FEDERAL COURT OF AUSTRALIA AB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1227 MIGRATION – visa – protection visa – unsuccessful application – subsequent application for family visa – whether Court required to refrain from publishing appellant's name in proceeding relating to application for family visa – whether proceeding relates to appellant in her capacity as a person who applied for a protection visa – whether title to proceeding should be changed as a matter of caution MIGRATION – visa – family visa – special need relative – appellant previously applied for Sri Lankan temporary visa – criterion for family visa required that applicant have become a special need relative since last applying for a substantive visa – tribunal found appellant became a special need relative before last applying for Sri Lankan temporary visa – whether tribunal obliged to inform appellant of proposed finding and give opportunity to respond – whether tribunal ignored evidence that appellant became special need relative at a later date Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) ss 91X, 417 Migration Regulations 1994 (Cth) Sch 2 item 806, reg 1.03 Minister for Immigration & Multicultural & Indigenous Affairs v Landers [2003] FCA 1485 distinguished Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 (2000) 204 CLR 82 applied AB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 1070 of 2003 GRAY J 22 SEPTEMBER 2004 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 1070 of 2003 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: AB APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: GRAY J DATE OF ORDER: 22 SEPTEMBER 2004 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant 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 1070 of 2003 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: AB APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: GRAY J DATE: 22 SEPTEMBER 2004 PLACE: MELBOURNE REASONS FOR JUDGMENT The nature and history of the proceeding 1 This appeal is concerned with the extent to which the duty to afford procedural fairness requires that an administrative decision-maker inform the party to be affected by the decision of the point on which, in the decision-maker's view, the decision will turn. The appellant's case is that she was defeated by a finding that a crucial state of events came about before a particular date in the chronology of events. If she had been warned about the importance of that date, she would have attempted to show that the state of events came about after that date. 2 The appeal is from a judgment of the Federal Magistrates Court. The learned federal magistrate dismissed an application for relief pursuant to s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Migration Review Tribunal ('the Tribunal'). The Tribunal affirmed 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') that the appellant was not entitled to the grant of a Change in Circumstance (Residence) (Class AG) visa, subclass 806 (a 'Family visa'). 3 The appellant is a citizen of Sri Lanka. She and her husband and two children arrived in Australia on 2 February 1996, as holders of Short Stay (Visitor) (Class TR) subclass 676 visas, valid until 2 May 1996. On 11 April 1996, the appellant applied for a protection visa. Her application was refused. She sought review of that decision by the Refugee Review Tribunal, which affirmed the decision on 11 March 1997. She applied to the Minister for the exercise of his discretion pursuant to s 417 of the Migration Act 1958 (Cth) ('the Migration Act'), to substitute a more favourable decision. On 13 May 1998, the Minister informed her that he had decided not to exercise his discretion in her favour. 4 In the meantime, on 1 August 1996, the appellant and her family also applied for Sri Lankan (Temporary) (Class TT) subclass 435 visas ('subclass 435 visas'), which were granted, but which expired on 31 July 1997. The appellant made further applications for subclass 435 visas on 11 August 1997 and, crucially for the present case, on 9 December 1997. These two applications were unsuccessful. On 29 July 1998, the appellant made her application for the Family visa. The Minister's delegate refused to grant that visa on 5 December 2001. The decision of the Tribunal, from which this proceeding results, was given on 7 June 2002. The title to the proceeding 5 Section 91X of the Migration Act provides that, in a proceeding in this Court (among others), if the proceeding relates to a person 'in the person's capacity as a person who applied for a protection visa', the Court must not publish (in electronic form or otherwise), in relation to the proceeding, the person's name. The proceeding in which the judgment the subject of this appeal was given was originally commenced in the High Court of Australia (to which s 91X also applies). The proceeding was remitted to this Court and from this Court to the Federal Magistrates Court, a court to which s 91X also applies. 6 At the outset of the hearing of the appeal, I raised with counsel for both parties the question whether s 91X applies to this appeal. The question is whether the appeal 'relates to' the appellant in the appellant's 'capacity as a person who applied for a protection visa'. No-one had adverted to the question in the Federal Magistrates Court, or previously in this Court, or in the High Court of Australia. This is probably because the proceeding does not itself concern the appellant's earlier application for a protection visa. If the purpose of the section is to avoid publicity with respect to the claims made by a person about that person's activities in his or her own country, made in support of an application for a protection visa, then it would make sense to apply it in the present case. If the true name of the appellant were known as a result of its publication in relation to the present case, that would permit earlier decisions relating to her application for a protection visa to be traced, and the information about her would become available. Neither counsel in the present appeal was prepared to make submissions about the issue. Out of an abundance of caution, I ordered that the title to the proceeding be amended by deleting the name of the appellant and substituting the designation 'AB'. I took this course without deciding the question whether s 91X compels this course to be taken. For the same reason, I refrain from publishing in these reasons for judgment the medium neutral citation by reference to which the judgment of the Federal Magistrates Court is known, because that citation includes the name of the appellant. The legislation 7 The relevant criteria for the grant of a Family visa, at the time the appellant applied, were found in Sch 2 to the Migration Regulations 1994 (Cth) ('the Migration Regulations'), under the heading 'SUBCLASS 806 – FAMILY'. Item 806.21 contained criteria to be satisfied at the time of application for the visa. Relevantly to the present case, such criteria included: '806.211 If: ... the applicant: ... (d) has become an aged dependent relative, an orphan relative, a remaining relative or a special need relative of an Australian citizen, of an Australian permanent resident, or of an eligible New Zealand citizen since last applying for an entry permit or substantive visa.' [Emphasis added] 8 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 9 The appellant claimed to be a special need relative of her husband's uncle ('the nominator'), an Australian citizen. Her application was submitted by a registered migration agent. It contained a medical report, dated 22 July 1997, recording that the nominator had suffered a heart attack on 14 June 1997. He was hospitalised for two weeks. The report said: 'As he has had two serious attacks on the same day, he needs constant care which should not be neglected and his medication should not be left unaided. He is very depressed at the moment and needs his family around him to support him emotionally. His wife works full time and she is unable to take time off due to heavy mortgage commitments.' The report recorded that the nominator's nephew, the appellant's husband, was living in Australia and able to provide help on a regular basis and was already helping. 10 Subsequently, the appellant's migration agent provided to the Department of Immigration and Multicultural Affairs (now the Department of Immigration and Multicultural and Indigenous Affairs) (in both cases 'the Department') a letter from a psychologist, dated 3 August 1998. This stated that the nominator had been attending therapy for the previous 18 months, receiving pain management treatment and assistance with coping with emotional distress. He had suffered a serious injury in the workplace and his quality of life had been affected in a negative way. He had suffered complications with a recent heart condition related to the stress of his injury and experienced mood swings involving high levels of frustration and deep depression. The letter said that the appellant: 'has provided valuable and ongoing support for her Uncle [the nominator] during his treatment. She spends time with [thenominator] during the week usually four days between Monday and Friday while his wife…is at work and is on call for him every day to assist in getting him to medical appointments. ... [The appellant] also monitors her Uncle's level of depression daily to ensure he has company if he appears unable to cope with his distress.' The psychologist recommended that the appellant's application for residency as a special need relative be viewed favourably 'as she plays a vital role in the quality of life experienced by her Uncle.' 11 By letter dated 16 March 1999, an officer of the Department sought from the appellant further information in relation to her application. Among the information sought was 'the nature of the disability or prolonged illness and when it was diagnosed'. Through her migration agent, the appellant responded with a written submission of her agent and some additional material, including a further report of the psychologist, dated 30 March 1999. The agent's submission referred to the nominator's post-traumatic stress disorder, following a serious workplace accident. It added: 'He has also had major cardiac problems and underwent double by-pass surgery last year.' 12 According to the psychologist's report: '[The nominator] first presented for therapy on 27th November 1996 suffering from Post Traumatic Stress Disorder following an accident in the workplace where his leg was crushed by the fire extension of the machinery he was working on. [The nominator] suffers from Lymphodema, involving quite severe pain as a result of his condition and still experiences sleep disorder, anxiety distress from his pain and depressed mood. [The nominator's] condition is ongoing and his anxiety condition has been complicated since experiencing cardiac distress and surgery last year.' The report went on to say that the appellant and her family had been able to provide ongoing support at the appellant's home on an average of three days per week. The psychologist also expressed the view that the appellant's support would be required on an ongoing basis, particularly as it was necessary for the nominator's wife to work full-time and meet the financial demands of the family. 13 The decision of the Minister's delegate was not given until 5 December 2001. In the reasons for the delegate's decision, the delegate referred to medical evidence that the nominator had suffered a heart attack on 14 June 1997. The delegate also referred to the nominator's earlier work-related injury. She found that the nominator had suffered from a 'disability' and 'prolonged illness', within the meaning of the definition of 'special need relative'. She found that the appellant was not in a position to provide the level of permanent and long-term assistance required by the definition and that the type of care the appellant provided was not 'substantial and continuing' support, within the definition of 'special need relative'. The delegate also referred to the absence of evidence that other family members could not provide the kind of assistance the nominator needed. 14 In support of her application to the Tribunal for review of the delegate's decision, the appellant submitted further material. Among the material is a statement of the appellant, which included the following: 'First let me explain that my uncle needs constant care as a result of his accident which caused a very serious leg injury.. [sic] While he was having difficulties in moving around with his injured leg, and was in pain, in June '97 he suffered from two serious heart attacks and was hospitalised for two weeks. But had to be on a waiting list until January '98 for his double by-pass surgery. However his heart condition had been an on going illness ever since he met with this accident. He is worried and depressed about what happened to him. At the time of [sic] my application was lodged,(1998) as a special need relative it was just few months after his operation and [he] needed much more care as it has become too complicated with his accident. His wife had to work, and she would bring him to my place on her way to work, to be taken care of, and finally came to a position where he had to completely depend on us as his wife separated from him and his son does not live with him. Due to the accident his life style has completely changed which has caused him lots of losses. How I assist My uncle : I have been helping and caring, for my uncle as he needs constant care, in controlling his emotions, and depression that he goes through everyday ever since I came to Australia although there was no necessity to publish or bring it forward, until there came a day that he could not be left unaided as he need [sic] lots of care attention and support and [I] took the opportunity in applying as a special need relative.' The statement went on to detail the sort of care provided by the appellant. 15 Among the material forwarded to the Tribunal was a further report of the psychologist, which repeated the information that the nominator had first presented for therapy on 27 November 1996 and provided substantial information about the nominator's current treatment and his performance in various psychological tests. It also contained a prognosis and a reference to the need for future treatment. 16 Following an invitation from the Tribunal to provide information, the appellant, through her agent, submitted further material. This material included a statutory declaration of the nominator, which referred to the nominator's accident at work on 1 October 1995 and said as follows: 'Ever since the accident I have suffered from serious health problems and on 14 June 1997 I suffered two serious heart attacks. After the accident in 1995 my wife and I began to have problems in our marriage. Particularly after my heart attacks our relationship deteriorated and my wife was not able to look after me as she was working full-time and I needed a great deal of care at that time. Around the middle of 1998 my wife began to take me to my niece's home three days a week. My niece...and her husband,...between then [sic] looked after me three days a week. They prepared my meals, took me to appointments and gave me an enormous amount of support.' [Paragraph numbers omitted] 17 Also submitted to the Tribunal was a report of the general practitioner, dated 4 March 2002, containing a more detailed history of the injury to the nominator's left leg. 18 At the hearing before the Tribunal, the psychologist gave evidence. As this evidence is recounted in the reasons for decision of the Tribunal, it included a history of her treatment of the nominator dating from 1996. The appellant, her husband and the nominator all gave evidence to the Tribunal. The appellant's migration agent made a submission. The Tribunal's reasons 19 In its reasons for decision, the Tribunal stated that it was required to consider whether the appellant was a special need relative at the time of the visa application and whether she remained such at the time of decision. After examining the evidence in the light of the elements of the definition of 'special need relative', the Tribunal said: 'The Tribunal finds that the visa applicant was a "special need relative" at the time of the visa application but the Tribunal also finds that the visa applicant became a special need relative before 9 December 1997 being the date on which the visa applicant last applied for a substantive visa. The Tribunal finds that the visa applicant does not satisfy subclause 806.211(d) and therefore fails to satisfy subdivision 806.21.' 20 The Tribunal then determined that it was required to affirm the decision of the delegate. The judgment of the Federal Magistrates Court 21 In the Federal Magistrates Court, the appellant put two principal submissions. She argued that, in order to afford her procedural fairness, the Tribunal was obliged to bring to her attention the fact that it proposed to find that she had become a special need relative prior to 9 December 1997, the date on which she had last applied for a substantive visa (her third application for a subclass 435 visa), and that it therefore proposed to find that she did not satisfy the criterion in item 806.211(d). The failure of the Tribunal to inform the appellant of its proposed finding on this critical issue, and to give her an opportunity to provide further evidence or to make submissions about the issue, amounted to a denial of procedural fairness. The second submission was that the Tribunal had misinterpreted the definition of 'special need relative' and had thereby identified or asked a wrong question and had failed to exercise its jurisdiction. 22 As to the first submission, the federal magistrate expressed the view that it is not the responsibility of the Tribunal to bring to the attention of the appellant, who was represented by a migration agent, the matters which may ultimately result in an adverse decision, where the basis for the adverse decision is no more than a proper and appropriate interpretation of the legislation. The Tribunal was not obliged to point out to the appellant that the chronology of events may lead to an adverse conclusion. The appellant had a copy of the relevant criterion prior to the Tribunal's hearing. The federal magistrate was not satisfied that there had been a denial of procedural fairness. 23 With respect to the second submission, the federal magistrate had some difficulty discerning how it was put. It seemed to him that the appellant was arguing that the Tribunal had not necessarily provided a basis upon which it reached its decision, particularly in relation to the finding that the appellant became a special need relative prior to 9 December 1997, or had failed to consider the issue properly. The federal magistrate characterised the argument as no more than an attempt to revisit the factual background, which his Honour thought was properly considered, and which led to a finding open to the Tribunal, that the appellant had become a special need relative before 9 December 1997. His Honour rejected the argument. The case on appeal 24 In essence, the appellant put the same two arguments on appeal as she had put to the Federal Magistrates Court. With respect to the argument about denial of procedural fairness, counsel for the appellant relied on Minister for Immigration & Multicultural & Indigenous Affairs v Landers [2003] FCA 1485, where Heerey J said at [20] – [22]: 'I agree with the Federal Magistrate's perceptive analysis of what happened in this case. Counsel for the Minister argued that there was no obligation to set out all the criteria for the particular visa class or sub-class. That is no doubt true. Natural justice does not require a formalistic, box-ticking approach. But what is required, as the authorities such as Kioa v West show, is that a substantial issue on which the case is likely to turn is clearly brought to the notice of the person affected by the decision. This principle does not depend on whether the issue is one of law or fact, or mixed fact and law. The present case was not a question of making an applicant's case, or prompting an applicant as to the material that he should rely on (cf Luu v Renevier (1989) 91 ALR 39 at 45-46) or advising an applicant of deficiencies in the material provided (cf Malik v Minister of Immigration and Multicultural Affairs (2000) 98 FCR 291 at [22]). On the contrary, this was a case of failing to tell an applicant what, in practical terms, was the issue on which the decision was likely to turn so that the applicant could work out for himself what evidence and argument might best help him to obtain the decision he sought. Not only was this not done in the present case but the whole circumstances were such as to distract the attention of the respondent from the critical issue. The commencement criterion is not mentioned in the application form, nor in the delegate's letter, nor in the delegate's reasons for decision. On the application to the Tribunal the respondent advanced substantial material in an attempt to meet the ground on which the delegate had decided against him. Of course, as counsel for the Minister pointed out, the Tribunal was obliged to conduct a complete rehearing and would have erred in law if it simply adopted the delegate's reasons. But that does not gainsay the fact that the way the delegate decided the case was one of the factors in the overall scheme of things which led to the respondent not being directed to the critical issue but instead being diverted from it.' 25 Counsel for the appellant submitted that, in the present case, the Tribunal had diverted the appellant's attention from the critical issue. He asserted that the Tribunal did not mention the critical dates in its hearing and did not explore with the appellant or any of her witnesses whether she could establish that she was a special need relative in the 'window of opportunity' between 9 December 1997, when she had applied for her subclass 435 visa and 29 July 1998, when she applied for the Family visa. 26 The facts in Landers can be distinguished from those in the present case. At the outset of the hearing by the Tribunal in the Landers case, the Tribunal referred to the period of time between Mr Lander's previous visa application and the lodgement of his application for a Family visa. It did so without drawing the attention of Mr Landers to the importance of that time period, but prefaced its remarks by saying that they were 'by way of background' and referred to them as 'technical points'. In that case, a federal magistrate had found that the Tribunal raised in the mind of Mr Landers an expectation that the critical issue was whether or not he was a special need relative during that period, rather than to the need for him to establish that he had become a special need relative during that period by a change of circumstances. It was in the context of such a case that Heerey J made the remarks I have quoted. The same elements were not present in the appellant's case. Counsel for the appellant did not refer to any transcript of the hearing before the Tribunal. There was nothing to indicate that the Tribunal in the present case had misled the appellant as to the significance of the date of her earlier visa application. Instead, counsel for the appellant relied on a failure by the Tribunal to draw the appellant's attention to the significance of the date. In addition, Mr Landers was not represented by a migration agent, whereas the appellant was, throughout all of the proceedings in relation to her application for the Family visa. 27 In Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 (2000) 204 CLR 82 at [101], McHugh J said: 'One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding.' [Footnotes omitted] 28 The two categories to which McHugh J drew attention are instructive. One is the category in which the decision-maker should be expected to warn a person of the risk that a particular finding will be made. The other category is cases in which the risk necessarily inheres in the issues to be decided. In my view, the present case belongs in the second category. According to the criterion expressed in item 806.211(d), it was clear that the appellant was required to have become a special need relative since last applying for a substantive visa. If the appellant, with the assistance of her migration agent, had read that criterion, she would have been well aware of the importance of the period between her last application for a subclass 435 visa and her application for the Family visa. If there were material that disclosed a change in the condition of the nominator during that period, so as to cause the appellant to fall within the definition of 'special need relative' when she had not previously done so, it was for her to draw this material to the attention of the Tribunal, in seeking to make that point. The federal magistrate was correct to hold that the Tribunal was under no obligation to bring the specific aspect of the criterion to the attention of the appellant in the circumstances of this case. 29 The written outline of submissions relied on by the appellant suggested that: 'the witnesses in the hearing would all have had knowledge about the circumstances of the nominator at the critical time and…further evidence would have been forthcoming.' There was no evidence placed before the Federal Magistrates Court as to what further material the appellant had available to her, that she would have placed before the Tribunal, if she had been warned specifically of the relevance of the period between 9 December 1997 and 29 July 1998. The appellant seemed really to be arguing that, if she had been made aware of the significance of 9 December 1997, she would have been able to make further, or different, submissions, placing emphasis on aspects of the facts on which she had not concentrated. The basis of the appellant's case before the Minister's delegate and the Tribunal was that, if the appellant had not become a special need relative as an immediate result of the nominator's work-related injury on 1 October 1995, she had certainly done so as an immediate result of his double heart attack on 14 June 1997. The only significant event that occurred between 9 December 1997 and 29 July 1998 was the performance of open-heart surgery in January 1998. If the appellant had set out to show to the Tribunal that the nominator's condition was not so serious before that surgery as to make her a special need relative, but that his condition had become sufficiently serious as a result of the surgery, it would have been necessary for her to contradict a good deal of the evidence she had placed before the Minister's delegate and the Tribunal. It would also have been necessary for her to establish that the effect of the surgery was to aggravate the nominator's condition, rather than to ameliorate it as the surgery was no doubt intended to do. In the light of the material before the Tribunal, this would have been a daunting task. 30 Counsel for the appellant perhaps put the second argument more clearly than it was put to the Federal Magistrates Court. The argument was that the Tribunal failed to consider the material that in fact pointed to a change in the nominator's circumstances in the period between 9 December 1997 and 29 July 1998, and thereby made the appellant a special need relative. When pressed as to what this material was, counsel for the appellant pointed to the statement in the nominator's statutory declaration, quoted in [16], to the effect that around the middle of 1998, his wife began to take him to the appellant's home three days a week. Counsel for the appellant also pointed to the opinion of the psychologist that the nominator's psychological problem had been complicated through his cardiac condition, which had involved surgery to perform a double heart bypass in January 1998. Reliance was also placed on the fact that the appellant had lodged her application for a Family visa just a few months after the surgery, at which stage the nominator needed, according to her, more care than had been the case as a result of his earlier accident. 31 The difficulty about this argument is that, on the whole of the evidence before it, the Tribunal came to the conclusion that the nominator had been sufficiently ill prior to 9 December 1997 as to cause the appellant then to be a special need relative. The Tribunal did not ignore the evidence as to what occurred in the early months and the middle of 1998. It recited that evidence, as part of the evidence that it reviewed in making its finding. For the appellant to argue that the Tribunal ought to have focused on particular items of the material is simply to say that the Tribunal should have arrived at a different conclusion from the one it reached. It is to argue that, contrary to the finding it actually made, the Tribunal ought to have found that the nominator was not sufficiently ill prior to 9 December 1997 as to make the appellant then a special need relative, but became so in 1998. For the Court to take such a course would be to engage in impermissible merits review. There was an abundance of material on which it was open to the Tribunal to make the finding that it made, that the appellant had become a special need relative of the nominator prior to 9 December 1997. Conclusion 32 For these reasons, the appeal must be dismissed. No error on the part of the federal magistrate was disclosed by the appellant's arguments. 33 No reason was suggested, and none appears, for departure from the usual rule that costs follow the event. Accordingly, the appellant should be ordered to pay the respondent's costs of the appeal. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 22 September 2004 Counsel for the Appellant: B Kissane Solicitor for the Appellant: Wimal & Associates Counsel for the Respondent: P Hanks Solicitor for the Respondent: Clayton Utz Date of Hearing: 2 June 2004 Date of Judgment: 22 September 2004