Hon Anh Vuong v MIAC
[2013] FCCA 274
•14 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HON ANH VUONG v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 274 |
| Catchwords: MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether Migration Review Tribunal properly considered the reasons given by the review applicant as to why assistance could not reasonably be obtained from welfare, hospital, nursing or community services in Australia – whether review applicant’s daughter, being the primary visa applicant, is a ‘carer’ as defined in regulation 1.15AA of the Migration Regulations 1994 (Cth) – no jurisdictional error – application dismissed. |
| Legislation: Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.474, Pt.8 Migration Regulations 2004 (Cth), regs.1.15AA , 116.211, 116.221, Schedule 2 |
| Cases cited: Naidu v Minister for Immigration and Multicultural Affairs (2004) 140 FCR 284; Lin & Anor v The Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2004) 136 FCR 556 Biyiksiz v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 814 |
| Applicant: | HON ANH VOUNG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2301 of 2012 |
| Judgment of: | Judge Emmett |
| Hearing date: | 23 April 2013 |
| Date of Last Submission: | 23 April 2013 |
| Delivered at: | Sydney |
| Delivered on: | 14 May 2013 |
REPRESENTATION
| Counsel for the Applicant: | Nicolas Poynder |
| Solicitors for the Applicant: | Kevin Trinh Lawyers |
| Counsel for the Respondents: | David Hughes |
| Solicitors for the Respondents: | Clayton Utz |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2301 of 2012
| HON ANH VUONG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 12 December 2012 and handed down on 13 December 2012 (“the MRT”).
The review applicant is the Australian citizen sponsor of his daughter and grandson, the visa applicants, in their application to migrate from Vietnam to Australia under Other Family (Migrant) (Class BO) visas, subclass 116.
The review applicant is an elderly male who has suffered several strokes since 1992. He has ten children, eight of whom live in Australia and two who live in Vietnam. The review applicant lives with his wife and three of his children.
One of the review applicant’s daughters, being one of the two visa applicants, resides in Vietnam and is a citizen of Vietnam. On 16 March 2009, the visa applicants applied to the Department of Immigration and Citizenship for Other Family (Migrant) (Class BO) visas on the basis that the daughter would be the review applicant’s carer.
On 15 March 2010, the Delegate refused to grant the visas.
On 7 April 2010, the review applicant lodged an application for review of the Delegate’s decision by the Migration Review Tribunal.
On 2 September 2012, the MRT affirmed the decision of the Delegate not to grant the visas.
On 16 October 2012, the review applicant filed an application in this Court seeking judicial review of the MRT’s decision.
Legislative framework
At the time the visa applications were lodged the Other Family (Migrant) Class BO visa contained, relevantly, subclass 116 (carer). Relevantly, the carer visa permits an Australian citizen who has a medical condition requiring a need for direct assistance to attend to practical aspects of daily life to sponsor a relative to provide the care needed.
The primary criteria to be satisfied at the time of application are that the visa applicant must be a “carer of an Australian relative of the visa applicant” (see clause 116.211(1) of the Migration Regulations 1994 (Cth) (“the Regulations”)); and the visa applicant must be sponsored at the time of application by the Australian relative (see cl.116.212 of the Regulations).
It is common ground that the review applicant is an “Australian relative” of the visa applicant’s daughter as defined in reg.1.03 of the Migration Regulations.
“Carer” is defined in reg. 1.15AA of the Regulations 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
(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 added)
The Daughter’s application for a Other Family (Migrant) (Class BO) visa
In support of her application for a Other Family (Migrant) (Class BO), the daughter made the following submissions:
a)The review applicant is substantially impaired. He is in need of significant assistance in attending to the daily aspects of life, and in this regard needs to be provided with care on a full time basis.
b)The review applicant’s spouse is also in frail health and cannot provide the needed care to the sponsor.
c)All of the review applicant’s children reside in Australia and cannot provide the review applicant with the necessary care, as each of them has full time family and/or work commitments.
d)The daughter is a suitable person who can provide the review applicant with the care he needs. She also holds a certificate in health care, making her highly suitable to look after the needs of the review applicant.
The daughter provided a letter with her application in which she stated the following:
a)Her father is in very poor health and needs continuous attention.
b)Her brothers and sisters in Australia are unable to care for their father or mother due to their work commitments.
c)She can assist her father with feeding him, personal hygiene needs, movement around the house and his medication.
d)There are language barriers for her father which makes it difficult to find an appropriate care provider.
e)She is the person who can provide the most effective care to her father. She can satisfy her father’s care needs as she has attended a health care course which specialises in caring for the elderly.
The Delegate’s decision
On 15 March 2010, the Delegate refused the daughter’s application for a carer’s visa on the basis that the she did not meet the criteria in regs.116.211 and 116.221 of the Regulations.
The Delegate was not satisfied that assistance for the review applicant could not reasonably be obtained from his relatives in Australia and other community and welfare services.
The MRT’s review and decision
On 7 April 2010, the review applicant lodged an application for review of the Delegate’s decision by the MRT.
On 27 February 2012, the MRT wrote to the review applicant informing him that the MRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the review applicant to attend a hearing on 3 April 2012 to give oral evidence and present arguments.
On 3 April 2012, the review applicant attended the MRT hearing and gave evidence.
The MRT noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The decision of the MRT is accurately summarised by the solicitor for the First Respondent in his written submissions as follows:
“11. The Tribunal considered, first, the ability of the applicant’s children in Australia to provide the assistance required. It found that some of the applicant’s needs were met by his children, in particular personal care, general supervision, feeding, and preparing some meals: [95].
12. The Tribunal then considered whether assistance could reasonably be obtained from welfare, hospital, nursing, or community services in Australia. The Tribunal had regard to the services that were available. The available services were discussed with the applicant at the hearing. The applicant had not approached any of these services, nor had anyone done so on his behalf. The only assistance accepted by the applicant was cleaning: [98].
13. The Tribunal’s consideration of the evidence discloses a number of reasons why such assistance was not sought. The applicant’s wife said that the applicant “did not like strangers coming into the home”: [40]. His son gave evidence to similar effect: [47]. The Tribunal asked the applicant why this was. His response is recorded at [48]. He said that strangers are different from children. He wanted the Visa Applicant to care for him because he likes her. The applicant’s representative argued that the reasons were “cultural”: [53].
14. The Tribunal… gave consideration to the applicant’s cultural situation. It noted the NSW Government’s Home Care services and understood the need to develop an understanding toward clients from cultural and linguistically diverse backgrounds. It noted that this service took steps to ensure that appropriate assistance would be provided, including an interpreter: [47] (bullet point 5). The Tribunal also noted that Meals on Wheels NSW works to meet clients’ individual needs, including differences in culture and diet: [61]-[62]. Those considerations were expressly referred to in the decisions and reasons: [101].
15. Ultimately, however, the Tribunal was not satisfied that there was any cultural impediment to the applicant obtaining care. The Tribunal noted that the applicant had accepted cleaning assistance from persons outside his family.
16. Therefore, the Tribunal found that it was not satisfied of the requirement of reg.1.15AA(1)(e). Accordingly, it affirmed the decision not to grant the visa.”
The proceeding before this Court
The review applicant was represented before this Court by Mr Poynder, of counsel.
At the commencement of the hearing, counsel for the review applicant, Mr Poynder, confirmed that the review applicant relied on the ground contained in the application filed on 16 October 2012. That ground is as follows:
“In making a decision to affirm the first respondent’s refusal of a subclass 116 Carer visa, the second respondent failed to take into account a relevant consideration.
Particulars
1. The applicant sought to sponsor a non-citizen for a subclass 116 Carer visa based on the grounds that the non-citizen was the “carer” of the applicant within the meaning of reg.1.15AA of the Migration Regulations 1994 (the regulations).
2. The applicant claimed that the assistance he sought from the non citizen could not be reasonably obtained from any other relative ort from welfare, hospital, nursing or community services in Australia in accordance with reg. 1.15AA(e) of the regulations.
3. The applicant claimed that for personal and cultural reasons he was unable to obtain assistance from welfare, hospital , nursing or community services in Australia.
4. the second respondent at [99] of its decision considered that the personal and cultural reasons referred to by the applicant were not a relevant consideration in whether such services can reasonably be obtained from welfare, hospital, nursing or community services in Australia, thereby failing to take this into account. ”
Relevantly, the review applicant relies on reg.1.15AA(1)(e) of the Regulations as the relevant criterion. As stated above, reg.1.15AA(1)(e) is 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:
…
(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 ..”
The finding upon which the review applicant relies as a misapplication of the law is contained in the following paragraph of the MRT:
“The review applicant has refused to have any other care in his home, as he does not want strangers involved. The review applicant’s representative has indicated a cultural basis for this; however this was not elaborated and there is no information to indicate that this is the case here. The review applicant simply stated that he preferred his children caring for him to strangers doing so. Further, he accepts some-one in the home to clean. The Tribunal is of the view that this is a matter of personal preference only which has led to the review applicant’s refusal to accept services which could assist him. This is not a relevant consideration in whether the services can reasonably be obtained. The review applicant said that he would prefer to have his daughter care for him, as he likes her. The Tribunal is of the view that this personal preference is not a barrier to the review applicant obtaining assistance from welfare, hospital, nursing or community services in Australia.” (emphasis added)
Mr Poynder, tendered a transcript of the MRT hearing in support of the application. Mr Poynder submitted that in his evidence to the MRT, the review applicant made clear that he did not wish to have a stranger in his house caring for him and that he wished to have his daughter care for him because he liked her. Mr Poynder submitted that the MRT failed to consider this reason given by the review applicant in considering whether welfare services could reasonably be obtained for the review applicant.
What is also clear from the transcript, is that the review applicant gave no further reason as to why he did not like strangers in his home. Without any further explanation, it was open to the MRT to find that it was a matter of personal preference only which led the review applicant to refuse to accept services which could assist him.
In finding that “this is not a relevant consideration in whether the services can reasonably be obtained”, a fair reading of the MRT’s decision record makes clear that the MRT was not intending to say that the review applicant’s reasons for not wishing to have external help could not be relevant. Rather, that in the circumstances of this case, the review applicant’s unexplained personal preference was not capable of being evaluated further and therefore, without more, could not be a relevant consideration in determining whether welfare services could reasonably be obtained for the review applicant.
The review applicant’s wish to have his daughter was a matter that is required by the Regulations, and, by itself, cannot demonstrate that the review applicant meets the criteria in reg.1.15AA(1)(e) of the Regulations.
A fair reading of the MRT’s decision record makes clear that it considered whether the welfare services could reasonably be obtained from the point of view of the review applicant. That perspective is addressed by the MRT in relation to “reasonable obtainability” which is the touchstone (See Naidu v Minister for Immigration and Multicultural Affairs (2004) 140 FCR 284 at 293 per Ryan J).
Courts have held that sometimes a preference by an applicant cannot affect the reasonable obtainability, although cultural reasons can be relevant. In Lin & Anor v The Minister for Immigration and Multicultural and Indigenous Affairs and Another (2004) 136 FCR 556, Branson J at 564 held that held that because the nursing home care did not provide Chinese food for an applicant who had that cultural preference, the availability of Chinese food was an issue of apparent significance to the applicant and one that the Migration Review Tribunal was required to address.
That is not the circumstance in this case.
The review applicant has done no more than say he does not want strangers in his house and would prefer his daughter to look after him. As stated above, there is no further explanation given by the review applicant that would have required the MRT to consider further the review applicant’s expressed personal preference not to have strangers in the house.
I accept the distinction drawn by counsel for the first respondent, Mr Hughes, that a mere preference should be distinguished from a cultural reason. The review applicant’s mere preference is not a barrier to the Applicant obtaining welfare assistance and therefore is not a matter that the MRT was required to consider further (Biyiksiz v The Ministerfor Immigration and Multicultural and Indigenous Affairs [2004] FCA 814 at [21], [23] per Gray J).
The MRT specifically referred to whether the review applicant could receive culturally and personally appropriate meals and found that many organisations provide assistance through workers who speak other languages and therefore there would not be a language barrier.
The MRT found that it was not necessary for it to decide whether the daughter is willing and able to provide assistance as the MRT had found that the assistance could not reasonably be obtained from one or more Australian sources.
In the circumstances, the MRT concluded that the daughter is not a “carer” of an Australian relative, being the review applicant, and therefore does not satisfy cl.116.221 of the Regulations. The MRT also considered the other visas subclasses of the Visa class sought and found that there was no material which would permit a finding that the prescribed criteria were met.
The MRT concluded that the primary visa applicant, being the daughter, does not satisfy the requirements of cl.116.221 of the Regulations. The MRT is not satisfied that the review applicant cannot reasonably obtain assistance from any other relative, being an Australian citizen, or from welfare services in Australia and therefore does not meet the requirements of reg.1.15AA (1)(e) of the Regulations.
The MRT’s findings were open to it on the evidence and material before it and for the reasons it gave. Accordingly the ground of the application is not made out.
Conclusion
A fair reading of the MRT’s decision record makes clear that the MRT understood the claims being made by the review applicant and the primary visa applicant; explored those claims with the review applicant, his legal representative, the review applicant’s wife and the review applicant’s son at a hearing; and, had regard to all material provided in support. The MRT put to the review applicant and his witnesses matters of concern it had about their evidence and accurately noted the responses in its decision record. The MRT then made findings based on the evidence and material before it. Those findings of fact were open to the MRT on the evidence and material before it and for the reasons it gave. A fair reading of the MRT’s decision record makes clear that the MRT reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the MRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The MRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 14 May 2013
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