Low, Y.Y. v Minister for Immigration, Local Government & Ethnic Affairs

[1989] FCA 743

Re: YUEH YUNG LOW
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
and RUTH SHARKEY
No. NG343 of 1989
FED No. 743
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.(1)

CATCHWORDS

Administrative Law - immigration - application for resident status - Claim of strong compassionate and humanitarian reasons - Applicant brought up by elderly aunt and uncle now resident in Australia and wishing to care for them in their own home - Reference by delegate to availability of community support services - Whether delegate entitled to proceed on basis that those services would be available to aunt and uncle - Relationship between duty of decision-maker to enquire into facts and the nature of the issue tendered for determination.

Migration Act 1958 s.6A.

HEARING

SYDNEY

#DATE 10:11:1989

Counsel for the Applicant: Dr G A Flick

Solicitors for the Applicant: Barrie Goldsmith & Company

Counsel for the Respondents: Mr T S Murphy

Solicitors for the Respondents: Australian Government Solicitor

ORDER

1. The Application be dismissed.

2. The applicant pay to the respondents their costs of

the proceeding.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. (See also Order 37 rule 2(3)). rule 2(3)).

JUDGE1

This application is made under the Administrative Decisions (Judicial Review) Act 1977 by way of challenge to a decision made by the second respondent as delegate of the first respondent, refusing an application by the applicant, Yueh Yung Low, for the grant to her of resident status.

1. The applicant was born in China in 1929. She was brought up by her uncle and aunt to the age of 18 years. In about 1947 the uncle and aunt migrated to Australia and have since lived in this country with the status of permanent residents. The applicant remained in China with members of her own family. She subsequently moved to Hong Kong, married and had four children who are still resident in Hong Kong, but who plan to migrate to the United States of America or Canada.

2. In 1987 the applicant came to Australia with her husband for the purpose of visiting her uncle and aunt and also two of her brothers who are permanent residents of Australia. When the applicant came to Australia she found her aunt and uncle, who were then aged respectively 78 and 81 years, were in poor health; apparently the aunt suffered from diabetes and had had two heart attacks. The uncle was nearly completely deaf and had problems of mobility.

3. The applicant and her husband moved into the home of the aunt and uncle at Brighton le Sands, where they have since resided. On 3 September 1987 applications for permanent resident status were made by both the present applicant and her husband. The ground of the applications was the ground specified in s.6A(1)(e) of the Migration Act 1958, namely the existence of "strong compassionate or humanitarian grounds for the grant of an entry pemit".

4. In the applications and supporting letter the case was argued for the grant of resident status to enable the applicant and her husband to live with and care for the aunt and uncle. The point was made that the applicant's relationship with her aunt was closer to that between a daughter and mother than between niece and aunt, because the aunt had cared for her throughout her childhood.

5. The initial application was assessed and a recommendation for refusal made. This recommendation was adopted and the application was refused, the refusal being notified by a letter dated 11 March 1988. The applicant requested a re-examination of the matter and further material was submitted to the Department. The whole of the material went to the Immigration Review Panel, which recommended that the previous decision be maintained. That recommendation was considered by the second respondent, who is the Regional Director, Southern Region, of the Department. It was adopted.

6. The application which was made to the Court is put upon a number of legal grounds, not all of which have been pressed. The pressed grounds are: failure to take into account relevant considerations, unreasonableness, error of law, no evidence and denial of natural justice. Notwithstanding the multiplicity of grounds and the inclusion therein of a natural justice point, there is really only one substantial matter which has been argued in support of the application. That point is that the decision which was made by the second respondent made an assumption as to facts in relation to a critical matter without there being any material to justify that assumption. This is said to be a failure to take into account a relevant consideration. Furthermore, it is said that, because of a failure to realise that the facts were not as assumed, the decision was unreasonable. It is said that the decision-maker made an error of law in making a decision based on a fact in the absence of evidence of that fact. And it is also said to be a denial of natural justice to reach a conclusion in the absence of evidence.

7. In support of his submissions, counsel has referred to what was said in Secretary of State for Education and Science v Tameside Metropolital Borough Council (1977) AC 1014, by Lord Diplock at pp 1064-1065, namely:
   

"It is not for any court of law to substitute its own opinion for his; but it is for a court of law to determine whether it has been established that in reaching his decision unfavourable to the council he had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the Act he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider: see Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223, per Lord Greene M.R., at p 229. Or, put more compendiously, the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?"

See also Queen v Panel on Take-overs and Mergers; Ex parte Guinness PLC (1989) 1 All ER, 509 at p 539.

1. I accept that it was the duty of the decision-maker in the present case to ask herself the right questions in relation to the applications which were before her and to take reasonable steps to acquaint herself with the information necessary to enable her to answer those questions correctly. The question at issue is whether or not Ms Sharkey failed in this duty.

2. As to the first matter, it is not contended that Ms Sharkey failed to ask herself the right question. Ms Sharkey was called to give evidence by counsel for the applicant. She gave evidence as to the matters which she considered. In the course of this evidence, she said that she asked herself the question whether or not there existed strong compassionate and humanitarian reasons in favour of the grant of the applications. This was, of course, the right question to ask. Consequently, the real question in the case is whether Ms Sharkey failed to obtain the necessary information to equip herself to answer that question.

3. The case which was made by the applicants in their original applications to the Department was that they were best placed to assist the aunt and uncle in their declining years and poor state of health. In their applications they revealed that the aunt and uncle had three daughters of their own, who resided in Sydney; but each of these daughters had her own responsibilities. Indeed, each of them had two children. Two of the daughters lived at Winston Hills. One, apparently, lived at Eastwood. So none of them live very close to the aunt and uncle at Brighton le Sands. Notwithstanding this, they were in contact with their parents and saw them as often as they could.

4. Each of the daughters signed a letter in support of the applications for permanent resident status. In the course of that letter each daughter indicated, firstly, her belief that the applicants were best placed to look after her parents and, secondly, that she was prepared to provide whatever financial assistance would be required, either in relation to the parents or the two applicants.

5. The persons within the Department who assessed the original applications were unpersuaded that the circumstances warranted the description of a strong compassionate or humanitarian case. They did not traverse the suggestion that the applicants could and would satisfactorily look after the aunt and uncle, but they took the view that the presence of other immediate family militated against the necessity for the grant of the permits which had been sought. In the course of discussing the matter, they referred to the existence of normal community health and support services.

6. When the request for reconsideration was made by the present applicant, she set out a number of additional matters. In some respects, she amplified her earlier application. A letter dated 6 June 1988 was sent to the Immigration Review Panel, which argued at some length -- and very cogently -- the case for the applicants to be granted the permits they seek. The applicant obviously had a copy of the assessor's report because she referred to various aspects of the assessment and, in effect, responded to the comments which the assessor had made. One of those comments dealt with the possibility of the needs of the aunt being met by other relatives and community support services. Reference was made to the fact that the three daughters resided in the Sydney area, but that they had their own responsibilities which limited their time. Reference was also made to the aunt's physical condition and the necessity for assisting her, even in everyday activities. A similar comment was made about the inability of the uncle to look after himself. This section of the letter ends with the comment: "My cousins simply cannot provide that level of support. They have their own family lives and their own homes to care for".

7. The applicant then went on to deal with community support services. In this section of her letter she said this:
   

"I do not suggest that it is absolutely IMPOSSIBLE to locate some form of community support or private nursing facility to look after my aunt and uncle. I have no doubt that, were my cousins to make the effort, they would be able to pay a nursing service to provide a live-in nurse for my aunt and uncle.

Nonetheless, this is neither the answer nor is it reasonable. It is also prohibitively expensive. My aunt and uncle speak very little English - this also does not appear to be challenged - and they converse in Mandarin. In the circumstances, even if my cousins were to endeavour to obtain the services of a live-in nurse, that person would have to be Mandarin-speaking.

It would be highly unlikely that they would be able to find such a person. Even if they were, I still do not believe that this would be a reasonable or appropriate course."

1. Later on in the letter, and in connection with another paragraph of the assessor's report, the applicant said this:
   

"I cannot dispute the Assessor's final conclusion that:

i) It is POSSIBLE to obtain some community support;

ii) It is POSSIBLE for my three cousins to look after my aunt and uncle; and iii) It is POSSIBLE to pay for a live-in, 24-hour per day, 7-day per week nurse. All of those things are POSSIBLE although, with respect, they are not reasonable nor are they appropriate briefly because: i) It will be difficult, if not impossible, to find, from community support groups, a suitable Mandarin-speaking person; ii) My three cousins all have their own extensive domestic commitments; and iii) The cost of paying for live-in, 24-hour per day, 7-day per week care would be prohibitive and this would not, in any event, be appreciated by my aunt and uncle. I say this because the concept of live-in, professional care is not a Chinese one nor is it recognised by Chinese communities. To the opposite, it is contrary to Chinese tradition and because of the existence of family members locally, would be considered as demeaning and insulting."

1. As I have said, notwithstanding these further submissions, the decision made by the Immigration Review Panel and by the delegate was adverse to the applicants.

2. The criticism which is made of the decision of the delegate is that she proceeded on the basis that community facility and support services would be available, if needed, to supplement whatever care and assistance could be given by the three daughters of the aunt and uncle; whereas, so it is said, there was no evidence before the delegate to support that assumption.

3. During the course of her examination, Ms Sharkey was asked as to her knowledge of community facilities. It turned out that she lived in the Brighton le Sands area and she said that she was aware that there were 30 or 40 private nursing homes in that area, together with various homes run by charitable organisations. She did not enquire of any nursing home as to vacancies, so as to establish that places in any particular home would be available to the aunt or uncle if needed; nor did she make any enquiries as to the extent of the demands placed upon those institutions by members of the public or as to the area from which they drew their patients. Nor did she make any enquiries as to the cost of nursing home facilities.

4. The submission put on behalf of the applicant is that the delegate erred in making the assumption that community facilities would be available and, in particular, nursing home facilities, without checking that there would, in fact, be vacancies, or checking that the cost would be affordable by the aunt and uncle and/or members of their families.

5. As I have said, I agree that it is incumbent upon a decision-maker to obtain the necessary facts to enable a decision to be made. But that duty must be considered in the context of the application which is made to the decision-maker. There will often be cases where a particular proposition of fact is accepted by the applicant so as to render it unnecessary to check out the precise detail. In other words, it can be said to be common ground between the applicant and the decision-maker.

6. It seems to me that this is such a case. As I have said, the basis of the application was not that there was no other alternative for the care of the aunt and uncle other than them being cared for by the applicant and her husband; but, rather, that this was the best solution. There was no case put that they would not be able to obtain access to a nursing home, or that nursing home access could not be afforded; but, rather, that this was an inferior solution to them remaining in their own home and being cared for by a person who was regarded by them as in the position of a daughter, and her husband.

7. It is true that, in the passage from the letter of 6 June 1988 which I have quoted, a statement is made about the cost of a live-in nurse being "prohibitive". But I do not think that the word "prohibitive" was intended to be construed literally. To so read the word would be to impose a contradiction between that and what immediately precedes it, in which the applicant conceded that, if her cousins were to make the effort, they would be able to pay for a nursing home service to provide a live-in nurse. I think it is noteworthy that that is a solution which was being canvassed, rather than admission to a nursing home itself. But, even if the latter solution be one which may unfortunately become necessary, the material before the decision-maker would have justified her belief that it was unlikely that financial considerations would preclude admission to a nursing home. She had before her letters from all three daughters, and also the brother of the present applicant, all of whom pledged their financial assistance in doing whatever was necessary for the welfare of the aunt and uncle.

8. It appears, from her evidence, that Ms Sharkey has been an officer of the Department of Immigration for some 25 years. For the last 20 years, she has been involved in the settlement area. She says that, during that time, she has acquired a fairly sound general knowledge of the community facilities available in Sydney. I do not doubt that, at the time of her decision, she had a general appreciation of the availability of nursing home accommodation and some idea of the level of costs involved. I do not think that it was necessary for her to obtain precise details of these matters before acting on the assumption that, with the financial assistance of no less than four separate families, if it came to the point, nursing home accommodation was likely to be available to the aunt and uncle.

9. A matter such as this has to be assessed in a realistic manner, having regard to the real question which the decision-maker has to determine; not in a pedantic way, involving an unnecessary administrative burden.

10. I must say that I have considerable sympathy with the applicant and her husband. There is no doubt that they have a genuine desire to assist the uncle, the aunt having died since the refusal of the application. I also have no doubt that the solution which they proposed would have been the best solution in terms of the interests of the aunt and uncle, and would still be the best solution for the uncle. However, whether or not these factors amount to strong compassionate and humanitarian grounds is a matter for determination by the delegate, not the Court. The only question for the Court is whether legal error has intruded into the decision. I am unable to see any such error. Consequently, it is necessary that the application be dismissed. I so order.