Le v Minister for Immigration

[2016] FCCA 2176

FEDERAL CIRCUIT COURT OF AUSTRALIA

LE v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2176

Catchwords:
MIGRATION – Administrative review – carer’s visa – no jurisdictional error – application dismissed – applicant pay the respondent’s costs.

Legislation:

Migration Act 1958(Cth): s.348

Migration Regulations 1994 (Cth): reg. 1.15AA

Applicant: THI TANG HON LE

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 113 of 2016

Judgment of: Judge Vasta

Hearing date: 8 August 2016

Date of Last Submission: 8 August 2016

Delivered at: Brisbane

Delivered on: 8 August 2016

REPRESENTATION

Counsel for the Applicant: Mr S. Nguyen

Solicitors for the Applicant: Essen Lawyers

Counsel for the Respondent: Mr B. McGlade

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the Application filed 9 February 2016 be dismissed.

2. That the Applicant pay the First Respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 113 of 2016

THI TANG HON LE

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed on 9 February 2016 the Applicant, Thi Tang Hon Le, seeks to review the findings made by the Administrative Appeals Tribunal on the grounds that they have been infected by a jurisdictional error. 

2. The background to this matter has been very well summarised by Mr Nguyen in his submissions to me, of which I have gained great assistance.  The Applicant is a Vietnamese citizen who was born on 15 December 1955.  She was granted a sponsored family visitor visa on 13 March 2013 and arrived in Australia that same month.

3. At the time of her arrival, she claims that her parents were unable to care for themselves and her siblings were not able to provide the requisite care for them and she decided to stay to be their carer. 

4. Therefore, she then applied for a carer’s visa on 23 August 2013.  There are a number of matters that have to be fulfilled for such a visa, including a certificate relating to the person who requires care.  There is only a certificate relating to the mother and it was the mother’s need for care that was the basis upon which the visa application was made.

5. That application was refused by a delegate of the Minister on 22 August 2014.  The Applicant took the matter to the Administrative Appeals Tribunal on 5 September 2014 and, after a hearing, in January 2016 the Tribunal affirmed the decision.  The decision is dated 25 January 2016. 

6. What the Tribunal did was look at the matters.  As I said, there were a number of criteria that have to be fulfilled before a carer’s visa is able to be given.  In respect of this matter, the criteria of most importance are the requirements that are set out in reg.1.15AA(1)(e)-(f).  It reads:

   “(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.”

7. The Tribunal went through the circumstances and looked at whether it was that assistance cannot reasonably be provided by any of the other relatives and looked at whether assistance cannot reasonably be obtained by other providers. 

8. Now, at the beginning of the hearing I questioned both legal representatives about the word “or” that appears between reg.1.15AA(1)(e)(i) and (ii) of that section.  Mr Nguyen submitted that the “or” should be construed to be an “and” because both aspects do have to be satisfied. 

9. Whilst the discussion then descended into a discussion on semantics, it does seem to me that there are two distinct matters that the Tribunal needs to look at in seeing whether or not it is satisfied that reg.1.15AA(1)(e) has been properly fulfilled.

10. Therefore, any jurisdictional error must be a jurisdictional error that infects both reg.1.15AA(1)(e)(i) and (ii).  That does not mean to say that there cannot be two errors, one that infects (i) and one that infects (ii).  But they, in combination, would then amount to a jurisdictional error. 

11. I say this because it does become very evident here that even if the Tribunal fell into error with regard to reg.1.15AA(1)(e)(i), that does not necessarily mean that it falls into error in reg.1.15AA(1)(e)(ii) and vice versa.  So in looking at this matter I was keen to see whether there were any errors that did infect both reg.1.15AA(1)(e)(i) and (ii) or whether the errors were somewhat separate.

12. What the Tribunal did was to first off go through the relatives of Ms Vo who were Australian citizens.  The Tribunal listed seven such relatives.  Without going into their names, they are her husband, who is aged 91, her three daughters that are aged 62, 58 and 53, her two sons, one aged 49 and the other aged 44, and her grandson, aged 21.

13. Obviously her husband, who is actually older than she, being aged 91, is not a person who could reasonably provide assistance. 

14. The 62 year old daughter lives in the same suburb as the caree and cooks for her husband and 21-year-old son, both of whom work full-time, and takes care of her three-year-old great nephew. 

15. The 58 year old daughter and the 53 year old daughter live in Brisbane. 

16. The 49 year old son is said to live on a farm. 

17. The 44 year old son has been made redundant from work and has submitted a letter from a general practitioner which says that he has significant pain and disability associated with lumbar radiculopathy and has no vocational work capacity.

18. The grandson lives in the area and, it seems, is the son of the eldest daughter. 

19. What the Tribunal found is that, for various reasons, it was not satisfied that those four people (the eldest daughter, the son who lives on a farm, the son who lives with the caree but has a disability and the grandson) cannot reasonably provide the assistance that is needed, albeit in some form of roster system or in some other way. The reasoning seems to be  that the caree is, in effect, the matriarch and, as a matriarch gets older, the family members who are around need to do something that helps that person. 

20. As submitted by the First Respondent, it does not matter whether the particular people want to assist the caree; it is whether it is reasonable that they do or it is reasonable that they could assist or provide the care. 

21. The Tribunal then went through whether or not there were other outside providers that could give a level of care necessary.

22. The Tribunal went through quite a number of options noting that it was submitted to the Tribunal that it was not feasible for Ms Vo, the caree, to access community or health services because she only speaks Vietnamese, she can only tolerate Vietnamese food, she does not want to be separated from her husband and she does not want to be looked after by strangers.

23. The caree said that the residential care facilities are expensive and she would not be able to afford such care even with the assistance of government. 

24. What was submitted in support of the Applicant’s contention that the care or the assistance cannot be reasonably obtained by other providers was a copy of internet information about Blue Care’s in-home package, an email from Centacare regarding a referral to another gentleman, a contact from the Australian Multicultural Community Services about home assistance and an email from Carers Victoria to one of the family.  It is noted that that email said that there is no organisation that could fund full-time in-home care, but the email invited the family to call the service to discuss the situation of the caree more fully and consider how the service may be able to help. 

25. There is also an email from one of the family to Comcare, seeking information on residential care.  The Comcare response suggests that the family contact the local council about low cost health services. There is also an email from the family to Silver Chain asking if the organisation offers full-time in-home care and the response from Silver Chain asked the family to call to discuss eligibility for services.

26. There was also a schedule of home services fees from Benetas at Home, a private service provider as well as a letter from the lawyers for the applicant to Mekong Vietnamese Aged Care, which refers to an earlier phone conversation which asked them to confirm that there are no vacancies and whether there is a waiting list. I should also point out that there was an approach to the Australian Multicultural Community Services but it was submitted that they informed the lawyers or family that they could not help as their employees do not speak Vietnamese. 

27. The Tribunal had regard to a submission from the Applicant where it was claimed that the Applicant had made appointments to discuss matters with the services Grantham Green, Kalyna Care and Estia Health.  However, they were unable to provide Vietnamese food or interpreters and the Tribunal then discussed all of these approaches or the availability of the private providers. 

28. The Tribunal ended up saying that they found that the caree, Ms Vo, and her family have dismissed the option of accessing additional support services provided by community and health providers on the basis they cannot accommodate Ms Vo’s personal care requirements in a culturally sensitive way.  The Tribunal considered that this position would be more credible if Ms Vo were currently accessing available services and was finding that they were insufficient for her needs or culturally inappropriate.  However, this is not the case.

29. The applicant submitted that Ms Vo will not tolerate non-family members caring for her, whether it is in her home or in an aged care facility.  The Tribunal acknowledges evidence that Ms Vo does not want to live in an aged care facility.  However, the Tribunal was not satisfied that residential options have been seriously discussed with her.

30. The Tribunal noted the finding of the Court in another case that an Applicant’s preference for a particular service may be distinguished from a cultural factor in determining whether the relevant assistance is reasonably obtainable; and that the Applicant’s mere preference to be cared for by family rather than by strangers was not a barrier to the obtaining of welfare assistance.

31. The Tribunal accepts that Ms Vo is very attached to the Applicant and would prefer to be cared for by her rather than by people outside the family.  However, this preference does not satisfy the Tribunal that the assistance cannot reasonably be obtained from relevant services.

32. The Tribunal acknowledged that Ms Vo does not wish to be separated from her husband.  However, it is increasingly common for residential care facilities to provide accommodation for couples.  Ms Vo’s family has not demonstrated they have explored this possibility with relevant facilities. There was a discussion at the Tribunal of the costs and what other matters the family could have done and the Tribunal said that they were not satisfied that the family had seriously explored the range of financial options available to them.  Therefore, the Tribunal would not accept that the cost of residential care is a barrier to the caree being cared for in such a facility.

33. Therefore, the Tribunal found that the provisions of reg.1.15AA(1)(e)(i) and (ii) were not met and did not consider then whether paragraph reg.1.15AA(1)(f) was met.

34. That then brings me to the grounds.  The grounds for this application are:

    “1. The Tribunal misconstrued the expression ‘Assistance cannot reasonably be provided’ that appears in the definition of Carer contained in Regulation 1.15AA(1)(e)(i) of the Migration Regulations 1994 (Cth)

    Particulars:

    (a) The Tribunal acted unreasonably in concluding it was not satisfied that the direct assistance the Caree required in attending to the practical aspects of her life could not reasonably be provided by a combination of the review Applicant’s siblings living in Australia.

    (b) At para 21 of the decision record, it said that it was reasonably open to review Applicant’s sister to decide to care for her mum rather than care for her great nephew.

    (c) At para 25 of the decision record, it unreasonably found that the review Applicant’s brother Huu Tang Hoang Le, a full time farmer who has no contact with the Caree can provide care to her.

    (d) It also assumed that the brother Danh could provide interpretation to the non-Vietnamese care providers.

    (e) It unreasonably decided that it would be reasonable for Thi Than Dung Le, Tang Hoang Danh Le, Huu Tang Hoang Le and Brian Bach to provide the Caree with the care she requires on an individual basis.

    2. The Tribunal made a jurisdictional error by failing to consider relevant materials evidence:

    Particulars:

    (a) It gave limited or no weight to the finding in ACAS report. It refused to accept the fact that the Caree would not have the quality of life she currently benefits from the absence of the care of the review applicant.

    (b) It failed to consider that the review Applicant’s brother Huu and her nephew due to their work commitments.

    (c)The Tribunal gave no consideration to the claim that the review applicants has contacted care providers before hearing. It erroneously decided that the Caree and the family have no ‘accessed’ the available service. At para 44 it said the Tribunal finds that Ms Vo and her family have dismissed the option of accessing available services provided by community and health.

    3. The Tribunal is in breach of s 424AA of the Migration Act 1958 (Cth).

    (a) It did not invite the review Applicant provide an explanation on the ‘inconsistencies’ of evidence in relation to the whereabouts and financial situation of the review Applicant’s brother Huu:

    (b) At para 25 of the decision record, it decided that Applicant and the Caree are ‘simply asserting’ that Huu cannot provide car.

    (c) At para 28 in line 10 the Tribunal said ‘in the context of the inconsistent evidence about Huu’s circumstances, the family has not been open about the Caree’s relatives’ circumstances and their ability to care for the Caree.

    (d) It did not put to the Applicant at any stage of the hearing that Huu’s circumstances will be an issue.”

35. What, as I said at the beginning, I have done is look at what of those grounds relates to reg.1.15AA(1)(e)(i) and what relates to (ii). 

36. With regard to Ground 1, all of the particulars there and there are five of them all relate to (i). 

37. With regard to Ground 2 the three particulars are and I will look at particular (a):  “The Tribunal gave limited or no weight to the finding in an ACAS report.  It refused to accept the fact that the caree would not have the quality of life she currently benefits from in the absence of the care of the review Applicant”.  That must mean in the absence of the care of the review Applicant. 

38. Particular (c) is that “the Tribunal gave no consideration to the claim that the review Applicant has contacted care providers before the hearing.  It erroneously decided that the caree and the family have not accessed the available services.  At paragraph 44, it said tribunal finds that Ms Vo and her family have dismissed the option of accessing additional support services provided by community and health providers”.

39. Those two particulars in Ground 2 are the only aspects of the matter that look at whether there is an error regarding paragraph reg.1.15AA(1)(e)(ii). 

40. As I have said, when looking at the structure of the paragraphs, unless there is an error that infects both areas, there will not be a jurisdictional error.  Therefore, I am looking at Ground 2 and the particulars (a) and (c) because they relate to reg.1.15AA(1)(e)(ii).

41. The Applicant claims that the Tribunal gave no weight to a report. The applicant says that s.348 of the Migration Act 1958 (Cth)(“the Act”) requires the Tribunal to review for itself, and on the material before it, the requisite state of satisfaction. Where it is claimed that the Tribunal made a jurisdictional error by failing to consider some evidence or argument, the correct analysis of such a claim is whether by failing to consider such evidence or argument the Tribunal failed to carry out the review required by the Act.

42. In his helpful submissions, Mr Nguyen said that the Tribunal clearly failed to consider the evidence and arguments in relation to the relative’s inability to provide care to the caree.  In particular, it did not the evidence provided by the applicant in relation to their brother Huu’s circumstances.  It failed to consider the findings in the ACAS report.  It specifically said the caree would require moderate to high level of service to maintain her living at home or, alternatively, premature entry into aged care facility and it failed to adequately consider other evidence that the Applicant has explored the care providers; it clearly failed to consider the caree’s wishes, her cultural background, lack of English and the cost issues that make care services not suitable for her in the circumstances.

43. With regard to this ground it is a jurisdictional error if a Tribunal is mandated to consider a certain issue and does not do so.  However, that does not mean that a Tribunal must give a certain amount of weight or a certain aspect to their considerations.  It just means that the Tribunal must consider.

44. If a Tribunal has considered a particular matter, then there will be no jurisdictional error.  Because it is not whether the Tribunal has come to a different conclusion to what a particular litigant would think should be the conclusion that is relevant, it is whether the Tribunal has actually done what it is meant to orally and statutorily asked to do.

45. With regard to the finding of the ACAS report, it is clear from paragraph 43 of the reasons of the Tribunal that it did consider it.  Paragraph 43 states:

    “The Tribunal has had regard to an ACAS assessment report by Western Health, dated 26 August 2015. It says that a referral to a continence nurse was recommended, however Ms Vo declined the referral.  It also said that Ms Vo is eligible for permanent and respite care at low level at an aged care facility, however Ms Vo does not wish to have approvals for respite or permanent care.  The report further states that Ms Vo lives with her son Danh and his wife Giau, in Danh’s and Giau’s home. Danh and Giaru work full time. The Tribunal finds that this is inconsistent with Danh’s statutory declaration dated 13 January 2016 in which he stated  that he was made redundant in April 2014 (as evidenced in a letter from his employer). This indicates that the family provided inaccurate information to the ACAS assessor about their family circumstances. This leads the Tribunal to give limited weight to the assessor’s conclusion that Ms Vo would not have the quality of life she currently benefits from in the absence of the care of the review applicant. It is apparent that the assessor did not have the independent knowledge of the care provided to Ms Vo prior to the review applicant’s arrival in Australia. 

46. That paragraph shows that the Tribunal did consider this relevant material.  The fact that they put no weight on it because of the aspects that they talk about is not a matter which this Court can look at, because that is a merits review.  The Tribunal was asked, or mandated, to consider that material.  It did consider it.  It made a conclusion.

47. It is not then for this Court to look at that conclusion, unless that conclusion just simply was not open.  The fact is that such a conclusion was open.  Whether or not another Tribunal, or even this Court, would have come to the same conclusion if it were looking at the matter de novo is not to the point.  The fact is that this matter was considered and so, therefore, there cannot be any jurisdictional error.

1. Similarly, when one considers the next particular, that the Tribunal gave no consideration to the claim that the review Applicant has contacted care providers before the hearing, it is clear that the Tribunal did do that. 

2. The Tribunal listed at paragraph 37 all of those matters that the Applicant has engaged in before the Tribunal and spoke as to why they accepted some and why they did not accept others.

3. Again, for the same reason, they have considered the matter; they have looked at it and they have come to conclusions.  Those conclusions are open on the evidence.  Whether or not another Tribunal, or even this Court, would look at it in a different manner if it was looking at it de novo is not to the point.  What the Tribunal has done is to satisfy what it necessarily had to do.

4. Having a look at those matters, it seems to me then that there cannot be any jurisdictional error alleged as to the finding that the Tribunal had made about reg.1.15AA(1)(e)(ii); that is, whether the assistance cannot be reasonably obtained by other providers. 

5. Therefore, if there is nothing that would infect the conclusions in reg.1.15AA(1) (e)(ii) with any form of error, any error in reg.1.15AA(1)(e)(i) would not be a material error and therefore not be a jurisdictional error.

6. Whilst I could go through the rest of the grounds, it really would be a wasted exercise and I do not propose to do that.  It is enough that there is no error in relation to reg.1.15AA(1)(e)(ii).  Any errors that are identified with regard to reg.1.15AA(1)(e)(i) could not then amount to a jurisdictional error. 

7. Therefore, I dismiss the application.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Vasta.

Date: 31 August 2016