Luong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 216

FEDERAL CIRCUIT COURT OF AUSTRALIA

Luong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 216

File number(s):

BRG 279 of 2020

Judgment of:

JUDGE EGAN

Date of judgment:

11 February 2021

Catchwords:

MIGRATION – application for Carer’s Visa – non-fulfilment of essential conditions for grant of visa – application for review without merit – application dismissed

Legislation:

Powers of Attorney Act 1998 (Qld).

Migration Regulations 1994 (Cth) r 1.15AA, Schedule 2, cll 836.221, 836.227.

Cases cited:

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.

Number of paragraphs:

18

Date of last submission/s:

5 February 2021

Date of hearing:

5 February 2021

Place:

Brisbane

Counsel for the Applicant:

Ms Yu

Solicitor for the Applicant:

TQH Lawyers

Counsel for the First Respondent:

Mr McGlade

Solicitor for the First Respondent:

Minter Ellison

Second Respondent:

Submitting appearance save as to costs

ORDERS

BRG 279 of 2020

BETWEEN:

AN GIA LUONG

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTARTIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	11 FEBRUARY 2021

IT IS ORDERED THAT:

1.The Application for Review filed on 12 May 2020 be dismissed.

2.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $6,100.00.

REASONS FOR JUDGMENT

JUDGE EGAN:

1. On 5 June 2015, the applicant applied for an Other Family (Residence) (Class BU) (Subclass 836) Carer Visa. His sponsor was his elderly grandmother who was an Australian citizen.

2. The visa application was refused by a delegate of the Minister on 26 June 2018.

3. Upon review by the Administrative Appeals Tribunal (“the Tribunal”), the Tribunal found that the applicant was not entitled to the grant of the visa because:

   (a)The applicant did not satisfy cl. 836.227 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) – namely whether the sponsorship was still in force at the time of the decision; and

   (b)The applicant did not satisfy cl. 836.221 of Schedule 2 to the Regulations – namely whether the applicant could relevantly be considered a “carer” of the sponsor.

4. Clauses 836.227 and 836.221 of Schedule 2 to the Regulations relevantly provided as follows:

   “836.227

   The sponsorship mentioned in clause 836.213 has been approved by the Minister and is still in force.

   836.221

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

5. Regulation 1.15AA(1)(e) of the Regulations relevantly provided 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:

   …

   (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”

   Grounds of Application for Review

6. The grounds of review were as follows:

   “1. The Second Respondent (the Tribunal) misconstrued and misapplied the law in assessing whether the Applicant met criterion cl.836.227 of Schedule 2 to the Migration Regulations 1994 (Cth).

   Particulars

   a. The Tribunal at [33] of its decision, found that the Applicant did not satisfy criterion cl.836.227 of Schedute-2 to the Migration Regulations 1994 (Cth) because there was no sponsorship in force in respect of the Applicant.

   b. In making the finding referred to above at (a), the Tribunal misconstrued and misapplied cl.836.227 because it made no findings in its decision which addressed the question of whether the sponsorship of the Applicant has, or should be, approved for the purposes of criterion cl.836.227.

   c.   The matters referred to above at (a)-(b) were material to the outcome of the review as it formed the primary basis for the Tribunal's decision for affirming the refusal of the Applicant's Subclass 836 Carer visa. Consequently the Tribunal's decision was affected by jurisdictional error.

   2. The Tribunal failed to take into account relevant evidence and considerations in finding that the Applicant's sponsor lacked the mental capacity to make the sponsorship undertaking in r.1.20 of the Migration Regulations 1994 (Cth).

   Particulars

   a.   The Tribunal, at [32] of its decision, accepted that the Applicant has power of attorney over the sponsor. However the Tribunal went on to find that "regardless of whether at the time of application the sponsor suffered from Dementia and needed a carer, that following her stroke in December 2016 and at the time of decision, the sponsor does not have the capacity to make the sponsorship undertaking in relation to r.1.20".

   b. As a consequence of the finding referred to above at (a), the Tribunal found at [33] of its decision, found that the Applicant did not satisfy criterion cl.836.227 of Schedule 2 to the Migration Regulations 1994 (Cth) because there was no sponsorship in force in respect of the Applicant.

   c.   As part of the evidence submitted to the Tribunal for the purposes of the review, the Applicant submitted a completed power of attorney form dated 15 February 2017, in while the sponsor made an enduring power of attorney in favour of the Applicant that was effective immediately, so that the Applicant could deal with on the sponsor's behalf

   d. Section 41 (1) of the Powers of Attorney Act 1998 (Qld) states that a principal may only make an enduring power of attorney if they understand the nature and effect of an enduring power of attorney.

   e.   A witness to the making of the enduring power of attorney named Kay Powell made a declaration on page 11 of the appointment form to the effect that, at the time of making the enduring power of attorney, the sponsor appeared to understand the nature and effect of an enduring power of attorney.

   f.    The making of the enduring-power of attorney by the sponsor in favour of the Applicant resulted in the creation of an agent-principal relationship at law between the Applicant (the agent) and the sponsor (the principal) such that the Applicant had the legal authority to deal with the sponsor's financial and personal/health matters such that the acts of the Applicant were taken to be the acts of the sponsor, in relation to these matters.

   g. The sponsor's obligations under r.1.20 of the Regulations fell within the definition of either a 'financial matter' or a 'personal matter' as defined in cl. 1 and cl. 2 of Schedule 2 to the Powers of Attorney Act 1998 (Qld). As such to the extent that there were any sponsorship obligations, these obligations could be met by the Applicant, once the Applicant's powers under the enduring power of attorney became exercisable under s.33 of the Powers of Attorney Act 1998 (Qld).

   h.   In making the findings referred to above at (a)-(b), the Tribunal failed to take into account the following relevant evidence and considerations:

   i. That there was evidence from a third party (i.e. Ms Powell) on the power of attorney appointment form, that the sponsor appeared to have the requisite mental capacity to make a valid enduring power of attorney in favour of the Applicant as at 15 February 2017;and

   ii. That the making of the enduring power of attorney by the sponsor in favour of the Applicant resulted in the creation of an agent-principal relationship at law between the Applicant and the sponsor, such that the Applicant could assume the responsibilities associated with the sponsorship undertaking in r.1.20 of the Regulations, to the extent required for the purposes of being granted a Subclass 836 Carer visa.

   i. The matters referred to above at (a)-(h) were material to the Tribunal's assessment of whether the Applicant met the criterion in cl.836.227 of the Regulations. Consequently the Tribunal's decision was affected by jurisdictional error.”

   Treatment by Tribunal of Applicant’s Claims

7. As to Ground 1 of the Originating Application for Review, there is no merit to the claim that the Tribunal misconstrued and misapplied the law in assessing whether the applicant met the cl. 836.227 criteria or not.

8. The scheme of the legislation, and the clear intention of the legislature, was that for the grant of a carer’s visa, the sponsorship must still be in force. In the present matter, because of the medical condition of the sponsor, the sponsor lacked the mental and physical capacity to comply with the undertakings made by her for her ongoing qualification as a sponsor. It was conceded on behalf of the applicant that the sponsor lacked mental capacity. In such circumstances, an essential ongoing element required for the grant of the visa was unmet. The Tribunal did not err in finding that the fulfilment of the cl. 836.227 condition could not be met.

9. Further, at the hearing before the Court, it was conceded by Counsel on behalf of the applicant that the sponsor had been accommodated in a nursing home, following a stroke, since in or about March 2017, and that at the time of the decision, the applicant was not the sponsor’s carer. At [59] of its reasons, the Tribunal relevantly found as follows:

   “[59] Having considered the evidence, arguments and circumstances of the parties, the Tribunal is not satisfied that the assistance required by the sponsor cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia. Indeed, the Tribunal finds that the assistance required by the sponsor is being provided, and has been provided for the last 3 years, by a nursing home in New Farm. Therefore, the requirements of r.1.15AA(1)(e) are not met.”

10. It was clear that the legislature intended that only those who were classified as a carer could be granted a carer visa. Because the sponsor was in a nursing home, the applicant did not meet the definition of carer under r. 1.15AA(1)(e) of the Regulations because the relevant care and assistance provided to the sponsor was so provided from nursing or community services via a nursing home situated at New Farm in Brisbane. Accordingly, another essential element for the grant of the visa was unable to be met by the applicant. The finding of the Tribunal that the applicant was not a sponsor was not challenged in the grounds for review filed on behalf of the applicant.

11. A further submission made by Counsel for the applicant that the applicant, as the donee of a power of attorney – said to have been duly executed pursuant to the provisions of the Powers of Attorney Act 1998 (Qld) – might somehow be able to cure the applicant’s non-fulfilment of visa conditions, was misconceived. Commonwealth legislation has paramountcy over State legislation. There was no valid basis for the making of the submission that an instrument granted under a State Act had any force or effect in circumstances such as the present where Commonwealth legislation was determinative as to whether a visa would be granted or not.

12. The Tribunal did not err in the way in which it conducted the hearing before it. It had due regard to all of the submissions and claims made by and on behalf of the applicant. It considered the applicant’s claims in a reasoned way. It was entitled to find that the applicant had not satisfied essential conditions for the grant to him of the visa.

13. Further, it cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:

    “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

    [131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

    …

    [135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

14. Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

    “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76]      As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

15. It cannot be said that the Tribunal, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] - [27], where it was said:

    “[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

    [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

    [27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”

1. The applicant has failed to establish jurisdictional error on the part of the Tribunal.

2. The Originating Application for Review is without and is dismissed.

3. The Court will hear the parties as to costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       11 February 2021