Singh v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application for judicial review of a decision of the Migration Review Tribunal dated 1 December 1999. By its decision the Tribunal affirmed a decision of a delegate of the Minister dated 17 May 1999 by which the delegate refused an application by the applicants, Mr and Mrs Singh, for visas in the class described as Family (Residence), class AO, subclass 806. 2 The criteria for the grant of a visa in that class include one which was found to be determinative of the application. That criterion requires that the applicant be a special need relative of a settled Australian citizen, a settled Australian permanent resident or a person falling within certain other categories. In this case, Mr Singh's son, Sanjay, is a settled Australian citizen and it is in relation to him that the applicants claim to be special need relatives. 3 A "special need relative" was, at relevant times, defined in reg 1.03 of the Migration Regulations as follows: "special need relative" in relation to an Australian citizen usually resident in Australia … means a relative who is willing and able to provide substantial and continuing assistance to the citizen … if: (a) the citizen … has a permanent or long‑term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen … 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 … being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and (ii) welfare, hospital, nursing or community services in Australia." 4 The circumstances in which the applicants claimed to meet that criterion were these. Mr Singh's son and daughter‑in‑law have two children, one aged three and the other aged six. The son and daughter‑in‑law both work full time. Mr and Mrs Singh provide assistance principally in looking after the two children and also in providing, more generally, domestic assistance to the son and daughter‑in‑law. The elder of the two children is at school and one aspect of the assistance provided is collecting her from school and looking after her in the absence of her parents after school. The younger child was described by the applicants in their evidence as being a fussy eater and a bit sickly: they said that she has problems with eating and suffers stomach upsets but otherwise has no ongoing medical problems. I shall return to that aspect of the evidence in due course. The assistance provided by the applicants includes looking after that younger child. 5 Mr Singh's son and his daughter‑in‑law own their own home and also own an investment property. Both properties are subject to mortgages. The applicants gave evidence that a result of the assistance that they give to the son and daughter‑in‑law - and a purpose of theirs in providing it - is to assist them financially by relieving them of the expenses of other childcare or domestic assistance so that they may, as Mr Singh in his evidence described it, build up funds for the future. 6 The position may, I think, be fairly summarised as follows. On the evidence before the Tribunal, the need met by the applicants was one which arose from the circumstance that Mr Singh's son and daughter‑in‑law were both working full time, had two young children (one of whom had some difficulties with her food which necessitated visits to the doctor from time to time) and had financial commitments which they had to meet. The assistance which the applicants provided consisted principally of taking care of the two children and some general domestic assistance, and the gratuitous provision of that assistance conferred an incidental financial benefit on the son and daughter‑in‑law. 7 Although it is probably of no particular significance, the evidence before the Tribunal disclosed also that the entire family of the applicants now lives in Australia, including Mr Singh's three children and their families. 8 The applicants could only be said to be special need relatives in relation to Mr Singh's son, Sanjay, if Sanjay had a permanent or long‑term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting him personally or a member of his family unit. The Court has had occasion in several cases to consider the meaning of the phrase "other serious circumstances" in reg 1.03. It appears now to be established that the word "serious" should be given full effect and that the context of the definition in the regulations is not one which requires that it be given a broad or generous construction. The decision of the Full Court in Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 is authority for that proposition, though dealing principally with a different category of visa. Other cases to similar effect include Tuamoheloa v Minister for Immigration and Multicultural Affairs (Heerey J, 4 November 1998, unreported) and also Huang v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 95, in which the Full Court held that the circumstance that a child is of tender years does not of itself render even a parent a special need relative. 9 In the course of its decision, the Tribunal referred to the relevant departmental policy found in Procedures Advice Manual 3, Part 1, Division 1.2, in paragraph 1.03 of which there is a discussion of the various elements of the definition of special need relative. The passage particularly relied upon by the Tribunal, and relied upon by the applicants in this application for review, is one which explains the Minister's policy in relation to the criterion in paragraph (a) of reg 1.03. The relevant paragraph says this: "3. It is policy that, in the absence of other extenuating circumstances, none of the following on their own constitutes a serious circumstance, a permanent or long‑term need or requires substantial and continuing assistance: - companionship of a relative - homesickness - general domestic assistance - assistance in bringing‑up children - financial support - assistance in managing a family business - bereavement over death of a spouse."