The applicant's case
9 Mrs Issa was assisted before me by Mr Sarkis, a man knowledgeable as to immigration law and practice. He is a former migration agent and, because the matter before me involved matters of law, I permitted him to assist Mrs Issa. He assisted my understanding of the matter and some of the background and I am grateful to him. Mrs Issa's application to the Court was evidently made without any professional or legal assistance and is quite unhelpful as to the identification of any possible error of law. The decision to which the Tribunal member came might not have been that reached by every decision-maker. Accordingly, I have tried to identify whether there was any error of law.
10 First, in my view, reading the Tribunal's reasons with due charity, there is a flat contradiction between the finding "I accept that she requires a carer", and the finding "I am not satisfied that the sponsor has a permanent or long-term need for assistance". Ms Henderson, who appeared for the Minister, offered the suggestion that the point being made in the latter statement was that the reasons for the assistance did not fall within the categories of "disability, prolonged illness or other serious circumstances", as contained within the Regulations (before amendment), but I do not think that is right. One would have expected some explanation of this if that is the point that was being made. I think it more likely that the sentence really remained included through oversight and I assume that, if there were nothing more then such a flatly contradictory pair of findings, on such an important matter, that would one way or another amount to a reviewable error of law.
11 However, Ms Henderson submits that, assuming it is an error of law, it is an irrelevancy because the alternative and fatal basis for the decision was the finding that the applicant has other relatives in Australia who are able to assist her, and that there are adequate welfare and other relevant services available to her here. I agree with this. Unless this latter alternative finding is legally flawed then it seems to me that it is indeed fatal to the success of an application for review based on a probable error of law concerning the seemingly inconsistent findings as to her need for a carer. Assuming she does need a carer the finding is that the services that the carer would perform can reasonably be provided by other relatives in Australia and or professional community and health services. I turn then to consider whether that latter finding is legally objectionable.
12 It occurred to me that the Tribunal member may have misdirected herself by focussing on whether the other Australian relatives and/or welfare services could reasonably make their support available to the applicant, rather than whether she could reasonably obtain it from them. This is not mere semantics. There would be many families in which, if they were minded to, the children could provide a high level of care for a parent, but in which in practice they might not be willing to do so. In such a case the applicant might be quite unable to obtain care and support from their children. The bare language used by the Tribunal member is suggestive that she confused these two concepts.
13 However, it is only fair to understand the reasons of the Tribunal member in other than a narrow and point-taking way. In the first place, the Tribunal member did, as I have indicated, correctly paraphrase the requirements of the regulation; she set out the relevant question as being whether the assistance could not reasonably "be obtained" from another relative or welfare services in this country. In the second place, there was material which suggested that there was no real alienation of Mrs Issa from any of her other natural children. The younger daughter, Nour, professed herself willing to help her mother as much as she reasonably could, but pointed out that she was at the time looking for work and was trying to re-establish her life after the separation from her husband. The Tribunal member was therefore entitled to understand and to conclude that to the extent that Nour and Mrs Issa's sons could reasonably help her, they would. On the facts of the case, then, the question as to whether Mrs Issa could reasonably obtain assistance from her relatives or the welfare services, would be answered by whether the relatives and those services could reasonably furnish such assistance. I think that that is what the Tribunal member was expressing. There is no legal error in such an approach on the facts of this case, although I point out the conceptual distinction for what use it may have in other cases.
14 It finally concerned me that the Tribunal member concluded, without there being any particular material before her to sustain the proposition, that "there is available to [Mrs Issa] welfare, hospital, nursing and community services in Australia should the need arise." It was not immediately apparent that the Tribunal was an expert body in such matters. However, an examination of the range of visas and the types of circumstances and factual material that would need to come before the Tribunal indicates that in a substantial proportion of cases the Tribunal would need to come to a view about the availability of the relevant kinds of services and their capacity to provide assistance to particular classes of people. In the circumstances I think the Tribunal must be treated as having its own fund of expertise in these matters and, if that is right, it follows that it would not be an error of law to draw upon it.
15 Some material was produced to the Tribunal after it had given its decision from a social worker with responsibility for Arabic-speaking people in the area of Sydney where Mrs Issa lives. It suggests that the approach of the Tribunal to the availability and suitability of community services for an illiterate, Arabic-speaking woman of middle age and in poor and declining health was somewhat over sanguine. As I understand it, however, there is nothing to stop Maha, the visa applicant, from making another application. It was pointed out to me that, if ordinary processing timetables are followed, it would be close to two years before a final decision could be expected from the Minister. If this is true it would be a matter of legitimate and proper concern for the Department and the Minister, and if steps are not in place to enable an urgent consideration of the position of somebody in serious and declining ill health, then they certainly should be put in place. It is on the assumption that Maha and Mrs Issa will, if Maha wishes, be able to obtain a prompt hearing of any fresh application that I refrain from making a recommendation to the Minister that he give special personal attention to this matter to see whether, in the public interest, a more generous decision than that come to by the Tribunal could not be adopted by him.
16 Very surprisingly, an application for costs has been made against Mrs Issa. As I have indicated, she is an illiterate woman, old beyond her years, in serious ill health, both physical and psychologically, and her health is declining. It is manifest from her living circumstances that she is unlikely to be strongly in funds, and it is also manifest from the way in which she has chosen to present her applications that she probably cannot afford a lawyer or migration agent. She is a suffering woman. There is no reason to think that her daughter, the visa applicant, is motivated other than by concern for her mother and a very understandable desire to be reunited with her family. The Legal Aid system has not been up to granting her the help that she should have had. She has been doing no more than trying to exhaust every reasonable avenue. In light of seemingly contradictory statements to be found in the Tribunal's decision, in my opinion it would be a cruel and unreasonable thing to add an order for costs to the rejection of her application for review in this Court and I decline to make any such order. The approach of Burchett J in Montes-Granados v Minister for Immigration and Multicultural Affairs [2000] FCA 60 is in point.
Disposition
17 The application is dismissed. No order is made as to costs.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.