Case: Biyiksiz v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 814
Outcome: discussed
In support of her second ground of appeal, the appellant argued that the MRT wrongly failed to have regard to the subjective aspect of the relevant regulation. Counsel cited Biyiksiz v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 814 (" Biyiksiz ") and Xiang . In Biyiksiz , Gray J held (at [20]) that "the words 'cannot reasonably be obtained' must be construed by reference to the reasonableness from the point of view of the person requiring assistance, and not only by reference to the reasonable availability of the assistance from other sources." The appellant submitted that the MRT and the learned Federal Magistrate erred by failing to consider whether other sources of assistance were reasonably available from the point of view of the nominator. 18 First, I reject the appellant's submission that the MRT failed to have regard to the subjective element of the regulation. In particular, fairly read, the MRT's decision is consistent with the reasoning of Gray J in Biyiksiz and the Full Court's decision in Xiang . 19 In Biyiksiz , the nominator was an elderly woman of a Kurdish Alevi background. She spoke no English, speaking Kurdish and a rare dialect of Turkish. The visa applicant had raised the concern that, if her mother was placed in a nursing home, her mother would be unable to communicate with the staff or other residents. The MRT had found that, regardless of these potential difficulties, places were available in nursing home facilities: see Biyiksiz at [14]. 20 Gray J found (at [22]) that the MRT fell into error because it "considered the question whether assistance could reasonably be obtained from welfare, hospital, nursing or community services from the point of view of the availability of assistance from those services, and did not consider whether the assistance was reasonably obtainable by the applicant's mother from those services". His Honour noted (at [17]) that, in Australia health and welfare services are highly developed. As a result, if the mere availability of assistance from those services meant that assistance was reasonably obtainable, then "there would be very few, if any, [special need] visas granted". Accordingly, Gray J held that the MRT should consider not simply whether other sources of assistance were available, but whether it was reasonable for the nominator to obtain such assistance. 21 The facts of this case can be distinguished from those in Biyiksiz and there is nothing in Xiang that would suggest error here. In this case, the MRT focussed on the availability of assistance from other family members. Importantly, the MRT noted that, at the time of application, the nominator was living with one of her other children and other children lived nearby. The appellant did not hold a driver's licence and thus another child transported the nominator by car. Also, one of the nominator's other daughters had recently sponsored him for an aged parent visa. In these circumstances, it was plainly open to the MRT not to be satisfied that the requisite assistance could not reasonably be obtained from one or more of his other children in Australia or public services.