Narang v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application for review of a decision of the Migration Review Tribunal ("the MRT") given on 5 April 2000 affirming a decision of a Ministerial delegate to refuse the grant of a Family (Residence) (Class AO), Subclass 806 (Family) Visa to the applicant. The issue as to the reviewability of this decision arises in the following way. One criterion required to be met for the grant of this visa is cl 806.213 of Part 806 of Schedule 2 to the Migration Regulations 1994 ("the Regulations"). That provision reads: "806.213 The applicant is an aged dependent relative, an orphan relative, a remaining relative or a special need relative of another person who: (a) is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and (b) is usually resident in Australia; and (c) has nominated the applicant for the grant of a visa. Regulation 1.03 defines 'special need relative' as: 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-tern 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;" 2 Mr Narang claims that his nominator, Ms Taluja who is his sister, is a "special need relative" within the above definition because Ms Taluja and her children require his emotional and psychological support. 3 The MRT summarised the effect of the medical material before it as follows: "The applicant claims that he is a special need relative of his nominator, Ms Abha Taluja. Ms Taluja is his sister. He stated in the primary application that the nominator and her children require his psychological and emotional support. A Clinical Psychologist, Tracey Jarvis, stated in her report dated 25 June 1998 that the nominator had effectively separated from her spouse although they were still living at the same residence. A letter dated 22 June 1998 from the nominator's doctor states as follows: 'My patient, Abha Taluja, states that she feels much better psychologically since her brother is visiting her from India, his name being Mr Mahendra Narang. 'She feels very comfortable to have a family member around since she finds him very supportive towards her and her children.' A psychological report dated 25 June 1998, made by a Clinical Psychologist, Tracey Jarvis, states that: '…Prior to Mr Narang's arrival in Australia, Ms Taluja sought support from her family in India by telephone. She said that she had felt very alone at this time and was relieved when her brother came to Australia to offer support. 'Psychological testing indicated that Ms Taluja has no signs of depression and, during the interview, she appeared to be calm and without anxiety. My impression is that she has experienced social isolation and that Mr Narang's presence and support appears to assist her by alleviating this isolation.' At the hearing the applicant gave evidence as to the nominator's health. The evidence can be summarised as follows: (a) His sister works as an assistant chef. She works five days a week. She works 7 to 8 hours a day. (b) She is now calm and quiet. She is much better. He does not know if she is currently seeing the doctor for her psychological health. (c) She has not seen the psychologist since November 1998. (d) His sister's husband is now getting along well with his sister. (e) His sister's children are now both grown up. They both attend university. The son comes home late. (f) His sister has bought a new house at Evelyn Street Campsie. She shifted there about two months ago. Her husband lives with his sister but not all the time. (g) His sister knew about the hearing. He asked her to be available to give evidence by telephone." 4 The MRT decision then records the following: "The Tribunal rang the nominator at the telephone number provided by the applicant. The nominator did not answer the telephone when called. The Tribunal granted the applicant one week in which to lodge a statement from the nominator. The nominator was granted leave to present in the statement any evidence she wished to the Tribunal On 9 February 2000 the applicant's immigration agent rang the Tribunal and advised that his client had not been able to obtain any further evidence to present to the Tribunal. The agent further advised that as he was unable to obtain the evidence the Tribunal could now make a decision on the available evidence. He added that he would not be submitting any further evidence. No further evidence was submitted. No requests for an extension of time in which to lodge the evidence were made to the Tribunal." 5 The MRT then summaries and evaluates the evidence and concludes that the evidence did not establish that Ms Taluja was a person with a permanent or long-term need for assistance because of a disability, prolonged illness or other serious circumstances affecting her or a member of her family unit.