El Sawda v Minister for Immigration

[2017] FCCA 2512

FEDERAL CIRCUIT COURT OF AUSTRALIA

EL SAWDA v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2512

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision of delegate of the Minister for Immigration and Border Protection not to grant the applicant an Other Family (Residence) (Class BU) Aged Dependent Relative (subclass 838) – it was reasonably open to the Tribunal to find the applicant was not wholly or substantially dependent on Australian citizen son – no jurisdictional error.

Legislation:

Migration Regulations 1994 (Cth), regs. 1.03, 1.05A(1), Schedule 2, cls. 838.111, 838.212, 838.213, Schedule 4, Public Interest Criterion 4005

Cases cited:

Minister for Immigration and Citizenship v SZIAI  [2009] HCA 39; (2009) 83 ALJR 1123

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317;  (2013) 212 FCR 99

Applicant: OUHOUD EL SAWDA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2099 of 2015

Judgment of: Judge Manousaridis

Hearing date: 28 September 2016

Date of Last Submission: 28 September 2016

Delivered at: Sydney

Delivered on: 20 October 2017

REPRESENTATION

Ms R Youssef appeared with leave on behalf of the applicant

Solicitors for the First Respondent: Ms  B Griffin of Australian Government Solicitor

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2099 of 2015

OUHOUD EL SAWDA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of Lebanon, applies for judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant an Other Family (Residence) (Class BU) Aged Dependent Relative (subclass 838) visa (838 visa).

Criteria for the granting of 838 visa

1. To have been entitled to the grant of an 838 visa the applicant had to satisfy the criteria prescribed in subclass 838 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). Clause 838.212 requires the applicant be an “aged dependent relative of an Australian relative”.

2. The expression “Australian relative” is defined in cl.838.111 of Schedule 2 to the Regulations as “a relative of the applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen”. The expression “aged dependent relative” in relation to a person who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen, is defined in reg.1.03 of the Regulations to mean:

   a relative who:

   (a) does not have a spouse or de facto partner; and

   (b) has been dependent on that person for a reasonable period, and remains so dependent; and

   (c) is old enough to be granted an age pension under the Social Security Act 1991.

3. The expression “dependent” is defined in reg.1.05A(1) of the Regulations:

   Subject to subregulation (2) [which is not relevant], a person (the first person) is dependent on another person if:

   (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

   (i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

   (ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

   (b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

The applicant’s application for an 838 visa

1. The applicant lodged an application for an 838 visa on 2 December 2010. The application identified two relatives in Australia on whom the applicant claimed she was financially dependent.[1] One is the applicant’s son, Mr Mahmoud Mohamed Elhaj Youssef (Sponsor), and the other is the applicant’s daughter, Ms “Rima ElSankari”, who I infer is a reference to the applicant’s daughter Ms Rima El Haj Youssef (Ms Rima Youssef). The application stated the applicant has been dependent on the Sponsor for 17 years and on Ms Rima Youssef for 5 years. With her application the applicant lodged a prescribed form (Form 40) titled “Sponsorship for migration to Australia (parent, aged dependent relative, remaining relative, carer)” by which the Sponsor nominated himself as the applicant’s sponsor.[2]

   [1] CB12

   [2] CB19

2. In his reasons for decision the delegate treated the applicant as applying for the 838 visa “on the basis that she is an aged dependent relative of her son and sponsor”.[3] The delegate was correct to proceed on that basis. Under clause cl.838.213 of Schedule 2 to the Regulations, the applicant must be sponsored by “the Australian relative” who satisfies the conditions provided for in that subclause. The expression “the Australian relative” in cl.838.213 is a reference to the Australian relative of whom an applicant for an 838 visa claims he or she is the “aged dependent relative”. In the case before me, although the applicant in her application for an 838 visa states she is financially dependent on the Sponsor and on Ms Rima Youssef, it is only the Sponsor who nominated himself as the applicant’s sponsor. In those circumstances, the only question the delegate had to consider was whether the applicant was “an aged dependent relative” of the Sponsor. In any event, the applicant did not at any time claim, either before the delegate or before the Tribunal, that the applicant was financially dependent on Ms Rima Youssef. On the contrary, the applicant claimed Ms Rima Youssef did not financially support the applicant.

   [3] CB167

The applicant’s claims before the Tribunal

1. The applicant was born in Lebanon in 1935 and arrived in Australia in June 2010. Before the Tribunal the applicant gave the following evidence:

   a)The applicant’s husband passed away “a long time ago” and the Sponsor, who was then about 12 or 14 years of age, had to leave school to support the family.

   b)The applicant has four children, two daughters, Ms Rima Youssef and Ms Majida Youssef, and two sons, the Sponsor and Mr Fawaz Youssef. Mr Fawaz Youssef, emigrated from Lebanon “a long time ago” and “lives on an island” and has never provided the applicant with any financial assistance.

   c)Over the last 30 years no person, other than the Sponsor, provided financial support to the applicant and whenever someone visited Lebanon the Sponsor would give that person money to pass on to the applicant.

   d)Before coming to Australia the applicant lived with one of her daughters, Ms Majida Youssef, in a rent-controlled property in Lebanon. Ms Majida Youssef is divorced with two young children, and works as a school teacher. Ms Majida Youssef never provided the applicant with financial assistance because the income from her employment as a school teacher “was barely enough to support her and her children.”

   e)The applicant’s other daughter, Ms Rima Youssef, came to Australia “a long time ago” and does not work. Ms Rima Youssef provides no financial assistance to the applicant.

   f)The applicant suffers from various medical conditions, and is unable to walk. She currently lives with Ms Rima Youssef who “provides her with food and accommodation as well as looks after her” and provides her with personal care. The applicant indicated that she spends time at both children’s places and that Ms Rima Youssef provides her with personal care because it would be “inappropriate” for the Sponsor to do so.

2. The Sponsor gave the following evidence:

   a)The Sponsor arrived in Australia in 2002 and has not since returned to Lebanon.

   b)The applicant’s father died in 1984 during the Lebanese Civil War. The Sponsor and his brother, Mr Fawaz Youssef, had to leave school to support the family. Mr Fawaz Youssef migrated to Curacao in the Caribbean around 1999 and he works there as a car mechanic and cannot afford to financially support the applicant.

   c)Ms Majida Youssef has been employed as a school teacher for “the past nine or ten years”, but her “financial situation has always been poor”, and has never been in a position to financially support the applicant.

   d)When the applicant first came to Australia she lived with the Sponsor in an apartment in a building with no lift. Following the deterioration in the applicant’s health, the applicant “has been spending time with” Ms Rima Youssef because, being male, the Sponsor cannot provide certain personal care to the applicant. It is also difficult for the applicant to negotiate the stairs to reach the Sponsor’s apartment.

3. The Sponsor’s cousin also gave evidence, although it is unnecessary to set it out.

Tribunal’s reasons

1. The Tribunal accepted the applicant is a “relative” of an Australian citizen for the purposes of cl.838.212 of the Regulations; her husband died in 1984 and she has not since remarried or entered into a de facto relationship; she is old enough to be granted an age pension; the applicant has no independent source of income and does not own any significant assets or real estate in Lebanon or anywhere else; before arriving in Australia in 2010 the applicant lived in rent controlled accommodation with Ms Majida Youssef; and, after she arrived in Australia, she lived with the Sponsor, but, after developing serious illnesses, the applicant has been spending periods of time with Ms Rima Youssef, who is providing her with personal care. The Tribunal further said it had no reason to doubt that, when the applicant was living in Lebanon, the Sponsor used to remit money to her.

2. The Tribunal, however, found it “extremely implausible” that when the applicant lived with Ms Majida Youssef in Lebanon, who worked as a school teacher, the applicant received no financial assistance from her for food, clothing, and shelter. Thus, although the Tribunal accepted the Sponsor sent the applicant money, it did not accept the applicant received no assistance from Ms Majida Youssef, when she and the applicant were sharing accommodation in Lebanon.

3. The Tribunal also found that, while in Australia, the applicant has been spending extended periods of time with Ms Rima Youssef who has been providing her with personal care since the applicant’s health began to deteriorate “because of it being culturally appropriate that a female provide her with personal care and also because she is unable to access the stairs into” the Sponsor’s accommodation.[4] The Tribunal considered that, during the periods the applicant stayed with Ms Rima Youssef, she had been provided with free accommodation and food. The Tribunal concluded, therefore, that “the current situation is that [the applicant’s] needs for food and accommodation are currently being met by” Ms Rima Youssef; and it follows that the applicant is not wholly or substantially reliant on the Sponsor for financial support. The Tribunal, therefore, could not be satisfied the applicant “has been dependent on [the Sponsor] for a reasonable period, and remains so dependent” as required by reg.1.03 of the Regulations.[5]

   [4] CB216, [28]

   [5] CB216, [29], [30]

Grounds of Review

1. The application for review filed with this Court contains two grounds of review.

   1.The Member assumed that I was supported by my daughter Majida while it was accepted that the financial support was made by my son Mahmoud El Haj Youssef. As a matter of fact my daughter, Majida, was provided accommodation which was paid by my son Mahmoud and as a teacher she struggled to even meet her and her children’s basic needs. In this case the Tribunal made a decision without taking evidence from my daughter, Majida.

   2.I now suffer from serious health problems and unable to walk or look after myself yet the Tribunal failed to directly make a request to the Minister and such failure to use the discretion is a denial of natural justice and fairness.

2. The applicant also relies on written submissions that were filed on her behalf.

3. At the hearing before me I granted Ms Rima Youssef leave to make submissions on behalf of the applicant. I will refer to her submissions later in these reasons.

Ground 1

1. Ground 1 can reasonably be taken to make a number of claims. First, the applicant appears to claim the Tribunal assumed Ms Majida Youssef supported the applicant, but there was no basis on which the Tribunal could so assume. I do not accept that claim. The Tribunal did not find that Ms Majida Youssef supported the applicant. It only found implausible the applicant’s claim that she received no financial assistance from Ms Majida Youssef for her costs for food, clothing, and shelter. It was reasonably open to the Tribunal to so conclude.

2. The second claim ground 1 may be taken to make is an assertion of fact: Ms Majida Youssef “was provided accommodation which was paid by” the Sponsor. Although there is evidence, which the Tribunal accepted, that the Sponsor had remitted money to the applicant when she was living in Lebanon, there is nothing before me that suggests the applicant or the Sponsor specifically claimed the Sponsor paid for Ms Majida Youssef’s or the applicant’s accommodation in Lebanon. That the Tribunal, therefore, did not specifically refer to the Sponsor paying for such accommodation cannot constitute any jurisdictional error by the Tribunal.

3. The third claim ground 1 makes is the Tribunal failed to take evidence from Ms Majida Youssef. I take this to be a claim that the Tribunal ought to have taken, but failed to take, evidence from Ms Majida Youssef about whether she provided financial support to the applicant. Whether or not the Tribunal was under any such duty depends, at least in part, on whether or not Ms Majida Youssef’s not providing financial support to the applicant constituted a critical fact, the existence of which could be easily ascertained.[6]

   [6] Minister for Immigration and Citizenship v SZIAI  [2009] HCA 39; (2009) 83 ALJR 1123 at [25] - [29]

4. Although Ms Majida Youssef’s not providing financial assistance to the applicant may be characterised as a critical fact, I am not satisfied that the existence of that fact was easily ascertainable. In any event, it was within the applicant’s power to provide evidence in support of her case. It was open to the applicant, for example, to provide evidence of the applicant’s living expenses in Lebanon, the person or persons who paid those expenses, the extent to which the applicant herself paid any of those expenses, the source or sources from which she received the money by which she made the payments, and to obtain a statement from Ms Majida Youssef to the effect that she did not provide any financial support to the applicant.

5. The fourth claim ground 1 may be taken to make is that it was not reasonably open to the Tribunal to conclude that while she lived in Lebanon the applicant was not wholly or substantially dependent on the Sponsor for financial support. In her written submissions a wider claim appears to be made; and that is that it was not reasonably open to the Tribunal to conclude the applicant’s current situation is that Ms Rima Youssef is meeting the applicant’s needs for food and accommodation. The applicant, in her written submissions, supports these claims with the following claims and matters:

   a)Before the Tribunal the applicant reiterated that for the past 30 years no person other than the Sponsor had provided her with financial assistance. The “evidence in the Tribunal decision” did not “dispute” this. [7]

   b)Ms Majida Youssef’s income as a teacher was barely enough to support her and her two children.[8]

   c)Ms Rima Youssef does not work and the applicant’s only source of financial support is from the Sponsor.[9]

   d)At the time of the hearing before the Tribunal Ms Rima Youssef was providing the applicant with personal care but the Sponsor continued to assist financially “as it would be inappropriate for her son to provide personal assistance”.[10]

   e)There was evidence before the Tribunal,[11] found in the “Questionnaire for Aged Dependent Relative” dated 12 June 2013 (Questionnaire),[12] that Ms Rima Youssef has five children, and that she and her husband do not work but rely on “social benefits”, and that the Sponsor is the only person who is “financially capable” of supporting the applicant.[13]

   f)The Tribunal failed to take into account what was said in the Questionnaire[14] that Ms Majida Youssef “remains living in Tripoli”, she “is divorced with two children and currently unemployed”, and she is “barely able to support her own family and cannot offer any assistance” to the applicant.[15]

   g)The applicant criticises the Tribunal’s reference to the applicant’s being subject to the health criteria in Public Interest Criterion 4005. The applicant submits the Tribunal is not the appropriate body to determine that criterion.[16]

   h)The Tribunal failed to see that Ms Rima Youssef “is temporarily providing accommodation and food to” the applicant “but only recently since the deterioration of” the applicant’s health, but “Rima is relying on the sponsor for financial support as the sponsor is financially supporting his mother medically and meeting her expenses”.[17]

   [7] Applicant’s Written Submissions, [2]

   [8] Applicant’s Written Submissions, [3]

   [9] Applicant’s Written Submissions, [4]

   [10] Applicant’s Written Submissions, [5]

   [11] CB98

   [12] CB96-99

   [13] Applicant’s Written Submissions, [8]

   [14] CB96-99 at 98

   [15] Applicant’s Written Submissions, [9]

   [16] Applicant’s Written Submissions, [7]

   [17] Applicant’s Written Submissions, [10]

6. I will deal with each of these matters, and then consider whether it was reasonably open to the Tribunal to have concluded that the applicant’s current situation is that Ms Rima Youssef is currently meeting the applicant’s needs for food and accommodation, and that the applicant, therefore, is not wholly or substantially dependent on the Sponsor for financial support.

7. As to the submission I have set out in paragraph 20(a) of these reasons, it is true the applicant stated that nobody provided her with financial assistance apart from the Sponsor. The Tribunal, however, did not accept that claim. The Tribunal found it implausible that Ms Majida Youssef provided no support to the applicant; and it found that Ms Rima Youssef currently meets the applicant’s needs for food and accommodation.[18]

   [18] CB216, [29]

8. As to the submission I have set out in paragraph 20(b) of these reasons, the Tribunal made no express findings about the applicant’s claim that Ms Majida Youssef’s income from her employment was barely enough to support her and her two children.[19] All the Tribunal found was that Ms Majida Youssef was employed as a school teacher and, for that reason, it considered it implausible that Ms Majida Youssef gave no assistance to the applicant for her living costs. The Tribunal was not bound to accept the applicant’s claim, given that the claim was not supported by material that it is reasonable to expect would have been available to the applicant to produce, such as records of the applicant’s living expenses and the applicant’s source or sources of income. Given no such evidence was produced, it was reasonably open to the Tribunal to find implausible the applicant’s claim that Ms Majida Youssef provided no financial assistance towards meeting the applicant’s living expenses.

   [19] Applicant’s Written Submissions, [3]

1. As to the submission I have set out in paragraph 20(c) of these reasons, the Tribunal made no express finding about whether Ms Rima Youssef worked. The Tribunal did not need to, however, because it found that “the current situation is that [the applicant’s] needs for food and accommodation are currently being met by” Ms Rima Youssef and, for reasons I will set out later, it was reasonably open to the Tribunal to so find.

2. As to the submission I have set out in paragraph 20(d) of these reasons, there is no evidence the applicant suggested to the Tribunal that the Sponsor continued to assist her financially or that the Sponsor met or made a contribution towards the costs of Ms Rima Youssef’s providing accommodation and food to the applicant. It does not appear the Sponsor provided to the Tribunal any documentary evidence of payments he claims to have made towards the applicant’s living expenses.

3. As to the submission I have set out in paragraph 20(e) of these reasons, the evidence the applicant submits was available before the Tribunal is the statement contained in the Questionnaire that Ms Rima Youssef has five children, and that she and her husband do not work but rely on “social benefits”, and that the Sponsor is the only person who is “financially capable” of supporting the applicant (First Statement).[20] The Tribunal did not expressly refer to the Questionnaire or to the First Statement. This gives rise to two questions: did the Tribunal consider the First Statement? If not, did the Tribunal make a jurisdictional error because it did not refer to it?

   [20] CB96-99 at 96

4. That the Tribunal did not expressly refer to the Questionnaire or the First Statement does not necessarily mean it was unaware of the Questionnaire or the First Statement, or that it did not otherwise consider their relevance. Whether or not an inference should be drawn that the Tribunal did not consider the Questionnaire or the First Statement depends, in part, on whether there is a plausible explanation why the Tribunal may not have referred to them. In my opinion, there is a plausible explanation; and that is the First Statement could not reasonably have assisted the applicant, when considered with the Questionnaire as a whole and the other material the applicant submitted in support of her application for an 838 visa.

5. First, the First Statement was made some two years before the date of the hearing before the Tribunal. Second, at the hearing before the Tribunal the applicant said that Ms Rima Youssef did not work which in substance repeats the information conveyed by the First Statement to the extent it concerned Ms Rima Youssef. Third, the First Statement has to be considered in connection with not only the Questionnaire as a whole, but also with a document dated 27 June 2013 the applicant’s migration agent provided to the delegate (Submission).[21] In the Submission it is stated that Ms Rima Youssef “was not employed … and relied upon the income her husband provided to support her family and herself with”, and also referred to Ms Rima Youssef and her husband as “low income earners” who “are barely able to provide for themselves”.[22] Fourth, even if the First Statement were true, it would not be inconsistent, and would be incapable of undermining the Tribunal’s finding that “the current situation is that [the applicant’s] needs for food and accommodation are currently being met by” Ms Rima Youssef. In these circumstances I am not prepared to find the Tribunal was unaware of the Questionnaire or the First Statement, or that it did not consider them.

   [21] CB148-149

   [22] CB148

6. If, however, it were the case that the Tribunal did not consider the First Statement, the question would arise whether the Tribunal made a jurisdictional error by failing to do so. The answer to that question is to be determined by applying the principles stated in the following passage from the judgment of Robertson J in Minister for Immigration and Citizenship v SZRKT:[23]

   In my opinion there is no clear distinction in each case between claims and evidence . . . . The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.

   [23] [2013] FCA 317; (2013) 212 FCR 99, [111]

7. In my opinion, the First Statement was insubstantial and inconsequential. The basis of the Tribunal’s conclusion that the applicant’s needs for food and accommodation are currently being met by Ms Rima Youssef was the applicant’s evidence that the applicant currently lives with Ms Rima Youssef who “provides her with food and accommodation as well as looks after her” and provides her with personal care, coupled with the evidence given by the Sponsor that it is difficult for the applicant to negotiate the stairs to gain access to his apartment and that the applicant’s health has been deteriorating. That the applicant stated in the Questionnaire, a document that was provided to the delegate more than two years before the Tribunal hearing, that Ms Rima Youssef and her husband do not work but rely on “social benefits” is incapable of affecting the assessment of the probability of the truth of the applicant’s evidence given to the Tribunal that Ms Rima Youssef “provides her with food and accommodation as well as looks after her”.

8. A similar analysis is called for by the submission I have set out in paragraph 20(f) of these reasons. The Tribunal did not refer to the statement made in the Questionnaire that Ms Majida Youssef “remains living in Tripoli”, she “is divorced with two children and currently unemployed”, and she is “barely able to support her own family and cannot offer any assistance” to the applicant (Second Statement)[24]. The Tribunal did not refer to the Second Statement. A plausible explanation for the Tribunal’s not referring to it is that it is not reasonably capable of supporting the applicant’s case. The Second Statement is inconsistent not only with what the applicant said before the Tribunal, but also with what the applicant stated in her application for the 838 visa, namely, that her daughter in Lebanon works as a teacher.[25]

   [24] CB98

   [25] CB15, CB213

9. Even if I were to find the Tribunal did not consider the Second Statement, I would not conclude the Tribunal made a jurisdictional error by failing to do so. First, the Tribunal’s findings about the applicant’s arrangements in Lebanon were not dispositive of the applicant’s case. What the Tribunal considered to be dispositive was the applicant’s current circumstances, as made evident in the following passage from the Tribunal’s reasons:[26]

   Regardless of the tribunal’s reservations concerning whether or not Majida was providing some financial assistance to her mother, the tribunal finds the current situation is that [the applicant’s] needs for food and accommodation are currently being met by her daughter Rima. It follows then that [the applicant] is not wholly or substantially reliant upon [the Sponsor] . . . for financial support.

   [26] CB216, [29]

10. Second, the Second Statement could have been used by the Tribunal to undermine the credibility of the applicant’s case as a whole. The making of inconsistent statements, at least in relation to material issues, has the tendency, often ineluctably, to undermine the credibility of a claim. Thus, any failure by the Tribunal to have considered the Second Statement was something that could only have benefited the applicant, and the Tribunal’s failure to consider it could not reasonably be said to have adversely affected its determination of the applicant’s case.

11. The submission I identified in paragraph 20(g) of these reasons does not disclose any jurisdictional error by the Tribunal. The Tribunal’s observation that the applicant was subject to the health criteria in Public Interest Criterion 4005 played no part in the Tribunal’s decision.

12. The submission I identified in paragraph 20(h) of these reasons leads me to consider whether it was reasonably open to the Tribunal not to accept the applicant is wholly or substantially reliant on the Sponsor for financial support. The factual premise on which the Tribunal relied for not being satisfied the applicant is wholly or substantially reliant on the Sponsor for financial support, and thus for not being satisfied the applicant has been and remains a dependent of the Sponsor, is the Tribunal’s finding that the applicant’s needs for food, accommodation, and personal care are currently being provided for by Ms Rima Youssef.[27] There was evidence before the Tribunal that could reasonably support that finding. First, there is the applicant’s evidence, as recorded in the Tribunal’s reasons for decision:[28]

    [The applicant] told the tribunal that she is currently living with her daughter Rima who provides her with all the personal care. [The applicant] indicated that she spends time at both children’s place [sic]. Rima provides her with food and accommodation as well as looks after her. . . .

    [27] CB216, [29]

    [28] CB214, [11]

13. Second, there is the evidence of the Sponsor:[29]

    [The Sponsor] gave evidence to the effect that [the applicant] lived with him when she came to Australia. . . . [The Sponsor] explained that he lives in an apartment building with no lift. Following the deterioration in [the applicant’s] medical condition she has been spending time with his sister Rima. [The Sponsor] explained that as a male he is not in a position to provide [the applicant] with certain personal care. Also, it is difficult for [the applicant] to negotiate the stairs at his place. He indicated that when [the applicant] came to Australia she was in relatively good health. However [the Sponsor] indicated that [the applicant] had a heart problem which required an operation about one year ago. There were complications with the operation and [the applicant’s] health has deteriorated ever since.

    [29] CB214, [16]

14. The applicant’s evidence that she currently lives with Ms Rima Youssef, considered with the evidence that Ms Rima Youssef provides the applicant with personal care; the applicant has difficulty negotiating the stairs to gain access to the Sponsor’s apartment; the applicant’s deteriorating medical condition; and the Sponsor’s not having provided documentary evidence of payments he claims to have made in support of the applicant’s living expenses, provided material on the basis of which it was reasonably open to the Tribunal not to be satisfied the applicant is wholly or substantially reliant on the Sponsor for financial support.

Conclusion

1. Ground 1 of the application, therefore, fails.

Ground 2

1. Ground 2 does not disclose any jurisdictional error by the Tribunal. The Tribunal was under no obligation to make any request to the Minister for personal intervention. It is true the Tribunal referred to its having noted at the hearing that the Minister has powers to substitute for the Tribunal’s decision a more favourable decision to the applicant, that the Minister would only do so if there are compelling, compassionate or humanitarian considerations, and that the applicant can make such a request directly to the Minister. That, however, did not oblige the Tribunal to consider whether the Tribunal should make a request to the Minister.

2. Ground 2, therefore, also fails.

Submissions at hearing

1. At the hearing before me Ms Rima Youssef stated she would like the Court to take into account the matters stated in the applicant’s written submissions. Ms Rima Youssef said the applicant is an 82-year-old lady in desperate need of care. Ms Rima Youssef and the Sponsor want the applicant to remain with them. In reply to the Minister’s submissions Ms Rima Youssef also said the Tribunal misunderstood the fact that the applicant’s staying with Ms Rima Youssef was temporary.

2. None of these submissions disclose any jurisdictional error. As I informed Ms Rima Youssef, the role of the Court is to determine whether, on the grounds stated in the application, the Tribunal has made a jurisdictional error. Further, it was for the Tribunal, not this Court, to determine whether the applicant was an aged dependent relative of the Sponsor for the purposes of the Regulations. I have already concluded that it was reasonably open to the Tribunal to conclude, as it did, that that the applicant’s current needs for food and accommodation are currently being met by Ms Rima Youssef and, for that reason, the applicant is not wholly or substantially dependent on the Sponsor for financial support which, in turn, means the applicant was not an “aged dependent relative” for the purposes of cl.838.212 of Schedule 2 to the Regulations.

Conclusion and disposition

1. The applicant has not established the Tribunal made any jurisdictional error. I propose, therefore, to order that the application be dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 20 October 2017