FEDERAL COURT OF AUSTRALIA

Gho v Minister for Immigration & Multicultural Affairs [2002] FCA 655

YEONG MEE CHEONG GHO & ANOR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 398 of 2001

WHITLAM J

24 MAY 2002

SYDNEY

THE COURT ORDERS THAT:

1.      The application is dismissed.

2.      The applicants are to pay the respondent’s costs.

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 order of review in respect of a decision made by the Migration Review Tribunal (“the Tribunal”) on 14 March 2001.  The Tribunal affirmed a decision made by a delegate of the respondent refusing to grant the applicants Family (Residence) (Class AO) visas.

2                     The applicants are mother and daughter.  The first applicant, the mother, was the primary visa applicant.  It is convenient to refer to her as the applicant.  The relevant visa applications were made on 14 August 1997 on the basis that the applicant was a “special need relative” of her own mother (“the nominator”).

3                     The Migration Regulations 1994 required that the applicant satisfy that criterion at the time of the application.  Regulation 1.03 provided the following definition:

“‘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;”

4                     The nominator was born on 5 January 1940.  She wrote in support of the visa application on 31 July 1997 as follows:

“I separated from my husband in 1975, 8 years after our marriage and upto date, live my life for my 3 children whom I left behind in Korea in 1982.

My children have all grown to responsible adults and have married during the time of our separation.  During those 15 long years I lived alone working very hard and doing everything I could do to support myself and my children.

In April last year I found out that I was suffering from a spinal and neck disc condition as well as chronic arthritis in the neck and hip joints.  I am finding it difficult to stay up on my feet for longer than an hour at a time.  I have been suffering from this condition for a long time and now it has worsened so much that it is making it difficult even to maintain my daily house chores.

I have been missing my children more than ever in the last couple of years probably due to the deteriorating health and partially due to old age.  I was truly grateful to have had the assistance of my daughter last year.  She came at a very crucial time for me and it was wonderful to spend time with my daughter and grandchild for a few months.

My physical condition has not improved lately, and with old age setting in it is difficult to imagine it will get better dramatically.  I think the time has come when I would need to rely on my children to look after me.  Fortunately, my oldest daughter has volunteered to the task and I would be more than just grateful for her support.  Her assistance would go beyond help with daily activities.  It would be such a comfort to share the warmth and love of my daughter and grandchild I feel as though it would heal all the old scars away.

I would like to support my daughter’s application of Permanent Residence in Australia based on the above grounds and hope it would be given a favourable consideration.”

The visa applications were accompanied by a letter dated 1 August 1997 from the nominator’s general practitioner which said:

“TO WHOM IT MAY CONCERN,

Mrs. Choong Ja KIM of 7/31 Churchill Ave. Strathfield (DOB 5/1/40) has been my patient since November 1993.

Mrs. Kim has:

i) chronic lower back pain secondary to osteoarthritis of lumbar spine and L4/L5 and L5/S1 intervertebral disc disease (diagnosed on CT scan on 7/8/96);

ii) chronic right foot pain secondary to Calcaneal Fat Pad Syndrome.

For these problems Mrs. Kim is taking Voltaren tablets 50MG twice a day and is having physiotherapy at Concord Hospital.  She is also having acupuncture therapy.

Because of these problems Mrs. Kim has significant problems with activities of daily living including shopping, cleaning the flat, washing clothes and cooking.

The main problem is that Mrs. Kim lives alone and has nobody to help her.  It would be a big help for Mrs. Kim if her daughter Yeong Mee CHEONG is given the permission to live with her to do these chores.  Please give kind consideration in this matter.  Thank you.”

5                     The delegate wrote to the applicant’s migration agent requesting further information in the light of the doctor’s letter.  The general practitioner provided a further letter dated 13 December 1997, in which the doctor said:

“All of Mrs Kim’s continuing treatment could reasonably be obtained from welfare, hospital or community services in Australia.”

6                     After the delegate refused to grant the visas, further medical reports were submitted to the Tribunal on the review of that decision.  These included a report from a psychiatrist to whom the nominator was referred for assessment by her general practitioner in August 2000.

7                     The Tribunal prepared a long statement of reasons for its decision.  In several places it referred to a Procedures Advice Manual issued by the Department of Immigration and Multicultural Affairs.  A copy of this manual has been received in evidence.  The Tribunal remarked (paragraph 49) that, having regard to the policy in that manual, the type of assistance provided by the applicant did not appear to fall within the scope of the policy intention.  It said:

“52.     At the time of application, the nominator was availing herself of medical services in Australia and required only general household help according to the description given by the primary visa applicant in information attached to her application.  The agent referred in an attachment to the pain in the nominator’s back and foot meaning that she needed help with ‘minor household chores’.  He also referred to the mental trauma of her divorce, which had occurred in 1975.  The agent said a report from a social worker would be provided but there is no such report before the Tribunal.

53.              The primary visa applicant added a letter in which she stated that she had been separated from her mother since 1982 and they had lived apart for 15 years.  She said that she could provide economic and emotional support and day to day activities such as cleaning, washing, cooking, going to church.

54.       The Tribunal finds that, at the date of application, the nominator did not have a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances.  She was suffering from chronic pain and wished to see her family.  Her medical condition was not in the category that engendered a permanent or long-term need for assistance which could not reasonably be addressed by services available in Australia.”

8                     The Tribunal next referred to what the manual said about the ability to provide substantial and continuing assistance, and said:

“56.     The primary visa applicant stated at the time of the visa application that she was able to provide economic and emotional support as well as assistance in day to day activities such as cleaning, washing, cooking, going to church, etc.  At the time of the review decision, she was suffering financial hardship and was ill.  Although her intentions are to look after her mother, the Tribunal is not satisfied that she has the financial means or is still able to provide substantial and continuing assistance to the Australian relative.”

9                     The Tribunal concluded:

“63.     The Tribunal makes the following findings:

·        The nominator does not have a need arising from a death;

·        The nominator did not at the time of application have a need arising from a mental illness although she now suffers from depression which might be improved by appropriate treatment;

·        The nominator does not have a need arising from a disability, prolonged illness or other serious circumstance which cannot reasonably be provided for by welfare, hospital, nursing or community services in Australia;

·        The Tribunal is not satisfied that the primary visa applicant is willing and able to provide substantial and continuing assistance.

64.       The Tribunal is not satisfied that the nominator’s need for assistance qualified at the date of application or subsequently as one which satisfied the definition of special need relative.”

10                  As I followed the applicant’s submissions, the Tribunal’s decision is challenged on two grounds:

(1)     that the Tribunal misinterpreted the statutory definition by failing to consider at the threshold whether the nominator had a long-term need for assistance because of “serious circumstances” affecting her; and

(2)         that the Tribunal had regarded itself as bound by the policy stated in the manual to make the findings that it did.

11                  As to the first submission, it is sufficient to say that the interrelationship between the elements of the opening paragraph and those of par (a) of the definition has now been explained by the Full Court in Narayan v Minister for Immigration & Multicultural Affairs [2001] FCA 1745 at [38]–[44].  It is not open to avoid the requirement for “substantial and continuing assistance” by identifying a modest need which anyone could fill.  Further, the only “serious” circumstances propounded in this case arose through disability or illness: see Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39 at 54 [41].

12                  The complaint made about the use of the policy advice in the manual echoes the submission rejected at first instance by Sackville J in Narayan v Minister for Immigration & Multicultural Affairs [2001] FCA 789.  There is no relevant point of distinction in the present case, and I respectfully agree with what his Honour said in that case at [53]–[57] on this topic.

13                  No ground of review has been made out.  The application will, therefore, be dismissed with costs.

Associate:

Dated:              24 May 2002