Case: Hussein v Minister for Immigration and Multicultural Affairs [1999] FCA 1621
Outcome: referred to
The MRT also concluded that that the nominator did not require assistance because of "other serious circumstances" at the time of application. Citing Hussein v Minister for Immigration and Multicultural Affairs [1999] FCA 1621 (" Hussein "), the MRT stated that it was "not satisfied that the nominator's concerns for the safety of the visa applicant manifest a need for assistance due to circumstances serious enough to reach the threshold set by 'death, prolonged illness or disability'". The MRT noted that the nominator worked on a full time basis and that Mr Kleynhan's August 2002 report stated that the nominator's stress level had not been a major concern in 1998. 9 Next, the MRT considered whether the assistance provided by the appellant was "substantial" within the meaning of regulation 1.03. The applicant claimed that he assisted his uncle by providing him with company, assurances and moral support, as well as helping with household chores. The MRT concluded that this assistance was not "substantial" in the relevant sense. Finally, the MRT considered whether circumstances had changed sufficiently at the time of decision to alter any of these conclusions. The MRT determined that the appellant was not a special need relative of his uncle at the time of decision. 10 On 16 July 2003, the appellant filed an application in the Federal Court of Australia, pursuant to s 39B of the Judiciary Act 1908 (Cth), for review of the MRT's decision. The proceeding was transferred to the Federal Magistrates Court. Before a Federal Magistrate, the appellant argued that the MRT had misapplied the definitions of "prolonged illness", "other serious circumstances" and "substantial and continuing assistance". In a decision delivered on 12 November 2004, his Honour dismissed the application for review. This is an appeal from that judgment. 11 The parties agreed that, although the "special needs relative" regulation was omitted from the Regulations on 1 December 1998, the MRT was to have determined the application as the law stood at the time of application on 30 July 1998. The appellant's Notice of Appeal raised a number of grounds, not all of which were pursued at the hearing today. 12 In written submissions, the appellant contended that the MRT erred in law in regard to its finding that the nominator's depression did not amount to "other serious circumstances" within the meaning of regulation 1.03. Citing Wu v Minister for Immigration and Multicultural Affairs [2000] FCA 1817 ; (2000) 105 FCR 39 (" Wu ") per Heerey, Moore and Goldberg JJ, the appellant argued that the MRT mistakenly applied Hussein when it held that the words "death, disability or prolonged illness" constrain the meaning of "other serious circumstances". The appellant argued today that the MRT therefore failed to consider whether depression other than that defined as clinical or medical depression could amount to "other serious circumstance". 15 The first respondent also disputed that the MRT misapplied the definition of "serious circumstances." The first respondent argued that Wu did not support the view that "serious circumstances" should be understood independently of the nearby terms "death, disability or prolonged illness". Thus, in first respondent's submission, there was no error in the MRT's application of Hussein . 19 If it were necessary to do so, I would also reject the appellant's argument that the MRT misapplied the definition of "serious circumstances". Contrary to the appellant's submission, Wu is consistent with the view that the terms "death, disability or prolonged illness" are relevant to the meaning of "other serious circumstances". In fact, in Wu at [41], the Full Court held that a circumstance "is sufficiently serious [if], in relation to a citizen, it would require assistance of the same sort that would be required if the citizen was suffering from a disability or prolonged illness". Thus, the Wu Court, like the MRT in this case, considered the meaning of "serious circumstances" in light of the nearby terms. It was clearly open to the MRT to decide that no "other serious circumstances" were present at the time of application. Even if Hussein no longer correctly states the law in all respects, the Tribunal's reliance on this decision did not lead it into relevant error.