Anh Diec BY Her Litigation Guardian Ly Tu Linh v Minister for Immigration

[2016] FCCA 2009

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANH DIEC BY HER LITIGATION GUARDIAN LY TU LINH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2009

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether Administrative Appeals Tribunal erred in finding that the visa applicant could not provide assistance to the review applicant pursuant to reg.1.15AA(1)(e)(i) of the Migration Regulation 1994 (Cth) – whether Administrative Appeals Tribunal erred in finding that assistance to the review applicant could not reasonably be obtained from welfare, hospital, nursing or community services in Australia pursuant to reg.1.15AA(1)(e)(ii) of the Migration Regulation 1994 (Cth) – whether Administrative Appeals Tribunal erred in finding that the visa applicant is not willing and able to provide the review applicant substantial and continuing assistance pursuant to reg.1.15AA(1)(f) of the Migration Regulation 1994 (Cth) – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.31, 65, 338, 360, 474
Migration Regulations 1994 (Cth), regs.1.15AA, 2.01, Schedule 2 – cl.116.211

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Xiang v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 64

Applicant: ANH DIEC BY HER LITIGATION GUARDIAN LY TU LINH

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2221 of 2014

Judgment of: Judge Emmett

Hearing date: 14 June 2016

Date of Last Submission: 14 June 2016

Delivered at: Sydney

Delivered on: 10 August 2016

REPRESENTATION

Counsel for the Applicant: Mr Leonard Karp

Solicitors for the Applicant: VietAust Lawyers

Counsel for the Respondents: Mr David Hughes

Solicitors for the Respondents: DLA Piper Australia

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 2221 of 2014

ANH DIEC BY HER LITIGATION GUARDIAN LY TU LINH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 4 July 2014 and handed down on 7 July 2014 (“the Tribunal”).

2. The applicant in this matter is an elderly Australian permanent resident who resides in Australia (“the Review Applicant”). She sponsored her grandson (“the Visa Applicant”) to come to Australia on a carer visa.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.

Background

1. The Review Applicant and her husband suffer from a number of medical conditions. In September 2012, the Review Applicant’s daughter was granted a carer visa to provide care for the Review Applicant’s husband.

2. The Visa Applicant is a citizen of Vietnam and a grandson of the Review Applicant. On 17 December 2012, he lodged an application for an Other Family (Migrant) (Class BO) carer visa with the Australian Consulate-General in Ho Chi Minh City on the basis that he was willing and able to provide care to the Review Applicant. The Visa Applicant’s wife and two young children were included in his visa application as members of his family unit. Their claims are wholly dependent on those of the Visa Applicant.

3. On 28 May 2013, the Delegate refused the Visa Applicant’s application for a carer visa.

4. On 4 June 2013, the Review Applicant lodged an application for review of the Delegate’s decision by the Tribunal.

5. On 7 July 2014, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a carer visa.

6. On 8 August 2014, the Review Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. At the time of the Visa Applicant’s application, he was required to satisfy the criteria in cl.116.211 of Schedule 2 to the Regulations, as follows:

   “116.21 Criteria to be satisfied at time of application

   (1) The applicant claims to be a carer of an Australian relative of the applicant.

   (2) In this clause, Australian relative, in relation to an applicant, means a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.”

3. Further, cl.116.221 of Schedule 2 to the Regulations requires that, at the time of decision, the applicant is a carer of the Australian relative referred to in cl.116.211 of Schedule 2 to the Regulations.

4. The term ‘carer’ is defined in reg.1.15AA of the Regulations, which states:

   “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:

   (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 (being the resident or a member of the family unit of the resident) 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

   (iii) the impairment has, under the Impairment Tables, the rating that is specified in the certificate; 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

   (ba) the person mentioned in subparagraph (b) (i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (c) the rating mentioned in subparagraph (b) (iii) is equal to, or exceeds, the impairment rating specified by Gazette Notice for this paragraph; and

   (d) if the person to whom the certificate relates is not the resident, the resident has a permanent or long‑term need for assistance in providing the direct assistance mentioned in subparagraph (b) (iv); 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; and

   (f) the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b) (iv) or paragraph (d), as the case requires.

   (2) A certificate meets the requirements of this subregulation if:

   (a) it is a certificate:

   (i) in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and

   (ii) signed by the medical adviser who carried it out; or

   (b) it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures.”

   (Emphasis added).

5. Under s.338 of the Act, a decision to refuse to grant a carer visa is a decision which may be reviewed by the second respondent.

6. Under s.474(2) of the Act, a decision of the second respondent is a ‘privative clause decision’. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

7. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The Delegate’s decision

1. On 8 May 2013, the Visa Applicant attended an interview with the Delegate.

2. The Delegate had regard to the requirements in reg.1.15AA of the Regulations, and for the reasons below, refused the Visa Applicant’s application for a carer visa.

3. The Delegate noted that the Review Applicant’s daughter, being the Visa Applicant’s mother, was living in the same house as the Review Applicant and providing care to her on a daily basis. The Delegate noted that when the Visa Applicant’s mother travelled back to Vietnam for a period of about five months, the Visa Applicant’s two siblings (being the Review Applicant’s grandchildren) already residing in Australia took care of their grandparents. The Delegate found that the Visa Applicant’s two siblings who were living in neighbouring suburbs to their grandmother could provide some additional care to their grandmother. 

4. The Delegate noted that no evidence had been provided to the Delegate to demonstrate that care had been sought from welfare, hospital, nursing or community services in Australia. Accordingly, the Delegate was not satisfied that the required assistance could not reasonably be obtained from those types of services in Australia.

5. The Delegate also was not satisfied that the Visa Applicant was willing or able to provide to the Review Applicant the required care on a substantial and continuing basis. In this regard, the Delegate noted that the Visa Applicant and the Review Applicant had not met in the past ten years; that he had little knowledge of her life in Australia; and, that he could not speak English. The Delegate found that the Visa Applicant would experience difficulties providing care for his elderly grandmother while settling into a new country with his young family. 

6. Accordingly, the Delegate found that the Visa Applicant did not meet the requirements of regs.1.15AA(1)(e) and (f) to the Regulations, and as such, did not meet the requirements of cl.116.221 of Schedule 2 to the Regulations for the grant of a carer visa.

Steps taken subsequent to the Delegate’s decision

1. In his written submissions, counsel for the Review Applicant summarised the various material that was provided to the Tribunal to address the Delegate’s concerns that an Aged Care Assessment Team (“ACAT”) assessment had not been provided to the Delegate. The following steps were taken on behalf of the Review Applicant:

   “10. An ACAT assessment was undertaken on 9 September 2013. As a result of that assessment Mrs Diec was considered eligible to receive, “Residential respite care at a high level”. That permitted 63 days per annum of subsidised residential respite care. She could also apply for 21 day extensions. Mrs Diec was also found to be eligible for a “Home Care Package Level 1 and 2” (CB 208). The reasons for those findings were set out at CB 209;

   “You were assessed as having care needs that require the provision of care and meet the other criteria for this type of care, including:

   Your care needs cannot be met more appropriately through non-residential care services. In addition:

   - You or your carer need a short term break from your usual care arrangements, and,

   - You meet the criteria for high level residential care.

   Your care needs can be met appropriately through Home Care Packages. In addition:

   - These needs can only be met through a coordinated package of care services, and,

   - You prefer to remain living at home, and,

   - You are able to live at home with the support of a Home Care Package Level 1 or Level 2 and

   - You would require at least low level residential care (if you applied for that type of care)”

   11. On 1 July 2014 Mrs Diec’s solicitors lodged a very detailed report by a social worker, Mr Van Tuyen (Joe) Chuong (CB 179-197). As part of his report Mr Chuong outlined the circumstances of Mrs Diec’s children and grandchildren and the reasons why they were unable to care for her (CB 186-7).

   12. Mr Chuong also referred to the ACAT assessment and extracted a part of the report which does not appear to be in the Court Book (CB 187-188). He then detailed the optimal care arrangements for Mrs Diec (CB 189-90) and in doing so observed that she would need a full time carer. He also stated that of her two children living in Sydney only Ms Ly (i.e. Ly Tu Linh) lives in the same apartment as her and although she can provide some care for Mrs Diec her main duties are to care for her father, Ms Diec’s husband (CB 189.3).

   13. Addressing the possibility of Mrs Diec being placed in an aged care residential facility, Mr Chuong stated that enquiries had been made of aged care facilities in the local area and were informed that these did not have culturally appropriate services – no Chinese food or Cantonese speaking staff. Nor were there vacancies in specific ethno specific nursing homes in the Cabramatta/Canley Vale areas (CB 193).

   14. Returning to the Aged Care Package outlined in the ACAT assessment, Mr Chuong criticised that package as providing for inadequate care, and stated that Mrs Diec would have to wait a few years before being able to access the package as there is a long waiting list (CB 194). Mr Chuong continued;

   “Even granted a community package with the highest level of care (EACH-D or Home Care Package Level 4) Anh would only be eligible [for] 1 to 3 hours of personal care or social support each day for 4 to 5 days per week. It would cost 17.5% of her pension and the maximum assistance provided is up to 18-22 hours maximum per week. There is no night time service which Anh requires the most due to her complicated health conditions.

   Assuming that Anh is granted the maximum number of hours allowed within the program including 2-3 extra hours during weekends, her needs are not all met.”

   15. Mr Chuong concluded that in view of Mrs Diec’s age, mental and physical conditions and her complex care needs, her requirements could only be met by full time care 24 hours a day seven days a week (CB 195.10).

   16. A statutory declaration from Ms Ly was also lodged. She declared that she was the main carer for her father only and she was struggling to provide care for both her parents at the same time.

   17. At hearing the Tribunal took evidence from Ms Ly about the care that provided to both her parents and the difficulties that she faced in doing so. Her evidence was to the effect that she assisted them to get in and out of bed, go to the toilet, wash, take their medications, feed them, apply oil to her father’s skin and take them to the doctor, as well as washing, cleaning and cooking (CB 223 [17]). Ms Ly also gave evidence that she had occasional stomach pain, and complained of tiredness and weakness and was taking prescribed painkillers for pain in her back and knees (CB 224 [18]).

   18. The Tribunal also questioned the visa applicant about Mrs Diec’s care needs. It put to him that she would need assistance with intimate personal care such as toileting, bathing, dressing and undressing and suggested that these tasks were not culturally appropriate for a grandson to perform. Mr Luu is recorded as responding that he did not feel that there was any problem as he “would just treat her as a child”.

The Tribunal’s review and decision

1. The Tribunal’s decision is accurately summarised in counsel for the Review Applicant’s written submissions as follows:

   “The Tribunal Decision

   19. The Tribunal identified same the [sic] issues as the delegate – that is whether Migration Regs 1.15AA(1)(e)(i), 1.15AA(1)(e)(ii) and 1.15AA(1)(f) were met (CB 225 [29]).

   20. It found that Mrs Diec’s children and grandchildren could assist in her care, which would also give some respite to the primary carer, Ms Ly (CB 227 [49]-[50]). It found that the assistance she provides could be complemented by that of Mrs Diec’s grandchildren (CB 228 [53]).

   21. So far as community services are concerned the Tribunal noted that Mrs Diec had had an ACAT assessment, and waiting times for assistance were long. Mr Chuong had confirmed this. The Tribunal also accepted the evidence that waiting periods were long and it was very difficult to find Cantonese speaking service providers (CB 228 [55]). The Tribunal also noted:

   (a) That Ms Ly did not know whether her father had had an ACAT assessment, or whether he was on a waiting list for services.

   (b) She had not made any enquiries about such services for her mother.

   (c) The Dementia Day Care program is available one day a week and could provide some respite for Ms Ly, especially if both parents could attend on the same day.

   For those reasons the Tribunal found that the assistance could reasonably be obtained from (presumably a combination of) other relatives in Australia and from community services (CB 228 [56]-[58]).

   22. The Tribunal also found that Mr Luu was not able to provide substantial and continuing assistance of the kind needed. As the Tribunal noted by reference to Xiang v Minister for Immigration [2004] FCAFC 64, that is a question of whether the visa applicant is a person who is suitable or fit to provide the assistance (CB 229 [59]).

   23. The Tribunal noted that Mr Luu had not seen his grandmother for 11 years and had not been able to speak to her for several months due to her deafness. It also noted that he was not fully familiar with the kind or type of care required and was not convinced that there was nothing culturally inappropriate for a grandson to provide the kind of intimate personal care required to his grandmother. The Tribunal also considered the accommodation arrangements proposed for Mr Luu and his family as being unrealistic, in that it would involve Mr Luu and his wife, and also his grandparents, sleeping apart (CB 229 [61]).”

The proceeding before this Court

1. The Review Applicant was represented before this Court by Mr Leonard Karp, of counsel.

2. Mr Karp confirmed that the Review Applicant relied on the following grounds:

   “1. The Tribunal committed jurisdictional error in finding that the requirements of Migration Regulation 1.15AA(1)(e)(i) were not met.

   Particulars

   (a) The Tribunal failed to consider a matter made mandatorily relevant by Migration Regulation 1.15AA(1)(e)(ii) read with Regulation 1.15AA(1)(b)(iv), that being whether the applicant’s grandchildren could provide assistance to the applicant of the kind and to the extent that was required.

   2. The Tribunal committed jurisdictional error in finding that the requirements of Migration Regulation 1.15AA(1)(e)(ii) were not met.

   Particulars

   (a) The Tribunal failed to consider and decide on matters made relevant by Migration Regulation 1.15AA(1)(e)(ii) read with Regulation 1.15AA(1)(b)(iv), those being whether:

   (i) Such community services that were available to assist the applicant could do so in the manner and to the extent required, and,

   (ii) So far as the Dementia Day Care program is concerned, whether the means existed for the applicant to attend.

   3. The Tribunal committed jurisdictional error in finding that the requirements of Migration Regulation 1.15AA(1)(f) was not met.

   Particulars

   (a) The Tribunal asked itself the wrong question, that being whether it was culturally inappropriate for a grandson to tend to the intimate care need of his grandmother, when the issue to be determined was whether the visa applicant was willing and able to tend to those needs, whether or not it was culturally inappropriate for him to do so.

   (b) There was no evidence that the visa applicant was not fully aware of all his grandmother’s care needs.”

Ground 1

1. Ground 1 asserts that the Tribunal erred in finding that the requirements of reg.1.15AA(1)(e)(i) of the Regulations were not met in that the Tribunal failed to consider whether the Review Applicant’s grandchildren could provide assistance to the Review Applicant of the kind, and to the extent, that was required.

1. Mr Karp submitted that the Tribunal was required to assess the degree of assistance which could be obtained from the Review Applicant’s grandchildren and her daughter Ms Ly, against the assistance that was required by the Review Applicant. Mr Karp referred to the ‘Carer Visa Medical Adviser Report’ which indicated that the Review Applicant required assistance with almost all aspects of her life, including with intimate personal tasks, at all hours. Mr Karp submitted that such an assessment was consistent with Mr Chuong’s ‘Independent Social Work Report’ dated 17 June 2014. Mr Karp further submitted that the evidence before the Tribunal was that Ms Ly provided assistance to the Review Applicant, but she was having considerable problems, including those affecting her health, such as the lack of sleep.

2. Mr Karp also submitted that the Tribunal’s finding that the assistance Ms Ly provided to the Review Applicant could be complemented by other family members did not engage with the issue of what assistance was required by the Review Applicant; or, that assistance could or could not reasonably be provided in that way.

3. The Review Applicant has one daughter, one son and two adult grandchildren living in Australia. The Tribunal accepted that it was a “heavy burden” on Ms Ly, who lived with the Review Applicant, to provide the Review Applicant with personal care, including bathing, assistance with toileting, dressing and undressing; assistance with medication; and, transportation to medical appointments. However, the Tribunal was not satisfied that, together with the assistance that could be reasonably provided by the Review Applicant’s grandchildren already present in Australia, the Review Applicant’s relatives could not reasonably provide the required assistance to her.

4. The Tribunal was obliged to consider whether the Review Applicant’s relatives in Australia together could not reasonably provide the assistance required by the Review Applicant. The burden was on the Visa Applicant to satisfy the Tribunal that the assistance required by the Review Applicant could not be reasonably provided by the relatives presently in Australia. The Tribunal found that the assistance required by the Review Applicant is as follows:

   “47. The review applicant’s daughter provides assistance to the review applicant for personal care, that is, bathing, assistance with toileting and dressing and undressing. She performs these tasks for both her parents. She also supervises their medication and takes them both to medical appointments. The Tribunal acknowledges that this is a reasonably heavy burden of care for her although tasks such as cooking, cleaning and shopping are more or less the same for one parent as for two.”

5. The Tribunal noted that the Review Applicant’s grandchildren did not appear before the Tribunal or provide telephone numbers on which they could be contacted. However, the Tribunal noted that the Review Applicant’s grandchildren provided Statutory Declarations which were to the effect that they worked full time, studied part-time and were too busy to provide more than two hours assistance per week to their grandparents. The Tribunal noted Ms Ly’s evidence that her son assisted her with some shopping and that her daughter assisted the Review Applicant and her husband during Ms Ly’s five months from Australia in 2012-2013.

6. The Tribunal found that whilst the assistance the Review Applicant’s grandchildren could provide may be very limited, it was not satisfied that they were unable to provide any assistance to their grandparents. Accordingly, the Tribunal found that the Review Applicant’s grandchildren were reasonably able to provide some assistance which could be a respite to their mother, who was the primary carer.

7. The Tribunal noted that only one month after Ms Ly arrived in Australia to care for the Review Applicant’s husband, she returned to Vietnam for a period of nearly five months in 2012-2013. The Tribunal noted that during that period, as stated above, the Review Applicant was assisted to some extent by her grandchildren, particularly her granddaughter. The Tribunal also noted that during that period, the Review Applicant did not have a full-time carer at home. The Tribunal noted that the Review Applicant’s granddaughter made all the necessary arrangements for medical appointments and documents related to both carer visa applications for her mother and for her uncle whilst she was working and studying. The Tribunal found that such conduct provided substantial assistance to both the Review Applicant and her spouse.

8. The Tribunal noted that whilst the Visa Applicant may be expressed by the Review Applicant to be “her favourite grandchild”, this did not mean that her other grandchildren could not reasonably provide some assistance to her.

9. The Tribunal acknowledged that the present care responsibilities of Ms Ly were significant in caring for both her parents. However, the Tribunal noted that Ms Ly was residing in their household and was in receipt of a carer pension to provide care to her father. The Tribunal further noted that many of the tasks that Ms Ly performed for her father included her mother, such as cooking, cleaning and shopping.

10. In the circumstances, the Tribunal found that the assistance provided by Ms Ly to her parents could be complemented by some limited assistance provided by the Review Applicant’s adult grandchildren who were Australian permanent residents.

11. Based on the evidence before it, the Tribunal found that the assistance required by the Review Applicant could be reasonably provided by other relatives in Australia.

12. Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave, including its finding that the assistance could reasonably be provided by other relatives of the Review Applicant who are permanent residents of Australia.

13. Accordingly, the Tribunal’s conclusion that reg.1.15AA(1)(e)(i) of the Regulations was not met by the Visa Applicant was open to it.

14. Accordingly, Ground 1 is not made out.

Ground 2

1. Ground 2 asserts that the Tribunal erred in finding that reg.1.15AA(1)(e)(ii) of the Regulations was not met in that the Tribunal failed to consider whether the community services that were available to assist the Review Applicant could do so in the manner and to the extent required, and further, whether the means existed for the Review Applicant to attend the Dementia Day Care program.

2. In support of Ground 2, Mr Karp submitted that the Review Applicant and her husband require “24 hours a day seven days a week” care. Mr Karp further submitted that to “speculate” that the Dementia Day Care program could provide some respite for Ms Ly’s responsibilities in caring for her parents did not engage with the issue of the what kind of assistance the Review Applicant required.

3. The Tribunal referred to a statement in the independent social worker’s Report that a Dementia Day Care program was available one day a week for frail aged persons. The Tribunal noted that the social worker acknowledged that language barriers may inhibit the Review Applicant’s participation in that program. Nevertheless, the Tribunal considered that such a program was able to accommodate frail aged persons with hearing and cognitive impairments and could still reasonably provide respite to Ms Ly, particularly if both parents were able to attend on the same day.

4. The Tribunal noted that, pursuant to the ACAT assessment in September 2013, the Review Applicant was deemed to be eligible for both 63 days respite care a year and a Home Care Package. The Tribunal accepted the evidence of the independent social worker that there is a long waiting list for services in the Review Applicant’s area, and that it is very difficult to find Cantonese speaking service providers.

5. However, based on the evidence before it, the Tribunal was not satisfied that the assistance could not reasonably be obtained from welfare, hospital, nursing or community services in Australia.

6. A fair reading of the Tribunal’s decision record makes clear that the Tribunal was aware of the extent of the Review Applicant’s needs and the assistance available to her from her relatives in Australia. In the context of those matters, the Tribunal found that the relevant assistance could be reasonably obtained from community services in Australia.

7. Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave. In the circumstances, reg.1.15AA(1)(e)(ii) of the Regulations is not met.

8. Accordingly, Ground 2 is not made out.

Ground 3

1. Ground 3 asserts that the Tribunal erred in not finding that reg.1.15AA(1)(f) of the Regulations was met in that the Tribunal asked itself the wrong question as to whether it was culturally inappropriate for a grandson to attend the intimate care needs of his grandmother as opposed to whether the Visa Applicant was willing and able to tend to those needs. Ground 3 further asserts that there was no evidence that the Visa Applicant was not fully aware of all his grandmother’s care needs.

2. Reg.1.15AA(1)(f) of the Regulations provides that a visa applicant is a carer of a person who is an Australian resident if the visa applicant is willing and able to provide substantial and continuing assistance of the kind needed to the Australian resident. Relevantly, reg.1.15AA(1)(b)(iv) of the Regulations provides that, because of the medical condition of the Australian resident, assistance is required to continue for at least 2 years.

3. Mr Karp submitted that the proper issue was whether the Visa Applicant was willing and able to provide the assistance, and not whether it was culturally inappropriate for the Visa Applicant, as a grandson, to attend to the intimate personal care needs of his grandmother. Further, Mr Karp submitted that the Tribunal’s finding that the Visa Applicant was not fully familiar with all his grandmother’s medical conditions and care needs was a finding made in the absence of evidence, “not least because the Tribunal told him about them”.

4. The relevant finding by the Tribunal is as follows:

   “The visa applicant told the Tribunal that his grandmother required assistance with getting out of bed and going to the toilet and washing. She needs assistance to eat as she is slow and messy. She needs assistance to take her medications. The visa applicant told the Tribunal that currently his mother is performing all these tasks for his grandmother. The Tribunal put to him that as his grandmother required intimate personal care such as toileting, bathing and dressing and undressing, these tasks did not seem culturally appropriate for a grandson to perform. The visa applicant did not feel that there was any problem providing his grandmother with personal intimate care as “he would just treat her as a child”.

5. In considering whether the Visa Applicant was willing and able to provide the Review Applicant with substantial and continuing assistance of the kind needed, the Tribunal noted that the Visa Applicant had not seen the Review Applicant for 11 years and had not been able to speak directly with her in the past few months due to her hearing impairment. The Tribunal also noted that the Visa Applicant had never assisted the Review Applicant with the activities of daily living and that he was not fully familiar with all her medical conditions and needs. The Tribunal further noted that the Visa Applicant stated that there were no problems for himself as a grandson to assist his grandmother with intimate personal care such as toileting, bathing, dressing and undressing.

6. However, the Tribunal was not convinced by the Visa Applicant’s assertion that there was nothing culturally inappropriate about him performing such intimate personal care tasks for his grandmother, particularly when the Visa Applicant stated that he believed it was the filial duty of grandchildren to care for grandparents in Chinese culture. The Tribunal noted, however, that the Visa Applicant’s own siblings, who lived in Australia without any dependents, allegedly did not provide any assistance to the Review Applicant. The Tribunal noted that the Review Applicant’s daughter suggested that it may be possible to change roles so that she cared for her mother and her son, the Visa Applicant, cared for his grandfather. However, the Tribunal noted that the application before the Tribunal was for a carer visa to provide care to the Review Applicant, and not to her husband.

7. The Tribunal noted that it had regard to the Visa Applicant’s written statement to the Department that his spouse would assist his grandmother with personal care tasks. Further, the Tribunal had regard to the Visa Applicant’s plans regarding accommodation arrangements. The Tribunal found those arrangements to be “somewhat unrealistic”, and noted that it would effectively result in the Review Applicant living separately from her spouse and the Visa Applicant sleeping separately from his own spouse.

8. In Xiang v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 64, Goldberg, Finkelstein and Weinberg JJ explained at [7]:

   “A visa applicant must show that he or she is “willing and able” to provide the required assistance. The first limb (the applicant's willingness) is concerned with the applicant's state of mind. Is the applicant prepared to do what is necessary to provide the assistance? The second limb (whether the applicant is "able" to provide that assistance) calls for an objective inquiry. The question is whether the visa applicant is a person who is suitable or fit to provide the assistance.”

9. I accept the submissions of the first respondent that in the circumstances, in considering objectively whether the Visa Applicant was willing and able to provide the required assistance, the Tribunal was obliged to consider the Visa Applicant’s suitability and fitness to provide the assistance required. Further, the Tribunal’s finding that the Visa Applicant was not fully familiar with all the medical conditions and care needs of the Review Applicant was also significant in considering whether the Visa Applicant was objectively willing and able to provide the assistance and care needed.

10. The Tribunal’s decision record makes clear that the Tribunal explored with the Visa applicant his knowledge of the Review Applicant’s medical conditions and his ability to provide the assistance needed, in circumstances where he had a wife and two children. The Tribunal noted the Visa Applicant’s evidence that if he was granted the visa, he planned to rent a three bedroom house in which he would reside in one room with his grandmother, his mother would live in another bedroom with his father and his spouse would live in one bedroom with their two children. Alternatively, he would rent a two bedroom house close to his grandparents’ home in which his grandmother could come to live.

11. The Tribunal noted that the Visa Applicant had stated that his two siblings could not provide assistance because their work was so demanding and they were tired. The Tribunal put to the Visa Applicant that he also worked hard and had a young family but was willing to give up his job and income to look after the Review Applicant. The Tribunal questioned the Visa Applicant as to why the other grandchildren could not do the same. The Tribunal noted the Visa Applicant’s evidence that they were not willing to do so. The Tribunal also noted the Visa Applicant’s evidence that he was prepared to sell his home and business in Vietnam for about $80,000 – $100,000 and that doing so will provide financial support for him and his family, and that his wife could also work to earn an income for the family.

12. In all the circumstances, the Tribunal’s conclusion that it was not satisfied that the Visa Applicant was objectively willing and able to provide to the Review Applicant substantial and continuing assistance of the kind needed was open to it on the evidence and material before it and for the reasons it gave.

13. Accordingly, Ground 3 is not made out.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the nature of the claims made by the Visa Applicant and explored those matters at a hearing with the Visa Applicant and his mother, the Review Applicant’s daughter and carer of the Review Applicant’s spouse (her father). The Tribunal put to the Visa Applicant various concerns it had about his evidence and noted his responses.

2. The Tribunal made findings based on the evidence and material before it, which were open to it for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 10 August 2016