Gorgees v Minister for Immigration
[2018] FCCA 2787
•28 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GORGEES v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2787 |
| Catchwords: MIGRATION – Application to review decision of the Administrative Appeals Tribunal – whether Tribunal misconstrued visa criterion and/or the definition of carer in reg.1.15AA of the Migration Regulations 1994 (Cth) and thereby applied the wrong test. |
| Legislation: Migration Act 1958 (Cth), s.65 Migration Regulations 1994 (Cth), reg.1.15AA, cls.836.212, 836.221 |
| Cases cited: Diec by her Litigation Guardian Linhv Minister for Immigration and Border Protection & Anor [2016] FCCA 2009 |
| Applicant: | EMMANUEL MATTI GORGEES |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2987 of 2015 |
| Judgment of: | Judge Barnes |
| Hearing date: | 29 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 28 September 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Byrne |
| Solicitors for the Applicant: | D'Ambra Murphy Lawyers |
| Counsel for the Respondents: | Mr Cleary |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
A writ in the nature of certiorari issue directed to the Second Respondent quashing the decision made on 29 September 2015.
A writ in the nature of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review of the decision of the delegate of the First Respondent made on 9 September 2014.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2987 of 2015
| EMMANUEL MATTI GORGEES |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 29 September 2015. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant, Mr Gorgees, an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (Cth) (the Act).
Mr Gorgees, a Canadian citizen, applied for the visa on 19 December 2013. At that time, Class BU contained three subclasses. He applied for a Subclass 836 (Carer) visa on the basis that he claimed to be the carer of his mother (Mrs Hanna), an Australian citizen.
Mr Gorgees provided various documents in support of his visa application, including a Carer Visa Assessment Certificate from Medibank Health Solutions dated 9 September 2013 stating that Mrs Hanna met the requirements for a carer as she had an impairment rating of 30 points based on a disability support pension assessment; a medical condition causing physical, intellectual or sensory impairment of her “ability… to attend to the practical aspects of daily life”; and a need for direct assistance in attending to the practical aspects of daily life because of her medical condition that would continue for at least two years. The medical adviser’s assessment relied on in support of the Certificate was also provided to the Department. It stated that Mrs Hanna required direct assistance with transfers and with certain articles of clothing; that she was able to feed herself, but required an A-frame (for mobility) and supervision/monitoring assistance because of “[r]isk of falling over if she is unsupervised”.
Mr Gorgees claimed to the Department that he and his brother provided care for their mother which he described as “constantly 7 days a week”. He stated that he was willing to provide “the full care and assistance” and that it took him “8 hours each day of the week to provide care and assistance” to his mother. He claimed his family helped with financial and other support. He provided details of a list of services he had recently contacted in relation to the availability of assistance for his mother.
On 9 September 2014 the delegate refused to grant a Carer visa to Mr Gorgees. The delegate was not satisfied that the assistance required by Mrs Hanna could not reasonably be obtained from any other relative or welfare, hospital, nursing or community service in Australia; that Mr Gorgees was willing and able to provide to Mrs Hanna substantial and continuing assistance of the kind needed; or that there was evidence that Mr Gorgees was the biological child (and hence a relative) of Mrs Hanna.
On 25 September 2014 Mr Gorgees sought review by the Tribunal. He was invited to, and attended, a Tribunal hearing on 28 September 2015. He provided the Tribunal with various documents, including information relevant to his relationship with his mother; statutory declarations of two relatives; medical records concerning Mrs Hanna and another relative; and a notification that Mrs Hanna had been approved by NSW Health for a Home Care Package Level 1 and 2. The notification letter advised that Mrs Hanna should contact local home care providers to see if they had packages available.
Mr Gorgees also gave the Tribunal a list of providers in the local area and a record of inquiries he had made with and responses from local home care providers and community organisations in relation to the provision of home care packages. He also provided a copy of Mrs Hanna’s aged care client record prepared by the Aged Care Assessment Team (ACAT) assessor which recorded her diagnosed diseases, disorders, and need for assistance of various kinds. Included in this material was a summary of Mrs Hanna’s care needs and recommendations as follows:
… Mrs Hanna has become increasingly dependent over the past 18 months on her son with activities of daily living because of deteriorating health and frequent falls. There is also considerable carer strain because of limited family support.
Key Considerations at time of assessment –
- Dependent for IADL
- High falls risk – Supervision required at all times
- Needing assistance with showering / dressing
- Carer Strain- Socially Isolated (but unwilling to mix because of recent bereavement).
Recommendations
- approval to access a low level HCP to provide IADL and showering support.
- approval to access low level residential respite to support carer role
- approval to access permanent placement should carer be unable to continue carer role
The Legislative Framework
The criteria for a Carer visa are set out in Part 836 in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 836.212 is a requirement that “[t]he applicant claims to be the carer of an Australian relative” at the time of application.
The criterion in cl.836.221 is that “[t]he applicant is a carer of a person referred to in clause 836.212” at the time of decision.
Regulation 1.15AA(1) defines a “carer” as follows:
(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.
(emphasis in original)
The Tribunal Decision
In brief reasons for decision the Tribunal stated that “[t]he issue” in the case was whether Mr Gorgees was “the (sic) carer” of the sponsor, Mrs Hanna.
The Tribunal noted that cl.836.212 in Schedule 2 to the Regulations required that Mr Gorgees “claims to be the carer of an Australian relative”. It found that the visa application was made on the basis that Mr Gorgees was the carer of his mother.
Under the heading “APPLICANT IS THE CARER” and the subheading “Whether the applicant is a carer” the Tribunal stated that the elements of reg.1.15AA were cumulative, so that if Mr Gorgees did not meet one element there was no need to consider the remaining elements and paragraphs dealing with those other elements.
The Tribunal stated at paragraph 9 that cl.836.221 “requires that at the time of decision, the applicant is the (sic) carer of the Australian relative” and referred to the definition of the term “carer” in reg.1.15AA.
The Tribunal considered the requirement in reg.1.15AA(1)(f), which it described as a requirement that Mr Gorgees was “willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed”. As discussed below, no reference was made to the fact that this provision in fact directs attention to “assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires”. No other elements of the reg.1.15AA definition of carer were considered by the Tribunal.
The Tribunal noted that “willingness” is concerned with the applicant’s state of mind, whereas “ability” is an “objective inquiry” as to whether the applicant is a person who is “suitable or fit to provide the assistance” and cited Xiang v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 64; (2004) 81 ALD 301.
The Tribunal stated that the term “substantial and continuing assistance” had not been directly considered in relation to Carer visas, but that it had been the subject of judicial consideration in the context of the previous definition of “special need relative” in reg.1.03. It referred to Perera v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1120 in which the Federal Court held that the term “substantial” was directed to the level of assistance, while the term “continuing” was directed to the duration of assistance and pointed out that “substantial and continuing assistance” was a composite phrase, in the sense that its two elements were cumulative. The Tribunal considered that these comments were of assistance in considering the reg.1.15AA definition of “carer”.
The Tribunal then made findings and provided reasons concerning whether Mr Gorgees was both willing and able to provide “substantial and continuing assistance required”.
The Tribunal noted that it had observed in the hearing that Mr Gorgees “appeared willing to assist with the care of his mother”. It also noted the delegate’s observation that Mr Gorgees had previously applied to the Department for permission to work, despite the fact that his mother’s assessment indicated that she required “constant supervision or monitoring” due to her many ailments and mobility issues.
The Tribunal recorded that Mr Gorgees had insisted to it that the application for permission to work was the work of a former migration agent who had been disbarred and that was why it was on the record. It recorded Mr Gorgees’ evidence that he was a single person who normally lived in Canada and had no need to stay in Australia, but was doing so because of his desire to care for his elderly infirm mother. He stated that he had already done so for two years, first in company with his brother until 2014, and then as sole carer.
The Tribunal continued at paragraphs 13-15:
13. The Tribunal asked him how he managed to survive financially, as he was not working. He informed that he lived frugally and that his mother had significant medical bills. He said he was so hard up financially that he had had to seek the assistance of Fairfield Community Aid at one stage. The Tribunal was intrigued by this revelation and asked him whether his siblings had contributed to helping him financially – in view of the time and effort he was putting into looking after their mother. He appeared embarrassed but revealed that they had been of little or no financial assistance to him.
14. The Tribunal accepts that the applicant has already cared for his mother for a period of two years in conditions which seem akin to those he currently faces ie. lack of employment and little assistance from other family members. The Tribunal accepts that the applicant has cared for his mother and has been able to do so in the past with little financial assistance from others, however, it is not satisfied that he meets r.1.15AA.
15. This is because the Tribunal is not satisfied from the evidence given by the applicant in the hearing and elsewhere to the Department that the applicant will be able to sustain his ability long term to give his mother in-house care to the level indicated by her Medibank Health Solutions certificate of 9 September 2013. The sponsor needs constant care which would naturally prevent the applicant from working part-time. Despite his willingness and the evidence of prior care of two years standing – the Tribunal is not satisfied that the applicant can evidence the financial support that would allow him to care for the sponsor in the longer term. Therefore, the Tribunal finds that the applicant is not able to provide to the Australian relative substantial and continuing assistance of the kind needed and does not meet the requirements of r.1.15AA(1)(f).
The Tribunal concluded on the basis of these findings that at the time of decision Mr Gorgees was not “a ‘carer’” of Mrs Hanna and so did not satisfy cl.836.221 and did not meet the criteria for the visa.
The Tribunal affirmed the decision not to grant Mr Gorgees a Carer visa.
These Proceedings
Mr Gorgees sought review of the Tribunal decision by application filed in this court on 3 November 2015.
The application contains one ground of review, which is as follows:
1. The Tribunal made a jurisdictional error because it misconstrued clause 836.221 of Schedule 2 to the Migration Regulations 1994 and reg 1.15AA of the Regulations, and thereby made an error of law and asked itself the wrong question.
Particulars
a. Clause 836.221 required that at the time of the decision, the applicant is “a carer” of the Australian relative (“resident”), not “the carer” as the Tribunal wrongly stated at [9]. The distinction is important because the regulation comprehends that a person can be a “carer” and not be the exclusive person providing care to the resident.
b. In order to consider whether the applicant satisfied reg 1.15AA(1)(f), the Tribunal needed to ask itself whether it was satisfied that the applicant was willing and able to provide his mother with substantial and continuing assistance in attending to the practical aspects of daily life which she required because of her medical condition.
c. The Tribunal applied the wrong test at paragraph [15], where it asked itself whether the applicant could provide his mother with “constant care”, such that he could not work part time.
d. The test that the Tribunal applied was the wrong test because it did not allow for the possibility that the applicant could work part time and still provide substantial assistance to his mother in attending to the practical aspects of her daily life.
Mr Gorgees submitted first that in paragraph 9 of the Tribunal’s reasons there was a misstatement of the test in the time of decision criterion in cl.836.221, as there was a reference to “the carer” instead of to the correct requirement that the applicant be “a carer” of the Australian resident. Further, the Tribunal was said to have misapplied cl.836.221 and reg.1.15AA in that it proceeded on the basis that it was necessary for the Applicant to be the sole carer for his mother in the future by addressing whether he could provide her with “constant care”. It was submitted that the Tribunal’s conclusion (in paragraphs 13-15) that it was not satisfied that Mr Gorgees was able to provide his mother with substantial and continuing assistance “long term” was reached for the reason that it was not satisfied that he had the financial support that would allow him to provide full-time care, that is, “constant” care for his mother in the longer term. It was submitted that this did not allow for the possibility that assistance that was less than full-time could be substantial assistance within reg.1.15AA(1)(f).
It was submitted that the Tribunal had made a number of erroneous assumptions, including, most significantly, that Mrs Hanna’s need for constant care would prevent Mr Gorgees obtaining part-time work and that other carers could not fill any gap in her care needs. The Applicant submitted that it must be inferred from the Tribunal decision that it was of the view that to meet the criterion in cl.836.221 Mr Gorgees must be willing and able to provide full-time care to his mother as her exclusive care provider. It was submitted that this assumption was incorrect and that the Tribunal had effectively conflated the notions of “substantial” care and full-time care without any basis in the legislation or in case law to have done so.
The Applicant referred to the consideration of the concept “willing and able” in Xiang at [7] and to the remarks of Gray J in Perera at [16] in relation to the phrase “substantial and continuing”. Mr Gorgees submitted that the Tribunal had effectively read the term “a carer” in cl.836.221 and reg.1.15AA(1) as meaning “the carer”, in proceeding on the basis that the applicant for a Carer visa had to provide all of the care required by the relative. This was said to involve the application of the wrong test for the purposes of reg.1.15AA(1)(f) and the cl.836.221 criterion.
It was submitted that Rasla v Minister for Immigration and Border Protection [2016] FCA 1575 (in which the applicant had unsuccessfully argued that the Tribunal had applied the wrong test by failing to give any consideration to whether the applicant was “willing and able to provide substantial, as distinct from all, assistance”) could be distinguished as “fact-specific”. This argument was put on the basis that the decision in Rasla hinged on the fact that that applicant had presented his case, both in his application and before the Tribunal, on the basis that he would be the sole carer (see Rasla at [20]-[21]).
Mr Gorgees submitted that, in contrast, his application and supporting materials had not been put on the basis that he would be his mother’s exclusive carer in the future. Rather, his application and the documents he provided to the Tribunal were said to have made it clear that ongoing inquiries were being made concerning the possibility of obtaining some home care assistance from community service organisations. It was contended that this was not hypothetical evidence and that, accordingly, it was not open to the Tribunal to approach the visa application on the basis that it was premised on Mr Gorgees being the sole carer for his mother in the future.
It was submitted that the evidence provided to the Department about inquiries and to the Tribunal about the approval of Mrs Hanna for a Home Care Package Level 1 and 2 and the availability of various home care packages from local providers made it clear that it was contemplated that while the Applicant would provide a level of care which would be “substantial”, it was not being claimed that he would be the sole unassisted carer of his mother.
In oral submissions counsel for the Applicant acknowledged that the time of application criterion was that an applicant claims to be “the” carer of an Australian relative, but pointed out that the criterion in issue in the Tribunal reasons was cl.836.221 which required that “the applicant is a carer of a person referred to in clause 836.212” at the time of decision.
Counsel for the Applicant also suggested that the Tribunal’s approach indicated that it had proceeded on the basis that other matters in reg.1.15AA(1) (in relation to which the delegate was not satisfied) had been satisfied.
The First Respondent submitted that Mr Gorgees’ argument was misconceived and that it demonstrated a misunderstanding of the law relating to reg.1.15AA(1)(f) and also a misunderstanding of the Tribunal’s findings at paragraphs 13-15. It was submitted that Mr Gorgees essentially sought to challenge the merits of the Tribunal decision.
The First Respondent submitted that decisions of the Federal Court, including Perera, Jung & Anor v Minister for Immigration and Border Protection [2017] FCA 173 (which affirmed Jung & Anor v Minister for Immigration and Border Protection & Anor [2016] FCCA 1026 on appeal), Xiang at [7] and Diec by her Litigation Guardian Linhv Minister for Immigration and Border Protection & Anor [2016] FCCA 2009, made it clear that whether assistance was “substantial and continuing” as required under reg.1.15AA(1)(f) was a question of fact to be determined objectively by the Tribunal after considering all the evidence.
It was contended that there was nothing erroneous about the way the Tribunal set out and/or understood the meaning of “substantial and continuing” in reg.1.15AA(1)(f). In particular, it was submitted that the Tribunal did not limit the sub-regulation in the manner suggested by the Applicant or impose any requirement under reg.1.15AA(1)(f) that Mr Gorgees be “the sole carer of his mother”. It was suggested that in its reasons for decision the Tribunal made no mention of any such requirement and that it set out the correct statutory test in reg.1.15AA(1)(f).
The First Respondent also submitted that the Tribunal did not assess whether Mr Gorgees satisfied the definition of “carer” in reg.1.15AA(1)(f) by requiring him to be the “sole” carer of his mother. Rather, it was asserted that in paragraphs 13 and 14 of the Tribunal’s decision, it set out Mr Gorgees’ evidence, including his claim that he was his mother’s sole carer in support of his claim that he was “able to provide… substantial and continuing assistance”. It was contended that the Tribunal’s factual findings in paragraph 15 (set out at [21] above) supported its conclusion that Mr Gorgees did not meet the requirements in reg.1.15AA(1)(f) and were open to it on the evidence before it.
Counsel for the First Respondent also pointed out that the Tribunal’s conclusion (at paragraph 16) was correctly expressed in terms of the test of “a carer” in the cl.836.221 criterion. It was submitted that there was nothing to support the contention that Mr Gorgees ran his case before the Tribunal on any other basis and that his submission to that effect should not be accepted. In any event, it was contended there was no evidence of any misapplication of the test specified in this criterion in paragraphs 10-16 of the Tribunal decision.
It was further submitted that whether or not Mr Gorgees put forward evidence that he was the sole carer or whether there were other people to assist did not affect what the Tribunal had to decide under reg.1.15AA(1)(f).
Consideration
The criteria for a Carer visa in issue are set out above. Relevantly, the time of decision criterion in cl.836.221 refers to “a carer”. A “carer” is defined in reg.1.15AA.
As the Tribunal recognised, the definition of “carer” in reg.1.15AA(1) contains cumulative requirements. As a preliminary point I note that, contrary to the Applicant’s suggestion, the fact that the Tribunal referred only to the requirement in reg.1.15AA(1)(f) does not mean that it proceeded on the basis that the other reg.1.15AA(1) requirements were satisfied. However this approach does mean that if the Tribunal fell into error in its consideration of reg.1.15AA(1)(f) there could be no independent basis for its decision that was unaffected by such error.
For the reasons that follow I am satisfied that the Tribunal erred in the manner contended for by the Applicant. Hence the matter should be remitted to the Tribunal for redetermination according to law.
As noted above, reg.1.15AA(1)(f) refers to assistance of a particular “kind”. It does not require that the applicant be willing and able to provide all the assistance needed by the Australian resident. Rather, it refers specifically to a willingness and ability to provide “substantial and continuing” assistance of the “kind” needed “under subparagraph (b)(iv) or paragraph (d), as the case requires”. In this instance the case required consideration of subparagraph (b)(iv) which specifies one of the matters which has to be addressed by a certificate in relation to a medical assessment carried out on behalf of a health service provider in accordance with reg.1.15AA(2). The kind of assistance needed must be assistance because of the medical condition specified and must be a need for “direct assistance in attending to the practical aspects of daily life” that the Australian relative has and will continue to have for at least 2 years.
As the Tribunal recognised, there was a reg.1.15AA(2) certificate in this case consisting of a Medibank Health Solutions certificate dated 9 September 2013. It was a one page document expressed in terms reflecting the requirements of reg.1.15AA(1)(b) and stated that Mrs Hanna met “the requirements for a carer” as she had a total impairment rating of 30 points; a medical condition that was causing physical, intellectual or sensory impairment of her ability to attend to the practical aspects of daily life; “a need for direct assistance in attending to the practical aspects of daily life because of the medical condition” and (reflecting subparagraph (b)(iv)) that because of the medical condition she had, the need for direct assistance in attending to the practical aspects of daily life would continue for at least two years.
The certificate did not state that Mrs Hanna needed “constant care” as seems to be suggested by the Tribunal at paragraph 15. However the Medical Adviser’s Report accompanying the certificate addressed Mrs Hanna’s need for direct assistance in various respects and stated that she was at “[r]isk of falling over if she is unsupervised”, expressing the view that she needed direct assistance in the area of “supervision or monitoring”.
The subsequent Aged Care Client Record completed by ACAT in December 2014 and provided to the Tribunal stated that Mrs Hanna had a “[h]igh falls risk - Supervision required at all times”. Relevantly, having regard to the ground of review, the ACAT assessment addressed Mrs Hanna’s particular need for care in some detail in the course of recommending approval of her eligibility to receive a low level Home Care Package (Level 1 and 2), to provide “IADL and showering support”, and also assistance under the National Respite for Carers Program to support the carer role. Mr Gorgees also provided information to the Tribunal about the results of his subsequent inquiries with various local providers about the availability of such home care packages. In other words, while the initial visa application was made on the basis that Mr Gorgees claimed to be “the carer” of his mother (as required under cl.836.212), before the Tribunal he provided evidence of the availability of home care assistance from providers of home care packages.
It was in light of this material, as well as Mr Gorgees’ evidence at the Tribunal hearing, that the Tribunal had to determine whether he met the time of decision criterion in cl.836.221 in Schedule 2 to the Regulations having regard to the definition of carer in reg.1.15AA.
On its face the criterion in cl.836.221 is clear and unambiguous. The reference to being “a carer of a person referred to in clause 836.212” does not impose a requirement that at the time of decision the visa applicant is or claims to be “the” carer, in the sense of the sole carer, of his or her Australian relative. Rather, it makes it clear that the person said to be in need of care must be “an Australian relative” of the visa applicant.
The Tribunal misconstrued cl.836.221 in finding at paragraph 9 that it required that at the time of decision “the applicant is the carer of the Australian relative (or ‘resident’)”. Furthermore, in making its findings, the Tribunal also proceeded on the basis that Mr Gorgees must be the full-time sole carer of his mother to be able to provide her with substantial and continuing assistance, notwithstanding that its ultimate conclusion was expressed in terms of “a carer”. Whether it did so because of misconstruction of cl.836.221 or because it conflated the notions of “substantial assistance” in reg.1.15AA and “constant care” or because it assumed that the visa applicant must provide all the assistance the assessment accompanying the reg.1.15AA(1)(b) certificate stated was needed, it made an error of law which amounted to a jurisdictional error.
There is no requirement in reg.1.15AA(1)(f) that an applicant for a Carer visa necessarily be the sole carer for an Australian relative. Rather, the requirement is that the applicant “is” willing and able (that is “is” willing and able at the time of decision) to provide to the resident “substantial and continuing assistance of the kind needed” in this case under subparagraph (b)(iv), that is a need for “direct assistance” with the practical aspects of life.
In Perera Gray J considered the meaning of the phrase “substantial and continuing” which was used to qualify the concept of “assistance” in the definition of “special need relative” which applied in relation to the subclass of visa that was replaced by the Carer visa. What his Honour said is equally relevant to the meaning of this phrase in reg.1.15AA(1). Gray J pointed out that the two elements are cumulative, but also found at [16] that there was a “difference in nature” between the two elements. It was in this context that his Honour stated:
…The word ‘substantial’ is directed to the level of assistance that a visa applicant is willing to provide. The word ‘continuing’ is directed to the duration of that assistance, in that it focuses attention on whether the assistance is short-term or sporadic...
At [17] his Honour reiterated that the word “substantial” related to the “level of assistance” in suggesting that if the Tribunal found that the level of assistance the applicant was willing and able to provide “was not sufficiently great as to warrant the description ‘substantial’” the Tribunal did not have to consider whether the assistance was continuing. Consistent with the language of reg.1.15AA(1)(f), this approach clearly envisages that “substantial” assistance may be less than full-time and that the assistance a visa applicant is willing and able to provide may be “substantial” in circumstances where some assistance is also provided or to be provided by another person.
Subparagraph (1)(f) also requires that the assistance be “continuing” assistance. In Perera at [16], this was said to be a term directed to the “duration” of the assistance “in that it focuses attention on whether the assistance is short-term or sporadic”.
It is the case that whether assistance is substantial and/or continuing is a question of fact (see Narayan v Minister for Immigration and Multicultural Affairs [2001] FCA 1745 at [44]) to be determined objectively by the Tribunal after considering all the evidence.
While it is for the Tribunal to determine whether the level of assistance a visa applicant is willing and able to provide is “substantial”, in this case the Tribunal equated the requirement of “substantial assistance” with the total level of care needed by the resident. It proceeded on the basis that as Mrs Hanna needed constant care, the Applicant must be willing and able to provide that level of care. This was not simply an evaluation of the assistance that had in fact been provided by Mr Gorgees (cf Jung at [57]). The Tribunal had to consider whether Mr Gorgees was willing and able to provide substantial and continuing assistance to his mother in the future in circumstances where he provided evidence of the future availability of low level home care assistance. The Tribunal equated substantial assistance with constant care and proceeded on the basis that, at least in circumstances where the resident required constant care, the visa applicant must be willing and able to provide all of that care (and, in that sense, to be “the” carer) despite the fact that neither the time of decision criterion for a Carer visa in cl.836.221 or the definition of “carer” in reg.1.15AA(1) requires an applicant to be willing and able to provide all the assistance that may be needed by a relative.
In Xiang the Full Court of the Federal Court addressed “willing and able” at [7]:
…In the tribunal’s view a visa applicant is not “able” to provide the required assistance if the applicant does not in fact provide that assistance. That is not what the word means. A visa applicant must show that he or she is “willing and able” to provide the required assistance. The first limb (the applicant’s willingness) is concerned with the applicant’s state of mind. Is the applicant prepared to do what is necessary to provide the assistance? The second limb (whether the applicant is “able” to provide that assistance) calls for an objective inquiry. The question is whether the visa applicant is a person who is suitable or fit to provide the assistance…
Read in the context of reg.1.15AA(1)(f) requirement, it is clear the reference to the “required” assistance in Xiang at [7] is a reference to the “substantial and continuing assistance” which the visa applicant has to be willing and able to provide to satisfy the definition of “carer”. The language of reg.1.15AA(1)(f) does not incorporate a requirement that a Carer visa applicant must be willing and able to provide “all” the care needed by a relative. That is apparent not only from the fact that “substantial” envisages a “level” of care, but also from the reference in reg.1.15AA(1)(f) to the care being of the “kind” needed under subparagraph (b)(iv) or paragraph (d). Indeed, consistent with this construction, paragraph (d) expressly contemplates assistance being provided by more than one person if the person to whom the certificate relates is not the Australian resident and the resident has a permanent or long term need for “assistance in providing the direct assistance mentioned in subparagraph (b)(iv)”.
It is the case that in Rasla McKerracher J considered a proposed ground of appeal that the Tribunal in that case had applied the wrong test in that it proceeded on the basis that the prospective carer must establish that he was willing and able to provide all the assistance a relative required, rather than considering whether he was willing and able to provide “substantial” assistance. As his Honour pointed out at [13], it was for the Tribunal to determine as a matter of fact whether the assistance the Applicant was willing and able to provide was substantial and continuing. However while McKerracher J found that the ground would not have sufficient prospects of success if an extension of time was granted, as the Applicant submitted, that was on the basis that the Tribunal in that case “was doing no more and no less than considering the argument as it was put by the visa applicant…” (at [20]).
However, his Honour stated at [21]:
It is important in this context to recognise that it was common ground that the care required by the applicant was ‘24/7’ or, in substance, constant care. While there may have been other possibilities for support, that was not the scenario depicted by the applicant. In my view, the Tribunal was not required to make further detailed inquiries and findings about other prospects which might exist for the applicant’s care and how many hours per week would be necessary to constitute substantial and continuing assistance. Starting with the premise of care being required on a 24/7 basis, having regard also to the applicant’s needs also to provide for his wife and two children, the Tribunal was entitled to reach, in the absence of evidence to the contrary, a conclusion which accorded with commonsense. It was entitled to do so without making more detailed findings about hypothetical scenarios which were not made out on the evidence before it…
(emphasis added)
In contrast, in this case the “scenario” depicted by the Applicant (in particular the evidence as to the availability of home care assistance he provided to the Tribunal), did envisage other possibilities for support with the care of Mrs Hanna.
Despite this evidence, and without any consideration of the material in that respect, the Tribunal proceeded on the basis that because his mother needed constant care it was not satisfied that Mr Gorgees would be able to sustain his ability in the longer term to provide substantial and continuing assistance which it equated with “the level indicated by” the September 2013 certificate.
In the particular circumstances of this case and having regard to the evidence put before the Tribunal by the Applicant as to his mother’s eligibility for some home care assistance (in addition to the care he provided), I am satisfied that the Tribunal erred in considering only whether Mr Gorgees was willing and able to provide all the assistance his mother required. The Tribunal proceeded on the basis that the Applicant must be the sole carer for his mother and must provide all of the “constant care” said to be required.
That the Tribunal took this approach is apparent not only from its misstatement in paragraph 9 of the test to be applied under cl.836.221, but also from its findings at paragraphs 12-15. The Tribunal proceeded on the erroneous assumption that Mrs Hanna’s need for constant care would prevent Mr Gorgees from obtaining any part-time work. Implicit in this approach was the assumption that for assistance from the visa applicant to be “substantial” no other carer could provide care.
The Tribunal was obliged to consider “whether the level of assistance” Mr Gorgees was “able” to provide to his mother at the time of its decision was “substantial” (Perera at [17]). The fact that in the past Mr Gorgees had (for part of the time) been his mother’s sole carer did not meant that such a level of care by him had to be sustained to satisfy cl.836.221. However as is apparent from the Tribunal finding that the sponsor’s need for constant care would naturally prevent the Applicant from working part-time, it did not allow for the possibility (which had to be considered on the evidence before it) that the Applicant was willing and able to provide a level of care less than constant care, which was nonetheless substantial and continuing direct assistance to his mother in attending to the practical aspects of daily life (see reg.1.15AA(1)(f) and (b)(iv)). The Tribunal in effect conflated the notions of “substantial” assistance and full-time care, rather than considering the ability of Mr Gorgees to provide a level of assistance that was “substantial” and continuing assistance of the kind specified in the September 2013 certificate.
As the ground in the application is made out the matter should be remitted to the Tribunal for redetermination according to law.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 28 September 2018
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