Jung v Minister for Immigration

[2016] FCCA 1026

FEDERAL CIRCUIT COURT OF AUSTRALIA

JUNG & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1026

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal failed to consider evidence and claims that were significant and critical to the decision under review – whether the Administrative Appeals Tribunal considered whether the assistance could reasonably be obtained by the sponsor from the sponsor’s perspective – whether the Tribunal failed to take into account the evidence and claim that in Korean culture the eldest son takes responsibility for aged parents – whether the Tribunal misunderstood and misapplied the statutory test in reg.1.15AA(1)(f) of the Migration Regulations 1998 (Cth) when it found that the assistance the applicant could provide to the sponsor was not substantial and continuing – no jurisdictional error – application dismissed. 

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.31, 65, 338, 474
Migration Regulations 1994 (Cth), regs.1.15AA, 2.01, Schedule 2 – cls.836.212, 836.221

Cases cited:
Biyiksiz v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 814
BZAFI v Minister for Immigration and Border Protection [2015] FCA 771
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Perera v Minister for Immigration and Multicultural Affairs [2005] FCA 1120
Narayan v Minister for Immigration & Multicultural Affairs [2001] FCA 1745
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 88
Kankanamage  v Minister for Immigration and Multicultural Affairs [2006] FCA 484
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

First Applicant: HYUNIL JUNG

Second Applicant: YOUNGJA YOUN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1980 of 2014

Judgment of: Judge Emmett

Hearing date: 5 April 2016

Date of Last Submission: 14 April 2016

Delivered at: Sydney

Delivered on: 19 May 2016

REPRESENTATION

Counsel for the Applicant: Mr David Godwin

Solicitors for the Applicant: Brett Slater Lawyers

Counsel for the Respondents: Ms Anna Mitchelmore

Solicitors for the Respondents: DLA Piper Australia

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1980 of 2014

HYUNIL JUNG

First Applicant

YOUNGJA YOUN

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. 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 18 June 2014 and handed down on 19 June 2014 (“the Tribunal”).

2. The first applicant (“the Applicant”) in this proceeding is the son of an Australian permanent resident (“the Sponsor”) and the primary applicant for an Other Family (Residence) (Class BU) Subclass 836 (Carer) visa. The second applicant is the wife of the Applicant and was included in the Applicant’s application for a carer visa as a member of his family unit. The claims of the second applicant are wholly dependent on those of the Applicant.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.

Background

1. On 24 August 2010, the Applicant lodged an application for a carer visa with the Department of Immigration and Citizenship (“the Department”).

2. On 27 November 2012, the Delegate refused the Applicant’s application for a carer visa.

3. On 5 December 2012, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.

4. On 19 June 2014, the Tribunal affirmed the decision of the Delegate not to grant a carer visa.

5. On 15 July 2014, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is an Other Family (Residence) (Class BU) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. For the grant of a carer visa, the Applicant was required to satisfy the criteria under cls.836.212 and 836.221 of Schedule 2 to the Regulations, as follows:

   “836.21 Criteria to be satisfied at time of application

   836.212 The applicant claims to be the carer of an Australian relative.

   836.22 Criteria to be satisfied at time of decision

   836.221 The applicant is a carer of a person referred to in clause 836.212.”

3. The term ‘carer’ is defined in reg.1.15AA of the Regulations, which relevantly provides as follows:

   “1.15AA   Carer

   (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):

   …

   (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

   …

   (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.

   (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.”

4. Under s.338 of the Act, a decision to refuse to grant a carer visa is a decision which may be reviewed by the second respondent.

The Delegate’s decision

1. On two occasions, dated 22 August 2012 and 12 October 2012, the Delegate requested the Applicant to provide documentary evidence, evincing that care was not available from any other family member of the Sponsor in Australia, or that the required care was not available from Australian welfare organisations or nursing homes.

2. On 23 November 2012, the Applicant’s sister responded to the letters by providing the Delegate with a copy of the Westmead Aged Care Assessment Team’s assessment on the level of care that the Sponsor required (“the ACAT Assessment”).

3. The Delegate found that the Applicant had not provided sufficient evidence to show that care was not available to the Sponsor from other family members residing in Australia, or from any Australian welfare organisations or nursing homes.

4. Accordingly, on 27 November 2012, the Delegate refused the Applicant’s application for a carer visa on the basis that the Applicant did not meet the definition of a ‘carer’ as required by reg.1.15AA(1)(e) of the Regulations, and therefore did not satisfy cl.836.221 of Schedule 2 to the Regulations.

The Tribunal’s review and decision

1. On 5 December 2012, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. The Applicant provided further documents in support of his review application, including various medical reports on the physical condition of the Sponsor, evidence from other family members in Australia and letters from various aged care facilities. 

3. On 6 January 2014, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 24 February 2014 to give oral evidence and present arguments.

4. On 24 February 2014, the Applicant attended the Tribunal hearing and gave evidence.

5. The Tribunal accepted that the Sponsor required ongoing full-time care and that the Sponsor’s relatives in Australia could not provide such care.

6. However, the Tribunal noted that the Sponsor had been approved for permanent residential care at a high level as demonstrated by the ACAT Assessment. This meant that the Sponsor was approved to enter into any residential care facility if she wished. The Tribunal noted that the Sponsor could access this care when a suitable vacancy became available. The Tribunal further noted that there was no information that such a vacancy would not become available.

7. The Tribunal accepted the Sponsor’s deep commitment to her Church and that residential care facilities could not provide her with the necessary transport and mobility assistance. However, the Tribunal noted that although the Sponsor’s relatives in Australia could not provide full-time care to the Sponsor, they could provide her with the necessary transportation to and from her Church.

8. The Tribunal rejected the Applicant’s claim that the Sponsor would suffer psychological illness if she was placed in a residential care facility on the basis that such a claim was speculative and there was no independent information to corroborate that claim.

9. Given these factors, the Tribunal was not satisfied that the assistance could not reasonably be provided by a relevant relative, or be obtained from welfare and community services in Australia. Therefore, the Tribunal found that the Applicant did not satisfy the requirements of reg.1.15AA(1)(e) of the Regulations.

10. For completeness, the Tribunal also noted that although the second applicant would be able to provide the required assistance to the Sponsor, the Applicant could not provide such assistance because he would need to obtain at least part-time employment. Accordingly, the Tribunal found that the Applicant did not meet the requirements of reg.1.15AA(1)(f) of the Regulations. 

11. Accordingly, the Tribunal affirmed the decision of the Delegate and rejected the Applicant’s application for a carer visa on the basis that the Applicant was not a ‘carer’ of the Sponsor and therefore did not meet the requirements in cl.836.221 of Schedule 2 to the Regulations.

The proceeding before this Court

1. The Applicant was represented before this Court by Mr David Godwin, of counsel. 

2. At the commencement of today’s hearing, counsel for the Applicant confirmed that the Applicant relied on the grounds contained in an Amended Application filed in Court at the hearing by consent, as follows:

   “1. The Tribunal failed to consider evidence that was significant and critical to the decision under review. 

   Particulars

   The Tribunal rejected the contention that care in a residential facility would exacerbate the depression of the Sponsor and cause psychological issues for her on the basis “that there is no independent information to indicate that this would be the likely outcome”. However there was evidence from Dr Huong Van Nguyen, Consultant Geriatrician that “For her overall care needs, low level residential care facility may be a suitable option for her but I am not certain that this will provide the necessary environment for her mental well-being”.

   2. The Tribunal misunderstood and misapplied the statutory test in regulation 1.15AA(1)(e) when it found that the assistance that the Sponsor needed could reasonably be obtained from welfare, hospital, nursing or community services in Australia or any other relatives.

   Particulars

   The Tribunal failed to assess the question of reasonableness of obtaining the assistance from the perspective of the Sponsor.

   3. The Tribunal misunderstood and misapplied the statutory test in regulation 1.15AA(1)(f) when it found that the assistance that the applicant could provide to the Sponsor was not substantial and continuing:

   Particulars

   (a) The Tribunal misunderstood and misapplied the criteria by finding that breaks when the applicant worked meant that the assistance was not continuing; and

   (b) The Tribunal misunderstood and misapplied the criteria by finding that the assistance that the applicant could provide was not substantial as it was “the second applicant who does the greater proportion of caring and that, were the first visa applicant to go out to work, this proportion would increase”.”

Ground 1

1. Ground 1 asserts that the Tribunal failed to consider evidence that was significant and critical to the decision under review.

2. The particulars in support of Ground 1 refer to a finding by the Tribunal that there was no independent information to indicate that care in a residential care facility would exacerbate the depression of the Sponsor and cause psychological issues for her. The particulars assert that there was evidence from the Sponsor’s consultant geriatrician that “for her overall care needs, low level residential care facility may be a suitable option for her but I am not certain that will provide the necessary environment for her well being.”

3. The applicant’s complaint in Ground 1 arises from the following paragraph in the Tribunal’s decision record:

   “50. The Sponsor is reluctant to live in a residential facility and the submission is that a course would exacerbate her depression and cause psychological issues for her. However, it is of the view that this is speculative; there is no independent information to indicate that this would be the likely outcome.”

   (Emphasis added).

4. However, I accept the submission of counsel for the first respondent, Ms Anna Mitchelmore, that the above paragraph in the Tribunal’s decision record is related to an earlier paragraph in the Tribunal’s decision record, as follows:

   “45. Following the hearing, then applicant's representative sent further information to the Tribunal. In a written submission, she stressed the Sponsor's deep commitment to her Church and that she needs one person's assistance to mobilise with her walkers. The representative submitted that the Sponsor is mentally alert and that if she is unable to exercise her mental ability as she does through these Church activates, she is likely to sink further into depression and become psychologically distressed.”

5. I accept Ms Mitchelmore’s submission that the Tribunal’s finding at paragraph [50] of its decision record did not rest on independent medical evidence. The Tribunal noted that if the Sponsor was unable to exercise her mental ability through Church activities, she was likely to sink further into depression and become psychologically distressed. To this end, the Tribunal found that the assistance in transporting the Sponsor to Church activities on a regular basis could reasonably be provided by the Sponsor’s daughter and granddaughter. In such circumstances, it was open to the Tribunal to find that it was “speculative” to claim that living in a residential care facility would exacerbate the Sponsor’s depression and cause psychological issues. The Tribunal made a clear finding that if in a residential care facility, the Sponsor’s daughter or granddaughter could and would take her to relevant Church activities.

6. The consultant geriatrician’s opinion does not constitute evidence contrary to those findings. The consultant geriatrician’s report, dated 29 September 2010, acknowledged that the Sponsor suffered from mild depression and that has “contributed to her fear of living alone and reduced ability to manage activities of daily living.” The report noted that being around the Sponsor’s family helped ease some of the symptoms of depression but that anti-depressants may also assist. The report concluded that “for her overall care needs, low level residential facility may be a suitable option for her but I am not certain this will provide the necessary social environment for her mental well being.”

7. I accept the first respondent’s submission that this report did not express a view on whether a move to such a facility was likely to exacerbate the Sponsor’s depression or cause her psychological distress. I also note that the consultant geriatrician was not asked to consider that issue in circumstances where the Sponsor was being taken to Church activities by her daughter and granddaughter, which it was acknowledged improved her depressive symptoms.

8. In the circumstances, I do not accept that the consultant geriatrician’s opinion was evidence that moving the Sponsor to a residential care facility would exacerbate her depression and cause her psychological issues.

9. Accordingly, Ground 1 is not made out.

Ground 2

1. Ground 2 asserts that the Tribunal misunderstood and misapplied the statutory test in reg.1.15AA(1)(e) of the Regulations when it found that the assistance that the Sponsor needed could reasonably be obtained from welfare, hospital, nursing or community services in Australia or any other relative of the Sponsor in Australia. The particulars in support assert that the Tribunal failed to assess the question of the reasonableness of obtaining the assistance from the perspective of the Sponsor.

2. In support, Mr Godwin referred the Court to Biyiksiz v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 814 (“Biyiksiz”), where Gray J stated at [17] that the words “cannot reasonably be obtained” should be read as “cannot reasonably be obtained by the person requiring the assistance”. In Biyiksiz at [20], Gray J stated that the words “cannot reasonably be obtained” must be construed by reference to reasonableness from the point of view of the person requiring assistance and not only by reference to the reasonable availability of the assistance from other sources. Further, at [23], Gray J referred to the error of the tribunal in the case before him as being that the tribunal had failed to consider the sponsor’s financial circumstances; the question of the sponsor’s comfort; and the sponsor’s preference of being cared for in her own home by her own daughter; and not merely the availability of assistance from welfare, hospital, nursing or community services. That is not so in the case before this Court.

3. Counsel for the Applicant, Mr David Godwin, submitted that the Tribunal failed to refer to the evidence before it that the Sponsor liked being in her own home; that Korean culture required her eldest son to look after her; that being at home was good for her mental health; that the ACAT Assessment said that living in her own home is the best option; and, that the consultant geriatrician recommended that she should live in her own rather than in an aged care facility.  

4. A fair reading of the Tribunal’s reasons do not support Mr Godwin’s submission that the Tribunal did not consider the reasonableness of obtaining the required assistance from the perspective of the Sponsor. I accept the summary in the first respondent’s submissions as accurately reflecting the matters considered by the Tribunal, as follows:

   “15. In relation to the criterion in reg 1.15AA(1)(e), the Tribunal:

   a. accepted the evidence of the sponsor’s daughter as to her work commitments, her health issues, the care she provided for her husband, and the circumstances regarding her son and her daughter (at [25], CB 334);

   b. in light of that evidence, was of the view that the sponsor’s relatives in Australia could not provide the full time care required (at [26], CB 334);

   c. notwithstanding the immediately preceding finding, considered that “the sponsor’s daughter and granddaughter are in a position to provide some assistance, such as with transport, on a reasonably regular basis” (ibid), later noting that the transport would include transport to doctor’s appointments and to Church if required (at [47], CB 336);

   d. referred to the evidence of the primary and secondary applicants at the hearing, to which reference has been made above;

   e. in relation to assistance which could reasonably be obtained from welfare and other services:

   i. was satisfied that the sponsor had been approved for high care residential care on a permanent basis, and that the approval was ongoing;

   ii. found that the sponsor could access this care whenever a suitable vacancy became available, there was no information that such a vacancy would not become available, and the care could be at facilities which looked after people of Korean background and which provided Korean speaking staff and culturally appropriate meals; and

   iii. noted that there were no financial barriers to her obtaining that care (at [48], CB 366-337);

   f. acknowledged the sponsor’s deep commitment to her Church, and that the activities she attended there provided mental stimulation and psychological benefits to her, and accepted that residential facilities could not necessarily provide the transport and assistance with mobility that she needed, but observed that the sponsor’s daughter and granddaughter would be able to provide such assistance between them on a fairly regular basis (at [49], CB 337);

   g. noted that the sponsor was reluctant to live in a residential facility, and referred to the submission that the representative had made, but considered that it was speculative with “no independent information to indicate that this would be the likely outcome” (at [50], CB 337); and

   h. accordingly, was not satisfied that the assistance that the sponsor required could not reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia (at [51], CB 337).”

1. In considering the particular cultural matters relevant to the Sponsor, the Tribunal noted as follows:

   “43. The representative stressed that culturally it is expected that the eldest son would take responsibility for aged parents and it is expected that daughters in law would provide help, which is what the second applicant has done. There is no direct responsibility on her but there is an expectation. The representative said that the applicant did the heavy lifting of equipment for the sponsor, such as her walking frame.

   44. The representative said that the applicant could work flexible hours; also, whatever the arrangements were, he would be the one who, as her son, had the responsibility for the sponsor’s care.”

2. Mr Godwin contended that the cultural expectation that the Applicant would look after the Sponsor as her eldest son was clearly significant and the Tribunal had failed to engage with that claim in its reasoning process with respect to the reasonableness of the Sponsor obtaining the assistance from other sources. Mr Godwin submitted that this was stressed in the representative’s submissions to the Tribunal as well as by the Applicant in his statutory declaration, and the social worker in her report. Mr Godwin submitted that the critical nature of that claim is enhanced by the fact that a consequence of the decision of the Tribunal is that the Applicant would have to return to Korea, in which case he could take no further part in the care of his mother.

3. Mr Godwin also asserted that the Tribunal did not engage with the representative’s submission to that effect. Mr Godwin submitted that the Court should infer that the Tribunal overlooked that claim given its reference to other cultural issues such as the availability of culturally appropriate food and Korean speaking staff.

4. At the conclusion of the hearing, the Applicant was granted leave to file and serve a Further Amended Application claiming that the Tribunal failed to consider the Applicant’s evidence that in Korean culture, the eldest son takes responsibility for the care of aged parents.

5. In support, Mr Godwin referred to BZAFI v Minister for Immigration and Border Protection [2015] FCA 771 per Rangiah J at [26] – [32], as follows:

   “26. As to whether the Tribunal considered the extract from the Information Book, the Tribunal did refer to it at para [67] of its reasons. The only other possible reference to the extract is at para [87] where the Tribunal said it had “considered the documents submitted in support of the applicant’s claims”. However, the Tribunal went on to specifically analyse a number of documents, but did not mention the extract from the Information Book.

   27. In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184, the Full Court said at 641 [47]:

   47. The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

   28. This passage is also applicable to the question of whether a piece of evidence has or has not been considered.

   29. In Minister for Immigration and Border Protection v MZYTS (2013) 136 ALD 547; [2013] FCAFC 114, the Full Court said at 561 [49]:

   49. The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present — and what is absent — from the reasons may in a given case enable a Court on review to find jurisdictional error: see Yusuf 206 CLR 323 at [10], [44], [69].

   30. A central issue the Tribunal was required to deal with was whether the appellant was wanted by the police in Sri Lanka and, if so, for what reason. The extract from the Information Book was a significant document because, on its face, it was a clear statement from the police themselves that the appellant was wanted on suspicion of terrorism. In view of some of the appellant’s evidence about the ease with which he was able to obtain forged papers in Sri Lanka and ease with which officials are able to be bribed, the Tribunal was entitled to be suspicious of the extract. However, if the Tribunal found that the extract was not forged and was not obtained by bribery and contained a genuine account, it would have gone a long way towards the appellant establishing his claim.

   31. The Tribunal did not make any specific finding as to whether the extract was genuine and whether its contents were true. In contrast, the Tribunal made specific findings about documents of much less significance, such as letters from employers and a letter from the appellant’s uncle.

   32. In these circumstances, the absence of any specific analysis of the extract from the Information Book indicates that, beyond the existence of the extract being mentioned, it was overlooked: cf Minister for Immigration and Border Protection v MZYTS at 560 [41].”

6. The first respondent referred to Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, where Robertson J at [71] identified factors from which an inference may be drawn that particular evidence was not considered. Those factors included: the absence of any reference to the document in question in the course of the hearing or in a tribunal’s reasons; the critical corroborative nature of the evidence in question; the fact that there was “not a skerrick of specific evidence” showing that a tribunal had given consideration to the document; and, the use by a tribunal of a “general and formulaic statement” that it had considered material on the department’s and tribunal’s files.

7. The first respondent submitted that the fact that the Tribunal did not refer to the Applicant’s claim when the representative’s submissions were summarised in its findings does not ground an inference that that claim was not considered. The first respondent submitted that that is particularly so where it is apparent that the Tribunal considered the question of whether the assistance could reasonably be obtained from welfare, hospital, nursing or community services in Australia with reference to the Sponsor’s cultural circumstances.

8. As is clear from paragraphs [43] and [44] of the Tribunal’s decision record cited above, the Tribunal understood that the claim that the eldest son would take responsibility for aged parents in Korean culture was stressed by the Applicant’s representative, as was the assistance the applicants were able to provide to the Sponsor. The Tribunal immediately went on to consider the Sponsor’s deep commitment to her Church and the assistance that she needs to continue to participate in those activities. The Tribunal then considered the availability of residential care facilities.

9. The Tribunal found that the Applicant’s relatives in Australia could not provide the full-time care required and that the Sponsor had been approved for high-care residential care on a permanent basis and that such approval was ongoing. The Tribunal found that there were no financial barriers to the Sponsor obtaining that care. As stated above, the Tribunal referred particularly to facilities available to people of Korean background with Korean speaking staff and culturally appropriate meals.

10. The Tribunal gave specific consideration to the importance to the Sponsor of the mental stimulation and psychological benefits provided by her Church activities and was satisfied that the Sponsor’s daughter and granddaughter could provide the transport assistance necessary for the Applicant to participate in those activities. The Tribunal concluded that it was not satisfied that the required assistance could not reasonably be provided by a relative or be obtained from welfare, hospital, nursing or community services in Australia. Accordingly, the Tribunal found that the requirements of reg.1.15AA(1)(e) of the Regulations were not met.

11. In the circumstances, I do not accept the Applicant’s contention that the Tribunal ignored the Applicant’s claim that in Korean culture it is expected that the eldest son will take responsibility for aged parents. The manner in which the Tribunal identified the relevant claims and the structure of its findings lead to the overwhelming inference, which I draw, that indeed the Tribunal considered that claim in reaching its conclusion that the requirements of reg.1.15AA(1)(e) of the Regulations were not met.

12. Further, as is clear from the references above, the Tribunal clearly considered whether the required assistance could not reasonably be provided by any other relative of the Sponsor or be obtained from welfare, hospital, nursing or community services in Australia from the perspective of the Sponsor. The Tribunal’s reasons make clear that it was aware that the Sponsor was reluctant to live in a residential care facility and that she wished to be cared for by her eldest son. However, the Tribunal was not satisfied that the assistance she needed could not reasonably be provided for by a relative or be obtained from welfare, hospital, nursing or community services. Therefore, the Tribunal found that the requirements of reg.1.15AA(1)(e) of the Regulations were not met by the Applicant. That finding was open to the Tribunal on the evidence and material before it, and for the reasons it gave.

13. Accordingly, Ground 2 and the further particulars in the Further Amended Application are not made out.

Ground 3

1. Ground 3 contends that the Tribunal misunderstood and misapplied the statutory test in reg.1.15AA(1)(f) of the Regulations when it found that the assistance that the Applicant could provide to the Sponsor was not substantial and continuing. In support, the particulars asserted that the Tribunal misunderstood and misapplied the criteria by finding that the assistance that the Applicant could provide was not substantial and continuing because of breaks that he had when he worked and because the second applicant provided the greater proportion of care to the Sponsor.

2. The Tribunal’s findings in relation to that issue are as follows:

   “55. As indicated, the Tribunal is satisfied that the first visa applicant is able and willing to provide the assistance the sponsor requires. The issue is whether this is “substantial and continuing assistance.” The information provided by the visa applicants is that the first visa applicant would have to work at least part-time, for financial reasons. There would therefore be regular periods of time when he was not able to provide any assistance. Further, the information concerning the actual care provided at this time shows that the second visa applicant provides at least half the assistance required; possibly more. She does the majority of the personal care such as toileting, dressing, mobilising of the sponsor. She also does her cooking and takes her for outings, including to Church with the first visa applicant. The Tribunal is of the view that it is the second applicant who does the greater proportion of caring and that, when the first visa applicant were to go out to work is proportion would increase.

   56. The Tribunal finds that the review applicant is not willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and therefore does not meet the requirements of r.1.15 AA(1)(f).”

3. To fall within the requirements of reg.1.15A(1)(f) of the Regulations, a visa applicant must be willing to provide not only substantial assistance and not only continuing assistance, but assistance which is both substantial and continuing (see Perera v Minister for Immigration and Multicultural Affairs [2005] FCA 1120 at [17] per Gray J). Gray J makes clear that the word “substantial” is directed to the level of assistance that a visa applicant is willing to provide, and that the word “continuing” is directed to the duration of that assistance “in that is focuses attention on whether the assistance is short-term or sporadic”.

4. Whether assistance is substantial and/or continuing is a question of fact (see Narayan v Minister for Immigration & Multicultural Affairs [2001] FCA 1745 at [44] per Lindgren, Tamberlin and Merkel JJ; Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 88 at [24] and [27] per Moore, Emmett & Bennett JJ; and Kankanamage  v Minister for Immigration & Multicultural Affairs [2006] FCA 484 at [23] per Collier J).

5. The Tribunal’s decision record notes that the Tribunal raised with the Applicant the requirement that the person providing the care be willing and able to provide substantial and continuing assistance of the kind needed. The Tribunal accepted that the Applicant was willing and able to provide the care but put to the Applicant that there was an issue as to whether it was substantial and continuing. The Tribunal referred to evidence given by the Applicant that he would have to work at least part-time and put to the Applicant whether the care he was able to provide would be substantial, or whether a significant amount of that care would in fact be provided by the second applicant, being the Applicant’s wife.

6. The Tribunal then referred to the second applicant’s evidence that she provided some care to the Sponsor herself and identified what that care was. It included the Sponsor’s toileting, showering, dressing and cooking. It also included assisting the Sponsor out of a chair to a walking frame. The Tribunal also noted the second applicant evidence that she and the Applicant put the Sponsor to bed, shared the washing, house work and shopping, and that all three went to Church on Fridays and Saturdays. The Tribunal further noted the second applicant’s evidence that if visas were granted, the second applicant would need to care for the Sponsor and the Applicant would need to go to work, although they would continue to live with the Sponsor.

7. The Tribunal found that there would be regular periods of time when the Applicant would not be able to provide any assistance as he would have to work at least part-time for financial reasons. The Tribunal found that the second applicant did the majority of the personal care and provided at least half the assistance required, possibly more. The Tribunal found that the second applicant, who does the greater proportion of caring, would need to increase her care when the Applicant went to work.

8. Accordingly, the Tribunal found that the Applicant was not willing and able to provide to the Sponsor substantial and continuing assistance of the kind needed. Therefore, the Tribunal found that the Applicant did not meet the requirements of reg.1.15AA(1)(f) of the Regulations. Those findings and conclusions were open to the Tribunal on the evidence and material before it, and for the reasons it gave.

9. The Applicant’s contentions in relation to Ground 3 essentially arise out of a disagreement with the findings and conclusions of the Tribunal on this issue. Such a disagreement invites merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53] – [54] per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

   “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

10. Accordingly, Ground 3 is not made out.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses.

2. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Tribunal’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.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:19 May 2016