Dinh v Minister for Immigration

[2015] FCCA 2317

FEDERAL CIRCUIT COURT OF AUSTRALIA

DINH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2317

Catchwords:
MIGRATION – Show cause hearing – application for extension of time (over seven months) to bring substantive application for review of decision of Migration Review Tribunal – explanation for delay insufficient – substantive grounds of application amounting to merits review – application facing no realistic prospects of success – application dismissed.

Legislation:
Federal Circuit Court Rules 2001, r.44.12

Migration Regulations 1994, cl.116.221, reg.1.15AA

Migration Act 1958

Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491

Applicant: VAN MINH DINH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1454 of 2014

Judgment of: Judge Burchardt

Hearing date: 19 June 2015

Date of Last Submission: 19 June 2015

Delivered at: Melbourne

Delivered on: 8 September 2015

REPRESENTATION

The Applicant: In person (assisted by an interpreter)

Counsel for the First Respondent: Mr Brown

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The applicant’s application pursuant to s.477 of the Migration Act 1958 for an extension of time in which to bring his application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

2. The Applicant pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 1454 of 2014

VAN MINH DINH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is a show cause matter listed by consent of the parties pursuant

   
   

   to r.44.12 of the Federal Circuit Court Rules 2001 (“the Rules”).

2. The hearing was ordered by Registrar Caporale on 15 October 2014 (by consent of the parties as indicated).  The Registrar also ordered the filing of Submissions.  The first respondent has filed such Submissions but, scarcely surprisingly given the applicant’s lack of command

   
   

   of English, he has not done so.

3. The applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 23 October 2013.  The Tribunal affirmed a decision of a delegate of the first respondent not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

4. The visa applicants are all family members of the review applicant,

   
   

   Mr Van Minh Dinh, to whom for convenience I will refer as the applicant. Put shortly, the Tribunal concluded that the primary visa applicant (the others were dependent family members of the primary visa applicant) was not a carer of the applicant and therefore did not satisfy the requirements of cl.116.221 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”).

5. It will be necessary to return to the terms of the Tribunal’s decision in due course, but it should be first noted that the application for review was not filed until 18 July 2014.  The Tribunal’s decision having been dated 23 October 2013, the first respondent is correct to submit that the application was approximately seven and a half months out of time.

6. The applicant’s affidavit filed 18 July 2014 relevantly asserts at paragraph 9:

   “I was never advised of the possibility of judicial review or about the chance of its success.  I am a person with no knowledge

   
   

   of the law and did not know what to do.  It has only now come

   
   

   to my attention that I may have grounds on which to make an appeal against the decision of the MRT and that there are merits in the application and that I should have immediately within

   
   

   28 days of receiving the decision from the MRT.  On getting this advice, I have immediately made this application to this Court.”

7. The first respondent’s Outline of Submissions filed 23 October 2014 relevantly assert at paragraphs 18-20:

   “18.  The review applicant was assisted by a well-respected and experienced Vietnamese-speaking migration agent, who on

   
   

   24 October 2013 was sent a letter by the Tribunal, for

   
   

   on-passing to the review applicant, advising the review applicant of the Tribunal decision handed down the day before.  The notification letter attached a copy of information sheet “M25 – Information about Tribunal Decisions” which noted that if the review applicant thought that the Tribunal decision contained an error, he could seek judicial review in the Federal Circuit Court. 

   19.  The review applicant’s explanation for his delay in filing for judicial review does not rise to the level of a reasonable explanation. 

   20.  The delay has not been occasioned by the conduct of the Minister or any official of a public body, and it is difficult to see how a person who, with knowledge of the Tribunal decision, delays for such an extended period before seeking relief could ever be granted an extension of time.”

8. Authority in support of this latter proposition is cited in the Outline

   
   

   of Submissions.  It is certainly the case that in Re Commonwealth
   of Australia; Ex parte Marks (2000) 177 ALR 491 at [16], McHugh J said:

   “Independently of the merits of the case, I find it difficult

   
   

   to see how a person who, with knowledge of the decision, delays

   
   

   17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct

   
   

   of the respondent or the public body or official had brought about the delay.”

9. It should be noted, however, that this was an application filed in the High Court seeking to review a decision of a Full Bench of the Australian Industrial Relations Commission.  The applicant in that case was seeking orders of a particular character from the High Court which have their own time limits in circumstances where the applicant would not have been likely to face the sort of difficulties of legal understanding and, indeed, English understanding that the applicant clearly faces in this case.

10. I would not be prepared to accept that as a matter of course there is some time limit beyond which valid applications for extension of time cannot be made.  In my respectful view, each case involving the sort

    
    

    of considerations that this one involves should be approached on its own merits.

11. Having said that, I accept the submission of the first respondent that the applicant’s explanation for his delay is scarcely fulsome given that he did have representation up until the time of the delivery of the Tribunal’s decision.  Notwithstanding his advanced age and complete lack of understanding of English and of the law of this country,

    
    

    the explanation in my view is inadequate.  This is not, however,

    
    

    a decisive consideration.  It is merely one to be borne in mind as part

    
    

    of the overall circumstances relating to the application.

12. The first respondent submits that time should not be extended both because of the failure to explain the delay in application and because the application itself has no reasonable prospects of success, amounting no more than to impermissible merits review.

13. In order to understand this, it is necessary to turn first to the grounds

    
    

    of application.  The only ground of application is:

    “1.    The decision of the Migration Review Tribunal is made without jurisdiction and is affected by jurisdictional error.

    Particulars

    a.  A medical assessment concluded that the review applicant suffered from a range of serious and debilitating medical conditions.  The impairment rating specified in the certificate was 40 and this rating exceeded the impairment rating specified by the relevant Gazette notice.

    b.  There was sufficient evidence to satisfy the tribunal that the medical condition was causing physical, intellectual and sensory impairment to attend to practical aspects of his daily life.

    c.  There was sufficient evidence before the tribunal for the tribunal to come to a conclusion that assistance could not be reasonably obtained from welfare, hospital, nursing

    
    

    or community services in Australia, as per r.1.15AA(1)(e)

    
    

    & (ii).

    d.  The tribunal has failed to take relevant considerations into account such as cultural and social differences, his age, language and gender.

    e.  The tribunal has also erred in its findings regarding the review applicant’s children and grandchildren, by not taking into account relevant factors and by taking into account irrelevant factors such as:

    (i) a daughter being a sole proprietor and running

    
    

    a restaurant, separated and having three school age children,

    (ii)     another daughter moving back home, her age, employing another person

    (iii)    a son moving from Western Australia to Victoria,

    (iv)    his sister employing another person, the death

    
    

    of the sister’s husband,

    (v) The estrangement of one daughter with her father,”

The decision of the Tribunal

1. The Tribunal introduced the application for review at page 2 of 14

   
   

   (the decision is annexed to the affidavit of the applicant).  It is apparent that the first-named applicant was the primary visa applicant and the others were dependent family members.

2. The Tribunal noted at paragraph 3 that the delegate was not satisfied that assistance to the applicant could not reasonably be provided by any other relative or could not reasonably be obtained from welfare, hospital, nursing or community services in Australia.

3. The Tribunal noted that cl.116.221 of the Regulations requires that at the time of the decision, the visa applicant is the carer of the Australian relative (or resident) and that the term carer was defined in reg.1.15AA of the Regulations.

4. The Tribunal accepted that the applicant is usually resident in Australia (paragraph 8).

5. The Tribunal accepted that the first-named visa applicant was a relative of the resident, being a son of the applicant (paragraph 9).

6. The Tribunal noted that reg.1.15AA(1)(b) requires a certificate meeting the relevant requirements, as to the applicant’s medical condition. Having reviewed the medical evidence, the Tribunal accepted that the requirements of reg.1.15AA(1)(b) were met and that the certificate met the requirements because the certificate met the requirements

   
   

   of reg.1.15AA(2) (paragraph 15).

7. The Tribunal accepted the residency status of the person with the medical condition, namely the applicant (paragraph 17).

8. The Tribunal also accepted that the applicant met the impairment rating required by reg.1.15AA(1)(c) and his need for assistance (paragraphs 18-21).

9. The Tribunal then addressed the question as to whether assistance could not reasonably be obtained or provided by reference

   
   

   to reg.1.15AA(1)(e). The bulk of the decision traverses the evidence and findings in relation to this issue. The Tribunal at paragraphs 23-25, traversed the difficulties that the applicant faces and concluded

   
   

   at paragraph 25:

   “...The Tribunal was not satisfied on the evidence presented that Mr Dinh needed assistance all day – he can take care of himself to a certain extent, but requires assistance with specific tasks

   
   

   at specific times of the day – showers, meals, house cleaning and transport to medical appointments.”

10. The Tribunal went on to consider at paragraphs 26-29 whether assistance could reasonably be obtained from welfare, hospital, nursing or community services in Australia.  The Tribunal’s relevant finding at paragraph 27 was:

    “...The Tribunal finds that Mr Dinh has not sought to obtain the assistance of the local council or other welfare, nursing

    
    

    or community services to provide assistance to him at home.  The Tribunal finds that local councils including the City of Yarra do offer services to assist people at home (including showering, food, home cleaning) and was not satisfied on the evidence available that assistance cannot reasonably be obtained to assist Mr Dinh from welfare, hospital, nursing or community services in Australia.”

11. Having traversed the evidence, at paragraphs 28-29 the Tribunal found:

    “28.  ...The Tribunal finds that Mr Dinh has refused to have

    
    

    a care assessment undertaken and has not made any enquiries about the accessibility of residential aged care facilities. 

    
    

    The Tribunal was not satisfied on the evidence available that assistance cannot reasonably be obtained to assist Mr Dinh from welfare, hospital, nursing or community services

    
    

    in Australia, for example from the residential aged care facility.

    29.  Therefore on the evidence available the Tribunal was not satisfied that assistance cannot reasonably be obtained from welfare, hospital or nursing or community services in Australia and therefore the requirements in r.1.15AA(1)(ii) are not met.”

12. The Tribunal then went on to consider in any event whether assistance could reasonably be provided by any other relative of the applicant who was an Australian citizen, permanent resident or an eligible

    
    

    New Zealand citizen.  The Tribunal noted the evidence concerning

    
    

    the applicant’s wife, Ms Anh Nguyen, aged 76.  Having traversed the evidence, the Tribunal found at paragraph 31:

    “...The Tribunal finds Ms Anh Nguyen is elderly and suffering

    
    

    a number of medical conditions.  The Tribunal also finds,

    
    

    in accordance with Mr Dinh’s oral evidence, that Mr Dinh and Mrs Anh Nguyen look after one another – including they each cook food for meals, and they accompany one another

    
    

    in travelling to their local doctor.  The Tribunal finds that

    
    

    Ms Anh Nguyen can provide limited assistance to Mr Dinh

    
    

    in preparing meals and is present with him during the day.”

13. The Tribunal went on to consider the applicant’s children

    
    

    and grandchildren.

14. The first family member considered was Ms Thi Diem Trang Dinh,

    
    

    a daughter of the applicant’s.  Having traversed the evidence,

    
    

    the Tribunal found at paragraphs 37-38:

    “37.  ...In any event, the Tribunal finds that Ms Trang and her family did live with Mr Dinh and his wife from 1991 until 2012 and that she could return to live with Mr Dinh to assist him. 

    38.  Further, the Tribunal was not satisfied that Ms Trang Dinh could not reasonably provide assistance to Mr Dinh. 

    
    

    She currently can provide meals.  Whilst the Tribunal acknowledges that Ms Trang Dinh operates a restaurant,

    
    

    the Tribunal considers that it is open to Ms Trang Dinh to move back with her parents and be available to assist her father (along with her children) in the morning both before and after school drop off.  Further the Tribunal notes that it is possible

    
    

    for Ms Trang Dinh to have an employee (for example her niece Ms Yen Ly Dinh) to work at the restaurant at some times of the week and for her to be at home with her father and children and could assist at those times.”

15. The Tribunal then went on to consider another daughter, Ms Thi Dien Phuong Dinh, who is 36 years of age and lives in Western Australia.  She is widowed, has two children and operates a deli business there.  It is sufficient to say that the Tribunal accepted that this daughter could not return to Victoria to assist in the care of the applicant (paragraph 39).

16. The Tribunal next considered Mr Vu Truong Dinh, a son of

    
    

    the applicant’s.  The Tribunal’s finding at paragraph 40 relevantly was:

    “...The Tribunal was not satisfied that Mr Truong Dinh could not reasonably provide assistance to Mr Dinh.  Mr Truong Dinh

    
    

    is working as an employee in his sister’s business, however his sister could employ another person in his place to assist her and then Mr Truong could return to Victoria to provide assistance to Mr Dinh.”

17. The Tribunal next considered a further daughter, Ms Thi Ba Dinh. 

    
    

    The Tribunal noted the applicant’s assertion that he and this daughter had had significant conflict.  There had been no contact between them since 2004.  The Tribunal noted that it had difficulty accepting that there had been no contact between them since 2004 and went on to find at paragraph 41:

    “...The Tribunal finds that Ms Ba Dinh resides in the same locality of Mr Dinh.  The Tribunal cannot be satisfied on the evidence presented that Ms Ba Dinh could not reasonably provide assistance to Mr Dinh.  Ms Ba Dinh’s child is an adult, and Ms Ba Dinh resides in the same locality.  Whilst there may have been a family dispute some time ago, the Tribunal did not consider it unreasonable that contact is made with Ms Ba Dinh with a view to ascertaining whether she can provide assistance to Mr Dinh.”

18. The Tribunal went on further to consider the four adult grandchildren of the applicant’s living in Australia.  It is sufficient to note that three of these were excluded from consideration by the Tribunal for various reasons.  The granddaughter Ms Phan Thanh Tuyen, aged 27 years, the daughter of Ms Ba Dinh, who lives with her, was the subject of

    
    

    a finding (paragraph 45):

    “As noted above Mr Dinh has not had any contact with Ms Phan Thanh Tuyen since about 2004.  Mr Dinh has not made any enquiries about whether Ms Phan Thanh Tuyen would be able

    
    

    to provide any assistance to him.  The Tribunal was not satisfied on the evidence presented that Ms Can Tu Dinh could not reasonably provide any assistance to Mr Dinh.”

19. The reference to Ms Can Tu Dinh is an obvious typographical error and should have clearly referred to Ms Phan Thanh Tuyen.

20. After setting these matters out the Tribunal concluded at paragraphs 46-47:

    “46.  After considering the evidence, the Tribunal could not be satisfied that assistance cannot reasonably be provided by

    
    

    a combination of Mr Dinh’s relatives and welfare, hospital, nursing or community services in Australia.  Mr Dinh had access to some showering services but he has not actively sought to reinstate this service and he has not made enquiries for assistance for cleaning and cooking services from other agencies, further he has refused having an assessment for

    
    

    an aged care facility despite it being suggested to him on

    
    

    a number of occasions.  Further, until last year his daughter

    
    

    Ms Trang Dinh resided with him as did his son, Mr Truong Dinh.  The Tribunal was not satisfied that Ms Trang Dinh and Mr Truong Dinh could not return to residing with Mr Dinh and providing him with the assistance he requires, shared with others – Ms Ba Dinh, and Ms Phan Thanh Tuyen and

    
    

    Mrs Nguyen (to a limited extent), along with the various welfare services, noting Ms Trang Dinh already provides him with some meals. 

    47.  After considering the evidence above the Tribunal is not satisfied that the assistance cannot reasonably be provided by

    
    

    a relevant relative or obtained from welfare, hospital, nursing

    
    

    or community services in Australia and therefore the requirements of r.1.15AA(1)(e) are not met.”

21. As a result of the failure of the application by the first visa applicant, the Tribunal did not go on to consider whether the secondary visa applicants were members of the family unit for the purposes

    
    

    of cl.116.311.  That conclusion of itself is, as I understand it, uncontroversial.

The submissions made at court

1. The applicant represented himself with the assistance of an interpreter.  When I first called upon him to address the Court he said that he did not have any further documents to submit.  The first respondent’s counsel was content to rely upon the Outline of Submissions filed.  The applicant in reply said that he is now 80 years old and his wife almost 80.  He said that when he falls “she cannot support me”

   
   

   and expressed his hope for the Court’s consideration.

The Particulars of the application

1. Particular a. is simply a reference to the impairment rating specified

   
   

   in the applicant’s certificate which was 40, which exceeded the rating specified by the relevant Gazette notice.  So much is uncontroversial.

2. Particular b. once again is simply an assertion that the medical condition was causing the applicant a sufficient degree of difficulty

   
   

   to bring him within the operation of the Regulations. The Tribunal accepted that this was so.

3. Particular c. is an assertion that:

   “There was sufficient evidence before the tribunal for the tribunal to come to a conclusion that assistance could not be reasonably obtain from welfare, hospital, nursing or community services in Australia...”

4. This submission is, in my view, simply a matter of merits review. 

   
   

   I accept the submission of the first respondent (paragraph 23) that:

   “It is for the Tribunal to weigh the evidence and make findings, and it is not the function of the Court to engage in fact-finding about the merits of the review applicant’s case.”

1. I would further say that it should be noted that the Tribunal approached the matter on two discrete bases. The first was whether there was sufficient community assistance (to use a global phrase), and the second was the capacity of the applicant’s family to provide the necessary assistance. Although the Tribunal dealt with the applicant’s family, this was not strictly necessary, since the Tribunal found that community assistance was available.  The Tribunal’s finding in relation to community assistance was, in my opinion, open to the Tribunal, bearing in mind the evidence before it.

2. Particular d. asserts that the Tribunal failed to take relevant considerations into account, such as cultural and social differences, his age, language and gender.

3. I do not think that this criticism is made out.  The Tribunal was well aware of the applicant’s ethnicity, his age and his difficulties with language and his gender. The Tribunal’s findings were, to a considerable extent, accepting of the applicant’s assertions as to exactly such matters as his age and medical difficulties and the consequences thereof. There is nothing in the Tribunal’s decision that suggests that the Tribunal failed to take into consideration any relevant matter.

4. The final Particular amounts to an assertion that the Tribunal erred in the particular findings it made regarding the review applicant’s children and grandchildren.  It is asserted that the Tribunal failed to take account of relevant factors and did take account of irrelevant ones.  When looked at in detail, however, these are all, as the first respondent’s Outline of Submissions point out, simply disagreements with factual findings made by the Tribunal.

5. For my part, I confess I would have not come to the conclusion that the estranged daughter and that daughter’s own daughter were persons who could reasonably be expected to provide assistance to the applicant.  The Tribunal did not expressly reject the assertion that this daughter was estranged, and were that to be the case since 2004, I would not myself have reached the conclusion that such a person and/or their own child would be in a position to provide assistance.

6. Nonetheless, the other findings that the Tribunal made were, in my view, clearly open to the Tribunal, and taking the findings of the Tribunal as a whole, which in my view were all open to it (including those with which I would myself disagree), it is clear that the Tribunal did not fall into jurisdictional error.

Conclusion

1. In circumstances, therefore, where the substantive application, in my view, has no realistic prospects of success and the delay in application has not been satisfactorily explained, it is clear that I should accede to the first respondent’s submission that an extension of time should not be granted and the application should be dismissed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  8 September 2015