Review Applicant: Ariella Golling IRT Reference: S96/02426 #number 11217 [1998] IRTA 11217 (20 January 1998)

The applicant, Ms Ariella Golling was born on 17 August 1943 in Trieste, Italy. She initially arrived in Australia in June 1954 aged 10 years with her parents, and settled in Australia as a permanent resident for 13 years. In 1967 she returned to the United Kingdom, and has lived there since that time. She was previously married in that country, and has two non-dependent children living there. She is an only child of her parents, who are elderly, and currently living in South Australia.

Ms Golling entered Australia most recently on 24 January 1996 as a visitor, and upon entry was granted a six month stay. On 15 May 1996 she made application for a Family visa at the Departmental office in Adelaide. Subsequently, the application was assessed by an officer of the Department ('primary decision-maker') who found that Ms Golling had failed to satisfy the relevant prescribed criteria for this class of visa. Thereafter, on 10 July 1996, an application was made to the Migration Internal Review Office ('MIRO') in Adelaide seeking a review of the primary decision which had been made on 17 June 1996. However, a review officer affirmed the primary decision on 12 November 1996, making, in part, the following findings:

'...The applicant, Ms Ariella Golling entered Australia, travelling on an Italian passport on 24 January 1996 ... for a stay of six months....

...The applicant entered Australia on 5 June 1954 as a migrant, accompanying her parents ... The applicant resided in Australia for approximately 13 years, completing her schooling and entering the workforce ... The applicant departed Australia in April 1967 for the UK ... and until her return ... on 24 January 1996 ... and the preceding 29 years made three visits to Australia each of less than six months duration....

...The applicant did not take up Australian citizenship and is an Italian national with resident status in the UK ....

...The applicant's family composition consist of two non-dependent children residing in the UK and her parents who are permanent residents of Australia ...

...They were divorced in 1993, it appears from the documentation provided the applicant remained in the marital home with her two children and ex-spouse until 1995 as a consequence of a settlement dispute .... The applicant was in employment in the UK from November 1990 till her departure for Australia in January 1996.

...I found that Ms Golling usually resides in the UK .... For a person to have met the criteria set out in paragraph 151.211(a) of the Regulations, they must have been in Australia as a permanent resident for at least nine of their first 18 years ....

...Given that the applicant first entered Australia as a permanent resident at the age of 10 years and 10 months it is impossible for her to meet this requirement ....'

Subsequently, the applicant sought review of the previous decisions by making application to the Immigration Review Tribunal at its South Australian registry on 11 December 1996.

In order to obtain the grant of a Family subclass visa, the applicant is required to satisfy the relevant prescribed criteria which are set out in the Migration Regulations 1994. So far as is relevant to these proceedings, those criteria are set out hereunder, pursuant to the heading re Subclass 806 - Family:-

[NOTE: "aged dependant relative", "special need relative" and "eligible New Zealand citizen" are defined in regulation 1.03, "orphan relative" in regulation 1.14, and "remaining relative" in regulation 1.15. There are no interpretation provisions specific to this Part.]

[NOTE: The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.]

806.21 Criteria to be satisfied at time of application

(ii) was, immediately before 1 September 1994, a person to whom section 37 of the Act as in force immediately before that date applied; and

(iii) has not been granted a substantive visa on or after 1 September 1994; or

(b) the applicant is a person to whom section 48 of the Act applies; the applicant:

(c) has not been refused a visa or had a visa cancelled under section 501 of the Act; and

(d) has become an aged dependent relative, an orphan relative, a remaining relative or a special need relative of an Australian citizen, of an Australian permanent resident, or of an eligible New Zealand citizen since last applying for an entry permit or substantive visa.

(i) is the holder of a substantive visa (other than a subclass 771 visa); or

(ii) is not the holder of a substantive visa, and immediately before ceasing to hold a substantive visa, was not the holder of a subclass 771 visa.

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

(c) has nominated the applicant for the grant of the visa.

806.22 Criteria to be satisfied at time of decision

806.221 The applicant continues to satisfy the criteria in clause 806.213.

806.222 An assurance of support in relation to the applicant has been given, and has been accepted by the Minister.

806.223 The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010.

806.224 (1) Each member of the family unit of the applicant who is an applicant for a subclass 806 visa satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010.

(2) Each member of the family unit of the applicant who is not an applicant for a subclass 806 visa satisfies:

(b) public interest criterion 4005, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.

806.225 The Minister is satisfied that the grant of the visa to the applicant would not prejudice the rights and interests of any person who has custody or guardianship of, or access to, the applicant or a dependent child of the applicant.

The substantive provisions make reference to further subclasses of Family visa, namely 'special need relative' and 'remaining relative'; these terms are defined in the Regulations as follows:-

"special need relative", 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-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; 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;

1.15.(1) An applicant for a visa is a remaining relative if the applicant has a relative who:

unless the applicant is disqualified under subregulation (2).

(a) the applicant or the spouse (if any) of the applicant:

(i) usually resides in the same country, not being Australia, as an overseas near relative: or

(ii) has had contact with an overseas near relative during a reasonable period preceding the application; or

(b) the applicant and the spouse (if any) of the applicant together have more than 3 overseas near relatives; or

(ii) has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (in this paragraph called "the adoptive parent") while overseas:

but, at the time of the application, the adoptive parent has not been residing overseas for a period of at least 12 months.

(3) In this regulation, "overseas near relative" means a person who is:

(a) a parent, brother, sister or non-dependent child; or

(b) a step-parent, step-brother, step-sister or non-dependent step-child;

of the applicant or of the spouse (if any) of the applicant but is not a relative of a kind referred to in subregulation (1).

The applicant has also sought to be assessed under the provisions of Subclass 151, Former Resident, and those criteria are set out hereunder as follows:-

[NOTE: No interpretation provisions specific to this Part.]

[NOTE: The primary criteria must be satisfied by at least one member of a family unit. Members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.]

151.21 Criteria to be satisfied at the time of application

(a) spent the greater part of his or her life before the age of 18 in the migration zone as an Australian permanent resident; and

(b) did not at any time acquire Australian citizenship; and

(c) has maintained business, cultural or personal ties with Australia.

151.22 Criteria to be satisfied at time of decision

151.221 The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010.

151.222 The applicant satisfies special return criteria 5001, 5003, 5005 and 5007 to 5010.

151.223 If so requested by the Minister, an assurance of support in relation to the applicant has been given, and has been accepted by the Minister.

151.224 (1) Each member of the family unit of the applicant who is an applicant for a subclass 151 visa is a person who:

(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010; and

(b) if she or he has previously been in Australia, satisfies special return criteria 5001, 5003, 5005 and 5007 to 5010.

(2) Each member of the family unit of the applicant who is not an applicant for a subclass 151 visa is a person who:

(a) satisfies public interest criteria 4001 to 4004; and

(b) satisfies public interest criterion 4005, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.

(a) the family unit of the applicant includes a dependent child who made a combined application with the applicant; or

the Minister is satisfied that the grant of a subclass 151 visa to the child as a member of the family unit of the applicant would not prejudice the rights and interests of any other person who has custody or guardianship of, or access to, the child.

The Tribunal gave consideration to documentation submitted as a part of the application in this matter. It also had available to it the Departmental file. Various written submissions were also submitted to the Tribunal by the applicant's adviser. A preliminary meeting was convened with the applicant and her adviser on 15 May 1997, and subsequently, at the applicant's request, a hearing was convened at the Tribunal's Adelaide registry on 8 July 1997. The applicant, Ariella Golling, attended and gave sworn evidence.

She confirmed that she was born in Trieste, Italy, on 17 August 1943 as an only child to the marriage of her parents, who are currently residents of Australia and are aged 80 and 77 years respectively. The family migrated to Australia on 6 June 1954, when the applicant was aged some 10 years. She attended school there until the age of 17 and then undertook work in the nursing field whilst still living at home with her parents. The family did not take out Australian citizenship.

While in Trieste for some six weeks in 1965, the applicant decided to journey to England, where she met her future husband. He was a single person at the time, working as a maintenance engineer. Their relationship developed, and culminated in a marriage on 1 July 1967. Ms Golling told the Tribunal that her genuine belief at the time was that she and her husband would eventually settle in Australia. However, in the following year, she gave birth to a daughter, and in 1972, to a son. Her husband then apparently changed his mind, and indicated his unwillingness to settle in Australia. Ms Golling was visited by her parents on two occasions, who failed to convince the former spouse that the family should settle in Australia. Ms Golling was extremely distressed at her husband's continual refusal to contemplate moving to Australia.

During their marriage, Ms Golling was a home manager and full-time parent. She stayed in regular touch with her parents, ostensibly by telephone, and occasionally by letter.

The applicant visited Australia in 1983 with her spouse and children, and stayed for some six weeks. She told the Tribunal that 'we came to investigate the possibility of staying here on that occasion, but my former husband was worried about the job factor, so we ended up returning to the United Kingdom'.

A further trip to Australia occurred in 1987 with Ms Golling, who was alone on that occasion, staying a further six weeks. Again, she stayed with her parents in 1989, for a period of some six months.

She told the Tribunal that her relationship with her husband had deteriorated by this time. She confirmed that the major point of contention between them, and the cause of the ultimate separation, was their inability to agree on settling in Australia. Ms Golling told the Tribunal that 'I had nowhere to go, so the separation in effect meant that we continued to live in the former matrimonial home. This occurred even after our divorce in October 1993, because we had problems related to our property settlement'. After the settlement was achieved, Ms Golling remained in the former matrimonial home until her departure for Australia. She indicated that her children, who were both single and working, continue to reside in the home with their father.

Ms Golling undertook part-time employment as a housekeeper for some five years in the United Kingdom until 1995.

She told the Tribunal that 'I have not spoken to my daughter since 1990. We just do not get on. I have contact with my son however, and he rings me up every couple of months or so. He occasionally writes too, and I write back to him. The last time I heard from my son was 2 April 1997 when he telephoned me. We had a half hour conversation and we talked about his job, his friends, and in particular his girlfriend. He asked my advice, and I often provide him with my opinions about these things'.

She told the Tribunal that her daughter has a better relationship with her father, whereas her son and his father don't get on.

Ms Golling confirmed her most recent arrival in Australia in January 1996. She indicated that '...I had four weeks to vacate the former matrimonial home after our settlement, and so I came to Australia with a view to staying'.

Since her arrival she has been living in her parents' residence at Campbelltown. She indicated that her father's health has been deteriorating, and she is required to assist her mother in providing care for him. Ms Golling does some of the cooking, and housework. She does some shopping on occasions.

She told the Tribunal that '...my parents are still able to look after themselves. They can look after their own hygiene, and attend to clothing themselves. They are also able to go for a walk, and to their medical appointments. My mother is basically able to manage my father's regime, but I do assist her. I basically spend my days doing housework, and keeping them company. I sometimes go out with my friend Judy Horvat, and I take my mother to town by bus every two weeks or so. My parents have no-one else to provide support, and they desperately want me to stay'.

She told the Tribunal that she wishes to spend her remaining years here in Australia. She has spent 10 years in Italy, and nearly 30 in the United Kingdom, and 13 years previously in Australia, and accordingly '...there is nowhere else where I could live. I have no real networks in either Italy or the United Kingdom, and with approximately $120 000 Australian dollars, I am able to invest, and perhaps purchase a residence. The monies were initially administered when my mother opened an account for me in 1986, and they have accumulated since then to this amount. My mother opening that account was evidence of the fact that I wished to settle in Australia at that time'.

The Tribunal also took evidence from Mrs Rosetta Beaco, who was born in Yugoslavia on 22 June 1920, although she is of Italian background. She married in Italy on 13 October 1940, and that marriage produced one child.

She and her family migrated to Australia in 1954 when she was aged 43 years. She and her husband continue to reside in their own residence, and since January 1996, their daughter has resided with them.

While her daughter was living in the United Kingdom, Mrs Beaco visited her some four times. She stated that Ms Golling also came to Australia for three visits. She indicated that '...Ariella could never really adapt to living in the United Kingdom. She always wanted to come to Australia. This was her real home. However her husband was against it, and this caused many arguments. I know my daughter has become very depressed over the years about not being able to join us here'.

She told the Tribunal that she is currently aged 77 years and has restrictions in her mobility. She told the Tribunal that her daughter assists her with the housework. Prior to her daughter arriving in Australia, Mrs Beaco managed, but had 'good days and bad days'. She is aware of the fact that her health, due to her age, and that of her husband, will continue to deteriorate more rapidly in the future. They are therefore reliant upon their daughter's presence. In the event of the applicant having to return to the United Kingdom '...I will have to hire someone to help us. My husband is 80 years old, and he has back problems, and due to his deteriorating mental state he is often depressed. It is more difficult to manage him'.

The Tribunal also took sworn evidence from Ms Judy Horvat, who was born in Adelaide on 11 March 1944. She has worked as a registered nurse at the Glenside Hospital for over 30 years.

She has known Ms Golling since 1961, when they worked together. She was Ms Golling's bridesmaid in 1965. She visited Ms Golling in the United Kingdom, and spent some considerable time there. After returning to Adelaide, she stayed in touch with Ms Golling on a regular basis. Since the applicant's return to Australia, the two have been in regular contact, and they often socialise on weekends.

She attested to the applicant's emotional state as a result of her husband's unwillingness to settle in Australia. She told the Tribunal '...I also know that her parent's health is deteriorating. They are very reliant upon her now'.

Following the hearing in this matter, the Tribunal requested that a geriatric assessment be undertaken in respect to Ms Golling's parents. The following report was produced on 9 September 1997:-

I visited Ms Golling's parents, Napoleone and Rosetta Beaco at home on 4th August 1997 in order to provide an assessment of their care needs and requirement for their daughter to supply these. I will deal with each parent separately initially.

Napoleone Beaco was born on 11.4.17 in Paris. He has a number of medical problems which include chronic back pain, trouble with lungs, Raynaud's phenomenon and primary nodal osteoarthritis of the hands. He reported that his memory was bad and that he sometimes forgot to turn off the lights and the stove.

His wife reports that he continues to drive the family to the shop but that she has to supervise this. He has on occasion locked car keys inside and lost his purse. He looks after the garden and mows the lawn, is able to shower himself but his balance has become more impaired.

He reported being a non smoker and non drinker and takes no regular medication. He has had courses of acupuncture for sleep and headache in the past.

On systemic questions he reported occasional chest pain when walking which he responds to by exercise. He is unable to life heavy objects. Although he sleeps flat he sometimes wakes with dyspnoea. He reported no ankle swelling and occasional cough. Mr Beaco said that his appetite is good and weight stable. He takes Ford pills two to three times a week to maintain regular bowel habits. No particular urinary symptoms although he has nocturia once nightly. He also reported that his hearing was difficult.

On examination his pulse was 96 and regular, his cardiovascular system was normal apart from his hands which were both cool and reddish consistent with the diagnosis of Raynaud's phenomenon. His respiratory system was normal with normal breath sounds. Abdominal examination was normal. On Mini Mental State Examination he scored 24/30 consistent with a mild dementing illness. He was able to remember 2/3 objects. He was unable to complete a clock drawing. His left pupil was larger than the right but both reacted directly to light. His ability to hear whisper was reduced bilaterally. Rinne's test was positive and Weber's central consistent with sensorineural deafness. His reflexes were generally reduced and I was unable to elicit either knee jerks. Plantar responses were flexor. There were no abnormalities on sensory examination.

Rosetta Beaco was born on 22.6.20 and reported her major problems to be osteoarthritis of the hands, back and hip and of the right greater than the left shoulder so that she unable to lift her arm and comb her hair. All activities are generally painful. Her daughter is now doing the heavy housework such as vacuuming, cleaning windows and high objects and her daughter also does the washing up and hangs things out. Mrs. Beaco remains active pottering around the house and going for walks. She does the cooking and shopping and is able to shower and bathe herself. There was no past history of major illness. She has psoriasis, particularly her elbows and feet, allergic rhinitis and peptic ulceration. Her regular medications were ranitidine 150mg bd, Amizide 1 mane, diclofenac 50mg mane and cetirizine 10mg daily. She is a smoker of eight cigarettes a day since 15 years but drinks no alcohol.

On systemic questions she reported sub mammary chest pain with dyspnoea when doing heavy lifting or moving quickly. She has no other symptoms to suggest cardiac failure. Her appetite is reported to be satisfactory although she gets the sensation of food sticking retrosternally and has early satiety. There is no other abdominal symptoms, no urinary symptoms. She reports some headaches radiating up behind her ears.

On examination she had primary nodal osteoarthritis of the hands with deformity of the terminal interphalangeal joints involving the right more than the left hand. Her pulse was 84 and regular and there were no abnormalities in the cardiovascular system. Abdominal examination revealed slight obesity but no other abnormalities. On examination of her joints I was able to passively abduct her left more than her right shoulder but both movements were painful. There were reduced movements of the spine especially on extension. She has plaques of psoriasis over both elbows and a patch at the natal cleft. I was able to view a chest xray which showed slight cardiomegaly and mild upper lobe venous diversion consistent with early left ventricular failure.

I took the opportunity to speak with Ms Golling who is the only child of Mr and Mrs Beaco. She confirmed her mother's report that she is doing the housework including ironing and cleaning while her mother does the washing and cooking and the shopping. She also does her mother's hair twice a week because of her mother's difficulty with her shoulders. Ms Golling is also beginning to help doing detailed things in the garden which her father is no longer able to do. With regard to her father, she reported that he is leaving the cooker on and the lights on which confirmed his own report of his difficulties.

The report required by the Beaco's comes in two parts. Firstly, Mrs. Beaco has degenerative arthritis which has already required her to have help with household tasks. Her arthritis is likely to gradually worsen with time and the amount of physical help that she will need will increase. Secondly, Mr Beaco, although physically independent currently, has an early dementia which will require increased care, especially in supervision and prompting over the new few years. Given limitations on help for people with dementia, this will provide a considerable extra load on Mrs Beaco, especially as she encounters increased personal physical limitations. Additional care for persons with dementia is a 24 hour task and is always best done by a live in carer rather than an occasional visitor, whether family or professional, if such a carer is available.

Ms Golling's presence is already able to assist with household tasks which otherwise would need to be provided by an external agency such as Eastern Domiciliary Care, which would only provide assistance to a minimum level. Though little help is currently being provided for Mr Beaco, his future need for services including provision of in-home respite, will also need to be met by the tax-payer funded Community Care Program through the Dementia Support Service of Eastern Domiciliary Care. As the Beaco's care needs increase, they would need either a Community Aged Care Package or to move to institutional care, which again has implications for tax payer funding. Even if a move to institutional care is required later in their life, the availability of a permanent in-carer is likely to delay this much longer than would be the case if intermittent visiting care were only available.

I trust that these remarks are helpful. I would be very happy to provide further information and I would be very happy to discuss this report with you if required.'

Following this, on 5 August 1997, Dr James Hundertmark, consultant psychiatrist, provided the following report:-

Thank you for your letter dated 18 July 1997 regarding Mrs Golling and her mother Mrs Beaco. As planned, I did interview Mrs Golling and her mother on the 28 July 1997 at your request. I specifically explored the nature and strength of the relationship between Mrs Golling and Mrs Beaco, and also performed a standard psychiatric assessment of the two women.

I had the report from Dr Neroni dated the 12 May 1997, with regard to Ariella Golling, at my disposal.

I initially interviewed Mrs Golling. She is a 53 year old divorced woman who is currently living with her parents. She has a 25 year old son who lives with her ex-husband in Shropshire, UK. Her 29 year old daughter is also back in the United Kingdom. I note that Mrs Golling previously worked as a psychiatric nurse's aide for six years at the Glenside Hospital in the early 1990s. She then worked as a housekeeper at a nursing home.

Mrs Golling was born in Trieste Italy, however, she has very little recollection of her time in that country. She reported taking English lessons on the ship coming out to this country. She described carrying out most of the day-to-day tasks for the family because her English was much better than that of her parents. She said that she would often act as a translator for her parents when they went for job interviews in Australia. She described the 1950s in Australia as being very difficult times due to the language problems and their difficulties adjusting to a new culture. She eventually went to Lockleys primary school, but said she was always behind because of her language problems. She had some friends at school, but had a great deal of difficulty integrating because she was older than most of the children in her class, again due to her problems with the English language.

She began work at the Parkside Hospital, aged seventeen and a half. She said she loved this work and was involved in a range of duties including, looking after patients in the courtyards, bathing patients, and setting up tables for meals, as well ad administrating medication. She worked at the Parkside Hospital for 7 years. She left this job to visit her grandmother in Italy, and also spent 6 weeks in the United Kingdom at that time. During this period in the United Kingdom she met her future husband. She then returned to live in Australia and continued to correspond with this man for approximately one year. Over this time she worked at a nursing home in Magill whilst continuing to live with her parents. She said at this time she continued to get on well with her parents and was very close to them. She eventually made the decision to leave for the United Kingdom to further the relationship with her future husband. However, at the time of leaving Australia she felt quite strongly that it was her home. She said that she had a fairly firm promise from her future husband that they would return to live in Australia. She said that she thought in a relatively small number of years that they would come back.

She and her husband married and began a relationship where they lived in a small country town in the United Kingdom. She said that her husband constantly found excuses as to why they shouldn't return to Australia. She said that she felt fairly unhappy with her life in England throughout most of her time there. She said things were quite closed-in socially, that she tended to mix mainly with her husband's family and that things, over a period of time, became more and more tense between her and her husband's family. The couple had two children who grew up in the town of Wellington in Shropshire where the couple lived.

Mrs Golling's husband was a maintenance engineer at a local foundry, and worked most days of the week. He was described as a quiet and conservative man who tended to be quite strong on punctuality and wanted things down in a particular way around the house.

Eventually Mrs Golling began to take some occasional trips to Italy to see relatives. She said this made her husband very upset. She said eventually she was only staying in the relationship because of her children. She told me she always knew she wanted to come back to Australia.

Eventually the subject of returning to Australia became a taboo issue in the house. The tension rose to the point where eventually the couple sort (sic) divorce in 1990. Mrs Golling said she could never get Australia out of her mind.

It appears that the family broke into two discrete groups. The father and daughter versus the mother and son. Mrs Golling said that she had to continue living in the marital home as she had nowhere else to go. The divorce proceedings were quite protracted and she described having to go to court on four separate occasions. I gather over her last three months in the United Kingdom things were extremely stressful. She was reviewed by her general practitioner and commenced on anti-depressant medication.

Eventually on the 18 December 1995 the divorce was settled and she was given four weeks to leave her old family home. She said that at that time she felt she had nowhere to go apart from to come back to Australia where she has always felt as her home, more particularly she has felt that her parents home should be her initial place of residence after the marriage ended.

I gather Mrs Golling has now been in Adelaide for approximately 18 months. Over the last 2-3 months she says she has become increasingly more tense because of the immigration issues at hand. She has also been quite upset over all her time in Adelaide since she has left her son behind. She tells me that she has never got along with her daughter that well and the loss of contact with her is not so much of a burden. Her son Roger is a 25 year old psychiatric nurse who still lives in the local village. She greatly misses contact with him. The patient's daughter is aged 29, and Mrs Golling describes their relationship as never close.

Mrs Golling described that her mother was now quite unwell and needed quite a good deal of caring. Mrs Golling is aware that her mother suffers quite severely from arthritis, but is unsure as to what her other medical problems might be. It was quite clear that Mrs Golling does most of the house work specifically including, vacuuming, dusting, cleaning windows, washing clothes and ironing, doing any small task around the house for her father such as, changing light globes, helping with food preparation including chopping food, and washing up after meals. She also has to do most of the domestic chores involving water as her mother has trouble with her arthritis if she gets her hands wet.

Mrs Golling's father is now fairly frail. He feel from a ladder three years ago and sustained a minor head injury. From the history obtained from Mrs Golling it seemed likely that Mr Beaco has an early dementing illness. I gather he is inclined to leave lights or domestic appliances on around the house. He will often forget small items such as people's names. There also appears to be some accentuation of certain features of his personality consistent with early stages of dementia.

I note that Mrs Golling has no other relatives. Specifically she has no brothers, sisters, or cousins.

As far as vegetative features of depression, Mrs Golling does report some insomnia, but her appetite and weight are stable, her energy levels are reasonable, and she does derive some pleasure from activities. She describes her mood as slightly depressed, but mainly anxious to do with the immigration issues. There was certainly no suicidal ideation. No significant medical history apart from two caesarean sections. She is currently taking no medication.

Mrs Beaco is a 77 year old married woman who lives with her daughter and husband, in Campbelltown. She previously worked as a cleaner at the Royal Adelaide Hospital. Her husband is a retired fitter from the ETSA Corporation. They have only one child, Ariella.

As far as past medical history, Mrs Beaco suffers from arthritis, gastric ulcers, and some episodes of chest pain. The patient's arthritis is quite widespread and effects her back, shoulders, neck, and chest. She suffered the after effects of a herpes zoster infection for some years now. She finds that an area which had the original infection has remained itchy and she often scratches it. She has found that no particular medications or ointments work to each the discomfort caused by the shingles.

She takes Voltaren which is a non-steroidal anti-inflammatory drug for her arthritis; Ranitidine for her gastric troubles; and also has taken some tables for the herpes zoster infection which have little effect. She told me she doesn't like taking too many tablets and it may be that her compliance is not at all that good.

She described her current mood state as being very stressed. She feels depressed and very disappointed about her daughter's situation. She said that her daughter spent years living in Australia and worked here, but is now being treated harshly through the immigration system. She says she has found it quite a heavy burden to care for her daughter in the emotional sense, since she has been back in Australia. She feels that she should be trying to keep her daughter busy.

The patient's sleep is relatively poor and is often interrupted by pains from her arthritis. Her appetite is not good, but her weight is stable. Her energy levels are quite low. Her mood state was predominantly described as "worried". She said she had trouble seeing anything bright coming up.

She added that she had great worries about her husband. She described him as someone who forgets everything. He often becomes quite confused in unfamiliar places, and his short term memory clearly very poor.

The patient was born in Trieste and came to Australia around 1954 when she was aged 34. The family was first in an immigration camp in Melbourne and then moved to Adelaide. They lived in a number of suburbs and eventually built a house in Tranmere. Mrs Beaco was keen to point out that there was very little help for migrants in those days. She says that she is still bitter as she can detect an ongoing dislike of migrants in Australia up to this day. She said over the past 18 months her feelings towards Australia had been spoilt by the handling her daughter has received.

In summary, I thought it was quite clear that there was an ongoing strong relationship between Mrs Beaco and her daughter, Ariella Golling. The mother and daughter had been closely associated since earlier in Mrs Golling's life when she acted as an interpreter for her parents soon after coming to Australia. Mrs Golling failed to make relationships with other girls easily in school days and this increased her degree of attachment to her mother. She continued to live with both her parents throughout her adolescent and early adult years. After going on an overseas trip she returned to live with her parents. She firmly viewed Australia as her home and a place that she would return to soon after marrying overseas. It would appear that her obsession with returning to Australia impacted quite negatively on the state of her marriage. When her marriage eventually did breakdown she felt her natural place was with her parents again in Australia. There is no doubt that both Mr and Mrs Beaco are quite physically disabled and require some fairly close caring at this stage. It seems obvious for Mrs Ariella Golling to play that caring role for her parents. There is also no obvious alternative as to where Mrs Golling could go if she was unable to continue to live with her parents in Adelaide. She has no other immediate, or even distant relatives elsewhere. She feels no particular ties to the United Kingdom apart from the fact that her son is there and she misses him quite significantly.

In conclusion I would strongly recommend that Mrs Golling should be allowed to remain in South Australia in order to preserve this particular family unit. In addition, the burden placed on the family through the investigation carried out by the immigration authorities does seem to have caused additional stress to Mrs Beaco and her daughter Mrs Golling.

In the sense of formal psychiatric examination, I think both Mrs Beaco and Mrs Golling could be classified as suffering from an adjustment disorder with depressed mood. There appears to be no need for psychiatric intervention or medication at this time. However, I recommend Dr Neroni, the family practitioner involved, should continue to monitor their mental states, and perhaps refer them on if any deterioration is noticed.'

In order to secure the grant of a Subclass 806 (Family) visa, the applicant is required to satisfy the prescribed criteria set out above.

During the previous assessments conducted with respect to the case, it was found that Ms Golling had failed to satisfy the Former Resident criteria for a Class 151 visa (see above). This was held to be the case on the basis that Ms Golling was already 10 years and 10 months of age when she arrived to take up permanent residence in Australia, and upon this basis, was unable to satisfy the threshold of spending the majority of her formative years in Australia. It was also held that, due to the presence of her two non-dependent children in the United Kingdom, Ms Golling was unable to satisfy the definition of 'remaining relative' (see above).

In submissions provided by the applicant's adviser, the Tribunal was asked to consider Ms Golling's circumstances against the definition of 'special need relative' in regulation 1.03.

The authorities in relation to 'special need relative' cases are instructive. The Tribunal has consistently followed the observations of Burchett J in Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117ALR 418, as follows:-

'It is appropriate to observe the definition of 'special need relative' is largely concerned with medical issues. There must be a need, not necessarily permanent but at least long term, for some form of assistance because of death, disability, prolonged illness or other serious circumstances. (The last matter, of course, need not be of medical, unless the earlier words create a genus, which would be a very restrictive view to take of a beneficial provision under the broad rubric of 'special need', particularly as there cannot be a genus of medical conditions of the citizens of residents to be assisted, since the first condition is death). There must be an inability to obtain 'the assistance' from the other sources mentioned ....

...The assistance with which the relation is concerned is the assistance the relative is able to provide. If that is mowing lawns, of course, other may do it. The more complex and personal it is, the less this can be so. Indeed, such cases are probably at the heart of the benevolent intent of this regulation which, on ordinary principles, as I have already indicated, should be given a broad and generous construction in the favour of the Australian citizen and resident that it was intended to benefit ....

There is also another aspect of this consideration. The definition of 'special need relative' does not ask only whether the particular assistance the relative can give is in fact replaceable. It also asks whether it can 'reasonably' be obtained elsewhere. From that point of view, no-one would suggest it reasonable to expect a person suffering from psychiatric illness of the severity here in question to obtain the same support and encouragement from uninvolved strangers (however professional) as that available from her loved brother'.

In respect of the matter which must also be considered by this Tribunal, namely the reasonable availability of alternative sources of support and care, the Tribunal has held that 'reasonableness ... should have a subjective measure, and what is reasonable in one case may not be reasonable in another. The totality of the circumstances affecting the individual and his family must be considered in each case ....'. (See Re Yung Hwagchi (IRT Decision 2440, 9 August 1993)).

Further support for such an approach can also be found in the decision of Foster J in Moskal v Minister for Immigration, Local Government and Ethnic Affairs (1994) 125ALR 307 at 315 as follows:-

'Once the particular needs are carefully and accurately delineated by the decision-maker, the next question must be whether these needs generate 'a permanent or long term need for assistance'. If this question be answered in the affirmative, then the decision-maker must determine, in a case where no Australian citizen or permanent resident is available to provide such assistance, whether they can be provided by 'welfare, hospital, nursing or community services in Australia' or can only be provided by a 'special need relative'.

This question again, cannot be properly addressed or answered by a mere general and broad consideration of the types of services available in Australia. Common humanity demands that a disadvantaged citizen not be deprived of the special caring assistance of a near relative on the basis that, in some general sense, it may be arguable that some aspect of that assistance can be provided through visits from community welfare organisations. If there be demonstrated a clear and definite need for ongoing emotional support, attributable to the special condition of the citizen, then the question is necessarily and squarely raised, whether this support can reasonably be provided by such organisations. The essential issue for determination in such a case is whether such organisations can reasonably supply the necessary special care available from the 'special need relative'.'

On the basis of such authorities, and in respect to the evidence considered, the Tribunal now sets out its findings as follows. The applicant Ariella Golling is the only child of Mr and Mrs Beaco. She has been residing in the United Kingdom for over 30 years, and has two non-dependent children residing there at the present time. She has separated and divorced from her husband, and concluded a property settlement just prior to her most recent arrival in Australia.

Both Mr and Mrs Beaco are elderly, and have health problems. The applicant resides with them at their suburban home. Dr Prowse conducted a geriatric assessment of the couple at their home. The critical findings in his report are as follows:-

'The support required by the Beaco's comes in two parts. Firstly, Mrs Beaco has degenerative arthritis which has already required her to have help with household tasks. Her arthritis is likely to gradually worsen with time and the amount of physical help she will need will increase. Secondly, Mr Beaco, although physically independent currently, has an early dementia which will require increased care especially in supervision and prompting over the next few years. Given limitations on help for people with dementia, this will provide a considerable extra load on Mrs Beaco, especially as she encounters increased personal physical limitations. Additional care for persons with dementia is a 24 hour task and is always best done by a live-in carer, rather than an occasional visitor whether family or professional, if such a carer is available.'

Dr Prowse responded to the issue of whether assistance is reasonably available from other sources in the following:-

'Ms Golling's presence is already able to assist with household tasks which would otherwise need to be provided by external agencies such as Eastern Domiciliary Care, which would only provide assistance to a minimum level. Though little help is currently being provided for Mr Beaco, his future need for services, including provision of in-home respite, will also need to be met by the taxpayer funded community care programme, the dementia support service of Eastern Domiciliary Care. As the Beaco's care needs increase, they would need either a community aged care package, or to move to institutional care, which again has implications for taxpayer funding.'

A consultant psychiatrist, Dr Hundertmark, also provided a report, and summarised his findings as follows in respect of the bonding between the applicant and her mother:-

'In summary, I thought it was quite clear that there was an ongoing, strong relationship between Mrs Beaco and her daughter, Ariela (sic) Golling. The mother and daughter had been closely associated since early in Ms Golling's life when she acted as an interpreter for her parents soon after coming to Australia. Ms Golling failed to make relationships with other girls easily in school days, and this increased her degree of attachment to her mother....'

'In conclusion I would strongly recommend that Ms Golling be allowed to remain in South Australia in order to preserve this particular family unit ....

In the sense of formal psychiatric examination, I think both Mrs Beaco and Ms Golling could be classified as suffering from an adjustment disorder with depressed mood. There appears to be no need for psychiatric intervention or medication at this time. However, I recommend that Dr Neroni, the family practitioner involved, should continue to monitor their mental states, and perhaps refer them on if any deterioration is noticed.'

On the basis of the foregoing evidence, the Tribunal finds that Ms Ariella Golling is willing and able to provide substantial and continuing assistance to her parents, who are permanent residents of Australia.

The medical evidence before the Tribunal has confirmed the Tribunal view, that both of her parents have a long term need for assistance as a result of prolonged illness and/or other serious circumstances, which affect them personally, and together as a couple. In the context of this given situation, the Tribunal is also prepared to find that such assistance cannot reasonably be obtained from another relative, or more particularly, from an institutional service in Australia.

Accordingly, the Tribunal finds that the applicant has satisfied the definition of 'special need relative' as set out in regulation 1.03 in this instance.

The outstanding criteria now require assessment by the Department, and the file will be returned there for that purpose.

The Tribunal, in accordance with Section 349 of the Act remits this application to the Department with the direction that Ms Ariella Golling meets all the relevant criteria for the grant of a Subclass 806 (Family) visa on 'special need relative' grounds, except for the public interest criteria.

I certify this and the preceding 23 pages are a true copy of the Statement of Decision and Reasons for Decision of Michael Radin, Senior Member of the Tribunal.