Lee v Minister for Immigration and Multicultural Affairs

[1999] FCA 1693

FEDERAL COURT OF AUSTRALIA

Lee v Minister for Immigration & Multicultural Affairs [1999] FCA 1693

DORATHY SHAU MUN LEE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N998 of 1999

WILCOX J
SYDNEY
25 NOVEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N998 of 1999

BETWEEN:	DORATHY SHAU MUN LEE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	25 NOVEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant, Dorathy Shau Mun Lee, pay the costs of the respondent, Minister for Immigration and Multicultural Affairs.

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	N998 of 1999

BETWEEN:	DORATHY SHAU MUN LEE Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	WILCOX J
DATE:	25 NOVEMBER 1999
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

1. WILCOX J:  This is an application seeking judicial review of a decision of the Migration Review Tribunal. 

2. The applicant is Dorathy Shau Mun Lee, the niece of Sherry Wong Suk Hing Lee, whom I will call “the nominator”.  It appears the nominator is now elderly and in poor health.  She has been widowed for a number of years.  In 1996 she was living in her own apartment in Castlereagh Street, Sydney, in the Chinatown area.  Because of her health the applicant commenced to live with her, in order to care for her.  Another reason for her moving into the apartment building was that a tenant of the building had been murdered and the nominator was fearful of living alone.

3. It seems to be clear that, over several years, the applicant provided daily support and physical assistance to the nominator.  She seems to have done so in a devoted way.  This must have been a great benefit, not only to the nominator, but also to the members of her family.  The nominator has four adult children residing in or near Sydney.  They each have their own families and there is material in the file that demonstrates the difficulty they would have, in moving to their mother’s apartment in order to care for her there, or taking their mother into their own home.

4. The applicant applied for a family residence class AO visa on the basis of “special need relative”.  This term is defined by regulation 1.03 in the following way:

   “`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;”

5. The case for the applicant is, and was, that: one, the nominator is an Australian citizen usually resident in Australia; two, she, the applicant, is a relative who is able and willing to provide substantial and continuing assistance to the nominator; three, the nominator has a permanent or long term need for assistance because of disability and/or prolonged illness affecting her; and, four, that this assistance cannot reasonably be obtained from either of the sources mentioned in para (b) of the definition.

6. As I understand the history of the matter, there has never been any dispute about the contentions of the applicant, except in relation to para (b).  At successive stages of the decision making process within the Department of Immigration and Multicultural Affairs, the view was taken that para (b) was not satisfied because assistance could reasonably be obtained from one or more of the nominator's children.  When the matter went before the Tribunal, the factual situation had changed.  Whereas previously the nominator was living in her own apartment and had told her children that she would not consent to enter into a nursing home, by the time of the Tribunal hearing in August 1999 she had moved into a nursing home at Castle Hill.

7. I gather this change was caused, at least partly, by a deterioration in the nominator’s health.  She is cared for in the nursing home, at least in the sense that her physical and medical needs are attended to by the staff.  There was before the Tribunal an issue as to the extent to which her children keep in contact with her at the nursing home.  It was apparently accepted by the Tribunal that the applicant continues to see the nominator.  The applicant visits the nominator at the nursing home.  They apparently have a good relationship.  However, the Tribunal was not satisfied that para (b) applied in this case.

8. In her reasons for decision, the Tribunal member noted claims by the applicant that she was the only person able to provide for the psychological and emotional needs of the nominator and that the nominator’s children did not visit her; they were busy leading their own lives and not able to provide psychological and emotional support for their mother.  The member noted no psychological report had been submitted and there was evidence that the nominator has a continuing relationship with at least two of her children.  The Tribunal member did not accept that the nominator's children do not care for their mother.  The Tribunal member noted that the applicant does not attend to what she called “the daily needs” of the nominator; these are provided by the retirement village.  The member stated that, although the applicant claimed that the nominator had an emotional and psychological dependence on her, no independent evidence had been provided of this claim.  Furthermore, the member said, there was evidence that the nominator's medical condition is now serious and she suffers severe memory loss.  The Tribunal member said: 

   “I am not satisfied that the nominator has an emotional and psychological dependence on her niece.

   I am satisfied that the applicant regularly visits her aunt at the retirement village.  But I am satisfied that the nominator obtains assistance from other Australian relatives and from nursing services in Australia and that this assistance is substantial and continuing.  I am satisfied that the applicant does not provide substantial and continuing assistance to her nominator aunt.” 

   ,

   Accordingly, the Tribunal held that the requirements of the definition were not satisfied and affirmed the original decision not to grant the visa.

9. In support of the application for review Dr Berwick drew my attention to decisions of judges of this Court dealing with the definition of “special need relative” and its predecessors.  Those decisions emphasise the necessity to scrutinise the facts of the individual case, and that this scrutiny must be undertaken in a sensitive way, remembering that the needs of a person extend beyond physical needs.  They certainly include psychological and emotional needs. 

10. I do not think any of that is contentious, or was overlooked by the Tribunal in this case.  The passages from her reasons to which I have referred show the member addressed these questions.  The problem the applicant has, in my view, is that the Tribunal, considering the matter as at the date of the hearing, as it was bound to do, found that, at least at that time, para (b) was not satisfied.  The situation may have been different at an earlier point of time; I say nothing about that.  The Tribunal did not deal with the situation as it might have been whilst the nominator was still living in her own apartment, but needed somebody living with her to care for her daily needs.  The Tribunal had to consider the situation on the basis of the facts as they were in August this year, when the nominator was living in a nursing home where her daily needs were looked after by the staff and she had contact with at least two of her four children.  The Tribunal member was not satisfied the applicant made any contribution to the psychological or emotional needs of the nominator that was not supplied by any of the children. 

11. I emphasise that those are determinations of fact. The scheme of the legislation is that the Tribunal is the arbiter of the facts, not the Court.  The Court can only intervene if the Tribunal falls into an error of law, or some other error reviewable under s476 of the Migration Act.  There is no such error in this case.  The Tribunal has found the facts.  The case failed before the Tribunal because of those facts.  Whatever the applicant’s opinion about the Tribunal’s findings, there is no error that attracts the jurisdiction of this Court.

12. I have considerable sympathy with the applicant.  She has looked after her aunt in a devoted way.  This reflects great credit on her.  It is, perhaps, unfortunate for her that the matter came to be determined by the Tribunal at a time when the factual situation had changed.  However that may be, the Tribunal addressed the facts as they were at that time and reached conclusions which are not vulnerable to review in this Court.  Accordingly, the application must be dismissed.

    [An application was made for costs.]

13. The application will be dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             25 November 1999

Counsel for the Applicant:	Dr J Berwick
Counsel for the Respondent:	Mr R Lancaster
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	25 November 1999