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[2000] FCA 128
Federal Court of Australia
2000-02-04
Madgwick J
Original judgment source is linked above.
REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 This is yet another hard immigration case. It concerns an application by Mrs Maha Issa, whom I will call Maha, to be granted a Preferential Family Visa under subclass 104 of the Regulation to the Migration Act 1958 (Cth) ("the Act") (since repealed) as a "special need relative" of her mother, Mrs Fatima Issa, who was the review applicant before the Migration Review Tribunal ("the Tribunal"), and who is the applicant in these proceedings. I will call the review applicant Mrs Issa.
Factual Background 2 The uncontested medical evidence was that Mrs Issa's health is poor and deteriorating fast. She has a number of conditions: she is an insulin-dependent diabetic; she is an asthmatic in need of frequent resort to medication; she has serious depression and anxiety. It is quite clear that Mrs Issa requires the regular and frequent assistance of a carer. Maha is the eldest of Mrs Issa's five children. Maha was at the time of the Tribunal's decision aged 33. Mrs Issa's other daughter, Nour, is the youngest of her children, and was aged 19 at the time of the Tribunal's decision.
3 The family is of southern Lebanese origin, and there is an inference that they were displaced to Syria because of the murderous conflicts of the Middle East. Mrs Issa, her husband and the four children, other than Maha, migrated to Australia from Syria in about 1987. Permission was given by the Australian Government for Maha also to come to Australia but she was at the time recently married and chose to remain in Syria with her husband and to enjoy the anticipated support of her in-laws. 4 Mrs Issa's illnesses seem to have developed in recent years. The attachment she has to her eldest child and elder daughter, Maha, has a special quality. She is closely in touch with that daughter by telephone at considerable expense. A continuing source of her depression is the fact that Maha is in Syria and faces certain difficulties there while, as Mrs Issa says, she is isolated from her brothers and sister. Mrs Issa, it appears, compulsively worries about Maha and misses her deeply. If Maha were here she would depend on her for much emotional support, and I have little doubt that the Tribunal accepted, that it is likely that she would be considerably relieved in her depression. The Tribunal's decision 5 The Tribunal member stated the nub of the problem simply. She said: "For the visa applicant [that is Maha] to be successful she must demonstrate that substantial and continuing assistance [for Mrs Issa] cannot reasonably be obtained from another relative or welfare services in Australia." That is a fair and proper paraphrase of the requirements of the definition of "special needs relative" in Regulation 1.04. 6 The uncontested material before the Tribunal showed that her daughter, Nour, had worked from the age of 15 for about three years and had then given up work to look after her mother, Mrs Issa. Nour had also married and had separated. Nour explained to the Tribunal member that she was young, she wished to remake her life following the failure of her marriage, she did not like not being unemployed and she was looking for work. She said, in effect, that her personality clashed with that of her mother and that she could not carry out the role of carer for her mother. One of Mrs Issa's daughters-in-law is the sister of Nour's estranged husband. Family tensions are such that that daughter-in-law has little contact with Mrs Issa. The other daughters-in-law have children of their own whose care makes substantial demands on their time. 7 A body called Health Services Australia, which is apparently accredited, as a matter of policy, by the respondent, furnished the Tribunal with a medical report that concluded that Mrs Issa required a carer for the purposes of a "carer visa" (in the context this seems not to refer to the requirements of the correctly so-called "carer visa", but to that for a "special needs relative"). It seems that by this method the Department of Immigration and Multicultural Affairs instituted a means whereby an Australian relative allegedly in need of care could establish such need by obtaining a positive assessment from a body such as Health Services Australia. 8 The Tribunal member in her findings said among other things, that: "It is clear from the evidence that the sponsor mother suffers from a number of medical problems and is distressed by her family circumstances regarding her parents, her sons and her daughter in Australia. I accept that she suffers anxiety and depression due to her separation from the visa applicant. I accept that her family circumstances, including her father's illness and her daughter's separation also cause her distress. I accept that she requires a carer due to asthma, anxiety and depression. Whilst the review applicant states she is unable to cook for herself or take her medications in relation to her diabetes, it is clear from the evidence that she is presently living on her own with her husband and is caring for herself. She has been referred to a specialist organisation to assist her to learn skills necessary to care for herself. The applicant's daughter attended at the hearing ... with her mother. Despite her protestations and having had the opportunity of seeing her give evidence to me I am not satisfied that she cannot do anything to help her mother. Whilst she was stated it is due to her problems being separated, I am not satisfied that she cannot assist her mother. Furthermore, I am not satisfied that her sons and their families are not able to assist the applicant... The mere fact that the visa applicant claims that her sons are too busy or that they have a bad attitude or that they get irritated quickly, does not convince me that they cannot do anything to help their mother. Furthermore, the evidence is that the review applicant does not often see her sons, but nevertheless she does see her sons. She admitted to the Tribunal that she sees her daughter on an average once a week. I am not satisfied that her daughter and her sons are unable to assist her.
I am not satisfied that the sponsor has a permanent or long-term need for assistance because of [the factors set out in Regulation 1.04]… Furthermore, the applicant has other relatives in Australia who are able to assist her and there is available to her welfare, hospital, nursing and community services in Australia should the need arise. For the above reasons the Tribunal affirms the original decision not to grant the visa applicant the visa sought." (Emphasis added)
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.
Solicitor for the Respondent: Australian Government Solicitor
Issa
Minister for Immigration & Multicultural Affairs