Gorgees v Minister for Immigration and Anor (No.2)
[2020] FCCA 2069
•28 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GORGEES v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2020] FCCA 2069 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a carer’s visa – whether the Tribunal gave proper, genuine and realistic consideration to the material before it – no jurisdictional error but observations on ministerial intervention. |
| Legislation: Migration Regulations 1994 (Cth) Migration Amendment Regulations 2009 (No 13) (Cth) |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 El-Chahini v Minister for Immigration [2018] FCA 202 ETA067 v Republic of Nauru (2018) 92 ALJR 1003 Gorgees v Minister for Immigration [2018] FCCA 2787 Issa v Minister for Immigration [2000] FCA 128 Nguyen v Minister for Immigration [2016] FCA 688 Nguyen v Minister for Immigration [2016] FCA 1460 Naidu v Minister for Immigration (2004) 140 FCR 284 Rafiq v Minister for Immigration [2004] FCA 564 Rasla v Minister for Immigration [2016] FCA 1575 Valencia v Minister for Immigration [2019] FCA 397 |
| Applicant: | EMMANUEL MATTI GORGEES |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1896 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 28 July 2020 |
| Delivered at: | Sydney |
| Delivered on: | 28 July 2020 |
REPRESENTATION
The Applicant appeared in person by telephone
| Counsel for the Respondents: | Mr B D Kaplan |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application filed on 29 July 2019 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,467 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1896 of 2019
| EMMANUEL MATTI GORGEES |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant, Mr Gorgees, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 1 July 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Gorgees a carer’s visa.
Background facts relating to this matters are set out in initial written submissions filed on behalf of the Minister on 23 January 2020.
Mr Gorgees is a citizen of Canada.
On 11 December 2013, Mr Gorgees made an application to the Minister for a carer visa, claiming that he was a carer of his mother.[1] His sponsor sponsored his application.[2]
[1] Court Book (CB) 1-19
[2] CB 20-28
Earlier, on 9 September 2013, Medibank Health Solutions issued a “Carer Visa Assessment Certificate” (Certificate) in relation to Mr Gorgees’ mother under regulations 1.15AA(1)(b) and (2) of the Migration Regulations 1994 (Cth) (Regulations).[3] The Certificate was signed by an examining medical adviser, who certified that Mr Gorgees’ mother had:
a)an impairment rating of 30 or more points based on the Social Security Tables for the assessment of work-related impairment for Disability Support Pension;
b)a medical condition that was causing physical, intellectual or sensory impairment of her ability to attend to the practical aspects of daily life;
c)a need for direct assistance in attending to the practical aspects of daily life because of that medical condition; and
d)(because of that medical condition) the need for direct assistance in attending to the practical aspects of daily life that will continue for at least two years.
[3] CB 53
The examining medical adviser also prepared a report which detailed Mr Gorgees’ mother’s impairments and the types of direct assistance that she required.[4]
[4] CB 48-52
On 9 September 2014, the delegate made a decision refusing the grant of a carer visa to Mr Gorgees.[5]
[5] CB 122-129
Following an application for review, the Tribunal made a decision, on 29 September 2015, to affirm the delegate’s decision.[6]
[6] CB 216-220
On 28 September 2018, this Court quashed the Tribunal’s decision and remitted Mr Gorgees’ application for review to the Tribunal for determination according to law.[7]
[7] Gorgees v Minister for Immigration [2018] FCCA 2787
On 1 July 2019, the Tribunal, differently constituted, again affirmed the delegate’s decision.[8]
[8] CB 429-434
Legislation
Part 836.22 of Schedule 2 to the Regulations set out the criteria, to be satisfied at the time of decision, for the grant of a carer visa.
As at 11 December 2013, cl 836.221 of Schedule 2 to the Regulations required Mr Gorgees to be “a carer of a person referred to in clause 836.212”. Clause 836.212, being a criterion that had to be satisfied at the time of application, required Mr Gorgees to “clai[m] to be the carer of an Australian relative”. An “Australian relative”, in turn, was defined in clause 836.111 as “a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen”.
Regulation 1.03 provided that “carer” had the meaning given by regulation 1.15AA. At all material times, regulation 1.15AA(1) relevantly provided 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, 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 by Gazette Notice for this paragraph; 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) …
Despite the word “or” separating them, regulations 1.15AA(1)(e)(i) and (ii) are conjunctive, in the sense that they are “concurrent (and, if necessary, combined) fields of enquiry”[9] and the decision-maker “must be satisfied that assistance is not reasonably available from either source – i.e. relatives or external services”.[10]
[9] Nguyen v Minister for Immigration [2016] FCA 688 at [31] per Buchanan J
[10]Nguyen at [32] per Buchanan J
The “assistance” to which reference is made in regulation 1.15AA(1)(e) is the assistance described in regulation 1.15AA(1)(b)(iv), being the person’s need for direct assistance in attending to practical aspects of daily life because of a medical condition.[11] Read in this way, regulation 1.15AA(1)(e)(i) will be met if the assistance that the relevant person requires in attending to practical aspects of daily life because of his or her medical condition cannot reasonably be provided by a relative of the person who is an Australian citizen, Australian permanent resident or eligible New Zealand citizen.
[11] El-Chahini v Minister for Immigration [2018] FCA 202 at [4] per Jagot J; Valencia v Minister for Immigration [2019] FCA 397 at [9] per Perram J
Tribunal’s reasons
The Tribunal accepted that the requirements of regulations 1.15AA(1)(a), (b), (ba) and (c) had been met.[12] In particular, the Tribunal found that the Certificate “attested to the fact that the sponsor had a medical condition that was causing physical impairment of the ability of the sponsor to attend to the practical aspects of daily life”, that such condition “will continue for at least 2 years” and that, accordingly, there was “a need for direct assistance in attending to the practical aspects of daily life”.[13]
[12] CB 430-431 [7]-[14]
[13] CB 431 [10]-[11]
At [14],[14] the Tribunal “acknowledge[d] the other medical evidence that ha[d] been submitted with the application and to the Tribunal concerning the sponsor’s condition” and “accept[ed] that the sponsor ha[d] medical needs that cause[d] her to require assistance”. Such evidence included the examining medical adviser’s report.[15]
[14] CB 431
[15] CB 48-52
The Tribunal was not satisfied, however, that Mr Gorgees satisfied the requirements of regulation 1.15AA(1)(e)(i). After considering the evidence given by, and on behalf of, Mr Gorgees and making findings as to whether assistance could reasonably be provided to his mother by her other relatives in Australia,[16] the Tribunal reached the following conclusions:[17]
The Tribunal generally found the applicant to be a truthful witness, but considers his evidence inadequate with respect to the assistance from other relatives. The Tribunal accepts his evidence that his siblings have work and family commitments and cannot provide full-time care to their mother. The Tribunal also accepts that one of the children resides in Melbourne and cannot contribute to the assistance required. The Tribunal is prepared to accept that the adult grandchildren have some commitments, although there is minimal information before the Tribunal about their commitment and willingness to care. The Tribunal is not satisfied on the evidence before it that at least some of the sponsor’s children, as well as her adult grandchildren, cannot contribute to her care, despite their various commitments. The Tribunal is mindful that all but one of the sponsor’s children live in Sydney, where the sponsor also resides and it appears that her grandchildren also live in Sydney. The applicant has not satisfied the Tribunal that there are any geographical restrictions to the provision of care.
The Tribunal also acknowledges the applicant’s evidence that the others are either unwilling to provide the care or that his mother prefers that the care be provided by him. There is little or no evidence before the Tribunal to confirm the applicant’s claim that the other children and, in particular, grandchildren, are unwilling to contribute to the care required. Further, the Tribunal does not consider that the sponsor’s preference to be cared for by the applicant and not other relatives is a barrier to the assistance being provided by such relatives.
It is not necessary for the Tribunal to determine precisely how each of the relatives can contribute to the care of the sponsor and how such relatives can collectively provide the assistance required. It is not possible for the Tribunal to do so, given very limited, or non-existent, evidence concerning some of the relatives, such as the sponsor’s adult grandchildren.
Overall, the Tribunal has formed the view that inadequate evidence has been presented with respect to the assistance that can be provided by relatives. On such evidence, the Tribunal is not satisfied that the requisite assistance cannot reasonably be provided by any other relative of the sponsor, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The Tribunal is not satisfied that the requirements of regulation 1.15A(1)(e) are met. It is not necessary for the Tribunal to consider whether assistance can be obtained from other sources.
[16] at CB 432-433 [17]-[26]
[17] at CB 433-434 [29]-[32]
The present proceedings
These proceedings began with a show cause application filed on 29 July 2019. There are two particularised grounds in that application which are:
1. Member did not consider my statement regarding why I applied for a carer visa.
2. Member did not take into account the multiple factors affecting by siblings’ busy lives.
The matter came before me for a show cause hearing on 30 January 2020. At that time, having heard Mr Gorgees orally, I formed the view that there was an issue meriting a final hearing separate from his grounds of review. I ordered the Minister to show cause why relief should not be granted in relation to whether the Tribunal gave proper genuine and realistic consideration to the evidence provided by Mr Gorgees on the question of the willingness and capacity of other family members to provide the assistance to his mother as she requires.
I heard the matter today on a final basis. In addition to the court book filed on 3 October 2019, I have before me as evidence the affidavit of Michelle Anne Harradine made on 18 May 2020. Attached to Ms Harradine’s affidavit is a transcript of the Tribunal hearing which took place on 9 May 2019.
At the show cause hearing, I had marked for identification[18] documents from the Liverpool Hospital detailing Mr Gorgees’ mother’s attendance there with a broken wrist in 2019.
[18] MFI A1
Mr Gorgees has filed four additional affidavits from persons supportive of his role as a carer for his mother. All of those affidavits were only made recently and could not have been considered by the Tribunal. I marked them for identification.[19]
[19] MFI A2
I invited oral submissions from Mr Gorgees this afternoon. His submissions addressed in detail the circumstances of his mother and the family dynamics within which he and she have to operate. I accept that Mr Gorgees is dedicated to the care of his mother. He submits that his mother’s state of health has improved under his care. His explanation of the family dynamics paints a picture of persons who are not entirely supportive or welcoming of Mr Gorgees’ role. It does not appear that these rather complex family dynamics were addressed in detail in Mr Gorgees’ submissions to the Tribunal. Only the position of his sister Helen was addressed in any detail.
I accept from the transcript that the Tribunal engaged as best it could in the detail of the circumstances of Mr Gorgees and his mother. The decision of the Tribunal, while brief, indicates that the Tribunal addressed the material provided to it.
I am persuaded that the Tribunal gave genuine, reasonable and proper consideration to the case before it. I agree in that regard with the submissions filed on behalf of the Minister on 21 July 2020.
The Tribunal considered (in the requisite sense) the evidence given by Mr Gorgees in relation to the question posed by regulation 1.15AA(1)(e)(i), namely, whether the assistance “cannot reasonably be … provided by any other relative of the resident”.
It is important to note that this provision is not concerned with the willingness of a relative of the resident to provide the assistance referred to in regulation 1.15AA(1)(b)(iv). Prior to 9 November 2009,[20] regulation 1.15AA(1)(e)(i) stated that “the assistance cannot reasonably be obtained” from a relative of the person in need of care. Whether assistance cannot reasonably be obtained from a relative is a different question from whether assistance cannot reasonably be provided by a relative. As Bromwich J observed in Nguyen v Minister for Immigration[21] at [50]:[22]
The net effect of paragraph (e) as it existed in the previous format relying on the term ‘obtained’ is that it was previously open to family members in Australia, although perfectly capable of reasonably providing assistance, to decline or refuse to do so. If so, it could not be said that such assistance could reasonably be ‘obtained’.
[20] Being the commencement of items 2-3 of Schedule 3 to the Migration Amendment Regulations 2009 (No 13) (Cth)
[21] [2016] FCA 1460
[22] See also Issa v Minister for Immigration [2000] FCA 128 at [12]-[13] per Madgwick J; Rafiq v Minister for Immigration [2004] FCA 564 at [10]-[12] per Finn J; Naidu v Minister for Immigration (2004) 140 FCR 284 at 292 [17] per Ryan J
In its current form, regulation 1.15AA(1)(e)(i) permits a decision-maker to determine that “assistance could reasonably be provided by relatives residing in Australia even in circumstances where those relatives residing in Australia claim to be unwilling or unable to provide assistance.”[23] That was appreciated by the Tribunal in the final sentence in [30] of its reasons.[24]
[23] Nguyen at [51] per Bromwich J, referring to the Explanatory Statement to the Migration Amendment Regulations 2009 (No 13) (Cth).
[24] CB 434
Turning to the question raised by the Court, the Tribunal had before it limited evidence going to the question whether the assistance required by Mr Gorgees’ mother cannot reasonably be provided by his relatives. There were statutory declarations made by those relatives during the visa application and merits review processes, but most were short and the evidence was imprecise.[25] Mr Gorgees had also made written statements in relation to the issue[26] and gave evidence at a hearing before the Tribunal on 9 May 2019.[27]
[25] CB 35-37, 166-168, 255-256, 260-261, 265-266, 319-320, 417, 419, 422, 424.
[26] CB 73 and 235 [26]-[28] (his siblings), 316-318 (some of his nephews and nieces).
[27] See affidavit Ms Harradine affirmed on 18 May 2020, annexing a copy of the transcript of the hearing
The Tribunal had regard to the statutory declarations made by the relatives (both their original and “updated” declarations),[28] Mr Gorgees’ written statements[29] and Mr Gorgees’ oral evidence as to the ability of the relatives to provide the requisite assistance.[30] Mr Gorgees’ oral evidence was not different in substance from the evidence given by his relatives in their statutory declarations. Mr Gorgees’ siblings did not appear before the Tribunal and so it was “unable to test their evidence”.[31] Nevertheless, the Tribunal considered their (and their adult children’s) circumstances and made the following findings:
a)it accepted that Mr Gorgees’ sister who resides in Melbourne cannot reasonably provide assistance;[32]
b)it accepted that Mr Gorgees’ other sister, Helen, cannot provide “extensive care” on account of her health condition;[33]
c)it was not persuaded that Mr Gorgees’ brother, Youhanan, cannot reasonably provide assistance in circumstances where his children “do not require continuous supervision” (given their age) and he “appear[ed] to be available at least some time during the day”;[34]
d)it was not persuaded that Mr Gorgees’ brother, Steve, cannot reasonably provide assistance “given the support from his wife in caring for the[ir] children”;[35]
e)it was “prepared to accept that the adult grandchildren have some commitments” but observed that there was “minimal information before [it] about their commitment and willingness to care”.[36] That was a reasonable observation to make given the dearth of evidence going to their circumstances.[37] However, the Tribunal was not satisfied that “at least some of the [applicant’s mother]’s children as well as her adult grandchildren, cannot contribute to her care, despite their various commitments”.[38]
[28] CB 432 [17]
[29] CB 432 [18]
[30] CB 432-433 [19]-[25]
[31] CB 432 [17]
[32] at [20]
[33] at [23]
[34] at [21]
[35] at [22]
[36] at [29]
[37] CB 255 [6], 260 [5.2] (sic), 265 [5.5], 316-320, 417, 419, 422, 424.
[38] at [29]
The Tribunal’s reasons evince proper, genuine and realistic consideration of the evidence provided by Mr Gorgees as to whether his relatives cannot reasonably provide assistance to his mother. Though there is no suggestion that it fell into jurisdictional error by doing so, proper consideration of Mr Gorgees’ case did not call for the identification of each item of evidence that was before it.[39] In any event, the Tribunal effectively did so in its reasons at [19]-[25].[40] Every material contention was identified and addressed.
[39] ETA067 v Republic of Nauru (2018) 92 ALJR 1003 at 1006 [13] per Bell, Keane and Gordon JJ
[40] CB 432-433
At the hearing on 30 January 2020, I raised a question as to whether the Tribunal’s finding, at [29],[41] that it “generally found the applicant to be a truthful witness” could be reconciled with its having concluded that the evidence that it received was “inadequate with respect to the assistance from other relatives”. For the following reasons, the latter can be reconciled with the former.
[41] CB 433
The Tribunal can rationally find that an applicant has been truthful in the evidence that he or she has given to it yet not be satisfied that that evidence meets a precondition to the grant of a visa. That is what occurred in the present case. The Tribunal accepted that the circumstances of Mr Gorgees’ siblings were as he had described[42] but it was not satisfied that the evidence met the threshold in regulation 1.15AA(1)(e)(i). That provision, it should be noted, is “cast in the negative”.[43] Its requirements will not be met unless a review applicant puts forward material[44] sufficient to cause the Tribunal to be satisfied that assistance cannot reasonably be provided by relatives of the person in need of it. The evidence in the present case was such that the Tribunal was not so satisfied.
[42] CB 432-433 [20]-[23]
[43] Valencia at [10] per Perram J
[44] Abebe v Commonwealth (1999) 197 CLR 510 at 576 [187] per Gummow and Hayne JJ
To the extent that the grounds in the show cause application have any continuing relevance, they are adequately dealt with in the Minister’s submissions.
As to the first ground, the Tribunal had regard to Mr Gorgees’ statement dated 13 March 2019[45] at [18].[46] That statement dealt with the nature of the assistance that Mr Gorgees would provide, his capacity to do so and the various commitments of his siblings. Ultimately, it was the reasonableness of the provision of assistance by Mr Gorgees’ mother’s other children and grandchildren that counted against Mr Gorgees. To that extent, therefore, Mr Gorgees’ willingness and ability to provide the assistance required by his mother, being factors which regulation 1.15AA(1)(f) required him to satisfy, were not relevant to the Tribunal’s decision. As discussed below, the Tribunal did, however, proceed to consider the circumstances of Mr Gorgees’ mother’s other children and her grandchildren.
[45] see CB 231-239
[46] CB 432
The second ground cannot be maintained because the Tribunal took into account the evidence in relation to Mr Gorgees’ mother’s children, but was not satisfied that the assistance that she required cannot reasonably be provided by them.
At [20],[47] the Tribunal considered the circumstances of Mr Gorgees’ Melbourne-based sister and accepted that, “given the distance, assistance cannot reasonably be obtained from this relative”.
[47] CB 432
At [21],[48] the Tribunal had regard to the circumstances of Mr Gorgees’ brother, Youhanan, and found that, while he worked at night and had three children, given their ages, they did not require “continuous supervision”. The Tribunal referred to his hours of employment and accepted that he had work commitments but did not accept Mr Gorgees’ evidence that he refused to help. Indeed, Mr Gorgees had stated that he provided care for his mother with his brother, Youhanan, “constantly 7 days a week from early morning”.[49] The Tribunal acknowledged that this sibling worked at night, but found that he was available “at least some time during the day”.
[48] CB 432
[49] CB 73
As to Mr Gorgees’ brother, Steve, the Tribunal referred to his work as a truck driver, his hours of employment and the fact that he looked after his three children. The Tribunal accepted that this sibling had “family and work commitments”, but was not satisfied that he cannot contribute towards his mother’s care “given the support from his wife in caring for the children”.[50]
[50] CB 432 [22]
The Tribunal went on to consider the circumstances of Mr Gorgees’ sister, Helen, at [23].[51] It referred to Mr Gorgees’ evidence that she “d[id] not get along with her mother” and that he had a health condition. It accepted that, “due to her own health condition, [she] cannot provide extensive care”. However, it found that “some types of care – for example, cooking, driving to appointments, etc – may still be reasonably obtained”.
[51] CB 433
At [29],[52] the Tribunal accepted Mr Gorgees’ evidence that his siblings “have work and family commitments and cannot provide full-time care to their mother”, but considered his evidence to be inadequate with respect to the assistance that could reasonably be provided by his mother’s other relatives. A similar finding was made in the first sentence in [32].
[52] CB 433
At [29],[53] the Tribunal took into account the fact that there was no evidence to suggest that there were geographical restrictions to the provision of care. In this connection, unlike El-Chahini, the Tribunal in the present case made no finding to the effect that assistance could reasonably be provided by Mr Gorgees’ mother’s relatives if she left her place of habitual residence.
[53] CB 434
The Minister’s submissions also address other matters with which I agree.
The Tribunal’s findings at [31][54] are consistent with authority. As Buchanan J observed in Nguyen at [40]:[55]
… [I]t was not necessary … for the AAT to specify how the appellant’s needs might precisely be met by the family members already in Australia. Those are, ultimately, decisions for the family itself as the AAT clearly recognised. The AAT’s task (in this particular respect) was to make an assessment of the matters referred to in reg 1.15AA(1)(e), namely whether the appellant’s need for direct assistance in attending to the practical aspects of daily life could reasonably be provided by relatives in Australia or obtained from appropriate services available to her. Completion of the task did not require the degree of prescriptive detail and particularly which Ground 5 suggests. Nor was it a jurisdictional error not to specify, in greater detail, how each family member might be able or expected to contribute, in order for the AAT to conclude that it was not satisfied that the visa condition had been met.
[54] CB 434
[55] See also Rasla v Minister for Immigration [2016] FCA 1575 at [21] per McKerracher J
Similarly, in Valencia,[56] Perram J observed, at [11], that the Tribunal:
is not obliged to work out a detailed analysis of … how a patchwork of familial or privately contracted care might combine to provide the required care” and that that had the effect “of requiring the visa applicant to disprove a large range of potential scenarios involving the hypothetical assistance of the person to whom care is to be given.
[56] [2019] FCA 397
In the present case, the Tribunal was cognisant of the care required by Mr Gorgees’ mother, having referred to the Certificate at [10]-[11][57] and, at [14],[58] the evidence which went to her “medical condition” and “medical needs that cause[d] her to require assistance”. However, there was simply insufficient evidence presented by Mr Gorgees to satisfy the Tribunal that the requisite assistance cannot reasonably be provided by other relatives of his mother.
[57] CB 431
[58] CB 431
It is a pity that Mr Gorgees was not able to develop for the Tribunal the detailed picture he was able to paint for me. It is open to him to make a submission to the Minister seeking a more favourable decision. That submission could address in greater detail the support in fact provided by Mr Gorgees. It could also address the family dynamics at play and the difficulties Mr Gorgees would face in attempting to put together a patchwork of family support for his mother. It could also address the undesirability of a patchwork of family support during the COVID-19 pandemic. That is a matter for him. It is beyond the scope of this proceeding.
I conclude that Mr Gorgees is unable to demonstrate 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.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,467 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 12 August 2020
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