CATCHWORDS: Review of visa refusal - Subclass 806 (Family) - special need relative - prolonged illness or other serious circumstances - emotional and psychological support - substantial and continuing assistance

DECISION: The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Change in Circumstance (Residence) (Class AG) visa.

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the delegate). Mohammed Shiraz WAHAB (the visa applicant), a male national of Sri Lanka, born on 6 March 1973, applied for a Change in Circumstance (Residence) (Class AG) visa on 30 July 1998 (D1 f99). The delegate's decision to refuse to grant the visa was made on 24 January 2002 (D1 f162).

2. The visa applicant lodged an application for review with the Tribunal on 21 February 2002 (T1 f11). The decision is reviewable by the Tribunal and the application for review has been properly made by a person with standing to apply for review.

3. The Migration Act 1958 (the Act) and the various Regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various Regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural and Indigenous Affairs (the Department). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.

4. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa to the Department for reconsideration. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.

5. The criteria and policy immediately relevant to this review are:

Item 1107 Class AG of Schedule 1 to the Regulations

Part 806 of Schedule 2 to the Regulations

Regulation 1.03 of the Regulations - definitions of `special need relative', `relative', `close relative' and `settled'

Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24

Hussein v Minister for Immigration and Multicultural Affairs [1999] FCA 1621 (5 November 1999)

Jun v Minister for Immigration and Multicultural Affairs [2000] FCA 867

Moussa v Minister for Immigration and Multicultural Affairs [2002] FCA 92 (5 February 2002)

6. The Tribunal generally has regard to the Regulations as they stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.

D1 - Departmental case file V96/200582, folio numbered 1-163.

8. The visa applicant is aged 30 years at the time of the Tribunal's review. He arrived in Australia on 7 July 1996 as the holder of a subclass 560 (Student) visa that was valid for stay until 30 July 1998. On 6 December 1996 the visa applicant's student visa was cancelled because he did not commence the course in which he was enrolled. He lodged an application for review with the Immigration Review Tribunal (IRT). However he withdrew his application to the IRT on 19 June 1997 following the grant of a subclass 435 (Sri Lankan Temporary) visa on 5 May 1997 that was valid until 31 July 1997.

9. On 31 July 1997 the visa applicant applied for a further subclass 435 visa. The application was refused on 4 August 1997 because he did not satisfy the primary criterion of being in Australia on or before 1 November 1993.

10. On 30 July 1998 the visa applicant lodged an application for a Change in Circumstance (Residence) (Class AG) visa, subclass 806 on the basis that he was a special need relative of his uncle, Haneef MOHINUDEEN (the nominator) (D1 f99). The nominator is aged 53 years at the time of the Tribunal's review. He first arrived in Australia in 1974, the year after the visa applicant was born, and he became an Australian citizen in 1980.

11. At the time of application in July 1998, the visa applicant was single and living in Brunswick, and the nominator was living in Bundoora with his wife and three children. The visa applicant stated that the nominator has emotional and psychological needs, that he provides the nominator with emotional and psychological support, and that the nominator will require his long-term assistance. The visa applicant stated that the nominator has other relatives in Australia, but he is the only one who is willing and able to provide the assistance required. He stated that no one had sought assistance for the nominator from any Australian welfare organisation, doctor or health professional, hospital, nursing home or other community service, and that a psychologist's report would be submitted.

12. On 12 August 1998 the migration agent then representing the visa applicant submitted a number of documents, including a report dated 30 July 1998 (D1 f81- 83) in which psychologist Edwin Kleynhans stated that the nominator and the visa applicant were referred to him on 29 July 1998 for assessment to determine whether the visa applicant is a special need relative to the nominator. In the report Mr Kleynhans stated in part that:

* the visa applicant's father deserted the family when the visa applicant was very young. The visa applicant's four uncles in Australia, including the nominator, worked together to support the visa applicant, his mother and his siblings "financially and morally", and the visa applicant's widowed mother and three of his four siblings live in the United Arab Emirates (UAE);

* the nominator "facilitated" the visa applicant's coming to Australia, the visa applicant regards him as a father figure, and a close bond has developed between them in Australia;

* the nominator is worried about the visa applicant's welfare if he has to return to Sri Lanka, owing to the absence of family, the visa applicant's previous association with the Tamil Tigers (The LTTE), and the prospect that the Sri Lankan government would conscript the visa applicant to combat the LTTE;

* psychological tests show that the visa applicant recorded a serious level of depression and an extreme level of anxiety, while the nominator recorded a minimal level of depression and minimal anxiety. However, if the visa applicant has to return to Sri Lanka, the nominator's depression is likely to become progressively worse, and he could record severe anxiety; and

* the nominator's brothers in Australia cannot duplicate the caring relationship between him and the visa applicant because they have their own families and jobs and don't always have the time for the nominator who has ongoing emotional needs.

13. In summary, Mr Kleynhans stated that it was his professional opinion as a psychologist that the nominator has a very strong and ongoing need for the visa applicant to remain in Australia because the visa applicant satisfies the nominator's psychological needs. He stated that the nominator would suffer from long-term psychological problems should the visa applicant not be successful in his application.

14. On 21 October 1999 the visa applicant applied for a bridging visa with work rights. He stated that he previously had permission to work, but that would cease shortly. He gave his residential address as a house in the same street as the nominator in Bundoora. He stated that if he does not work, the nominator would try to support him, but the visa applicant also has to support his unemployed sister. In an accompanying letter, the visa applicant's sister, Fathima IBRAHIM, stated that the visa applicant lives with her and helps provide food and other expenses, including paying for telephone calls (D1, f. 129). The visa with work rights was granted on 23 December 1999 (D1, f. 136).

15. In response to a request by the Department on 17 November 2000 for additional information, the visa applicant stated in part in a letter dated 4 December 2000 (D1, f.143) that the nominator's long-term need of assistance is based on him suffering from a serious level of depression, and that he provides the nominator with emotional and psychological support on a daily basis. He stated that he has learnt from the psychologist how to deal with people who suffer from serious depression, and that he has the personal qualities to help the nominator cope with his problems because of the closeness of their relationship. He stated that the nominator would provide him with financial support, and that he can also work while providing emotional and psychological assistance to the nominator on a daily basis. He stated that he intends to live permanently with the nominator so that he can continue to provide the nominator with the assistance he requires. He stated that the nominator was absent from Australia from 30 July 1999 to 16 August 1999 when he visited Sri Lanka.

16. The application was refused on 24 January 2002 as the delegate was not satisfied that the nominator had a long term need for assistance because of death, disability, prolonged illness or other serious circumstances, and accordingly the visa applicant did not meet the definition of a special need relative (D1 f162). On 21 February 2002 the visa applicant sought review by the Tribunal. He gave the same residential address as in October 1999, and he stated that the nominator's condition had deteriorated since he first began to help him (T1 f8). The visa applicant has remained in Australia on a bridging visa on the basis of his application that is the subject of this review.

17. On 30 August 2002 the migration agent currently representing the visa applicant provided an updated psychological report dated 19 August 2002 (T1 f22). Mr Kleynhans stated that he conducted the same psychological tests on the nominator as before. He stated that while the nominator's stress level was not a major concern in 1998, there had been a significant increase in his level of depression and anxiety because he is more worried about his health condition than in 1998. He stated that the nominator suffers from hypertension and hypercholesterolemia, for which he is taking medication. He stated that the nominator told him that he has family members who suffer from diabetes, and, being a pharmacist by profession, the nominator is aware of the link between diabetes and heart problems. He stated that the nominator was fearful of developing diabetes later in life. Mr Kleynhans stated that an increased stress level could aggravate these conditions, as they are significant risk factors for a heart attack. He concluded that the nominator's stress levels could increase to a severe level if the visa applicant has to leave Australia.

18. A hearing was held on 12 June 2003 at which the visa applicant gave evidence while the nominator was in the hearing room. He told the Tribunal that he is single, and that he commenced to live in a house opposite the nominator in mid-1999. He stated that he has worked full-time as a cleaner since early 2000, and before that he had worked part-time as a cleaner since his arrival in Australia in July 1996. He stated that the nominator lives with his wife and three sons aged between 15 and 23 years.

19. The visa applicant stated that at the time of application in July 1998, he was living in Brunswick, and the nominator and his family were living at their present address in Bundoora. He stated that the nominator worked full-time as a laboratory technician, but he was not sure if the nominator's wife was working at the time of application. The visa applicant said that the nominator was then in need of assistance because they had a good relationship based on emotion. The visa applicant explained that before he was born, his father deserted the family. He stated that the nominator had supported him since the visa applicant was young, and that the nominator was a father figure to him. The visa applicant stated that at the time of application, he was working part-time as a cleaner between 8 p.m. and 12 midnight four days per week. He stated that he left home in the morning to visit the nominator, he prepared his breakfast, he did some household chores, and they went out walking or shopping together, or they attended social functions together. He stated that mostly he just talked to the nominator. He said that he was the only one who could provide assistance to the nominator because of their close bond, and that he had provided that type of assistance to the nominator since he arrived in Australia in July 1996. He stated that he lived with the nominator and his family from the time that he arrived in Australia until about July 1997 when the visa applicant moved to Coburg.

20. The visa applicant told the Tribunal that he and the nominator saw Mr Kleynhans on one occasion for about one hour in July 1998, and they saw him again in August 2002. The visa applicant stated that he currently works between 4 p.m. and 12 midnight five days per week. He stated that the nominator has high blood pressure, so they walk together in the morning, and they attend social gatherings on the weekend, sometimes with the nominator's wife. He stated that no one has sought assistance for the nominator from any community services, because they cannot provide the nominator with the same level of emotional support that the visa applicant provides. The visa applicant stated that the nominator is concerned about the visa applicant's safety if he has to leave Australia, and that is the reason for the nominator's current stress levels.

21. The nominator agreed with the visa applicant's evidence, and he added that his wife has worked full-time for 18 years providing home based child care under the auspices of the local council. He stated that he has three brothers, all of whom are Australian citizens who migrated to Australia before July 1998. He stated that at the time of application, all of them were in full-time employment, they lived in the Melbourne suburbs of Noble Park, Templestowe, and Rowville respectively, two were married with primary and secondary age children, and one was divorced with an 18-year-old child. The nominator stated that he was on good terms with his brothers, and he saw them two or three times per year, but they did not have the same degree of closeness to him as the visa applicant.

22. The nominator told the Tribunal that his stress and anxiety associated with the visa applicant's uncertain future if he has to return to Sri Lanka manifested itself about one year after the visa applicant arrived in Australia, but he did not seek treatment from a psychologist or other health professional before he consulted Mr Kleynhans in July 1998. He stated that he could not recall Mr Kleynhans referring him to a doctor after the consultation in July 1998, but in 1999 or 2000 he was diagnosed with hypertension causing high blood pressure, and he was placed on medication. He stated that the dosage has increased over time, and three weeks before the hearing his blood tests showed he has borderline diabetes. He stated that he is still employed full-time as a laboratory technician with a chemical company, and that Mr Kleynhans was mistaken in thinking that he is a pharmacist. The nominator said that his wife still provides home based child care on a full-time basis, and that he continues to see his brothers in Melbourne about two or three times per year, but they do not have the same degree of closeness to him as the visa applicant.

23. At the time the visa application was lodged, Change in Circumstance (Residence) (Class AG) contained the following subclasses: Subclass 802 (Child), subclass 804 (Aged parent), subclass 806 (Family) and subclass 833 (Certain unlawful non-citizens). The only subclass in respect of which any claims have been advanced is subclass 806 (Family) and then only in respect of the special need relative ground. There is no evidence to suggest that the visa applicant meets key criteria for any of the other subclasses or grounds.

24. A criterion to be satisfied at time of application for the grant of a subclass 806 visa is clause 80 6.213. This clause provides in part, that the visa applicant is a special need relative of another person who is a settled Australian citizen, a settled Australian permanent residence or a settled eligible New Zealand citizen who is usually resident in Australia and who has nominated the visa applicant for the grant of the visa. Clause 806. 221 relevantly provides that the visa applicant must continue to satisfy the criterion in clause 806.213 at time of decision.

25. The term special ne ed r elative is defined in regulation 1.03 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;

26. On the basis of the evidence given at the hearing, and the psychological reports, the Tribunal accepts that the visa applicant and the nominator have a close relationship. However, it is necessary for the Tribunal to consider whether the assistance required by the nominator in the form of emotional and psychological support and the visa applicant's presence in Australia is sufficient to constitute a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the nominator personally, or a member of his family unit. The Tribunal must consider whether the visa applicant was a `special need relative' as defined in regulation 1.03 at the time of the visa application and whether the visa applicant remains a `special need relative' at the time of the Tribunal's decision.

27. In Jun v Minister for Immigration and Multicultural Affairs [2000] FCA 867 the Federal Court held that when considering whether the visa applicant was a special need relative at the time of application and at the time of decision, the Tribunal must address each aspect of the definition of special need relative. Having regard to the criteria set out in the legislation and the considerations set out in Departmental policy, the relevant matters are discussed under the following headings:

Was the visa applicant nominated for the visa by a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen? Is the nominator settled and usually resident in Australia?

28. The visa applicant has been nominated by his uncle, who is a `relative' as that term is defined in regulation 1.03. The nominator is an Australian citizen who is settled and usually resident in Australia.

Does the nominator have a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the nominator personally, or a member of his family unit?

29. It was not contended that the nominator or a member of his family unit has a permanent or long-term need for assistance because of death or disability. The nominator has contended that he requires assistance because of "prolonged illness or other serious circumstances" affecting him personally. The claim relates to his need for emotional and psychological support. In support of the claim, a psychological report dated 30 July 1998 was submitted, stating that the nominator had a minimal level of depression and minimal anxiety at the time of the application, and that the nominator could record severe anxiety if the visa applicant has to return to Sri Lanka. The Tribunal notes that the nominator and the visa applicant saw the psychologist on one occasion for one hour, the day before the application under review was lodged. The nominator had not previously sought treatment from a psychologist, psychiatrist, or any other health professional, for stress or anxiety. The Tribunal also takes into account that, in the report, the psychologist does not recommend that the nominator seek further specialised treatment for depression and anxiety.

The word 'depression' is often used to describe the feelings of sadness which all of us experience at some stage of our lives. It is also a term used to describe a form of mental illness called clinical depression.

Because depression is so common, it is important to understand the difference between unhappiness or sadness in daily life and the symptoms of clinical depression.

When faced with stress, such as the loss of a loved one, relationship breakdown or great disappointment or frustration, most people will feel unhappy or sad. These are emotional reactions which are appropriate to the situation and will usually last only a limited time. These reactions are not regarded as clinical depression, but are a part of everyday life.

The term 'clinical depression' describes not just one illness but a group of illnesses characterised by excessive or long-term depressed mood which affects the person's life. Clinical depression is often accompanied by feelings of anxiety. Whatever the symptoms and causes of depression, treatment is very effective.

(see Department of Human Services: What is depression? http://www.dhs.vic.gov.au/acmh/mh/mental\_illnesses/depression.htm)

31. The psychologist has not diagnosed that the nominator suffers from the mental illness characterised as clinical depression. Additionally, the Department of Human Services website indicates that there are a wide variety of treatments available to people suffering from clinical depression. The website goes on to describe the different types of clinical depression that are regarded as mental illnesses. The psychologist has not recommended any of these treatments. The only "treatment" he proposes is that the visa applicant be permitted to remain in Australia. Taking all these circumstances into account, the Tribunal is not satisfied that at the time of application, the nominator suffered from a prolonged illness.

32. The Tribunal has considered whether assistance is required because of "other serious circumstances". In Hussein v Minister for Immigration and Multicultural Affairs [1999] FCA 1621 (5 November 1999) Emmet J held that "other serious circumstances" must be considered in the context of the accompanying phrases "death, disability and prolonged illness" at [16]. The Tribunal is not satisfied that the nominator's concerns for the safety of the visa applicant manifest a need for assistance due to circumstances serious enough to reach the threshold set by "death, prolonged illness or disability." The nominator has not been affected by serious circumstances at the level of death, prolonged illness or disability. In his subsequent report dated 19 August 2002 the psychologist stated that the nominator's stress level was not a major concern in 1998 when the application was lodged. Although the Tribunal accepts that it is natural for the nominator to be concerned with the welfare of the visa applicant should he return to Sri Lanka, the Tribunal does not consider that the nominator's stress level at the time of application reached the same level as the grounds specified in the definition of special need relative in regulation 1.03. The Tribunal also notes that the nominator's level of stress and anxiety did not prevent him from engaging in full-time employment at the time of application. For these reasons, the Tribunal is unable to be satisfied that the nominator had a permanent or long term need for assistance because of serious circumstances affecting him personally at the time of application in July 1998.

Was the visa applicant willing and able to provide substantial and continuing assistance to the nominator?

33. Whilst the visa applicant was willing and able to provide assistance to the nominator at the time of application, the Tribunal is not satisfied that any assistance provided by the visa applicant could properly be described as "substantial" for the purposes of regulation 1.03. In Hussein's case, Emmet J considered whether the presence of the mother of a teenage boy could bring her within the definition of a special need relative. Emmet J held:

There is also the finding that the presence of his mother enabled him to overcome his depression and sadness and enabled him to improve his achievements at school...all that that finding establishes is that a teenage boy will feel more comfortable when his mother is nearby and may be less comfortable if he is separated from his mother... the facts found bear an inference that, if Mrs Hussein is not permitted to remain in Australia, Aiyaz may well feel depressed and sad again. That, it seems to me, is the normal consequence that would ordinarily follow from the separation of parent and a child.

Such separation might be more or less significant according to the particular needs of the child. There is, however, no finding that there were particular needs that Aiyaz had beyond those that an ordinary healthy son would feel for his mother. No doubt if Mrs Hussein is not permitted to remain, his sadness could return. However, I do not consider that it was not open to the Tribunal to conclude on the basis of the findings made by it that there were no serious circumstances affecting Aiyaz, such that he needed "substantial and continuing" assistance from his mother. There is no suggestion in the findings that any particular assistance was likely to be furnished by Mrs Hussein to her son other than her mere presence in Australia.

34. In the present case, the Tribunal accepts that the visa applicant has a strong attachment to the nominator and his family, and at the time of application the visa applicant assisted the nominator by providing him with company, assurance and moral support, as well as helping out with household chores. However, the Tribunal notes the guidance in PAM 3 that companionship is not regarded, in the absence of other factors, as constituting a permanent or long-term need. Such a need is usually intended to cater for situations such as the death or serious illness of a spouse leaving a partner with ongoing and significant problems in both bringing up very young children and coping generally; or an incapacitating illness or disability creating a need for physical assistance in the home. None of these factors are present in this case. Consequently the Tribunal is not satisfied that the visa applicant's presence in Australia constitutes "substantial" assistance to the nominator.

35. The Tribunal has considered whether the decision of Moussa v Minister for Immigration and Multicultural Affairs [2002] FCA 92 (5 February 2002) indicates that the Tribunal is in error in applying Hussein to the present case. In Moussa, a prolonged illness was found to exist, so Hussein was irrelevant. That is not the situation here. The Tribunal considers that Hussein provides an example of a case similar to the present where it was reasonable to find that the nominator's mother was not a special need relative.

Can the assistance not reasonably be obtained from another relative or welfare, hospital, nursing or community services?

36. The nominator has other relatives in Australia who may well be able to jointly and collectively assist him if he does need substantial and continuing assistance: see Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24. The Tribunal notes that the claims of the nominator and the visa applicant that the nominator's three brothers in Melbourne could not provide assistance because they have their own family and work commitments, was not supported by any direct evidence from the brothers themselves. The Tribunal also notes that the nominator has not sought assistance from welfare, hospital, nursing or community services. In view of the above findings that the nominator did not have a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the nominator personally, or a member of his family unit, and that the assistance provided by the visa applicant was not substantial, it is not necessary for the Tribunal to make a finding in relation to this leg of the definition of special need relative.

37. For the above reasons, the Tribunal is not satisfied that the visa applicant was a special need relative at the time of application, so the visa applicant does not satisfy clause 806.213.

38. Apart from an increase in the visa applicant's working hours, his relocation closer to the nominator's residence, and a claim, unsupported by any evidence from a medical practitioner, that the nominator now suffers from hypertension and borderline diabetes, the material facts have not changed since the time of application. The nominator remains in full-time employment, the psychologist's updated report of August 2002 does not substantiate that the nominator has 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, and the assistance provided by the visa applicant is not substantial. Consequently the Tribunal is not satisfied that the visa applicant is a special need relative at the time of decision, so the visa applicant does not satisfy subclause 806.221(a). As the visa applicant had turned 18 before the application was lodged, subclause 806.221(b) does not apply, the visa applicant does not satisfy clause 806.221.

39. The visa applicant does not satisfy the criteria for the grant of the visa sought.

40. The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Change in Circumstance (Residence) (Class AG) visa.