Wickramasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 916

FEDERAL COURT OF AUSTRALIA

Wickramasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 916

DINITHIE WICKRAMASINGHE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 413 OF 2002 BRANSON J 16 JULY 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 413 OF 2002

BETWEEN: DINITHIE WICKRAMASINGHE

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 16 JULY 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. There be no order for costs.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 413 OF 2002

BETWEEN: DINITHIE WICKRAMASINGHE

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE: 16 JULY 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for judicial review of a decision of the Migration Review Tribunal ("the Tribunal") whereby the Tribunal affirmed a decision made by a delegate of the respondent to refuse to grant to the applicant, her husband and child a Family (Residence) (Class AO) visa. 2 The first applicant claimed, and continues to claim, that she is a special need relative in respect of her younger sister and nominator, Ms Diluka Wijayakoon ("Ms Wijayakoon") who is a permanent resident of Australia. I stress, although I assume that it is unnecessary in this case where the applicant has legal representation for me to do so, that the merits of the applicant's application is not a matter with which this Court is entitled to concern itself. 3 Crucially, for present purposes, the applicant was entitled to be granted the visa which she sought only if she was at the time of her application a special need relative of her sister. Migration Regulation 1.03 relevantly defines a "special need relative" as: "… a relative who is willing and able to give substantial and 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 …" 4 The Tribunal, therefore, was required to determine whether it was satisfied that the applicant's younger sister, at the time of the applicant's application for the visa, had a permanent or long‑term need for assistance because of death, disability, prolonged illness or other serious circumstance affecting her personally. The applicant asserted that her younger sister at the relevant time had a strong psychological and emotional need for the applicant's help and support because of the younger sister's depression, extreme anxiety and vulnerability to stress. 5 This application, in my view, turns on the proper understanding of the following passage from the written reasons for decision of the Tribunal: "… the Tribunal is not satisfied that the nominator suffered from a level of psychological dependence, which could be described as serious. The fact that she was close to her sister, the visa applicant, and that she missed her cannot be seen, even in the context of some isolation in a new country, as a serious circumstance. There is no evidence that the nominator was unable or found it difficult to look after herself. The Tribunal is not able to except the opinion in Mr Kleynhans' report that the nominator had an abnormal psychological dependence on the visa applicant, noting that the indicators for that conclusion are in the most part normal and fundamental human needs." (emphasis added) 6 If the Tribunal is properly to be understood as asserting that there was literally no evidence that the nominator found it difficult to look after herself it would have to be concluded that the Tribunal overlooked the nominator's own statutory declaration dated 13 March 2002 in which she states that: "From the year of 1997 I found it difficult to cope with day to day work such as cooking, housekeeping, washing, shopping and even taking care of myself."