Wafaa Succary v Minister for Immigration & Multicultural Affairs [1997] FCA 1319 (17 November 1997)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 629 of 1997

BETWEEN:	WAFAA SUCCARY Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

CORAM:	DAVIES j
DATE:	17 NOVEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an appeal under s 476 of the Migration Act 1958 (Cth) with respect to a decision of the Immigration Review Tribunal ("the Tribunal") given on 21 July 1997. The relevant ground relied upon is that appearing in s 476(1)(e), namely that the decision involved an error of law being an error involving an incorrect interpretation of the applicable law.

A sub-class 806 visa was sought by the applicant, the criteria for which were set out in the second schedule to the Migration Regulations. One criterion, and the most important for present purposes, was that the applicant had, at the time of the lodging of the application, become a special need relative of an Australian citizen. The regulations provided, inter alia:

"806.213 The applicant is an aged dependent relative, an orphan relative, a remaining relative or a special need relative of another person who:

(a) is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and

(b) is usually resident in Australia; and

(c) has nominated the applicant for the grant of the visa."

"Special need relative" was defined in reg 1.03 of the Regulations 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;"

In the present case, the Australian citizen was Mrs Badrieh Sukari. The principal applicant was her daughter, Mrs Wafaa Succary. Included in her visa application were her seven children, including three who are with her in Australia.

The matter started off in a surprising way, for Mrs Badrieh Sukari lived in Sydney with her husband and had six children in Australia, all of whom were of adult age. Four of the children, three sons and one daughter, were married and lived in Sydney; the other two daughters were living in Western Australia.

The principal applicant, Mrs Wafaa Succary, originally applied to come to Australia with three of her seven children as a visitor and was granted a visa accordingly. To enable her to leave her homeland, Lebanon, with the children and to obtain a visa, her husband in Lebanon made a declaration before a Notary Public that he had allowed his minor sons to leave the Lebanon and to travel to Australia in the company of their mother.

Mrs Wafaa Succary and her three sons arrived in Australia on 19 September 1994 and, on 19 December 1994, she lodged her application for a "family (residence)" class visa, on the ground of special needs. It is surprising that Mrs Badrieh Sukari should have looked for support to a daughter who lived in Lebanon and who had a husband and seven children when she already had six children in Australia. That fact would not of course conclude the matter against the grant of the application, for if Mrs Wafaa Succary in fact had come to Australia or had stayed in Australia because of her mother's health, that matter could well have demonstrated the need which her mother had for her assistance. However, there is not before the Court any transcript of the evidence given and there is nothing in the decision which says anything as to why the applicant originally came to Australia or why she decided to stay.

The Tribunal accepted that the mother, Mrs Badrieh Sukari, had a severe renal condition which subsequently required her to have dialysis. By the time of the Tribunal's hearing, the mother's condition was quite serious. The Tribunal accepted that the mother had a serious medical condition but rejected the application on the ground that the assistance required could be reasonably obtained from either community services or from the family in Australia.

The Tribunal said, inter alia:

"No one doubts that Mrs Sukari has a serious disability requiring permanent assistance. The questions we are ultimately left with are:

1. Is it reasonable to expect Mrs Sukari to carry uiot her own CAPD treatment? In the light of the evidence of Ms Gonzalez and the report of Dr Howlin we tentatively answer this with a 'yes'.

2. Granted the above, is the other support provided by the Applicant of the order of 'substantial and continuing assistance' referred to in the legislation. We find, on the material before us, that it is not. We say this because we consider that community services or the family can provide the other support that the Visa Applicant presently provides to her mother.

It is clear to us from the evidence taken at the hearing that the mother at present relies upon the daughter for material support and just as importantly, for a degree of psychological comfort. In addition, it would appear that this support helps the mother cope with her illness. However, the investigations of the MIRO officer disclose that there are a number of welfare agencies which could provide for some of the material needs we have identified above as the first type of needs. In addition, other members of the extended Sukari family in Sydney would, in our view, be able to do some of the shopping, cooking, cleaning and other household tasks. Welfare agencies cannot, of course, replace psychological comfort provided by the Visa Applicant. But, here again, there are other family members in Australia who can offer a degree of comfort. Perhaps, not of the order of the present Visa Applicant but comfort nonetheless.

Overall, we consider that the assistance given by the Visa Applicant to Ms Sukari can be reasonably obtained from either community services or the family. Consequently, the Visa Applicant can not be considered a 'special need relative' as defined in the Regulations."

On the face of the decision, it turned on the facts of the case as the Tribunal saw them. Mr Simon Diab, the solicitor for the applicant, has pointed to several matters which he has submitted show an error of law. The first matter to which Mr Diab pointed was the following passage which dealt with the principles to be applied:

"We find instructive the discussion of 'special needs' by Justice Ryan in Vo'ifalelahi v MILGEA (1995) 137 ALR 370. His Honour summarises the discussion of this notion in earlier Federal Court cases. Clearly, the 'special need' does not have to be wholly or even primarily medical or even physical. And nor is the assistance restricted to physical assistance rather than, say, psychological assistance.

However, despite the judicial gloss put on 'special need relative', we are unavoidably guided by the way 'special need relative' is defined in the Regulations. This definition is given above on page 3. It is clear that the model of 'special need relative' is someone providing assistance to a relative who has a permanent or long term need because of death, disability, prolonged illness or other serious circumstance. Accordingly, we have to ask ourselves whether the particular needs of the nominator are really of this order. We have read the relevant PAM which discusses 'special need relative'. It points out that in considering this we should bear in mind such matters as the nature of the disability, the treatment obtained, the prognosis and basically why there is a need for assistance."

Mr Diab submitted that the Tribunal had rejected the interpretation which judges of this Court had given to the term "special need relative" as defined in the Regulations. In Vo'ifalelahi v Minister for Immigration, Local Government & Ethnic Affairs, Ryan J applied the approach to the definition of "special need relative" expounded by Burchett J in Fuduche v Minister for Immigration, Local Government & Ethnic Affairs [1993] FCA 503; (1993) 45 FCR 515 at 527-8 and by Foster J in Moskal v Minister for Immigration, Local Government & Ethnic Affairs (1994) 125 ALR 307 at 315-6.

The Tribunal risked making an error of law when it referred to the remarks made in these cases as "the judicial gloss put on 'special need relative'", referred to the relevant administrative guidelines and went on to state that the Tribunal was "unavoidably guided by the way 'special need relative' is defined in the Regulations."

What the Court has had to say about the definition is, of course, part of the law which the Tribunal must apply. The remarks of their Honours have been applied in other cases and are a well settled approach to the law.

Nevertheless, both Fuduche and Vo'ifalelahi dealt with other regulations, so we are not concerned directly with them. I have looked at the judgment in its entirety and cannot find in it a wrong approach to reg 806. The Tribunal was correct in referring to matters such as the nature of the disability, the treatment obtained, the prognosis, the need for psychological support, which I take to include emotional support, and why there was a need for assistance.

The Tribunal examined the question whether the relationship between Mrs Wafaa Succary and her mother was such that no other of the children could provide for the mother's needs. The Tribunal expressed the view that Salam, the daughter who lives in Sydney, might not be able to provide the same psychological support as given by her sister Wafaa. The Tribunal referred to the fact that the mother and the father had lived for some time with the son, Nouhad, and explained why they had taken up accommodation elsewhere.

In reading the reasons as a whole, I cannot conclude that there was an error of approach by the Tribunal to the questions which it had to decide.

Mr Diab went on to point out that the Tribunal had concluded that it was reasonable to expect Mrs Sukari to carry out her own CAPD (dialysis) treatment. Mr Diab submitted, however, that that was only part of the question and that there was a need for 24 hour observation of Mrs Sukari. He referred to the evidence of a Ms Gonzalez that renal disease when coupled with diabetes, from which Mrs Succary suffered, definitely required 24 hour a day observation.

However, it does seem to me that the Tribunal limited its consideration to the question as to whether Mrs Sukari could carry out her own CAPD treatment. The Tribunal clearly looked at the other needs and clearly took into account the need for some general supervision of Mrs Sukari and her condition. I should say that also the Tribunal does not seem to have placed much weight upon the position of the father, but Mrs Badrieh Sukari had not been living alone when the principal applicant arrived in 1994, and I think the father was still alive and living in the house at the time of the decision of the Tribunal.

The decision of the Tribunal was a decision of fact and, as the Tribunal was the decision maker of fact, no error of law has been established. The circumstances in cases such as Fuduche and Vo'ifalelahi were decisions, of course, on the unusual circumstances which existed in those cases. Renal failure and a need for dialysis are perhaps not so uncommon a circumstance in this country, and perhaps unfortunately too common.

It appears to me that the decision of the Tribunal was open to it, and that it examined the question correctly. For those reasons, the application must be dismissed with costs.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies

Associate:

Date: 17 November 1997

Counsel for the Applicant:	S. Diab, solicitor
Solicitor for the Applicant:	Johnston Vaughan Solicitors
Counsel for the Respondent:	A.F. Backman
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 November 1997
Date of Judgment:	17 November 1997