KHEIR v Minister for Immigration

[2016] FCCA 1577

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHEIR & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1577

Catchwords:
MIGRATION – Application for judicial review of decision of the Migration Review Tribunal – application for carer’s visa – whether Tribunal properly considered claims that elderly female required female carer to assist with intimate functions – conclusion that Tribunal did not properly consider sufficiently clearly articulated claim – application granted.

Legislation:

Migration Regulations 1994, reg.1.15AA(1)(e)

Cases cited:
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZVMQ v Minister for Immigration and Border Protection [2016] FCA 558

First Applicant: RANA KHEIR

Second Applicant: OSSAMA ZREIKA

Third Applicant: RAMA ZREIKA

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2151 of 2014

Judgment of: Judge Burchardt

Hearing date: 27 April 2016

Date of Last Submission: 27 April 2016

Delivered at: Melbourne

Delivered on: 6 July 2016

REPRESENTATION

Counsel for the Applicant: Ms Harris

Solicitors for the Applicant: Bardo & Erci Lawyers

Counsel for the Respondent: Mr Wood

Solicitors for the Respondent: DLA Piper Australia

ORDERS

1. A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 26 September 2014.

2. A writ of prohibition issue directed to the First Respondent preventing him or his agents or delegates from acting upon or giving effect to or enforcing the Tribunal decision.

3. A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.

4. The First Respondent shall pay the Applicant’s costs.

5. The name of the Second Respondent be amended to ‘Administrative Appeals Tribunal’

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2151 of 2014

RANA KHEIR

First Applicant

OSSAMA ZREIKA

Second Applicant

RAMA ZREIKA

Third Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. By amended application filed on 1 April 2016 the Applicants seek judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 26 September 2014.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant’s Other Family (Residence) (Class BU) visas.  The first Applicant is the substantive Applicant.  Second and third Applicants are her husband and child who apply as family members.

2. Although there are two grounds of application both counsel adopted the position that in substance there is really only one matter for the court to determine.  That is whether the Tribunal considered, as the Applicant submits it should have, the evidence put forward by the Applicant that her proposed sponsor required her assistance in various tasks and that this assistance could not be provided by other family members or other assistants.  The vital consideration was that the sponsor is a woman of some 65 years of age at the time of the Tribunal’s decision and some of the matters with which she requires assistance involve intimacy (showering, toileting and so on). 

3. For the reasons that follow I think that when the Tribunal’s decision is read fairly and as a whole, it is apparent that the Tribunal did indeed fail to consider the evidence put before it about the critical issue and failed to properly consider and dispose of it. This in my opinion did constitute jurisdictional error in the way it fulfilled and discharged its determination of the application and accordingly the application will succeed.

The Material Before the Tribunal

1. When, as here, the grounds of application essentially amount to an alleged failure by the Tribunal to consider the evidence before it it is inevitable that careful regard must be had to the materials provided by the Applicant and her advisers from to time. 

2. The Applicant’s migration agent wrote to the First Respondent on 10 March 2012 enclosing an application for a carer visa.  The Applicant at the time was in Australia on a student visa.  Relevantly, the letter asserted (Court Book “CB” 1) “She is applying to be a carer for her aunt, Amoun Ehrek, who has an impairment total rating of 45 which has been assigned by the Medibank Health Solutions.”

3. The letter went on to say at CB1-2:

   “The sponsor has physical impairment and she is unable to attend to her daily life aspects and therefore she requires constant care.  She suffers from osteoporosis for a few years and long term severe lumbar spines (sic) disc prolapse.  That causes her severe pain in her right leg and difficulty walking.  In addition to that, she also suffers hypertension and dyspepsia.  All that makes her life unbearable and do not allow her to perform her daily life activities.  She even could not attend medical appointments because of the severity of her medical condition.  Regarding her age, religious belief, social and traditional reasons, she needs a female relative to care for personal matters and for her regular and constant care.  She therefore sponsoring Rana who is able to provide her with the specific daily care that she requires.”

4. At CB16, in part L of the application for a visa, details of the sponsor are given.  She was born on 10 September 1949 and is described as an aunt.  The medical condition that led to the necessity for assistance was described as, “osteoarthritis of small joints, loss strength and dexterity, lumbar spondylosis”, and at paragraph 68 the assistance to be provided was described as, “Assist the patient in daily activities.  Assist in shower, dressing, medical appointment, assist in administering medications.”

5. At CB18 additional information was provided as follows:

   “Her husband is the current carer for my aunt. 

   He cannot provide all required assistance for females. 

   She needs a female (relative) who could provide the required essential assistance for an old sick lady. 

   Her daughter in Melbourne is a married sick lady with three young children who also need constant care. 

   Her other daughter is married and lives in Sydney. 

   Her sons could not provide assistance for their mother.”

6. The sponsorship form completed by the sponsor reveals that the sponsor is in receipt of a disability support pension but does otherwise take the matter further.  The character assessment documentation provided by the Applicant reveals that she arrived in Australia on a student visa on 14 January 2011 (CB38).

7. At CB54 a medical certificate from the Bell Street Family Medical Centre confirms that:

   “This letter is to confirm that Mrs. Amoun Ehrek has been suffering from osteoporosis for a few years, and long term severe lumbar spine disc prolapse causing pain in her right leg and difficulty walking.  She is also suffering from hypertension and dyspepsia. 

   Due to her current medical condition, Mrs. Ehrek requires a carer on a daily basis.” 

8. At CB68 there is a report on examinee (Mrs Ehrek) from Dr David Wong-Shee.  The summary of clinical findings reads:

   “This report was compiled on the basis of an interview and clinical assessment.  The applicant’s “statement of care needed’ and the report from doctors Khoury and Alethan are noted. 

   The available information indicates that this 62 year old applicant has osteoarthritis of the small joints of both hands.  The claimant has demonstrable evidence of loss of strength and dexterity of both upper limbs which causes moderate and significant interference with non-dominant and dominant hand function/manual handling respectively. 

   The claimant has a history of lumbar spondylosis.  The claimant has moderate to severe lower back pain which occurs with many activities and limits standing and sitting to 15-30 minutes at a time.  The claimant has a 1/2 loss of back movement. 

   As a result of these conditions the Applicant is dependent on others for direct assistance with practical aspects of daily life (i.e. bodily functions) frequently each day. 

   I am satisfied that all the requirements for a carer visa are met.”

9. At CB69 Dr Wong–Shee’s assessment of various areas is set out.  The sponsor requires assistance in inter-alia in hygiene (washing the person, helping the person in/out of bath or shower), toileting (helping the person on/off the toilet and incontinence), dressing/undressing, grooming, hair care, dental care, assisting with buttons and zippers and giving or supervising medication, which given the facts of the matter appears to be limited to administering timed medication.  At CB70 the report noted that the medical condition resulted in the need for personal care and attention on a daily basis to carry out routine bodily functions and assessed a total rating of 45.

10. At CB72 Dr Wong-Shee’s certificate in relation to the sponsor is set out.  The certificate inter-alia noted that the sponsor had a medical condition that was causing physical impairment of her ability to attend to the practical aspects of daily life, had a need for direct assistance in attending to the practical aspects of daily life because of a medical condition and that the medical condition would continue for at least two years and would continue to require direct assistance in attending to the practical aspects of daily life. 

11. On 12 March 2013 the Applicant’s migration agent filed a substantial tranche of material with the First Respondent (CB90-166).  These included statutory declarations from the sponsor’s relatives in Australia, all stating reasons for not being able to provide care for the sponsor.  At CB91 the letter asserted that the sponsor’s relatives are unable to provide assistance or care for the sponsor.  The letter went on to say:

    “For the community health services and the possible assistance it could be acceptable for the sponsor and her family, but because of the constant and regular care that she requires, it could be extremely difficult for her and for the family to accept it.  That is because of the religious and traditional/cultural reasons.  The sponsor is of Moslem faith and that makes it prohibited to have her body or part of it exposed to a stranger, in particular a male stranger.  They could not accept that and would rather insist on a close female relative to care for her.  Although her husband is currently caring for her, yet he could not continue caring or providing full care for her regarding his health and as the sponsor’s deteriorating health problems.  That makes her in need for more care than what she used to receive before.  Such new needs are so sensitive for women and her husband is unable to do so.”

12. The letter went on to assert that the Applicant was able and willing to provide the necessary care for the sponsor although she was at that time living in Sydney and the sponsor was living in Melbourne.  It was posited that the Applicant would move to Melbourne with her family and live with another aunt who lives near the sponsor’s house.  The letter continued:

    “Rana will live at this address which is about two minutes walking.  She can assist the sponsor in showering, dressing, changing cloths (sic), brushing her teeth and cleaning her mouth.  She assists in attending medical appointments, administering medications regularly, taking her out for walking, shopping and assist her at night for toileting and cleaning her.  That is in addition to preparing her food and to feed her.  She is currently on the waiting list for a surgery.”

13. The letter went on to assert the Applicant’s suitability and preparedness to provide care for her aunt and noted the application of the Second and Third Applicants  as dependent family members

14. The materials forwarded by the agent with the letter included assertions by each of the sponsor’s relatives in Australia that they could not provide any assistance to the sponsor.  In the main the matters asserted were either fulltime employment and/or the necessity to look after their own families.  One niece, Maryam Seedat, deposed (CB117) that she could not assist because she had just started “a fulltime nursing course that will take up most of my time”.

15. The decision record of the delegate is at CB172-179.  The delegate noted the difficulties that the sponsor faced and summarised some of the statutory declarations at CB174 as follows:

    “1.    Ahmed Ehrek, husband, currently unemployed, states that he is currently providing some care for his wife but is limited to the extent of the care needed.  He states that his wife feels more comfortable when his niece, for example, takes her to the toilet, bathes her and gives her the proper prescribed medication needed as he is illiterate.  He provided no supporting information. 

    The sponsor’s form 40 states that she is a pensioner and in receipt of a Disability Support Pension.  In answer to Question 35 as to whether the sponsor is normally dependent on her partner’s income and provide dates of employment for the last two years, she states “N/A”.  I am satisfied that the sponsor’s husband is available fulltime.

    2.    Bessima Ehrek, daughter, states that she has 3 children and with her disability, is unable to use her right arm.  She provided a doctor’s certificate dated 25/02/2013 stating that she is unable to use her right arm in daily living activity and birth certificates for her children born on 14/3/2007, 22/3/2008 and 28/1/2011. 

    While Bessima Ehrek has a confirmed medical condition, she is still able to care for her three young children aged two, five and six.  I am satisfied this shows that she has a capacity to assist in the care of her mother, the sponsor.

    3.    Omar Ehrek, son, states that he cannot undertake his mother’s needs such as housework, washing, cleaning, food making and many more of the opposite gender requirements.  He is required to work in his brother’s business as he has noone else with him and at the same time he is currently seeking a fulltime job.  He provided no supporting information.”

16. Having dealt with the 12 other relatives who provided statutory declarations at CB175, noting that a number had not provided any evidence in support of their assertions, the delegate stated at CB175:

    “I am satisfied that the husband, daughter and son who live with the sponsor, have together provided, and are able to continue providing, the care and assistance required by the sponsor detailed in the Carer Visa Assessment dated 19/09/2011. 

    I am also satisfied that if required, one or more of the other twelve relatives can reasonably provide some level of care and assistance to the sponsor if required to assist the sponsor’s husband, daughter, and son who live with the sponsor.”

17. The delegate went on to find that the care the sponsor required could reasonably be provided by another relative and that accordingly the Applicant did not meet regulation 1.15AA(1)(e)(ii) of the Migration Regulations 1994 (“the Regulations”).

18. The delegate went on to refer to the migration agent’s letter and set out in full the passage set out in paragraph 13 above at CB176.  The delegate noted a dissatisfaction with the failure of the sponsor to make inquiries as to whether assistance could be reasonably obtained from appropriate welfare, hospital, nursing or community services in Australia and further concluded that on the facts as they stood the Applicant had not demonstrated that she was willing and able to provide the required care (this being essentially on the basis that the Applicant had not provided care and had been in Australia since 2010 living in New South Wales and not providing care to the sponsor).

19. Following some toing and froing as to representation the Applicant’s lawyers, Messrs Bardo Lawyers, wrote to the Tribunal on 13 August 2014 in support of the application filed by the Applicants.  The written submissions are at CB244-257.  The submission noted at CB244-245 the numerous close relatives of the sponsor who live in Victoria including her husband, four sons, three sisters, five nieces and one nephew.  The submission noted the medical conditions suffered by the sponsor and the incapacity of those relatives to provide the sponsor the care and assistance she requires (albeit stated in fairly summary form) (CB245-246). Having referred to the relevant law and the areas of care in which the sponsor needed assistance the submission relevantly asserted (CB250):

    “It is submitted that available institutional and/or community service care does not provide the continuous personal care that the sponsor needs and/or does not satisfactorily meet her cultural needs (reg.1.15AA(1)(e)(ii)). 

    It is submitted that the sponsor has a strong personal preference for home care…

    The sponsor’s husband and her children have indicated that they do not wish the sponsor to be placed in a nursing home.  Her family, and more importantly their culture and tradition, would consider this is abandonment of the family’s matriarch.  It is therefore submitted that it is cultural unsuitable for her to be placed in a nursing home.”

20. Relevantly for these purposes the submission continued at paragraph 31 (CB251):

    “In view of the type and level of care needed, including but not limited to;

    a.    Hygiene (washing her, helping her in/out of the bath/shower, cleaning and assisting her to clean herself each time she goes to the toilet0,

    b.    Toileting (helping her on/off the toilet).

    c.     Dressing/undressing/grooming,

    d.    Providing female companionship and psychological support.

    It is submitted that male relatives are unable and/or unwilling to provide some or all of the above. 

    It is important to note that most of the above tasks can only be undertaken by a female relative due to the private nature of the assistance required, for example a male relative will be very reluctant to dress/undress or to toilet or to bath a woman.  If this were ever to happen, it would cause substantial undue embarrassment and discomfort to both the male relative and the sponsor.”

21. The submission went on to refer to the fact that the unwillingness was to be addressed from the point of view of the proposed carer and it was submitted that the material provided from the various relatives of the sponsor showed that they could not provide the relevant care (CB252-254).

22. Reference is made at paragraph 43 (CB255) to assistance from public or community service providers and it was noted that the Darebin City Council could provide only very limited assistance.  The submission relevantly further asserted:

    “As for nursing homes and aged care, the sponsor still lives with her husband, and does not wish or accept to be separated from him to go into nursing home care, not to mention other linguistic, cultural and religious barriers for an elderly Muslim lady to be placed into a nursing home.”

23. The Applicant provided a statutory declaration (CB258-259) in support of the application and she deposed that she was presently providing the sponsor with all necessary assistance and care required for daily existence.  She deposed to the daily routine of assistance provided to her aunt commencing at 7 am and continuing till 8.30 pm.

24. The sponsor’s statutory declaration is at CB260-262.  It is consistent with the materials advanced on behalf of the Applicant.  Relevantly for these purposes she deposed at paragraph 6:

    “I previously relied on my husband for some care and assistance.  However, my husband is getting old as well as having his own health issues.  My husband is unable to attend to my activities of daily living.” 

25. She confirmed that her family was unable to assist her, that the Applicant was assisting her and that it was against her culture and traditions to be placed in a nursing home.  She further deposed, not unreasonably in my view that she and her husband did not wish to live apart after so long a marriage.

26. Further statutory declarations from family members were also provided further attesting to the asserted incapacity of those family members to provide care or assistance to the sponsor.  I have paid close regard to what they said but it is not necessary to paraphrase each and every one of them.

1. A post hearing submission was sent by Messrs Bardo Lawyers to the Tribunal which is at CB309-314.  The submission acknowledged that the sponsor lives with her husband, daughter, Bassima Ehrek, and son-in-law and grandchildren but noted that evidence had been provided that the sponsor was estranged from Bassima.  It further noted that the sponsor’s husband had provided a statutory declaration stating the reasons why he was unable to provide the care and assistance he used to provide to his wife and that he was 65 years of age with various health difficulties.  Although I have had careful regard to the submission and the matters raised in it is not necessary to paraphrase it further.  I do note that an accompanying medical certificate in respect to the sponsor’s husband confirms that he was currently, as at 18 August 2014, being treated for hypertension, diabetes and high cholesterol.

2. A further statutory declaration by the sponsor (CB326-327) further attesting to the poor relationship with her daughter, Bassima, is set out. 

3. At CB328-330 there is the statutory declaration of the sponsor’s husband.  The husband deposed as to his ill health and the consequential difficulties to him and further deposed to the fact that his daughter Bassima wished him and his wife to move out of the premises in which they jointly lived.  At paragraphs 12-13 of CB328 he deposed:

   “Before our niece, Rana, came to live in Melbourne, I helped to take care of my wife.  However as I am getting older and my health deteriorates, I can only do some simple chores for my wife.  I don’t mind going to the shops if I’m able to, on some occasions to buy little things like sugar or table salt.  I avoid going to supermarkets such as Coles because my feet swell from walking through the aisles. 

   I struggle to help my wife to go to the toilet or to help her shower as I am not strong enough to hold her if she falls.”

4. He went on to depose at paragraphs 14-17 (CB329):

   “My wife and I have been married for over 40 years. 

   My wife and I cannot bear to be separated. 

   I will not put her in a nursing home nor allow anyone to put her in a nursing home. 

   I will not allow strangers, especially men, to help my wife shower or go to the toilet.”

5. He went on to depose relevantly to his support for the Applicant as a carer of his wife.

6. Having concluded this necessarily laborious, given the sheer scope of the materials provided, recitation/paraphrase, it is appropriate to see what the Tribunal made of it all.

The Decision of the Tribunal

1. The Tribunal set out the application for review and the materials before it CB339.  Findings and reasons follow from CB339-343.  The Tribunal accepted that the Applicant was a relative of the sponsor who was an Australian citizen whose medical certificate satisfied the requirements of regulation 1.15AA(1)(c).

2. The Tribunal then moved to consider whether assistance could not reasonably be provided by any other relative or obtained from welfare, hospital or community services in Australia.  For present purposes this is the critical part of the Tribunal’s decision.

3. The Tribunal noted at paragraph 18 (CB341) that the Applicant told the Tribunal she had been providing the sponsor with assistance since she moved to Melbourne 13 months ago. The Tribunal accepted that the Applicant’s evidence was consistent with the report provided to the Department and found that the sponsor required assistance with personal hygiene, dressing, supervision with medication and personal care and attention on a daily basis.  The Tribunal noted:

   “The applicant and sponsor told the tribunal the sponsor’s husband assisted the sponsor prior to the Applicant moving to Melbourne.  The Applicant and sponsor told the Tribunal the Applicant’s husband helps her if she requires assistance overnight when the Applicant is not in attendance. 

   On the basis of the oral evidence of the Applicant and the sponsor and the statutory declarations and written submissions provided to the tribunal, the tribunal finds the sponsor is married and lives with her husband and one of her daughters and her daughter’s husband and three children.  The sponsor has four other children residing in Melbourne, Victoria, as well as three sisters, five nieces and one nephew living in Victoria. 

   The tribunal finds the sponsor’s husband Mr Ahmed Ehrek lives with the sponsor and does not work.  While his statutory declaration dated 23 February 2013 states he is unemployed, his statutory declaration dated August 2014 provided to the Tribunal after the hearing states he is a disability support pensioner.  At the hearing the Applicant did not know if he was unemployed or on a pension.  The Applicant and sponsor gave oral evidence that the sponsor’s husband can only give limited assistance due to illness. At the conclusion of the hearing the tribunal granted the applicants 14 days to provide any further evidence in support of the application, in particular to provide any further evidence about the applicant’s husband’s health and medical conditions that may limit his ability to provide assistance.  On 21 August the tribunal received a written submission and a number of documents in support from the applicant’s representative including a letter from the sponsor’s husband’s doctor, Dr Ahmad Al-Sharifi dated 18 August 2014, which states that Mr Ehrek suffers from various medical conditions and is currently being treated for hypertension, diabetes and high cholesterol.  The Tribunal also received a health summary sheet in relation to Mr Ehrek which lists his current medications and a statutory declaration by Mr Ehrek dated August 2014.  In this declaration Mr Ehrek declares he is 64 years old and getting old and his health is deteriorating, therefore he can only do some simple chores for his wife, like shopping for little things like sugar and table salt.  He states he avoids large supermarkets as his feet swell and he struggles helping his wife to the toilet or in the shower as he is not strong enough to hold her if she falls.

   The tribunal finds the sponsor’s husband, Mr Ahmed Ehrek, is 64 years old and is currently being treated for hypertension, diabetes and high cholesterol.  The tribunal finds Mr Ehrek provided most of the assistance the sponsor required prior to the applicant moving to Melbourne.  The tribunal is not satisfied that the sponsor’s requirements for assistance have increased dramatically since that time, nor is it satisfied that Mr Ehrek’s health has deteriorated significantly since the Applicant arrived in Melbourne.  The Tribunal finds the sponsor’s husband continues to provide some assistance during the day and all the assistance she requires overnight.” 

4. The Tribunal went on at paragraphs 23-24 to deal with the sponsor’s other children and relatives and found at paragraphs 24-26:

   “The tribunal does not accept that they are unable to provide any assistance at all.  The tribunal does not accept that their schedules and commitments mean they are unable to provide some assistance.  The tribunal also notes the sponsor’s husband currently drives and does some shopping and provides some assistance during the day and at night.  The tribunal does not accept that his age or medical conditions mean he is unable to continue to provide assistance. 

   The tribunal has considered whether the sponsor’s husband and children in Melbourne could combine their efforts and adjust their schedules and obligations in order to provide the assistance required.  The tribunal finds it would be reasonable for them to do so and more assistance could reasonably be provided by the sponsor’s husband and children living in Melbourne. 

   The tribunal acknowledges the sponsor’s family wish to have care provided by one person, a female relative. In AZZI v MIMA [2002] FCA 24, the court considered a similarly worded requirement to that of subparagraph 1.15AA(1)(e) and found that there is no apparent reason to limit the inquiry to what one person can do.  A finding of fact that the assistance could be arrived from a number of sources, or a number of relatives, would not itself involve an error of law.  The tribunal finds it is therefore reasonable to consider assistance from a number of sources.” 

5. Having dealt at paragraph 27 with the issue of council assistance the Tribunal found, at paragraph 28 (CB343):

   “The tribunal accepts that the Applicant does not wish to leave her home and husband to live in a nursing home, nevertheless the tribunal also notes the Applicant’s oral evidence that the local council could provide some assistance with home care and cleaning and maintenance, just not full time care.  On the basis of the evidence before it the tribunal finds that some assistance could be obtained from the local council.  The tribunal is not satisfied that some supplemental assistance cannot reasonably be obtained from services in Australia.”

6. The Tribunal went on to conclude at paragraph 29:

   “As noted above the tribunal finds it would be reasonable for the sponsor’s husband and children in Melbourne to combine their efforts and adjust their schedules and obligations in order to provide more assistance.  The tribunal also finds that some assistance could be provided by the local council. 

   While the tribunal accepts the sponsor requires assistance with certain aspects of daily life, it finds she does not require constant assistance or monitoring.  On the basis of the evidence before it, at the time of decision, the tribunal is not satisfied that the assistance required by the sponsor cannot reasonably be provided by a combination of relatives who are Australian citizens, and obtained from welfare, hospital, nursing or community services in Australia, and therefore r.1.15AA(1)(e) is not met.”

7. On this basis the Tribunal went on to dismiss the application.

The Submissions of the Parties

1. In both written and oral submissions the Applicant sought to press the argument that the Tribunal had simply not properly engaged with the case that the Applicant ran.  It was submitted that the need for a female carer was simply not properly addressed by the Tribunal’s reasoning.  This puts the matter shortly but it is the gravamen of the Applicant’s case.

2. Put equally shortly the First Respondent’s case was that the Tribunal had properly considered and dealt with this aspect of the case.  It was pointed out that the Tribunal had had regard to the written submissions and other materials submitted by the Applicant (see paragraph 4 CB339) and that this court should not lightly infer that the Tribunal had overlooked material. 

3. Once again although this puts the matter shortly it is the gravamen of the First Respondent’s case.

Consideration

1. It is well accepted that the Tribunal’s decisions should not be read with an eye keenly attuned to the perception of error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272]). It is a matter of reading the Tribunal’s decision fairly and as a whole.

2. The First Respondent strongly submitted (see paragraph 21 written submissions) that the Tribunal was not satisfied that the sponsor’s husband could not continue to provide the assistance that he had provided before the Applicant moved to Melbourne.  It was submitted that there were no submissions or evidence to the effect that the husband regarded it as unreasonable to provide assistance to his wife based on considerations of sex and gender or religion.  So much is correct.  The husband’s complaint was rather that he could not hold her if she fell because of his own ill health and increasing frailty. 

3. The First Respondent’s submissions (paragraph 22) suggest that there was no need for the Tribunal, in view of the finding made about the husband, to consider the assistance that might or might not be provided by the sponsor’s sons. 

4. I have set out the materials before the Tribunal at laborious length.  Read fairly and understood properly in my opinion they articulated a clear claim that the sponsor’s husband could no longer continue to provide fulltime care for his wife, who needed it.  They also articulated in the clearest way the objections that the sponsor had to having a number of intimate functions assisted by any man other than her husband.  To the extent that the First Respondent’s submissions submit there was no evidence in support of this proposition, in my opinion one has to apply common sense and ordinary human experience.  I would not need a 65 year old woman (as she was at the time of the Tribunal’s decision) to tell me that she would be uncomfortable being naked or in other highly intimate circumstances such as being on a toilet, in the presence of any man other than her husband, to arrive at such a conclusion.  Any reasonable person would necessarily arrive at this conclusion.

5. It is clear in my view that the Tribunal did not consider, in its observations about what might be described as aggregated assistance from all the family members put together, how that assistance might apply in the given circumstances to the intimate difficulties that the sponsor faced.

6. That leaves then the question whether the Tribunal did, indeed, accept as the First Respondent submits that the husband of the sponsor could provide all the assistance she relevantly needed.  The difficulty with this submission is that the Tribunal expressly found that the husband and all the other relatives had to pool their resources to provide the necessary element of assistance.  It therefore inexorably follows that the Tribunal was not satisfied that the husband alone could provide such assistance.  He was, however, able to provide it to an extent during the day and at night and the Tribunal’s findings in that regard are not impugned or, in my view, capable of being impugned.

7. This situation brings the court yet again to the distinction between jurisdictional error and error within jurisdiction.  The matter was recently revisited by Katzmann J in SZVMQ v Minister for Immigration and Border Protection [2016] FCA 558 where her Honour said at [17]:

8. “The first complaint, at least, reflects a fundamental lack of understanding of the limited nature of the jurisdiction of the Federal Circuit Court conferred by s 476(1) of the Act. As Hayne, Kiefel and Bell JJ explained in Minister for Immigration and Citizenship v Li(2013) 249 CLR 332 at [46], that subsection equates the jurisdiction of the Federal Circuit Court with the jurisdiction given to the High Court under s 75 of the Constitution and the remedies provided by s 75(v) are only available for jurisdictional error. Difficulties sometimes arise in drawing a bright line between jurisdictional and non-jurisdictional error but the distinction is an important one. As Hayne J explained it in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [163]:

9. There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.”

10. Here, the Tribunal was well aware of the task it had to conduct.  It was to assess the Applicant’s application against the relevant regulation by reference to the materials that the Applicant provided. 

11. In the ultimate, although the matter might be thought to be finely balanced, I do not think that the Tribunal properly addressed a sufficiently clearly articulated claim of the difficulties that the sponsor faced in having a number of intimate functions performed with the assistance of a man other than a husband. 

12. The Tribunal’s only observation about this matter is at paragraph 26 namely, “The sponsor’s family wish to have care provided by one person, a female relative.” (with the exception of the assertion at paragraph 4 that the Tribunal had had regard to all the material before it).

13. That observation was made very much in the context of whether or not it was appropriate for one person or a number of persons to provide the care.  It does not seem to me properly to engage with the sponsor’s claim about the necessity to have a female person (whether one or more) assist her with certain intimate tasks.

14. This omission, in the circumstances of this case, meant that the Applicant’s case was not addressed by reference to the relevant information that the Applicant/and the sponsor provided.  In my opinion this claim was sufficiently clearly articulated to require specific attention and the failure to do so means that the Tribunal fell into jurisdictional error.

15. I appreciate that on one reading of the Tribunal’s decision the Tribunal might be thought to have been saying that a combination of female relatives could have addressed the particular intimate tasks required.  Nonetheless, a fairer reading of the Tribunal’s decision suggests that it was of the view that all the family members including male ones could club together so to speak to perform all the tasks.  The better reading is that the Tribunal erroneously rolled the application for a female carer for intimate functions in with the issue of whether there should be one carer or more than one.

Conclusion

1. In the circumstances the Applicant has made out her case.  Both parties proceeded on the footing, as a matter of practical politics, that jurisdictional error would be established if the Tribunal had improperly failed to deal with the case the Applicant put.  It is not necessary to refine the precise jurisdictional error further save to say that the Tribunal clearly failed to have regard to relevant evidence and materials put before it and failed to determine an aspect of the Applicant’s case that in my view was sufficiently clearly articulated that it was required to be dealt with properly to be disposed of. 

2. I will make orders remitting the matter accordingly and order the First Respondent to pay the Applicant’s costs.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 6 July 2016