Chand v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 872
•3 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Chand v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 872
File number(s): CAG 27 of 2020 Judgment of: JUDGE HUMPHREYS Date of judgment: 3 May 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Other Family (Residence) (Class BU) (Subclass 836) carers visa – whether the Tribunal failed to consider the applicant’s most current medical evidence – whether the Tribunal failed to consider that the Statutory Declarations from the sponsor laws family had been witnessed by a solicitor, that there was no evidence that they had not been witnessed correctly – whether the Tribunal failed to comply with s 360(1) Migration Act 1958 (Cth) – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. Legislation: Migration Act 1958 (Cth) s 376
Migration Regulations 1994 (Cth) sch, 2 cls 836.213 836.221, r, 1.15AA(1)(e)
Cases cited: ANC16 v Minister for Immigration and Border Protection [2018] FCA 1831
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
ETA067 v Republic of Naru (2018) 360 ALR 228
Lo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 895
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Number of paragraphs: 38 Date of last submission/s: 22 April 2021 Date of hearing: 22 April 2021 Place: Parramatta Counsel for the Applicant: Mr Aleksov Counsel for the Respondents: Mr Barrington ORDERS
CAG 27 of 2020 BETWEEN: SATEND CHAND
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
3 MAY 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant to pay the First Respondent’s costs fixed in the amount of $9356.00.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a citizen of Fiji. On 7 October 2015 the applicant applied for an Other Family (Residence) (Class BU) (Subclass 836) Carers visa.
On 7 December 2017, a delegate of the Minister for Immigration and Border protection (“the delegate”) refused to grant the applicant his visa. The delegate refused to grant the visa on the basis that cl 836.213 and cl 836.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) were not met, as the delegate was not satisfied that the applicant had provided sufficient evidence to determine that assistance cannot reasonably be provided by any other relative of the resident (either individually or collectively). The delegate was also not satisfied that the applicant had demonstrated that the assistance for the sponsor could not be reasonably obtained from welfare, hospital nursing or community services in Australia.
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 11 May 2020, the Tribunal affirmed the delegate’s decision not to grant the applicant his visa.
The applicant now seeks judicial review of the Tribunal’s decision.
GROUNDS OF JUDICIAL REVIEW
At the commencement of the hearing, leave was granted to the applicant to amend the grounds of judicial review to those contained in an Amended Application attached to the Affidavit of Radhika Reddy, solicitor, affirmed on 10 February 2021. The grounds relied upon are as follows:
Ground One
The Tribunal failed to consider the most current medical evidence, from 6 June 2015, recording the sponsor as having only “mild cognitive impairment” at that time.
Ground Two
The Tribunal failed to consider that the statutory declarations from the sponsor’s family had been witnessed by a solicitor, that there was no evidence that they had not been witnessed correctly.
Ground Three
The Tribunal unreasonably failed to contact the solicitor who had witnessed the statutory declarations, where she was also the migration agent on the record in the Tribunal review.
Ground Four
The Tribunal failed to comply with s 360(1), in that it did not give any indication to the applicant of the issue as to whether the statutory declarations might not be accepted without further corroborative evidence as to the identity of the declarants.
THE APPLICANT’S SUBMISSIONS
Counsel for the applicant summarised his case as follows:
The applicant sought a carer visa as the carer for his father. The family has several members in Australia, but they all claimed that they could not provide the necessary care for their father.
One criterion for the visa, relevant to this question, was cl 836.221, which required in substance that the care required by the sponsor could not reasonably be provided by another relative of the sponsor. This is a time of decision criterion. In finding that the applicant failed to meet cl 836.221, the Tribunal rejected evidence in the form of statutory declarations from the sponsor's family, principally because the Tribunal had not received corroborative evidence as to the identity of the declarant in addition to the witness's declaration.
This was a sharp finding by the Tribunal, calling into question the professional integrity of the migration agent acting in the matter who a solicitor is also. It professionally discourteous, to say the least, to have made a finding of that kind without at least giving the solicitor an opportunity, set out in express terms, to address the concern.
A time of application criterion, cl 836.213, required that the sponsor understood the nature of the sponsorship obligations to which he was committing himself in undertaking to be a sponsor. The Tribunal found that the sponsor had dementia prior to undertaking the sponsorship obligation and was not of sound mind.
In relation to ground one, the most up-to-date information about the state of the sponsor’s health was at page 229 Court Book, being a report from the sponsor’s treating geriatrician Dr Selvadurai. The Doctor reported that the applicant suffered from a “mild cognitive impairment” and that his memory is generally stable. The Doctor explained that the applicant has been poor with his compliance with medications, although this had improved with a Webster Pack. Perhaps this explains the cognitive dysfunction mentioned in some of the other reports before the Tribunal. The failure to consider this material, was a failure to consider important evidence in the review and that may well have affected the assessment of this criterion.
In oral submissions, it was submitted that the Tribunal failed to give intellectual consideration of the 2015 Selvadurai report. Counsel for the applicant noted that Dr Selvadurai is a specialist geriatrician and treating specialist. The Tribunal should have given significant weight to the report. Given that Dr Selvadurai stated that the sponsor suffered from mild cognitive impairment, it was not open to the Tribunal to find that the sponsor could not understand the sponsorship obligations. It was submitted that taken in context, an earlier reference in a 2013 report, was one that outlined Alzheimer’s as a possibility and requested a test to confirm its presence. The Tribunal was wrong to find that a diagnosis existed in 2013. It was submitted that to find that the sponsor did not have the capacity to understand the obligations of sponsorship, required the Tribunal to give detailed reasons which it failed to do.
In relation to grounds two to four, Counsel for the applicant submitted that the Tribunal’s essential reasoning is at paragraph 91 of its decision, and although that language is polite, it amounts to a rejection of the statutory declarations. Each of the declarations was witnessed by a solicitor who was also the migration agent representing the applicant at the review. It may be accepted that the delegate raised concerns about other statutory declarations in regards to the identity of the declarants, however these earlier declarations had not been witnessed by solicitor. It is submitted that as it was the solicitor who witnessed the declarations, it is highly probative of the identity of the declarant.
The Tribunal ignored this altogether. The Tribunal treated the witnessing of the statutory declarations as equivalent, to the witnessing of the other statutory declarations. This constituted a failure to consider important evidence in review.
It was submitted that there is an inherent nonsense in the Tribunal’s reasoning, as the Tribunal accepted the identity of one of the declarants, Mr Ruzwell Chand when he attended the Tribunal to give evidence. In these circumstances, the failure to consider Mr Ruzwell Chand’s statutory declaration is utterly unjustified.
Further and alternatively, the Tribunal failed to draw to the applicant’s attention that the claimed identity of the declarants at casebook 44, was an issue. This became a distinct issue in the review and only emerged with receipt of the Tribunal’s reasons. From the transcript of the hearing, there was no discussion of this issue at the hearing. There is nothing in the written correspondence to identify this is an issue in the review. It cannot be said that this was the same issue as for the delegate – this was about different statutory declarations. The latter were witnessed by a different and far more reliable class of person.
Alternatively, if the Tribunal considered this evidence, it unreasonably failed to contact the solicitor, also the migration agent, to supply identification information (or perhaps, a sworn statement from the solicitor confirming that the statutory declarations were witnessed).
Counsel for the applicant conceded that in order for the application to be upheld, the applicant needed to succeed not only in relation to ground one but also in relation to one of grounds two to four.
THE FIRST RESPONDENT’S SUBMISSIONS
Counsel for the first respondent noted, that the Australian Capital Territory Civil and Administrative Tribunal (“ACTCAT”) had made orders as to the appointment of a guardian for the sponsor. Further, the hearing was postponed on a number of occasions from July 2019 to August 2019. Following the hearing, the applicant was allowed to provide additional information. The applicant was also provided a copy of documents covered by a s 376 of the Migration Act 1958 (Cth) (“the Act”) certificate. The applicant responded to the Tribunal’s invitation to comment on those documents on 22 April 2020.
It was submitted that there were two questions before the Tribunal. The first question was whether the sponsor understood the legal undertaking of the sponsorship. The Tribunal was prepared to accept that the family read the obligations to the sponsor, however on the basis of all the medical evidence before it, the Tribunal was not satisfied that the sponsor understood his sponsorship obligations. The Tribunal was also not satisfied that any legal authority was in place at the time of the application on behalf of the sponsor. The Tribunal was therefore not satisfied that the applicant was sponsored at the time of the application. Accordingly, the Tribunal found that the applicant did not satisfy cl 836.213.
The second question before the Tribunal was whether, at the time of the decision, the applicant was a carer for the sponsor.
Firstly, the Tribunal considered the assistance required by the sponsor could not reasonably be provided by any relative of the sponsor. Based on the medical evidence, the Tribunal accepted that the sponsor’s wife could only reasonably provide a minor level of assistance required by the sponsor. The Tribunal gave no weight to the statutory declarations provided by the sponsor’s children and grandchildren, because it could not be satisfied of the identity of the declarants. The Tribunal also gave no weight to the diagram summarising the information statutory declarations. The Tribunal did not accept the oral evidence of the applicant and his brother. No evidence was provided regarding the applicant’s brother’s employment or that his wife and siblings were unable to contribute some assistance to the sponsor. Given these concerns, the Tribunal was not satisfied that the assistance required by the sponsor could not be reasonably provided by other relatives of the sponsor.
Secondly, the Tribunal considered whether assistance could not reasonably be obtained from welfare, hospital, nursing or other community services in Australia. Without evidence, the Tribunal did not accept that some level of assistance from welfare, hospital, nursing or community services in Australia could not be accessed for the sponsor, acknowledging that such assistance would not meet all of the sponsor’s needs, but would complement the assistance that could be reasonably provided in combination by the sponsor’s relatives. Thus, the Tribunal found that the applicant did not meet r 1.15AA(1)(e) of the Regulations, and at the time of the decision the applicant did not satisfy cl 836.221 of Schedule 2 of the Regulations.
It was submitted that in order for the applicant to succeed, he would need to establish jurisdictional error in ground one as well as one of grounds two to four.
Ground one ultimately challenges the Tribunal’s conclusion that it was not satisfied that the sponsor understood the sponsorship obligations to which she was committing. It was on that basis that the Tribunal found that cl 836.213 of the Regulations was not satisfied. Grounds two to four of the application, challenge the Tribunal’s conclusion that the applicant is not a carer of the Australian relative (“the sponsor”) and so, does not satisfy cl 836.221 of the Regulations.
In ground one, the applicant contends that the Tribunal failed to consider the “most current” medical evidence from Dr Selvadurai dated 6 June 2015. That report states the sponsor as having only a mild cognitive impairment. It is clear that the sponsor’s capacity to understand the sponsorship obligations at the time of the application, is relevant to the consideration of
cl 836.213 of the Regulations: (see: Lo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 895 at [27]).
The Tribunal expressly noted that the 2015 Selvadurai report formed part of the 2016 Carer Visa Assessment Certificate Report (“CVAC”), which was provided to the Tribunal. Plainly enough, the Tribunal did not overlook this report, it expressly referred to it. In evidence before the Tribunal, there was also a 2014 CVAC report. Considering both reports, the Tribunal observed that two issues arose. Firstly, whether the sponsor understood the sponsorship undertakings at time that he signed the sponsorship form. Secondly, why the two CVAC assessments resulted in two different opinions in relation to the sponsor.
The Tribunal noted that the medical reports which were provided for the 2016 CVAC made no mention that the sponsor had Alzheimer’s dementia and/or any other cognitive impairment: (see: paragraph 46 of the Tribunal decision). In the light of this, the Tribunal put this information to the applicant under s 359AA of the Act, as it “may potentially be adverse”. The Tribunal also had regard to a submission from the applicant’s representative in November 2017 which referred to the 2015 Selvadurai report that the “the sponsor had a lot of difficulty with his memory, refers to the sponsor misplacing objects has no bearing on his ability to make decisions and therefore does not affect his capacity to understand his undertaking and obligations”: (see: paragraph 61 of the Tribunal decision).
In those circumstances, it cannot be suggested that the Tribunal failed to have regard to the report. To the contrary, the Tribunal noted its existence, and had regard to its contents and importance. To the extent that other aspects of the report are not averted to, there is no obligation on the Tribunal to refer in its reasons to every piece of evidence: (see: ETA067 v Republic of Nauru (2018) 360 ALR 228 at [13], per Bell, Keane and Gordon JJ). In truth, the applicant’s criticism is that the Tribunal did not give aspects of the 2015 Selvadurai report more weight.
In relation to grounds two to four, it was noted that the delegate had requested signature verification in relation to previous statutory declarations made by the applicant’s family. It was submitted that the applicant was clearly on notice that signature verification was an issue from 9 May 2016. The issue should have been addressed but was not. The Tribunal was reasonably entitled to seek signature verification of the declarant’s, irrespective of who witnessed the declarations. The Court was taken to ANC16 v Minister for Immigration and Border Protection [2018] FCA 1831 at [29]-[32]. In that case, Middleton J stated that the “Tribunal was not required to do what the applicant had not done”. Thus in circumstances where the applicant being on notice that signature verification was an issue, there was no requirement for the Tribunal to specifically raise the issue again and seek that verification.
CONSIDERATION
It is perhaps appropriate to first cite a number of general principles before considering their relevance to the particular matter. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant: (see: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]). The function of the Tribunal is to respond to the case that the applicant advances: (see: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [405]).
Further, there is no obligation on the Tribunal to investigate the applicant’s claims: (see: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12). Jurisdictional error may arise in circumstances where there is an obvious failure by the Tribunal to make an obvious enquiry about a critical fact, the existence of which, can be easily ascertained: (see: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25]).
In relation to ground one, the Court is satisfied that the Tribunal clearly considered the 2015 Selvadurai report. It is clearly referred to at paragraph 39 of the Tribunal decision record. The Tribunal clearly had concerns as to the fact that the sponsor, while diagnosed with plausible dementia, was apparently improved in 2015, as compared to an assessment done in March 2014.The Tribunal was concerned that various medical conditions were referred to in the 2014 CAVC report, but not the 2015 Selvadurai report. At paragraphs 56 to 69 of its decision, the Tribunal carefully went through the various pieces of evidence as to whether the sponsor understood the legal undertaking of the sponsorship. The Court is satisfied that the Tribunal gave active intellectual consideration to the 2015 Selvadurai report, but did not find it persuasive on the essential question as to the capacity of the sponsor to understand the obligations of the sponsorship.
It is to be noted that the 2014 CVAC report stated that ‘Cognitive function is affected by reduced short term memory with dementia-severe functional impact”. The 2014 CVAC report further noted that the applicant ‘needed daily assistance with his financial affairs’: (see: Court Book page 41)
While the Tribunal accepted that the family of the sponsor read the obligations of the sponsorship to the sponsor, it was not satisfied that he understood the sponsorship obligations. In terms of any legal authority in relation to the sponsor at the time of the application, the Tribunal noted that another son of the sponsor was appointed as his guardian by the ACTCAT in February 2018. This was only after the sponsorship application had been signed. The Tribunal was thus not satisfied that any legal authority vested in any other person, was in place at the time of the application.
The Authority concluded that the sponsor did not understand the obligations of sponsorship that he was entering into at the time of the application and thus the applicant was not sponsored and did not satisfy cl 836.213 of Schedule 2 to the Regulations.
The Tribunal was entitled to prefer the evidence of the 2014 CVAC report to that of the 2015 Selvadurai report in regards to the capacity of the sponsor to understand the obligations of the sponsorship. Given that the issue of the sponsor’s capacity to understand the obligations of sponsorship was clearly in issue, and given that the Tribunal gave the applicant further time after the Tribunal hearing to provide additional evidence, it is surprising that a further report from Dr Selvadurai was not obtained that dealt precisely with the sponsor’s capacity at the time that he signed the application. No such report was obtained. The Tribunal was left to determine the matter on the basis of the evidence that was before it.
The Court is satisfied that this conclusion, to prefer the evidence of the 2014 CVAC report to that of Dr Selvadurai, was open to the Tribunal based on the evidence that was before it and for the reasons it gave. At no time did Dr Selvadurai clearly state that the sponsor was able to understand the obligation of sponsorship at the time that he signed the application.
The finding that the sponsor was not able to understand the obligations is not tainted by legal unreasonableness. The test for legal unreasonableness is stringent and will only arise in rare matters. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, it cannot be said by a reviewing Court, to be illogical or irrational or unreasonable simply because of the conclusion that has been preferred to another possible outcome: (see: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]).
The Court is of the view that ground one essentially asks the Court to undertake impermissible merits review and amounts to a disagreement with a factual finding of the Tribunal, which was reasonably open to it on the evidence that was before it. Ground one has no merit.
Given this finding, the Court is of the view that it is not necessary to deal with grounds two to four. To succeed, these grounds rely upon a positive finding as to ground one.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 3 May 2021
1
9
0