FEDERAL COURT OF AUSTRALIA

Wu v Minister for Immigration & Multicultural Affairs [2000] FCA 878

MIGRATION – application for an extension of time to file and serve a notice of appeal – applicant sought visa on the basis of being a “special need relative” in relation to her infant Australian child – Tribunal refused to grant visa and Tribunal’s decision affirmed by primary judge – submission that illness of applicant’s husband could affect his ability to look after the child – whether arguable that definition of “special need relative” satisfied.

Chen v Minister for Immigration and Ethnic Affairs (No 2) (1994) 51 FCR 322 considered

Huang v Minister for Immigration and Ethnic Affairs (Jenkinson, Hill and Lehane JJ, 29 November 1996, unreported) considered

GUI QENG WU v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 611 of 2000

MOORE J

30 JUNE 2000

SYDNEY

THE COURT ORDERS THAT:

1.      The time to file and serve a notice of appeal is extended to 28 July 2000.

2.      The costs of this application are costs in the appeal.

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

REASONS FOR JUDGMENT

1                     This is an application for an extension of time in which to lodge an appeal against a judgment of a judge of this Court.  On 30 August 1999 the Migration Review Tribunal (“the Tribunal”) affirmed a decision to refuse Ms Gui Qeng Wu ("the appellant") a subclass 806 Family (Class AG) Change in Circumstances (Residence) visa which had been sought on the basis the appellant was a “special need relative” of the nominator who was a child born on 9 November 1997.  The appellant sought judicial review of that decision and her application was effectively dismissed on 17 May 2000.  The learned primary judge then affirmed the decision of the Tribunal and ordered the appellant to pay the costs of the Minister for Immigration and Multicultural Affairs (“the Minister”).

2                     The application for an extension of time was filed on 13 June 2000.  The solicitor appearing for the Minister placed no real reliance on the fact that steps to prosecute the appeal were taken after the prescribed period had expired.  Rather it was submitted on behalf of the Minister that the appeal had no prospects of success and, for that reason, time should not be extended.

3                     The appellant was represented in these proceedings, and at the hearing before the learned primary judge, by her de facto husband ("the husband") who is not legally qualified and not fluent in English.  It was with some difficulty that he formulated the point he wished to pursue in the appeal. It may be that it was not a point raised before the learned primary judge or raised in precisely the same way as it was in these proceedings.

4                     A criterion for the grant of the relevant visa was that the appellant was a “special need relative” which was defined in reg 1.03 of the Migration Regulations 1994 (Cth) (“the Regulations”):

... "special need relative", in relation to an Australian citizen usually resident in Australia [or] an Australian permanent resident usually resident in Australia … 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 a 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 [or] an Australian permanent resident … ; or

(ii) welfare, hospital, nursing or community services in Australia;

            (Emphasis added)

5                     It is perhaps desirable to set out a passage from the Tribunal's reasons which reflect the substance of its reasoning:

7. The only evidence presented in support of this application is to the following effect:

The Applicant is 41 years of age, living in a de facto relationship with 1 child.  The applicant attended the hearing on 29 July 1999 without the nominator [the child].  The father of the nominator did not attend the hearing, as he was at home caring for the child.  The Tribunal asked for evidence that the father was an Australian citizen and his passport was produced.  The files contained evidence of certain health problems of the nominator, but under questioning the Applicant could not establish that any follow up treatment or examinations of the child were undertaken for some considerable time since the first claims of medical problems were made.  Claims were made, in the file and at the hearing, as to the health problems of the father of the child.  The evidence given by the Applicant confirmed that the father was well enough to travel to China during April/May 1997.  The Applicant conceded that she wanted to stay in Australia to care for her son, as she did not trust the father to care for the child on a correct and proper basis.  The medical evidence discloses only minor matters, which have not been supported by medical evidence that would bring the Applicant within the definition of a special care relative.

8. The mere fact that the Applicant is the mother of an Australian citizen child, is not sufficient, in itself, for the Applicant to have grounds to apply for an entry permit "as a special needs relative".  The Tribunal has previously held that childhood alone is not a "disability" or "other serious circumstance” giving rise to a need for assistance within the definition of a "special need relative”.  There must be evidence that the child has some illness or disability beyond merely being a child and there is no such evidence in this case.

9. The above is essentially the evidence.

10. Based on the evidence, I find the definition of special need relative is not met.

11. The only evidence of assistance which is needed in this case is for domestic assistance and for babysitting.  Such need for assistance does not satisfy the relevant part of the definition of special need relative as set out earlier, because it does not arise from death, disability or other serious circumstances effecting [sic] the Nominator [the child] or a member of his family unit.

6                     In the application for the visa, a child of the appellant and her husband was identified as the relevant Australian citizen.  The Tribunal appears to have addressed whether the child had "a permanent or a long-term need for assistance because of death, disability, prolonged illness or other serious circumstances” affecting the child.  The Tribunal concluded, in substance, that the child did not have a need for such assistance.  This conclusion appears to have been based on a view that childhood alone is not a "disability" or "other serious circumstances" and, in relation to the particular circumstances of this case, the child did not suffer from any illness of any consequence.  In reaching this conclusion the Tribunal appears, on one view of its reasons, to have considered medical evidence concerning the health of the child and concluded that the evidence "disclose(d) only minor matters".

7                     The reasoning of the Tribunal, summarised to this point is, with one qualification concerning what is meant by “other serious circumstances”, unexceptionable and justified the approach it took.  However it is arguable that the Tribunal, in saying that the medical evidence disclosed only minor matters, was referring only to the evidence concerning the child and was not referring to evidence before it that the husband suffered from chronic hepatitis and a dysfunctional liver.  This evidence would be relevant because, at least arguably, part of the appellant’s case for the visa sought was that the illness of the husband is a "prolonged illness" of a member of the child's family unit that creates the permanent or long-term need for assistance to be provided by the appellant.  In other words, the husband will not be able to look after the child adequately because of his illness and it will be necessary for the appellant to remain in Australia to look after the child herself.

8                     On one view of the material before the Tribunal, the application for the visa was being advanced only on the basis that the appellant was a special need relative because the child was affected by prolonged illness and/or other serious circumstances and required nurturing by the applicant.  In Chen v Minister for Immigration and Ethnic Affairs (No 2) (1994) 51 FCR 322 Davies J concluded that a "serious circumstances" in the definition of "special need relative" could comprehend the circumstance of a young child in need of support and nurturing by parents and in particular by a mother.  However in Huang v Minister for Immigration and Ethnic Affairs (Jenkinson, Hill and Lehane JJ, 29 November 1996, unreported) the Full Court concluded, in relation to a provision arising in a different statutory context, that the definition of "special need relative" did not comprehend a person attending the needs of a young child, in so far as the definition spoke of a citizen (the child) having a permanent or long-term need for assistance because of "other serious circumstances".  It is at least arguable that this conclusion was influenced, in that matter, by the regulations into which the definition of “special need relative” was being imported.  The relevant provision in the regulations  contemplated sponsorship of the special need relative by the citizen and required the sponsoring citizen to be at least 18 years old.  There was thus an obvious tension between the contention that the relevant citizen was of tender years (and experiencing "other serious circumstances") and the apparent need for the citizen to be at least 18 years old. It is arguable that the Full Court has not determined that the defined meaning of "special need relative" can be taken, for all purposes, to exclude a relative who may have to attend to the needs of a young child and, more particularly, has not determined that the expression "other serious circumstances" cannot comprehend the circumstances of a young child if the definition were to apply in a different statutory context.

9                     However, of greater significance in the present matter, is that the argument now advanced by the appellant, through her husband, does not depend on what is comprehended by the expression "other serious circumstances".  That arises because the elements of the definition of "special need relative" now relied on are the long-term need of the child for substantial and continuing assistance (to be provided by the appellant) arising from (or to use language of the definition - "because of") the disability or prolonged illness of a member of the child’s family unit (the husband and father).  I accept that it would be a curious result if the circumstances of a young child were not comprehended by the definition, in a direct way, by the expression "serious circumstances" but were indirectly comprehended by the concluding words of par (a) of the definition (see par 4 above).  However the language used in the definition does, in my opinion, enable a submission to this effect to be made at least in the sense that it is not an unarguable point.

10                  I earlier indicated that the point now raised may not have been raised before the learned primary judge and, indeed, may not have been raised before the Tribunal.  I am aware that in her original application for the visa, the appellant signified that the required assistance (that she provided as a special need relative) could be provided by her husband (the father).  I am also aware that when she gave evidence to the Tribunal she was asked whether her husband would be able to "look after the baby" and her answer might, on one view, be taken to be an acknowledgment that he could.  However in a statement prepared by the appellant for the purposes of the review by the Tribunal, the appellant said her husband suffered from chronic hepatitis for a long time and that:

4.  My spouse could not look after [the child] who could not obtain assistance from some community services in Australia because he is so young.

It is a serious circumstance without his mum's care with my son.

11                  In my opinion, it is not unarguable that the appellant raised for the Tribunal's consideration the question of whether she was a "special need relative" because of her husband's inability to look after the child.  Nor is it unarguable that the definition of "special need relative", imported into the specified criteria for a subclass 806 visa, comprehended a circumstance of the type identified in the preceding sentence.  Nor is it unarguable that the Tribunal either failed to address this question, or, did address it but misconstrued the definition as imported into the provisions in Schedule 2 of the Regulations concerning a subclass 806 visa.

12                  While it is regrettable that the point the appellant now seeks to argue may have only been identified with any clarity at this late stage, I am obliged to deal with the submissions made in the application for an extension of time in which to appeal.  I am not satisfied that the point raised by the appellant is unarguable, as submitted by the Minister, and accordingly I propose to order that time to file an appeal be extended to 28 July 2000.  I take this course because the draft notice of appeal in the Court’s file does not really raise the point identified by the appellant, through her husband, at the hearing before me.  It will be necessary for the appellant to identify with greater clarity the issues sought to be raised on appeal.  The costs of this application should be the costs in the appeal.

Associate:

Dated:              30 June 2000