Applicant: Sing Kwan Principal: Yuk Wah Kwan IRT Reference: V93/00379 #number 4156 [1994] IRTA 4156 (25 July 1994)

On 6 March 1990, the principal, then a 38 year old Chinese citizen, lodged an application for migration (form M47) with the Hong Kong post of the (then) Department of Immigration, Local Government and Ethnic Affairs (the Department). This application was accompanied by a sponsorship form signed by the applicant on 19 January 1990.

In response to the first question on the M47 which requested the 'name of the Migrant categories' the principal and her spouse were applying for, the principal indicated 'special need relative'. In response to question 102 of the same form, the principal ticked the box indicating that she was applying because she had 'a relative in Australia in special need.'

The principal was assessed by the primary decision maker on 1 May 1991, but her application was refused on the basis that she failed to qualify as a 'special need relative' as defined in subregulation 2(1) of the Migration Regulations 1989 (the Regulations).

Following that refusal the applicant submitted an application for review to the Migration Internal Review Office (MIRO) On 17 June 1991. On 27 January 1993, MIRO affirmed the original decision after addressing the principal's entitlement to a preferential family visa under the categories of 'aged dependent relative', 'orphan family relative', 'remaining relative' and 'special need relative'. The principal was also assessed in relation to concessional family visa (class 105), but was refused this visa as she failed to receive the necessary score in the points test. On 16 June 1992, the applicant submitted an application for review to this Tribunal.

The Tribunal notes that the Migration (1993) Regulations came into operation on 1 February 1993. However, this case is not subject to those regulations as the visa application was lodged before this date and sub-regulations 8.2(1)(a) and (b) state that any such application is to be decided in accordance with the law in force prior to 1 February 1993.

Given the above, the prescribed criteria that need to be satisfied for an entitlement to a preferential family visa are set out in item 2, Part 3 of Schedule 2 to the Regulations. Item 2 sets out certain alpha-numeric symbols which are defined in Schedule 1, and can be conveniently summarised as follows:

E Family unit members must meet health and public interest criteria in relation to dependent children, criteria is relation to custody/guardianship/access.

Such a visa can be granted if the applicant is, amongst other things, a 'special need relative'. That expression is set out in subregulation 2(1) as follows:

"special need relative", in relation to an Australian citizen or an Australian permanent resident usually resident in Australia, means a relative who is willing and able to give substantial continuing assistance to the citizen or resident where:

(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;

(b) the assistance cannot reasonably be obtained from:

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

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

The Department's file was supplied to the Tribunal pursuant to section 122(1) of the Migration Act 1958 (the Act). The documents on the Department's file, together with the application for review, constitute sufficient evidence on which to base the Tribunal's decision in this case.

The applicant was born in China on 24 June 1917 and arrived in Australia on 9 August 1973. He became an Australian citizen on 24 January 1984. His wife died 18 months before he came to Australia in 1973. The principal is his only child and is a citizen and resident of Hong Kong.

The applicant has no siblings, but four children of his siblings live in Australia. The principal's eldest daughter, Chung Ki Ho, lived in Australia as a student from 8 January 1988 to at least the date of application for migration.

The primary decision maker obtained a report on the applicant from C. Somervill, Registrar, Renal Unit of St Vincent's Hospital dated 5 June 1990 which stated that the principal attended that renal unit, lived alone and had a history of peptic ulcer disease (at folio 67 of the Department's file). The primary decision maker also obtained an assessment of the principal dated 10 October 1990 by Ms Mardi Stow, Social Worker, Settlement Programs Unit (at folio 80) which is reproduced as follows:

Mr. Kwan is a 73 year old gentleman who lived on his own in a Ministry of Housing flat in Richmond - the second storey of a group of walk-up flats. He has lived there for the past 2 1/2 years, as it was at that time that he had to cease all work due to an injury to his left foot.

While at the time of interview Mr. Kwan was not incapacitated to the degree of needing full time care, he does have a chronic kidney condition and heart problems which flare up periodically necessitating nursing care and which also have the potential to result in total kidney failure and/or a heart attack. These factors combined with getting older and wanting to be cared for by his daughter, motivated Mr. Kwan to sponsor his daughter as a special need relative.

Mr. Kwan's fear is that he will have a heart attack during the night and when on his own, will be unable to get help. Temporarily, he has an acquaintance sleeping at his flat which affords Mr. Kwan some security in knowing someone is accessible if he should need emergency assistance. However, this arrangement will end after the man finds accommodation to enable his wife and children to move from Sydney and settle in Melbourne.

Mr. Kwan migrated to Australia from Hong Kong in 1973, being sponsored here to be the head chef at a Chinese restaurant in Moonee Ponds. Mr. Kwan is clearly very proud of his skills as a chef and indicated that he has been a teacher and mentor to many chefs in Melbourne. The reason Mr. Kwan gave for migrating was that he had no commitments in Hong Kong as his wife had died 18 months earlier and his only daughter was married with her own family. He had been given an opportunity to continue working in his area of speciality while also travelling. He worked full-time until 1984 and then part-time or occasionally until 1987 when he hurt his foot and was unable to work for four months. Since then he has not worked.

Mr. Kwan has nephews living in Melbourne as well as his grand-daughter, Astrid, who is studying at tertiary level. Astrid visits him about once a week and he sees his nephews and their families periodically. Mr. Kwan expects that his grandson will also commence study in Melbourne in 1991.

After Mr. Kwan came to Australia in 1973 he applied to sponsor his daughter here. However, as his son-in-law had recently established an aluminium business which it was untimely to leave, his daughter remained with her husband and the application lapsed.

Through his profession, Mr. Kwan seems to have established many contacts and friendships. Daily he usually goes to the city for Yum Cha with friends or to the Chinese Senior Citizens group. He says he prefers going to the city because he knows many people there.

Mr. Kwan has chronic renal impairment, ischemic heart disease, hypertension (high blood pressure) and a history of peptic ulcer disease. While these conditions are currently managed with medication, both the renal and heart conditions are potentially life threatening. Dr. Chen likened Mr. Kwan's heart problem (which includes angina pectorin) to a "time-bomb" in that he could suffer a heart attack at any time. The high blood pressure exacerbates the physical stress on the heart and there is also the potential of a stroke because of his hypertension.

Ultimately, Mr. Kwan's kidneys will fail at which time he will need to attend hospital at least three times a week for renal dialysis. In the interim, as his kidneys progressively fail the waste products accumulate in the body resulting in a toxicity in his system. The symptoms are an overall swelling/ bloatedness and an increasing tiredness/lethargy. Mr. Kwan will be less able to sustain the level of independence he has and will be increasingly dependent on the care of others.

Dr. Chen indicated that the care Mr. Kwan's daughter could provide will ensure that Mr. Kwan is under less stress, that his diet is correctly adhered to and that he will not be placing undue strain on his heart (associated with general house duties) all of which positively influence his medical predisposition to a heart attack and/or stroke.

Given Mr. Kwan's age and medical condition, Dr. Chen was not positive about his prognosis and would anticipate that without the full time care provided by the daughter, Mr. Kwan would need to be cared for in special accommodation or a nursing home within the next few years, and earlier if he suffered a heart attack.

Richmond Council provides Home Help, Meals on Wheels and a Home Maintenance Service, to which Mr. Kwan would have access. Presently he is able to maintain himself and given his mobility is able to get meals at the Senior Citizens Centre.

North Richmond Family Care Centre, based in the North Richmond MOH complex, offers social groups for elderly Indo-Chinese. It also provides general health services, medical and community nurse, and social work services.

The Federation of Chinese Associations - some group activities for elderly-weekly activity group. Also provide counselling services. The agency's target group is in fact new migrants and would therefore refer to Victorian Elderly Chinese Welfare Society or local community services.

Victorian Elderly Chinese Welfare Society - runs a drop in centre including a daily lunch as well as other social activities. Limited counselling service.

While there is emotional support offered by relatives, and consequently Mr. Kwan is not isolated or neglected, there are limitations to the direct assistance that can/could be offered in the long term. Mr. Kwan's nephews do maintain contact but with their own family commitments would not be able to care for him full time. His granddaughter has more regular contact and assists with practical tasks as she is able, but with her study and independent lifestyle there are limitations to what assistance she could reasonably be expected to provide.

Mr. Kwan is not isolated and appears to have numerous social contacts. Again the support is more emotional than practical or direct care.

Mr. Kwan's daughter flew to Australia to care for her father when he was unwell earlier this year. While this responds to an immediate need it cannot address long term needs.

Mr. Kwan's nephew, Kwan Man Chi, has provided an "Assurance of Support" to the application. Additionally, according to Mr. Kwan, his daughter and son-in-law have a successful aluminium business in Hong Kong and so would have financial security.

If this application is successful it will be necessary for the overseas post to assess Ho Hoon Wing's (Mr. Kwan's son-in-law) preparedness to migrate and the possible settlement needs. Of particular importance would be an assessment of his employment prospects.

Kwan Yuk Wah and Ho Hoon Wing could not live with Mr. Kwan in his present accommodation. They would need to intend establishing themselves in accommodation which they would share with Mr. Kwan. Mr. Kwan's understanding is that this will occur.

Although Mr. Kwan is 73 years old, he is nevertheless at present able to maintain an independence within the limitations of his medical conditions. These conditions predispose him to acute illness and the need for more full time care. It is, therefore, in the context of his potential long-term needs, the preventative aspect inherent in the care which his daughter can provide as well as compassionate considerations (an ageing parent wanting to be cared for by his only child) which are presented for consideration. Mr. Kwan would like to spend his remaining years in the care of his daughter, as is culturally appropriate. However, given that he has spent the past 17 years in Australia he does not want to return to Hong Kong at this stage of his life. Additionally, because his daughter's two children will be studying in Australia the ideal option would be that his daughter and son-in-law move to Australia.

Given Mr. Kwan's current degree of independence the case would not seem to meet the criteria for special need relative sponsorship. However, consideration needs to be given to the projected needs which are likely given Mr. Kwan's predisposing medical conditions. Appropriate weighting should also be given to the compassionate grounds in this case, specifically Mr. Kwan's age and the appropriateness that he be cared for by his only child - rather than institutional care - as he becomes increasingly dependent.

In refusing the grant of the visa to the principal, the primary decision maker stated as follows:

The circumstances of death, disability or prolonged illness are not relevant to this case. Ms Kwan's father has a number of potentially serious medical conditions. However, he is not currently ill. He is able to maintain himself physically and does not require any assistance at present.

According to the report provided by the Regional Office and the comments made by Ms Kwan at interview, no other serious circumstance currently exists.

It is clear, however, that Mr Kwan would like some assistance from his daughter. Ms Kwan is aware of her fathers medical condition and has training in administration of medication. She would also be able to undertake domestic duties on behalf of her father. Additionally, her father would benefit from her emotional support.

I do not believe, however, that the assistance Ms Kwan can give her father is "substantial", as required in Regulation 2. This is because Mr Kwan's condition is currently stable and he is able to administer medication to himself and seek any necessary medical attention. I do not believe that provision of domestic assistance and emotional support amount to substantial assistance.

For the reasons set out above I find that there is no current special need and that the circumstances of this case do not meet the definition in Regulation 2.

The Tribunal also notes that a medical report on the applicant dated 7 July 1992 was provided to MIRO by Dr WC Chen of the Richmond North and Russell St. Medical Clinics. This report stated that the applicant suffered from:

...is living by himself as he has no family here to help look after him. With the numerous conditions that Mr Kwan suffers from, some of them serious and potentially life threatening, such as ischemic heart disease, asthma and hypertension (which may cause stroke), he really does require some close family to live with him and help take good care of him.

I could not stress the importance of this any stronger apart from stating the fact that the conditions mentioned are really potentially fatal, especially given Mr Kwan's senility ...

Given the above evidence, particularly the medical evidence, it appears that the applicant is at great risk of premature and inappropriate institutionalisation, particularly as he is alone and isolated. As a consequence he lacks both expressive and instrumental support and his choice of community living arrangements is restricted in the absence of his daughter. The joint living arrangements he envisages may assuage his anxiety, as will residential propinquity to his daughter if the that option is not adopted. The importance of kin in assisting the aged to remain independently in a community setting is a common theme in social gerontological studies. In Ageing and Families: A Support Networks Perspective (1986), edited by Hal Kendig, Director, Lincoln Gerontological Centre, Latrobe University, Stephen Mugford and Hal Kendig state (at page 40) that:

... for childless old people, a lack of strong kin ties to people dissimilar in age and health may restrict opportunities for instrumental support.

... never to have married reduces potential kin ties, to have been divorced or separated may break them, and to become widowed later in life makes remarriage difficult. As people grow older, ties with age peers are lost and they grow away from the mainstream adult status - the married person in middle age. Consequences can include restricted opportunities for friendships, and the increased importance of kinship in integrating people with dissimilar status.

Marital status is important because of the consequential sets of ties with descendants and in-laws as well as with the spouse. While marriage can be relatively portrayed as an institution that can be destructive for one or both parties, ... the positive corollary is that it serves to widen support networks.

Apart from spouses, adult children are the single most numerous of the various providers, and are especially important with the more demanding and important tasks of daily living.... As a broad generalisation, the considerable resources of the middle generation - combined with filial attachment, obligation, and lifelong patterns of exchange - provide the basis for substantial assistance in old age.

The expression 'other serious circumstances'in paragraph (a) of the definition of 'special need relative' in subregulation 2(1) of the Regulations has been discussed previously by the Tribunal in Re Varga (IRT Decision 1020, 29 June 1992). The Tribunal adopts the observations in that decision.

The Tribunal is satisfied that the applicant has a permanent or long term need for assistance because of 'other serious circumstances' pursuant to subregulation 2(1) of the Regulations. These 'other serious circumstances' consist of the applicant's social isolation as a consequence of his migration, marital status, ethnocultural background, gender, age and emotional state.

The Tribunal notes that in the Federal Court decision of Fuduche v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 503; (1993) 117 ALR 418, Burchett J stated:

Where, upon a medical issue, medical science is unable to offer a conclusion on the probabilities, it may sometimes be open to lay decision-maker to rely on ordinary human experience in order to bridge the scientific gap to a practical decision. But where medical science offers an answer, it is simply not rational for a lay person to brush that answer aside in favour of some theory of his own: see Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538 at 564, 569-570; and cf Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 414-15, 430; [1992] HCA 47; 109 ALR 30.

The Tribunal is further satisfied that there is a range of serious medical conditions suffered by the applicant.

The proposed panacea for the applicant's domestic situation, namely, the principal and her family caring for the applicant in a common household or residing in close proximity to him, also appears consistent with Commonwealth policy objectives. The objectives of the Home and Community Care program as set out in the Schedule to the Home and Community Care Act, 1985, are, in part:-

...(a) to promote the provision of a comprehensive and integrated range of home and community care designed to provide basic maintenance and support services, both directly and through their carers, to persons within the target population and thereby to assist them to enhance their independence in the community and avoid their premature or inappropriate admissions to long term residential care;

For the reasons noted above, the Tribunal is satisfied that paragraph (a) of the definition of 'special need relative' in subregulation 2(1) is satisfied.

Given the absence of relatives of the applicant residing in Australia who could provide the continuing intimate level of emotional support and companionship required by an aged, single male of Chinese descent in the applicant's social circumstances, the Tribunal also finds that paragraph (b)(i) of the definition of 'special need relative' in subregulation 2(1) is satisfied.

Furthermore, welfare, hospital, nursing or community services are, at best, of marginal relevance given the applicant's ethnocultural isolation and given that welfare, hospital, nursing or community services are unable to provide the required intense and continuous level of emotional support. The applicant's primary need is for live-in companionship and/or for a relative to live in close proximity to provide him with a sufficient level of reassurance, companionship and emotional support, given his health and the anxieties concomitant with his single status and age. The Tribunal is therefore also satisfied that paragraph (b)(ii) of the definition of 'special need relative' is satisfied.

It is also clear that the principal is 'willing and able to give substantial and continuing assistance' to her father and she is therefore a 'special need relative' as defined. An acceptable assurance of support has been provided (at folio 71).

The Tribunal was informed by the Hong Kong post of the Department on 24 May 1994 that health and public interest (character) requirements in respect of the principal and her family unit were met. Accordingly the principal meets all the criteria for the grant of a preferential family visa.

The Tribunal notes with regret that the Settlement Program Unit of the Department no longer undertakes social work assessments in response to primary decision makers or review authorities. Such a development is regrettable as the central focus of such an assessment was the applicant's settlement needs and the efficacy of existing support services to meet those needs, consequently, such assessments should continue to be relevant to the discharge of the Department's settlement role. The abdication of this function in the absence of alternative professional social work services, either community based or statutory, has been referred to in Re Abetew, (IRT Decision 3894, 6 June 1994). The Tribunal urges the Minister to consider the observations made in Re Abetew (supra), with respect to the desirable input of Departmental social workers in assisting, through the provision of expert evidence, primary decision makers and review officers in assessing applicant's entitlements under the Act: see Re Fuduche (supra).

The Tribunal setsaside the decision under review and substitutes a decision that Yuk Wah Kwan be granted a preferential family visa (class 104).

I certify that this and the 13 preceding pages are a true copy of the Statement of Decision and Reasons for Decision of Joseph Italiano, Member.

Decision of Joseph Italiano, Member, delivered in Melbourne on 25 July 1994.

PREFERENTIAL FAMILY VISA - applicant's father lived alone and suffered range of serious medical conditions - Tribunal satisfied that applicant's father had permanent or long term need for assistance because of his social isolation - Tribunal found that welfare, hospital, nursing or community services were unable to provide the required support and that applicant was a 'special need relative'.

Home and Community Care Act 1985

Migration Regulations, r. 2(1) ('special need relative'), Sch. 1, Sch. 2

Fuduche v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 503; (1993) 117 ALR 418