Lam v MIBP - [2013] FCCA 1263

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAM v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1263

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of a family carer’s visa – whether the Tribunal misconstrued or misinterpreted the Migration Regulations 1994 (Cth), failed to take into account a relevant consideration or made a decision without evidence considered.

Legislation:

Migration Regulations 1994 (Cth)

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Rafiq v Minister for Immigration [2004] FCA 564

SFGB v Minister for Immigration (2003) 77 ALD 402

Applicant:

THI LUNG LAM

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 206 of 2013

Judgment of:

Judge Driver

Hearing date:

3 September 2013

Delivered at:

Sydney

Delivered on:

4 October 2013

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

VietAust Lawyers

Counsel for the Respondents:

Ms R Francois

Solicitors for the Respondents:

DLA Piper

ORDERS

The title of the first respondent be amended to “Minister for Immigration and Border Protection”.
The further amended application filed on 3 September 2013 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 206 of 2013

THI LUNG LAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Migration Review Tribunal (Tribunal). The decision was made on 2 January 2013. The Tribunal affirmed a decision of the delegate of the Minister not to grant the visa applicants Other Family (Migrant) (Class BO) visas. The following statement of background facts is derived from the submissions of the parties.
On 27 July 2009 Ms Phuong, a citizen of Vietnam who is resident in Vietnam, made an application for a Class BO visa, seeking to satisfy the criteria for subclass 116 as a “carer”[1]. Clause 116.211(1) of Schedule 2, to the Migration Regulations 1994 (Cth) (Regulations), which was a “time of application” criterion, required that:
116.211(1) The applicant claims to be a carer of an Australian relative of the applicant.
[1] court book (CB) 8-45

Clause 116.211, a ‘time of decision’ criterion stated:
116.221 The applicant is a carer of the Australian relative mentioned in clause 116.211.
A “carer” was relevantly defined in Regulations 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):
(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
(c)the rating mentioned in subparagraph (b) (iii) is equal to, or exceeds, the impairment rating specified by Gazette Notice for this paragraph; and
(d)if the person to whom the certificate relates is not the resident, the resident has a permanent or long‑term need for assistance in providing the direct assistance mentioned in subparagraph (b) (iv); and
(e)     the assistance cannot reasonably be obtained:
(i)     from 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)    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.
(2)    A certificate meets the requirements of this subregulation if:
(a)    it is a certificate:
(i)     in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and
(ii)    signed by the medical adviser who carried it out; or
(b)it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures.
The visa applicant, Mrs Phuong, was then 54 years of age. Her mother, Mrs Lam, who was and remains in need of care, was born on 10 April 1934[2] and was thus about 75 years of age at that time. In the application form[3] it was claimed that Mrs Lam suffered from chronic renal illness, was on dialysis, and that she fell often. It was also claimed that Mrs Lam had sought assistance from the Bankstown Aged Care Assessment Team (ACAT), Home Care Services and Aged Care Services, but none could provide her with long term assistance[4].
[2] CB 20 read with CB 48 (CB 8-45)
[3] at CB 20
[4] CB 21
In a statement attached to that application[5], Ms Phuong described her mother’s condition, and stated that her sister with whom her mother was living was unable to take care of their mother properly because of her own young family. Mrs Lam made a statutory declaration to the effect that her daughter in Australia used to take care of her but as her illness had become more serious she needed a full time carer. She stated that her other three children in Australia had their own family and work commitments and could only provide care for a few hours a week[6]. Mrs Lam’s children in Australia made statutory declarations to the effect that they were unable to provide adequate care for their mother[7].
[5] at CB 46
[6] CB 48
[7] CB 179-183, 190
An “Independent Social Work Report” made on 24 September 2009 catalogued Mrs Lam’s multiple serious physical conditions[8] and also severe mental health and memory problems[9]. The report concluded that Mrs Lam required a “high level of daily nursing, care and physical assistance”[10]. The reporter, Mr Joe Chuong, stated that the options for Mrs Lam were:
a)placement in a mainstream nursing home, which was seen as culturally and linguistically inappropriate, and would normally result in further deterioration in her physical and mental health. It was noted that there were no vacancies in Vietnamese nursing homes or hostels for the elderly, as demand exceeded supply;
b)a community aged care package which included up to 14 hours per week of respite care, but no night service, which was Mrs Lam’s main need[11];
c)Home Care services which are limited and inadequate[12].
[8] CB 50.8
[9] CB 51-53
[10] CB 60.5
[11] CB 60-61
[12] CB 61
Mr Chuong was of the opinion that adequate support from members of Mrs Lam’s family is not available due to the level of care that Mrs Lam requires[13]. He concluded that Mrs Lam needed full time care and that could not be reasonably obtained from family members in Australia or welfare, hospital nursing or community services in Australia[14].
[13] CB 62
[14] CB 62-63
On 29 May 2009 Dr Peter Vodicka issued a certificate pursuant to regulations 1.15AA(1)(b) and 1.15AA(2) confirming Mrs Lam’s severe disabilities[15].
[15] CB 77-82
On 17 November 2011 the delegate, situated in Ho Chi Minh City, rejected the visa application on the basis that Mrs Lam’s care requirements were being met by her daughter in Australia, Mrs Puong Bich Phuong[16]. The application for review was lodged on 29 November 2010[17].
[16] CB 234-240, at 237
[17] CB 241ff
An updated “Independent Social Work Report” dated 22 October 2012 was prepared by Mr Chuong and submitted to the Tribunal[18]. The report was to the effect that Mrs Lam’s condition was deteriorating, and that[19]:
... she would only be able to live and maintain with dignity the quality of life she deserves ONLY IF she remains living in her own home and receiving the intensive personal care. She requires full time 24 hour care, 7 days per week. (emphasis in original)
[18] CB 265-278
[19] at CB 276
Mr Chuong stated that there were no existing community or residential services that could provide such care[20].
[20] CB 276.5
A hearing was held on 29 October 2012. During the hearing Mrs Lam’s adult children described the way that they shared in the care of their mother and the physical, emotional and marital difficulties that they experienced in doing so[21]. At that hearing the Tribunal questioned members of the family as to whether private services could be provided, and the response was that they could not find anybody to help[22].
[21] CB 324-8
[22] CB 327 [45]-[46]
The Tribunal then adjourned the matter so that an aged care assessment team could carry out an assessment and report as to the type and extent of services that Mrs Lam required, particularly with personal hygiene, showering and toileting[23]. A further hearing was set down for 20 December 2013.
[23] CB 283
In the meantime an assessment was carried out on Mrs Lam by the NSW Department of Health. She was approved for permanent residential care, and permanent respite care which permitted 63 days of subsidised care in a financial year, although this could be extended for 21 days. She was also approved for care at home for 12 months, but if she was not receiving care by the end date she would need to apply for another assessment[24].
[24] CB 310-312
The proposed hearing of 20 December 2012 was cancelled[25], and the decision issued on 2 January 2013.
[25] CB 313

The Tribunal decision

The Tribunal found that Mrs Lam had a certificate pursuant to clause 1.15AA(1)(b), (c) and clause 1.15AA(2)[26]. It also found that clause 1.15AA(1)(d) did not apply. None of this was controversial. The issue in the case was whether clause 1.15AA(1)(e) was met.
[26] CB 331-2 [71]-[72]
In that respect the Tribunal found that Mrs Lam’s adult children were contributing to her care, that all had their own children and that two also had employment commitments. It noted that both Mrs Lam’s daughters had medical conditions which cause pain and weakness in their dominant arms which made lifting their mother (who weighs about 70kgs) and her wheelchair difficult. The Tribunal also noted the children’s evidence that they were doing their best, but were unable to provide the requisite level of care due to the fact that their mother had such high needs[27].
[27] CB 332 [76]
The Tribunal then found that:
a)Mrs Lam’s shopping, laundry and banking was done by family members[28];
b)the family had worked out a suitable transport routine for their mother to attend dialysis sessions at Liverpool Hospital and that other transport needs could be met on an ad hoc basis by family members, and that her mobility needs could also be met by family members who were present for most of the day and in the evenings[29];
c)meals were currently being provided adequately by family members[30];
d)supervision of medication was also being provided adequately by family members[31].
[28] CB 332 [77]
[29] CB 332-3 [78]
[30] CB 333 [79]
[31] CB 333 [80]
As to Mrs Lam’s needs for assistance with showering, personal hygiene and dressing, the Tribunal found that[32]:
... there does not appear to be a regular, adequate arrangement in place for showering, personal hygiene, dressing and undressing in the evenings in particular. The social work report indicated that the review applicant also needed assistance with toileting beyond accompanying her to the toilet as she has several incidents of incontinence per week. She has started to wear a nappy at night and requires changes when she soils herself. This is also a task that she finds very uncomfortable having her son attend to.
[32] CB 333 [81]
The Tribunal found that Mrs Lam’s personal and hygiene requirements could not be met by family members or reasonably obtained from near relatives who are Australian citizens[33].
[33] CB 333 [82]
Having so found, the Tribunal moved on to Mrs Lam’s need for companionship and for somebody to be with her at night, which it found to have been adequately met[34]. It accepted that the level of care that Mrs Lam required places strain on family members, and in particular mentioned Mrs Bich Phuong’s evidence that she suffered stress and exhaustion to the extent that she could not cope, which was confirmed by social work reports in 2009 and 2012. The Tribunal found that, despite the strain placed on family members Mrs Lam’s needs, with the exception of those related to hygiene, could reasonably be obtained from near relatives who are Australian citizens[35].
[34] CB 334 [83]-[84]
[35] CB 334 [85]
The Tribunal then considered whether the assistance that Mrs Lam required could not be obtained from welfare, hospital, nursing or community services in Australia, pursuant to regulation 1.15AA(1)(e)(ii). It cited the evidence that that the family were offered home care for one to two hours a day for six weeks, and that she may be eligible for homecare of 14 hours a week, with a waiting period of six to eight months. There was also evidence that Mrs Lam was eligible for a Community Aged Care Package for up to 63 days per financial year with a three month wait[36].
[36] CB 334-5 [87]-[89]
Next, the Tribunal cited the family’s evidence that they were willing to provide $100 each towards the visa applicant’s expenses were she to come to Australia, and that a member of Mrs Lam’s family was prepared to forego rental income to provide her with accommodation. This indicated to the Tribunal that the family would be able to purchase a suitable private service on a short term basis while they were waiting for the Community Aged Care Package to become available. It was on that basis that the Tribunal found that the personal care services that could not be provided by the family could reasonably be obtained from community services[37].
[37] CB 335 [89]-[90]
Contrary to the assertion that Mrs Lam required “intensive 24 hour care”[38], the Tribunal rejected this claim[39] and the evidence accepted by the Tribunal was that Mrs Lam had “high care” needs. In particular, the Tribunal found that the Health Care Australia (HAS) certificate dated 25 September 2009 stated Mrs Lam was[40]:
frail ... with multiple medical conditions including renal failure requiring dialysis three times a week, poorly controlled insulin dependent diabetes, hypertension .. very poor mobility and.. prone to falls. She has high care needs including hygiene, toileting, dressing and undressing, eating, mobility, supervision of medication, assistance with transport and supervision due to her uncontrolled diabetes.
[38] Applicant’s submissions at [33]
[39] CB 334 [84]
[40] CB 331 [72]

The judicial review application

These proceedings began with a show cause application filed on 5 February 2013. Mrs Lam now relies upon a further amended application filed in court by leave on 3 September 2013. The grounds in that application are:
1. The Tribunal erred in construing Migration Regulation 1.15AA(1)(e) by asking itself whether the applicant’s family members had been providing care to the applicant, rather than whether such care could reasonably be obtained from them.
2. The Tribunal failed to take into account a relevant consideration, being the practical difficulties that the applicant’s family members faced in providing appropriate care for her.
3. The Tribunal erred in its interpretation and application of Migration Regulation 1.15AA(1)(e)(ii) by failing to address the question of what assistance could actually be obtained for the applicant from welfare, hospital, nursing or community services in Australia.
4. Insofar as the Tribunal found that the applicant’s family could afford short term assistance to provide for her washing, toileting and other hygienic requirements, there was no evidence that there were any culturally appropriate private services (that is those that provided a Vietnamese speaking female) that would be able and willing to do so.
I have before me as evidence the court book filed on 11 March 2013.
Both parties made written and oral submissions.

Consideration

As noted in Mrs Lam’s submissions, the following questions arise from the Tribunal decision:
a)Can assistance reasonably be obtained from a relative who has difficulty performing the care tasks required of her because of her own medical condition and family pressures? Specifically, was it necessary for the Tribunal to take into account the level of difficulty in undertaking such tasks before it could find that the requisite level of assistance could be obtained?
b)Was it necessary, before the Tribunal could find that community services could provide personal hygiene services that the family could not provide, to consider exactly what services could be provided by community services?
c)Was it necessary for there to be evidence that the private service providers envisaged by the Tribunal actually exist, before the Tribunal could lawfully find that such private service providers could fill a short term care need?
The Tribunal had to decide whether appropriate care services would reasonably be obtained from Mrs Lam’s family or from community services to assist her with the “practical aspects of daily life”. Mrs Lam submits that the legislative requirement is directed to practicalities which means that the Tribunal’s inquiry must be directed to the reality of the existence of care, not simply the theoretical possibility. On this basis the practicalities of providing requisite care are a “relevant consideration”[41].
[41] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
The other aspect of construction raised in Mrs Lam’s submissions concerns the requirement that services can “reasonably be obtained”. There is no dispute that Mrs Lam’s transport needs, particularly to and from hospital for dialysis, were being obtained because family members were providing them. Further, there is no dispute that a loving family would undergo extreme hardship to provide for the needs of an aged and frail relative. Mrs Lam contends, however, that the mere fact that assistance is being provided by family members does not mean that it can “reasonably be obtained” from those people. There are issues of practicality and fairness which involves the consideration of the degree of difficulty in providing required services[42]. Mrs Lam contends that the Tribunal failed to pay regard to the difficulty faced by Mrs Lam’s daughters in lifting their mother and her wheelchair when considering the issue of mobility and transport[43]. Mrs Lam submits that the Tribunal erred by, in effect, asking whether requisite care had been provided, rather than asking itself whether such care could be reasonably obtained. This is also put in the alternative on the basis that the Tribunal failed to take into account a relevant consideration, that being any difficulties that relatives might experience in providing the required care.
[42] Rafiq v Minister for Immigration [2004] FCA 564 at [11]
[43] see CB 332 at [78]
Mrs Lam further contends that the Tribunal did not consider, in relation to the availability of community services, what services were available and for what periods. Finally, Mrs Lam contends that the Tribunal’s finding that the family could afford short term private assistance before community services became available[44] was compromised by the fact that there was no evidence that suitable services were available in or from the private sector.
[44] see CB 335 at [90]

These are said to be jurisdictional errors[45].
[45] see SFGB v Minister for Immigration (2003) 77 ALD 402
I prefer the Minister’s submissions on these issues.

Wrong question re assistance from family members

As is noted in the Minister’s submissions, the short answer to this ground of review is that if the Tribunal had only asked itself the question of what care had been being provided by family members, then it would not have found, in favour of Mrs Lam, that it was not reasonable to obtain the personal care services she needs from her family in Australia given her family was still undertaking those tasks[46]. The services that the Tribunal held, applying the statutory criterion “could reasonably be obtained” from the family members are also, on their face, services that are not onerous or particularly difficult.
[46] CB 334 [85]
Contrary to the applicant’s submissions, the Tribunal clearly did not ignore the daughters’ difficulties when it addressed the issues of mobility and transport. Contrary to the assertion of Mrs Lam, the Tribunal did not accept that her other children could not provide the requisite level of care[47]. Rather the Tribunal noted that this was their claim[48].
[47] Applicant’s submissions at [18]
[48] CB 332 [76]
The Tribunal then considered Mrs Lam’s care needs which were not of a personal nature[49]. Tasks such as shopping, banking and laundry were being undertaken by family members. It was clearly open to the Tribunal to then find that assistance with these tasks could reasonably be obtained from her family members living in Australia[50]. No specific argument is made by Mrs Lam about how undertaking these tasks creates a “strain”; nor is there any explanation about how pain and weakness in two of the daughters’ arms would affect them in these activities.
[49] CB 332 [77]
[50] CB 334 [85]
The Tribunal then considered Mrs Lam’s care needs with respect to transport and mobility and noted that these could reasonably be met by family members given the family’s current routine and the ability of the family to call for wheel chair accessible taxis[51]. There is no doubt that the Tribunal did not consider that these tasks would be undertaken by the two daughters who had pain and weakness in their arms[52]. Mrs Lam’s submissions appear to be predicated on the basis that the Tribunal expected only the two daughters would undertake these tasks[53], when that was clearly not so given the availability of their brother and wheelchair accessible taxis.
[51] CB 332 [78], CB 334 [85]
[52] CB 332 [76]
[53] Applicant’s submissions at [26(a)] and [31]
The Tribunal also held that assistance with meals were adequately being provided by family members[54]. Given Mrs Lam lived with her son and his family, it was open to the Tribunal to make this finding. Mrs Lam’s submissions do not address why this imposed a “strain” or how it would adversely impact the other two daughters.
[54] CB 333 [79]
The Tribunal next considered the issue of medication and noted that the problem expressed by family members was not with administering the medication but was that Mrs Lam’s eating habits made managing the diabetes difficult[55]. It was clearly open for the Tribunal then to consider it was reasonable that assistance with these tasks could be obtained from family members in Australia.
[55] CB 333 [80]
The Tribunal then, as Mrs Lam has fairly noted, considered her personal needs and held these could not reasonably be obtained by family members given the physical disabilities of the two daughters and the inappropriate nature of these tasks being undertaken by her son[56]. This finding then required the Tribunal to consider whether those needs could be met from welfare, hospital, nursing or community services. The Tribunal held that these services would be adequately provided under the ACAT assessment and, in the interim (given a likely three month wait), the family could use the money they would pay the sister in Vietnam to obtain private services[57].
[56] CB 333 [82]
[57] CB 334 [87] to 335 [90]
Finally, the Tribunal held that Mrs Lam’s need for social companionship could reasonably be obtained from family members[58].
[58] CB 334 [83]
While the circumstances of Mrs Lam and her family in Australia evoke natural sympathy, the Court must take care not to stray into impermissible merits review.

Failure to consider practical difficulties

Mrs Lam contends that the Tribunal was required to consider the “practical difficulties” of her family members in providing her with care.
The terms of regulation 1.15AA(1)(e) does not support that contention[59]. The mandatory consideration required by regulation 1.15AA(1)(e) is whether the services can “reasonably” be obtained from other relatives. The circumstances of relatives may be relevant but I do not accept that such a consideration is made mandatory by regulation 1.15AA(1)(b)(iv) which requires consideration only of how Mrs Lam’s medical condition impacts upon the “practical” aspects of her daily life.
[59] cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 -40
Further, I accept that no regard to the purpose or objects of the Regulations can assist Mrs Lam. The mere fact that there may be some practical difficulties for family members cannot, on any consideration of the Regulations, require the Tribunal to conclude that the services cannot reasonably be obtained from other family members. The only mandatory consideration is reasonableness.
In any event, Mrs Lam’s submissions in support of this ground appear to be based on the assertion that there would be “extreme hardship” and “unfairness” to the family[60]. There was no evidence to this effect which was accepted by the Tribunal. Further, the Tribunal’s findings were very balanced about what tasks could reasonably be undertaken by Mrs Lam’s relatives in Australia. There is no obvious practical impediment to the applicant’s family undertaking those tasks identified by the Tribunal.
[60] Applicant’s submissions at [29]

Available community services

Mrs Lam’s submissions in support of this ground of review rely upon the assertion that she needs “intensive 24 hour care”. As noted above, that assertion was not accepted by the Tribunal. At [84] of its reasons the Tribunal said:
The family and the social worker stated that the review applicant needs someone to be home at night. This may be true to ensure that if there is a medical crisis it can be attended to quickly. However, the social work report indicated that the review applicant has not been hospitalised since October 2010 (the last two years) and there is no evidence that she has any treatment needs during the night after she has gone to bed. She cannot sleep and therefore may prefer to have a family member around but this is a need for social contact rather than a need for assistance with practical aspects of daily life.
Accordingly, I accept the Minister’s submissions that this ground fails at factual level.
In any event, it was for the applicant to satisfy the Tribunal that the basic services of assistance with personal hygiene, showering, dressing and undressing could not reasonably be obtained from welfare, hospital, nursing or community services. Further, the Tribunal specifically found at [88] that those services were available within the time and service limitations of a Community Aged Care package that had been referred to by Mr Chuong who provided the social work report.

No evidence

I also accept the Minister’s submission that in so far as Mrs Lam’s submissions suggest that there was “no evidence” that “suitable services were available in or from the private sector”, this submission puts a gloss on the pleaded ground of review, which asserts that the Tribunal was required to have evidence of a “culturally appropriate private service (that is, those that provided a Vietnamese speaking female)”.
However, the Tribunal did not make any finding that there was a “culturally appropriate” private service available to Mrs Lam. Accordingly, there can be no jurisdictional error by it having made a finding without evidence, as it did not make any such finding.
Secondly, it is not necessary or reasonable to expect that a short term private nursing service would provide anything other than a female to assist Mrs Lam. It would also be unrealistic to suggest that the first time a new carer was introduced to Mrs Lam that every single member of her family would be absent and it is reasonable to expect that an available family member would assist with any initial issues requiring translation for the performance of basic tasks of washing, toileting and personal hygiene.

Conclusion

Mrs Lam has not demonstrated any jurisdictional error by the Tribunal. Accordingly, the application must be dismissed.
I will hear the parties as to costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 4 October 2013