Ali v Minister for Immigration
[2016] FCCA 2314
•6 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALI v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2314 |
| Catchwords: MIGRATION – Application for judicial review of the decision of the Administrative Appeals Tribunal regarding a carer’s visa – whether the Tribunal’s decision regarding reg.1.15AA(1)(e) of the Migration Regulations 1994 discloses jurisdictional error – jurisdictional error found – relief granted. |
| Legislation: Migration Regulations 1994, reg.1.15AA, cl.116.221 of Sch.2 |
| Cases cited: Anveel and Ors v Minister for Immigration and Anor [2013] FCCA 2181 Nguyen v Minister for Immigration and Border Protection [2016] FCA 688 |
| Applicant: | AICHE JABAR ALI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1858 of 2015 |
| Judgment of: | Judge Jones |
| Hearing date: | 18 May 2016 |
| Date of Last Submission: | 18 May 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 6 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Goodwin |
| Solicitors for the Applicant: | Lawson Bayly |
| Counsel for the Respondents: | Mr Wood |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
A writ in the nature of certiorari issue quashing the decision of the Second Respondent dated 8 July 2015, to affirm the decision of the delegate of the First Respondent to refuse to grant the Other Family (Migrant) (Class BO) visas to the Applicants.
A writ in the nature of mandamus issue, directed to the Second Respondent, requiring it to determine the Applicants’ application according to law.
The First Respondent pay the Applicants’ costs in a fixed amount.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1858 of 2015
| AICHE JABAR ALI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This decision concerns an application for judicial review of a decision by the Administrative Appeals Tribunal (“the Tribunal”) dated 8 July 2015, affirming a decision of the delegate of the First Respondent (“the Minister”) refusing to grant the Applicant’s son, Mohamed Dabbagh (“the visa Applicant”), and his dependents, an Other Family (Migrant) (Class BO) visa, subclass 116 (Carer) (“the carer visa”).
The issues in this case concerned the construction and application of reg.1.15AA(1)(e) of the Migration Regulations 1994 (“the Regulations”).
The criteria for the grant of the carer visa are set out in cl.116.221 of Sch.2 to the Regulations. Relevantly, it required the Tribunal to be satisfied that the visa Applicant was the “carer” of his mother, the review Applicant. The expression “carer” was defined by reg.1.15AA(1) of the Regulations, which relevantly provided as follows:
An applicant for a visa is a carer of a person … if:
(a) the applicant is a relative of the resident; and
(b) according to a certificate that meets the requirements of subregulation (2):
(i) a person … has a medical condition; and
(ii) the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and
…
(iv) because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and
…
(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;
…
(my emphasis)
The particular issues raised by the Applicant’s grounds of judicial review are:
a)whether the Tribunal made a finding in relation to reg.1.15AA(1)(e)(ii) of the Regulations, which was not open to it on the evidence before it;
b)whether the Tribunal asked itself the correct question in relation to reg.1.15AA(1)(e)(ii) of the Regulations;
c)whether reg.1.15AA(1)(e)(i) and (ii) of the Regulations permits the Tribunal to make cumulative findings or constrains the Tribunal to make separate findings with respect to sub paragraphs (i) and (ii) (ground two); and
d)whether the Tribunal failed to consider a claim or integer of a claim or material that assistance cannot reasonably be provided by each of the Applicant’s grandchildren.
It should be noted that the issue identified in 4(c) above was recently considered by Buchanan J in Nguyen v Minister for Immigration and Border Protection [2016] FCA 688 (“Nguyen”). This decision was delivered after the final hearing of this matter. Counsel for the Applicant properly conceded that this Court would be bound by the decision of the Federal Court, unless it formed the view that the decision was plainly wrong. Counsel for the Applicant stated that it was not his intention to make a submission that the decision is plainly wrong. In Nguyen His Honour held that, properly construed, a decision-maker is required to be satisfied that assistance is not reasonably available from either the relatives or external services. Consequently, the decision-maker is not constrained to be satisfied that the assistance referred to in reg.1.15AA(1)(e) of the Regulations is not reasonably available from either the relatives or external sources, rather than a combination of two: [32]. In the absence of submissions to the contrary, I am satisfied that I am bound by the decision in Nguyen. Consequently, I find that ground two does not give rise to jurisdictional error.
Background
At the time of the Tribunal decision, the Applicant was 72 years old and a permanent Australian resident. She was born in Lebanon and arrived in Australia in December 2002. She suffers from significant disabling medical conditions, including poorly controlled diabetes, with its associated problems of kidney disease, peripheral vascular disease, diabetic retinopathy and neuropathy and ischaemic heart disease. She also suffers from hypothyroidism, chronic low back pain secondary to severe spinal canal stenosis and left lower limb DVT (deep vein thrombosis). She is immobile without a walking frame, spends most of the time in bed and has been medically assessed as requiring high-level care in the future (CB 223).
On 30 October 2013, the visa Applicant, his wife and five children, applied for Carer visas. The basis of that application was that the visa Applicant was willing to and would care for the Applicant. The visa Applicant’s wife and children were included in the application as secondary Applicants.
The Applicant’s adult relatives living in Australia, identified by the Tribunal were:
a)her daughter, Fatme Dabbagh (also referred at times by the Tribunal Member as Fatme Tabbit) (“Fatme”). The Applicant lives with Fatme;
b)her daughter, Khadije Dabbagh (“Khadije”);
c)her daughter, Samira Tabbit (“Samira”); and
d)her half brother, Mohamed Helou (“Helou”).
Fatme, Khadije, Samira and Helou each provided statutory declarations and corroborative materials to the Tribunal, stating why they cannot reasonably provide assistance to the Applicant (CB 365 to 367). Fatme told the Tribunal that she “is now looking after her mother with the help of a neighbour. She said she would not be able to do so much longer as her mother’s health has deteriorated and she requires more for care” (CB 369 at [10]).
The Applicant has adult grandchildren:
a)Sabrine Dabbagh (“Sabrine”), who previously cared for the Applicant in Fatme’s home. Sabrine provided a statutory declaration to the Tribunal. She said she was unable to “keep taking care of my grandmother because I have been diagnosed with severe depression and anxiety”. She also provided correspondence from her doctor stating that she has been diagnosed with depression and anxiety, has a mental health care plan, is under the care of psychologists and is being treated with antidepressant medication (CB 367). Fatme told the Tribunal that Sabrine had left her home, was married and had a new baby (CB 369 at [10]).
The Tribunal also identified (CB 369 at [11]) a further seven adult grandchildren, each of whom were identified by the Tribunal as Fatme’s children, based on the evidence given by Fatme at the Tribunal hearing as follows:
a)an unnamed 21 year old son who was ‘engaged to be married and will be moving out of home soon’, and who ‘works in the manufacture of aluminium frames in a factory’;
b)a 33 year old ‘daughter’, Billal, who herself has “an eight year old daughter who lives with her and her second husband”, and who had “been involved with the court in relation to disputed access of her daughter”;
c)an unnamed son, who was ‘married in Lebanon and lost his house in Australia to the bank and is now staying in various places’, and who worked as a mechanic’s apprentice;
d)an unnamed 36 year old son, who was ‘married with two children aged three and five years’, and who worked as a boilermaker whose wife worked part-time;
e)an unnamed 38 year old son, who was ‘married with two children aged 12 and 18 and he works for the RACV’, whose wife also worked;
f)an unnamed 28 year old daughter, who was ‘divorced with a six year old daughter who lives with her and works in a beauty centre’, and who ‘also has an eye condition’; and
g)an unnamed 29 year old son, who was ‘married with three children aged 3 months, six and four years’.
Having read the transcript of selected parts of an audio recording of the Tribunal hearing contained in an affidavit of Lawson John Bayly filed on 5 May 2016, I am satisfied that the Tribunal’s record of the evidence was incorrect in the following way. Billal is the Applicant’s 33-year-old son, who worked as an apprentice mechanic, has an eight-year-old daughter (who lives with his first wife), who lost his house to the bank, has remarried and his second wife is pregnant. He has no permanent place of abode and lives temporarily in various places. In other words, the grandchildren, who were separately identified in c) and d) above are one and the same man.
Tribunal decision
The Tribunal found in respect of Khadije, Samira and Helou, that they cannot reasonably or were unable to provide the level of assistance required by the Applicant (CB 374 at [51], [52] and [54] to [55]). The Tribunal found in relation to Fatme that she “is unable to provide the level of assistance and care required by her mother on her own” (CB 374 at [51]) (my emphasis).
With respect to reg.1.15AA(1)(e)(ii) of the Regulations, the Tribunal noted that an Aged Care Assessment was undertaken on 26 May 2014 and that (CB 374 to 375 at [58]):
…the review applicant was offered a number of services including a home care package level 3 and 4, respite care (which she is reluctant use), nursing, podiatry and physiotherapy services. The review applicant has also had occupational therapy services and several modifications were recommended to the house. The Tribunal notes that a home care package level ¾ is designed for people with intermediate care needs and people with high care needs…
(footnotes omitted)
The Tribunal went on to state (CB 375 at [59] to [61]):
59. The evidence from (Fatme) is that there have been some difficulties with obtaining these services but was not able to provide any details. It appears that an application has been made to the local council for some services but these have not been provided. It was unclear to the Tribunal why this was the case.
60. The Tribunal is not satisfied on the available evidence that the relevant services cannot reasonably be obtained to provide (Fatme) and other members of her family, including her own children, with assistance in looking after her mother. Given that the Aged Care Assessment Team have assessed the review applicant as having intermediate and high care needs, she should be able to obtain far more assistance in the home on a daily basis than nursing services once a week which is what (Fatme) claims is presently the case. On the available evidence, the Tribunal is not satisfied that the review applicant and her family have availed themselves of the full extent of the services offered or available.
61. The Tribunal notes the review applicant wishes her son to care for her and culturally it is appropriate for him to do so. The Tribunal accepts the review applicant is reluctant to accept services and assistance that are available from welfare and community agencies, however the Tribunal considers that such services would complement the assistance which can be reasonably provided collectively by the review applicant’s extended family, including (Fatme’s) children in Australia. There has been little evidence provided as to why they cannot assist in the care of their grandmother.
The Tribunal then proceeded to make its ultimate finding (CB 375 at [62]):
The Tribunal finds that when the full extent of the assistance available from welfare and community services in Australia is accepted and combined with the assistance which could be reasonably provided by relatives, mainly grandchildren of the review applicant resident in Australia, this would meet the assistance requirements of the review applicant. Accordingly the Tribunal is not satisfied that the assistance cannot reasonably be provided by a relevant Australian relative or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e) are not met.
Reg.1.15AA(1)(e) of the Regulations - the Authorities
It is appropriate to set out various authorities which have considered the construction of reg.1.15AA(1)(e) of the Regulations, its predecessor or other regulations expressed in similar terms.
The starting point is the decision of Ryan J in Naidu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 140 FCR 284 (“Naidu”). As observed by Buchanan J in Nguyen, in Naidu Justice Ryan considered an earlier version of reg.1.15AA(1)(e) of the Regulations, which required assessment of whether assistance could not reasonably be obtained from either relatives or external services, rather than, as is the case now, whether assistance could not reasonably be provided by relatives or obtained from external services: Nguyen at [25]. Having considered early authorities, Justice Ryan relevantly said this about the distinction between the use of the words “obtained” and “provided”:
21. With respect, I consider that the line of authorities discussed above correctly identifies that, in assessing whether reg 1.15AA(1)(e) of the Regulations has been satisfied, a real conceptual distinction has to be drawn between whether the assistance can reasonably be obtained from relatives and whether it can reasonably be provided by relatives. Whether something can be provided is a notion that is addressed from the perspective of the provider. Conversely, whether something can be obtained is addressed from the perspective of the person requiring what is to be obtained. The language of reg 1.15AA(1)(e) uses the word “obtained” and therefore, in my view, it requires the question to be directed to the point of view of the person who needs the assistance.
22. The significance of the distinction becomes apparent when one applies the concept of “reasonableness”, as reg 1.15AA(1)(e) requires. The structure of the paragraph entails that reasonableness must be assessed in light of the circumstances of the applicant, not of the relatives who might be proposed as being expected to provide the care. It may be a reasonable expectation that members of a resident’s family will provide care in a particular case. If, contrary to that expectation, a resident’s children refuse to provide the requisite care, that refusal may be unreasonable when viewed from the standpoint of the children. A refusal by the available children to provide the care, even if unreasonable from that standpoint, cannot detract from the conclusion, from the standpoint of the resident, that he or she cannot reasonably obtain the care.
In Anveel and Ors v Minister for Immigration and Anor [2013] FCCA 2181 (“Anveel”), Judge Nicholls considered the current version of reg.1.15AA(1)(e), noting the explanatory memorandum to the amendments of reg.1.15AA(1)(e) of the Regulations (at [26]):
… the Explanatory Memorandum to the amendment to the Regulations (Selective Legislative Instrument 2009 No. 289 (“the Explanatory Memorandum”)):“The purpose of this amendment is to ensure that it is open to decision-makers to conclude that assistance could reasonably be provided by relatives residing in Australia even in circumstances where those relatives residing in Australia claim to be unwilling or unable to provide assistance.”
Drawing on the distinction identified in Naidu, Judge Nicholls said this about the use of the word “provided” and the meaning of “reasonably” (at [57] and [60] to [62]):
57. That distinction made plain that, in circumstances where the word “provided” is used, the question posed by the regulation “is addressed from the perspective of the provider” (Naidu at [21]). In this light, therefore, it is open to assume that when the regulation was amended, the use of the word “provided” as it related to Australian relatives was used in the knowledge of the answer given by the Federal Court to the Minister’s submissions in Naidu.
…
60. But that reference in Naidu was plainly directed to circumstances where the operative word in the regulation was “obtained”. The Tribunal’s reporting of only this part of what appears in Naidu, in the context of the change brought by the amendment in relation to care from Australian relatives (“provided”), ignores the authoritative explanation given by the Court in Naidu (at [21]) of what would be the relevant requirement as to “reasonableness” if the operative word were “provided”.
61. This does not mean that it is not necessary to look at what care is actually required by the person needing care… But it also requires consideration of whether the care can be reasonably “provided” by the Australian relatives, which requires a focus on whether they cannot reasonably provide it, from their perspective.
62. It is important to note that the relevant test at reg.1.15AA(1)(e)(i) of the Regulations is stated in the negative. It is not whether the care “can” be “provided”, it is whether it “cannot” be provided by the Australian relatives. The focus of the Tribunal therefore must be on the reasons as to why the relatives cannot provide the care.
As to the obligation on the Tribunal when focusing on whether the relatives cannot reasonably provide assistance from their perspective, Judge Nicholls relevantly said (at [67] to [70]):
67. I agree with the applicants that the Tribunal had “scarce” regard to the Australian relatives’ circumstances such that it could be said it considered whether the assistance required by Mrs Rawaini could not reasonably be provided by “any other relative” (emphasis added).
68. At [122] (at CB 306), the Tribunal focused on Mrs Rawaini and some of her needs (no difficulty arises with that on its own), and stated that it had had regard to the evidence of “all seven of the applicant’s siblings”, and then turned to some of Mrs Rawaini’s personal circumstances.
69. It is the case that, at [123] (at CB 307), the Tribunal makes certain findings in relation to the “sponsor’s Australian relatives”. However, these findings are absent any analysis as to the reasoning leading from the evidence to the findings. This is so despite the Tribunal’s earlier declaration at [122] (at CB 306) that it had regard to the evidence of the relatives. There is little, if anything, here to reveal that the Tribunal actually did so. Importantly, it is of note that the Tribunal made reference to only some factors each of only two of the seven relatives. The test of reasonableness, it must be emphasised, requires (given the authorities and the analysis above) consideration from the perspective of the Australian relatives. That is, all of them given the wording of the regulations (“any other relative”).
70. Plainly, this does not mean that the Tribunal must accept, uncritically, the evidence of the Australian relatives. However, there is nothing to show that it satisfactorily considered the relevant question from the appropriate perspective.
In Biyiksiz v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 814, the Court considered the definition of a “special need relative” under the Regulations, which required, amongst other things, that assistance could not reasonably be obtained from any other relative living in Australia or welfare, hospital, nursing or community services in Australia. In relation to the second limb, the Court said (at [17] and [20] to [21]):
17… to accord with the purpose of the Migration Regulations in this respect, it is necessary to construe ‘cannot reasonably be obtained’ as ‘cannot reasonably be obtained by the person requiring assistance’. It is necessary to recognise that this aspect of the definition of ‘special need relative’ focuses on obtainability by the person requiring assistance, as distinct from availability to the person requiring assistance.
…
20 … The words ‘cannot reasonably be obtained’ must be construed by reference to 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…
21. For this reason, factors that are subjective to the person requiring long-term assistance will be of relevance in determining whether assistance can reasonably be obtained by that person from sources other than an applicant for the relevant visa…
In Nguyen, Justice Buchanan said with respect to an appeal ground alleging the Tribunal erred in considering whether it was reasonable for the relatives of the Applicant, rather than the Applicant, to obtain (and pay for) external services (at [22] and [24]):
22. Regulation 1.15AA(1)(e) (set out earlier) does not stipulate who might arrange, or be expected to arrange, either assistance by a relative or assistance in some other form. In my view, it is the demonstrated absence of assistance to the requisite level, from either relatives or elsewhere, which is the foundation for the operation of this part of the defined meaning of care. The assistance referred to in reg 1.15AA(1)(e) is that assistance necessary in the circumstances described in reg 1.15AA(1)(b) …
…
24. Those stipulations do not directly cast the onus, in my view, on either the family of a “resident” (i.e. the person needing care) or the resident herself. I would think that it is entirely reasonable to consider whether the services referred to in reg 1.15AA(1)(e) might be obtained by either such a resident (in this case the appellant) or by members of the family of the resident in an appropriate case.
His honour concluded (at [27] and [29]):
27 … I can see no reason why family members might not be expected to be involved in decisions about obtaining such care when appropriate or necessary.
…
29. I see no reason to consider that the AAT made a jurisdictional error by examining whether the family (who wished the additional son to come to Australia to relieve their own burden) could reasonably be expected to obtain external services to supplement the assistance they could reasonably provide from their own time and resources.
It seems accepted that as a matter of construction the reference to “any other relative” in reg.1.15AA(1)(e)(i) of the Regulations, which is obviously expressed in the singular, includes a reference to the plural and, consequently, the assistance provided by relatives may be given collectively: see Nguyen at [15]; and Jajo v Minister for Immigration and Border Protection (2013) 281 FLR 269 applying the reasoning of Allsop J (as his Honour then was) in Azzi v Minister for Immigration and Multicultural Affairs (2002) 120 FCR 48.
Grounds of Judicial Review
I shall deal with grounds one and three in the order that they were dealt with by Counsel for the Applicant at the final hearing of this matter.
Ground three: Failing to deal with an integer of a claim or take into account relevant material in respect of reg 1.15AA(1)(e)(i) of the Regulations
Ground three of the application for judicial review is as follows:
3. The Tribunal failed to deal with a claim or an integer of a claim, or failed to take into account relevant material.
Particulars
a. The Tribunal was required to assess the question of whether the relevant assistance could not reasonably be provided by any other relative from the point of view of the particular ‘provider’, and to consider the reasons advanced as to why the relative could not provide the assistance: Anveel & Ors v Minister for Immigration & Anor [2013] FCCA 2181 at [74]; Naidu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1692 at [21].
b. The review applicant claimed that none of her adult grandchildren could reasonably provide relevant assistance. The review applicant’s daughter Fatme gave detailed evidence at the hearing before the Tribunal in respect of each of these grandchildren’s circumstances.
c. The Tribunal failed to make specific findings in respect of the claims relating to the circumstances of the review applicant’s grandchildren, and in particular whether each of them could reasonably provide relevant assistance to the review applicant. Instead, the Tribunal stated that ‘there has been little evidence provided as to why [the review applicant’s grandchildren] cannot assist in the care of their grandmother’: paragraph [61] of the Decision Record.
d. In so far as the Tribunal’s decision was based on a finding that the relevant assistance ‘could be reasonably provided by relatives, mainly grandchildren of the review applicant resident in Australia’ (paragraph [62] of the Decision Record), the Tribunal failed to make findings or to address the specific evidence as to the circumstances of each of the review applicant’s grandchildren and their capacity to provide the relevant assistance to the review applicant.
e. Further or alternatively, the review applicant’s granddaughter Sabrine claimed in a statutory declaration dated 20 March 2014 that she was ‘unable to keep taking care of her grandmother’: paragraph [8] of the Decision Record. The Tribunal found at paragraph [50] of the Decision Record that the review applicant’s granddaughter Sabrine ‘no longer cares for her as she has married and recently had a baby’, and that there was evidence that Sabrine ‘suffers from depression and anxiety for which she is being treated and part of this condition was attributable to the previous care of the review applicant.’ The Tribunal failed to make a finding as to whether or not the review applicant’s granddaughter Sabrine could reasonably provide some or all of the relevant assistance to the review applicant.
The Applicant submits that the Tribunal was required to assess the question of whether the relevant assistance could not reasonably be provided by any other relative, determined from the point of view of each particular relative: Anveel at [69] to [74]. The Applicant concedes that the Tribunal engaged in the requisite consideration and analysis in respect of Fatme, Khadije, Samira and Helou. However, the Applicant contends the Tribunal failed to engage in the requisite consideration, in reaching its conclusion, that the Applicant’s grandchildren could provide assistance to her. The Applicant submits that the Tribunal made “no attempt to identify which grandchildren could or could not reasonably provide any assistance. It is therefore entirely unclear if and to what extent any of the grandchildren may have formed part of this hypothetical ‘joint effort’, and whether their role was essential to that effort. This is particularly so in circumstances whether the Tribunal had accepted a number of them did not live in Melbourne, the applicant’s place of residence”[1] (footnotes omitted).
[1] Applicant’s Written Submissions filed on 5 May 2016 at [32].
The Applicant accepts that the Tribunal may have been entitled to conclude that a number of different relatives could combine their efforts to satisfy the requirements of reg.1.15AA(1)(e)(i) of the Regulations. The Applicant submits, however, that the Tribunal failed to give proper consideration to the particular individual circumstances of those relatives: Anveel at [69]. This is evident, it is argued, from the generic nature of the conclusion of the Tribunal that the Applicant’s relatives, particularly her grandchildren, could provide her with care.
The Applicant submits that the individual circumstances of some of the Applicant’s grandchildren are recited in a highly “perfunctory” manner, in a single paragraph (at [11] of the decision record), but there is no attempt by the Tribunal to consider the significance of each of those circumstances from the particular point of that relative.
The Applicant submits that the failure of the Tribunal to engage in the consideration it was required to do, from the point of view of the Applicant’s grandchildren living in Australia, is evidenced by:
a)the fact that the Tribunal failed to properly understand Fatme’s evidence and thereby incorrectly recorded that Fatme had seven children, when in fact she only had six (see [11] above); and
b)the Tribunal’s failure to make a finding as to whether Sabrine cannot reasonably provide assistance to the Applicant.
The Minister submits, correctly in my opinion, that in relation to reg.1.15AA(1)(e) of the Regulations, the Tribunal must reach a state of satisfaction as to a negative state of affairs; namely, that the assistance (required by the Applicant) cannot reasonably be provided by any relative of the Applicant. The Minister argues that it is for the Applicant to put on whatever material it is thought necessary or sufficient to induce the Tribunal to form a positive view or permit a state of satisfaction that the negative fact exists. Counsel for the Minister accepts that this is an onerous task on the visa Applicant, but argues that this task flows from a clear intent of the legislature. The Minister relies on the decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 (“Lat”). The decision concerned the granting of a business skills migrant visa. Pursuant to the relevant regulations at the time, one of the stipulated criteria required that the Applicant “not have a history of involvement in business or investment activities that are of a nature not generally accepted in Australia”: at [2]. The Minister relies on the following extracts from the Full Court’s decision at [71] to [74]:
71. We do not agree with the federal magistrate that the delegate’s obligation under s 65 was to be satisfied that the criteria stated in reg 131.214 had been met.
72. In VSAF, Black CJ, Sundberg and Bennett JJ pointed out at [16]-[17] that s 65 of the Act, and the decision of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274-275, make it clear that the section requires the decision-maker to refuse to issue a visa in the absence of a positive finding of satisfaction.
73. Their Honours went on to say that there are many cases which show that findings of fact are not necessarily required to support a state of non-satisfaction. For example, in SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] a Full Court said that s 65 of the Act requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied.
74. It is true that the criteria in reg 131.214 are stated in the negative. But that does not alter the fundamental principle stated above. The delegate was obliged to refuse the visa in light of her failure to be affirmatively satisfied that the respondent did not have a history of involvement in unacceptable business activities.
The Minister submits that, in this case, the evidence before the Tribunal regarding the Applicant’s adult grandchildren living in Australia was limited, other than in the case of Sabrine, who, like Fatme, Khadije, Samira and Helou, provided statutory declarations and corroborative materials as to why they could not reasonably provide assistance to the Applicant.
The Minister submits that there was no direct evidence by any other adult grandchildren in the form of statutory declarations or medical evidence, as to why they could not reasonably provide assistance to the Applicant. The Minister argues that the Tribunal attempted to record the limited oral evidence (at [11] of the decision record) and correctly observed that little evidence was provided by those other adult grandchildren, as to why they cannot reasonably provide care to their grandmother (at [61] of the decision record). The Minister submits that it was the responsibility of the Applicant to provide the relevant direct evidence, as well as evidence at the hearing that her other adult grandchildren could not reasonably provide the assistance she required.
The Minister submits that the Applicant’s reliance on the decision in Anveel is misplaced, as it is evident from that decision (at [16]) that the relatives in question had provided statutory declarations and corroborative material in the form of medical records. These circumstances, the Minister argues, are to be distinguished from the limited material provided to the Tribunal regarding the Applicant’s other grandchildren.
The Minister submits that, on the limited material provided regarding the Applicant’s other grandchildren, the Tribunal could not be satisfied that they could not reasonably provide assistance to their grandmother, and thereby, the Tribunal was not required to make findings of fact or positive determinations regarding the lack of satisfaction: Lat (supra).
Consideration
Other than Sabrine, the evidence before the Tribunal, with respect to the critical matter upon which the Tribunal was required to form a state of satisfaction; namely, whether the assistance required by the Applicant cannot reasonably be provided by any other grandchild, was provided by Fatme at the Tribunal hearing.
I do not accept the Minister’s argument that, merely because there was no direct evidence in the form of statutory declarations and/or corroborative documentation, there was somehow not a claim made that the other grandchildren could not reasonably provide the assistance required. I agree with the Counsel for the Applicant, that the only purpose for Fatme’s attendance at the Tribunal hearing was to support her mother (the Applicant) and, in doing so, give evidence and submissions on the Applicant’s behalf regarding, amongst other things, the critical fact identified in [36] above.
Furthermore, whatever the nature of the evidence given by or on behalf of the Applicant in relation to the critical fact, the Tribunal was, in my opinion, in making its ultimate finding as to its satisfaction about the critical fact, obliged to at least identify the relevant evidence correctly, and in its decision record disclose its reasoning by which it reached its state of satisfaction or non-satisfaction regarding reg.1.15AA(1)(e)(i) of the Regulations. It may well be that this is a case in which findings of fact are not necessarily required to support a state of non-satisfaction: Lat at [73], but this does not absolve the Tribunal from engaging in cogent reasoning, leading from the evidence (whatever the state of the evidence) to its ultimate finding about its state of non-satisfaction.
I should say that I am conscious that in this case, the Tribunal reached its state of non-satisfaction regarding reg.1.15AA(1)(e) of the Regulations by considering sub paragraphs (i) and (ii) in combination, as it was perfectly entitled: Nguyen at [32].
The Tribunal observed that there was “little evidence provided as to why they (Fatme’s children) cannot assist in the care of their grandmother” (at [61] of the decision record). This may be so, however, the evidence as recorded by the Tribunal did include matters which may be relevant, such as family obligations, work commitments, strained personal circumstances and medical issues (such as visual impairment or blindness).
However, the decision record discloses no analysis of the evidence or a path of reasoning from the recorded evidence (at [11] of the decision record) to its findings that assistance could reasonably be provided by the Applicant’s other relatives, including the grandchildren (at [61] to [62] of the decision record).
The situation is somewhat complicated by the fact that the Tribunal, so far as it was referring to reg.1.15AA(1)(e)(i) of the Regulations, made findings which suggested that the Tribunal was erroneously focusing on whether assistance can reasonably be provided, rather than whether it cannot reasonably be provided by the Applicant’s grandchildren.
The Tribunal concludes (at [61] of its decision record):
“… however the Tribunal considers that such services would complement the assistance which can be reasonably provided collectively by the review applicant’s extended family, including (Fatme’s) children in Australia…”
(my emphasis)
The Tribunal in effect repeats this finding stating (at [62] of its decision record):
“The Tribunal finds that when the full extent of the assistance available from welfare and community services in Australia is accepted combined with the assistance which could be reasonably provided by relatives, mainly grandchildren of the review applicant resident in Australia, this would meet the assistance requirements of the review applicant…”
(my emphasis)
I accept that the Tribunal immediately went on to state its non-satisfaction as to the negative fact (at [62] of its decision record) as follows:
…the Tribunal is not satisfied that the assistance cannot reasonably be provided by a relevant Australian relative or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e) are not met.
However, in the absence of any analysis by the Tribunal, evidencing its reasoning connecting the evidence regarding the Applicant’s grandchildren and its findings, it is not evident whether the Tribunal focused on those relatives to address, from their perspective, whether they were able to reasonably provide assistance or whether from their perspective they were not reasonably able to provide the assistance required. This is not merely a question of semantics, it goes directly to the question of whether the Tribunal approached its task correctly.
There is no doubt that the Tribunal failed to make any finding about whether, having regard to Sabrine’s direct evidence, it was satisfied she was not reasonably able to provide assistance.
In circumstances where:
a)the Tribunal’s findings regarding the Applicant’s grandchildren (who were Fatme’s children) were perfunctory and general;
b)the Tribunal made no findings about the Applicant’s granddaughter, Sabrine;
c)the Tribunal disclosed a misunderstanding regarding the evidence given by Fatme about the circumstances of her children;
d)there is no analysis evident from the decision record that discloses any reasoning of the Tribunal connecting the evidence and its findings regarding the Applicant’s grandchildren with respect to reg.1.15AA(1)(e)(i) of the Regulations; and
e)it is not evident whether the Tribunal correctly applied the test under reg.1.15AA(1)(e)(i) of the Regulations to the circumstances of the Applicant’s grandchildren from their perspective,
I find that the Tribunal failed to complete or perform the statutory task required of it under reg.1.15AA(1)(e)(i) of the Regulations.
The Applicants have described their third ground of judicial review as the Tribunal having “failed to deal with a claim or an integer of a claim, or failed to take into account relevant material”. However, as has been observed by the Full Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 at [36], such descriptions may be no more than descriptions or explanations of the manner in which the Tribunal’s task has been miscarried and it is the miscarriage of the task which constitutes the jurisdictional error.
For the reasons set out above, I find that the Tribunal’s decision is affected by jurisdictional error.
Ground One
The Applicant’s first ground of judicial review is as follows:
1. The Tribunal erred in law by making a finding that was not supported by any evidence or by misapplying reg 1.15AA(1)(e)(ii) of the Migration Regulations 1994 (Cth) (the Regulations).
Particulars
a. The Tribunal was required to determine inter alia whether the assistance required by the review applicant ‘cannot reasonably be … obtained from welfare, hospital, nursing or community services in Australia’: reg 1.15AA(1)(e)(ii) of the Regulations.
b. The Tribunal noted at paragraph [58] of the Decision Record that ‘an aged care assessment was undertaken on 26 May 2014 and the review applicant was offered a number of services including a home care package level 3 and 4, respite care (which she is reluctant to use), nursing, podiatry and physiotherapy services’.
c. The Tribunal found at paragraph [59] of the Decision Record that ‘[t]he evidence from [the review applicant’s daughter] is that there have been some difficulties with obtaining these services but was not able to provide any details. It appears that an applicant has been made to the local council for some services but these have not been provided. It was unclear to the Tribunal why this was the case.’
d. In the absence of a positive finding as to why the services had not been provided despite an application having been made for those services, it was not open on the evidence to find that the services were available or could reasonably be obtained by the review applicant from welfare, hospital, nursing or community services.
e. Further or alternatively, the Tribunal failed to ask itself whether the services could not reasonably be obtained from the point of view of the review applicant, and in particular whether the review applicant’s reluctance to use respite care services was unreasonable. The Tribunal instead enquired into the general availability of assistance, finding that it was ‘not satisfied that the review applicant and her family have availed themselves of the full extent of the services offered or available [emphasis added]’: paragraph [60] of the Decision Record.
f. Further or alternatively, the Tribunal asked itself whether the assistance could reasonably be obtained by relatives of the review applicant for the purpose of assisting them to look after the review applicant, rather than the correct question of whether the assistance could reasonably be obtained from the point of view of the review applicant: paragraph [60] of the Decision Record.
I am not satisfied that this ground gives rise to a jurisdictional error for the following reasons.
Firstly, particular f) cannot give rise to jurisdictional error having regard to the decision of Buchanan J in Nguyen: see [22] to [23] above.
Secondly, particular d) is, with respect, misconceived. It is not for the Tribunal Member to make a positive finding as to why an external service had not been provided. The Tribunal Member’s task was to satisfy itself that an external service could not reasonably be obtained to assist with the Applicant’s requirements. As Counsel for the Minister pointed out, the clear evidence from an Aged Care Assessment, which was obtained by the Applicant for the purpose of funding, was that she was entitled to a home care package level 3 or 4 designed for people with intermediate care needs and high care needs (CB 351). The Applicant was also assessed as being entitled to respite care, however, as the Applicant expressed reluctance or fear to utilise that form of care (CB 353), the Tribunal did not consider this option.
Thirdly, the Tribunal clearly did consider whether the services cannot be reasonably obtained by the Applicant or her family. It is apparent from [59] and [60] of its decision record (see [14] above) that the Tribunal considered Fatme’s evidence regarding the difficulties they had experienced in obtaining the home care package, together with limitations on services from the local Council. However, the Tribunal reached the conclusion that it was not satisfied, on that evidence, that the relevant services cannot reasonably be obtained by the Applicant or her relatives. In my opinion, this is a finding that was open to it.
Fourthly, particular e) is, with respect, misconceived. So far as I can ascertain, the Applicant’s evidence about her reluctance or inability to access care, focused on her fear of respite care. As noted above, the Tribunal seemingly acknowledging the Applicant’s concern, considered whether the home care package could be reasonably obtained by the Applicant and/or her relatives. In these circumstances it was unnecessary for the Tribunal to ask the question which the Applicant asserts the Tribunal ought to have asked in particular e).
Conclusion
For the reasons set out in this judgment, Orders shall be made in the nature of certiorari quashing the Tribunal’s decision and mandamus directing the Tribunal to reconsider the matter according to law, together with an Order of costs against the First Respondent.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 6 September 2016
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