Editors --- "Inflexible Application of Policy" [2004] AdminRw 14; (2004) 56 Admin Review 64

• Inflexible application of policy

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Inflexible application of policy

One of the questions in Jackson v Minister for Immigration and Multicultural and Indigenous Affairs^[1] was whether the Migration Tribunal had inflexibly applied policy, rather than using it as a guide.

The applicant had applied for a visa as a ‘special needs relative’ providing substantial and continuing assistance in relation to both his parents. The Tribunal accepted that the applicant had been providing and continued to provide financial and emotional support to his mother and had provided physical support to his father until the latter’s death from cancer. The Tribunal found, however, that this support was not substantial, relying on a policy manual that listed seven circumstances that ‘on their own’ did not require substantial and continuing assistance. The Tribunal identified three of these circumstances as describing the care given by the applicant and stated that this care was ‘of the kind excluded by the policy’.

The Full Court of the Federal Court held that the Tribunal had failed to consider for itself whether the assistance being provided was substantial. It had considered the manual as determinative of the matter, rather than as a guide—and may also have misconstrued the manual. It would be incorrect to say that particular kinds of assistance could never amount to substantial assistance.

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^[1] [2003] FCAFC 203.