El-Chahini v Minister for Immigration

[2017] FCCA 2207

FEDERAL CIRCUIT COURT OF AUSTRALIA

EL-CHAHINI v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2207

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal’s findings were open to it – whether assistance to the Visa Applicant could not reasonably be provided by relatives in Australia – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.376, 474, 476
Migration Regulations 1994 (Cth), reg.1.15AA
Migration Regulations 1994 (Cth), cl.116.221

Cases cited:
Nguyen v The Minister for Immigration and Border Protection [2016] FCA 688
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
AVO15 v The Minister for Immigration and Border Protection [2017] FCA 566

Applicant: AZIZA EL-CHAHINI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2742 of 2015

Judgment of: Judge Emmett

Hearing date: 12 September 2017

Date of Last Submission: 12 September 2017

Delivered at: Sydney

Delivered on: 12 September 2017

REPRESENTATION

Applicant: Appeared in person with the assistance of an Arabic interpreter

Solicitors for the Respondents: DLA Piper Australia

Counsel for the Respondents: Mr Tim Reilly

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2742 of 2015

AZIZA EL-CHAHINI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 16 September 2015 (“the Tribunal”) refusing the applicant (“the Visa Applicant”) a carer’s visa.

2. On 19 April 2013, The Visa Applicant applied for an Other Family (Migrant) (Class BO) visa (“Class BO Visa”) as a carer for her mother (“the Review Applicant”). The Review Applicant is an Australian citizen and is sponsoring her daughter, the Visa Applicant.

Background

1. On 9 June 2014, a delegate of the first respondent (“the Delegate”) refused the Visa Applicant’s application for the Class BO Visa.

2. On 5 September 2014, the Review Applicant lodged an application for review of the Delegate’s decision by the Tribunal.

3. On 16 September 2015, the Tribunal handed down its decision affirming the decision of the Delegate not to grant the Class BO Visa.

4. On 8 October 2015, the Review Applicant filed an application to this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. At the time the application was made, Class BO Visa contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer). In the case before the Tribunal, the Visa Applicant sought to satisfy the criteria for the grant of a Subclass 116 visa.

2. The criteria for a Subclass 116 (Carer) visa is set out in Part 116 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The criteria is to be satisfied at the time of application and at the time of decision.

3. Relevantly, the term ‘carer’ is defined in reg.1.15AA of the Regulations as follows:

   “Carer

   (1)  An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen ( the resident ) if:

   (a)  the applicant is a relative of the resident; and

   (b)  according to a certificate that meets the requirements of subregulation (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 (within the meaning of subsection 23(1) of the Social Security Act 1991 ), the rating that is specified in the certificate; and

   (iv)  because of the medical condition, the person has, and will continue for at least 2 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 in a legislative instrument made by the Minister 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

   (f)  the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires.

   (2)  A certificate meets the requirements of this subregulation if:

   (a)  it is a certificate:

   (i)  in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and

   (ii)  signed by the medical adviser who carried it out; or

   (b)  it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures.

   (3)  The Minister is to take the opinion in a certificate that meets the requirements of subregulation (2) on a matter mentioned in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer.”

The Delegate’s decision

1. The Delegate was satisfied that the Review Applicant required the requisite level of care with reference to the sponsor rating of 30, provided by Medibank Health Solutions.

2. The Delegate was not satisfied that assistance could not reasonably be provided by any other relative in Australia. The Delegate was also not satisfied that assistance could not reasonably be obtained from welfare, hospital, nursing or community services in Australia. The Delegate was not satisfied that the Visa Applicant is a carer as defined in reg.1.15AA of the Regulations.

3. The Delegate noted that as the Visa Applicant, being the primary applicant, did not meet the requirements for the grant of any subclass within the Class BO Visa. The secondary applicants, being members of the family unit of the Visa Applicant, failed to meet the secondary criteria for the grant of any other visa within this class. The Delegate was not satisfied that the prescribed criteria for the visa grant were met and refused the secondary applicants a Class BO Visa.

The Tribunal’s review and decision

1. On 6 August 2015, the Tribunal wrote to the Review Applicant informing her that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Review Applicant to attend a hearing on 16 September to give oral evidence and present arguments relating to the issues under review.

2. On 16 September 2015, the Review Applicant attended the Tribunal hearing and gave evidence. In addition to the evidence provided by the Review Applicant, the Visa Applicant, the Review Applicant’s daughter and granddaughter also provided oral submissions. An Arabic interpreter attended the Tribunal hearing.

3. The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.

4. The Tribunal explored the Review Applicant’s claims with her in some detail at the hearing and put to her concerns it had about her evidence, noting her responses.

5. The Tribunal noted that at the time the application was made by the Visa Applicant, the Class BO Visa was for Subclass 116 (Carer).

6. The Tribunal noted cl.116.221 of the Regulations required that at the time of decision, the Visa Applicant was the carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in 1.15AA of the Regulations and is set out above.

7. The Tribunal accepted that the evidence provided by the Visa Applicant satisfied regs.1.15AA(1)(a), 1.15AA(1)(b), 1.15AA(2), 1.15AA(1)(ba) and 1.15AA(1)(c) of the Regulations. The Tribunal noted that the issue in the case was whether the Visa Applicant could satisfy the requirements in reg.1.15AA(1)(e) of the Regulations. Namely, whether assistance could reasonably be provided by any other relative who is an Australian citizen, permanent resident or an eligible New Zealand citizen, or obtained from welfare, hospital, nursing or community services in Australia.

8. The Review Applicant provided various documents in support of her claim including a statement from a local councillor in Lebanon and a statement from the Lebanese Muslim Association in Australia. The Tribunal was not satisfied that the authors of either statement provided by the Review Applicant to the Tribunal had any particular familiarity with the family’s circumstances or understanding of their needs.

9. The Tribunal considered the statement of the Review Applicant’s granddaughter. That statement referred to a home care services’ advice that 24 hour assistance could not be provided. The Tribunal was not satisfied that this was sufficient as it did not establish that the family approached more than one organisation. The Tribunal found that the relevant assistance could be provided by family members, and, as such, it was not necessary to considered whether it could be obtained from another service in Australia.

10. The Tribunal accepted that the Visa Applicant has been providing care to her mother during the Review Applicant’s residence in Lebanon and that she is both willing and able to continue to provide such care in Australia. However, the Tribunal was not satisfied that the assistance could not reasonably be provided by relatives in Australia.

11. In considering whether the Review Applicant could be provided with assistance by her relatives in Australia, the Tribunal noted that the Review Applicant has two daughters and at least six adult grandchildren in Australia. The Tribunal noted that the Review Applicant was estranged from one of her daughters, however, was not satisfied that her other daughter and six adult grandchildren could not jointly provide the requisite assistance.

12. Further, the Tribunal was not satisfied that it would be unreasonable for the Review Applicant to relocate closer to Young where her daughter will be able to spend more time with her.

13. The Tribunal accepted that each of the Review Applicant’s relatives in Australia has various commitments which preclude them from being full-time carers. The Tribunal accepted that, by themselves, none of the relatives is able to provide the requisite degree of care.

14. After considering all of the evidence before it, the Tribunal was not satisfied that the assistance could not be reasonably provided by a relevant relative, or obtained from welfare, hospital, and nursing or community services in Australia. Therefore, the Tribunal found that the requirements for r.1.15AA(1)(e) of the Regulations were not met.

15. The Tribunal concluded that at the time of the decision the Visa Applicant was not a carer of the Review Applicant and therefore did not satisfy cl.116.221 of the Regulations.

16. The Tribunal affirmed the decision not to grant the visa applicants Class BO visas.

The proceeding before this Court

1. The Review Applicant was unrepresented before this Court, although had the assistance of an Arabic interpreter. The Review Applicant also had the assistance of her grandson, Mr Mouhamed Elomari.

2. The Review Applicant confirmed that she attended a directions hearing before a registrar of this Court 19 November 2015. On that occasion, the Review Applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.  The Review Applicant filed no documents in accordance with those directions. However, she filed submissions in support yesterday.

3. The Review Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language.

4. At the outset of the hearing, I explained to the Review Applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the Review Applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the Review Applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the Review Applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.

Grounds of Review

1. The applicant confirmed that she continued to rely on the grounds contained in her initiating application filed on 8 October 2015, as follows:

   “1. The Tribunal failed to understand the problems to relocate to Young and the difficulties in Young and that such option is not practical.

   2. The Tribunal failed to understand that the grandchildren are unable to meet my needs.

   3. The Tribunal accepted that my overseas daughter, the visa applicant, provided care in Lebanon and that she is both willing and able to continue to provide such care in Australia yet the Tribunal refused the application as the Member was not satisfied that the assistance cannot reasonably be provided by relatives in Australia. As a matter of fact, the Tribunal failed to understand that the assistance cannot, as per the evidence provided, be provided by the relatives in Australia and that my daughter, Nahed, is the only available person to meet my needs.”

2. Each of the grounds was interpreted for the Review Applicant and she was invited to make submissions in support of each of the grounds and in support of the application generally. The Review Applicant’s written submission, filed yesterday, essentially recounted the various disagreements that she had with findings of the Tribunal, and asserted that the Tribunal failed to address her circumstances properly, and that its decision was unreasonable.

3. When I invited the Review Applicant to say whatever she wished in support, she said that she had had an accident, and that she wished her daughter in Lebanon to come out to look after her, and that she did not wish to go to Young to live. 

4. Having regard to the Review Applicant’s diagnosis of dementia in 2012, I was concerned as to whether or not she was able to participate in a meaningful way in this morning’s hearing. However, the Review Applicant was able to answer the questions from the Court coherently and responsively and there has been no indication from the interpreter that the Review Applicant was failing to understand what the Court may be saying or was having difficulty in responding to questions that she was being asked.

5. I did ask Mr Elomari whether the Review Applicant, his grandmother, was able to participate. Mr Elomari stated that he has his own family difficulties, and for that reason does not see a lot of his grandmother. He said that she would have difficulty in understanding what was going on this morning, which I took to be from a legal perspective only. However, I went through the Tribunal’s decision with Mr Elomari, both in relation to the issues that it was required to consider under the Act and the findings that it had made. I explained to Mr Elomari the difficulties that his grandmother faced in trying to establish jurisdictional error on the part of the Tribunal.

6. The Tribunal’s decision record makes clear that it considered the evidence provided by the Review Applicant in relation to the concerns that she had in moving to Young, and that it explored with her the various difficulties members of her family in Australia have in providing her the assistance she needs for her medical conditions.

7. The Tribunal accepted that the Review Applicant was in need of the assistance she claimed, and correctly stated that the issue before it was whether that assistance could be provided by others. The Tribunal then referred to reg.1.15AA(1)(e) of the Regulations, which required that the Tribunal be satisfied that such assistance could not reasonably be provided by any other relative who is an Australian citizen or a permanent resident in Australia, or could be obtained from welfare, hospital, nursing or community services in Australia.

8. The Tribunal had regard to the evidence before it as to the ability for family members to provide assistance to the Review Applicant. The Tribunal concluded that the relevant assistance could be provided by those members. Accordingly, the Tribunal concluded that it was not necessary for it to consider whether it could be obtained from another service in Australia. It is well accepted that it is open to a tribunal to have regard to the collective ability of family members to provide assistance in Australia (see Nguyen v The Minister for Immigration and Border Protection [2016] FCA 688 per Buchanan J at [32]):

   “The decision-maker must be satisfied that assistance is not reasonably available from either source – i.e. relatives or external services. That does not mean that the decision-maker should be satisfied that the condition stated by reg.1.15AA(1)(e) of the Regulations is met if the requisite degree of assistance is not available entirely from only one source or only the other, rather than by some suitable combination of the two, as is commonplace.”

9. The Tribunal referred to the Review Applicant’s evidence that she has two daughters in Australia who are housewives; that she does not talk to one of her daughters; that her second daughter visits her twice a week because she lives in Young; and, that that daughter cannot care for her because her husband is sick and she has four children at home. The Tribunal noted that it questioned the Review Applicant whether she could move closer to her daughter to enable her daughter to spend more time with her, and noted the applicant’s response that she could not move and that she has no place to live in Young, and that she is used to the doctor’s nearby.

10. The Tribunal noted the Review Applicant said that she could not live with her daughter because her grandchildren are too noisy. The Tribunal was not satisfied that accommodation could not be found for the Review Applicant in Young or that she would be unable to find doctors in Young. The Tribunal found that it would not be unreasonable for the Review Applicant to relocate to live closer to her daughter in Young, even if not in the same household as her daughter. The Tribunal noted the Review Applicant has seven grandchildren in Australia, aged between 16 and 35, and that they are busy with their own lives, have their families and work commitments.

1. The Tribunal noted the Review Applicant’s daughter’s evidence that her mother could not relocate to Young because she lives in a public housing property and that the climate in Young is too cold. However, the Tribunal noted there was no evidence that the family had approached public housing to assist in relocating the applicant. The Tribunal had regard to the Visa Applicant’s evidence that she had been providing care to her mother while her mother lived in Lebanon, and that she was willing to live with her mother and provide her the necessary assistance while looking after the children.

2. The Visa Applicant said that having a 13-year-old child living with her would not prevent her from caring for her mother, as they would live together, and that she, the Visa Applicant, would be financially supported by her sons in Lebanon and would not need to work. The Tribunal accepted that the Visa Applicant had been providing care to the Review Applicant while she had resided in Lebanon, and that the Visa Applicant is both willing and able to continue to provide such care in Australia.

3. However, as stated above, the Tribunal was not satisfied that the assistance could not reasonably be provided by the Review Applicant’s present relatives in Australia. The Tribunal found that the Review Applicant has two daughters, and at least six adult grandchildren in Australia. The Tribunal accepted that she may have no contact with one daughter and her children. However, the Tribunal was not satisfied that the Review Applicant’s other daughter and six adult grandchildren could not jointly provide the requisite assistance. 

4. The Tribunal was not satisfied that it would be unreasonable for the Review Applicant to relocate closer to Young, where her daughter would be able to spend more time with her. The Tribunal and also found that the six adult grandchildren were able to contribute to the provision of support. The Tribunal made that finding in the context of accepting that they all have various commitments, including work and family commitments, and that no relative could provide support on a 24-hour-a-day basis. However, the Tribunal did not accept that each of the family members in Australia could not contribute towards a provision of such support.

5. The Tribunal further accepted the evidence before it, that it was inappropriate for male relatives to provide some form of support for the Review Applicant, but that there was nothing to suggest that they could not provide other forms of support, including supervision with taking medication, mobility support, food preparation, and house-work. The Tribunal was not satisfied that the relatives could not provide some degree of care, so that together, in addition to any paid service, the relevant care needed by the Review Applicant could be provided.

6. In the circumstances, the Tribunal concluded that, having considered the totality of the evidence before it, it was not satisfied that the assistance could not reasonably be provided by a relevant relative, or obtained from welfare hospital, nursing or community services in Australia, and that therefore, the requirements of reg.1.15AA(1)(e) of the Regulations were not met.

7. The Tribunal further concluded that at the time of decision, the Visa Applicant was not a carer of the Review Applicant, and therefore did not satisfy cl.116.221 of the Regulations. The Tribunal also considered whether the Visa Applicant met any of the other key criteria for other sub-classes and concluded that she did not.

8. Accordingly, the Tribunal affirmed the decision under review. 

9. A fair reading of the Tribunal’s decision record makes clear that the Tribunal did address the Review Applicant’s circumstances and had regard to all matters put to it in support by both the Review Applicant and the applicant’s daughter at the hearing. As stated above the Tribunal’s findings were open to it on the material and evidence and for the reasons it gave.

10. The Review Applicant’s complaints contained both in her written grounds in support of her application and the further complaints made in the Review Applicant’s submissions, filed yesterday, did not establish any jurisdictional error on the part of the Tribunal. The Review Applicant’s complaints are more in the nature of a disagreement with the findings and conclusions of the Tribunal, thereby inviting merits review which this court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).) The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

    “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

11. Accordingly, none of the Review Applicant’s grounds are made out.

Section 376 Certificate

1. Counsel for the first respondent also raised in submissions that a certificate under s.376 of the Act had been issued in relation to certain documents. Those documents were provided to the Court in a sealed envelope, and no claim for confidentiality was made in respect of those documents. The Court was invited to open those documents and peruse them, which I did. The relevant page in relation to the Review Applicant states as follows:

   “Aziza El-Chahini is on a payment that would entitle them to a carer, there is currently no one receiving carers allowance or carers pension for this person.”

2. The Review Applicant had a copy of those documents. I also gave a copy of those documents to Mr Elomari. I explained that the issue for the Court was whether there had been any denial of procedural fairness to the Review Applicant arising from those documents, such that the Review Applicant may have suffered some practical injustice.

3. Having considered the detail of the matter disclosed in the s.376 certificate, it is clear from the Tribunal’s decision record that that information had no impact on the Tribunal’s decision at all. It is not information that was relevant in any way to the Tribunal’s consideration of the issue before it, as to whether or not the applicant’s Australian relatives could provide the necessary assistance to the applicant, and the Tribunal’s ultimate conclusion that they could. The information contained in the documents the subject of the s.376 certificate was not relevant to the Tribunal’s reasoning as to why the applicant did not satisfy regulation 1.15AA(1)(e)(i) of the Regulations.

4. In the circumstances, there was no practical injustice by the non-disclosure of the certificate or the documents to which it refers (see AVO15 v The Minister for Immigration and Border Protection [2017] FCA 566 per Barker J at [84] – [91]).

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the Review Applicant and the Review Applicant’s daughter at a hearing, as well as with the Visa Applicant who is presently overseas. The Tribunal plainly had regard to all material provided in support and put to the Review Applicant the matters of concern it had about her claims and noted the Review Applicant’s responses. 

2. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  9 October 2017