Moskal, L. v Minister for Immigration, Local Government & Ethnic Affairs

[1994] FCA 578

LIOUBOMIRA MOSKAL v. MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC
AFFAIRS
No. NG923 of 1993
FED No. 578/94
Number of pages - 11
Immigration

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
FOSTER J

CATCHWORDS

Immigration - Claim for grant of permanent residence - Reg 127 of Migration Regulations - whether applicant was a "special need relative" - whether "permanent or long-term need for assistance".

Judiciary Act 1903 (Cth) - s 39B

Migration (1989) Regulations - Reg 127

Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 418

Chen Wen Ying v Minister for Immigration and Ethnic Affairs (Unreported, Davies J, 24 June 1994)

HEARING

SYDNEY, 23 August 1994
#DATE 4:10:1994

Counsel For The Applicant: Miss L. McCallum

Instructed By: Barlow and Co

Counsel For The Respondent: Ms R. Henderson

Instructed By: Australian Government Solicitor

ORDER

The Court orders that:

1. The determination of the respondent of 30 July 1991 refusing the applicant's application be quashed.

2. The application be remitted to the respondent for determination in accordance with law.

3. The respondent pay the applicant's costs of this application.

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

JUDGE1

FOSTER J This is an application pursuant to s 39B of the Judiciary Act 1903 (Cth). The applicant seeks the following substantive relief:-

"(a) An Order by way of mandamus pursuant to section 39B of the Judiciary Act 1903 quashing the determination of the Respondent dated 30 July 1991 refusing the application of the Applicant for permanent residence and directing the Respondent to determine the application in accordance with law;

(b) An order by the way of Certiorari removing the determination of the Respondent refusing the said application of the Applicant for permanent residence in Australia, quashing the said determination and directing the Respondent to determine the said application in accordance with law;

(c) A Declaration that the Respondent has not determined the said application of the applicant in accordance with law."

1. The basis of the applicant's claim for a grant of permanent residence was that she was a "special need relative of an Australian citizen" in that she satisfied the requirements of Reg 127 of the Migration (1989) Regulations. The relative in question was her brother Ivan Moskal.

2. Ivan Moskal was born in the Ukraine on 5 July 1923. The applicant was born in the same country on 11 May 1935. Mr Moskal came to Australia prior to 1951. On 21 March 1951 he was granted permanent residence status and on 12 October 1959 he became an Australia citizen. He married his wife Olga in Australia on 23 September 1956. He was in continuous employment in the Australian work force until he suffered a stroke in May 1985. He was unable to return to employment and was cared for by his wife until her death on 27 January 1990.

3. The applicant came to Australia on 6 December 1990. There appears to be no dispute that she did so as a result of a request for help, directed to the family in Ukraine by Mr Moskal, who was living on his own in difficult conditions. Having observed his situation, the applicant made her application for permanent residence. There is no suggestion that it was not a bona fide application based upon considerations relating to the welfare of her brother. The application was made on 28 February 1991 and rejected on 30 July 1991. It appears that an unfortunate series of events resulted in there being no appeal on the merits of that rejection. There is no occasion to consider those events in these reasons. Although the applicant has continued to care for her brother in Australia since the rejection of the application, it is not possible, in determining whether she is entitled to the relief claimed in these proceedings, to have regard to any material other than that which was before the decision-maker in 1991.

MATERIAL BEFORE THE DECISION-MAKER
5. The decision-maker was provided with the following material by the applicant:-

(a) A statutory declaration by herself dated 22 February 1991.

In this declaration, the applicant set out the circumstances upon which she relied for her acceptance as a "special need relative of her brother". It is a lengthy document. It commences by stating that her brother's state of health is "such that he requires my constant presence, and without question, in the event I was compelled to return to the USSR, he would suffer an extraordinary amount of hardship". In support of this general assertion the applicant stated that her brother had suffered a stroke in 1985 with the result that he was now suffering from "a serious vertigo condition", which meant that "he walks as though drunk". He could not carry out simple household chores including the preparation of his meals. Additionally, he suffered from diabetes requiring medication and strict dietary requirements. He was at risk of lapsing into coma and frequently suffered severe cramps in his legs requiring physical assistance. He suffered from "a constant state of nervousness and upset" which was "compounded by the death of his wife, his long-term companion in all respects, and the only person he had in the world here in Australia". Her death had "quite literally left him totally alone".

1. Because of his medical condition he rarely left the house, easily became extremely tired and ventured out only to attend church on Sundays. Additionally, his hearing was degenerating which was increasing his condition of helplessness.

2. The applicant further stated that she did not know how serious her brother's plight was until she arrived and was able to see for herself. Since his wife's death, the house "was in a terrible state, the conditions were most unhygienic, and it was quite evident that simply living from day to day, with the smallest chores, was too much for Ivan". Since her arrival she had acted as "a full time home nurse", taking "care of all the household chores including cooking, washing, ironing, cleaning, mowing the lawn and the like". She also prepared all his food in accordance with his dietary requirements, it being necessary that he be fed four or five times per day in small amounts. She indicated that she had taken over the role that his wife had previously undertaken from 1985. She pointed out that her brother's health was likely to deteriorate in the coming years and that a further stroke might occur at any time. He had been very depressed and suffered from sleeplessness. His mental health had, however, improved since her arrival. She stressed that her brother had been "an honest, hardworking and upstanding citizen of Australia since his arrival in this country in 1949". He owned his own home but was dependent upon a pension of $388 per fortnight from the State Rail Authority for whom he had worked for 37 years. He emphasised that she was "not trying to jump the normal migration queue" nor was she "motivated by selfish reasons in wishing to remain in this country".

3. (b) A statutory declaration of Ivan Moskal supporting her application. In it, he stated that the applicant was "the only family that I have here in Australia". He indicated that he had a brother-in-law in the country but that relations between the two of them were bad and there was no hope of assistance from him. Prior to his wife's death he had been entirely dependent upon her because of his physical condition occasioned by his stroke and diabetes. He confirmed that he suffered from the problems referred to in the applicant's statutory declaration and that she had "become totally indispensable" to him. He indicated that he owned his home and received, in all, $388 per fortnight. He had no substantive savings but declared that his sister would inherit his house upon his death so that she, ultimately, would not be "without assets in this country". He then made the following statement which, because it has assumed importance in the case, I set out in full:-
   

"In the event my sister is granted Permanent Residency in Australia, then she will continue in her role of providing me with full support and home care. This would also entail a continuing role in medical supervision which I believe will become increasingly important in the coming years. Financially, I am unsure of what our position will be in the future. Perhaps Lioubomira may be reliant upon some type of Social Security payment, however, although she is 56 years of age, she is extremely fit, active and healthy. She does not have any medical complaints, she is prepared to locate some type of employment if at all possible, and in the event she is earning sufficient money, then perhaps we could afford to pay a home nursing organisation during the day in her absence. Certainly it is not my sister's intention to become a burden on Australian society, and she would seek some type of employment and simultaneously ensure payment of a home nurse between her hours of work. Also, she does not mind what type of work she takes, she is prepared to take any position that may offer itself. The work ethic is extremely strong in our family, we are not bludgers and never have been."

1. He asked that "an appropriate degree of compassion be extended towards my position. I have no one else in Australia if Lioubomira returned to the USSR".

2. (c) A medical certificate of Dr J.F. Mitchell of Blacktown dated 13 February 1991. In this document the doctor stated that he had been attending Mr Moskal for 31 years and that in 1985 Mr Moskal had suffered a stroke "with resultant ataxia and vertigo". At about the same time he was found to have diabetes. The two conditions were permanent and caused "an appreciable disability".

3. (d) A further medical certificate from the same doctor of 25 February 1991. In it, the doctor referred to Mr Moskal's medical problems and further stated that "in January 1990 Mrs Moskal died suddenly and unexpectedly and Mr Moskal has been living alone. He has remained unsteady on his feet, giddy and most insecure without Mrs Moskal's support". He also indicated that "in August 1990 Mr Moskal developed disc degeneration in his lower spine with resultant pain and weakness in his right leg which further reduced his mobility". The certificate concluded as follows:-
   

"To summarise - Mr Moskal is not a well man. He has had a stroke, has diabetes, his vision is deteriorating and he has a 'slipped disc'. He is only 66 but showing gradual deterioration.

With diabetes he runs the risk of peripheral vascular disease ie. poor circulation to the legs and eyes. His cerebral blood vessels we know are already in poor condition - hence the stroke.

His lumbar back problems are of the degenerative, wear and tear type and may be expected to worsen. His prospects if living alone are rather bleak. He will in time need help from such agencies as Meals on Wheels and Homecare. This need could become urgent and immediate if he suffered a further stroke or ischaemic changes in his legs."

1. The last portion of this quotation also assumed significance in argument. I shall refer to it later. It may be noted that the certificate was addressed to the applicant's then solicitors. It made no mention of the applicant or of her assistance in the home. This rather points to the doctor's being unaware of these matters at the time of the giving of the certificate.

2. (e) A supporting letter from Olga Baranowsky, a "Grant-in-Aid Worker for the Ukrainian Community", dated 17 July 1991. The letter is on the letterhead of the "Ukrainian Welfare Association". As the contents of this letter have assumed considerable importance in the case, I shall set it out in full. It was addressed to the relevant decision-maker and read as follows:-
   

"Please find enclosed supporting documentation for the Change of Status Application forwarded by Ms. Lubomyra MOSKAL, to remain in Australia as a 'Special Need Relative'. I have known her brother, Mr. Ivan MOSKAL, of ... BLACKTOWN, for a period of approximately 19 months. His wife passed away suddenly, and this is when concerned family friends contacted the Ukrainian Welfare Association Inc. following her death on 27 January, 1990. They were extremely worried about his welfare and well-being. Mr. Moskal depended on his wife to handle the running of the household, attending to various activities associated with the home, paying bills, banking, dealing with government and non-government agencies. Mr. Moskal never concerned himself with these matters. He had no knowledge of what services were available or how to deal with them. After the death of his wife, Mr. Moskal was at a total loss. He slowly withdrew from community activities, isolated himself, lost contact with friends, became dependent on a family who were unable to provide him with the assistance he required. I had spoken to Mr. Moskal on several occasions offering him the assistance and support of various community services, e.g. Home Care, Meals on Wheels, Home Maintenance, Ethnic Aged Day Care, just to name a few.

The problems associated with this varied: - he didn't want strangers entering his home - has limited English, problems communicating effectively with service providers

- he didn't want neighbours to see that he was accepting community assistance, because they wouldn't understand - he was embarrassed by the fact that he wasn't coping - the services were not culturally sensitive to personal needs

- services cannot provide the emotional support and companionship needed.

Mr. Moskal wrote to his family in Ukraine outlining his dilemma. His family were very concerned about their brother's well-being. It was on this basis, that his sister, Lubomyra, came to visit. Initially for a short stay. The family didn't realise the extent of their brother's needs. Lubomyra has been able to offer the emotional support and assistance that her brother so desperately required. He has become very dependent on her. I understand that Mr. Moskal suffered a light stroke approximately 7 years ago, this has led to memory lapses, diabetes, deterioration of sight, loss of balance, dizziness and nausea. He is limited in what he can actually do. Mr. Moskal requires constant care and ongoing emotional support. Health and community services cannot provide ongoing 24-hour care. These services cannot breakdown the emotional isolation which is suffered. In most instances, services are not sensitive to the needs of people from non-English speaking background, e.g. Meals on Wheels don't provide adequate traditional meals.

Mr. Moskal has limited English. Due to the lack of interpreters with Ukrainian language skills, there are many problems associated with being able to communicate with service providers effectively.

Services are being established to accommodate the needs of the community, but unfortunately health and community services cannot provide personal emotional support that can only be provided by a family member.

I hereby lend my strong support to LUBOMYRA MOSKAL's application for Change of Status - Special Need Relative category, because I believe that she is genuine in assisting and offering the emotional support necessary, to maintain her brother' well-being and welfare. Ms. Moskal is not seeking alternative employment as she believes her sole responsibility is to care and provide assistance to her brother. In the relative short time that Lubomyra has been in Australia, the change in her brother is remarkable. If further information is required please don't hesitate to contact me ..."

1. There is no suggestion other than that this was a bona fide letter to the decision-maker based upon careful personal observation.

THE DECISION-MAKER'S REASONS
15. The critical question for the decision-maker was whether, on the basis of this material, the applicant qualified as a "special need relative" under the Regulation. The decision-maker determined that she did not so qualify. In his reasons he dealt with the matter as follows:-

"9. In relation to the prescribed criteria specified in subregulation 127(a), I have considered the following: . The applicant has made claims under subregulation 127(a)(iii) as a special need relative. She claims, inter alia, that:

- her 68 year-old brother, the nominator, has no children or relatives in Australia to look after him; - her brother lost his wife in 1990, and she is the only person he can rely on;

- in 1985 her brother suffered a stroke which 'had serious physical complications', and he was also 'diagnosed as having diabetes';

- up until her arrival in Australia, her brother 'suffered from a constant state of nervous upset'; - her 'brother's hearing is degenerating as well'; - she has 'acted like a full-time nurse' since her arrival, and that she 'constantly monitor(s) her brother and take(s) care of all the household chores, including cooking, washing, ironing, cleaning, mowing the lawn and the like';

- she also prepared 'all of his food according to his doctor's instructions', accompanies 'him to church on Sundays', ensures that 'he has a ready supply of appropriate medications', and takes him to the doctor; - she has 'literally taken over the role that his wife had undertaken from 1985 when his health so critically began to degenerate';

- if she were to return to the USSR her brother would suffer an extraordinary amount of hardship (f.17-21). . Apart from reiterating the applicant's above-mentioned claims the nominator states, inter alia, the following: - he has a brother-in-law in Australia, but he has not offered any type of assistance to him; - he spent 37 years of his life working for State Rail Authority, that he owns his own home which would be inherited by the applicant in the event of his death; - if the applicant is granted residence 'she will continue in her role of providing (him) with full support and home care';

- he is 'unsure of what (their) position will be in the future. Perhaps (the applicant) may be reliant upon some type of Social Security payment ... She does not have any medical complaints, she is prepared to locate some type of employment if at all possible, and in the event she is earning sufficient money, then perhaps we could afford to pay a home nursing organization during the day in her absence' (f.10-13).

. The applicant has also provided a medical report (f.1-2,9) and a Grant-in-Aid worker's submission (f.59-60) in support of her application.

. In relation to subregulation 127(a)(iii), a 'special need relative', as specified in Regulation 2, 'means a relative who is willing and able to give substantial continuing assistance to the citizen or resident where:

(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;

(b) the assistance cannot reasonably be obtained from:

(i) any other relative of the citizen or resident, being a relative who is an Australia permanent resident; or

(ii) welfare, hospital, nursing or community services in Australia'.

. I am mindful of the importance of the relationship between the applicant and her brother and the various kinds of support that may be provided by the applicant's presence in Australia. It is recognized that the applicant's brother, an Australian citizen, does suffer from some illnesses

(f.1-2,9), and that he may suffer some disadvantages by the departure of the applicant.

However, Regulation 2(b)(ii) requires that the need for assistance cannot be met by 'welfare, hospital, nursing or community services in Australia'. The applicant's brother, the nominator, was offered 'assistance and support of various community services', but he declined because: - "he didn't want strangers entering his home'; - he 'has limited English ...';

- 'he didn't want neighbours to see that he was accepting community assistance, because they wouldn't understand'; - 'he was embarrassed by the fact that he wasn't coping'; - 'the services are not culturally sensitive to personal needs';

- 'services cannot provide the emotional support and companionship needed' (f.60).

While I acknowledge the validity of some of the reasons given above, the Regulation clearly indicates that the criteria for 'special need relative' would not be met if appropriate assistance were available in Australia. Furthermore, certain doubt must be given to the applicant's ability to provide 'substantial continuing assistance' as the nominator state"

- '...she is prepared to locate some type of employment if at all possible, and in the event she is earning sufficient money, then perhaps we could afford to pay a home nursing organization during the day in her absence'

(f.11).

In view of the above, the applicant fails to satisfy subregulation 127(a)(iii) in that she does not meet the definition of a 'special need relative' as stipulated in Regulation 2."

THE CASE FOR THE APPLICANT ON APPEAL
16. The applicant's submission relied heavily upon the interpretation of Reg 127(a)(iii) provided by Burchett J in Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 418. This decision was, of course, not available to the decision-maker, it having been given in October 1993. His Honour's interpretation has been followed by Davies J in Chen Wen Ying v Minister for Immigration and Ethnic Affairs (Unreported, Sydney, 24 June 1994). I find myself in respectful agreement with their Honours. Accordingly, I accept that, as submitted by the applicant, this interpretation was, at all times, the correct one. The Regulation, so far as relevant, is set out in the quoted passage from the decision. I shall not set it out again.

1. Burchett J (at p 426) said that an understanding of the regulations "should not overlook that they focus on the needs of Australian citizens and residents, rather than those of would be migrants. They also recognise Australia's moral obligations, particularly to its own people, and Australia's national interest in behaving in a civilised manner". His Honour further considered the concept of "a special need relative" in a lengthy passage (at pp 429-430) which, although it contains references to material peculiar to the case he was deciding, nevertheless, provides valuable insights into what I accept, with respect, as being the correct approach to the meaning and application of this regulation. His Honour said:-
   

"It is appropriate to observe that the definition of 'special need relative' is largely concerned with medical issues. There must be a need, not necessarily permanent but at least long-term, for some form of assistance because of death, disability, prolonged illness or other serious circumstances. (The last matter, of course, need not be medical, unless the earlier words create a genus, which would be a very restrictive view to take of a beneficial provision under the broad rubric of 'special need', particularly as there cannot be a genus of medical conditions of the citizen or resident to be assisted, since the first condition is death.) There must then be an inability to obtain 'the assistance' from the other sources mentioned. I have emphasised the definite article because it may be the delegate overlooked it in the present case. Certainly, the reference to 'the assistance/support she needs' is a reference to what the author of the recommendation has decided she needs - not the substantial and continuing assistance Mr Fuduche is willing and able to provide. That would explain what is otherwise inexplicable - his rejection of Mr Fuduche's claim to be a 'special need relative' of Mrs Longhurst on the ground, apparently, that assistance is 'quite readily' available to her from 'community support services'. But the assistance with which the regulation is concerned is the assistance the relative is able to provide. If that is mowing lawns, of course others may do it. The more complex and personal it is, the less can this be so. Indeed, such cases are probably at the heart of the benevolent intent of the regulation which, on ordinary principles, as I have already indicated, should be given a broad and generous construction in favour of the Australian citizens and residents that it was intended to benefit, and in furtherance of the good name of Australia that its humanity maintains. Where what is involved is the personal support of a particular brother, whose every word of encouragement must have the meaning of their shared experiences packed into it, that support is plainly irreplaceable, whatever inferior (or even very valuable) substitutes might be sought.

There is also another aspect to this consideration. the definition of 'special need relative' does not ask only whether the particular assistance the relative can give is in fact replaceable. It also asks whether it can 'reasonably' be obtained elsewhere. From that point of view, no one would suggest it would be reasonable to expect a person suffering from psychiatric illness of the severity here in question to obtain the same support and encouragement from uninvolved strangers (however professional) as that available from her loved brother. The finding to the contrary is unreasonable in the Wednesbury sense, or else it is tainted by error of law in the interpretation of the regulation, for the reasons I have been discussing. A situation of this kind was regarded by Mason CJ in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 388-91; 87 ALR 412 as falling within the ground of unreasonableness referred to in ss 5(2)(g) and 6(2)(g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), on the basis that, either way, the conclusion was unreasonable."

1. It must be noted, of course, that his Honour's decision in Fuduche was given in a case where the claims upon the reasonable compassion of a decision-maker were extremely strong. In my view, however, this means no more than that Fuduche was a very obvious case for the application of the regulation in accordance with its construction as enunciated by Burchett J. That interpretation, undoubtedly, calls for a sympathetic and careful consideration of the physical and emotional needs of the Australian citizen for whom the help of the relative is sought. The inquiry should not, in those circumstances, be perfunctory or superficial. Such cases are distinctly individual cases. The decision in one would have no precedent value for another. Each case must be evaluated in terms of the "special" needs shown to exist.

2. In Chen Wen Ying, Davies J (at p 8) considered Regulation 127 in the context of the relationship between mother and child. He accepted the approach of Burchett J in Fuduche and held that the regulation should be accorded a wide and beneficial construction. He cited, with apparent approval, two passages from the judgment in Fuduche which are included in the portion which I have set out above. His Honour expressed his view (at p 11) of the meaning and scope of the concept of "a special need relative" when he said that "it is clear that the definition looks to care and assistance which a particular relative may be able to provide and which cannot reasonably be obtained from persons in Australia". Fuduche is a prime example of the special need which an Australian resident had for the presence of her brother, a need which no one in Australia could fulfil".

3. I agree, with respect, with this statement of the requirements of the regulation. Clearly, the regulation cannot be properly and correctly applied unless close consideration is given to the nature of the needs of the Australian citizen or permanent resident in question. These needs must not be looked at in a broad and general way. As I have already said, the particular needs of the particular individual must be closely analysed and considered. To brush aside lightly, in a dismissive way, the special requirements for ongoing emotional support and understanding of a physically disadvantaged or disabled Australian citizen with a poor command of English and with an ethnic background which, of itself, might generate particular problems of communication and understanding, would be to fail to apply the regulation in accordance with law.

4. Once the particular needs are carefully and accurately delineated by the decision-maker, the next question must be whether these needs generate "a permanent or long-term need for assistance". If this question be answered in the affirmative then the decision-maker must determine, in a case where no Australian citizen or permanent resident is available to provide such assistance, whether they can be provided by "welfare, hospital, nursing or community services in Australia" or can only be provided by a "special need relative".

5. This question, again, cannot be properly addressed or answered by a mere general and broad consideration of the types of services available in Australia. Common humanity demands that a disadvantaged citizen be not deprived of the special caring assistance of a near relative on the basis that, in some general sense, it may be arguable that some aspect of that assistance can be provided through visits from community welfare organisations. If there be demonstrated a clear and definite need for ongoing emotional support, attributable to the special condition of the citizen, then the question is necessarily and squarely raised, whether this support can reasonably be provided by such organisations. The essential issue for determination in such a case is whether such organisations can reasonably supply the necessary special care available from the "special need relative".

6. Applying these considerations to the present case, I have come clearly to the conclusion that the decision-maker could not have had in mind the correct interpretation of Regulation 127(a)(iii) in reaching the decision that he did. In such circumstances, I find it unnecessary to consider the alternative submission on behalf of the applicant that the decision demonstrated Wednesbury unreasonableness. I am satisfied that the application must be considered afresh in light of the interpretation of the regulation which has been established since the decision was made. I make the following orders:-
   

1. The determination of the respondent of 30 July 1991 refusing the applicant's application be quashed.

2. The application be remitted to the respondent for determination in accordance with law.

3. The respondent pay the applicant's costs of this application.