El Achkar v Minister for Immigration
[2015] FCCA 2165
•14 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EL ACHKAR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2165 |
| Catchwords: MIGRATION – Residency visa (Other Family (Migrant) (Class BO) visa) – review of Migration Review Tribunal decision – whether applicant met the requirements of sub-reg.1.15AA(1)(b) of the Migration Regulations 1994 – whether the Tribunal’s decision was affected by unreasonableness – whether Tribunal failed to consider relevant information before it – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.347 Migration Regulations 1994 (Cth), reg.1.15AA |
| Anveel v Minister for Immigration & Border Protection [2013] FCCA 2181 Azzi v Minister for Immigration & Multicultural Affairs (2002) 120 FCR 48 Jajo v Minister for Immigration & Border Protection (2013) 281 FLR 269 Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 |
| Applicant: | NADIA EL ACHKAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 428 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 7 August 2015 |
| Date of Last Submission: | 7 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 14 August 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr B. Kaplan |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 428 of 2015
| NADIA EL ACHKAR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant, Ms El Achkar, lives in Sydney with her husband and their five children. One of those children, Farris, suffers from Kabuki syndrome and is profoundly disabled. She has sponsored her brother, who is a citizen of Lebanon, in an application for a residency visa (Other Family (Migrant) (Class BO) visa) in order for him to assist her in the care of her disabled son.
One of the criteria for the grant of the visa was that the visa applicant be the carer of Ms El Achkar. “Carer” is defined in reg.1.15AA of the Migration Regulations 1994 which provides:
(1)An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia … if:
(a)the applicant is a relative of the resident; and
(b)according to a certificate that meets the requirements of sub-regulation (2):
(i)a person (being the resident or a member of the family unit of the resident) has a medical condition; and
(ii) the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and
(iii) the impairment has, under the Impairment Tables, the rating that is specified in the certificate; and
(iv) because of the medical condition, the person has, and will continue for at least two years to have, a need for direct assistance in attending to the practical aspects of daily life; and
(ba)the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(c)the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified by Gazette Notice for this paragraph; and
(d)if the person to whom the certificate relates is not the resident, the resident has a permanent or long term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); and
(e)the assistance cannot reasonably be:
(i) provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or
(ii) obtained from welfare, hospital, nursing or community services in Australia; and
…
The applicant obtained a certificate in respect of her son that met the requirements of sub-reg.1.15AA(1)(b). Accordingly, the issue was whether sub-reg.1.15AA(1)(e) was met. In other words, the question was whether the assistance required by the applicant in order to look after her son could not reasonably be provided by another relative or obtained from welfare, hospital, nursing or community services in Australia.
On 14 January 2014 a delegate of the Minister decided to refuse to grant the visa applicant a visa. Essentially, he found that, as Ms El Achkar was receiving government assistance specifically for the purpose of caring for her son, he was not satisfied that she had a permanent or long term need for assistance in providing assistance to her son.
Ms El Achkar, as sponsor, applied to the Migration Review Tribunal for review of the delegate’s decision: see Migration Act 1958 s.347.
At the hearing before the Tribunal, Ms El Achkar gave evidence that her children, other than her disabled son, were in good health and that two of them were adults although, like her husband, they worked full-time. She said that while she had two brothers in Sydney both of them suffered from orthopaedic problems. She gave evidence about the community services received by her son. This included him being picked up in the morning to be taken to a daycare facility and then being returned in the afternoon. Apart from occasional respite care, she had been offered a carer in the home for 45 minutes in the morning and the afternoon but she had cancelled the service because she did not want male carers in her house. She explained to the Tribunal that the real problem was not so much during the daytime as at night time.
On the basis of this evidence, and the fact that there was no suggestion that Ms El Achkar wished to cease providing care for her son, the Tribunal noted that the issue was whether the level of care required was such that she needed assistance, particularly at night time, in looking after her son. In this respect, it accepted Ms El Achkar’s evidence about her brothers’ condition. It then set out its findings and conclusions as follows:
[16]However, Ms El Achkar lives with her husband and five children. Apart from Farris, two of the children (Billal and Hillal) at home are adults. There is no evidence or suggestion that Ms El Achkar’s husband and sons Billal and Hillal have any significant health problems. The tribunal accepts that they have their respective commitments. However, there is no suggestion that these relatives take on full-time responsibility for Farris. The tribunal considers that, given that the people concerned all live in the same household and are able-bodied, that the relatives concerned can reasonably provide assistance, notwithstanding their respective responsibilities. Ms El Achkar clearly requires assistance in the household and the tribunal does not accept that her husband and two other sons cannot reasonably help her to provide her the required assistance.
[17]Regarding community services, Farris attends a day care centre during school days and occasionally attends a respite centre.
[18]The tribunal notes Ms El Achkar’s evidence that Farris was offered a carer to come twice a day for 45 minutes to assist with various aspects of self-care. The tribunal further notes that, given Farris’ age, and presumably size, a male carer was offered. Ms El Achkar indicated that she cancelled this service and suggested that one of the reasons was that she did not want a male in her house. At any rate Ms El Achkar indicated that she would be able to manage Farris’ care during the day but it was at night time when she really needed assistance. The tribunal accepts that it would be unlikely that carers through the community sector would be available during the night.
[19]Given that community assistance has been offered, it follows that Farris can obtain services. However, the question in this case is whether or not such services can reasonably be obtained, not whether or not such services are available. Ms El Achkar has suggested that the particular service in her home cannot reasonably be obtained because it would not be appropriate for a male to be in the house with her. There is no clear line to distinguish between a mere preference as opposed to a service being culturally inappropriate. It is a matter of fact and degree. In this case, the tribunal takes into account that Farris has profound abilities (sic – disabilities). It is clearly a matter for the service provider to determine the appropriate method and personnel for any care provided in the community. There may well be a point where a medical necessity overrules a cultural imperative, but, on balance, tribunal accepts that in this particular case, it may well be culturally inappropriate for Ms El Achkar to accept the particular type of care offered.
[20]However, the tribunal considers that there are still other types of care that can reasonably be obtained. For example, there is no suggestion of the current arrangement whereby Farris attends day care is inappropriate or otherwise not reasonably obtained.
[21]There is no doubt that caring for Farris has been a huge burden for the El Achkar household. However, the tribunal finds that Mrs El Achkar’s husband and other sons can reasonably provide assistance. Furthermore, the tribunal finds that assistance can be reasonably obtained through some forms of community services, such as the day care Farris currently receives. It follows that 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.
For those reasons the Tribunal concluded that the visa applicant was not a carer of Ms El Achkar and so affirmed the decision under review.
Consideration
The applicant now seeks judicial review of the Tribunal’s decision. The grounds in her application are as follows:
1.The Tribunal had evidence that my son Farris is profoundly disabled yet refused a carer visa as my children Billal and Hillal, who are adults, were assumed is capable to look after their brother.
2.My two children as well as my husband are working full-time and the Tribunal misunderstood their ability and time to look after their brother, Farris.
3.The mind of the Tribunal is affected by error as he made an unreasonable decision based on the evidence and video clip as well as carer visa assessment before him.
4.The decision made by the Member of the Tribunal is unreasonable that no reasonable man would come to such decision.
Although a decision that is affected by unreasonableness might be set aside on the basis of jurisdictional error, the use of the word unreasonable is, in this case, no more than an emphatic statement of disagreement: see Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626 [40] per Gleeson CJ and McHugh J. The fact that the applicant disagrees with the Tribunal’s conclusions is an insufficient basis for this Court to grant the relief sought. What is required is that the decision be affected by jurisdictional error. In my view the Tribunal’s decision was not affected by such an error.
First, contrary to the assertion in the first ground, there was no mere assumption by the Tribunal that the applicant’s two sons and husband could reasonably provide assistance. It was her own evidence that those family members were able-bodied and lived in the same household as the applicant and her disabled son. Next, while the Tribunal accepted that each of these three men worked full-time, the assistance required by her was at night time. There was no suggestion that the three men were not available at that time. It is clear that the Tribunal proceeded on the basis that the assistance could reasonably be given collectively. That was the correct approach on a proper construction of reg.1.15AA: Jajo v Minister for Immigration & Border Protection (2013) 281 FLR 269 applying the reasoning of Allsop J (as his Honour then was) in Azzi v Minister for Immigration & Multicultural Affairs (2002) 120 FCR 48. Finally, it is important that the test posed by the definition of “carer” is a negative one. That is, that the Tribunal has to be satisfied that the relevant assistance cannot reasonably be provided by other relatives. In light of that, there is an onus on a review applicant to put forward whatever material he or she argues that suggests that the assistance cannot reasonably be provided.
The second ground simply states evidence relied on by the applicant in support of the claim that the required assistance could not reasonably be provided by her husband and sons. It is not, and could not be, asserted that the Tribunal failed to consider that evidence.
The third ground is based on a misunderstanding of the issue before the Tribunal. The reference to the video clip in the third ground is apparently a reference to the video of Farris shown to the Tribunal in which he is depicted taking off his nappy and eating its contents. This ground focuses on the particular disabilities of the applicant’s son, Farris, whereas those disabilities were not in issue before the Tribunal. The issue, as I have stated above, was whether the assistance required by the applicant herself could reasonably be obtained from other relatives in Australia or reasonably be provided by welfare, hospital, nursing or community services in Australia. In assessing that question, the Tribunal had regard to the evidence and arguments put forward by the applicant and the visa applicant as to what was required. Once again, the assistance required was, on the applicant’s own case, particularly at night time. The fact that the applicant’s husband and two adult sons were able-bodied and living in the same household were logically probative of their ability to provide assistance at this time to the applicant in caring for Farris. For that reason, it cannot be said that no reasonable person could have arrived at the conclusion of the Tribunal on the basis of the material before it. Once that is accepted, the ground is, as I have concluded, no more than the expression of disagreement with the Tribunal’s findings.
The same reasoning applies to the fourth ground.
In written submissions filed the day before the hearing, the applicant again made a number of points expressing disagreement with factual issues that were decided by the Tribunal. A number of the bases for this disagreement, however, are expressed in terms of a failure by the Tribunal to consider certain matters. The first of these is that the applicant’s husband and two sons were unable to provide assistance at night because of their work and study commitments. However, there was no claim before the Tribunal to that effect. The evidence shows that the only issue put forward in respect of the husband and two adult sons, was whether they worked full-time. This was accepted by the Tribunal, but it found that they could reasonably provide assistance “notwithstanding their respective responsibilities.”
Similarly, the applicant argues that the Tribunal failed to consider that her husband is a truck driver who drives long hours and that any long-term sleep deprivation would adversely affect his driving performance at work and that this was the same with her sons. None of this was before the Tribunal.
For those reasons, nothing in the applicant’s written submissions reveals jurisdictional error in the Tribunal’s decision.
I otherwise accept the Ministers submission that the Tribunal properly understood and applied the relevant regulation. Critically, it understood the difference between the two limbs in sub-reg.1.15AA(1)(e). As explained in the authorities, the difference arises from the words “provided by” in the first limb as distinct from the words “obtained from” in the second limb: see for example Anveel v Minister for Immigration & Border Protection [2013] FCCA 2181.
Conclusion
The application is dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 14 August 2015
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