Wu v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|1996-11-29|Before: Lehane JJ, Branson J

INTRODUCTION 1 By an application dated 5 October 1999 the applicant ("Ms Wu") has sought review of a decision of the Migration Review Tribunal ("the Tribunal") whereby the Tribunal affirmed a decision to refuse Ms Wu a subclass 806 - Family, (Class AG) Change in circumstances (Residence) visa or any other subclass of visa in the same class. The applicant claims to be a "special need relative" of one or other or both of her de facto husband, Mr Weng, or their infant son, Norris Weng. 2 No grounds of review under s 476(1) of the Migration Act 1958 (Cth) ("the Act") are identified by the application which appears to have been completed without legal assistance. However the respondent did not move for the summary disposal or stay of the proceeding. At the hearing Mr Weng, who is not a legal practitioner, was granted leave to appear on behalf of Ms Wu.

Statutory Provisions 3 Ms Wu applied for a subclass 806 - Family (Class AG) Change in circumstances (Residence) visa on 5 December 1997. The critical criterion so far as her application was concerned was that she was a "special need relative" of an settled Australian citizen usually resident in Australia or a settled Australian permanent resident usually resident in Australia (Schedule 2, Migration Regulations 1994). Each of Mr Weng and Norris Weng is a citizen of Australia. At the time of Ms Wu's application, "settled" and "special need relative" were defined in regulation 1.03 of the Migration Regulations 1994 as follows: '… "settled", in relation to an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means lawfully resident in Australia for a reasonable period; … … "special need relative", in relation to an Australian citizen usually resident in Australia [or] an Australian permanent resident usually resident in Australia … 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 a 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 [or] an Australian permanent resident …; (ii) welfare, hospital, nursing or community services in Australia;'

EVIDENCE 4 A number of medical certificates and pathology reports concerning Mr Weng and Norris Weng was placed before the Tribunal. Some of these certificates were regrettably omitted from the book of Relevant Documents prepared by the legal representatives of the respondent. However, this omission was rectified at the hearing when Mr Weng tendered the omitted certificates which were received in evidence without objection. 5 The certificates reveal, as to Norris Weng, that: (a) in December 1997 a medical specialist from the Ashfield Eye Clinic was of the opinion that Norris Weng should be reviewed in one year; and (b) in May 1998 Norris Weng was suffering from urinary tract infection and was under antibiotic treatment; The certificates reveal, as to Mr Weng, that: (a) in December 1997 he was diagnosed as having "chronic hepatitis, weakness" with a prognosis that his incapacity was not likely to last for more than six months; and (b) in February 1998 he was diagnosed as having "chronic liver disease" with a prognosis that his incapacity was not likely to last more than six months. The pathology reports appear to provide support for the diagnosis in Norris Weng's case, of urinary tract infection, and in Mr Weng's case, of a degree of liver dysfunction. 6 Ms Wu provided a written statement to the Tribunal. In it she stated that the eyes of her recently born son, Norris Weng, were seriously infected when he was born and that his eyes needed to be reviewed in one year. She also stated that tests indicated that Norris Weng was suffering from a urinary tract infection and that he "has some other diseases since he was born." No details of such diseases were provided. The statement indicated that a doctor's certificate would be provided but it does not appear that medical certificates other than those referred to above were provided to the Tribunal. 7 By her statement Ms Wu also asserted that Mr Weng had suffered from chronic hepatitis for some time, and that test reports indicated that his liver has been abnormal since December 1995. I am prepared to assume that the pathology reports referred to above support this claim although they do not contain an express statement to that effect and I am not qualified to interpret them. 8 In her statement Ms Wu asserted:

"3. Both my spouse and I have no other relatives living in Australia who is an Australian citizen or an Australian permanent resident. 4. My spouse could not look after Norris who could not obtain assistance from some community service in Australia because he is so young. It is a serious circumstance without his mum's care with my son. 5. My spouse needs my care because no one can prepare the Chinese medecine (sic) for him during his long-lasting illness."

REASONS OF THE TRIBUNAL 9 The Tribunal at paras 7-11 of its decision stated: "7. The only evidence presented in support of this application is to the following effect: The Applicant is 41 years of age, living in a defacto relationship with 1 child. The applicant attended a hearing on 29 July 1999 without the nominator. The father of the nominator did not attend the hearing, as he was at home caring for the child. The Tribunal asked for evidence that the father was an Australian citizen and his passport was produced. The files contained evidence of certain health problems of the nominator, but under questioning the Applicant could not establish that any follow up treatment or examinations of the child were undertaken for some considerable time since the first claims of medical problems were made. Claims were made, in the file and at the hearing, as to the health problems of the father of the child. The evidence given by the Applicant confirmed that the father was well enough to travel to China during April/May 1997. The Applicant conceded that she wanted to stay in Australia to care for her son, as she did not trust the father to care for the child on a correct and proper basis. The medical evidence discloses only minor matters, which have not been supported by medical evidence that would bring the Applicant within the definition of a special care relative. 8. The mere fact that the Applicant is the mother of an Australian citizen child, is not sufficient, in itself, for the Applicant to have grounds to apply for an entry permit "as a special needs relative". The Tribunal has previously held that childhood alone is not a "disability" or "other serious circumstance" giving rise to a need for assistance within the definition of a "special need relative". There must be evidence that the child has some illness or disability beyond merely being a child and there is no such evidence in this case. 9. The above is essentially the evidence. 10. Based on the evidence, I find that the definition of special need relative is not met. 11. The only evidence of assistance which is needed in this case is for domestic assistance and for babysitting. Such need for assistance does not satisfy the relevant part of the definition of special need relative as set out earlier, because it does not arise from death, disability or other serious circumstances effecting the Nominator or a member of his family unit."

CONSIDERATION 10 As the application identifies no grounds of review under s 476 of the Act, it has been necessary to give consideration to the matters raised by Mr Weng for the purpose of determining whether they give rise to a ground of review under s 476 of the Act. I have also considered whether the written reasons of the Tribunal reveal the existence of a ground of review under s 476 of the Act having regard to the evidence and other material before the Tribunal. 11 In Shan E Huang v Minister for Immigration & Ethnic Affairs (Jenkinson, Hill and Lehane JJ, 29 November 1996, unreported) Hill J, with whom Jenkinson and Lehane JJ agreed on this point, held that the definition of "'special need relative' … should not be construed so as to include every case involving a child of tender years unable to care for himself or herself." His Honour observed that "[i]t is hardly conceivable that the expression "serious circumstances" should reflect merely the tender age of a person." 12 Having regard to the Full Court decision in Shan E Huang, the Tribunal rightly concluded that the mere fact that Ms Wu is the mother of Norris Weng is insufficient to establish that Ms Wu is a "special need relative" of her son. The medical evidence concerning Norris Weng was slight and rightly characterised by the Tribunal as disclosing "only minor matters." It did not compel a conclusion that Norris Weng had "a permanent or long-term need for assistance because of … disability, prolonged illness or other serious circumstances." I reject the argument which I understand Mr Weng to have advanced, that the conclusion of the Tribunal as to Norris Weng indicates that the Tribunal must have misconstrued regulation 1.03 of the Migration Regulations 1994. 13 The finding of the Tribunal that Mr Weng had been well enough to travel to China during April/May 1997 was also criticised by Mr Weng on Ms Wu's behalf. Initially Mr Weng contended that Ms Wu had not given evidence that Mr Weng had travelled to China during April/May 1997. As the transcript of the hearing before the Tribunal was not at that time before the Court, the hearing was adjourned to allow the transcript to be obtained. When obtained, the transcript clearly showed that Ms Wu had given evidence that Mr Weng had travelled to China in 1997. Mr Weng then contended that Ms Wu was nervous before the Tribunal and made a mistake. Having read the whole of the transcript of the Tribunal hearing and seen Ms Wu's statements concerning Mr Weng's travelling to China in their context, I am unable to accept this explanation. In particular I note that Ms Wu gave evidence that Mr Weng travelled to China while she was pregnant. As Norris Weng was born on 9 November 1997, it seems that Ms Wu would have been pregnant in April/May 1997. I find it difficult to accept that nervousness would cause Ms Wu to make an error in her evidence to the Tribunal as to whether or not her husband had left her during the early stages of her pregnancy to travel to China. More importantly, having regard to the terms of s 476(1) of the Act, I am satisfied that there was evidence before the Tribunal capable of justifying its finding that Mr Weng was well enough to travel to China during April/May 1997 (s 476(1)(g)). 14 Although the Tribunal did not deal expressly with Ms Wu's assertion that no one apart from her is able to prepare the Chinese medicines required by Mr Weng, I do not consider it proper to assume that the Tribunal overlooked this aspect of Ms Wu's application. It seems plain that the Tribunal concluded that Mr Weng does not have a permanent or long-term need for assistance from Ms Wu because of a prolonged illness. There was evidence before the Tribunal, including the medical certificates placed before the Tribunal concerning Mr Weng, capable of justifying that conclusion (s 476(1)(g)). 15 Indeed, I am satisfied that no ground of review provided for by s 476(1) of the Act can be identified so far as the decision of the Tribunal is concerned. In particular, I see no reason to conclude that the Tribunal made any error of law in its interpretation of the definition of "special need relative" or in its application of that definition to the facts as found by it. 16 The application must be dismissed with costs. I note, however, that there is apparently another class of visa for which Ms Wu may apply from outside Australia, which would appear to be designed to allow a person in her situation to reside in Australia with her spouse and child.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Dated: 17 May 2000 Mr Sheng Li Weng appeared on behalf of the applicant with the assistance of an interpreter

Counsel for the Respondent: Ms S. McNaughton

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 9 March and 12 April 2000

Date of Judgment: 17 May 2000

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