Bader v Minister for Immigration
[2018] FCCA 485
•20 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BADER v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 485 |
| Catchwords: WORDS AND PHRASES – Substantial and continuing assistance. |
| Legislation: Migration Act 1958 (Cth), ss.359AA, 477 Migration Regulations 1994 (Cth) |
| Cases cited: Minister for Immigration v SZIAI [2009] HCA 39; 83 ALJR 1123 Perera v Minister for Immigration [2005] FCA 1120 Xiang v Minister for Immigration [2004] FCAFC 64 |
| Applicant: | YOUSSEF BADIH BADER |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3267 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 22 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 20 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar |
| Solicitors for the Applicant: | Westside Legal |
| Counsel for the Respondents: | Ms N Laing |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
A writ of certiorari shall issue, removing the record of the decision of the Administrative Appeals Tribunal made on 16 September 2016 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to redetermine the review application before it, according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3267 of 2016
| YOUSSEF BADIH BADER |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant, Mr Bader, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 16 September 2016. The Tribunal affirmed a decision of the delegate of the Minister (delegate) not to grant Mr Bader a family residence visa (carer visa).
The following statement of background facts is derived from the submissions of the parties.
Mr Bader is a citizen of Sweden and Lebanon. He applied for the carer visa on 27 March 2015, on the basis of care for his sister (sponsor).[1]
[1] Court Book (CB) 28-63.
On 5 January 2016, the delegate refused the application on the basis that clause 836.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) was not met.[2] The delegate was not satisfied that Mr Bader was the carer of the sponsor within the meaning of regulation 1.15AA.
[2] CB 345-350.
Mr Bader applied to the Tribunal for review of the delegate’s decision on 18 January 2016.[3]
[3] CB 353-354.
Tribunal decision
The issue before the Tribunal was whether Mr Bader was “willing and able” to provide “substantial and continuing assistance of the kind needed” within the meaning of regulation 1.15AA.
The Tribunal found that Mr Bader did not meet this criterion.
Of significance to the Tribunal’s decision was its finding that Mr Bader intended to work full time in Australia on a permanent basis. This led the Tribunal to consider that Mr Bader would not be in a position to provide substantial and continuing care to the sponsor of the kind that was required.[4]
[4] at [41].
At the hearing, the Tribunal put various information to Mr Bader, pursuant to s.359AA of the Migration Act 1958 (Cth) (Migration Act). This included information from Mr Bader’s previous application for variation of his bridging visa to include work rights. Whilst Mr Bader initially denied working in Australia when questioned by the Tribunal, he varied his evidence when the contrary was put to him based upon information provided in his bridging visa application. The Tribunal considered that Mr Bader had intentionally minimised “his work activities in Australia so as to not undermine his claim that his intention is to provide continuing assistance to the sponsor”.[5]
[5] at [44].
The Tribunal observed that the evidence given by Mr Bader’s family indicated that he needed to work to support his family in Australia and overseas. The Tribunal rejected the suggestion that his sister-in-law was supporting them as vague and lacking in detail. The Tribunal was not satisfied that Mr Bader’s alleged overseas savings of US$20,000 to $21,000 would be sufficient to meet long term living expenses in Australia. Mr Bader’s failure to disclose those savings when asked to do so as part of his bridging visa application suggested that he was willing to provide false and misleading information to the Minister’s Department.[6]
[6] at [47]-[48].
The Tribunal considered the fact that Mr Bader’s pregnant wife was now living in Australia with him provided an additional incentive for him to work and not provide the substantial and continuing assistance needed by the sponsor. The impending arrival of Mr Bader’s third child would place additional financial obligations upon him. Conversely, whilst Mr Bader has two other children, the Tribunal accepted that he did not intend to support them financially. The Tribunal therefore accepted that this would not affect whether Mr Bader would work in Australia rather than providing the sponsor with substantial and continuing assistance of the kind she needs.[7]
[7] at [49]-[52].
By reason of the above, the Tribunal concluded that Mr Bader would feel compelled to work, and would not be willing to provide the sponsor with substantial and continuing assistance of the kind required.[8]
[8] at [53].
Noting that the requirements in regulation 1.15AA were cumulative,[9] the Tribunal went on to consider whether Mr Bader was able to provide the sponsor with the relevant assistance.
[9] at [39]-[40].
Mr Bader conceded that he was not able to provide most of the care needs claimed by the sponsor, which were provided by their mother. Their mother did most of the cooking (although Mr Bader claimed to assist). Their mother also provided care for the sponsor, such as taking her to the toilet, dressing and undressing her, washing her, washing her clothes, taking care of her baby during the night, changing the baby’s nappies and preparing milk bottles, and taking her to the park and communicating with her. Mr Bader claimed that it was “culturally inappropriate” for a male to do most of the things that their mother did for the sponsor.[10]
[10] at [56]-[57].
Although Mr Bader claimed to provide some assistance to the sponsor, such as driving her to appointments and assisting with some of the cooking, housework and supervision of her daughter, the Tribunal was not satisfied that it rose to the “substantial and continuing assistance of the kind needed by the sponsor”. The Tribunal considered that this kind of assistance was in fact provided by their mother. It was their mother who claimed that she would continue to provide such assistance into the future.[11]
[11] at [57]-[58].
The Tribunal therefore concluded that Mr Bader did not meet the following, cumulative, requirements of regulation 1.15AA:
a)that Mr Bader be “willing” to provide the assistance;
b)that he be “able” to provide it; and
c)that the level of assistance be “substantial and continuing assistance of the kind needed” by the sponsor.
The present proceedings
These proceedings began with a show cause application filed on 23 November 2016. Mr Bader continues to rely upon that application. The application was filed 33 days outside the 35 day time limit prescribed by s.477(1) of the Migration Act. Mr Bader sought an extension of time, pursuant to s.477(2).
I granted the extension of time sought. The delay in this case was relatively moderate and, while the explanations advanced for that delay were not highly persuasive, relating to Mr Bader’s lack of understanding and his efforts to obtain legal assistance, the first ground in the application disclosed an arguable case of jurisdictional error:
1. The Tribunal committed jurisdictional error by misconstruing r.1.1.15AA(1) of the Act and/or when it asked failed to ask the correct question and ignored relevant considerations and/or took into account irrelevant considerations/constructively failed to exercise jurisdiction.
Particulars
1.1 The Tribunal erred when it construed the involvement required 24 hours involvement of the Applicant to the exclusion of others including the sponsor’s Mother (AAT dec p9 at [56]-[57]) and has misconstrued the Regs;
1.2 Erred in failing to ask the correct questions concerning the sponsor’s health and whether the care could also be provided by others.
1.3 Applying incorrect test and/or ignoring correct test that the cultural situation warranted involvement of female members of the sponsor’s family.
1.4 Taking into account irrelevant considerations – as to the amount of time in which the Applicant’s offshore visa would be processed.
1.5 In failing to ask the correct questions concerning the sponsor’s health circumstances and ignoring the Sponsor’s current financial circumstances the Tribunal committed jurisdictional error.
The second ground in the application was not pressed.
I have before me as evidence the court book filed on 22 February 2017.
Mr Bader’s affidavit filed with his application was not read. I marked for identification[12] a second affidavit by Mr Bader made on 19 February 2018. I received [10] of that affidavit in relation to the extension of time application. The balance of the affidavit goes essentially to the merits of Mr Bader’s visa application and I did not receive it into evidence.
[12] MFI A1.
Both Mr Bader and the Minister filed written submissions in advance of the trial of this matter on 22 February 2018. They also made oral submissions at that time through their representatives.
Consideration
Applicant’s submissions
The basis upon which the Tribunal determined that Mr Bader was not willing to provide “substantial and continuing assistance”[13] to the sponsor was that he sought to work full time.
[13] at [41].
Mr Bader contends that the Tribunal fell into error by misdirecting itself and asking wrong questions. Mr Bader has not claimed that he would be the sole carer of the sponsor (and other family members had a role to play). The Tribunal is said not to have addressed whether, together with other family members, Mr Bader could fulfil the carer role on a “substantial and continuing assistance” basis.
The Tribunal is also said to have erred in interpretation of clause 1.15AA(1) of the Regulations in assessing whether Mr Bader was in a position to provide substantial and continuing assistance to the sponsor. The Tribunal is said to have failed to address whether Mr Bader could provide substantial and continuing assistance and whether another relative that was present in Australia could assist with care whilst Mr Bader provided substantial and continuing assistance.
Mr Bader submits that the Tribunal noted that there were relatives in Australia but failed to ask whether the relatives were willing to provide some assistance, erroneously presuming that substantial and continuing assistance was to be understood as exclusive care.
The Tribunal is said to have misdirected itself in its finding about substantial and continuing assistance and failed to find whether supplemental assistance could be obtained in Australia.
Mr Bader claims that he had requested part time work rights. The Tribunal is said to have erred as it considered him to be intending to undertake permanent full time employment.[14]
[14] at [41].
The Tribunal is said to have failed to address whether Mr Bader would be providing substantial and continuing assistance even if he was employed. Mr Bader submits that the Tribunal misconstrued the regulations.
The Tribunal is said to have misdirected its enquiries[15] when it asked itself whether the other family members would be able to earn income. Addressing whether Mr Bader would provide substantial and continuing assistance did not require assessment of employment potential of the other members of the family or alternatively whether the roles could be re-arranged so that Mr Bader could provide substantial and continuing assistance.
[15] at [51].
Mr Bader further submits that the Tribunal failed to put to him all the issues on which the decision turned. The Tribunal is said to have failed to put determinative issues to Mr Bader.
The Tribunal is said to have committed jurisdictional error when it misdirected its enquires and/or misconstrued clause 1.15AA of the Regulations.
Minister’s submissions
Ground 1 invokes numerous categories of jurisdictional error. The Minister understands the complaints to be, essentially, as follows:
a)that the Tribunal required Mr Bader to provide “24 hours involvement” to the exclusion of all others. However, no such finding was made by the Tribunal. As summarised above, the Tribunal found that Mr Bader did not, was not able to, and was unwilling to provide assistance to the sponsor within the meaning of regulation 1.15AA. In so finding, the Tribunal observed that most of the sponsor’s care needs were not provided by Mr Bader, but were in fact provided by his and the sponsor’s mother;
b)that the Tribunal failed to ask the “correct questions”. However, this misunderstands the role of the Tribunal. Its role was not to inquire, but to review.[16] It understood and considered the claims and evidence that were advanced by Mr Bader about the sponsor's health and care. Had Mr Bader wished to put additional material forward regarding that he ought to have done so;
c)that the Tribunal misapplied the correct test “that the cultural situation warranted involvement of female members of the sponsor’s family”. However, the Tribunal took into account Mr Bader’s evidence that it was “culturally inappropriate” for him to provide certain types of assistance.[17] The task nevertheless remained for the Tribunal to determine whether Mr Bader was “willing and able” to provide “substantial and continuing assistance” of the kind that was needed. It found that he was not. This finding was open to the Tribunal;
d)that the Tribunal took into account an irrelevant consideration as to the amount of time in which Mr Bader’s offshore visa would be processed. It is unclear what is meant by this ground. The Tribunal did not make any findings regarding the processing time of an offshore visa; and
e)that the Tribunal ignored the sponsor’s current financial circumstances. However, this is unsustainable by reason of [10]-[12], [15], [30]-[32], [43]-[48] of its reasons. The Tribunal had regard to Mr Bader’s suggestion in his bridging visa application that his sister was “not getting enough financial support from Centrelink”, and that this was “the only income that the family received”.[18]It had regard to Mr Bader’s claims in support of the carer visa, in which he sought to persuade the Tribunal that he had access to funds without working full time.[19] The Tribunal also considered the care needs of the sponsor which were identified in the certificate obtained in accordance with regulation 1.15AA, as well as the ways in which Mr Bader and the sponsor’s mother claimed to be providing assistance. It ultimately concluded that the criterion in regulation 1.15AA was not met.[20] The Minister contends that this finding was open to the Tribunal on the material that was before it.
[16] Minister for Immigration v SZIAI [2009] HCA 39; 83 ALJR 1123 at [1].
[17] at [56].
[18] [11]-[12].
[19] [15]-[53].
[20] [37]-[60].
Resolution
Having regard to the course of oral argument at the trial of the matter, the question to resolve in this case is whether the Tribunal misconstrued the phrase “substantial and continuing assistance” in regulation 1.15AA(1)(f). As was noted by the Tribunal at [39],[21] that regulation requires that Mr Bader is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed. As the Tribunal further noted in that paragraph, “willingness” is concerned with the applicant’s state of mind. In contrast, the issue of ability is an objective enquiry as to whether the applicant is a person who is suitable or fit to provide the assistance.[22]
[21] CB 397.
[22] Xiang v Minister for Immigration [2004] FCAFC 64.
The Tribunal stated at [40]:[23]
The term ‘substantial and continuing assistance’ has not been directly considered in this context, but has been the subject of judicial consideration in the context of the definition of ‘special need relative’ in r.1.03. In Perera v MIMIA [2005] FCA 1120, the Court held that the term ‘substantial’ is directed to the level of assistance and the term ‘continuing’ is directed at the duration of the assistance and that it is a composite phrase, in the sense that its two elements are cumulative. Although the comments in this case were not made in the context of the definition of ‘carer’, the Tribunal considers them to be of assistance when considering that definition.
[23] CB 397.
The Tribunal found at [41] that Mr Bader was not willing to provide to the sponsor the substantial and continuing assistance she needed because he was working (or was intending to work) full time. Although Mr Bader asserts that he only wants to work part time, the Tribunal’s conclusion was open to it. Further, at [54]-[59][24] the Tribunal considered whether Mr Bader is able to provide the sponsor the substantial and continuing assistance she requires. The Tribunal noted that Mr Bader’s (and the sponsor’s) mother had filed a carer visa application sponsored by the same sponsor on the basis that she is providing care for her. Mr Bader conceded to the Tribunal that he was not able to provide most of the care needs claimed by the sponsor. He conceded that their mother provided care in washing the sponsor, taking her to the toilet, dressing and undressing her, washing her clothes, taking care of the sponsor’s baby during the night, changing the baby’s nappies and preparing milk in bottles, taking her to the park and communicating with her. Mr Bader noted that their mother does most of the cooking in the household but stated that he assists. Mr Bader further conceded that he could not do most of the things their mother did for the sponsor as it was culturally inappropriate for a male to provide intimate assistance to a female.
[24] CB 399-400.
Mr Bader based his claim on the assertion that he provided some assistance, including driving the sponsor to appointments, assisting with the cooking and housework and supervising her and her child. The Tribunal was not satisfied that this constituted substantial and continuing assistance of the kind needed by the sponsor. The reason for that is set out at [58] of the Tribunal’s reasons, where it stated:[25]
The person who has been providing the substantial and continuing assistance, and is claiming that she will continue to do so in the future, is the sponsor’s mother. It is the sponsor’s mother who has been willing and able to provide to the sponsor the substantial and continuing assistance of the kind described in the certificate for the sponsor. The applicant has stated that he cannot provide the assistance his mother provides to the sponsor as it would be inappropriate for him as a male to do so. As such, the Tribunal finds that the applicant is not able to provide to the sponsor the substantial and continuing assistance required by her and for this reason does not meet the definition of a carer in r.1.15AA(1)(f).
[25] CB 399-400.
Whether or not more than one person is providing assistance, the Tribunal is entitled to evaluate the assistance provided by the visa applicant in order to determine whether it is “substantial and continuing”. That evaluative task is for the Tribunal, not this Court. On the other hand, it would be an error for the Tribunal to proceed on an assumption that, because someone else is providing care to a sponsor, a visa applicant cannot, in a supportive role, provide substantial and continuing assistance. In other words, the fact that Mr Bader’s and the sponsor’s mother was the dominant carer of the sponsor did not preclude the possibility of Mr Bader, in a supportive role, also providing substantial and continuing assistance.
The difficulty in this case is that it is unclear from the Tribunal’s reasons whether the Tribunal was reasoning from a misapprehension that multiple persons could not individually or collectively provide substantial and continuing assistance or whether it was simply evaluating the assistance provided by Mr Bader in order to determine that it was not substantial and continuing. It was clear that the mother was playing the dominant role of carer and that Mr Bader’s role was supportive. The carer’s certificate issued in relation to the sponsor is reproduced at CB 185. While that is in general terms, it establishes that the sponsor has a medical condition that causes physical, intellectual or sensory impairment and that carer’s assistance is required for her to attend to the practical aspects of daily life because of that medical condition.
The practical aspects of daily life are manifold. Obviously, dressing, undressing, washing and toileting are fundamental aspects of daily life as are preparing meals, attending medical appointments, other local travel needs, cleaning house, protection from harm and the receipt of emotional support. Mr Bader’s claim to the visa rested on his willingness to provide driving assistance, some support in relation to ordinary household duties and the emotional support of a close relative, but not the intimate contact with the sponsor that could only be provided by a female. While [58] of the Tribunal’s reasons is open to several interpretations, the first two sentences of that paragraph, in my opinion, betray a misunderstanding of the visa criterion. Just because one person is providing substantial and continuing assistance, it does not follow that a second person in a supportive role and undertaking different tasks, cannot also provide substantial and continuing assistance. This, in my opinion, amounts to a misconstruction of the regulation, which goes to jurisdiction.
I have taken into account that the error by the Tribunal does not necessarily affect its finding that, because of his employment and other family responsibilities, Mr Bader was not willing to provide substantial and continuing assistance. However, while the requirements in regulation 1.15AA are cumulative, they may impact upon one another. A determination of what constitutes substantial and continuing assistance may impact upon a decision on the subjective willingness of an applicant to provide that assistance. Thus, while Mr Bader was not willing to provide the assistance provided by his and the sponsor’s mother, he may have been willing to provide the lesser assistance he claimed to provide.
Conclusion
Mr Bader has succeeded in establishing that the decision of the Tribunal in this case is affected by jurisdictional error. He should receive the relief he seeks.
I will hear the parties as to costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 20 March 2018
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