Abdulazeez v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 443
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Abdulazeez v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 443
File number: SYG 1485 of 2022 Judgment of: JUDGE LAING Date of judgment: 30 May 2023 Catchwords: MIGRATION - application for judicial review of a decision by the Administrative Appeals Tribunal affirming decision not to grant an Other Family (Residence) (Class BU) visa – whether the Tribunal overlooked evidence regarding the availability of support services – materiality – application succeeds Legislation: Migration Act 1958 (Cth) s 360
Migration Regulations 1994 (Cth)
Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 256 FCR 593
Karki v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 836
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497
Division: Division 2 General Federal Law Number of paragraphs: 38 Date of hearing: 24 May 2023 Place: Sydney Counsel for the Applicant: Mr D Godwin Solicitor for the Respondents: Mr L Dennis of Minter Ellison ORDERS
SYG 1485 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ISHAN SAMEER ABDULAZEEZ ABDULAZEEZ
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULUTRAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
30 May 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue, quashing the decision of the second respondent dated 14 September 2022 in case number 2012099.
2.A writ of mandamus issue directing the second respondent to determine the application for review according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant an Other Family (Residence) (Class BU) visa (Carer Visa).
BACKGROUND
The applicant applied for the Carer Visa on 9 July 2018 on the basis of care provided to his mother.
On 15 July 2020, the Delegate refused the application. The Delegate was not persuaded that it had been sufficiently demonstrated that the assistance required by the applicant’s mother could not reasonably be provided by her relatives in Australia. As such, the Delegate found that the requirements of reg 1.15AA and cl 836.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) had not been met.
The applicant applied to the Tribunal for review of the Delegate’s decision on 23 July 2020.
On 14 September 2022, the Tribunal affirmed the Delegate’s decision.
RELEVANT LAW
At the relevant time, cl 836.221 of Schedule 2 to the Regulations required as follows:
The applicant is a carer of a person referred to in clause 836.212.
Clause 836.212 stated:
The applicant claims to be the carer of an Australian relative.
Carer was defined in reg 1.15AA of the Regulations, which relevantly stated:
1.15AA Carer
(1) An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:…
(e) the assistance cannot reasonably be:
(i) provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or
(ii) obtained from welfare, hospital, nursing or community services in Australia…
THE TRIBUNAL’S DECISION
The Tribunal set out the background to the matter at [1]-[4] of its decision. At [6], it identified the issue in the case as being whether the applicant was the “carer” of his mother at the time of its decision.
At [10]-[16], the Tribunal considered the care needs of the applicant’s mother and the applicant’s role in meeting them. The Tribunal accepted that the applicant’s mother was fully dependant on others for activities of daily living (at [17]).
In relation to the question of whether the assistance could not reasonably be obtained from welfare, hospital, nursing or community services within Australia, the Tribunal observed that the applicant’s representative had previously submitted the following in an email dated 17 June 2020 (at [18]):
… However, the applicant is still in the process of gathering more medical reports for his mother, UK police check and evidence from community nursing homes and facilities on why they cannot provide his mother with assistance. They informed us that due to the social restrictions created by the covid-19, the medical doctors and specialists were not available to provide health assessments for the mother.
The Tribunal observed that very little written information had subsequently been submitted regarding this issue. The Tribunal considered that the only information in this regard that had touched upon the subject was contained in submissions from the applicant’s representative dated 12 September 2022, stating (at [19]):
… We re-iterate the family's belief that the only reasonable solution would be to permit Mrs Abed's son "the applicant" to provide her with the full-time, live-in care she needs. We also submit that on the evidence presented it is now open to the Tribunal to find that it would be completely unreasonable for Mrs Abed to place any reliance on the insufficient and limited public sector aged care services to meet her care needs.
The Tribunal then reasoned as follows at [20]-[24] of its decision:
20.At hearing, the Tribunal asked the applicant what, if any, enquiries had been made about whether the required assistance could be obtained from welfare, hospital, nursing or community services within Australia. The applicant replied that none had been made. When asked why none had been made, he said that he had to look after the resident and take care of her full-time. He said that he did not have time to go out and make enquiries.
21.The Tribunal summed up the concern it had. It told him that there seemed to be no issue that the resident required round-the-clock care and that he was currently looking after her as a dedicated carer. It told him that it considered it likely that the assistance could only performed by relatives of the resident in conjunction with each other and in conjunction with services in Australia. However, it put to him that it could only consider whether assistance cannot reasonably be obtained through the relevant services after enquiries had been made into those services. The applicant replied that the resident does not accept this help and she does not even want her daughters but only wants him. He said that she does not trust anyone. He said that he has his bed beside hers. He said that the resident is always scared and worried that he will leave her side.
22.The Tribunal has considered the information in front of it, including the testimony of the resident and the applicant at hearing. It accepts that the resident requires extensive assistance that cannot be performed by a relative unless he or she is a dedicated carer. In this regard, it accepts that the applicant is currently performing this assistance in a diligent and, frankly, sacrificial way. Further, it accepts that the assistance cannot be performed by several of the resident's relatives and the assistance would need to be rendered by services in Australia - either with some or no help from the resident's relatives. The Tribunal acknowledges that the resident may wish to be cared for by the applicant who is her son and accepts that this arrangement may have wide acceptance from family and from the Mandaean community. It also acknowledges that the resident's family may consider public sector aged care as being "insufficient" and "limited", although there has been no information submitted to substantiate this claim or similar claims about care facilities not being able to accommodate the specific dietary and clothing requests of Mandaeans.
23.However, the Tribunal must satisfy itself that enquiries have been made about what services, if any, are able to be obtained. Until this occurs, it is not able to consider the resident's wishes about how she should be cared for or her family's views about the suitability of alternative sources of assistance, and whether it would be unreasonable to obtain the relevant services.
24.On the evidence in front of it, the Tribunal is not satisfied that appropriate enquiries have been made about what assistance is able to be obtained. Without the benefit of having information about the resident's ability to obtain assistance, the Tribunal is not satisfied that the assistance required by her cannot reasonably be obtained from those services. As difficult a decision as it is to make, r.1.15AA(1)(e)(ii) is not met.
As the Tribunal was not satisfied that reg 1.15AA(1)(e)(ii) was met, the Tribunal concluded that the applicant was unable to meet cl 836.221 and affirmed the Delegate’s decision (at [25]-[28]).
PROCEEDINGS BEFORE THIS COURT
Grounds of application
The applicant commenced the current proceedings by an application filed on 7 October 2022. He relies upon the following sole ground of review:
1. The Tribunal failed to have regard to relevant evidence which bore upon a dispositive issue
Particulars
The Tribunal failed to have regard to the statements by the applicant's adviser at the hearing that in his years of experience in assisting with carer visa applications community service assistance is never available 24/7 and the maximum in home assistance that is offered by organisations is 5 hours a day 3 days a week
The evidence in question that the Tribunal was said to have failed to have considered was what was stated at the Tribunal hearing by the applicant’s representative, Dr Al Jabiri, as follows:
… in all my years of working for the carer visas that any department that could afford giving help as required 24 hours a day 7 days a week. This is a mission impossible. The best they can offer is three times a week with most spots of 5 hours.
The applicant submitted that, although the Tribunal had the power to take evidence by oath or affirmation under s 363(1)(a) of the Migration Act 1958 (Cth) (Act), this did not mean that what was provided to it outside of this process was unable to be received as evidence: Karki v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 836 at [69]-[71]; s 353 of the Act. The applicant submitted that the evidence in question that was provided by Dr Al Jabiri was of such a cogent, central and substantial nature that failure to have regard to it was capable of resulting in jurisdictional error.
In this regard, the applicant relied upon (inter alia) what was said in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111]-[112] per Robertson J:
111.In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
112.As the Full Court said in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims. To the extent that the Minister’s submissions involved the contention that it is always the case that these matters may be dealt with without reference to the Tribunal’s reasons I do not agree.
The applicant also relied upon what was said in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [13] per Bell, Gageler and Keane JJ (footnotes omitted):
13.Amongst the obligations to be observed by the Tribunal in the conduct of the review which are implicit in the scheme of Pt 7 is the obligation to reconsider the merits of the decision under review "in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself"[15]. That obligation is fundamental to the nature of the review for which Pt 7 provides. Whilst it is for the Tribunal to assess the relevance of, and the weight to be attributed to, any item of evidence, the Federal Court has properly recognised that the Tribunal would fail to perform its duty of review if it failed to take account of cogent evidence providing substantial support to the applicant's case[16], including any such evidence contained in a document or report provided to it by the Secretary, in the same way that the Tribunal would fail to perform that duty if it failed to take account of a substantial and clearly articulated argument advanced by the applicant in support of that case[17].
The Minister further drew attention to Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 at [27] per Kiefel CJ, Keane, Gordon and Steward JJ (footnotes omitted):
27. None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision maker's reasons discloses that the decision maker ignored, overlooked or misunderstood relevant facts or materials53 or a substantial and clearly articulated argument54; misunderstood the applicable law55; or misunderstood the case being made by the former visa holder56, that may give rise to jurisdictional error.
The dispute between the parties was a narrow one. The Minister did not dispute that the words relied upon by the applicant had been said to the Tribunal. This was acknowledged through admissions, rather than reliance upon any transcript of the Tribunal hearing. The Minister also did not dispute that what Dr Al Jabiri had said to the Tribunal was capable of being regarded as evidence (although the Minister submitted that the strength or cogency of that evidence was somewhat lessened by the fact that it was not taken in accordance with formal processes).
The Minister’s primary argument in this case was that the Tribunal did take the evidence into account, in a manner that informed its reasoning at [22] of its decision. The Minister observed that the Tribunal was not required to refer specifically in its reasons to every aspect of the evidence before it or every contention by an applicant: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 256 FCR 593 at [46] per French, Sackville and Hely JJ. The Minister submitted that at [22], the Tribunal had acknowledged and considered submissions regarding the perceived insufficiency in public sector aged care services. There, the Tribunal was said to have acknowledged the representative’s claim that those services were insufficient, but to have not been satisfied that cl 1.15AA(1)(e) was met in the absence of additional information supporting this claim.
The Tribunal’s reasoning at [22] is set out above. The focus of the Minister’s submissions was on the follow part of this paragraph:
22.… [The Tribunal] also acknowledges that the resident's family may consider public sector aged care as being "insufficient" and "limited", although there has been no information submitted to substantiate this claim or similar claims about care facilities not being able to accommodate the specific dietary and clothing requests of Mandaeans.
However, that part of the reasoning appears to have solely characterised the evidence under consideration as what the “resident’s family may consider”. The Tribunal appears to have understood that nothing had been put forward to substantiate or support what the family thought. This was in a context where the applicant had informed theTribunal that he had made no relevant enquiries (at [20]).
The language used in [22] does indicate that the Tribunal may have had in mind a submission that the applicant’s representative, Dr Al Jabiri, made in writing on the applicant’s behalf prior to the hearing. As set out at [19] of the Tribunal’s decision, that submission was as follows:
… We re-iterate the family's belief that the only reasonable solution would be to permit Mrs Abed's son "the applicant" to provide her with the full-time, live-in care she needs. We also submit that on the evidence presented it is now open to the Tribunal to find that it would be completely unreasonable for Mrs Abed to place any reliance on the insufficient and limited public sector aged care services to meet her care needs.
However, that written submission appeared to rely upon evidence that was otherwise before the Tribunal, including as to the “family’s belief”. This is not the same as the evidence that Dr Al Jabiri provided at the hearing. That evidence was to the effect that “in all [his] years working” with “the carer visas” he had learned (presumably from enquiries made by or on behalf of other clients) that it was “mission impossible” to obtain the “help as required 24 hours a day 7 days a week” from the public sector and that the “best they can offer is three times a week with most spots of 5 hours”.
I accept the applicant’s submission that this evidence was capable of being regarded as cogent and substantial, even if it would not necessarily have carried the day without further support. The evidence was certainly central to the applicant’s case and the issue before the Tribunal.
To appreciate why this is so, why I have drawn an inference that it was overlooked and why I find that the Tribunal’s error in this regard was material, it is necessary to consider the role of this evidence within the context of the Tribunal’s reasoning.
The Tribunal in this matter appears to have been inclined generally to take a generous view of the applicant’s evidence. In this regard, the Tribunal member’s sympathy for the family is readily apparent in the Tribunal’s reasoning.
The Tribunal appears to have accepted the detailed evidence that had been placed before it regarding the multiple, painful conditions from which the mother suffered. Those conditions included a number of physical conditions including degenerative disease and osteoarthritis, as well as “prolonged grief with major depressive disorder” (at [10]-[17]). The Tribunal accepted that the mother was “fully dependent on others for activities of daily living” and that “the assistance required was in most cases of a complete or full kind” (at [12] and [17]). The Tribunal accepted that the applicant’s mother required “extensive assistance that cannot be performed by a relative unless he or she is a dedicated carer” (at [22]).
The Tribunal accepted that the applicant was performing the role of his mother’s carer “in a diligent and, frankly, sacrificial way”. The Tribunal accepted that the assistance could not be performed by a number of the mother’s relatives and that it would need to be rendered by services in Australia, potentially with help from the mother’s relatives (at [22]).
However, the difficulty for the Tribunal was that it considered that it was “[w]ithout the benefit of having information about the resident’s ability to obtain assistance” beyond the family’s opinions (at [22]). The family’s opinions did not appear to have been informed by any enquiries having been made (at [21]). Without any evidence of such enquiries, the Tribunal did not consider that it was able to make a finding about the mother’s ability to obtain assistance from support services outside of the family (at [23]-[24]). Despite the Tribunal’s attempts to solicit greater evidence from the applicant in that regard at hearing, that evidence did not appear to have been forthcoming (at [21]). Therefore, somewhat reluctantly, the Tribunal appears to have considered that it was obliged to find that the applicant was unable to meet the criteria for the visa. In the Tribunal’s words, it found that this was the case notwithstanding how “difficult a decision as it [was] to make” (at [24]).
Within this context, any evidence put forward regarding the availability of support services was clearly of central relevance to the Tribunal’s decision. Given the Tribunal's focus upon this, and any suggestion of this, I find it difficult to accept that the Tribunal considered Dr Al Jabiri’s evidence on this subject without specifically referring to it in its decision. I therefore accept the applicant’s submission that this evidence was either misunderstood or overlooked.
If the evidence had been considered, then it is possible that the Tribunal may have considered it insufficient to alter its decision in the matter. I accept that Dr Al Jabiri’s evidence in this regard was general in nature. He did not precisely articulate the basis of his knowledge of the availability of support services, other than generally by reference to his years of experience working in the field of carer visas.
However, it is possible that the outcome in this matter may have been different if the Tribunal had considered Dr Al Jabiri’s evidence. This is apparent from the sympathetic approach that appears generally to have been taken by the Tribunal as constituted. It is supported by the difficulty that expressly attended the Tribunal’s decision in this matter. As found above, that decision appears to have been made on the understanding that there was no evidence before the Tribunal of the availability of public support services beyond the family’s opinions (uninformed by any enquiries). That understanding was incorrect.
I am therefore persuaded that the sole ground relied upon by the applicant demonstrates jurisdictional error.
CONCLUSION
For the above reasons, the application before this Court succeeds.
I will hear from the parties in relation to costs.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 30 May 2023
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