Botros v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1293
•29 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Botros v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1293
File number(s): SYG 1203 of 2020 Judgment of: JUDGE LAING Date of judgment: 29 November 2024 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal (as it was) – whether the Tribunal failed to perform the statutory task required of it – whether the Tribunal failed to comply with s 360 of the Migration Act 1958 (Cth) – application dismissed Legislation: Migration Act 1958 (Cth) s 360
Migration Regulations 1994 (Cth) Sch 2, cl 836.221, r 1.15AA
Cases cited: AYT18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 597
BAO16 v Minister for Immigrationand Border Protection [2018] FCA 1463
BCE20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2021] FCAFC 124
BYF15 v Minister for Immigration and Border Protection [2016] FCA 774
Hernandez v Minister for Home Affairs [2020] FCA 415
Hunt v Repatriation Commission [2019] FCA 1191; (2019) 79 AAR 317
Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041
MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123; (2010) 117 ALD 441
Salah &Salah [2016] FamCAFC 100
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Division: General Number of paragraphs: 34 Date of hearing: 24 September 2024 Place: Sydney Counsel for the Applicant: Mr N Poynder Solicitor for the Applicant: Gateway Law & Migration Australia Solicitor for the First Respondent: Mr M Gao, HWL Ebsworth Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1203 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MAGDA MORIS REYAD BOTROS
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
29 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) (as it was). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant an Other Family (Residence) (Class BU) visa (carer visa).
BACKGROUND
The applicant is a citizen of Sudan. On 13 September 2016, the applicant applied for the carer visa.
On 31 January 2018, the Delegate refused the application on the basis that cl 836.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) was not met by the applicant.
On 9 February 2018, the applicant applied to the Tribunal for review of the Delegate’s decision. The applicant attended a hearing before the Tribunal on 24 February 2020.
On 21 April 2020, the Tribunal affirmed the Delegate’s decision.
RELEVANT LAW
The criterion at issue before the Tribunal was cl 836.221 of Schedule 2 to the Regulations, which provided:
836.221
The applicant is a carer of a person referred to in clause 836.212.
The meaning of ‘carer’ was given by r 1.15AA of the Regulations, with r 1.15AA(1)(e)(i) requiring that the assistance could not reasonably be:
(i)provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or
(ii) obtained from welfare, hospital, nursing or community services in Australia…
THE TRIBUNAL’S DECISION
The Tribunal summarised the background to the matter, the criterion in issue and the evidence before it at [1]-[38] of its decision.
At [14]-[43], the Tribunal considered whether assistance could not reasonably be obtained from welfare, hospital, nursing or community services in Australia. In this regard, the Tribunal reasoned at [39]-[43]:
39.The Tribunal accepts that the sponsor suffers from the conditions as described. It accepts that the sponsor would rather remain in her own home with her husband and have the applicant provide her with care and assistance and that the sponsor may be reluctant to engage other services. The Tribunal considered the information provided about the sponsor’s family members being unable to care for her however has made no finding on these claims. The Tribunal will base its decision on whether the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia, for the sponsor.
40.The Tribunal has not been provided any independent information about any investigation into services that may be obtained for the sponsor. The information provided by Nagla about the investigation she claims to have undertaken to obtain services for the sponsor is without any supportive evidence from any organisation. The sponsor’s clinical social worker states that services can’t communicate with the sponsor in her own language; that these services and many others have limited resources and availability; and that ‘The Multicultural Aged Community Welfare Service have been approached and indicated that they do not provide full time care for people with her disabilities; that the Department of Disability and Ageing was contacted and they referred the client to Australian Unity which indicated (services) would cost $45 an hour and this is financially unaffordable for someone on her low income’. These statements are unsubstantiated by any expression of how the social worker came to this view or on what information or evidence she based her opinion nor has she given any information from service providers giving this evidence. Nor are claims made by family members about services not being obtainable for the sponsor supported by independent evidence.
41.It is apparent that the sponsor is having trouble looking after some aspects of her welfare. It follows that it is a matter for her family to decide how best to care for her. It is evident that the sponsor wants to remain in her own home with the applicant caring for her. However, this does not necessarily mean that the assistance cannot reasonably be obtained through services in Australia. In considering the claims about the lack of 24-hour services and the cost of services being prohibitive, the Tribunal has not been provided any probative evidence to show that this is the situation or that any investigation has been undertaken to establish whether 24-hour services are obtainable from welfare, hospital, nursing or community services in Australia.
42.The evidence is that a process began with the NDIS to investigate what services might be obtained for the sponsor. However, on the sponsor’s evidence she completed an interview with the NDIS over the telephone and they were going to send her forms which she didn’t follow up on. However, Nagla’s evidence is that after the NDIS held a telephone interview with the sponsor, Nagla had a conversation with them and was advised that because the sponsor benefited from services her husband receives from Aged Care and services provided to her by the applicant, services were not obtainable for the sponsor and she advised the sponsor not to proceed with the NDIS. The Tribunal is not satisfied by this evidence because it is not supported by any independent information from the NDIS. Neither is the Tribunal satisfied that cultural factors - mean that the assistance cannot reasonably be obtained from welfare, nursing or community services in Australia because no evidence has been provided to support that service providers cannot cater to the sponsor’s cultural needs. The Tribunal does not consider it to be reasonable that the sponsor refuses to obtain help from services in Australia. The clinical social worker statement that services can’t communicate with the sponsor in her own language is provided without any information about what services she is referring to or about the services that were approached that allowed her to form this view.
43.The Tribunal is sympathetic to the sponsor’s circumstances. However, the Tribunal is not satisfied that the evidence provided demonstrates that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia for the sponsor, because there is no evidence to support this claim from any service provider. Ultimately, other than statements given, from the clinical social worker and family members about obtaining services, the sponsor has not provided any independent information that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia for the sponsor; rather, she has unreasonably rejected any option, stating that she only wants the applicant to provide her with assistance and there is no capacity available to the Tribunal to waiver this requirement.
Having regard to the above, the Tribunal found that r 1.15AA(1)(e)(ii) was not satisfied. Accordingly, the Tribunal affirmed the Delegate’s decision.
PROCEEDINGS BEFORE THIS COURT
The applicant commenced proceedings through an application filed on 20 May 2020, relying on the following grounds:
1.The second respondent (the Tribunal) failed to perform the statutory task required of it under reg 1.15AA(e)(ii) of the Migration Regulations 1994 (the regulations).
Particulars
(a)The Tribunal was required by reg 1.15AA(e)(ii) of the regulations to consider and engage with evidence provided by the applicant as to why assistance required by her sponsor in attending to the practical aspects of daily life could not reasonably be obtained from welfare, hospital, nursing or community services in Australia.
(b)The Tribunal did not consider and engage with evidence provided by the applicant as to this issue because such evidence was not supported by independent information from the service providers.
2.The Tribunal failed to comply with its obligation under s 360 of the Act to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issue arising in relation to the decision under review.
Particulars
(a)The Tribunal failed to notify or otherwise make clear to the applicant that it would not accept evidence from the applicant and her family members as to why assistance required by her sponsor in attending to the practical aspects of daily life could not reasonably be obtained from welfare, hospital, nursing or community services in Australia, without such evidence being corroborated by independent information.
(b)The failure of the Tribunal to put the applicant on notice that corroborating evidence would be required deprived the applicant of the opportunity to obtain and provide such evidence to the Tribunal.
Ground 1
Ground 1 contended that the Tribunal failed to perform the statutory task required of it under reg 1.15AA(e)(ii). This was said to have been because the Tribunal failed to consider and engage with evidence provided by the applicant as to why assistance required could not reasonably be obtained from welfare, hospital, nursing or community services in Australia.
The applicant did not contend that any particular part of the evidence put forward had not been at least referenced in the Tribunal’s decision. However, the applicant observed that recitation of evidence does not equate to consideration of it in the requisite sense. The applicant contended that the Tribunal used a preference for corroboration to excuse it from engaging with the evidence that was given. This was said to have resulted in error.
The applicant relied upon a series of cases in support of this argument. Such cases included Hernandez v Minister for Home Affairs [2020] FCA 415 (Hernandez) at [26] (Charlesworth J); BCE20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2021] FCAFC 124 at [39] (Jagot, Perry and Snaden JJ); Salah &Salah [2016] FamCAFC 100 at [43] (May, Ainslie-Wallace & Cronin JJ) and Hunt v Repatriation Commission [2019] FCA 1191; (2019) 79 AAR 317 at [59] (Steward J). At the hearing of this matter, the applicant also relied upon AYT18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 597 at [29]-[30] (Moshinsky J); BAO16 v Minister for Immigrationand Border Protection [2018] FCA 1463 at [44]-[45] and [92] (Kenny J); and Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041 (Machmud) (Hill J) at [16].
Each of the cases relied upon by the applicant turned upon their own particular factual circumstances and contexts. The Court’s task is to consider whether the error contended occurred in the circumstances of this case. I accept that if it is demonstrated that the Tribunal failed to engage with evidence, then this could potentially demonstrate jurisdictional error. Whether or not the evidence was corroborated, it needed to be engaged with by the Tribunal. As was observed in Machmud at [16], there is no general requirement that a claim be independently corroborated in order for it to be accepted. That said, lack of corroboration may legitimately bear upon whether or not evidence is accepted: Hernandez at [26]; see also MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123; (2010) 117 ALD 441 at [91] (Keane CJ, Perram and Yates JJ).
I accept that there is some language in the Tribunal’s decision that potentially lends support for the applicant’s ground. At [41], the Tribunal stated that it “had not been provided any probative evidence” to show that the situation was as contended or that investigation had been undertaken regarding 24-hour services. At [42], the Tribunal referred to there being “no evidence… to support” that service providers could not cater to the sponsor’s cultural needs. The applicant contended that the Tribunal’s assessment did not regard the family’s evidence as evidence at all, in the absence of corroboration. It was submitted that the Tribunal similarly failed to engage with other evidence that had been relied upon in support of the applicant’s case.
Reading the Tribunal’s decision fairly and as a whole, I am unable to accept the applicant’s argument that the Tribunal failed to engage with the evidence.
The Tribunal summarised the evidence in some detail at [1]-[38] of its decision. No issue has been taken with the accuracy of this summary. Whilst not determinative, the detailed approach taken in this regard by the Tribunal to the evidence suggests (at least to some extent) a consciousness of both its content and its significance as evidence that had been put forward in support of the application.
At [39]-[43], the Tribunal engaged with the evidence that was before it. This part of the Tribunal’s decision has been extracted above. In those paragraphs, the Tribunal effectively reasoned that it was not satisfied on the evidence that had been provided that the assistance required by the sponsor could not reasonably be obtained from welfare, hospital, nursing or community services in Australia. In this regard, the Tribunal considered evidence that had been put forward by the family including regarding their claimed interactions with service providers. However, the Tribunal was concerned that nothing corroborating this had been submitted from the service providers in question. This was in a context where the Tribunal did not consider that evidence provided by the family was “independent”. It was in circumstances where the Tribunal considered that the sponsor had been unwilling to entertain other options because she wanted her sister to be the one to provide assistance. It was in circumstances where some tension appears to have been perceived (at [42]) between the evidence of the sponsor and her daughter regarding the extent of follow up with the NDIS. It was in circumstances where the report that had additionally been provided from a clinical social worker was found by the Tribunal to have been lacking in important detail and insufficiently persuasive for the reasons that the Tribunal gave.
Although a lack of corroboration did not excuse the Tribunal from engaging with the evidence that was put forward, the Tribunal was not obliged to accept the evidence that was before it. The Tribunal’s weighing of that evidence against matters including a lack of corroboration was an approach that was open to the Tribunal. The applicant has not demonstrated otherwise. I accept the Minister’s submission that, on a fair reading of the Tribunal’s decision, this is what the Tribunal did at [39]-[43].
Read in the above context, it is apparent that the Tribunal’s references to there being no “probative evidence” or “no evidence… to support” certain propositions simply referred to the Tribunal’s concern that independent evidence from service providers had not been submitted. For the reasons given above, I consider that it was open to the Tribunal to have held this concern. I do not consider that these references in the Tribunal’s decision compel a conclusion that the Tribunal failed to engage with the evidence that was provided.
Ground 1 is therefore unable to succeed.
Ground 2
Ground 2 contended that the Tribunal breached s 360 of the Migration Act 1958 (Cth) (Act). The “issue” the applicant contended she had been insufficiently on notice of was that corroborating evidence would be required.
In support of the ground, the applicant drew attention to various parts of the materials. The applicant observed that the Department in correspondence had requested documentary evidence regarding service providers. It was said that this could “include evidence [she had] contacted such services or letters from these services stating what care is or is not available”. This, it was contended, suggested alternatives that were available.
The applicant observed that the Delegate had found “no evidence” had been provided demonstrating that the assistance required had been sought and could not be reasonably obtained from services in Australia. Although the applicant observed there had been some evidence, the applicant acknowledged its limitations before the Delegate. The applicant emphasised that the Delegate had not stated that corroborating evidence was required.
The applicant observed that the Tribunal had sent an invitation to provide information regarding a current Carer Visa Assessment Certificate. The invitation did not request written confirmation of the availability of welfare services from external providers. At the hearing before the Tribunal, the applicant’s representative had foreshadowed wanting to provide a further statement from the sponsor’s daughter regarding external services that had been sought. The Tribunal indicated that this would be “fine”. However, the Tribunal did not explicitly ask the applicant for any corroboration from service providers.
I have not been persuaded that the Tribunal failed to comply with its obligations under s 360 of the Act.
Although correspondence from the Department indicated examples of the types of evidence that may be provided, this did not detract from the obvious proposition that the more comprehensive or cogent the evidence provided, the more likely it would be to satisfy the decision maker that the criterion in issue was met. The Delegate’s characterisation of the evidence provided by the family as “no evidence”, whilst inaccurate, drew attention to the sufficiency of the evidence regarding the availability of external providers being in issue.
I accept that the Tribunal did not inform the applicant at hearing (or otherwise) that the presence or absence of evidence from service providers may affect whether or not the Tribunal found in the applicant’s favour. This is notwithstanding discussion at hearing of other evidence that was proposed to be provided. However, I have not been persuaded that the Tribunal was obliged to inform the applicant specifically of the potential relevance of independent corroborative evidence. I accept the Minister’s submission that the applicant was sufficiently on notice of the issues on the review in the circumstances of this case. Those circumstances included:
(a)the indication from the Delegate’s decision that the sufficiency of the evidence regarding whether the services could be provided by external providers was in issue;
(b)at the hearing before the Tribunal, the sufficiency of inquiries made of service providers would have been apparent from the Tribunal’s questioning. This included, inter alia, the Tribunal putting to the applicant information regarding the NDIS;
(c)although the Tribunal indicated that it would permit (or be “fine” with) the applicant providing a further statement from the daughter that was proposed, this did not rise to a level of misleading the applicant as to the types of evidence that may assist in making her case;
(d)it would have been sufficiently apparent that the more persuasive the evidence she was able to provide, the greater chance she would have of persuading the Tribunal that she met the criterion in issue; and
(e)the applicant could have had no reasonable expectation that evidence she provided after the Delegate’s decision would necessarily be accepted by the Tribunal in the absence of corroboration. SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (SZBEL) does not impose a general obligation upon the Tribunal to inform an applicant that it will need to consider the sufficiency of evidence relied upon, in circumstances where the evidence differs from the evidence that was relied upon before the Delegate: see BYF15 v Minister for Immigration and Border Protection [2016] FCA 774 at [46] (Perry J).
As was observed by the Minister, the Tribunal was not required to provide the applicant with a “running commentary” regarding its evaluation of the evidence that had been given: SZBEL at [29]-[48] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). It was always possible that the Tribunal may consider insufficient evidence had been provided demonstrating that the assistance required could not be obtained from welfare, hospital, nursing or community services in Australia. This had been found by the Delegate. In the above circumstances, I am not persuaded that s 360 of the Act required the Tribunal to inform the applicant that independent corroborative evidence may have strengthened her case, or that it may not accept evidence that had been provided in its absence.
I am therefore not persuaded that ground 2 is able to succeed.
CONCLUSION
This is a difficult case. It appears that the sponsor has significant care needs and wishes for them to continue to be met by her sister. The sponsor and her family are facing what I do not doubt is a very difficult and distressing situation on account of her sister’s visa refusal.
However, as has no doubt been explained to the applicant by her capable representatives, this Court has no power to set aside a decision of the Tribunal unless persuaded that it is affected by jurisdictional error.
For the reasons given above, I have not been so persuaded. I am therefore obliged to dismiss the application before the Court.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 29 November 2024
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