Abeywickrema v Minister for Immigration & Multicultural Affairs [2002] FCA 139 (21 February 2002)

Last Updated: 13 March 2002

FEDERAL COURT OF AUSTRALIA

Abeywickrema v Minister for Immigration & Multicultural Affairs

[2002] FCA 139

MIGRATION - application for family visa - whether applicant a 'special need relative' of an Australian citizen - whether Australian citizen in need of assistance because of mental state associated with injuries suffered in traffic accident - whether Tribunal impermissibly narrowed criteria by reference to policy guidelines - no error of law - application dismissed.

Migration Act 1958 (Cth)

Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515

Vo'ifaleahi v Minister for Immigration (1996) 65 FCR 52

Minister for Immigration and Multicultural Affairs v Teo (1995) 57 FCR 194

SURESH LASANTHA ABEYWICKREMA v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W447 OF 2001

FRENCH J

21 FEBRUARY 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W447 OF 2001

BETWEEN:	SURESH LASANTHA ABEYWICKREMA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	21 FEBRUARY 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W447 OF 2001

BETWEEN:	SURESH LASANTHA ABEYWICKREMA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	21 FEBRUARY 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

1 This is an application for review of a decision of the Migration Review Tribunal affirming a refusal to grant a family visa sought on the basis that the applicant is a special need relative of an Australian citizen.

Factual Background

2 Suresh Lasantha Abeywickrema ("the applicant") is a national of Sri Lanka who came to Australia on 26 July 1996 on a three-month holiday visa. That visa was ultimately cancelled on 24 August 1996. He applied for a protection visa which was refused on 21 July 1997. His full immigration history is not disclosed in the papers and it is not relevant for the purposes of this case.

3 On 30 November 1998, the applicant made an application to remain permanently in Australia. Also applying as family members were his wife and a son and daughter aged 4 and 5 respectively. The daughter was born in Australia. The application was made on the basis that the applicant has a brother, Padmapani Ajith Abeywickrema ("the nominator"), who is an Australian citizen and who falls into the category of a special need relative. The following questions and answers appeared in the application form:

"77. What circumstance has led to your relative needing your assistance (eg permanent disability, death of a close relative, etc)?

After a motor car accident he is physicaly (sic) disabled. Please check submission and medical records attached.

78. Give details of the assistance you provide to your relative

I help him when ever he needs my support. And assists him mentally and physicaly (sic) whenever he is depressed.

79. For how long will your relative require your assistance?

On going.

80. Does your relative have any other relatives in Australia?

Yes

Can any of these relatives provide the assistance required?

No Why not?

They are still in shock and recovering from the injuries and they need my support to look after my brother and they need help too sometimes."

The form included a nomination section completed by the nominator. He lives at Ballajura in Western Australia and his usual occupation is described as "chef".

4 The nominator had been a passenger in a vehicle travelling from Sydney to Perth in July 1997 when the vehicle left the roadway and rolled over a number of times. His wife and his son were also in the car. His son was significantly injured although he subsequently recovered. The nominator suffered back injury as a result of the accident. Although x-rays of his lumbar spine showed no bony injury, films taken in Adelaide did show fractures of transverse processes of the first, second, third and fourth lumbar vertebrae on the right side. There was also evidence of a large haematoma within the psoas muscle. He had constant pain and numbness of the right buttock for a long period after the accident although sensation slowly returned. His treatment included hydrotherapy and an exercise regime followed by referral to a pain management specialist. The exercise regime resulted in recurrence of severe low back pain on the right side of the lumbar region spreading against the posterior side. This resulted in cessation of the exercise. A report prepared by a Doctor Coats on 4 September 1998 indicated that there was no further treatment available apart from management of local pain. His condition was stable. The question of his capacity to work was difficult. He had a permanent loss of significant stabilising muscles on the lateral side of the lumbar vertebrae and therefore lifting, straightening or sideways bending was permanently affected. He would not be able to continue fulltime work in his then current occupation as a chef at the Hollywood Hospital. The incapacity for his normal work as a chef was due entirely to the effects of the accident. Doctor Coats' report was attached to the applicant's application. A further report by a Doctor Sweeney, also dated 4 September 1998, indicated a diagnosis of avulsion injury to the transverse processes on the right side of the lumbar vertebrae following a high speed accident. The injury was due to a traction lesion. Dr Sweeney estimated at the time that it would be at least twelve months before any further estimation could be made about his fitness to return to work as a chef. His disability at that stage was at least twenty per cent loss of function of the lumbar spine. A report dated 28 August 1998 from Paul Bannan, a neurosurgeon, referred to the nominator's continuing complaints of lower back pain with impaired sitting and standing tolerances. His residual disability was ten per cent of the lumbar spine. He was not fit to return to work as a chef at that time.

5 The applicant was invited to attend an interview on 15 December 1998 with an officer of the Department of Immigration and Multicultural Affairs. A record of the interview appears in the Court Book. The applicant told the officer that his brother was mentally upset all the time. He couldn't go to work and was alone at home. He was depressed at times. He said they were very close. Asked how long his brother would require his assistance for, the recorded answer was:

"Don't know. Depressed & moody all the time & spine problem stops him from doing physical work."

Asked to describe in detail his daily routine in connection with the nominator's needs, the applicant said:

"Calls every morning. Breakfast together most days. Wife & I calm him down when he is depressed. Always there to talk. Nominator's son has eye problems. Wife's arm was twisted, can't do any hard physical activity. I drive him & family around. Help by talking things with him."

The applicant indicated that he was still working. He said he was not aware that under the terms of his bridging visa he was not permitted to work. He had been working at Burswood Casino and would cease. The interviewing officer then prepared a minute and stated his conclusions thus:

"1. I am not satisfied that the current description of the "care and assistance" provided by the applicant for the nominator and his family can be considered a "special need" as defined in the regulations.

2. Applicant has confessed to working while on a Bridging visa with no work rights. Cautioned on breach of visa condition but claimed to not have been told that Bridging visa did not have permission to work. When posed a question of how he would balance with the needs of the relative if work rights are granted, the reply was that he would work set hours and spend time with the relative before and after work.

3. The only care and assistance provided seems to be companionship and that of a confidant and occasional manual labour. This does not fall under the scope of a special need relative. No indication that nominator's family members require or have received any further assistance from applicant other than sometimes being picked up and dropped off for occasions.

4. I am not satisfied in regard to the continuing nature of the need required by the relative."

6 On 17 December 1998, the officer wrote to the applicant advising that his application to remain permanently in Australia had been refused. He and each person included under the application were assessed under the Family 806 sub-class of the Change in Circumstance (Residence) visa class. Although he had not made any claims against any other sub-class of the Change in Circumstance (Residence) visa class he and all the other applicants (the members of his family) were assessed against the other sub-classes. He was reminded that when he lodged his application to remain in Australia he had been granted a bridging visa to ensure that he had lawful status throughout the processing of his application. That visa would remain in effect until 21 January 1999.

7 On 27 December 1998, the applicant applied to the Immigration Review Tribunal for a review of the decision. By 20 May 1999, the application had not been dealt with by the Immigration Review Tribunal. As that Tribunal was to cease operation on 31 May 1999 the application would be dealt with by its statutory successor, the Migration Review Tribunal. In the event the next communication which appears on the Court record is a letter dated 2 April 2001 from the Migration Review Tribunal to the applicant asking him to provide further evidence by way of medical reports and any further information to substantiate his claim that he was a special need relative of his brother. Subsequently a video hearing was set up for 30 July 2001.

Materials Before the Tribunal

8 Among the materials before the Tribunal was a confidential psychological report from Rochelle Kooperman, a clinical psychologist practising at Dianella. The report was dated 21 April 2001. It gave a background history of the motor vehicle accident. The nominator had told the psychologist he wanted to block the memories of the accident out of his mind. The memory of his son lying on the road seriously injured was a haunting image. He was unable to confide in his wife about his distress due to differences in their points of view. Nor was he able to confide in a professional therapist. He found, however, that he was able to confide in the applicant. His brother had been able to provide physical assistance by helping with heavy household tasks and had also acted as his counsellor listening to him and helping him to cope with the emotional distress of the traumatic accident. The nominator said he copes with his ongoing pain problem by using meditation and confiding in the applicant.

9 Ms Kooperman made a pain assessment using established pain measures and concluded that the nominator's score indicated that his pain caused him a moderate level of disability in his life. The area most affected was lifting. She also administered to him the Beck Depression Inventory and concluded that his score of 24 indicated "moderate to severe" depression. An Anxiety Inventory Test yielded a score indicating mild anxiety. In her summary and conclusion she wrote:

"In summary, Mr Abeywickrema presented as moderately disabled by pain which was of moderate intensity. He was suffering moderate to severe depression and mild anxiety. He was using some functional coping strategies to manage pain, which were somewhat effective. He was severely traumatised by the accident.

For many people who have been traumatised, recovery can take many years, or may never occur. Traumatised people often require ongoing support from professional therapists over periods of years. In my work, I assist people traumatised by work-related and motor vehicle accidents to manage ongoing symptoms of anxiety and depression. The cost to the community of these people's ongoing disability is enormous. Not only are large amounts of insurance money spent on psychological therapies, but also, many such victims are unable to return to work, and remain on Centrelink benefits for extended periods.

Mr Abeywickrema's brother Suresh has saved the community these costs. He has enabled his brother to recover sufficiently to return to the workforce, by performing the role of a counsellor. Only Suresh was able to perform this function for his brother, providing emotional and psychological support, due to cultural and social factors mentioned above.

In my opinion, Mr Abeywickrema may potentially deteriorate in terms of his productivity and mental and physical health, if Suresh left the country."

10 A statutory declaration signed by the nominator acknowledged that he has another brother in Melbourne but said that that brother is not in a position to provide him with the support he can obtain from the applicant. He said he strongly depends on the mental and emotional support that the applicant and his family provide to his mother and himself. He said that if the applicant should go back to Sri Lanka, although he would be able to obtain some psychological assistance from Australian community organisations, no person could provide him with the same stable, mental and emotional assistance. He had been closely bonded with the applicant since childhood. This support could only be provided by a person to whom he was so close and in whom he could confide all his personal problems. There was a statutory declaration from the nominator's wife. His brother, Jeehan Abeywickrema, who is a resident of Victoria, also swore a statutory declaration in support of the application.

11 A report from CRS Australia dated 4 February 2000 and addressed to the Insurance Commission of WA offered a vocational rehabilitation assessment of the nominator. It was anticipated that his vocational rehabilitation program would continue with CRS until he had completed a real estate sales training course and determined his physical capacity and aptitude for that kind of employment. He still required a supervised exercise program and possibly some upgrading of his computing skills.

12 A medical report dated 30 September 1999 from Professor James Taylor, a pain management specialist, was also before the Tribunal. He saw no realistic alternative to continuing with the then current regime based mainly upon exercise with weekly visits to the physiotherapist. In a second report dated 22 November 1999 he adverted to significant functional improvement which had been achieved through physiotherapy and an exercise program. However the pain levels had not decreased significantly and the incapacity for his former employment remained because of the exacerbation of pain from strenuous physical activity. There was residual disability which was assessed as between five to ten per cent loss of the normal function of lumbar spine. This was said to be significant in relation to the nominator's inability to perform the tasks required of a chef with regular lifting of fairly heavy loads. The prognosis was of a capacity for further minor improvement with the likelihood of ongoing permanent disability.

13 The neurosurgeon, Mr Bannan, reported in June 1999 a residual disability of ten per cent of the lumbar spine. He believed the nominator could still find some gainful employment. He was not completely unfit for work. His incapacity to return to work as a chef however had resulted from the accident. The prognosis remained hopeful in the medium to long term that his back pain would settle with further exercise and a muscle strengthening program.

14 On 21 August 2001, the Migration Review Tribunal affirmed the decision under review finding that the applicant and the family members included in his application were not entitled to the grant of a Change of Circumstances (Residence) Class AG sub-class 806 visa.

The Tribunal's Reasons

15 After reviewing the background and referring to the documentation before it and an oral hearing conducted on 30 July 2001 the Tribunal referred to the relevant criteria under the Regulations.

16 The Tribunal excluded the applicant from the obviously inapplicable categories of aged dependent relative, orphan relative, or remaining relative as defined in the Regulations. It turned to the criterion of a "special need relative". It said that the special need relative provisions are intended to cater for situations such as an incapacitating illness or disability creating a need for physical assistance in the home. Although "assistance" is not defined within the legislation it was said to be policy that the assistance to which the Regulation refers is that which a welfare, hospital, nursing or community services in Australia may usually be expected to provide in these circumstances. Claims to be a relative in special need should generally be supported by professional opinions and the level of assistance required should be of a substantial and continuing nature.

17 The Tribunal referred to Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 and to other Court decisions and then went on to find that there was no evidence that the nominator suffered from any physical or emotional ongoing disability or other serious circumstances. Rather, in the applicant's submission of 12 January 1999, the applicant claimed that the nominator required him because "now he is very concerned about my situation and is facing depression as I was his only help and support".

18 The Tribunal accepted that the applicant kept his brother company and that the two shared a close relationship. The clinical psychologist's report had summarised the nominator as presenting with moderate back pain, suffering from moderate to severe depression and experiencing mild anxiety. Notwithstanding the reference in this report to the emotional, psychological and physical support provided by the visa applicant, the Tribunal considered that such assistance could be obtained from community welfare or similar organisations. While it was claimed that at times some assistance was required with heavy household tasks, the Tribunal considered it not unreasonable that the nominator's sons and other family members could provide this. The Tribunal also noted that the nominator had another brother resident in Victoria. It was said not to be inconceivable that this brother could fulfil the nominator's cultural need if he were unable to obtain such from cultural groups within his own community. The Tribunal found no evidence before it that the nominator had sought counselling or other assistance in relation to his claim of depression. The Tribunal then said:

"On the evidence presented to it, the Tribunal is not satisfied that the visa applicant has demonstrated that the nominator has a disability or prolonged illness or that there are serious circumstances such as to be within the definition of "special need relative". From the material presented to it, the Tribunal concludes that the level of assistance needed in this matter is essentially for companionship, and for the nominator to have someone he can confide in. Such needs for assistance do not satisfy the definition of "special need relative" because they do not arise from death, disability or other serious circumstances affecting the nominator or a member of his family unit."

The Tribunal also agreed with the delegate that in incorporating an application for work permission, the visa applicant had effectively reduced his claims to be a special need relative.

The Statutory Framework

19 The statutory criterion for the grant of the relevant visa is set out in sub-class 806, the relevant part of which reads as follows:

"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."

20 The term "special need relative" is defined in reg 1.03 thus:

"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."

Policy Guidelines

21 The Tribunal's reference to the intention of the "special need relative" provisions appears to have been a reference to the Procedures Advice Manual 3 (PAM3) which sets out policy guidelines for decision making by departmental officers in relation to special need relatives. The manual refers to the terms of Regulation 1.03 which defines relative and, in particular, that part of Regulation 1.03 which refers to the special need relative as one "who is willing and able to provide substantial and continuing assistance". In this respect it is said in the PAM3:

"1. The level of assistance to be provided by the special need relative is that which is required to meet the need of the Australian relative. When the definition is read as a whole, the need for assistance is clearly to provide help that is substantial and continuing (or in other words, considerable and lasting).

2. Special need relative provisions are intended to cater for situations such as

. the death, disability or serious prolonged illness of a spouse or other member of the family unit (as defined in regulation 1.12) that may leave the Australian relative with permanent or continuing problems providing the degree of support that is required to meet the needs of the ill person or the family; or

. an incapacitating illness or disability creating a need for physical assistance in the home."

22 The guidelines go on to require that claims by the Australian relative to be in special need be supported by a professional opinion in the form of, for example, a report from a medical practitioner, social worker or similar professional. It is then said:

"4. Decision makers should carefully examine the report, having regard to the professional's opinion as it relates to the professional's AREA OF EXPERTISE regarding the current and future circumstances of the person in special need, but also take heed of the following."

There is then a reference to a passage from the judgment of Burchett J in Fuduche where his Honour said:

"Where, upon a medical issue, medical science is unable to offer a conclusion on the probabilities, it may sometimes be open to a lay decision maker to rely on ordinary human experience in order to bridge the scientific gap to a practical decision. But where medical science offers an answer, it is simply not rational for a lay person to brush that answer aside in favour of some theory of his (or her) own."

23 In relation to the reference in Regulation 1.03 to "death, disability, prolonged illness or other serious circumstances" the guidelines state:

"1. Although the policy intention is that 'special need' relates mainly to medical conditions, policy also intends that other unforeseen serious circumstances of a similar nature be considered. In saying this, however, it was never meant for 'other serious circumstances' to encompass maladjustment and homesickness caused by migration resettlement or anxiety caused by the absence of a family member left behind in the home country.

.

.

.

Grounds of Review

The grounds of review set out in the application were:

"5.1 The decision of the Tribunal involved errors of law, being errors involving incorrect interpretation of the applicable law, and/or

5.2 The decision of the Tribunal involved errors of law, being incorrect application of the law to the facts and/or

5.3 There was no evidence or other material to justify the making of the decision by the Tribunal

5.4 The decision of the Tribunal was an improper exercise of the power conferred by the Migration Act or the regulations

PARTICULARS

a. The Tribunal, in paragraph 12 of the Statements of Decision, stated that "The Tribunal notes that no medical evidence of the nominator seeking psychological help at time of the motor vehicle or in the time period thereafter is on file." The Tribunal failed to take into account the reason why such psychological help was not sought by the nominator. This was addressed by Dr Rochelle Kooperman, the Clinical Psychologist, in her report dated 21 April 2001.

b. In paragraph 17 of the Statements of Decision, it is stated "The Tribunal notes that the 'special need relative' provisions are intended to cater for situations such as an incapacitating illness or disability creating a need for physical assistance in the home". The Tribunal's statement is an error of it's (sic) interpretation of the law as contained in Regulation 1.03 of the Migration Regulations, which does not confine the assistance to physical assistance alone.

c. In paragraph 25 of the Statements of Decision, it is stated "There is no evidence before the Tribunal that the nominator suffers from physical or emotional on-going disability or other serious circumstances." The Clinical Psychologist stated in her report that "He was seriously traumatised by the accident...Traumatised people often require ongoing support from professional therapists over periods of years... In my opinion, Mr Abeywickrema may potentially deteriorate in terms of his productivity and mental and physical heath, if Suresh left the country." In view of the factual findings by the Psychologist, the findings of fact by the Tribunal involve an incorrect application of the law to the facts.

d. In paragraph 19 of the Statements of Decision, it is stated when comparing this case with the case of Fuduche, "The psychiatrist in Fuduche's case (above) had seen Ms Longhurst a number of times over a period unlike in this case where the visa applicant's mother had not presented any evidence from a psychiatrist at all." The Tribunal statement is an exercise of discretionary power without regard to the merits of the Applicant's case by requiring psychiatrist evidence from the Applicant's mother and failing to treat the Applicant's case on it's (sic) own merits.

e. In paragraph 29, the Tribunal states "The Tribunal agrees with delegate that in incorporating seeking to work, the visa applicant has effectively reduced his claims to be a 'special need relative'. This shows the Tribunal's error in applying the law to the facts. The Tribunal, by making such a finding, has given it's (sic) own interpretation to the definition to the term 'special need relative', who must not be a working person."

Whether the Tribunal Erred

24 The grounds of review available in this case were limited to those set out in s 476 of the Migration Act 1958 (Cth) as it stood prior to the most recent amendments to Pt 8 of that Act which took effect on 2 October 2001. Despite the formulation of the grounds in the application by reference to those available under the Act, the challenge to the Tribunal's decision in this case reduced, in my opinion, to a challenge to the factual merits and the evaluative judgments made by the Tribunal.

25 At the outset counsel for the applicant abandoned reliance upon the no evidence ground set out in par 5.3 of the application. Nor was any argument advanced based upon particulars (a) or (d).

26 The first attack, under particular (b), in relation to the alleged errors of law on the part of the Tribunal relied upon par 17 of its reasons. In par 17 the Tribunal said:

"17. The Tribunal notes that the 'special need relative' provisions are intended to cater for situations such as an incapacitating illness or disability creating a need for physical assistance in the home. Although 'assistance' is not defined within the legislation, it is policy that the assistance to which the regulation refers is that which a welfare, hospital, nursing or community services in Australia may usually be expected to provide in these circumstances. Furthermore claims to be a relative in special need should generally be supported by professional opinions and the level of assistance required, should be of a 'substantial and continuing' nature."

This paragraph was said to reflect an impermissible narrowing of the definition of special need relative in Regulation 1.03 by the confinement of "substantial and continuing assistance" to "physical assistance in the home". Reference was made to Vo'ifaleahi v Minister for Immigration (1996) 65 FCR 52 at 60 where Ryan J observed that although the definition of "special need relative" is largely concerned with medical issues this does not mean that the assistance which the relative provides must be wholly or primarily medical or even physical. In this respect his Honour cited the judgment of Burchett J in Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 at 527.

27 The passage from the Tribunal's reasons cited by counsel for the applicant evidently refers in a summary way to the policy guidelines in the PAM3 concerning special need relatives. While the Tribunal was entitled to have regard to the policy guidelines, it could not be so confined by them as to limit the range of considerations to which it should properly have regard. Nor was it in this case. The Tribunal went on to refer to the decision in Fuduche and specifically the observation by Burchett J that the definition of special need relative is "... largely concerned with medical issues although not exclusively" (Tribunal reasons par 18). It distinguished Fuduche on the facts, finding that the nominator had "no history of 'psychiatric disturbance' as had Ms Longhurst in Fuduche's case" (Tribunal reasons par 19). Reference was also made to the observations of the Full Court in Minister for Immigration and Multicultural Affairs v Teo (1995) 57 FCR 194 that the approach in Fuduche requiring a "broad and generous construction" to be given to Regulation 1.03 was not a correct rule for interpreting provisions reflecting a compromise between competing interests. In Teo the Court was concerned with a compassionate ground for which Regulation 131A of the Migration Regulations 1989 then provided. Its observation, however, on the correct approach to construction was of general application:

"The result, if the statute and regulations are taken as a whole, is to disclose a compromise which represents a balance between various competing interests which are involved. The particular pattern which is set in this way is not to be distorted by treating one element in it other than in accordance with the fair meaning allowed by the language which has been used. There is no reason to give a 'broad and generous construction' to reg 131A. To do so may detract from the force given in the balance of the legislative scheme to the other interests which are involved. These include the view taken by other branches of government and reflected in the legislative text, being the statute and the regulations, of the social and material interests of the country as a whole in relation to the entry and settlement of aliens, and of the conditions which should be attached to permission to enter and stay in Australia..." (Teo at 206)

Insofar as the primary judge in Teo had criticised the Tribunal in that case for not construing the legislation in the manner discussed at Fuduche, the Full Court did not agree. The primary judge in Teo was Burchett J who drew upon what he had said in Fuduche in his approach to the construction of the compassionate ground for which Regulation 131A provided. In the event the Tribunal did not limit its consideration of the kind of assistance that would be relevant for determining whether the applicant was a special need relative to the medical or physical. This is apparent from the discussion of their close relationship, the nominator's "moderate to severe" depression and mild anxiety and the emotional, psychological and physical support which it was reported the applicant had provided to him in the past. The Tribunal considered that such assistance could be obtained from community, welfare or similar organisations. This was an evaluative judgment of a factual nature which it was within the scope of the Tribunal to make and which was not, on the face of it, informed by any error of law.

28 The second attack on the Tribunal's reasoning, under particular (c), related to par 25 where the Tribunal said, inter alia:

"There is no evidence before the Tribunal that the nominator suffers from any physical or emotional ongoing disability or other serious circumstances. Rather in the visa applicant's submission dated 12 January 1999, the visa applicant claims that the nominator requires the 'special need relative' because 'Now he is very concerned about my situation and is facing depression as I was his only help and support'."

This, it was said, was contrary to the findings of Ms Kooperman, the clinical psychologist, and reflected a failure to take into account her opinion that the nominator may deteriorate in terms of productivity and mental and physical health if the applicant were to leave Australia. It was said to point to the special need of the nominator which could only be fulfilled by the applicant and not reasonably by any welfare, hospital, nursing or community services due to cultural and social factors involved in this case. The fact is, however, that the Tribunal did give express consideration to Ms Kooperman's report. It did that in par 26 of the reasons. There is undoubtedly a tension between pars 25 and 26. The former asserts no evidence of emotional ongoing disability, while the later acknowledges the evidence of moderate to severe depression. It also refers to the report's discussion of the emotional, psychological and physical support which the applicant had provided to the nominator in the past. Apparently acknowledging that support the Tribunal nevertheless considered that such assistance could be obtained from community, welfare or similar organisations. In the event, although there is some infelicity in its expression, the Tribunal's judgment is evaluative in character and governed ultimately by its view that assistance was available from alternative sources within Australia. Even if this reasoning discloses some factual error, it does not disclose an error falling within the grounds of review.

29 Particular (d) of the grounds of review seems to have rested upon a typographical error in the Tribunal's reasons where there is a reference to the applicant's "mother" plainly intended to be a reference to his "brother". In any event that ground was not pressed.

30 Particular (e) of the grounds of review involves an attack on the Tribunal's reasons in par 29 where it said:

"The Tribunal referred earlier in this statement to the visa applicant not disputing that he was working at the time of application and continues to be employed at time of this review. (sic) The Tribunal agrees with the delegate that in incorporating seeking to work, the visa applicant has effectively reduced his claims to be a 'special need relative'."

This was said to demonstrate error on the part of the Tribunal in applying the law to the facts. The Tribunal by making this finding had given its own interpretation to the definition excluding persons in employment from the category of "special need relative". Counsel for the respondent submitted however that the Tribunal should be understood as saying no more than that the applicant's employment militated against a finding that he was providing the requisite level of assistance, not that his employment precluded that conclusion. I accept the submissions of the respondent in this respect which reflect a fair interpretation of the Tribunal's reasoning. That is to say the applicant's work commitments compromised his claims to be a special need relative.

Conclusion

31 In my opinion none of the grounds of review is made out and the application must be dismissed.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French .

Associate:

Dated: 21 February 2002

Counsel for the Applicant:	Mr S Singh
Solicitor for the Applicant:	SS Chohaan
Counsel for the Respondent:	Mr AA Jenshell
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 January 2002
Date of Judgment:	21 February 2002