Chow v Minister for Immigration & Multicultural & Indigenous Affairs

Case [2003] FCAFC 88

FEDERAL COURT OF AUSTRALIA

Chow v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCAFC 88

MIGRATION – appeal from decision of single judge dismissing application for review of decision of Migration Review Tribunal affirming decision not to grant a Change in Circumstance (Residence) (Class AG), Subclass 806 visa – whether Migration Review Tribunal erred in not considering whether the appellant’s father and stepmother had a  ‘permanent or long-term need’ for ‘substantial and continuing assistance’ – where Migration Review Tribunal found that the appellant’s father and stepmother had ‘prolonged illness’ – where Migration Review Tribunal considered whether the appellant was ‘willing and able to provide substantial and continuing assistance’ – no error established – appeal dismissed

Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 31, 474
Migration Regulations 1994 (Cth) regs 1.03, 2.01, 2.02, 2.03, Sch 1, Items 1107, 1105, Sch 2, cl 806

Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459 cited
Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 cited
Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24 cited

JU CHIEN CHOW v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N3 OF 2003

MOORE, EMMETT & BENNETT JJ

9 MAY 2003

SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N3 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

JU CHIEN CHOW
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGES:

MOORE, EMMETT & BENNETT JJ

DATE OF ORDER:

9 MAY 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.the appeal be dismissed;

2.the appellant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N3 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

JU CHIEN CHOW
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGES:

MOORE, EMMETT & BENNETT JJ

DATE:

9 MAY 2003

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. The appellant is a national of the Republic of Singapore, who entered Australia on 6 April 1993 under a visa that was valid until 16 February 1994.  On 11 February 1994, the appellant applied for another visa.  That application was refused on 22 March 1994.  The refusal was affirmed by an officer of the Migration Internal Review Office on 8 June 1994 and then by the Immigration Review Tribunal on 7 December 1994. 

  2. On 10 April 1995, the appellant was granted a bridging visa for a period of two weeks and, on 24 April 1995, the appellant applied for a Change in Circumstance (Residence) (Class AG) visa.  On 10 January 2000, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), decided to refuse to grant a visa.  On 3 February 2000, the appellant lodged an application for review of that decision by…

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AGLC
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 88
Case
[2003] FCAFC 88
Decision Date

CaseChat Overview and Summary

The matter of Chow v Minister for Immigration & Multicultural & Indigenous Affairs was heard in a relevant Australian court, where the central issue revolved around the eligibility of Chow for a visa under Subclass 806. Chow’s application for a visa was predicated on his status as a special need relative of his father, a settled Australian citizen. The Tribunal determined that Chow's father and stepmother have prolonged illnesses, but it was uncertain whether the nature of the assistance Chow provided fell within the definition of a special need relative as outlined in the regulations.

The legal issues before the court encompassed the interpretation and application of the relevant regulations defining 'special need relative'. Specifically, the court needed to assess whether Chow's assistance to his father and stepmother constituted 'substantial and continuing assistance' that could not reasonably be obtained from other sources. Chow argued that his caretaking duties, including household chores, medical appointments, and emotional support, met the criteria. However, the Tribunal was skeptical about whether these activities were sufficiently distinct and beyond what could be reasonably sourced from other relatives or community services.

In its reasoning, the court closely examined the evidence presented regarding Chow's daily assistance and the specific health conditions of his father and stepmother. While Chow provided detailed accounts of his support, the court found that the nature of his assistance, though extensive, did not clearly satisfy the stringent requirements for a special need relative under the regulations. Consequently, the court upheld the Tribunal's decision that Chow did not meet the necessary criteria, leading to the dismissal of his appeal. As part of the final orders, Chow was required to pay the respondent's costs.

Orders

Orders of the court

1. the appeal be dismissed;

2. the appellant pay the respondent’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Under reg 1.03, ‘relative’ in relation to a person includes a close relative. The term ‘close relative’ in relation to a person includes a child of the person. Under reg 1.03, the term ‘special need relative’, in relation to an Australian citizen usually resident in Australia, relevantly 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 …, or (ii)welfare, hospital, nursing or community services in Australia.’THE TRIBUNAL’S DECISION The appellant’s application for a visa was assessed against Subclass 806. There has been no suggestion that he was eligible for any other subclass of visa. The appellant was nominated for the grant of a visa by his father who, the Tribunal found, is a settled Australian citizen who is usually resident in Australia. Thus, the relevant criterion set out in cl 806.213 would be satisfied if the appellant is a special need relative of his father. The Tribunal found that the appellant’s father and his wife, the appellant’s stepmother, have prolonged illnesses. However, the Tribunal doubted that the nature of the assistance required by the appellant’s father and stepmother came within the definition of special need relative. The appellant gave evidence before the Tribunal that he had been providing substantial and continuing assistance to his father and stepmother in the following ways: taking care of his father, who remains at home due to his ill health, by cooking, cleaning and generally taking care of the home and taking his father to the doctor for his medical appointments; taking care of his stepmother by caring for his father and maintaining the family home so that she still can continue to work, though this is difficult for her due to her own ill health; providing emotional support to his father and stepmother, whose health would deteriorate if he had to leave Australia; driving his father and stepmother when they need to go out; interpreting and translating for his father and stepmother. At a hearing before the Tribunal, the appellant’s father gave evidence that he gets light headed and has to sit down and wait for a few minutes before he recovers. The appellant said that he assists his father by doing all the house work, taking him to the doctor and taking him to do the shopping. When his father becomes light headed, the appellant gives him a glass of water and stays with him until he recovers. The appellant also said that his father and stepmother need assistance on a 24 hour basis in case there is an emergency with his father and his stepmother is not strong enough to deal with the emergency. The appellant’s stepmother said that she needs the appellant’s assistance as her hand and arm get sore at work. She said that, if she sits too long, her back aches and, if she stands too long, her feet swell. The appellant assists her by doing all the household chores so she does not have to do any of them when she comes home from work. If her feet are sore, the appellant massages them and brings her a meal in bed.

Ratio Decidendi

Legal Principle Established

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