Huynh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 248
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Huynh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 248
File number(s): SYG 2151 of 2016 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 8 April 2022 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision not to grant a Carer visa – whether Tribunal failed to comply with s 359A of the Act – whether Tribunal failed to deal with claims or evidence – no jurisdictional error. Legislation: Migration Act 1958 (Cth) ss 57(1), 359A, 424A, 476
Migration Regulations 1994 (Cth) regs 1.15AA(1), 1.15AA(2), Sch 2, cls, 836.111, 836.212, 836.213, 836.221
Cases cited: Biyiksiz v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 814
Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149
Minister for Immigration and Citizenship v SZHXF [2008] FCAFC 36
Minister for Immigration and Citizenship v SZLFX [2009] HCA 31
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 174
Springs v Minister for Immigration & Anor [2020] FCCA 371
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZVCZ v Minister for Immigration and Border Protection [2017] FCAFC 130
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123
Division: General Number of paragraphs: 69 Date of hearing: 10 September 2021 Place: Sydney Counsel for the Applicant: Ms T Baw, by video Solicitor for the Applicant: HTT Law Firm Counsel for the First Respondent: Mr G Johnson, by video Solicitor for the First Respondent: Mills Oakley ORDERS
SYG 2151 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KIEN ANH HUYNH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
8 APRIL 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs set in the amount of $7,853.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The applicant, a national of Vietnam, applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant an Other Family (Residence) (Class BU) visa (Carer visa).
BACKGROUND
To have been entitled to a Carer visa the applicant was required to satisfy the requirements of Subclass 836 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[1] Clause 836.221 requires that the applicant “is a carer of a person referred to in clause 836.212”. Clause 836.212 of Schedule 2 to the Regulations requires that the applicant “claims to be the carer of an Australian relative”. “Australian relative” is defined in cl 836.111 to mean “a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen”. Clause 836.213 requires that an applicant for a Carer visa is sponsored by the relative. The applicant claims that he is the carer of his father (Sponsor), the Sponsor is an “Australian resident”, and the applicant is sponsored by the Sponsor.
[1] Although I use the present tense, the Regulations that are relevant to this proceeding are those that applied on 15 January 2014 when the applicant lodged his application for a Carer visa.
Subregulation 1.15AA(1) of the Regulations provides that an applicant for a Carer visa is a carer of (among others) a person who is an Australian permanent resident (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.
The applicant supported his application for a Carer visa with a “Carer Visa Assessment Certificate” (Certificate) dated 2 January 2014, being a certificate of the sort required by reg 1.15AA(1)(b) and reg 1.15AA(2) of the Regulations. The Certificate certified the Sponsor has an impairment rating of 50 points; a medical condition that is causing physical, intellectual, or sensory impairment of the ability of the Sponsor 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, because of the medical condition, the need for direct assistance in attending to the practical aspects of daily life that will continue for at least 2 years.[2] The Certificate was based on the following matters stated in the medical adviser’s report attached to the Certificate:[3]
(a)The applicant is the Sponsor’s current carer.
(b)The Sponsor was diagnosed with dementia “3 years ago”, and his family reported a more significant deterioration after the Sponsor experienced a subdural haemorrhage in the middle of 2013.
(c)The applicant reported the Sponsor first suffered a stroke in April 2013, causing left sided hemiparesis and sensory loss. After undergoing two surgeries in August and October 2013 to treat the Sponsor’s right parietal subdural haemorrhage, residual neurobiological loss remained with left sided hemiparesis and sensory disturbance. The Sponsor’s gait remained unsteady, and mobility support was required. The Sponsor also has a tremor in his right hand which affects his manual dexterity.
(d)The Sponsor has moderate symptoms of depression and post-traumatic stress disorder.
(e)Nocturnal urinary incontinence was reported, although incontinence aids are not used. The applicant will change the Sponsor’s clothing and bedding as required.
[2] CB451
[3] CB453
EVIDENCE GIVEN BY APPLICANT AND SPONSOR
The Tribunal set out the evidence the applicant had given. This included the following:
(a)The Sponsor had spent only a few months in Australia at the time the applicant applied for a Carer visa.[4]
[4] CB867, [7]
(b)The applicant has three family members in Australia – his mother, and two younger sisters. The applicant’s mother has her own health issues. She is not able to walk properly; she has a back problem, and is nervous and upset about the Sponsor’s health problems.[5]
(c)The Sponsor went back to Vietnam initially to get the applicant to look after him. In July 2013 the Sponsor fell and was found to have suffered a stroke. The Sponsor was transferred to Ho Chi Minh City where he had an operation. The applicant then looked after the Sponsor, but the Sponsor had another stroke, and he had to undergo further surgery.[6]
(d)The applicant and his family arranged for the Sponsor to return to Australia. The applicant was granted a bridging visa to accompany the Sponsor. Since his arrival, the applicant has been looking after the Sponsor, day and night. The applicant looked for community care, but there was nothing available for 24 hour care, as was required, because the Sponsor needs to be monitored to ensure he does not have any further falls.[7]
(e)The Sponsor’s older daughter is busy with her commercial interests as well as having two school age children. The Sponsor’s younger daughter is divorced with two small children whom she spends most of her time looking after.[8]
(f)The applicant enrolled the Sponsor at various nursing homes but the Sponsor would not want to go, and would refuse because he does not speak English. The applicant cannot, because of his residential status, make enquiries regarding care that could accommodate the Sponsor’s language, and he asked the Sponsor’s younger daughter to make enquiries when she has time.[9]
(g)The Sponsor visited Vietnam with his younger daughter to obtain herbal medicine. The applicant did not accompany the Sponsor because he only held a bridging visa.[10]
(h)The Sponsor’s younger daughter was unable to stay overnight with the Sponsor because of her young children.[11]
(i)The Sponsor lives at the home of the Sponsor’s older daughter, her husband and children, and the Sponsor’s wife. The children are aged 12 and 6.[12]
(j)The applicant sleeps in the Sponsor’s room because the Sponsor is afraid he will have another stroke, and no one will be there. The applicant helps the Sponsor to the toilet a couple of times a night, with showering, with dressing and undressing, and with food. In reality, all the Sponsor can do is sit around or watch movies or read.[13]
(k)The applicant does not have a partner or children; and, for that reason, he could dedicate all his time to the Sponsor.[14]
[5] CB867, [8]
[6] CB867, [8]
[7] CB867-868, [9]
[8] CB868, [12]
[9] CB868, [13]
[10] CB868, [14]
[11] CB868, [14]
[12] CB868, [15]
[13] CB871, [37]
[14] CB869, [20]
The Tribunal also set out the Sponsor’s evidence, which included the following:
(a)The Sponsor lives with his older daughter, her husband and two children, and the applicant. The Sponsor’s wife usually lives with the Sponsor, but she was in Vietnam receiving treatment for arthritis and bone deterioration. The Sponsor’s wife prefers treatment with herbal medicine. She has received acupuncture and other treatments in Australia. The Sponsor’s wife has arthritis in her knee, pain in her spine, and difficulty walking.[15]
(b)The Sponsor last went to Vietnam for 20 days with his younger daughter to pick up herbal medicine. When asked to comment on the delegate’s finding that the Sponsor was not settled in Australia, the Sponsor said he was forced to undergo two operations for blood clots in Vietnam and, for that reason, he had to stay longer.[16]
(c)The Sponsor said there was no one else in Australia who could look after him. “[H]is daughter” is busy with work, and she and her husband have to pay for their house as well as take their children to school. The applicant is responsible for the Sponsor from the morning. The applicant gives the Sponsor breakfast, medication, lunch; he takes the Sponsor for a shower; and he takes the Sponsor to bed at night, and assists during the night with the toilet. The Sponsor has applied to many institutions that have assessed the Sponsor’s case, and the Sponsor had been told it is difficult because he is over 65 years old, and they can only provide a couple of hours of care a day. The applicant provides the best care, including assistance with the toilet. The Sponsor “feels shame” if strangers were to provide such care, and such care would not be comparable with the care the applicant provides the Sponsor.[17]
[15] CB868-870, [16]
[16] CB869, [17]
[17] CB869, [18]
TRIBUNAL’S REASONS
The Tribunal accepted the Sponsor was an Australian permanent resident and, therefore, is the applicant’s sponsor.[18] The Tribunal, however, was not satisfied that the assistance the Sponsor requires cannot be provided by a relevant relative, or from a combination of assistance from relatives, and, for that reason, the Tribunal was not satisfied the requirements of reg 1.15AA(1)(e) of the Regulations were met.[19] The Tribunal relied on a number of findings.
[18] CB870, [25]-[32]
[19] CB873, [47]
First, the Sponsor had been back to Vietnam from 10 June 2014 to 28 June 2014 with his younger daughter without the applicant. This led the Tribunal not to be satisfied that no other family members are able to provide to the Sponsor the care he needs “since his younger daughter reportedly did during the sponsor’s travel to Vietnam”.[20]
[20] CB871-872, [38], [39]
Second, the Tribunal accepted that although the older daughter is able to provide accommodation to the Sponsor, she is not able to provide full-time care because she and her husband run a business and have young children. The older daughter, however, would be able to assist in caring for the Sponsor in the evening and on weekends.[21]
[21] CB872, [40]
Third, the Tribunal found that the younger daughter is a single mother with two children; she lives a ten minute drive from the older daughter’s house where the Sponsor lives; the younger daughter’s older child attends a school that is a five minute drive from where the younger daughter lives; the younger daughter’s younger child attends a day care centre in the suburb in which the Sponsor lives; and her time is occupied by providing care to her two young children, spending almost all of her time with them from early morning until later at night. The Tribunal found, however, that this indicates that the younger daughter has time to help with care of the Sponsor during school hours.[22]
[22] CB872, [40]
Fourth, the Tribunal was not satisfied the Sponsor’s wife is not able to provide at least some assistance to the Sponsor “in conjunction with her daughters”.[23] The Tribunal noted there was evidence that appeared to show the Sponsor’s wife underwent a series of health assessments in Vietnam, and an MRI scan of her spine in Australia in March 2015; there was also a referral for physiotherapy, and photocopies of three types of medication in the Sponsor’s wife’s name. The Tribunal noted, however, there was no indication of the purpose for which these medications were issued, but that the Tribunal’s online searches showed that the medications are for blood pressure, acid reflux, and arthritis. The Tribunal also noted that it was not aware of what ongoing treatment the Sponsor’s wife requires, if any; nor was it aware of the Sponsor’s wife’s current state of health or prognosis.[24] The Tribunal further noted that the Sponsor’s wife returned to Vietnam and remained there after the Sponsor returned to Australia with the applicant; and that it was claimed the Sponsor’s wife went to Vietnam to be cared for because she was suffering from a severe spinal problem; but the Tribunal found there was no indication why the Sponsor’s wife “sought treatment in Vietnam rather than Australia or why she prefers traditional remedies when on the evidence of the witnesses, they had not been effective when used in Australia”.[25]
[23] CB872, [41]
[24] CB872, [41]
[25] CB872, [42]
Fifth, although the Tribunal noted the Sponsor’s expressed preference is for a family member to care for him, and in particular, the applicant, the Tribunal found it is not necessary for care to be provided by just one person. The Tribunal found that the Sponsor’s trip to Vietnam with his younger daughter demonstrates other family members are able to coordinate the care of the Sponsor between them.[26]
[26] CB873, [45]
On the basis of these matters, the Tribunal concluded as follows:[27]
The Tribunal is not satisfied the applicant is the only family member or service that can provide appropriate care for the sponsor and considers the sponsor's wife and one of his daughters, with the assistance of some hours of [sic] in home care, could collectively provide the support the sponsor needs. On the evidence provided the Tribunal finds that a large part of the sponsor's care requirements involve help with medications and daily living assistance, while physical issues such as mobility are just one aspect. The Tribunal finds the sponsor's wife and younger daughter, together with some hours of community assistance, and possibly respite care, would be able to provide the appropriate level of assistance during the day and the sponsor's wife would be able stay with him at night in case he falls ill in future.
[27] CB873, [44]
It may be relevant to note that the Tribunal does not in this passage refer to the finding that, while the younger daughter is not able to provide full-time care, the Sponsor’s older daughter “would be able to assist in caring for the sponsor in the evening and on weekends”;[28] nor does the Tribunal refer to its finding that it was not satisfied the Sponsor’s wife is not able to provide at least some assistance to the Sponsor “in conjunction with her daughters” (emphasis added).[29] That raises the question whether, in finding it was not satisfied the applicant is the only family member or service that can provide appropriate care for the Sponsor, the Tribunal relied only on its having concluded that the Sponsor's wife and one of his daughters, with the assistance of some hours of home care, could collectively provide the support the Sponsor needs. In my opinion it would be unreasonable to find the Tribunal relied only on its findings that the Sponsor's wife and “one of his daughters, with the assistance of some hours of [sic] in home care, could collectively provide the support the sponsor needs”. The Tribunal expressly found that the Sponsor’s older daughter, who lives with the Sponsor, would be able to assist in caring for the Sponsor in the evening and on the weekend; and that it expressly found it was not satisfied the Sponsor’s wife is not able to provide at least some assistance to the Sponsor “in conjunction with her daughters”. I therefore find that, in the Tribunal finding it was not satisfied the applicant is the only family member or service that can provide appropriate care for the Sponsor, the Tribunal relied, not only on its having found that the Sponsor's wife and his younger daughter, with the assistance of some hours of home care, could collectively provide the support the Sponsor needs, but also on its having found that the Sponsor’s older daughter would be able to assist in caring for the Sponsor in the evening and on the weekend, and on its not being satisfied that the Sponsor’s wife is not able to provide at least some assistance to the Sponsor “in conjunction with her daughters”.
[28] CB872, [40]
[29] CB872, [41]
Relevant to one of the grounds on which the applicant relies relates to the findings the Tribunal made in relation to the medical adviser’s report stating that “[n]octurnal urinary incontinence is reported”, that “[i]ncontinence aids are not used”, and the applicant will “change [the Sponsor’s] clothing and bedding as required”.[30] The Tribunal said that the “use of incontinence products is an option the sponsor and his family could explore since this is a common condition in older people and specific support, both advisory and financial, is available”. In a footnote, the Tribunal said: “For example, the Continence Foundation of Australia that offers information, a helpline and details of financial assistance available for incontinence products”.[31]
[30] CB453
[31] CB873, [44]
GROUND 1 OF AMENDED APPLICATION
The applicant relies on the three grounds of application stated in the amended application that is attached to the applicant’s written submissions filed on 12 December 2019. Ground 1 is as follows:
The second respondent (the Tribunal) failed to comply with its obligations under s.359A of the Migration Act 1958 (Cth) in relation to information that it obtained that was a part of the reason for affirming the decision that is under review.
Particulars
The Tribunal failed to comply with s.359A of the Migration Act in relation to information on the use of incontinence products for the sponsor's (the father's) nocturnal urinary incontinence (see D[44]).
Parties’ submissions
In his written submissions, after identifying evidence that was before the Tribunal that related to the nature and extent of the Sponsor’s incontinence,[32] the applicant submits as follows:
(a)Part of the Tribunal’s decision turned on how the Sponsor’s urinary incontinence could be addressed.[33]
(b)The Tribunal proposed that instead of the applicant helping the Sponsor at night with going to the toilet, the Sponsor could deal with it by using incontinence aids.[34]
(c)The finding in (b) was based on evidentiary material, namely, information made available by the Continence Foundation of Australia, which in turn shows the Tribunal had taken into account information from another source that was critically relevant and adverse to the Sponsor personally.[35]
(d)The information in (c) does not fall within the exception provided for by s 359A(4)(a) of the Act “as it is not specifically about the [Sponsor] and nor is it about a class of persons of which the [Sponsor] is a member”; and that is because, although the Tribunal stated that incontinence was common among the elderly, “the use of incontinence aids was not; there was no such finding and no probative or evidentiary basis to support such a finding”.[36]
(e)Procedural fairness required that the Tribunal should have given notice to the applicant and Sponsor that the Tribunal intended to rely on the information;[37] and that the mandatory obligation prescribed by s 359A(1) of the Act was enlivened is supported by the Tribunal’s having stated that “incontinence products is an option the sponsor and his family could explore” (emphasis added by counsel for the applicant).[38]
[32] Applicant’s Outline of Submissions, [24]-[30]
[33] Applicant’s Outline of Submissions, [31]
[34] Applicant’s Outline of Submissions, [33]
[35] Applicant’s Outline of Submissions, [33]
[36] Applicant’s Outline of Submissions, [34]
[37] Applicant’s Outline of Submissions, [34]
[38] Applicant’s Outline of Submissions, [35]
In her oral submissions counsel for the applicant submitted that the information that engaged s 359A(1) of the Act is that the Sponsor can use incontinence aids to solve his nocturnal urinary incontinence problem, and that was information the Tribunal considered would be the reason, or part of the reason, for affirming the Tribunal’s decision.[39] Later in her address, when responding to the Minister’s submission that the information fell within the exception in s 359A(4)(a) of the Act, counsel for the applicant submitted that the information related to the Sponsor personally;[40] and that is because the information is about whether the Sponsor can use incontinence products.[41]
[39] T12.25
[40] T12.40
[41] T13.5
In his counsel’s written submissions the Minister accepts that information about the availability of incontinence products is information that falls within s 359A(1) of the Act because it was information that it could be inferred the Tribunal considered would undermine the Sponsor’s claim that he needed the applicant to be his carer, particularly during the night.[42] The Minister submits, however, that the information did not engage s 359A(1) of the Act because it fell within the exception provided for by s 359A(4)(a) of the Act in that the information was “not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”.[43] The Minister relies on the following passage from the judgment of the Full Federal Court in Minister for Immigration and Citizenship v SZHXF:[44]
In considering whether certain information is specifically about an applicant or another person for the purposes of s 424A(3)(a) of the Act, it is not necessary for the Tribunal, as a separate requirement, to make a finding that the relevant “information” is “just about a class of persons of which the applicant or other person is a member”. The Full Court observed in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82; (2004) 80 ALD 559 at 563 that the reference to the “class of persons” in s 424A(3)(a) “is not another criterion to be met”. Rather, the reference “is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it”: see also VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 186; (2003) 131 FCR 80 at 95 (per Kenny J) and 99 (per Downes J); NANM and NANN of 2002v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 99 at [17].
[42] Submissions of the First Respondent, [10]
[43] Submissions of the First Respondent, [11]
[44] Minister for Immigration and Citizenship v SZHXF [2008] FCAFC 36, at [19]
The Minister also relied on the following passage from the judgment of Markovic J in SZVCZ v Minister for Immigration and Border Protection (Minister’s emphasis):[45]
[T]the reference to a “class of person” in s 424A(3)(a) is not itself a criterion to be met in order for the exception to apply. The criterion is that the information is not specifically about the applicant or another person.
[45] SZVCZ v Minister for Immigration and Border Protection [2017] FCAFC 130, at [47]
Determination
Before I consider the parties’ competing contentions, it will be necessary to set out the relevant text of s 359A of the Act, and to identify some principles.
Principles
Section 359A of the Act relevantly provides:
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
. . . .
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member . . . .
The central element in the application of s 359A of the Act is the meaning of “information”; and a number of principles have been developed in relation to the construction of “information” as it appears in s 359A(1) of the Act and in the equivalent provision contained in s 424A of the Act.[46]
[46] I repeat in this and the following two paragraphs what I said in Springs v Minister for Immigration & Anor [2020] FCCA 371, at [19]-[22]
It has been held that “information”, as used in those subsections, “refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal . . . irrespective of whether it is reliable or has a sound factual basis”;[47] but it does “not encompass the Tribunal’s subjective appraisals, thought processes or determinations”. Nor “does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps”.[48] The meaning of “information” is “related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”.[49]
[47] VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 (Finn and Stone JJ), at [24]
[48] VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 (Finn and Stone JJ), at [24] quoted with approval by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, at [18].
[49] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, at [18]
A formulation that is often applied to determine whether any given information is “information” to which s 424A(1) (and, therefore, s 359A) of the Act applies, is the High Court’s formulation in SZBYR v Minister for Immigration and Citizenship.[50] In that case the High Court held that portions of a statutory declaration did not constitute “information” for the purposes of s 424A(1) of the Act because they “did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations”;[51] and in Minister for Immigration and Citizenship v SZLFX, the High Court said that for s 424A(1)(a) of the Act to be engaged “the material in question should in its terms contain a “rejection, denial or undermining” of the review applicant’s claim to be a refugee”.[52]
[50] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
[51] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, at [17]
[52] Minister for Immigration and Citizenship v SZLFX [2009] HCA 31, at [22]
What the High Court said in SZBYR and SZLFX must be considered in light of the plurality’s judgment in Plaintiff M174/2016 v Minister for Immigration and Border Protection. That case concerned s 57(1) of the Act which includes the expression “information . . . [that] would be the reason, or part of the reason . . . for refusing to grant a visa”. The plurality accepted, or at least assumed, that the meaning that had been given in SZBYR and SZLFX to the expression “information” was correct; and the plurality expanded on that meaning in the emphasised portion of the following passage (references omitted):[53]
Section 57 is also located within subdiv AB. The section deals with “relevant information”. Section 57(1) defines that term, subject to an immaterial exclusion, to mean information that the Minister considers meets three conditions. The first condition is relevantly that the information “would be the reason, or part of the reason … for refusing to grant a visa”. Whether or not that condition is met, it has been held in this Court in respect of a materially identical provision, “is to be determined in advance – and independently – of the [Minister's] particular reasoning on the facts of the case”. For the condition to be met, it has again been held in this Court in respect of a materially identical provision, the information in question “should in its terms contain a ‘rejection, denial or undermining’ of the review applicant's claim”. That is to say, the information must in its terms be of such significance as to lead the Minister to consider in advance of reasoning on the facts of the case that the information of itself “would”, as distinct from “might”, be the reason or part of the reason for refusing to grant the visa. The Court is not asked to reconsider that approach to the operation of the first condition in the present case.
[53] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 174, at [9]
The applicant’s written submissions
The particulars to ground 1 do not identify how the Tribunal considered the information it identifies would be the reason or part of the reason for affirming the delegate’s decision. Nor, however, do the applicant’s written submissions. Those submissions go no further than submitting that: (a) the information made available by the Continence Foundation of Australia is evidentiary material; (b) the Tribunal took into account information; and, (c) the information was critically relevant and adverse to the Sponsor. The applicant’s written submissions, therefore, do not disclose any basis on which it could be concluded the Tribunal failed to comply with s 359A of the Act in relation to the information referred to in ground 1.
Quite apart from this, the applicant’s written submissions are based on the incorrect premise that the Tribunal proposed that instead of the applicant helping the Sponsor at night with going to the toilet, the Sponsor could deal with it by using incontinence aids. The Tribunal did not make or rely on any finding that the Sponsor himself, or some other person, could provide some of the assistance the Sponsor required because of his nocturnal urinary incontinence by the use of incontinence aids. The Tribunal concluded it was not satisfied the applicant is the only family member or service that can provide the care the medical condition of the Sponsor (which included his nocturnal urinary incontinence) requires to be given to him; and the Tribunal found that the Sponsor’s wife and his daughters, with the assistance of some hours of home care, could collectively provide the support the Sponsor needs. The Tribunal made these findings without referring to or relying on the Sponsor having, or the possibility of the Sponsor having, the option of using incontinence products.[54]
[54] CB873, [44] which is to be read with [40] where the Tribunal found that the Sponsor’s oldest daughter would be able to assist in caring for the Sponsor in the evening and on weekends.
It is the case, though, that the Tribunal referred to the use of incontinence products as an option. Why? One available inference is that the Tribunal did so for no reason other than to suggest to the Sponsor and his family a line of enquiry which, if pursued, might assist the Sponsor and his family, being the Sponsor’s relatives whom the Tribunal found could collectively provide the support the Sponsor needs, to provide the support the Tribunal found they were in a position to provide to the Sponsor. The Tribunal’s reference to the Sponsor and his family exploring the option of using incontinence products cannot reasonably be construed as a finding that the Sponsor could use incontinence aids to solve or assist with his nocturnal urinary incontinence and, for that reason, or for reasons that included that reason, the care the Sponsor required because of his medical condition could collectively be provided by the Sponsor’s daughters and wife.
Was there “information”?
Although I have concluded the applicant’s written submissions do not disclose any basis on which it could be concluded the Tribunal failed to comply with s 359A of the Act in relation to the information referred to in ground 1, in her oral address counsel for the applicant did identify what she submitted was the “information” that engaged s 359A of the Act. Two questions, therefore, arise: what is the material the applicant submits constitutes “information” for the purpose of s 359A of the Act? Is this material “information” for the purpose of s 359A of the Act? That is, is the material “information [which] in its terms [was] of such significance as to lead the [Tribunal] to consider in advance of reasoning on the facts of the case that the information of itself “would”, as distinct from “might”, be the reason or part of the reason for refusing to grant the [Carer] visa”?[55]
[55] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 174, at [9]
In her oral submissions counsel for the applicant submitted that the material that constituted the “information” was information that the Sponsor can use incontinence aids in order to solve his nocturnal urinary incontinence problem. The Minister, in his written submissions, identifies as the relevant “information” the Tribunal’s statement that the “use of incontinence products is an option the sponsor and his family could explore since this is a common condition in older people and specific support, both advisory and financial, is available”. It is doubtful that the material the applicant’s counsel, and the Minister, identify as “information”, constitutes evidentiary material or documentation and, for that reason, is “information” for the purposes of s 359A of the Act. The Tribunal’s statement that the use of incontinence products is an option the Sponsor and his family could explore is an inference, being an inference that could rationally be drawn only having regard to the Sponsor’s particular condition, and the information concerning incontinence aids that are identified by the Continence Foundation of Australia. An inference drawn on the basis of evidence, however, is not “information” for the purposes of s 359A of the Act.
Even if the Tribunal’s statement that “[t]he use of incontinence products is an option the sponsor and his family could explore” does constitute evidentiary and documentary material, the applicant does not articulate the basis on which he submits the Tribunal considered such material to be, in its terms, of such significance as to have led the Tribunal to consider in advance of reasoning on the facts of the case that the material of itself “would”, as distinct from “might”, be the reason or part of the reason for refusing to grant the applicant a Carer visa. It is not reasonably open to infer from the Tribunal’s reasons that the Tribunal considered the material in this way. As I have already found, the Tribunal’s reference to the Sponsor and his family exploring the option of using incontinence products cannot reasonably be construed as a finding that the Sponsor could use incontinence aids to solve or assist with his nocturnal urinary incontinence and, for that reason, or for reasons that included that reason, the care the Sponsor required because of his medical condition could collectively be provided by the Sponsor’s daughters and wife; and there is nothing in the material that could reasonably suggest that at any time the Tribunal considered that the Sponsor’s and his family’s exploring the use of incontinence products would be the reason, or part of the reason, for affirming the delegate’s decision not to grant the applicant a Carer visa.
Thus, I am not satisfied that the Tribunal’s statement that “[t]he use of incontinence products is an option the sponsor and his family could explore” is “information” for the purpose of s 359A of the Act.
Does s 359A(4)(a) of the Act apply to the “information”?
The answer to this question turns on the correct identification of the material that is said to constitute the relevant information. If the material is the information the Continence Foundation of Australia offers, the material would not be information “specifically about the applicant or another person” and, for that reason, s 359A(4)(a) would apply to it, and the Tribunal, therefore, would not be bound to deal with the information in the manner provided for by s 359A(1) of the Act. If, on the other hand, the material said to constitute the information is the Tribunal’s statement that “[t]he use of incontinence products is an option the sponsor and his family could explore”, this would not be material “not specifically about the applicant or another person”. I have concluded, however, that the Tribunal’s statement is not “information” and, for that reason, s 359A(4)(a) does not apply to that statement.
Conclusion
For these reasons, ground 1 fails.
GROUND 2 OF AMENDED APPLICATION
Ground 2 of the amended application is as follows:
The Tribunal erred by failing to deal with a claim raised by the evidence and the contentions advanced and/or failed to assess the question of reasonableness of obtaining the assistance that the father needed from the perspective of the father.
Particulars
(a) The Tribunal found that “[s]everal hours a week of nursing assistance could supplement the families [sic] care of the sponsor”: D[43]
(b) Tribunal erroneously found that the family only inquired about home based care for the sponsor but for 24 hours care and approached organisations that catered for those younger then [sic] him: D[43].
(c) The evidence showed that the sponsor's family had made inquiries with numerous home based care organisation that: catered for the elderly: had sought care on a “daily basis” not for 24 hours: and could assist the father in attending to the practical aspects of daily life because of his medical conditions.
(d) The Tribunal did not engage at all with the aspect of the father needing a carer that spoke Vietnamese and was male, as he could not communicate in English: and was culturally embarrassed to be helped to go to the toilet and be bathed by a woman.
(e) The Tribunal failed to take into account that Home Care Services of NSW cancelled their services to the father as they could not guarantee the father a male Vietnamese carer.
Parties’ submissions
As framed, ground 2 makes two claims. One is the Tribunal failed to deal with a claim, or with evidence, that the Sponsor’s family had made enquiries with numerous home based care organisations that catered for the elderly; provided care on a daily basis, not for 24 hours; and which could assist the Sponsor to attend to the practical needs of daily life. The second claim is that the Tribunal did not take into account the Sponsor’s particular attributes, and in particular his inability to speak English, and his being “culturally embarrassed” to be helped by a female when going to the toilet.
In his counsel’s written submissions the applicant submits the Tribunal failed to engage with two aspects of the applicant’s case that had been advanced, these being the Sponsor’s personal circumstances, and the difficulty in finding any home aged care facilities to accommodate those personal circumstances.[56] The applicant also submits that, when assessing whether reg 1.15AA(1)(e) of the Regulations is satisfied, the preferred method of care should not be assumed to be immaterial;[57] and where facilities for the provision of care have been identified, it is necessary to be satisfied that those facilities “match up” with the Sponsor’s personal circumstances.[58] The applicant then submits the Tribunal failed to take into account the following claims or evidence or circumstances of the Sponsor:[59]
(a)various applications had already been made by the Sponsor for assistance from home based care organisations that did not reply positively, or at all;
(b)the preference of the Sponsor was that the carer be male because, for cultural reasons, he was embarrassed for his private parts to be cleaned by a female after urinating and defecating; and
(c)the preference of the Sponsor was that the carer speak Vietnamese because he could not communicate in English.
[56] Applicant’s Outline of Submissions, [39]
[57] Applicant’s Outline of Submissions, [41], referring to Biyiksiz v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 814, at [22], [23]
[58] Applicant’s Outline of Submissions, [42], referring to Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149, at [35]
[59] Applicant’s Outline of Submissions, [43]
In support of these submissions the applicant identifies the following events:[60]
(a)In December 2013 the Sponsor applied to Aged Care & Rehabilitation Services, as part of the South Western Sydney Local Health at Liverpool. They were initially told the Sponsor was referred for an assessment, and was then put on a wait list for an assessment; but, by the end of 2014, they were told that due to the current high demand they should look elsewhere.
(b)On or about 25 January 2016, the Sponsor again applied to Aged Care & Rehabilitation Services, but he had not received a response from the services at all.
(c)In early 2014 the Sponsor applied to Home Care Service of New South Wales. By letter dated 19 February 2014 to the Sponsor, an assessor from Home Care Service of NSW said that “[f]ollowing an assessment undertaken on the 19 February 2014, I am unable to recommend services. Service has been cancelled as Home Care Service is unable to guarantee Male Vietnamese worker”.[61]
(d)On or about 25 January 2016 the Sponsor applied to Catholic Care - Home Care. He was put on their wait list, but the application had not yet been processed. They made follow up calls and sent letters but had not received any contact.
(e)On or about 30 March 2016, the Sponsor applied to BaptistCare and stated, amongst other things, “Therefore I would like to apply for someone that can come to my home and provide me with this care on a daily basis. However, I am not a fluent speaker or writer in English therefore I would appreciate if my carer could speak Vietnamese so we can easily communicate with one another”. BaptistCare replied they only had “capacity at present to provide a maximum of 3 hours of service a week”, and recommended the Sponsor contact My Aged Care.
(f)On or about 30 March 2016, the Sponsor applied online to My Aged Care for a referral for aged care services. The Sponsor said he required a “Vietnamese interpreter (carer) as [the Sponsor] cannot speak and understand English fluently”. The Sponsor also said that he required “significant help to function on a daily basis”. My Aged Care acknowledged receipt of the Sponsor’s request, but has provided no further response.
[60] Applicant’s Outline of Submissions, [44]
[61] CB854
The applicant reproduces paragraph 43 of the Tribunal’s reasons:[62]
The sponsor lives with his wife, his adult daughter and her husband with a second daughter living nearby. While it appears the sponsor and his family have made inquiries about home based care for the sponsor, they have approached organisations that cater for those younger than him, and services that offer a few hours of assistance per day, when their enquiries have been in relation to 24 hour care. Given the sponsor's family situation, it would not be necessary for him to receive 24 hour care from community nursing. Several hours a week of nursing assistance could supplement the families care of the sponsor.
[62] Applicant’s Outline of Submissions, [47]
The applicant then submits as follows:[63]
(a)the Tribunal’s “finding” fails to take into account the particulars of the claims or evidence;
(b)the Tribunal failed to recognise the Sponsor seeks a male carer because he is culturally embarrassed to be cleaned by a female;
(c)the Tribunal did not consider the need for a Vietnamese speaking carer;
(d)the Tribunal did not engage with the evidence that Home Care Service of NSW cancelled services to the Sponsor because they were unable to guarantee a male Vietnamese speaking carer; and
(e)the Tribunal’s reasons show the Tribunal did not consider the Sponsor’s preferred method of care; and the Tribunal did not consider whether the Sponsor could reasonably obtain a service that matched his own personal circumstances.
[63] Applicant’s Outline of Submissions, [48], [49]
In her oral address counsel for the applicant repeated the substance of the applicant’s written submissions. Counsel also submitted that although the Tribunal “talks about trying to receive 24-hour care”, the Sponsor had been seeking only daily care. I understand by this that counsel intends to submit the Tribunal incorrectly found that the Sponsor sought 24 hour care when in fact the Sponsor only sought daily care.[64]
[64] T16.35
In his counsel’s written submissions the Minister submits the Tribunal “dealt sufficiently” with the applicant’s claims; and there is no indication from the Tribunal’s reasons that the Tribunal proceeded on the mistaken assumption that the Sponsor’s expressed preferences were immaterial to the question posed by reg 1.15AA(1)(e) of the Regulations.[65]
[65] Submissions of the First Respondent, [21]
Questions arising
From the applicant’s submissions the following questions arise:
(a)Did the applicant claim, or was there evidence, that the Sponsor or the Sponsor’s family had made enquiries with numerous home based care organisations that catered for the elderly? If so, did the Tribunal consider such claim or such evidence?
(b)To the extent the Tribunal considered the claim or evidence referred to in (a), did it make any error? In particular, did the Tribunal rely on its finding that the enquiries the Sponsor and his family made “have been in relation to 24 hour care”?
(c)Did the applicant claim, or was there evidence, that the Sponsor could not speak sufficient English, and he was embarrassed to be helped to go to the toilet and be bathed by a woman? If so, did the Tribunal consider such claim or evidence?
Claim or evidence that Sponsor made enquiries for the provision of home care
There was evidence before the Tribunal that the Sponsor applied to or made enquiries of various service providers for care. Although the Tribunal did not identify the particular occasions on which the Sponsor made such applications or enquiries, the Tribunal recognised the Sponsor and his family made such applications or enquiries. That is apparent from the second sentence of paragraph 43 of its reasons, where the Tribunal said that it appeared that “the sponsor and his family have made inquiries about home based care for the sponsor”.
It is also apparent the Tribunal considered the weight it should give to the Sponsor and his family having made such applications and enquiries, and the results of such applications and enquiries. The Tribunal proceeded on the basis that these matters did not support the applicant’s claim that the direct assistance the Sponsor required because of his medical condition cannot reasonably be provided by any other relative or cannot be obtained from welfare, hospital, nursing, or community services in Australia; and in so proceeding the Tribunal relied on three findings:
(a)the Sponsor’s wife and his daughters can collectively provide at least most of the care the Sponsor requires;
(b)the Sponsor applied to or made enquiries of the service providers for the provision of 24 hour care in circumstances where the Sponsor did not require 24 hour care from such service providers; and
(c)the service providers to or of whom the Sponsor and his family applied or made enquiries catered for persons younger than the Sponsor, and, in any event, offered only a few hours of assistance per day.
Assuming it was reasonably open to the Tribunal to make each of these three findings, it was reasonably open to the Tribunal, on the basis of those findings, not to give any weight to the Sponsor’s not having been able to secure any care from any of the service providers the Sponsor approached to support the applicant’s claim that the assistance the Sponsor required cannot reasonably be provided by the Sponsor’s wife and daughters, or cannot be obtained from welfare, hospital, nursing, or community services in Australia.
Finding that Sponsor applied for 24 hour care
The applicant submits the Tribunal was incorrect in finding that the applications and enquiries the Sponsor and his family made to or of service providers related to 24 hour care. The basis of this submission is evidence that shows the Sponsor applied for “daily care” which the applicant submits does not mean 24 hour care. The applicant’s submission turns on whether it was not reasonably open to the Tribunal to consider the application for “daily care” to be an application for 24 hour care.
The applicant’s case before the Tribunal was that the Sponsor required 24 hour care. The Tribunal referred to the report of Dr Tam who said the Sponsor required 24 hour care and supervision.[66] Further, the Sponsor said as much, without using the words “24 hour care”, in his application to BaptistCare.[67] The Sponsor there said that because of his health he required “somebody to significantly help [the Sponsor] with walking, sitting and sleeping, eating and cooking, bathing and dressing, personal hygiene and other movements as [the Sponsor’s] mobility and ability to function on a day to day basis is a real struggle”. There is no evidence that, in any of the applications or enquiries the Sponsor or his family made to or of service providers, the Sponsor or his family suggested that some of the assistance he required would in part be provided by some other person or persons. Nor is there any evidence that the Sponsor or his family required that the service providers provide only some of the assistance the Sponsor requires. In these circumstances, it was reasonably open to the Tribunal to construe the Sponsor’s application or enquires in relation to care to relate to 24 hour care.
[66] CB873, [46]. Dr Tam’s report is at CB807 where, at CB810, Dr Tam states the Sponsor “requires 24 hours care and supervision by his family carers at home”.
[67] CB840
Sponsor’s particular needs
The Tribunal recorded in its reasons the Sponsor’s evidence that the applicant provides the best care, including assistance with the toilet; and that the Sponsor “feels shame” if strangers were to provide such care, and such care would not be comparable with the care the applicant provides to the Sponsor.[68] The Tribunal also considered that evidence as follows:[69]
The Tribunal notes the sponsor expressed a preference for a family member to care for him, in particular, the applicant. With strangers the sponsor said he feels shame and it is not comparable to the service provided by his own son. While this may be his preferred option, the Tribunal finds it is not necessary for care to be provided by just one person. The sponsor's trip to Vietnam with his younger daughter demonstrates other family members are able to coordinate between them. The Tribunal is satisfied there is a combination of alternative care available to him, including his younger daughter during the day, his wife and community services.
[68] CB869, [18]
[69] CB873, [45]
The Tribunal did not refer to the Sponsor’s having expressed a preference when he or his family applied to or made enquiries of service providers for care that such care be given by a person who spoke Vietnamese; nor did the Tribunal refer to Home Care Service of NSW informing the Sponsor that it “is unable to guarantee Male Vietnamese worker”.[70] The Tribunal, however, did not make any jurisdictional or other error in not expressly addressing these matters. First, the Tribunal must be taken to have been aware that the Sponsor could not speak or understand English, if for no other reason than the Sponsor gave evidence to the Tribunal with the assistance of an interpreter.[71] Second, for reasons I have found were reasonably open to it, the Tribunal gave no weight to the evidence of the applications to or enquiries of service providers the Sponsor or his family made for care. Third, there was no evidence, and it was not suggested to the Tribunal, that the Sponsor would not be able to obtain a Vietnamese speaking carer to provide some hours of home care the Tribunal found the Sponsor could obtain. Nor was there any evidence, nor was it suggested to the Tribunal that, to the extent the Sponsor could not obtain a Vietnamese speaking carer, the Sponsor would be unable to access translation services or, if he could, care could not be provided by persons who do not speak Vietnamese.
[70] CB854
[71] CB867, [5], where the Tribunal noted that it also received oral evidence from the Sponsor, and that the “Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages”.
Conclusion
For these reasons, ground 2 also fails.
GROUND 3
Ground 3 of the amended application is as follows:
The Tribunal erred by failing to engage with the actual needs of the father for assistance and the impact of those needs on the capacity of the younger daughter, who is a single mother of two young children, and the wife, who has her own medical conditions, to provide such assistance (at D [45]). The Tribunal thereby failed to perform the statutory task of deciding if the family could reasonably provide the assistance the father needs in attending to the practical aspects of daily life.
Particulars
(a) The Tribunal found that as the father had taken a short trip to Vietnam without the applicant (the son), and with his younger daughter, it demonstrated that “it is not necessary for care to be provided by one person” and “other family members are able to coordinate between them”: D[45].
(b) The Tribunal's reasoning lacked any logical or probative basis, as it was unreasonable to compare the circumstances of the short term assistance required on a short trip to the long term assistance required for the rest of the father's life. On the short trip, the younger daughter did not have to deal with her usual daily responsibilities of being a single mother caring for two young children in Australia. Also, the wife did not take that trip, so there was no coordinating with the family members that were in Australia.
(c) The Tribunal did not take into account the evidence that the father needs monitoring during the night as he has sudden black outs and dizziness, therefore the son sleeps in the same bed at night.
(d) The Tribunal’s reasoning did not explain how the younger daughter had the capacity to reasonably provide the assistance the father needs in attending to practical aspects of daily life because of his medical conditions, including having dementia, being immobile, and being at risk of suffering another stroke, whilst also being a single mother caring for two young children.
Parties’ submissions
In his counsel’s written submissions the applicant submits there was no probative evidence, and no logical grounds, to support the findings the Tribunal made in paragraphs 39 and 45 of its reasons,[72] these being that the Tribunal was not satisfied that no other family members are able to provide the Sponsor “the necessary care, since his younger daughter reportedly did during the sponsor’s travel to Vietnam”;[73] and that the “sponsor’s trip to Vietnam with his younger daughter demonstrate other family members are able to coordinate between them”.[74] The applicant relies on the following submissions:[75]
(a)The short trip is not comparable to the bulk of the day to day care the younger daughter would be required to provide in Australia, while living in a separate house and caring for her two young children.
(b)The Sponsor’s wife was not on the trip to Vietnam; there was no evidence the younger daughter travelled with her young children, and the other family members that assisted the Sponsor on the trip were family members in Vietnam, not Australia.
(c)There is no probative foundation to compare the assistance provided on a short trip to the ongoing assistance for daily life in Australia.
[72] Applicant’s Outline of Submissions, [56]
[73] CB872, [39]
[74] CB873, [45]
[75] Applicant’s Outline of Submissions, [56]
The applicant also made the following submissions:
(a)There was no evidence of what hours were available to the younger daughter when she was not with her children.[76]
(b)The Tribunal did not engage with how the Sponsor was expected to attend to his physical and practical daily requirements when the younger daughter would not be with the Sponsor.[77]
(c)The Sponsor and his family found it difficult to find home based care with sufficient hours to provide daily care, and the Tribunal failed to explain how the younger daughter or the Sponsor’s wife have the capacity to provide assistance if external assistance is not available at the relevant times.[78]
(d)In finding it was not satisfied the Sponsor’s wife’s health would prevent her from providing supervision in case of future illness and company that would alleviate the Sponsor’s depression and PTSD, the Tribunal did not engage with evidence the applicant and family members gave about the Sponsor’s wife’s problems with a spinal injury, osteoporosis, her knees being affected by arthritis, and, consequent difficulty in standing and walking, and her ongoing need for monitoring.[79]
(e)It is not apparent the Tribunal engaged fully with the capacity of family members to provide the assistance the Sponsor needs.[80]
[76] Applicant’s Outline of Submissions, [57]
[77] Applicant’s Outline of Submissions, [57]
[78] Applicant’s Outline of Submissions, [57]
[79] Applicant’s Outline of Submissions, [58]
[80] Applicant’s Outline of Submissions, [59]
The Minister, in his counsel’s written submissions submitted it was sufficient for the Tribunal to identify from the evidence there was some capacity for each of the family members to assist in some way, at different times of the day; if it is the case that the younger daughter could not during the day provide assistance, that is evidence the applicant ought to have put before the Tribunal; reg 1.15AA(1)(e) of the Regulations did not require the Tribunal to detail precisely how the family members would provide care; the Tribunal relied on the Sponsor’s travelling to Vietnam with the younger daughter to support its conclusion that it was not necessary for the Sponsor to be cared for by only one family member, the applicant; and it was open to the Tribunal to find the Sponsor’s wife could provide limited assistance.
Determination
I propose to identify and consider each of the claims and submissions the applicant makes.
First, the applicant claims in ground 3 the Tribunal erred by failing to engage with the actual needs of the Sponsor for assistance, and the impact of those needs on the capacity of the younger daughter, who is a single mother of two young children, and the Sponsor’s wife, who has her own medical conditions, to provide such assistance. I do not accept that claim.
(a)The Tribunal considered the evidence and made findings in relation to the Sponsor’s needs. The Tribunal found that “a large part of the sponsor’s care requirements involve help with medications and daily living assistance, while physical issues such as mobility are just one aspect”.[81] It is reasonable to infer, and I find, that the Tribunal in part relied on the applicant’s evidence that, in reality, all the Sponsor can do is sit around or watch movies or read.[82]
(b)The Tribunal also assessed the capacity of each of the Sponsor’s daughters and wife to provide the assistance the applicant claimed he alone could provide. In relation to the Sponsor’s daughters the Tribunal considered the time they have available to provide care; and in the case of the Sponsor’s wife the Tribunal considered whether her health prevented her from being in a position to provide some care.
[81] CB873, [44]
[82] CB871, [37]
Second, I do not accept the claim made in paragraph (b) of the particulars to ground 3 that there is no logical or probative foundation for the Tribunal’s finding that the Sponsor’s younger daughter travelling with the Sponsor to Vietnam demonstrated that it is not necessary for care to be provided by one person, and that other family members are able to coordinate between them the care of the Sponsor. The Sponsor’s visit to Vietnam for 18 days is reasonably capable of supporting the finding that where one family member (the applicant) was not in a position to provide care for the Sponsor, arrangements were made for another family member (the Sponsor’s younger daughter) to provide that care. That, in turn, is reasonably capable of supporting the findings that a family member other than the applicant is capable of providing the care the Sponsor needs, and the Sponsor’s family can arrange for another family member to provide such care.
Third, in paragraph (c) of the particulars to ground 3 the applicant claims the Tribunal did not take into account the evidence that the Sponsor needs monitoring during the night as he has sudden black outs and dizziness, and, for that reason, the applicant sleeps in the same bed at night. This claim implies there was evidence that compelled the Tribunal to find that the direct assistance the Sponsor needed to attend to the practical aspects of his life includes a person sleeping in the same bed as him. The applicant does not identify any such evidence. In any event, the Tribunal in effect found that the Sponsor’s wife was in a position to provide such care because the Tribunal found the Sponsor’s wife “would be able to stay with him at night in case he falls ill in future”.[83]
[83] CB873, [44]
Fourth, in paragraph (d) of the particulars to ground 3 the applicant claims the Tribunal did not explain how the Sponsor’s younger daughter had the capacity to reasonably provide the assistance the Sponsor needs in attending to practical aspects of daily life because of his medical condition, including having dementia, being immobile, and being at risk of suffering another stroke, whilst also being a single mother caring for two young children. This claim appears to imply that, because of the Sponsor’s medical conditions, the Sponsor had needs that a person in the position of the Sponsor’s younger daughter did not have the physical capacity to provide. I would not accept such implication. The Tribunal proceeded on the basis that the Sponsor’s daughters have the same physical capacity as the applicant has to provide to the Sponsor the care the applicant provides, to the extent it found such care was necessary to assist the Sponsor to attend to the practical aspects of his life. It was reasonably open to the Tribunal to so proceed.
Fifth, the applicant submits there was no evidence of what hours were available to the Sponsor’s younger daughter when she was not with her children. I do not accept that submission. The Tribunal noted that in her statement the Sponsor’s younger daughter said she is occupied by providing care to her two young children on a daily basis and she spends almost all of her time with them from early morning until late at night. The Tribunal may be taken not to have accepted that evidence to the extent the Sponsor’s younger daughter intended to say that she spent time with her children when they attended school or day care. In those circumstances, the Tribunal inferred that during the hours at which her children attended school and day care, the Sponsor’s younger daughter had time that she could devote to caring for the Sponsor. It was reasonably open to the Tribunal to so infer, given the younger daughter did not give any other evidence about what she did at the time her children were at school or day care.
Sixth, I do not accept the applicant’s submission that the Tribunal did not engage with how the Sponsor was expected to attend to his physical and practical daily requirements when the younger daughter would not be with the Sponsor. The Tribunal recognised that while the younger daughter is not able to provide full-time care for the Sponsor, his “oldest daughter would be able to assist in caring for the sponsor in the evening and on weekends”;[84] and the Tribunal also found it was not satisfied the Sponsor’s wife is not able to provide at least some assistance to the Sponsor “in conjunction with her daughters”.[85]
[84] CB872, [40]
[85] CB872, [41]
Seventh, the applicant submits the Tribunal did not explain how the Sponsor’s younger daughter and wife have the capacity to provide assistance if external assistance is not available at the relevant times, and given the Sponsor and his family found it difficult to find home based care with sufficient hours to provide daily care. I do not accept the Tribunal was required to give such explanation. The Tribunal found, as I have concluded it was reasonably open to it to find, that the Sponsor and his family only applied for 24 hour care. There was therefore no basis on which the Tribunal could have found that the Sponsor and his family attempted to obtain home care for when the Sponsor’s daughters and wife would be unavailable to provide such care. There being no such basis, the Tribunal could not have been satisfied that the Sponsor would be unable to obtain such home care assistance.
Eighth, I do not accept the applicant’s submission that the Tribunal did not engage with evidence the applicant and family members gave about the Sponsor’s wife’s problems with a spinal injury, osteoporosis, her knees being affected by arthritis, and, consequent difficulty in standing and walking, and her need for ongoing need for monitoring. The Tribunal did engage with such evidence, as is apparent from the following passage in its reasons:[86]
The applicant and sponsor both gave evidence that the sponsor's wife . . . is unable to provide care for him as she has her own health problems. She is said to have travelled back to Vietnam On the evidence provided, it appears the sponsor's wife underwent a series of health assessments in Vietnam as well as an MRI scan of her spine in Australia on 24 March 2015 in relation to back pain. A referral for physiotherapy was submitted in evidence as well as photocopies of three types of medication in [the Sponsor's wife’s] name. There was no indication what these medications are for but online searches indicate they are for blood pressure, acid reflux and arthritis. The Tribunal is not aware what ongoing treatment [the Sponsor's wife] requires if any, her current state of health or prognosis. The Australian medical evidence in relation to [the Sponsor's wife] was obtained after the Department refused the application for a partner visa on 25 June 2014. The Tribunal does not accept the sponsor's wife is not able to provide at least some assistance to her husband, in conjunction with her daughters. Furthermore, the Tribunal is not satisfied [the Sponsor's wife’s] health would prevent her from providing supervision in case of future illness and company that would alleviate his depression and PTSD.
[86] CB873, [41]
Ninth, I do not accept the applicant’s submission that the Tribunal did not engage fully with the capacity of family members to provide the assistance the Sponsor needs. The Tribunal considered the evidence and made findings about the direct assistance the Sponsor needed to attend to the practical aspects of his life; and the Tribunal then assessed the capacity of each of the Sponsor’s daughters, and the Sponsor’s wife, to provide the direct assistance the Sponsor needed to attend to the practical aspects of his life.
Conclusion
For these reasons ground 3 also fails.
DISPOSITION AND COSTS
I propose to dismiss the application.
Counsel for the parties agree that costs should follow the event. The Minister submitted he would seek that his costs be set in the amount of $7,853. I am satisfied that reflects a fair indemnity of the costs the Minister has incurred in defending the application. I also propose, therefore, to order that the applicant pay the Minister’s costs set in the amount of $7,853.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 8 April 2022
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