative' at the date when she made her application for a visa, 13 August 1996. The lapse of time has been exacerbated by the fact that the applicant sought consideration by the Minister of her case, under the power given by s 351 of the Migration Act, before she began this proceeding in Court. The result is that there has been a substantial delay in processing the applicant's application, not all of which is due to the applicant's conduct. 37 At the hearing of this proceeding, it was common ground that a visa of the kind sought by the applicant can no longer be obtained. The Migration Regulations have been amended, so as to substitute a different kind of visa. The visa sought by the applicant was a permanent one. I do not know whether there is a visa for which the applicant could now legitimately apply, so as to enable her to continue to care for her grandmother. After she has been caring for her grandmother for such a long time, it would be a pity if the applicant were now to be compelled to leave Australia. Not only would it be harsh for the applicant to have to leave, but the inevitable consequence seems to be that her grandmother would become dependent on the provision of care from various other sources. In effect, she would become a burden on Australia's resources to care for the elderly, whereas she is now being cared for exclusively by the applicant. If there were some possibility of the applicant being given a visa to remain in the country, at least so long as she is required to continue caring for her grandmother, that would seem to be a sensible result. I have no doubt that those acting for the applicant will take any necessary step to bring these remarks to the attention of the Minister, or officers of the Department who might have the capacity to make decisions that would bring about such a result. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 6 May 2004 Counsel for the Applicant: G Gilbert Solicitor for the Applicant: Erskine Rodan & Associates Counsel for the First Respondent: Dr S Donaghue Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent did not appear Counsel for the Third Respondent: The Third Respondent did not appear Date of Hearing: 27 November 2003 Date of Judgment: 6 May 2004