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MIGRATION - Special need relative - whether nominator required assistance because of prolonged illness - whether nominator required assistance because of other serious circumstances.

Wahab v Minister for Immigration [2004] FMCA 788 (12 November 2004)

Wahab v Minister for Immigration [2004] FMCA 788 (12 November 2004)
Last Updated: 22 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAHAB v MINISTER FOR IMMIGRATION
[2004] FMCA 788




MIGRATION - Special need relative - whether nominator required assistance because of prolonged illness - whether nominator required assistance because of other serious circumstances.




Judiciary Act 1908, s.39B

Migration Regulations 1994, r 1.03, sch 2, cl.806

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

Hussein v Minister for Immigration and Multicultural Affairs [1999] FCA 1621

Wu v Minister for Immigration and Multicultural Affairs [2000] FCA 1817, 105 FCR 39 at [17]

Hussein v Minister for Immigration and Multicultural Affairs [1999] FCA 1621 at [20]

Applicant:
MOHAMED SHIRAZ WAHAB




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


MZ 1021 of 2003




Delivered on:


12 November 2004




Delivered at:


Melbourne




Hearing date:


16 August 2004




Judgment of:


Phipps FM




REPRESENTATION

Counsel for the Applicant:


Mr Kissane




Solicitors for the Applicant:


Ravi James




Counsel for the Respondent:


Dr Donaghue




Solicitors for the Respondent:


Australian Government Solicitor




ORDERS

(1) The Application is dismissed.

(2) The Applicant pay the Respondent's costs fixed at $6,000.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE



MZ 1021 of 2003

MOHAMED SHIRAZ WAHAB



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1908 for review of a decision of the Refugee Review Tribunal given on 24 June 2003. The applicant sought a visa claiming that his uncle was a "special need relative". The application for the visa was refused.

2. The applicant is a citizen of Sri Lanka. He arrived in Australia on

7 July 1996 as the holder of a student visa which was cancelled when he did not commence the course in which he had enrolled. He was subsequently granted a Sri Lankan temporary Visa (subclass 435) which was valid until 31 July 1997. He applied for a further subclass 435 visa but on for August 1997, that application was rejected.

3. On 30 July 1998, he lodged an application for a Changed Circumstance (Residence) (class AG) visa, subclass 806 on the basis that he was a special need relative of his uncle, the nominator.

4. On 24 January 2002, a delegate of the respondent refused to issue the visa. On 21 February 2002, the applicant sought review of that decision in the Migration Review Tribunal. On 24 June 2003, the Tribunal affirmed the delegates decision to refuse to grant the visa.

5. On 16 July 2003, the applicant commenced proceedings in the Federal Court of Australia in which he sought to have the decision set aside in the matter remitted to the Tribunal. The proceeding was then transferred to the Federal Magistrates Court.

6. The critical criterion to be satisfied by the applicant found in cl. 806.213 of schedule 2 of the Migration Regulations 1994. This clause provids that at the time of application the applicant must be a "special need relative" of, relevantly, an Australian citizen, who has nominated the visa applicant for the grant of the visa. By reason of clause 806. 221, the visa applicant must continue to satisfy the criterion in clause 806.213 at the time of decision.

7. The term "special need relative" 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;

8. The applicant was nominated for the visa by his uncle. The nominator arrived in Australia in 1974 and became an Australian citizen in 1980. He was aged 53 at the time of the Tribunal's review. At the time of the application for the visa, the nominator lived in Bundoora with his wife and three children (aged between 15 and 23 years). The applicant was single and living in Brunswick.

9. The applicant stated that the nominator had emotional and psychological needs, that he provided the nominator with emotional and psychological support, and that the nominator required his long-term assistance. The applicant claimed that the nominator was suffering from serious depression. The applicant stated that the nominator had other relatives in Australia but the applicant was the only one who was willing and able to provide the assistance required.

10. In support of the application, a report dated 30 July 1998 by a psychologist, Mr Edwin Kleynhans, was submitted. That report said that the nominator was worried about the visa applicant's welfare if he had to return to Sri Lanka. It said that psychological tests showed that the visa applicant recorded a serious level of depression and extreme level of anxiety, while the nominator recorded a minimum level of depression and minimal anxiety. The report said that if the visa applicant had to return to Sri Lanka, the nominator's depression was likely to become progressively worse and he could record severe anxiety.

11. A further report dated 19 August 2002 was provided. Mr Kleynhans said in that report 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 was more worried about his health condition than in 1998. The nominator suffers from hypertension and hypercholesterolemia for which was taking medication. He was fearful of developing diabetes later in life.

The Tribunal's findings

12. The Tribunal noted that in Jun v Minister for Immigration and Multicultural Affairs [2000] FCA 867, the Full Court of the Federal Court held that when considering whether a visa applicant was a special need relative at the time of application and the time of decision, the Tribunal must address each aspect of the definition of special need relative. The Tribunal proceeded to carry out that task.

13. It found that the nominator was a relative as defined in r.1.03 and an Australian citizen who is settled and usually resident in Australia.

14. The Tribunal said that it was not contented that the nominator or a member of his family unit had a permanent or long-term need for assistance because of death or disability. The nominator, and visa applicant, contended that the nominator required assistance because of "prolonged illness or other serious circumstances". The claim related to his need for emotional and psychological support.

15. The Tribunal referred to the psychological report of 30 July 1998 which stated that the nominator had a minimal level of depression and minimal anxiety at the time of application. The Tribunal noted that the nominator and the visa applicant saw the psychologist on one occasion, the day before the application under review was lodged. The nominator had not previously sought treatment from a psychologist, psychiatrist or any other professional body for stress or anxiety. The Tribunal also took into account that the psychologist did not recommend that the nominator seek further specialised treatment for depression and anxiety.

16. The Tribunal referred to material obtained from the Department of Human Services web site concerning depression. The tribunal said that the psychologist had not diagnosed that the nominator suffered from mental illness characterised as clinical depression. The web site described a wide variety of treatments. The psychologist had not recommend any of these treatments. The only "treatment" he proposed was that the visa applicant be permitted to remain in Australia. The tribunal concluded that it was not satisfied that at the time of application, the nominator suffered from a prolonged illness.

17. The Tribunal considered whether assistance was required because of "other serious circumstances". It said that this must be considered in the context of a new company phrases "death, disability and prolonged illness". The Tribunal referred to Hussein v Minister for Immigration and Multicultural Affairs [1999] FCA 1621. The Tribunal concluded that there was not "other serious circumstances".

18. The Tribunal concluded that while the applicant was willing and able to provide assistance to the nominator at the time of application, it was not satisfied that any assistance provided by the applicant could properly be described as "substantial" for the purposes of regulation 1.03. The tribunal accepted that the applicant had a strong attachment to the nominator and his family, and at the time of application, the applicant assisted the nominator by providing him company, assurance and moral support, as well as helping out with household chores. The Tribunal was not satisfied that this assistance could be described as "substantial".

19. The Tribunal considered whether assistance could be obtained from another relative, welfare, hospital, nursing or community services. It said that the nominator had other relatives in Australia who may well be able to jointly and collectively assist if he needed substantially continuing assistance. The tribunal said that the claims of the nominator and the applicant that the nominator's 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 noted that the nominator had not sought assistance from welfare, hospital, nursing or community services. However, because of other findings, the Tribunal considered it wasn't necessary to make a finding in relation to this part of the definition of special need relative.

20. The tribunal said that apart from an increase in the visa applicant's working hours, his relocation closer to the nominator's residence, and the claim unsupported by any evidence from a medical practitioner that the nominator now suffers from hypertension and borderline diabetes, the material facts had not changed at the time of application. The nominator remained in full-time employment. The psychologist's updated report of August 2002 could not substantiate that the nominator 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 assistance provided by the applicant was not substantial.

The applicant's arguments and conclusion

21. It was submitted that the Tribunal had not addressed the material issue. By relying on material from the Department of Human Services web site, it was in error in deciding that the applicant suffered from clinical depression. It was submitted that the Tribunal should have considered whether there was prolonged illness because of depression needing emotional and psychological support which might get worse if the applicant returned to Sri Lanka. It was submitted that by considering whether the nominator was suffering from clinical depression it had not addressed the material issue which issue.

22. A second submission was that the Tribunal was in error in considering other serious circumstances in the context of "death, disability and prolonged illness".

23. It was submitted that in deciding whether the applicant was able to provide "substantial" assistance, it should have considered whether company and support, as provided by the applicant, amounted to substantial assistance.

24. The need for assistance must be a present one, that is, at the time of application and at the time of hearing. The definition does not comprehend situations where the need might arise in the future. (Wu v Minister for Immigration and Multicultural Affairs [2000] FCA 1817, 105 FCR 39 at [17], Hussein v Minister for Immigration and Multicultural Affairs [1999] FCA 1621 at [20]). The only evidence before the Tribunal of the nominator's condition at the time of application was the psychologist's report. It is clear from that report that the nominator did not have a need for assistance at that time. The only possibility of a need for assistance might be if the applicant returned to Sri Lanka. The tribunal decided as a matter of fact that the nominator did not have a prolonged illness which gave rise to a need for assistance. The Tribunal did consider whether the nominator's depression, described in the report as needing emotional and psychological support, was a prolonged illness which gave rise to the need for assistance. It decided it did not It made the same decision about other serious circumstances. There was no error made by the Tribunal.

25. Similarly, with the other matters of fact decided by the Tribunal. I t was a question of fact for the Tribunal to decide whether the company and support provided by the applicant amounted to substantial assistance. There was no error in deciding that it did not.

26. No jurisdictional error is shown. The application was dismissed

I certify that preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: Sherryn Kwong

Date: 24th November 2004
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