Kim v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1114

THIRD RESPONDENT

JUDGE: LANDER J

DATE: 14 OCTOBER 2003

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The applicant, Kyoung Soon Kim, is a Korean citizen. She is presently in Australia with her husband and child. Her brother, Kwang Il Kim, is an Australian citizen. He is the applicant's nominator. On 28 October 1998 Kyoung Soon Kim applied for a Family (Residence) (Class AO) visa. Her husband and child were secondary applicants. Their applications depended upon the success of Kyoung Soon Kim's application. I only need to deal with her application. 2 The delegate of the Minister refused the grant of a visa on 29 March 2000. On 20 April 2000 Kyoung Soon Kim lodged an application for review with the Migration Review Tribunal (the Tribunal). On 25 February 2002 the Tribunal affirmed the decision under review finding that the visa applicants are not entitled to the grant of Family (Residence) (Class AO) visas. 3 Regulation 806.213 of the Migration Regulations (as at the date of the application for a visa) provided for the grant of a visa where the visa applicant was a 'special need relative' of a settled Australian citizen. The applicant claimed to be a special need relative of her brother. The term 'special need relative' no longer appears in the regulations, but at the time of the application and hearing, reg 1.03 defined the term 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.' 4 First the applicant needed to establish that the nominator is settled in Australia. Settled is defined in reg 1.03: '"Settled" in relation to an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means lawfully resident in Australia for a reasonable period'. 5 The Tribunal found that the applicant's brother, the nominator, was a settled Australian citizen. 6 The applicant needed to establish that her brother had a permanent or a long term need for assistance because of disability or prolonged illness and that she was willing and able to provide substantial and continuing assistance which cannot reasonably be obtained from any other relative of her brother or welfare, hospital, nursing or community services in Australia. 7 She could not bring herself within the definition of special need relative unless she made out all of those matters. 8 The Tribunal was obliged to determine whether the applicant satisfied the criteria both at the time of the application and at the time of the decision: reg 806.221. 9 The Tribunal found that the nominator was suffering from a medical condition being serious eye sight problems which made him eligible for a disability support pension. It found that the nominator needed assistance with domestic duties such as washing, cooking and cleaning and transportation of the nominator's children to and from school. It further found that the nominator was in need of emotional support and assistance because of his inability to accept the injury from which he suffers and the limitations on his lifestyle. 10 The Tribunal found that the visa applicant was at all times willing to provide the assistance to the nominator and it found that there was no indication that she did not have the ability to provide the assistance. 11 Thus it is that the Tribunal found all of the matters necessary for the applicant to qualify as a special need relative in the preamble to that definition and par (a). However the applicant also needed to establish the matters in par (b) and in that regard she failed. 12 The Tribunal found that the nominator's wife could provide the domestic assistance required by the nominator. Such an obligation would impose a burden on the nominator's wife but the Tribunal found that such needs could be reasonably met by her. 13 It also found that the nominator's wife could meet the needs of her children regarding travel to and from school. So also she could assist the nominator to travel to and from medical appointments. Alternatively the nominator could use transport services or private taxi services for his travel to and from medical appointments. 14 He then dealt with the emotional support and assistance and said: 'It emerged during the hearing that a substantial part of the needs which were identified by the visa applicant and nominator related to the emotional support he felt he required. All those giving evidence, including the nominator, indicated that he had difficulty in coming to terms with the limitations which his conditions placed on his life. He appeared to feel that he was not providing appropriately for his family and this was said to result in periods of impatience and depression, sometimes expressed in violence towards family members. In the Tribunal's view, the needs arising from these issues for both the nominator and members of his family are real and substantial, however, assistance in relation to them is reasonably obtainable from existing services.' 15 The Tribunal found that the family could protect itself from the nominator's aggression and violence by resorting to the criminal law and crime agencies. It accepted that the applicant had sometimes mediated disputes within the family but it found that the family could obtain assistance from the police if it were needed. 16 This finding was criticised by the applicant's solicitor on this application for review but in my opinion the criticism was not valid. I do not think it was necessary in the circumstances of this case to determine whether the nominator's family needed to obtain support and assistance from others because of the nominator's aggression. It was not a relevant matter to consider. The question for the Tribunal to determine was whether the assistance which the nominator required could be reasonably obtained from other relatives or government agencies. It was not a relevant enquiry to ask whether the nominator's family required assistance for the purpose of considering the application for a visa under this regulation. 17 That aspect of the Tribunal's enquiry was irrelevant but nothing turns upon it because the Tribunal did consider the relevant matter. 18 The Tribunal did find that existing counselling services were available to the nominator which would cater for his needs. It accepted that the nominator did not use those existing counselling services but nevertheless found that they were reasonably obtainable by the nominator. 19 Lastly the Tribunal found that although the nominator and the applicant were very close as brother and sister and that he would miss her if she were not living in Australia, the relationship could not be said to constitute the basis for a substantial and continuing need for assistance. 20 It found that the difficulties which the nominator and his family unit experienced arising from his injury could be appropriately and reasonably dealt with through existing available services. The Tribunal commented at [26]: 'This does not, in the Tribunal's view, rely upon the visa applicant's physical presence in Australia. This is not to say that using available services will resolve these issues for the nominator's family. There appear to be very complex matters within the nominator's family which impact on their lives adversely, however, as the experience of the visa applicant over the past three years shows resolving such matters can be a complex and lengthy process. There remain in the family serious matters of concern and to that extent the effectiveness of the assistance provided by the visa applicant can be questioned. While the effectiveness of available services may also mean that all of the issues of conflict within the family will not be resolved, those services are available and, in the Tribunal's view, would be catering to the same needs for the family as the visa applicant has been doing since her arrival in Australia.' 21 This aspect of the Tribunal's reasons was also criticised by the applicant's solicitor but I think the criticism involves a misreading of the reasons. 22 The Tribunal found that the injury has had a significant and adverse effect upon the nominator and his family. It has given rise to serious and complex tensions between the nominator and his family. Even though the applicant has been providing services to him over the past three years, those services have not provided a resolution of those serious and complex tensions. Moreover, the available services which can be reasonably obtained may also not resolve those matters. However, those other services can be reasonably obtained and will meet the nominator's needs at least as well as the applicant has met those needs. 23 The respondent argued that this application for review was no more than a re-agitation of the merits. I accept that submission. The applicant was unable to satisfy the Tribunal of the matters contained in par (b) of the definition of special need relative. Failure to do so was fatal to her application for the grant of a visa of the kind sought. The Tribunal did not fall into any error in the way in which it approached its duty. Whilst it had regard to one matter that was irrelevant that did not impact upon its reasons. 24 The application for the review must be dismissed. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.