Anveel v MIBP
[2013] FCCA 2181
•17 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANVEEL & ORS v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 2181 |
| Catchwords: MIGRATION – Application for review of decision of Migration Review Tribunal –whether Tribunal applied the wrong test – jurisdictional error found – relief granted. |
| Legislation: Migration Act 1958 (Cth), s.476 Migration Regulations 1994 (Cth) rr.1.03, 1.15AA, Schedule 2 |
| Naidu v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2004] FCA 1692; (2004) 140 FCR 284 Biyiksiz v Minister for Immigration & Multicultural & Indigenous Affairs [2014] FCA 814 Lin v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 606; (2004) 136 FCR 556 Rafiq Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 564 Issa v Minister for Immigration & Multicultural Affairs [2000] FCA 128 |
| First Applicant: | SABAH SHATIR ANVEEL |
| Second Applicant | FAROUK SAKHAN FARHAN |
| Third Applicant | ANMAR FAROUK SAKBAN |
| Fourth Applicant | IHSAN FAROUK SAKBAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 285 of 2013 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 8 October 2013 |
| Date of Last Submission: | 8 October 2013 |
| Delivered at: | Sydney |
| Delivered on: | 17 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Hughes |
| Solicitors for the Applicant: | D'Ambra Murphy Lawyers |
| Counsel for the Respondents: | Mr J Smith |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The title of the first respondent is amended to “Minister for Immigration and Border Protection”.
A writ in the nature of certiorari issue quashing the decision of the second respondent, dated 22 January 2013, to affirm the decision of the delegate of the first respondent to refuse to grant the Other Family (Residence) (Class BU) visas to the applicants.
A writ in the nature of mandamus issue directed to the Tribunal requiring it to determine the applicants’ application according to law.
The first respondent pay the applicants’ costs set in the amount of $6,471.00
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 285 of 2013
| SABAH SHATIR ANVEEL |
Applicant
FAROUK SAKHAN FARHAN
Second Applicant
ANMAR FAROUK SAKBAN
Third Applicant
IHSAN FAROUK SAKBAN
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 15 February 2013, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), made on 22 January 2013, to affirm the decision of the Minister’s delegate (“the delegate”) not to grant the applicants Other Family (Residence) (Class BU) visas.
Background
The applicants are citizens of Norway (Court Book – “CB” at CB 5). Mrs Sabah Anveel is the principal applicant (“the applicant”) (CB 5). Her husband and two children applied as her family members.
On 11 February 2010, the applicant and her family members applied for “Other Family (Residence)” visas. The basis of the application was that the applicant was the carer of her aunt, Mrs Aziza Fadel Rawaini, who is a permanent resident of Australia ([20] at CB 288).
The Minister’s delegate refused the grant of the visas because the applicant was said not to satisfy, as she was required to do in order for the visa to be granted, cl.836.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). In essence, the delegate was not satisfied that the applicant was a “carer” of Mrs Rawaini having regard to the definition of the term in the Regulations (CB 141 to CB 144).
The applicants sought review by the Tribunal on 6 September 2010 (CB 146 to CB 151).
The relevant clauses in the Regulations are as follows:
1)Regulation 1.15AA of the Regulations:
(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) he 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.
(3) The Minister is to take the opinion in a certificate that meets the requirements of subregulation (2) on a matter mentioned in paragraph (1) (b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer.
(4) In this regulation:
Impairment Tables means the Tables for the Assessment of Work‑related Impairment for Disability Support Pension in Schedule 1B to the Social Security Act 1991.
[Emphasis in Original]
2)Definitions at reg.1.03 of the Regulations:
“relative, in relation to a person, means:
(a) in the case of an applicant for a Subclass 200 (Refugee) visa or a Protection (Class XA) visa:
(i) a close relative; or
(ii) a grandparent, grandchild, aunt, uncle, niece or nephew, or a step‑grandparent, step‑grandchild, step‑aunt, step‑uncle, step‑niece or step‑nephew; or
(iii) a first or second cousin; or
(b) in any other case:
(i) a close relative; or
(ii) a grandparent, grandchild, aunt, uncle, niece or nephew, or a step‑grandparent, step‑grandchild, step‑aunt, step‑uncle, step‑niece or step‑nephew
…
close relative, in relation to a person, means:
(a) the spouse or de facto partner of the person; or
(b) a child, parent, brother or sister of the person; or
(c) a step‑child, step‑brother or step‑sister of the person.”
[Emphasis in Original]
The Tribunal accepted or, at best, did not dispute that Mrs Rawaini was an Australian permanent resident ([112] at CB 304), that the applicant was her niece ([113] at CB 305), that there was before it a certificate that Mrs Rawaini had a “medical condition” with the relevant “rating” specified in the certificate, and that Mrs Rawaini had a need for “direct” assistance ([114] – [115] at CB 305).
The issue for the Tribunal was whether reg.1.15AA(1)(e)(i) of the Regulations was satisfied. The Tribunal found that the applicant was not a “carer” because it was not satisfied that the assistance Mrs Rawaini needed could not reasonably be provided by another relative who was an Australian resident. These were said to be Mrs Rawaini’s other (seven adult) nieces and nephews in Australia ([124] at CB 305). The Tribunal affirmed the delegate’s decision on 22 January 2013 (CB 284.5).
Before the Court
At the hearing Mr D Hughes of counsel appeared for the applicants. Mr J Smith of counsel appeared for the Minister.
The sole ground of the application to the Court, as made on 15 February 2013, was as follows:
“In determining whether the first applicant was a ‘carer’ within the meaning of reg 1.15AA(1) of the Migration Regulations 1994, the second respondent (Tribunal) made an error of law in that it applied the wrong legal test when assessing whether other relatives of the applicant’s sponsor could reasonably provide assistance to the sponsor within the meaning of reg 1.15AA(1)(e)(i).
Particulars
(a) The Tribunal’s reasons stated that, for the purposes of reg 1.15AA(1)(e)(i), the reasonableness test must be assessed from perspective of the person requiring the care (the Stated Test): at paragraphs [119], [122].
(b) The Tribunal applied the Stated Test of reasonableness at paragraph [124] when finding that it was not satisfied that assistance cannot reasonably be provided by relatives of the Sponsor.
(c) The Stated Test of reasonableness was based on the authority of Naidu v MIMIA (2004) 140 FCR 284 at [22].
(d) The Tribunal did not appreciate that, since the decision of Naidu was decided, reg 1.15AA(1)(e) has been amended, with the effect that reasonableness must now be assessed from the perspective of the person providing the care, and not from the perspective of the person requiring the care.
(e) In the premises, the Tribunal applied the wrong legal test and thereby committed an error of law.”
[Emphasis in the original.]
The Court had before it the bundle of relevant documents filed by the Minister (the “Court Book”) and written submissions from both parties.
The Applicants’ Submissions
The gravamen of the applicants’ complaint is to challenge the Tribunal’s finding that the other nieces and nephews could reasonably provide assistance. Further, that having made that finding, the Tribunal did not consider whether the assistance could not be reasonably obtained from community providers (reg.1.15AA(1)(e)(ii) of the Regulations) or whether the applicant was willing and able to provide to Mrs Rawaini “substantial and continuing assistance” (reg.1.15AA(1)(f) of the Regulations).
The applicants’ position is that the Tribunal misapplied the legal test required by reg.1.15AA(1)(e)(i) of the Regulations. Specifically, that the Tribunal erred in the manner in which it considered whether the assistance could reasonably be provided by Mrs Rawaini’s other relatives.
The applicants noted [118] of the Tribunal’s decision (at CB 305 to CB 306):
“Regulation r.1.15AA(1)(e)(i) requires that the assistance cannot reasonably be provided by any other relative of the resident, being a relative who is an Australian citizen, permanent resident or an eligible New Zealand citizen. Even where relatives in Australia claim to be unwilling or unable to provide assistance, the relevant enquiry by the Tribunal is whether the assistance cannot reasonably be provided by any other relative of the resident and, it is open to the Tribunal to conclude that assistance could reasonably be provided.”
[Emphasis in Original.]
Footnote 30, at the end of this paragraph refers to:
“The Explanatory Statement accompanying Migration Amendment Regulations 2009 (No.13) (SL12009, No.289).”
Further, the applicants directed attention to [119] of the Tribunal’s decision record (at CB 306):
“Whether any relatives can reasonably provide the assistance and what a relative is capable of doing are matters for consideration by the Tribunal in determining whether assistance cannot be reasonably provided. ‘Reasonableness’ requires the Tribunal to focus on the ability of the person requiring the care to access the assistance she or he needs. Although, discussed in regard to a Special Need Relative visa, the Federal Court has decided that assistance can be derived from a number of sources, or a number of relatives.”
[Emphasis Added.]
Here, the Tribunal specifically relied on Naidu v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2004] FCA 1692; (2004) 140 FCR 284 (“Naidu”) at [22] per Ryan J for the proposition emphasised above (at [15]). The Tribunal repeated its understanding of this test at [122] (at CB 306):
“However, as already noted the question for the Tribunal is whether assistance cannot ‘reasonably’ be provided by any other relative of the resident. ‘Reasonableness’ requires a subjective assessment of the circumstances of the sponsor in the current case. Mrs Rawaini is 99 years old, with a number of medical conditions. The 2010 HAS report noted that she required on-going care. With the passage of three years, the Tribunal considers that her need for care would have increased. The Tribunal certainly accepts that she requires full time care in her current location, which the ACAT report described as unsuitable for her. The Tribunal accepts that she requires assistance with her mobility, toileting, showering, preparation of food, and medication. The Tribunal has had regard to the statutory declarations and evidence given, including the medical reports in regard to Adel and Abdulrahmin, that all seven of the applicant’s siblings are unable or unwilling to provide assistance. The Tribunal notes that the independent report that the Mandaean community is family-oriented and exhibits an extended family structure. It does not accept the applicant’s view that this community connection manifests just as ‘visiting’ each other. The Tribunal has also had regard to the applicant’s evidence that the sponsor was like a second mother to her brothers. The Tribunal has come to the view that the applicant and her applicant’s siblings have significantly understated the applicant’s siblings collective capacity and time available to provide assistance to Mrs Rawaini, in an attempt to bolster the current visa application. It also considers that while the applicant has provided appreciated assistance to the sponsor, claims of the sponsor’s reliance on her assistance specially have been overstated. The Tribunal notes the claims for toileting and showering care for Mrs Rawaini to be provided by a woman, but it is also aware that Fadhil declared himself to be her carer from the time that she arrived in Australia until at least he made the statutory declaration in February 2010.”
It is important to note that the wording of reg.1.15AA(1)(e) of the Regulations, as set out at [6] of Naidu, was at that time as follows:
“…
(e) the assistance cannot reasonably be obtained:
(i) from 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) from welfare, hospital, nursing or community services in Australia; and…”
[Compare with what is set out above at [6] as to the current wording of reg.1.15AA(1)(e) of the Regulations.]
The applicants noted that the word “obtained” in the earlier version of the regulation (and as it related to both the circumstances in reg.1.15AA(e)(i) and (ii) of the Regulations at that time) was replaced in the current version by the word “provided” (as it related to reg.1.15AA(e)(i)).
The applicants argued this distinction is important and reveals the Tribunal’s error. First, they submitted that regard must be had to the reasoning in Naidu at [21] – [22] per Ryan J:
“[21] With respect, I consider that the line of authorities discussed above correctly identifies that, in assessing whether subreg 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 subreg 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 subreg 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.”
The applicants drew from this that there is a distinction in the way that “reasonableness” is to be assessed. If the relevant test uses the word “provided” (which the older version did not and the current does) then the assessment of reasonableness is to be from the “standpoint” of the providers. However, when the relevant word used is “obtained” then it is to be assessed from the “standpoint” of the person who is in need of what is to be obtained.
The applicants argued that when regard is had to [119] (at CB 306) of the Tribunal’s decision record the legal error is revealed (see [15] above). Here the Tribunal states that whether relatives cannot reasonably provide assistance is to be determined by focusing on the person needing the care, not the relatives who are to provide it.
The applicants’ point is that the Tribunal’s focus on the person requiring care was “correct” in 2004 (at the time of Naidu), but “wrong” now in light of the change in the regulation. At the time of its decision, the Tribunal was required to consider whether, in the circumstances, the relatives could not reasonably “provide” the care. It did not do so in “a proper way”.
Given that this Court cannot indulge in merits review, I understand that latter submission to mean that the alleged inappropriate consideration flowed from the Tribunal’s misunderstanding of the relevant law and its misapplication of it.
The Tribunal’s misstatement of the law is emphasised in the applicants’ submissions when regard is had to the specific change in the regulation as a result of Naidu.
The applicants’ sought to explain that the situation in Naidu was that, under the old version of reg.1.15AA(1)(e) of the Regulations, the visa sponsor (the person in need of care) could not reasonably obtain assistance from relatives. This was in circumstances where the relatives claimed that they did not want to give the assistance. This was irrespective of whether they could reasonably provide it.
The applicants say that the change in the regulation to address this is made clear with reference to 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.”
The applicants submit that having stated the wrong test as to reasonableness (at [119] at CB 306), the Tribunal proceeded to apply the “wrong definition of reasonableness” in the remainder of its decision record. Further, that this assertion can be shown with reference to the paragraphs following [119] (at CB 306) where reference is made to Mrs Rawaini’s relatives. In particular, at the following:
1)At [120] (at CB 306) “… Mrs Rawaini has seven adult nieces and nephews…”.
2)At [121] (at CB 306) “… The Tribunal accepts that [the applicant] and her family are providing this care [the applicant] described to Mrs Rawaini…”
3)At [122] (at CB 306):
“However, as already noted the question for the Tribunal is whether assistance cannot ‘reasonably’ be provided by any other relative of the resident. ‘Reasonableness’ requires a subjective assessment of the circumstances of the sponsor in the current case…”
[The applicants state that this is a repetition of the mistaken view of the law expressed at [119] (at CB 306).]
4)What follows at [122] (at CB 306) relates to the subjective circumstances of Mrs Rawaini, the recipient of the care, not the relatives, from whom the assistance is to be provided.
Further, the applicants submitted that detailed evidence was provided to the Tribunal, including medical evidence, about the circumstances of the relatives. Yet, the Tribunal only dealt with this in what is described as a “sweeping dismissal” ([122] at CB 306 to CB 307):
“…The Tribunal has come to the view that the applicant and her applicant’s siblings have significantly understated the applicant’s siblings collective capacity and time available to provide assistance to Mrs Rawaini, in an attempt to bolster the current visa application. It also considers that while the applicant has provided appreciated assistance to the sponsor, claims of the sponsor’s reliance on her assistance specially have been overstated. The Tribunal notes the claims for toileting and showering care for Mrs Rawaini to be provided by a woman, but it is also aware that Fadhil declared himself to be her carer from the time that she arrived in Australia until at least he made the statutory declaration in February 2010.”
The applicants’ point here was that the Tribunal did not go “into the detail” of the extensive evidence about the relatives’ circumstances, because it did not consider it to be relevant to the issue of “reasonableness” pursuant to reg.1.15AA(1)(e)(i) of the Regulations.
The applicant submitted that while the Tribunal “continues”, at [123] (at CB 307), with the narrative as to whether the relatives could provide assistance, its analysis was not done from the relatives’ perspective. This was done in a context where they had given extensive reasons for not being able to reasonably provide assistance
(for example, where two of the relatives had spouses with serious medical conditions, bi-polar disorder and breast cancer).
The applicants relied on three other authorities. First Biyiksiz v Minister for Immigration & Multicultural & Indigenous Affairs [2014] FCA 814 at [20], [23] and [25] per Gray J:
“[20] The same reasoning must apply to that part of the definition of ‘special need relative’ in par (b)(ii). 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. This proposition accords with my own view of the purpose of the definition of ‘special need relative’ in the context of the criteria for a visa of the kind sought by the applicant.
…
[23] In my view, in these respects, the Tribunal fell into error. It considered the question whether assistance could reasonably be obtained from welfare, hospital, nursing or community services from the point of view of the availability of assistance from those services, and did not consider whether the assistance was reasonably obtainable by the applicant’s mother from those services. To do so, it would have been necessary for the Tribunal to consider the preferable mode of care for the applicant’s mother, including in particular her preference for being cared for in her own home by her own daughter. The Tribunal was also bound to give weight to financial circumstances and to the question of the comfort of the applicant’s mother. It was bound to consider whether she would have been uncomfortable as a Kurdish Alevi forced to live among others who were predominantly Turkish-speaking Sunni Muslims. It was not enough for the Tribunal to say that whatever discomfort this gave rise to might have been reduced if one or two people on the staff of the institution concerned spoke Kurdish. It had to consider the matter from the point of view of the applicant’s mother. The Tribunal was also bound to take into account any period of delay in the admission of the applicant’s mother to the Turkish Village, or to any other place that might have been available to her. Given that the applicant’s mother was found to need a level of care sufficient to meet the other elements of the definition of ‘special need relative’, the question of how she would be cared for if the applicant failed to obtain a visa and had to leave Australia within a short time of the decision assumed some importance.
...
[25] Because it misconstrued that part of the definition of ‘special need relative’ found in par (b)(ii), the Tribunal failed to take into account a relevant consideration. It did not consider according to law whether the assistance required by the applicant’s mother could not reasonably be obtained from welfare, hospital, nursing or community services. Its expressed finding against the applicant on this issue was the result of its misconstruction of the definition. Failure to construe the definition correctly resulted in a failure to take into account a relevant consideration. The Tribunal was required to take into account that consideration by the terms of the definition of ‘special need relative’ itself.”
Second, Lin v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 606; (2004) 136 FCR 556 at [30] per Branson J:
“In my view, the language used by the Tribunal in this case supports Mr Karp’s contention that the Tribunal misinterpreted and misapplied the criterion in subpara 1.15AA(1)(e)(i). The findings of the Tribunal at [30]-[34] indicate that the Tribunal member did not recognise the distinction identified by Madgwick J in Issa v MIMIA. The Tribunal asked whether Mr Guo’s relatives ‘cannot reasonably provide some assistance’ rather than whether Mr Guo cannot reasonably obtain assistance from them. I agree with Madgwick J that the distinction is not merely semantic. The failure to make the distinction led the Tribunal to misapprehend the significance of the criterion in the light of the evidence before it. The Tribunal did not consider whether, and if so how, Mr Guo can reasonably obtain assistance from relatives in Australia who are apparently not minded to provide him with assistance.”
Third, Rafiq Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 564 at [9] – [13] per Finn J:
“[9] My own view is that it is clear that, in purporting to apply the subparagraph 1.15AA(1)(e)(i) criterion, the Tribunal asked and answered the wrong question. Having found that the applicant’s sister both provided assistance to her mother when the applicant was not available to provide it and was apparently ‘available’ when the applicant was providing support, the Tribunal concluded that it was ‘not satisfied that the assistance required cannot reasonably be provided by her daughter, Mrs Mohammed’: emphasis added. This was not the criteria it was asked to apply.
[10] It is one thing to ask whether assistance can reasonably be obtained from a relative. It is quite another to ask whether that assistance can reasonably be provided by a relative: see Issa v Minister for Immigration and Multicultural Affairs [2000] FCA 128 at [12]. What a relative is capable of doing and what that person is willing to do are not necessarily the same.
[11] There is an obvious reason why the subparagraph has the focus it has. Its object is not to effect a form of civil conscription of ‘available relatives’. Nor does it require a relative to act selflessly and contrary to that person’s own wishes, even if absent any alternative means of assistance that relative might continue to provide assistance for reasons of love, duty etc.
[12] In approaching the matter as it did, the Tribunal concerned itself with what the applicant’s sister was capable of doing. That is not the concern of the subparagraph. Had the Tribunal asked itself the correct question it could well have reached the contrary conclusion in light of the sister’s own and repeated evidence of her inability or unwillingness to continue providing the assistance she did.
[13] Having failed to apply itself to the question asked by subpar 1.15AA(1)(e)(i), the Tribunal to that extent constructively failed to exercise the jurisdiction entrusted to it: Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [82]. Whether, for discretionary reasons, relief should be denied depends upon whether the applicant can establish that the Tribunal erred as well in applying subpar 1.15AA(1)(f). As the requirements of these two subparagraphs are cumulative the applicant must succeed on both challenges to warrant the matter being remitted to the Tribunal.”
[Emphasis Added.]
The Minister’s Submissions
The Minister asserted that the Tribunal did not misstate the “current” test and that it applied that test in its reasoning. The Minister’s criticism of the applicants’ case was that it was based on the proposition that the change in the regulation meant that the relevant test now is the converse of the test that applied to the previous version of the regulation.
The Minister’s position was that the amendment to the regulation “deleted” the distinction referred to by the Court in Naidu. That is, the amendment was directed to remove the possibility that a relative
(in “carer cases”) might unreasonably (and, for that matter, intentionally) state a refusal to provide care. In these circumstances, the former criterion would be satisfied for the grant of the visa. The Minister pointed out that the Tribunal’s focus in Naidu was on the reasons the relatives gave to say they were unable or unwilling to provide assistance (see Naidu at [8]).
The Minister, in particular, sought to rely on the reasoning of Madgwick J in Issa v Minister for Immigration & Multicultural Affairs [2000] FCA 128 (“Issa”), as was understood by Ryan J in Naidu, and how that understanding was applied to the respective Tribunal decisions before them. In particular, the Minister relied on Naidu at [16] where Ryan J quoted Issa:
“In Issa, the issue before Madgwick J was whether the applicant was a ‘special need relative’ of her mother, Mrs Issa. The applicant needed to establish that ‘substantial and continuing assistance … cannot reasonably be obtained from another relative or welfare services in Australia’. His Honour set out at [8] of his reasons these findings of the Tribunal:
‘The applicant's daughter attended at the hearing ... with her mother. Despite her protestations and having had the opportunity of seeing her give evidence to me I am not satisfied that she cannot do anything to help her mother. Whilst she was stated it is due to her problems being separated, I am not satisfied that she cannot assist her mother. Furthermore, I am not satisfied that her sons and their families are not able to assist the applicant... The mere fact that the visa applicant claims that her sons are too busy or that they have a bad attitude or that they get irritated quickly, does not convince me that they cannot do anything to help their mother. Furthermore, the evidence is that the review applicant does not often see her sons, but nevertheless she does see her sons. She admitted to the Tribunal that she sees her daughter on an average once a week. I am not satisfied that her daughter and her sons are unable to assist her.’ (emphasis added by his Honour)
Madgwick J proceeded, at [12]-[13], to discuss whether the Tribunal had erred in its approach to the question of whether the assistance required by the applicant could not reasonably be obtained by the applicant;
‘It occurred to me that the Tribunal member may have misdirected herself by focussing on whether the other Australian relatives and/or welfare services could reasonably make their support available to the applicant, rather than whether she could reasonably obtain it from them. This is not mere semantics. There would be many families in which, if they were minded to, the children could provide a high level of care for a parent, but in which in practice they might not be willing to do so. In such a case the applicant might be quite unable to obtain care and support from their children. The bare language used by the Tribunal member is suggestive that she confused these two concepts.
However, it is only fair to understand the reasons of the Tribunal member in other than a narrow and point-taking way. In the first place, the Tribunal member did, as I have indicated, correctly paraphrase the requirements of the regulation; she set out the relevant question as being whether the assistance could not reasonably "be obtained" from another relative or welfare services in this country. In the second place, there was material which suggested that there was no real alienation of Mrs Issa from any of her other natural children. The younger daughter, Nour, professed herself willing to help her mother as much as she reasonably could, but pointed out that she was at the time looking for work and was trying to re-establish her life after the separation from her husband. The Tribunal member was therefore entitled to understand and to conclude that to the extent that Nour and Mrs Issa's sons could reasonably help her, they would. On the facts of the case, then, the question as to whether Mrs Issa could reasonably obtain assistance from her relatives or the welfare services, would be answered by whether the relatives and those services could reasonably furnish such assistance. I think that that is what the Tribunal member was expressing. There is no legal error in such an approach on the facts of this case, although I point out the conceptual distinction for what use it may have in other cases.’ (emphasis added)”
The thrust of the Minister’s argument was that, although Madgwick J in Issa isolated the distinction as it existed in the previous regulation, the questions to be addressed (in that context) were whether, if the relatives could help, they would do so. The Minister argued that this explained the subsequent change in the meaning of the regulation.
The Minister emphasised that given the change in the regulation, what Ryan J set out in the latter part of [17] in Naidu no longer applies:
“…The second step is an assessment of whether the distinction ought to be made on the facts of the particular case. Specifically, it is necessary to ask whether, to the extent that the relatives could reasonably provide assistance, they would do so. If that question be answered affirmatively, it is unnecessary to give effect to the distinction between the relatives’ being reasonably able to provide assistance and the applicant reasonably obtaining the necessary assistance.”
In a similar vein, the Minister argued that what the Court in Naidu reasoned as to the refusal of the relatives in that case to provide care is now an irrelevant consideration, as a result of the change of “obtained” to “provide”.
The Minister also relied on the Explanatory Memorandum to the regulation (see above) for the proposition that the change addresses the possibility that Australian relatives could be unreasonable in their refusal to assist, but that the critical issue for the Tribunal now still remains as to whether the relevant assistance can be accessed.
The Minister’s reading of the Tribunal’s decision was that no legal error was revealed in light of the above. In the Minister’s view a reading of the “carer” regulation reveals that central to this regulation is that it is the subjective needs of the person in need of care which sits at the heart of the definition of “carer”.
The Minister submitted that the Tribunal’s analysis pursued this aim with the “correct” question posed throughout its decision record. For example:
1)See [49] (at CB 295), the “correct” definition of carer, “whether any Australian relatives of the resident…could reasonably provide the assistance…”;
2)At [93] (at CB 301), “whether the assistance cannot be reasonably be provided”;
3)At [118] (at CB 305), “whether the assistance cannot be reasonably provided”, accompanied by a footnote reference to the Explanatory Memorandum;
4)At [122] (at CB 306), “…the question for the Tribunal is whether assistance cannot reasonably be provided…”;
5)At [123] (at CB 307), “Australian relatives could collectively reasonably provide…” and “these two nieces could provide…”;
6)At [124] (at CB 307), where the “Conclusion” is consistent with regulation, “The Tribunal is not satisfied that the assistance cannot be reasonably provided by them collectively”.
In short, the Minister said that the Tribunal not only stated the correct test, but “paraphrased” the test throughout its decision record, both in the report of the hearing, and in its analysis. The Minister contended that, in light of this, it was difficult to assert, as the applicants do now, that the Tribunal misunderstood the test and its proper application.
The Minister also argued, in response to the applicants’ charge that the Tribunal misstated the relevant test at [119] (at CB 306), that there was no error in the statement “… ‘[r]easonableness requires the Tribunal to focus on the ability of the person requiring the care to access the assistance she or he needs”. The Minister’s submission was that “the only thing wrong” here was the footnote reference to Naidu. That is, the “currency” of Naidu to the Tribunal’s consideration.
The Minister’s argument was that the focus of the “correct question” was on what “the sponsor” (in context, Mrs Rawaini) “can get”. That, “entailed in that question … is what the relatives can give”. The Minister noted that the Tribunal was “careful” to use the word “access” and not “obtain” (the relevant concept is “provided”).
Consideration
I agree with the applicants that the Tribunal misstated the relevant test at [119] (at CB 306), and, for that matter at [122] (at CB 306). In my view, the footnote reference to Naidu does not only “complicate” the Minister’s position (as he said before the Court) but reinforces, at least, the ambiguity in the Tribunal’s presentation of the relevant test.
The Court in Naidu was plainly focused on the regulation as it was in 2004. At that time, in relation to assistance both from Australian relatives and community resources, the relevant word used in the regulation was “obtained”. Naidu, and the other authorities referred to above made plain that there is a “real conceptual distinction” between the two terms (“obtained” or “provided”).
It is the case that at [22] of Naidu the Court said that “…reasonableness must be assessed in light of the circumstances” of “the applicants”, not of the relatives who might be expected to provide the care.
My respectful understanding is that, this was plainly said in “light of the structure of the paragraph…” (with reference to reg.1.15AA(1)(e) of the Regulations) as it then was. It is clear that this was said to emphasise the “distinction” between the words “obtained” and “provided” as set out previously at [21] of Naidu.
The “structure” of reg.1.15AA(1)(e) of the Regulations, as it then was, and keeping in mind the relevance of what was said at [22] of Naidu, was that the relevant test posed was that “the assistance cannot reasonably be obtained” from either, any other Australian relative, or from community services in Australian.
Bearing in the mind the use of the word “obtained” and the meaning given to that word (as opposed to “provided”) in context of the regulation as it then was, means that for both reg.1.15AA(1)(e)(i) and (ii) of the Regulations, whether the assistance could be “obtained” is addressed from the perspective of the person needing care (“requiring what is to be obtained”) (Naidu at [21]).
What appears at [119] (at CB 306), therefore, may be an accurate understanding of the law in relation to the regulation as it was, but does not reflect the regulatory requirement as it now stands. The Tribunal’s reference to Naidu in this context reveals that the Tribunal, with respect, misunderstood what was reasoned there. It also reveals that the Tribunal did not comprehend the change brought by the amendment to the regulation.
That change, as the Minister otherwise submitted, was directed, in intention, to address a matter raised in the authorities referred to above, including Naidu (see Explanatory Memorandum). That is, that a person could be given a carer visa in circumstances where there were other relatives in Australia who could reasonably provide the care but were unwilling, or unable, to provide it ([118] at CB 306).
While that may have been the primary, or even sole purpose, of the amendment, what cannot be ignored is the change in language used to give effect to the desired change. That change in language imported the word “provided” in substitution of the word “obtained”, as it related to assistance from Australian relatives. Importantly, by contrast, no change occurred in relation to assistance from community services in Australia.
Nonetheless, the reasoning in Naidu is important, and relevant, to the understanding of the meaning of the current regulation. In Naidu, the Minister specifically submitted before the Court that “no distinction should be drawn between whether assistance can reasonably be provided and whether the assistance can reasonably be obtained…” (Naidu at [14]).
The Court’s “answer” to that submission in Naidu was, with respect, clear. A distinction “has to be drawn” between the two in line with what had been “identified” in the authorities to which Ryan J had regard (Naidu at [21]).
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.
At [119] (at CB 306), the reference in the footnote to Naidu by the Tribunal cannot be read as some isolated and unfortunate “complication”. It must be read and understood in the context of the decision record. As it is made plain with the heading appearing above [118] (at CB 305), the Tribunal was focused at [119] (at CB 306), and following, with the current provision of reg.1.15AA(1)(e)(i) of the Regulations. The Tribunal certainly correctly paraphrased the test set out in that part of the regulation. It also noted that the purpose of the amendment was to address the issue of the unwillingness or inability of the Australian relatives to provide assistance.
The reference to Naidu at [119] of the Tribunal’s decision record (at CB 306), however, and the Tribunal’s statement to which the footnote referred, was plainly an accurate reflection of one part of what was relevantly said in Naidu. That is, that what was required by “reasonableness” in Naidu was to focus on the requirement of the person in need of care.
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”.
This does not mean that it is not necessary to look at what care is actually required by the person needing care, in this case Mrs Rawaini. 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.
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.
In this context, there is nothing to suggest that the word “reasonably” as it appears in the regulation cannot, or should not, be given its ordinary, dictionary meaning. This, therefore, involves concepts such as consideration in “accordance with reason, not irrational or absurd”, “proportionate”, “sensible” or “within the limits of reason” (The Shorter Oxford English Dictionary, 6th Edition).
Even on a fair reading, and for the reasons set out above, I am of the view that the Tribunal did not state the correct test for reg.1.15AA(1)(e)(i) of the Regulations as it is now. The Minister said that even if this is the case (which he did not concede), the Tribunal in any event “properly applied” the correct test. That is, its analysis contains consideration from the point of view of what could be “reasonably be given” by the relatives. The Minister pointed to all that follows [119] (at CB 306) with the exception of what is set out at [122] (at CB 306). That is where the Tribunal says “…Reasonableness requires the subjective assessment of the circumstances of the sponsor [the person needing the care] in the current case…” ([122] at CB 306) (emphasis in original).
The Minister sought to explain this by submitting that it was necessary for the Tribunal to have regard to the care needed by Mrs Rawaini given that this was a “central provision” in reg.1.15AA(1) of the Regulations as a whole. The submission was that the Tribunal considered the need of Mrs Rawaini and then proceeded to consider what could reasonably be provided by the relatives, both in the remainder of [122] (at CB 306) and then at [123] (at CB 307).
The Minister submitted that this was done without any reference to the expectation of Mrs Rawaini, or the applicant, that would have been the “focus of the old regulation”. The Minister says that the Tribunal proceeded to consider the evidence in the Statutory Declarations provided by the Australian relatives, which he said “amounts to the fact that they are unwilling or unable to provide the assistance required”. The Minister also submitted that [122] (at CB 306) to [123] (at CB 307) should be read in context of what was set out in the earlier summary of the evidence before the Tribunal. That is, that although those two paragraphs are “short in compass” they need to be read in context.
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).
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.
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”).
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.
One example of the Tribunal’s failure to show that it properly engaged with the correct test is that there is nothing to explain, or to reveal, that it had proper regard to this evidence, let alone the conclusion that “her five nephews are in a position to organise care…” (at [123] at CB 307).
A mere, and general, reference in the Tribunal’s analysis that it had regard to their evidence, does not satisfactorily reveal, in the circumstances presented in [122] (at CB 306) to [123] (at CB 307), that the Tribunal actually considered whether the care, that was needed, could not reasonably be provided by the Australian relatives.
Support for this view of the Tribunal’s analysis is also seen with the way it expressed its findings at [123] (at CB 307). The findings are in the positive (“the…relatives could collectively, reasonably provide to her…”, “…these two nieces could provide some assistance...”, “…the five nephews are in a position…” ([123] at CB 307)).
The use of the negative in the regulation, when combined with the understanding of the import of the word “provided” (as explained in relevant authorities, and above), reinforces the point that whether the Australian relatives cannot reasonably provide the assistance requires a focus on, that is even minimal consideration and analysis of, the reasons they advanced as to why they could not provide the assistance. That is what I respectfully understand from Naidu, (at [21]) by the words “…[w]hether something can be provided is a notion addressed from the perspective of the provider…” .
The Tribunal misunderstood the correct test, and did not apply the correct test as required by reg.1.15AA(1)(e)(i) of the Regulations. This reveals jurisdictional error. The applicants should be granted the relief they seek. I will make orders accordingly.
I should note, again, that the Tribunal did not turn its mind to reg.1.15AA(1)(e)(ii) of the Regulations. Had it done so, and found that the requirement that the assistance cannot reasonably be obtained from community services was not satisfied (for the sake of clarity, it could be so obtained), then, if absent any error, this may have constituted a separate and independent basis on which its decision to affirm the delegate’s decision may have been upheld. It did not engage in any such consideration. The matter, therefore, is resolved before the Court with reference to the Tribunal’s understanding and misapplication of the test at reg.1.15AA(1)(e)(i) of the Regulations.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 17 December 2013
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