Kaur v Minister for Immigration
[2018] FCCA 1942
•7 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1942 |
| Catchwords: PRACTICE & PROCEDURE – Leave granted to the applicant to file an affidavit annexing a transcript of the Tribunal hearing and written submissions regarding her application at the Tribunal hearing for additional time to submit further documents. |
| Legislation: Migration Act 1958 (Cth), ss.360, 363(1)(b) |
| Cases cited: AYX17 v Minister for Immigration & Border Protection [2018] FCAFC 103 |
| Applicant: | KULDIP KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 541 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 10 May 2018 |
| Date of Last Submission: | 31 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 7 August 2018 |
REPRESENTATION
| The applicant appeared in person. |
| Solicitors for the Respondents: | Ms K Garaty, HWL Ebsworth |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 541 of 2017
| KULDIP KAUR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India. On 27 August 2015, she applied for an Other Family (Residence) (Class BU) Carer visa in order to look after the sponsor, her aunt. On 15 April 2016, a delegate of the Minister made a decision to refuse the grant of the visa. The applicant applied to the Administrative Appeals Tribunal for review of that decision and on 19 January 2017, the Tribunal made a decision affirming the decision of the delegate.
In order to be granted a visa, the applicant was required to meet the criterion in cl.836.221 of sch.2 to the Migration Regulations 1994 (Cth). That clause provides:
The applicant is a carer of a person referred to in clause 836.212.
Clause 836.212 provides that the applicant was a carer of an Australian relative. A “carer” is a person identified in reg.1.15AA(1) of the Regulations. Regulation 1.15AA(1) at the time the visa application was made provided:
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):
(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 in a legislative instrument made by the Minister for this paragraph; and
(d)if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); and
(e)the assistance cannot reasonably be:
(i) provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or
(ii) obtained from welfare, hospital, nursing or community services in Australia; and
(f)the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires.
(Emphasis in original)
The applicant’s aunt (the sponsor) is an Australian relative within the meaning of the Regulations. She suffers from osteoarthritis which affects her right knee, diabetes, hypertension and lumbar and cervical spondylosis and scoliosis. In her application, the applicant claimed that she would be assisting her aunt with tasks that her uncle could not do such as bathing, toiletry assistance, supervision of medication and attending medical appointments with the sponsor.
A Carer Visa Assessment certificate (carer certificate) dated 12 August 2015 recorded that the sponsor had medical conditions that significantly restricted “[h]er mobility and ability to carry out almost all activities of daily living”. The certificate also recorded that the medical condition meant that the sponsor had a need for direct assistance in attending to those aspects of daily life and that need would continue for at least two years. The certificate rated the permanent conditions a 30 under the Impairment Tables[1].
[1] Impairment Tables means Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, formerly found in sch.1B to the Social Security Act 1991 (Cth), as repealed.
On 25 January 2016, a delegate of the Minister wrote to the applicant requesting she provide further evidence as to:
i)the relationship between her and the sponsor;
ii)why other family members in Australia were unable to provide the assistance required;
iii)why assistance could not be obtained through hospital, nursing, welfare or other community services; and
iv)the applicant’s willingness and ability to provide such assistance.
The applicant did not respond to this request and on 15 April 2016 the delegate refused to grant the applicant a visa on the basis that she did not satisfy the requirements of sub-regs.1.15AA(1)(e)(i) and (ii). The applicant applied to the Tribunal for review of that decision.
On 19 January 2017, the applicant attended a hearing conducted by the Tribunal and on the same day the Tribunal made its decision affirming the decision of the delegate.
Tribunal’s decision
The Tribunal found that there was limited probative evidence concerning the availability of assistance before it. Although there was also little evidence before it concerning the sponsor’s husband, the Tribunal accepted the applicant’s evidence that he required surgery and would be unable to care for the sponsor for a period of time. It was not satisfied that this surgery would prevent the husband from providing long term care for the sponsor.
The applicant gave evidence at the hearing that the sponsor had adult children and grandchildren, however, they were unwilling or unable to care for the sponsor. The sponsor’s son lives in another State and the sponsor’s daughter has her own commitments including 3 children, one of whom is an adult living independently. The applicant also gave evidence that the sponsor and her daughter did not have a good relationship. The Tribunal found that there was inadequate evidence before it as to why some assistance or care could not be provided to the sponsor by other family members or relatives. For that reason, it was not satisfied that the assistance could not reasonably be provided by any other relative of the sponsor.
At the hearing the Tribunal raised with the applicant whether community services had been approached for assistance. The applicant answered that the sponsor preferred to be cared for by members of the family as she was very religious and a vegetarian. The carer certificate before the Tribunal referred to an ACAT assessment, however, due to the little evidence provided by the applicant concerning the sponsor’s approaches to community services for assistance, the Tribunal was not satisfied that assistance could not be obtained from such organisations and accordingly, the applicant did not meet sub-reg.1.15AA(1)(e) of the Regulations.
The applicant’s evidence was that she lived and worked in Sydney and spent a full day or a few hours each week in Griffith assisting the sponsor. The applicant stated that to meet living expenses she needed to work in Sydney, however if the visa was granted she would move to Griffith to care for the sponsor. The sponsor would provide the applicant with food and accommodation. The Tribunal was not satisfied that the applicant was willing and able to provide continuing assistance to the sponsor and took the view that it was “the applicant’s desire is to work in Australia rather than provide care to her aunt”. On the basis of its findings, the Tribunal concluded that the applicant was not a carer to an Australian relative and did not satisfy cl.836.221 of the Regulations.
Consideration
The applicant seeks judicial review of the Tribunal’s decision and raises three grounds:
1.Administrative Appeal Tribunal affirmed the decision made by DIBP office to refuse to grant carer visa subclass 836.
2. There are clear evidences that I am related to the sponsor and I have responsibilities towards the sponsor to take care of her for her daily needs.
3. The tribunal affirmed the decision purely on this basis that I have not been living with my Aunty (Sponsor) as I am based in Sydney and my Aunty (Sponsor) lives Griffith, then as such why would she need the carer. My point of argument is that although I have been living with in Sydney and every week I go to Griffith to take care of Aunty (Sponsor), yet I have also checked with DIBP office many times who have told me that I have applied for the carer visa and until my visa is granted, I don’t have an obligation to live with my Aunty on fulltime basis. On this basis of this, I have been living in Sydney so that I can work to earn and save some money which I often use to travel to my Aunty in Griffith every week and spend on her to take care of her. I have been organising all the necessary things when I visit her so that she is all ok for the next few days until to return back. My other point of argument is that if I were offshore, then I would have to wait till I am granted a visa to join my Sponsor (Aunty) to take care of her. So therefore I find an error in Administrative Appeal Tribunal’s decision in not making a correct judgement and affirming the decision made by DIBP office.
(Without alteration)
None of these grounds raises any jurisdictional error in the Tribunal’s decision. The first ground is a simple statement of fact which may explain the reason the applicant has brought these proceedings, but goes no further.
The second ground is an assertion of two facts said to have been established on the evidence (presumably that before the Tribunal). The first fact is that the applicant is her sponsor’s relative. That fact was accepted by the Tribunal: [6].
The second fact is that the applicant has “responsibilities towards the sponsor to take care of her for her daily needs”. It is not entirely clear what this means. If it means simply that the applicant has some form of obligation to care for her sponsor, moral or otherwise, there are at least two difficulties: first, there was no evidence before the Tribunal to support the asserted fact; and secondly, it is not a fact that arose on the review. The Tribunal was required to determine whether the criteria for the grant of the visa were met. The criterion which addressed the applicant’s care for the sponsor was that she be the sponsor’s “carer”. The relevant part of the definition of “carer” in reg.1.15AA was sub-reg.1.15AA(1)(f):
(f)the applicant is willing and able to provide to the resident substantial and continuing assistance …
That is a different question to the question whether there is some form of obligation on the visa applicant to provide the relevant care.
For those reasons the second ground is rejected.
The third ground takes issue with the Tribunal’s conclusion (at [19] – [21]) that the applicant was not willing and able to provide the substantial and continuing assistance required by the sponsor: that is, that sub-reg.1.15AA(1)(f) was not satisfied. The ground puts forward reasons why this part of the criterion ought to have been accepted. However, it was a matter for the Tribunal whether it accepted the applicant’s claims. So long as the Tribunal made its findings based on rational inferences drawn from the material before it, the Court cannot interfere with its conclusions. In my view, the inference that the applicant was not willing and able to provide the care, could rationally be drawn from the fact that the applicant lived and worked 6 days per week in Sydney and her sponsor lived in Griffith, many hours away from Sydney.
It must be remembered that the assistance required was “in attending to the practical aspects of daily life”: sub-reg.1.15AA(1)(b)(iv). That is quite different to helping with the housework and shopping one day a week. The fact that the applicant was providing limited assistance one day a week before she is granted the visa, can support the inference that she would not want to do more after a visa was granted. For those reasons the third ground is rejected.
There are two further issues that need to be addressed. The first issue arises from an affidavit of the applicant dated 8 September 2017, to which are annexed a number of documents which, the applicant says, were not “done” by her migration agent.
At the hearing before me, the applicant explained that this meant that the agent had not lodged the documents at the Tribunal. She further said that the Tribunal had not given her time to get documents. The suggestion was that, at the Tribunal hearing, the applicant had requested further time to produce documents in support of her application and that, had she been given time, she would have produced the documents annexed to her affidavit.
As the applicant was unrepresented and her suggestion was not supported by evidence, she was granted leave to file an affidavit attaching a transcript of the Tribunal hearing and written submissions about any application by her for time to submit further documents. The applicant filed an affidavit annexing the hearing transcript in accordance with that leave; however, her affidavit included submissions that went beyond the scope of the Court’s leave. I have considered the transcript but not the submissions insofar as they did not fall within the scope of the order made at the hearing.
There is one part of the transcript which may be relevant to the applicant’s claim. The context is a series of questions by the Tribunal about whether the applicant was willing and able to provide the required assistance to her sponsor. The following exchange took place (T.5.28):
Q.Well how does she manage six days a week when you’re not there do you think?
A.Her, her husband, you know my uncle and he help her but now … (not transcribable) … I think 24 January he got surgery, that’s why they need me.
There follows a number of questions before the Tribunal returns to the applicant’s uncle (T.8.4):
Q.… So what operation does your uncle require?
A.I think he got a, a stomach ulcer, yeah.
…
Q.Well I don’t have any medical evidence so I don’t have enough to satisfy me that her husband, your aunt’s husband cannot actually care for her, you’ve mentioned an operation—
A.Mm mm.
Q.–that’s you know one week in hospital, there’s no reason why he can’t look after her afterwards.
A.If you need that documents then I, I—
Q.Ms Kaur, your application was refused by the Department –
A.Yeah.
Q.–eight months ago, nine months ago—
A.Mm mm.
Q.–because the Immigration officer wasn’t satisfied that your aunt can’t get assistance from other sources.
A.Mm mm.
Q.Presumably in the last eight or nine months —
A.Mm mm.
...
Q.—what evidence you want to provide to the Tribunal.
A.Mm mm.
...
The applicant did not mention further documents again. Towards the end of the hearing the Tribunal asked whether there was anything else it might need to consider. The applicant said “No” (T.13.43). The Tribunal then asked if there was anything else before the hearing concluded. The applicant again answered “No.”
There was no request by the applicant for further time to produce documents. At most, there was a suggestion that, if the Tribunal wanted some evidence of the illness of the sponsor’s husband, the applicant could get that. She did not specify what evidence that might be, other than by a vague reference to “that documents”. The Tribunal noted that there had been plenty of time for the applicant’s agent to think of this and to produce documents. That is so. One of the delegate’s concerns was the complete lack of evidence about the availability of care from relatives. The delegate’s decision was made on 15 April 2016, nine months before the Tribunal hearing and it was the very subject of the review.
At its highest, the evidence suggests that the applicant sought further time to produce documents that she had had many months to obtain, being fully aware that the lack of evidence had been a critical issue before the delegate and so was likely to be critical on review by the Tribunal.
The failure by the Tribunal to exercise a power such as its power under sub-s.363(1)(b) of the Migration Act 1958 (Cth) to adjourn the review may be so unreasonable as to give rise to jurisdictional error: Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437. Such unreasonableness may be discerned from illogicality in apparent reasons for the failure to exercise the power or from the result which might have no intelligible justification. While the concept of legal unreasonableness is not amenable to minute and rigidly-defined categorisation or a precise textual formulary, especially when it comes to the outcome-focused application of the concept[2], it is important to bear in mind that, in determining the question of unreasonableness, the Court is concerned with determining whether there has been a lawful exercise of power having regard, in particular, to the terms, scope and purpose of the statute conferring the power: Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1 at [92] (Wigney J); AYX17 v Minister for Immigration & Border Protection [2018] FCAFC 103 at [39].
[2] Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1 at [7] and [10] (Allsop CJ)
Given the unidentified nature of the “documents” referred to by the applicant at the hearing, the fact that they might have, but could not certainly be said to have been, relevant only to an issue that was accepted by the Tribunal (the sponsor’s husband’s ill-health and need for surgery), the fact that the issue of the availability of care for the sponsor had been alive throughout the visa application process, and the applicant’s failure to produce anything up to the hearing (or to explain why that was the case), it cannot be said that the failure to adjourn the review to enable the applicant to produce the “documents” could not have been done on a proper understanding of the scope of the power to adjourn in the context of the Act as a whole. For those reasons, there was nothing legally unreasonable in the Tribunal’s conduct of the review in respect of the documents referred to by the applicant. For the same reason, there was no denial by the Tribunal of the opportunity to give evidence and present arguments pursuant to s.360 of the Act.
I indicated at the hearing that I would rule on the admissibility of the applicant’s affidavit dated 8 September 2017 in light of the transcript and submissions filed by the applicant after the hearing. For the following reasons, that affidavit is rejected as irrelevant.
The first three documents annexed to the applicant’s affidavit were documents that were intended to be produced, in response to a request for further information by the Department, made by letter dated 25 January 2016. As such, they are not relevant to any issue before the Court. The first document is the same checklist that appears at page 2 of that request: cf. CB 72. The second document is the third page of that request: CB 73. The third document is Departmental Form 1221, “Additional personal particulars information”, which gives some details about the applicant that did not address any of the relevant criteria.
The next document is an affidavit from India dated 9 June 2016, after the delegate’s decision. The affidavit states the relationship between the applicant and the sponsor which, as I have noted, was accepted by the Tribunal. There follow copies of two passports which are, again, uncontroversial and added nothing to the relevant issues before the Tribunal. Next, there were what appeared to be 2 wedding photographs. There was then a statutory declaration made by the sponsor on 4 September 2017, well after the Tribunal’s decision. The declaration attaches a statement by the sponsor concerning the availability of care from relatives and that her husband suffers from cancer and other health problems.
The second issue arises from part of the Tribunal’s reasons at [16] of its decision. There, it was considering the availability of assistance from the sponsor’s two adult children. It said:
... There is no evidence (for example, in the form of declarations) to satisfy the Tribunal that at the time of this decision, the sponsor’s daughter is unwilling to provide at least some degree of care to her mother. As for being able to do so …
The issue arises from the Tribunal’s consideration of the daughter’s willingness. The relevant part of the definition of a carer is sub-reg.1.15AA(1)(e):
(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;
...
(Emphasis added)
Prior to 9 November 2009 the definition of “carer” involved an assessment of whether the relevant assistance could be “obtained” from another relative. It was explained in a number of decisions of the Federal Court that this involved an inquiry not only as to whether the assistance could be given, but also whether, from the perspective of the relative, the assistance would be given: see for example Naidu v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 140 FCR 284. The effect of the former definition was explained by Bromwich J in Nguyen v Minister for Immigration & Border Protection [2016] FCA 1460 at [50]:
The net effect of paragraph (e) as it existed in the previous format relying on the term “obtained” is that it was previously open to family members in Australia, although perfectly capable of reasonably providing assistance, to decline or refuse to do so. If so, it could not be said that such assistance could reasonably be “obtained”.
(Emphasis in original)
Clearly enough, the willingness of the relative to provide the assistance was relevant to the former definition.
The change in the definition from “obtained” to “provided” was made by the Migration Amendment Regulations 2009(No. 13) (Cth): see sch.3 items 2, 3 and 4, which commenced on 9 November 2009. It is plain that one of the purposes of the amendment was to overcome the effect of the Federal Court authorities in respect of the old form of the definition. The Explanatory Statement accompanying the amending regulation confirms that much:
The purpose of this amendment is to ensure that it is open to decision-makers to conclude that assistance could reasonably be provided by relatives residing in Australia even in circumstances where those relatives residing in Australia claim to be unwilling or unable to provide assistance.
When this issue was raised at the hearing, the solicitor for the Minister argued that the Tribunal’s consideration of the daughter’s willingness to provide assistance was relevant to its consideration of whether the assistance could be provided. I disagree. The amendment to the definition of carer makes it plain that the willingness of the relative to provide the assistance is not relevant to the definition of a carer for the purposes of the Regulations. In my view, the Tribunal has wrongly applied the test relevant to the visa applicant, namely, that she be willing and able to provide the assistance. However, I do not consider that the error was material to the decision. Each of the elements of the definition of “carer” must be satisfied. There was no error in the Tribunal’s conclusion, at [21], that the applicant herself was not willing to provide the required assistance.
I should note that no criticism is or can be levelled at the Minister in respect of this point as it was raised without notice at the hearing, the applicant not having raised it herself.
Conclusion
There is no jurisdictional error in the Tribunal’s decision. Alternatively, even if the error identified in [16] of the Tribunal’s decision did amount to jurisdictional error, relief ought to be refused as a matter of discretion because the Tribunal was obliged to reach the same decision in light of its finding at [21].
The application must be dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 7 August 2018
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