"Although the policy intention is that 'special need' relates mainly to medical conditions, policy also intends that other unforeseen serious circumstances of a similar nature be considered. In saying this, however, it was never meant for 'other serious circumstances' to encompass maladjustment and homesickness caused by migration resettlement or anxiety caused by the absence of a family member left behind in the home country."
28 It is perhaps a little infelicitous that par 3 of the relevant part of PAM3 uses the term "depression" at all. It is an expression which has a technical medical meaning, as well as one commonly used in a lay sense to describe personal feelings which fall short of a mental illness. That paragraph, as I understand it, also seeks to stress the requirement which reg 1.03 stipulates that there must be a need for assistance of the kind the regulation contemplates, and not merely a desire even a strong desire for family company or consolation.
29 The Tribunal's findings which follow its reference to cl 3 of the relevant provisions of PAM3 then reflect a paraphrase of sections of that clause. They include the finding that the father's "psychiatric problem" was not and is not a "psychiatric illness (or psychoneurosis or mental illness)". However, that note rehearsed of terms of cl 3 must be seen in the light of the Tribunal's findings about the medical evidence to which I have already referred, and in the context of the Tribunal's then focus upon cl 3 of the relevant provisions of PAM3.
30 I conclude that the Tribunal therefore failed to separately address the questions which it was required by reg 1.03 to address, namely whether the father's clinical mental condition was one involving a disability or prolonged illness which gave rise to a permanent or long-term need for assistance. Alternatively, it may have misunderstood the import of the relevant provisions of PAM3 so as to fail to apply its findings about the effect of the medical evidence to reg 1.03 because it perceived that cl 3 of the relevant provisions of PAM3 somehow precluded that step even though that clause was only dealing with the "other serious circumstances" element of the definition of "special need relative".
31 An alternative contention of the applicant, in this regard, was that the Tribunal's finding that the evidence of Dr Wu and Dr Prior was that the father had a "psychiatric problem" which fell short of a mental illness was a finding of a particular fact upon which the decision was based, and that fact (namely that that was the opinion of Dr Wu and of Dr Prior) did not exist: s 476(1)(g) and (4)(b). Had I interpreted the Tribunal's finding in that way, I consider that there would have been considerable merit in that contention. Dr Wu clearly did not "agree" that the father had a psychiatric problem which fell short of a mental illness, and the understanding of his evidence by the Tribunal to the contrary would have been a critical step in its process of reasoning leading to its conclusion: see Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 221 - 222. In view of the way I have understood the Tribunal's findings, it is not necessary finally to determine that question.
32 In my judgment, the Tribunal has also erred in law in its consideration of whether the assistance required by the father because of his mental illness can be reasonably obtained from welfare, hospital, nursing or community service in Australia. The Tribunal's reasons on this aspect are very brief, perhaps because it was only a subsidiary or secondary reason for its conclusion. The fact that the father has consulted Dr Lee and Dr Wu does not demonstrate that the father's needs can be reasonably obtained from welfare, hospital, nursing or community service in Australia. The Tribunal erred in law in resolving that against the applicant simply because he had been able to receive medical treatment. That consideration did not really address the father's needs and how they could be met. Moreover, the Tribunal's finding that consulting doctors could "help with his problem" demonstrates that the Tribunal failed to ask the correct question. It does not respond to reg 1.03 to determine that some help with meeting needs is available. The respondent submitted that the Tribunal's finding on this aspect was really no more than an unnecessary and throw away line, but its sequence in relation to its other findings, and its repetition when the Tribunal was addressing the father's physical problems, indicate to me that the Tribunal was purporting to address that element of the definition of special need relative.
33 In light of my conclusion, it is not necessary separately to consider the attack made upon the Tribunal's findings in relation to the nature and extent of the physical conditions suffered by the father. Dr Lee is the father's general practitioner. He gave evidence of a series of chronic and worsening physical conditions, which would lead to an increase in the father's need for care with the passage of time. Dr Lee observed that the applicant and his wife run the household. They are responsible for cleaning, shopping and cooking. The father is driven to the doctors, to physiotherapy and to hydrotherapy and his medication is supervised. He is assisted with payment of utility bills and other necessary papers. He said the father and his wife require 'very close personal assistance' and he described the applicant and his wife as 'indispensable assistants'. Dr Lee said: