FEDERAL COURT OF AUSTRALIA

Hussein v Minister for Immigration & Multicultural Affairs [1999] FCA 1621

MIGRATION – application for family visa – whether main applicant a “special need relative” of an Australian citizen – whether Australian citizen had need of assistance because of “serious circumstances” affecting the citizen – whether Migration Regulations 1994 should be given broad and generous construction in favour of Australian citizens and residents – relevance of effect on Australian citizen resulting from separation of parent from child

WORDS & PHRASES – “special need relative”, “serious circumstances”

Migration Act 1958 (Cth), s 476(1)(e)

Migration Regulations 1994 (Cth)

Convention on the Rights of the Child 1990, Arts 7, 9

Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515, not followed

Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCA 194, followed

Alameddine v Minister for Immigration and Multicultural Affairs [1999] FCA 1506, cited

SHAMIMA BI HUSSEIN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N533 OF 1999

EMMETT J

5 NOVEMBER 1999

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicants, Mrs Shamima Bi Hussein and her sons, Atif and Arshad Hussein, lodged combined applications for Family (Residence) (Class AO) visas with the Department of Immigration and Multicultural Affairs on 29 April 1997.  Those applications were rejected by a delegate of the Minister for Immigration and Multicultural Affairs on 23 October 1997.  The applicants applied for review of the delegate’s decision to the Migration Internal Review Office (“MIRO”) on 17 November 1997.  The applications were rejected by MIRO on 6 February 1998.  The applicants then applied for review of the decision to the Immigration Review Tribunal (“the Tribunal”) on 24 February 1998.  On 11 May 1999, the Tribunal confirmed the decision to refuse to grant the visas.

2                     The applicants have now applied to this Court for an order of review of the decision of the Tribunal.  The original application specified seven grounds.  When the matter was called on for hearing today, all seven grounds were abandoned and, in lieu of those seven grounds, a new ground was added without objection.

3                     That ground is based on section 476(1)(e), namely that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision.  It is the second limb that is relied on by the applicants. 

4                     Subclass 806 is relevantly concerned with “special need relatives” as that term is defined in the Migration Regulations 1994 (Cth).  Mrs Hussein, who is identified in the visa application as the main applicant, was born on 4 June 1960 and is a citizen of Fiji.  She entered Australia on a visitor visa on 15 February 1997.  The expiry date of that visa was 15 May 1997.  She has not held a substantive visa since that time.  Arshad Hussein, a son of the main applicant, was born on 14 March 1981 and is also a citizen of Fiji.  He also entered Australia with his mother on a three month visitor visa on 15 February 1997.  The third applicant, Atif Hussein, is Mrs Hussein’s youngest son.  He is also a citizen of Fiji, having been born 26 May 1992.

5                     Mrs Hussein visited Australia on 6 February 1982 on a one month visitor visa.  Her second son, Aiyaz, was born in Australia on 13 March 1982.  The fact of his birth in Australia gave him Australian citizenship.  Mrs Hussein returned to Fiji on 2 June 1982.  She visited Australia again in September 1991, returning to Fiji the following month before her one month visitor visa expired.

6                     Aiyaz returned to Fiji in July 1984 and returned to Australia for a visit in November 1990, leaving in January 1991.  He came to Australia again in December 1994 and has remained in Australia since then, except for a return visit to Fiji for about one month in December 1995.  Mrs Hussein’s husband, the father of her children, died in Fiji on 15 June 1993.

7                     Mrs Hussein’s son Aiyaz is the nominator for the purposes of her application for a Family (Residence) (Class AO) visa.  The question of whether Mrs Hussein is entitled to the grant of such a visa depends upon whether she is “a special need relative” in relation to Aiyaz.  “Special need relative” is relevantly defined, in relation to an Australian citizen usually resident in Australia, as meaning:

“A relative who is willing and able to provide substantial and continuing assistance to the citizen if:

(a)       the citizen has a permanent or long term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen… and

(b)       the assistance cannot reasonably be obtained from:

(i)         any other relative of the citizen being a relative who is an Australian citizen or an Australian permanent resident…”

8                     When asked by the Tribunal why Aiyaz came to Australia in December 1994, Mrs Hussein said that things were very difficult for her in Fiji when her husband died and it was thought that the best thing for Aiyaz was to come to Australia.  In Australia, Aiyaz stayed with his aunt, Mrs Hussein’s sister-in-law, and her family.  When Mrs Hussein and her two other sons arrived in Australia in February 1997, they also stayed for about six months with Mrs Hussein’s sister-in-law and her family.  They were then given their own house which Mrs Hussein’s father-in-law had owned.  Her mother-in-law was also living in Australia then and has been living here for the past two and a half years, although she is not a permanent resident.

9                     Aiyaz’s evidence before the Tribunal was that, when he left Fiji for Australia in December 1994, he was very sad to go.  He said that he found his first year here very difficult and was in the lowest class in Year 7.  He said that things were not much better in Year 8 and his school work was not much improved.  He did, however, make some friends. 

10                  The Tribunal accepted the evidence of various health practitioners that Aiyaz was depressed and sad from the time of his arrival in Australia in December 1994 until about the end of 1996.  The Tribunal appears to have accepted that Aiyaz had difficulty with his school work and did not have any friends when he began school in 1995. Aiyaz said that he did not go to any more doctors or to counselling after about November 1996 because he knew that his family was coming to Australia.  He said that he thought he did well in Year 9 in 1997 because his family was here and he could sleep properly and paid attention at school.

11                  The Tribunal found that Aiyaz was cared for during the period before his mother arrived by his aunt, with whom his family maintains very close ties and who has been supportive of Mrs Hussein and her sons over a period of nearly twenty years.  The Tribunal also found that Aiyaz’s health and school performance improved markedly after the end of 1996 and that this was, according to Aiyaz’s evidence, because he knew that his family was to join him.

12                  It is, of course, axiomatic that a child should not be separated from his parents if that can possibly be avoided.  I was referred, on behalf of the applicants, to the Convention on the Rights of the Child 1990 (“the Convention”) and in particular articles 7 and 9 which, respectively, provide as follows:

“7(1)   The child should be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible the right to know and be cared for by his or her parents.

………………………

9(1)     States Parties shall ensure that a child should not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.  Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents or one where the parents are living separately and a decision must be made as to the child’s place of residence.”

13                  One could not be otherwise than totally supportive of sentiments such as those expressed in the Convention.  However, I do not consider that those provisions have any bearing on the question that arose before the Tribunal and also arises before me.  This is not a case where Australia is seeking to separate parent and child.  The decision for Aiyaz to come to Australia and be separated from his family was made by his family.  No doubt that decision was made for what were considered to be very good and valid reasons, namely the better opportunity that it was perceived Aiyaz might have from an education in Australia.  Be that as it may, that is the circumstance that has brought about separation of son from mother.  For that reason, I do not consider the Convention has any application.

14                  The applicants relied on a view expressed by Burchett J in Fuduche v Minister for Immigration, Local Government and Ethnic Affairs  (1993) 45 FCR 515 where his Honour expressed the view (at 527) that, having regard to the benevolent intent of regulations such as those under consideration, the regulations should be given a broad and generous construction in favour of those Australian citizens and residents that it was intended to benefit and in furtherance of the good name of Australia that its humanity maintains.

15                  However, that is not the current approach to be taken in the construction of provisions such as these.  The Migration Act 1958 (Cth) (“the Act”), and the regulations made under it, taken as a whole, in effect disclose a compromise which represents a balance between the various competing interests that are involved.  The particular pattern that is set by the detailed provisions of both the Act and the regulations should not be distorted by treating one element in it other than in accordance with the fair meaning allowed by the language that is used.  For that reason, there is no reason to give a broad and generous construction to such provisions since to do so may detract from the force given in the balance of the legislative scheme to the other interests that are involved - see Minister for Immigration & Ethnic Affairs v Teo (1995) 57 FCR 194 at 206.  Accordingly, I consider that the construction of the language in question is to be undertaken according to the ordinary meaning of the words.

16                  It is significant that the expression that is relied upon by the applicants appears at the end of a phrase, namely, “because of death, disability, prolonged illness or other serious circumstances affecting the citizen”.  That is to say “serious circumstances” must be considered in the context of “death, disability and prolonged illness”.  All three of those matters are obviously serious.  What constitutes “other serious circumstances” must be construed in the light of those concepts.

17                  As I have said, one would always strive to ensure that a child is not separated from his or her parent.  Nevertheless, it is clear in my view that the language of the regulation is concerned with something more than mere separation of parent from child.  True it is that findings have been made that Aiyaz has been “depressed and sad”.  It is also suggested that he lost five kilograms in weight, although that seems to lead nowhere without any finding that that was in some way harmful to his health.

18                  There is also the finding that the presence of his mother enabled him to overcome his depression and sadness and enabled him to improve his achievements at school.  In a sense, that conclusion is understandable.  However, all that that finding establishes is that a teenage boy will feel more comfortable when his mother is nearby and may be less comfortable if he is separated from his mother, notwithstanding that he may have a loving aunt with him.  The facts found bear an inference that, if Mrs Hussein is not permitted to remain in Australia, Aiyaz may well feel depressed and sad again.  That, it seems to me, is the normal consequence that would ordinarily follow from the separation of parent and a child.

19                  Such separation might be more or less significant according to the particular needs of the child.  There is, however, no finding that there were particular needs that Aiyaz had beyond those that an ordinary healthy son would feel for his mother.  No doubt if Mrs Hussein is not permitted to remain, his sadness could return.  However, I do not consider that it was not open to the Tribunal to conclude on the basis of the findings made by it that there were no serious circumstances affecting Aiyaz, such that he needed “substantial and continuing assistance” from his mother.  There is no suggestion in the findings that any particular assistance was likely to be furnished by Mrs Hussein to her son other than her mere presence in Australia.

20                  I do not consider that it can be meaningfully said that Mrs Hussein would render assistance to Aiyaz in relation to his sadness and depression by remaining in Australia, simply because his sadness might return should she return to Fiji – see for example, Alameddine v Minister for Immigration & Multicultural Affairs [1999] FCA 1506 at paragraph 23.  The Tribunal found that Aiyaz does not require his mother’s assistance because of death, disability, prolonged illness or other serious circumstances affecting him personally.  That is a finding of fact in my view, which does not involve any misunderstanding of the applicable law, namely the regulation in question.  For that reason, I do not consider that the Tribunal’s decision was erroneous.

21                  The Tribunal also went on to indicate a finding that it was not satisfied that Aiyaz is unable to obtain assistance from any other relative of his, being a relative who is an Australian citizen.  Aiyaz’s aunt is an Australian citizen who has looked after him for a considerable period of time and has been a close friend both to Aiyaz and Mrs Hussein and her family.

22                  It may well be, having regard to the finding that Aiyaz was sad and depressed, that his aunt does not provide the same degree of comfort that his mother would provide.  That, of course, is not surprising.  If there were a serious circumstance which required the assistance of Aiyaz’s mother and no one else, then it may well be that his aunt could not provide that assistance.  However, having regard to the finding that the Tribunal made, the question of whether or not assistance could have been provided by Aiyaz’s aunt simply does not arise.  It would only arise if there were a finding that some assistance was required because of “serious circumstances”.  It would then be necessary to consider the nature of the serious circumstances before determining whether his aunt could provide the relevant assistance.

23                  For the reasons that I have already indicated, I consider that the grounds of review are not made out.  Accordingly, I conclude that the application should be dismissed with costs.

Associate:

Dated:              22 November 1999