Mako v Minister for Immigration
[2020] FCCA 528
•20 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAKO v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 528 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for Other Family (Residence) (Class BU) visa – application for reinstatement – whether the Tribunal failed to exercise its jurisdiction – whether the Tribunal failed to carry out its statutory task – whether the Tribunal failed to give proper, genuine and realistic consideration to the merits of the claims – whether the Tribunal made a jurisdictional error – no jurisdictional error made out – application for reinstatement denied – application dismissed. |
| Legislation: Migration Regulations 1994 (Cth), reg.1.15AA, Sch.2, cl.836.221 |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 |
| Applicant: | JAMES WILLIAM MAKO |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3714 of 2017 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 11 March 2020 |
| Date of Last Submission: | 11 March 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 20 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bailey |
| Solicitors for the Applicant: | Firmstone and Associates |
| Solicitors for the Respondents: | Mr Leerdam, Mills Oakley |
ORDERS
The application for reinstatement is denied.
The application is dismissed.
The applicant to pay the first respondent’s costs fixed in the amount of $1,500.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 3714 of 2017
| JAMES WILLIAM MAKO |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of the United States of America. On 16 February 2015, the applicant applied for an Other Family (Residence) (Class BU) visa. On 8 September 2016, a delegate of the Minister for Immigration (“the delegate”) refused to grant the visa. The delegate refused to grant the visa on the basis that cl 836.221 of the Migration Regulations 1994 (Cth) (“the Regulations”) was not met because the delegate was not satisfied the applicant was the carer of an Australian relative.
The applicant sought merits review in the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 27 October 2017, the Tribunal affirmed the decision of the delegate not to grant the applicant the requested visa.
The applicant now seeks judicial review in this Court.
This matter was initially listed for hearing on 27 February 2020. There was no appearance by either the applicant in person or by any legal representative on his behalf. On the application of the first respondent, the matter was dismissed pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
In an Application in a Case filed on 5 March 2020, the applicant sought that the orders dismissing the matter be set aside. Evidence was provided in an affidavit of the instructing solicitor, Mr Sam Issa, of a clear administrative error by Counsel who was instructed in the matter, having the wrong date in his diary. Given that the administrative error and the impact of the dismissal on the applicant, who was denied the hearing on the merits of the case, Mr Issa asked the Court to exercise its discretion to reinstate the matter.
The application for reinstatement was opposed by the first respondent.
Should the matter be reinstated?
The relevant principles applicable to reinstatement are set out in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]. They are as follows:
a)Whether there was a reasonable excuse for the party’s absence from the hearing when the proceeding was struck out.
b)The existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant; and
c)Whether the applicant has a reasonably arguable prospect of success on the substantive application.
In relation to (c), if there is no reasonable chance of success then “there is no purpose in reinstatement” (see MZKAJ v Minister for immigration and Multicultural and Indigenous Affairs (2005) FCA 1066 at [18]).
In relation to the first matter, being whether there was a reasonable excuse, the Court is satisfied that there was a genuine misunderstanding, as to the date when the matter was listed for hearing. The matter had been fully prepared for hearing and at the time, there was every reason to believe that a legal representative for the applicant would appear. In these circumstances, the Court is satisfied that there is a reasonable excuse.
As to the second matter, being any prejudice that might flow to the Minister, the solicitor representing the Minister quite properly conceded that any prejudice was insufficient, subject to the issue of costs.
Accordingly, any decision to reinstate must revolve around the third matter, being whether or not there is a reasonable prospect of success in the substantive application.
The Administrative Appeals Tribunal’s Decision
The first matter for the Tribunal to determine, was whether or not the applicant was a “relative” of a resident who was an Australian citizen. In the present case, the Tribunal, at paragraph 6 of its decision, was satisfied that the Australian relative is the applicant’s mother. The applicant therefore met the requirements of r 1.15AA(1)(a) of the Regulations.
At paragraph 7 of its decision, the Tribunal notes r 1.15AA(1)(b) of the Regulations requires that a certificate, which meets the requirements of r 1.15AA(2) of the Regulations, be provided, which states that:
The Australian relative (resident) or member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend a practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the 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.
At paragraph 8 of the Tribunal’s decision, the Tribunal noted that the applicant provided with his application for a visa, a copy of a medical certificate issued by Bupa Medical Visa Services in February 2015. This certificate addressed each of the requirements referred to above.
At paragraph 13 of its decision, the Tribunal notes r 1.15AA(1)(e) of the Regulations requires that the assistance cannot reasonably provided by:
Any other relative of an Australian relative who was an Australian citizen, permanent resident or eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia.
At paragraph 14 of the Tribunal’s decision, the applicant provided a statement from his sister, who stated that she cannot care for her mother because she has three young children and is a student. The Tribunal accepted the sponsor’s daughter was unable to care for the sponsor.
The applicant’s mother (the sponsor) has a brother in Australia but he is in his eighties. At paragraph 15 of its decision, the Tribunal was satisfied the brother was unable to care for the sponsor. There are nieces and nephews but there was little evidence before the Tribunal about their capacity and whether any form of assistance could be provided by these relatives.
Critical to this matter was that the applicant provided a written statement from his sister, who claims to have approached a number of organisations seeking help for their mother and that such help was not available. In the applicant’s oral evidence to the Tribunal, he said that they approached a number of organisations but some charged high fees and others had long waiting lists. The applicant’s mother required immediate care. At paragraph 16 of its decision, the Tribunal noted there was very little evidence from these organisations about services, the costs or the waiting period that was involved.
Accordingly, the Tribunal granted the applicant more time to obtain evidence about the assistance that may be obtained from various organisations. Following the hearing, the applicant provided to the Tribunal, a statement from the Assyrian Australian Association which indicated that the association is unable to provide the required care and is “not aware” of any other government services that can adequately provide around-the-clock care. The Tribunal stated that it found this assertion odd, given the number of organisations, including government subsidised residential aged care facilities that do provide full-time assistance of the types required by the sponsor.
At paragraph 17 of its decision, the Tribunal was not satisfied that the applicant had made adequate inquiries about the care available. There was little evidence that appropriate inquiries had been made with residential care facilities that do specialise in the provision of aged care. The Tribunal was mindful that a number of such organisations offer subsidised care, so that the cost of the care would be reduced. The Tribunal acknowledged the applicant’s evidence that his mother would feel more comfortable with him but that was not sufficient. The applicant, in the Tribunal’s view, had not provided adequate evidence to the Tribunal that culturally, linguistically and religiously appropriate services were not available.
Accordingly, the Tribunal found that the applicant is not the carer of an Australian relative, being the sponsor mother and therefore does not satisfy cl 836.221 of the Regulations.
Ground of Appeal
A single ground of appeal is relied upon as follows, verbatim:
The Tribunal constructively failed to exercise jurisdiction, or failed to carry out its statutory task, by failing to lawfully consider, including giving proper, genuine and realistic consideration, to the merit of the claim(s) made by the Applicant.
Particulars
i.The Tribunal concluded at paragraph 18 of the decision record that it formed the view that inadequate enquiries had been made by the family concerning the availability of services from other sources, including welfare, hospital, nursing or community services.
ii.By adopting the above findings, the Tribunal failed to give proper, genuine and realistic consideration to the evidence that was provided from the Assyrian Australian Association, who made appropriate enquiries on behalf of the family and concluded in their letter dated 18 September 2017, that they are not aware of any government services that can adequately provide around the clock services for her needs, and private services are very expensive.
iii.By adopting the above findings, the Tribunal failed to give proper, genuine and realistic consideration to oral and written evidence that was provided by the review applicant as to the family’s efforts as to the inquiries that they had made from other care service providers.
iv.By adopting these findings the Tribunal failed to give proper, genuine and realistic consideration to the particular emotional, cultural, linguistic and religious special needs of the sponsor.
v.By adopting these findings the Tribunal failed to give proper, genuine and realistic consideration to the costs and the family’s capacity to meet the costs of services that may be provided by other care service providers.
The Applicant’s Submissions
Counsel for the applicant submitted that central to this case, is the consideration by the Tribunal of r 1.15AA(1)(e) of the Regulations, which requires that the assistance needed by the sponsor:
Cannot reasonably be… obtained from welfare, hospital nursing or community service services in Australia.
In Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 per Gageler J at [64], the following was said:
A statutory requirement that a decision-maker arrive at a state of satisfaction as a precondition to an exercise of a statutory power, like requirement that a decision-maker hold a belief is a precondition to an exercise of statutory power, necessitates that the decision-maker “feel an actual persuasion” – “an inclination of the mind towards assenting to, rather than rejecting, a proposition’.
Counsel for the applicant submitted that in reaching the state of satisfaction, the Tribunal must give “proper, genuine and realistic consideration” in the sense that it must engage in “active intellectual process directed at” the applicant’s case (see Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45].
Counsel for the applicant concedes that there can be no complaint about the Tribunal’s processes in this case. It identified gaps in the applicant’s evidence, gave the applicant an opportunity to file further evidence, considered the further evidence and expressed its reasons for its state of non-satisfaction.
Counsel submitted nonetheless, that the Tribunal fell into error. Issue is taken with the following statements;
1. The Tribunal considers that statement odd, given the number of organisations, including government subsidised residential aged care facilities, that do provide full-time assistance of the type that is required by the sponsor;
2. There is little evidence that appropriate inquiries have been made with residential care facilities that do specialise in the provision of aged care;
3. The Tribunal is mindful that a number of such organisations offer subsidised care, so the cost of the care would be reduced;
4. …the Tribunal has formed the view that in inadequate inquiries have been made by the family concerning the availability of services from other sources.
Counsel for the applicant submits that none of the above assumptions is explained or verified by the Tribunal. The Tribunal has proceeded on the basis that appropriate care must be available and the applicant has failed to disprove that availability. This does not amount to an active intellectual engagement required when reaching a state of satisfaction provided for by the Act and the Regulations.
The First Respondent’s Submissions
The first respondent submits that the critical issues to examine is what the decision-maker did, in the particular statutory setting, by reference to both the evidence and the claims before the decision-maker and the reasons of the decision-maker.
The first respondent submits that the Full Court of the Federal Court noted, in a different statutory setting, in Minister for Home Affairs v Baudromo [2018] FCAFC 151, that a number of matters need to be borne in mind, when considering a decision-maker’s assessment evidence and claims at [44] ; [46] – [49]:
a) The weighing of the evidence was principally a matter for the decision-maker. The use of the phrase “proper, genuine and realistic consideration” taken out of context may encourage a reviewing court to slide into impermissible merits review (relying on Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164);
b) A decision-maker must give reasons for his or her decision, not a sub-set of reasons for rejecting or accepting particular pieces of evidence or a line by line refutation of the evidence before the decision-maker;
c) It is not necessary for a decision-maker in the decision to refer to every piece of evidence for every contention made by an applicant. An inference that something has not been considered is not to be drawn lightly, particularly where the issue has been dealt with at some point in the reasons (relying upon Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593).
It was submitted on behalf of the first respondent that in essence, the applicant’s contentions are really an attempt to seek a review of the merits of the decision by the Court, dressed in the language of a failure to consider.
It was submitted that the Tribunal did consider the evidence set out in the letter from the Assyrian Australian Association. It was submitted that, the letter, while stating it could not provide the required care, provided an unsupported assertion that it was not aware of any other government services providing appropriate care. The conclusion the Tribunal came to, that this was ‘odd’, given the number of organisations that do provide such care, is simply a rejection of the suggestion. It was submitted that the conclusion was clearly available and the submission goes no higher than that the Tribunal had to accept the Association’s statement.
Secondly, contrary to the suggestion provided by the applicant, it was submitted that the Tribunal did consider the evidence provided by the applicant. It is clear the Tribunal had concerns about the little objective evidence that was provided about “services, the costs and the waiting lists involved” (see paragraph 16 of the Tribunal’s decision). This is consistent with the nature of the statutory requirement in r 1.15A(1) of the Regulations.
Thirdly, the Tribunal was aware of the particular cultural, linguistic and religious needs of the applicant’s mother and made reference to it in its decision at the last line of paragraph 16. It was submitted that the Tribunal’s point, is not that the Tribunal failed to consider those matters or engage with them, but rather the Tribunal considered the applicant failed to demonstrate those aspects that were unavailable from appropriate service providers.
Finally, the evidence that the applicant’s family did not have the capacity to meet the costs of services rose no higher than an assertion, based on second-hand evidence from the applicant and his sister, about what they had been told about the cost from a particular provider. It was submitted that it was open to the Tribunal to find that the evidence, lacking as it did any objective component or third-party documentary material and based entirely in the applicant’s own assertions, was inadequate.
Consideration
It is well-established that the Tribunal is not required to accept, uncritically, any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at page 451). Nor does the Tribunal have to possess rebutting evidence, before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at page 348).
It is well established that it is not the role of the Court to undertake merits review (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [148]). Further, in Abebe at [187], Gummow and Hayne JJ state:
The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention. The Tribunal must then decide whether that claim is made out.
The Tribunal considered the initial material provided by the applicant and found it to be inadequate. The Tribunal discussed its concerns with the applicant and provided him the further opportunity of providing additional information, which might allow the Tribunal to find in his favour.
The Tribunal considered the additional material that was provided, being a letter from the Assyrian Australian Association, the contents of which are set out above and a statutory declaration by the applicant, in which he listed a number of organisations he contacted and referred to either the high cost of the service or the unavailability of carers. The Tribunal found that it was not satisfied the applicant had made adequate inquiries about the care available. The Tribunal found that the applicant had not provided adequate evidence to the Tribunal that culturally, linguistically and religiously appropriate services were not available.
The Court considers, that this indicates that the Tribunal did turn its mind to the matters that were in dispute, but found that the evidence that was provided was inadequate. Furthermore, it is well accepted that the weight to be given to the evidence, is entirely a matter for the Tribunal.
The Court agrees with the first respondent that the applicant’s assertion that the Tribunal failed to give a proper, genuine and realistic consideration to the matters raised cannot be sustained.
The Court agrees with the first respondent’s submission to the applicant’s grounds of appeal, in that it simply invites the Court to engage in impermissible merits review.
Conclusion
No jurisdictional error can be established in the Tribunal decision. In these circumstances, the Court denies leave to reinstate the matter, as to do so would be futile, given the lack of merit in the application to the Court.
Costs in the sum of $1,500.00 have been agreed between the parties as the appropriate amount to be paid by the unsuccessful party.
Accordingly, the application is dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Deputy Associate:
Date: 20 March 2020
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