Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 1409 (5 October 1999)

Last Updated: 28 October 1999

FEDERAL COURT OF AUSTRALIA

Singh v Minister For Immigration & Multicultural Affairs [1999] FCA 1409

MALKIT SINGH V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 585 of 1999

MATHEWS J

SYDNEY

5 OCTOBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 585 OF 1999

BETWEEN:	MALKIT SINGH Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	MATHEWS
DATE OF ORDER:	5 OCTOBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed with costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 585 OF 1999

BETWEEN:	MALKIT SINGH Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	MATHEWS
DATE:	5 OCTOBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application to review a decision of the Immigration Review Tribunal made on 21 May 1999, which affirmed a decision refusing to grant the applicant a Family (Residence) Class AO Visa as a "special need relative". It was generally accepted that the visa requested by the applicant was a subclass 806 family visa. At the time of the application, the criteria for these visas were set out in regulation 1.03 and schedule 2 of the migration regulations. Regulation 1.03 provides, relevantly, 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."

2 As the regulation indicates, it is an essential criterion that the citizen or resident in question has a permanent or long term need for assistance. The citizen or resident relied upon by the applicant in this case is his mother, Mrs Kousa Sharinian, with whom he resides. Also in the house is his mother's ex husband who has his own health problems. However it was the needs of the applicant's mother with which the Tribunal was concerned in this application. She has a number of health problems, the most serious of which relates to her eyesight. She has had a corneal graft upon her right eye, which has not been successful, leading to a total loss of vision in that eye. She also has a problem in her left eye. A medical report which was before the Tribunal indicated that this corrected to 6/6 vision with glasses but there is some material to indicate that the condition of this left eye is deteriorating. Other illnesses or medical difficulties of the applicant's mother were described in medical reports which were before the Tribunal and which were dealt with in the Tribunal's reasons.

3 The Tribunal concluded that the applicant's mother, who continued at the time of its decision to work on a part time basis, was able to cope and was "not incapable" of looking after herself. It therefore decided that she was not a "special need" relative under the regulations in that she did not have a permanent or long term need for assistance.

4 The applicant has been unable to obtain legal assistance for the purpose of this appeal. At the outset of the proceedings today, he sought an adjournment for a period of three months in order to enable him to continue working and earn sufficient money to obtain the services of a lawyer, as he has been refused legal aid. However, I declined to allow that application. The matter is by no means a complex one and it is unthinkable, at this stage, that the matter be adjourned for such a long period on this basis. Accordingly, during the course of the hearing today every attempt has been made both by Mr Lloyd, who appears by the respondent, and also by myself, to ensure that no prejudice is suffered by the applicant by reason of his not being legally represented.

5 The reasons for decision of the Tribunal might well have been phrased more felicitously. There are, for instance, potential inconsistencies between portions of it, particularly those relating to the consequences to the applicant's mother of her losing her eyesight entirely, should this happen at some time in the future. But the medical evidence before the Tribunal indicated only that this was a possibility. Being a matter of speculation, it was not a matter upon which the Tribunal's ultimate finding was in any way based.

6 The Tribunal, as I have already indicated, made a finding that the applicant's mother is currently able to cope without the applicant's assistance. This finding inevitably led to the conclusion that the applicant's mother was not a special need relative within the regulation. It is this finding which the applicant challenges in these proceedings. I invited him to go through the Tribunal's decision and to tell me those parts of it with which he disagrees. He initially said that the Tribunal did not indicate that his mother was blind in one eye, but in fact a statement to that effect is contained in the decision, as the applicant now acknowledges.

7 As it transpires, the applicant's primary challenge to the Tribunal's decision is that he says that the Tribunal was wrong in finding that his mother is able to cope on her own. She is not able to do so, he says. But the Tribunal's finding on this matter is manifestly a finding of fact. The finding was available on the evidence which was before the Tribunal. It is therefore not a ground upon which this Court can intervene.

8 As is my practice in relation to unrepresented applicants, I have critically examined the Tribunal's decision to see if it reveals any reviewable error not adverted to by the applicant. In my opinion, it does not. Accordingly, I dismiss the application with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mathews.

Associate:

Dated: 28 October 1999

Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Applicant:
Counsel for the Respondent:	Mr Stephen Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 October 1999
Date of Judgment:	5 October 1999