Elias v Minister for Immigration

[2017] FCCA 1164

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELIAS & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1164

Catchwords:
MIGRATION – Review of former Migration Review Tribunal decision – refusal of a carer’s visa – Tribunal not satisfied that care could not be provided by other relatives in Australia with support from public services – whether the Tribunal misdirected itself or failed to put relevant material to the applicants considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.65, 359, 359A, 359AA, 360

Cases cited:

Abebe v Commonwealth (1999) 197 CLR 510

Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297

Nguyen v Minister for Immigration [2016] FCA 688

Nguyen v Minister for Immigration [2016] FCA 1460
SZBEL v Minister for Immigration (2006) 228 CLR 152

SZBYR v Minister for Immigration (2007) 235 ALR 609

Waterford v Commonwealth (1987) 163 CLR 54

First Applicant: CECILIA ELIAS

Second Applicant: GEORGES DAGHER

Third Applicant: ELIANE DAGHER

Fourth Applicant: GEORGES JUNIOR DAGHER

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2201 of 2014

Judgment of: Judge Driver

Hearing date: 31 May 2017

Delivered at: Sydney

Delivered on: 23 June 2017

REPRESENTATION

Counsel for the Applicant: Mr A Kumar

Solicitors for the Applicant: Harish Prasad & Associates

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: DLA Piper

ORDERS

1. The name of the second respondent is amended to the Administrative Appeals Tribunal.

2. The application as amended on 31 October 2014 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2201 of 2014

CECILIA ELIAS

First Applicant

GEORGES DAGHER

Second Applicant

ELIANE DAGHER

Third Applicant

GEORGES JUNIOR DAGHER

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicants seek judicial review of a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal) made on 14 July 2014.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants “other family (residence) visas”.  There are four applicants.  The principal applicant (Ms Elias) is the carer of a relative who is an Australian citizen.  The other applicants are members of her immediate family. 

2. The following statement of background facts is derived from the submissions of the parties.

3. The applicants applied for the visas on 20 August 2010[1]. The delegate refused the visas on 13 September 2013 finding that Ms Elias did not meet the visa criteria [2]. The applicants applied to the Tribunal for review on 26 September 2013[3].  The Tribunal held a hearing on 7 July 2014[4].

   [1] CB 1-99

   [2] CB 321-335

   [3] CB 336-346

   [4] CB 372

4. The Tribunal, like the delegate, was not satisfied that Ms Elias was a “carer” of her sponsor, Mr Hanna Maroun, on the claimed basis that she would provide direct assistance to his daughter, Ms Debbie Maroun, within the definition of “carer” in regulation 1.15AA of the Migration Regulations 1994 (Cth) (Regulations), and in particular regulation 1.15AA(1)(e), which reads:

   (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;

5. The Tribunal was not satisfied that the sponsor, together with his wife and three other adult children, and 17 year old daughter, and with some supplemental assistance from welfare, hospital, nursing or community services, could not reasonably provide the assistance required by Ms Maroun[5].  Accordingly the applicants did not satisfy clause 836.221, so the visa had to be refused[6].

   [5] CB 381-382 [35]-[36]

   [6] see s.65(1)(b) of the Migration Act 1958 (Migration Act)

6. These proceedings began with a show cause application filed on 7 August 2014.  The applicants rely upon an amended application filed on 31 October 2014.  There are two particularised grounds in that application as amended:

   Ground 1

   The Tribunal committed jurisdictional error when it misdirected its enquiries and/or misconstrued the Regulations [Clause 1.15A] (CB 381-382).  MRT decision; pp 6-7 at [34]-[36]).

   Particulars

   1.1 The Tribunal fell into error by misdirecting itself and asking wrong questions – the Tribunal identified that there were relatives in Australia but failed to ask whether all the relatives were willing to provide assistance erroneously presuming that each would provide carer’s assistance (particularly son Marwan).

   1.2 The Tribunal erred in interpretation of Clause 1.15AA(2)(e) assessing that it was reasonable to assess that each relative that was present in Australia was deemed to available to provide care.

   1.3 The Tribunal misdirected itself in finding that supplemental assistance could be obtained in Australia (CB 381-382, MRT decision; pp 6-7 at [35]) and the applicant could reasonably request such services in circumstances the services had advised that services would not be available.

   Ground 2

   The Tribunal committed jurisdictional error by failing to comply with s.359/s.359AA of the Migration Act.

   Particulars

   2.1 The Tribunal failed to put all the issues on which the decision turned to the Applicants.

   2.2 The Tribunal failed to put determinative issues to the Applicant:

   2.2.1 that supplemental assistance could be obtained in Australia by the Applicant from support services;

   2.2.2 The Applicant could reasonably request assistance from the members of the family when assistance was not offered and could be expected from such family members particularly owing to cultural circumstances.

7. This matter was originally allocated to the docket of another judge of this Court but was transferred to my docket at the end of April 2017. 

8. I have before me as evidence the court book filed on 22 September 2014. 

9. The applicants and the Minister prepared pre-trial submissions and also made oral submissions at the trial of this matter on 31 May 2017. 

Consideration

1. I prefer the Minister’s submissions in respect of the grounds of review.  The first ground raises the assertion that the Tribunal misdirected itself.  A contention in the particulars is that the Tribunal should have asked whether Ms Maroun’s Australian relatives were “willing” to provide assistance.  However this is not what is required by regulation 1.15AA(1)(e), which instead asks whether assistance cannot reasonably be provided by other relatives, not whether they are willing to provide assistance[7].  The Tribunal was not satisfied that Ms Maroun’s Australian relatives were each unable to provide some assistance.

   [7] see Nguyen v Minister for Immigration [2016] FCA 688 (Buchanan J) at [22]-[30]; Nguyen v Minister for Immigration [2016] FCA 1460 (Bromwich J) at [44]-[57]

2. The particulars also assert that the Tribunal proceeded as though each Australian relative was “deemed” to be able to provide care, but no such conclusion appears in the Tribunal’s reasons expressly and a fair reading of its reasons does not support any implication to that effect.

3. Finally, the particulars assert that assistance from community services was not available to Ms Maroun, but the Tribunal’s findings at [35]-[36][8] are to the contrary.  There is not necessarily any error of law in the Tribunal making a wrong finding of fact[9].

   [8] CB 381-382

   [9] Waterford v Commonwealth (1987) 163 CLR 54 at 77; Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303; Abebe v Commonwealth (1999) 197 CLR 510 at [137]

4. Counsel for the applicants sought to draw support for this particular in Ground 1 from the letter from the Department of Family and Community Services reproduced at CB 301.  Relevantly, that letter states that, as at the date of the letter on 20 September 2012, service providers were unable to offer the family “a flexible respite service”.  The letter went on to state that the request remained on a “prioritised register” and would be submitted for consideration as vacancies occurred.  Counsel for the applicant submitted that the letter was not properly considered in determining the availability of welfare, hospital, nursing or community services.  I disagree.  First, the letter had already been rejected as insufficient by the delegate[10].  Secondly, the Tribunal at [33][11] of its reasons took into account that the family had been assisted by a social worker in 2011 and considered correspondence from the case manager of Ms Maroun.  The Tribunal notes that that letter did not address the availability of any services.  The Tribunal attempted to obtain further information from the case manager but was unable to do so.  The letter from the State Department, while establishing that flexible respite care assistance was not available as at the date of the letter, also established that the request had been given priority.  On all of the available material it was open to the Tribunal to conclude that it was not satisfied that some supplemental assistance cannot reasonably be obtained from services in Australia. 

   [10] CB 333

   [11] CB 381

5. Contrary to assertions in the applicants’ submissions the Tribunal did assess the level of care Ms Maroun required[12].  It did not find she required “constant” attention as claimed.

   [12] CB 379 [20]

6. The second ground claims that the Tribunal failed to put its conclusions to Ms Elias. There are several problems with this assertion. First, the particulars indicate an asserted breach of s.360 of the Migration Act, although the ground refers to ss.359 and 359AA. Secondly, it is not apparent that s.359A was engaged at all. Thirdly, there is no evidence other than the Tribunal decision of what occurred at the Tribunal hearing as the applicants have not filed a transcript of the Tribunal hearing. In any case the Tribunal did not have to put its preliminary conclusions to the applicants for comment[13].  The delegate was not satisfied that assistance could not reasonably be obtained from other relatives in Australia or welfare, hospital, nursing or community services in Australia[14], so these were matters that was obviously in issue before the Tribunal. Nor are the Tribunal’s thought processes or conclusions “information” within s.359A(1) of the Migration Act, as this ground may intend to assert[15].

   [13] SZBEL v Minister for Immigration (2006) 228 CLR 152 at [48]

   [14] CB 333

   [15] SZBYR v Minister for Immigration (2007) 235 ALR 609 (HCA) at [18]

Conclusion

1. The applicants have failed to establish that the decision of the Tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  23 June 2017