Mariam v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 436
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mariam v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 436
File number(s): SYG 2511 of 2019 Judgment of: JUDGE LAING Date of judgment: 5 July 2022 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming decision not to grant an Other Family (Residence) (Class BU, Subclass 836) visa – whether the Tribunal failed to comply with s 360 of the Migration Act 1958 (Cth) – whether the decision of the Tribunal was legally unreasonable – whether the Tribunal misunderstood reg 1.15AA(1)(e) of the Migration Regulations 1994 (Cth) – application dismissed. Legislation: Evidence Act 1995 (Cth) s 69(3)
Migration Act 1958 (Cth) s 360
Migration Regulations 1994 (Cth) regs 1.15AA, 1.15AA(1)(a)-(c), 1.15AA(1)(d), 1.15AA(1)(e)(i), 1.15AA(1)(e)(ii), cls 836.221, 836.212
Cases cited: ABA15 v Minister for Immigration and Border Protection [2016] FCA 1419
Bhandari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 93
Biyiksiz v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 814
CYW21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1084
El-Chahini v Minister for Immigration and Border Protection [2018] FCA 202; 74 AAR 224
Faustin Epeabaka v Minister for Immigration & Multicultural Affairs [1997] FCA 1413; 76 FLR 101
Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149; 254 FCR 522
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541
Minister for Immigration and Citizenship v Li [2013] HCA 18; 297 ALR 225
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 96 ALJR 13
Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; 228 CLR 152
Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15
Division: Division 2 General Federal Law Number of paragraphs: 59 Date of hearing: 4 May 2022 Place: Sydney Solicitor for the Applicant: Mr D Godwin Solicitor for the First Respondent: Clayton Utz Counsel for the First Respondent: Mr M Cleary ORDERS
SYG 2511 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KHALED MARIAM
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
5 JULY 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant an Other Family (Residence) (Class BU, Subclass 836) visa (Carer Visa).
BACKGROUND
The applicant is a citizen of Lebanon. He applied for the Carer Visa on 23 October 2017 on the basis of care provided to his brother (Sponsor).
By letter (sent by email) dated 6 November 2018, the applicant was sent a request for further information from the Department of Home Affairs. The information sought included “documentary evidence” showing that assistance could not reasonably be obtained from welfare organisation, community services or nursing services/agencies. It was suggested that this could include letters from such services stating what care was or was not available.
In response, the applicant provided statutory declarations made by himself and the Sponsor. The statutory declaration made by the Sponsor stated that his wife had been told that there was no care available to him by a number of organisations and provided a list of some of these services.
On 30 January 2019, the Delegate refused the application. In the absence of corroborative evidence regarding contact by the Sponsor’s spouse with the various organisations, the Delegate was not satisfied that the availability of alternative care options had been fully investigated. The Delegate was therefore not satisfied that the care required by the Sponsor could not reasonably be obtained from welfare, hospital, nursing or community services in Australia. As such, the Delegate found that the requirements of reg 1.15AA and cl 836.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) had not been met.
The applicant applied to the Tribunal for review of the Delegate’s decision on 4 February 2019.
On 11 September 2019, the Tribunal affirmed the Delegate’s decision.
RELEVANT LAW
At the relevant time, cl 836.221 of Schedule 2 to the Regulations was a time of decision criterion for the visa which stated as follows:
The applicant is a carer of a person referred to in clause 836.212.
Clause 836.212 stated:
The applicant claims to be the carer of an Australian relative.
Carer was defined in reg 1.15AA of the Regulations, which relevantly stated (emphasis added):
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 (within the meaning of subsection 23(1) of the Social Security Act 1991), 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
(ba)the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(c)the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister 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:
(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…
THE TRIBUNAL’S DECISION
The Tribunal accepted that the applicant met the requirements of reg 1.15AA(1)(a)-(c) and found that reg 1.15AA(1)(d) did not apply (at [11]-[21]). The issue before the Tribunal was therefore whether assistance could not reasonably be provided by another relative who met the requirements of reg 1.15AA(e)(i), or obtained from welfare, hospital, nursing or community services in Australia as described in reg 1.15AA(e)(ii).
The Tribunal observed that in his application form, the applicant had stated that assistance had been sought from Concord and North Shore Hospitals when asked whether assistance had been sought from such organisations or services. No other evidence had been provided at that time regarding care that had been sought from welfare, hospital, nursing or community services in Australia (at [23]-[24]).
The Tribunal observed that the Department had written to the applicant on 6 November 2018 requesting evidence regarding his contact with such services. The Tribunal set out what had been stated by the Sponsor in his statutory declaration in relation to services that he claimed had been contacted by his wife. However, the Tribunal considered that a “cursory check” of the services listed showed that they were not home help services (at [25]-[27]). In relation to this evidence, the Tribunal considered:
… Based on the information provided the Tribunal is not satisfied the information demonstrates that the availability of residential facilities or a combination of family support and in-home assistance from welfare, nursing or community services has been fully investigated. The sponsor has a diagnosis of metastatic midgut neuroendocrine cancer (DF folio 77) which is slow growing in nature, and his life expectancy is greater than two years. The Tribunal is aware that there are many organisations which could be contacted regarding home care and also notes there is a lack of reference to the Cancer Council Australia in regard to support services available for cancer patients. These include home help, home nursing, financial assistance and support organisations.
The Tribunal observed that letters of support had been provided from the Sponsor’s doctors. The Tribunal accepted that the applicant would like his family to come to Australia and care for the Sponsor, and that he had no other family living in Australia. However, the Tribunal did not find that the doctors’ letters were relative to the applicant’s claims of providing 24/7 care for the Sponsor. Whilst a letter dated 11 December 2018 from Concord Repatriation General Hospital stated that the Sponsor was unable to travel, the applicant told the Tribunal that the Sponsor was overseas with his family visiting relatives and on a pilgrimage to Saudi Arabia. This created some doubt regarding the level of care that was required. Further, the Tribunal considered (at [28]):
There is limited objective evidence before the Tribunal to demonstrate that the availability of residential facilities or a combination of family support and in-home assistance from welfare, nursing or community services has been fully investigated or cannot be proved.
The Tribunal accepted that it would be difficult for the Sponsor’s wife to care for him whilst providing care and support to six children and managing her own health issues (at [29]). However, like the Delegate, the Tribunal was not persuaded that the availability of other supports had been fully investigated. In this regard, the Tribunal considered (at [30]):
The applicant and the sponsor’s wife both stated that they cannot obtain any carer assistance form (sic) any organisations because the sponsor is under 65 years of age. The applicant stated that he had attended a number of organisations in the company of the sponsor’s wife and was told the same thing. The sponsor’s wife told the Tribunal that she had contacted a number of organisations by telephone and was told there was no help available for her husband. The Tribunal queried the sponsor if he had made any enquires in regard to carer assistance that could be provided to him. He responded that his wife made all enquires and he had no knowledge of who she had contacted. The Tribunal asked the sponsor’s wife if she had contacted the Cancer Council Australia for assistance. She stated that she believed that she had contacted them by telephone and all they could provide was $150 vouchers for food and petrol and would pick up the sponsor and drop him off if required. She further stated that this was a one-off service and they would not provide any further help. The Tribunal questioned the sponsor’s wife and applicant if there was any correspondence from any of the organisations contacted and she stated that she had contacted them by telephone only. Based on the information provided the Tribunal is not satisfied the information demonstrates that the availability of residential facilities or a combination of family support and in-home assistance from welfare, nursing or community services has been fully investigated.
The Tribunal was therefore not satisfied that assistance could not reasonably be obtained for the Sponsor from welfare, hospital nursing or community services in Australia. As the Tribunal was not satisfied that reg 1.15AA(1)(e)(ii) was met, the Tribunal concluded that the applicant was unable to meet cl 836.221 and affirmed the Delegate’s decision (at [31]-[33]).
PROCEEDINGS BEFORE THIS COURT
Grounds of application
An application for judicial review was filed by the applicant on 30 September 2019 containing the following grounds:
1.The Administrative Appeals Tribunal's decision is affected by error of law as it was made contrary to the evidence before it.
2.The Tribunal's decision is unreasonable.
In written submissions, the applicant expanded upon these grounds by raising the following contentions:
(a)The Tribunal’s decision was contrary to the evidence provided, including the statutory declarations at pages 85 to 88 of the Court Book.
(b)The decision was unreasonable as it was based upon an assumption that the Cancer Council Australia (Cancer Council) was an organisation which provided the care which the Sponsor required and the applicant provided, when there was no probative evidence that this was so.
(c)The Tribunal denied the applicant procedural fairness by not putting to him that the services contacted by the Sponsor’s wife were not appropriate services to be contacted as they did not provide home care services.
(d)The Tribunal misunderstood the applicable law by finding that assistance provided from the relevant services had to be “fully investigated” before it could be said that it was not reasonably obtainable for the purposes of reg 1.15AA(1)(e).
On the morning of the hearing, the applicant sought to rely upon an amended application containing the following grounds (reproduced verbatim):
1.The Tribunal failed to comply with s 360 of the Act as it did not alert the applicant that a dispositive issue in the review was whether the organisations the applicant and sponsor’s wife had contacted were home help services and were involved in home care.
2.The Tribunal’s decision was legally unreasonable as it was based upon the assumption that the Cancer Council was an organisation which provided the care which the sponsor required and which the applicant provided when there was no probative evidence that this was so;
3.The Tribunal misunderstood the applicable law when it found that assistance from welfare.hospital, nursing or community services had to be be fully investigated before it could be said that they were not reasonably obtainable for the purposes of Reg 1.15AA(1)(e)
At the hearing, I confirmed that the matters pressed by the applicant were confined to those relevant to the grounds in the amended application. Leave was given to the applicant to file an application substantially in that form, without objection.
Evidence
At the hearing, the affidavit of Toufic Laba Sarkis dated 5 February 2022 (Transcript) was read without objection. The Court Book was also tendered without objection (as Exhibit CB).
On behalf of the Minister, Mr Cleary objected to the following material on the basis of relevance, in circumstances where the material was not before the Tribunal:
(a)An affidavit of Justine Arfaras dated 28 April 2022, annexing material extracted from the Cancer Council’s website (Web Extracts).
(b)An undated information sheet apparently produced by the Cancer Council regarding the information and support that it provides (Cancer Council Information Sheet).
(c)A letter from the Cancer Council (Cancer Council Letter) that predates the Tribunal’s decision and indicates that they do not provide the kind of home care service sought.
Mr Cleary also noted that it was unclear whether or not some of the information relied upon applied at the time that the Tribunal made its decision.
I did not accept that the material was irrelevant. Ground 2 contends that there was no probative evidence before the Tribunal supporting findings regarding the role of the Cancer Council. In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 96 ALJR 13, the High Court considered that it was of some relevance that the proponent of a similar species of ground had adduced no evidence that the contested conclusion was incorrect (see at [8], [20] and [27] per Keane, Gordon, Edelman, Steward and Gleeson JJ). Although it is unclear from some of the material whether it applied at the time of the Tribunal’s decision, I considered that this went to weight rather than admissibility. Accordingly, the affidavit of Ms Arafas was taken as read and the Cancer Council Information Sheet was admitted as Exhibit A.
However, I accepted the Minister’s additional contention that the Cancer Council Letter was inadmissible as hearsay. In this regard, I did not accept Mr Godwin’s contention that the document may be regarded as a business record. Although the letter does not appear to have been provided to the Tribunal, it was created at a time when proceedings before the Tribunal were on foot. I therefore infer that it was obtained in contemplation of or in connection with an “Australian or overseas proceeding” within the meaning of s 69(3) of the Evidence Act 1995 (Cth) (Evidence Act). Such is defined in the Evidence Act as a “a proceeding (however described) in an Australian court or a foreign court”. The term “Australian Court” is defined to include a “a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence”. Tribunals have been considered to fall within this definition: see Faustin Epeabaka v Minister for Immigration & Multicultural Affairs [1997] FCA 1413; 76 FLR 101.
Ground 1 – s 360 of the Migration Act 1958 (Cth) (the Act)
From the Delegate’s decision, the applicant was squarely on notice that the adequacy of his evidence regarding inquiries that had been made of alternative support services was in issue.
However, Mr Godwin submitted that the applicant was not on notice of the more granular issue of whether the particular support services referred to in the Sponsor’s statutory declaration provided home care. In this regard, reference was broadly made to ABA15 v Minister for Immigration and Border Protection [2016] FCA 1419.
I accept that in many cases, it will be necessary for a decision maker to adopt a reasonably granular approach to notification of issues in respect of which an applicant may not be on notice from either the Delegate’s decision or the Tribunal hearing.
However, in the present case the applicant had put in issue that his particular care needs involved home care. This was, clearly enough, an issue before both the Delegate and the Tribunal. Before the Delegate, a list of services had been provided without further corroborating evidence regarding the contact made with those facilities. The applicant did not elaborate upon this despite being invited to provide further evidence. In the absence of such corroborative (and elaborative) evidence, the Delegate was not satisfied that the availability of suitable care facilities or in-home assistance had been fully investigated.
At the hearing before the Tribunal, the Tribunal questioned the applicant in some detail regarding the limitations in the evidence that had been put forward regarding contact with alternative support services. At p 4 of the Transcript, the Tribunal queried whether there were “documents, letters or written submissions” from the organisations that had been contacted “explaining why they can’t help”. The Tribunal also asked whether there were “other submissions to clarify what help they can or cannot offer”. At p 5 of the Transcript, the Tribunal queried why, within this context, the Cancer Council was not amongst the organisations contacted. At least at that point during the hearing, the Tribunal considered and put to the applicant that this organisation may have been able to provide assistance with “home help”.
I accept the Minister’s submission that these features of what occurred were sufficient to put the applicant on notice that the adequacy of all of the evidence he had put forward regarding his family’s investigation of home help/care services was in issue, including whether this kind of assistance was provided by the organisations listed in the Sponsor’s statutory declaration. I therefore do not accept that the Tribunal failed to comply with s 360 of the Act in the manner considered in such cases as SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; 228 CLR 152.
Ground 2 – legal unreasonableness
Legal unreasonableness may be found where a decision maker comes to a conclusion that no reasonable decision maker could have reached, or makes a decision that is devoid of an “evident and intelligible justification” (Minister for Immigration and Citizenship v Li [2013] HCA 18; 297 ALR 225 at [68] and [76] per Hayne, Kiefel and Bell JJ). It may also be found “if there is no logical connection between the evidence and the inferences or conclusions drawn” (see Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15 at [43]). However, the test has been described as “necessarily stringent” (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [11] per Kiefel CJ). It is not met simply because a reviewing Court disagrees with the approach taken by the Tribunal (see Bhandari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 93 at [48]).
The reasoning of the Tribunal in the present case is set out above.
Essentially, the Tribunal was not satisfied that alternative supports had been sufficiently investigated or that assistance could not reasonably be obtained for the Sponsor from other relevant sources. The Tribunal’s conclusions in this regard appear to have been based upon limitations in the evidence, including in respect of the statutory declarations that were relied upon by the applicant. In this regard, the Tribunal appears to have been concerned by the limited services claimed to have been contacted. The Tribunal found it surprising that those services would have been contacted in preference to a service such as the Cancer Council when seeking support services available for a cancer patient. Whilst the Tribunal considered the subsequent evidence that was given regarding contact with this organisation, this had not been referred to in the statutory declarations.
The applicant contends that the Tribunal’s decision was based upon an assumption that the Cancer Council provided the care required and which was provided by the applicant. This is said to have been unsupported by evidence. As noted above, the applicant seeks to support the ground through the Web Extracts and Cancer Council Information Sheet that the applicant has tendered. Those documents provide information regarding types of support that are provided by the Cancer Council. They do not indicate that the Cancer Council provides home care.
The Minister has submitted that limited weight can be placed upon these documents in circumstances where it is unclear whether the information within them applied at the time of the Tribunal’s decision. This may be accepted. That said, the documents are consistent with other evidence that was given to the Tribunal on behalf of the applicant regarding the unavailability of home care from the Cancer Council (see p 12 of the Transcript). In the absence of evidence to the contrary, I am prepared to infer that the Cancer Council did not provide home care at the time of the Tribunal’s decision.
However, as the Minister has also submitted, a more fundamental difficulty with ground 2 is that the Tribunal does not ultimately appear to have made any dispositive finding regarding whether this type of care was provided by the Cancer Council. It may be accepted that, during the hearing, the Tribunal put to the applicant that the Cancer Council provided services including home help or nursing: p 5 of the Transcript. However, at [27] the Tribunal did not find that this service was provided by that particular organisation. Rather, the Tribunal considered that there were “many organisations” that “could be contacted regarding home care”. It then “note[d]” the lack of reference to the Cancer Council in the Sponsor’s statutory declaration “in regard to support services available for cancer patients” such as “home help, home nursing, financial assistance and support organisations”.
The Tribunal therefore, by the time of its decision, appears to have considered the Cancer Council to be a potential source of connection and advice regarding support services and organisations (and not necessarily the provider of such services per se). This is consistent with the Cancer Council Information Sheet, which indicates that “referrals to appropriate services” are able to be provided by the Cancer Council.
Later in its decision, the Tribunal had regard to the evidence given by the Sponsor’s wife in relation to the limited assistance that she claimed the Cancer Council had provided. However, ultimately, the Tribunal appears to have been concerned that no documentary evidence (or correspondence) had been provided from the organisations she claimed to have contacted. This reasoning cannot have been closed to the Tribunal, in circumstances where a similar issue had been raised by the Delegate and had not been addressed. I do not accept that the Tribunal’s reasoning lacked an intelligible justification, nor a logical connection with the evidence.
For these reasons, I find that the applicant’s contentions in this regard are unable to succeed.
Ground 3 – misunderstanding of applicable law
I do not accept that the Tribunal misunderstood the law by finding that assistance provided by relevant services needed to be “fully investigated” before it could be said to be not reasonably obtainable for the purposes of reg 1.15AA(1)(e).
Although the Tribunal did state at [27] and [30] that it was not satisfied that available options had been “fully investigated”, it is apparent on a fair reading of the Tribunal’s decision that the Tribunal did not elevate this to a statutory requirement. Rather, in the particular circumstances of this case, the Tribunal considered that the limited evidence that had been provided regarding investigations undertaken was relevant to its finding that it could not be satisfied that the assistance could not reasonably be obtained from welfare, hospital, nursing or community services in Australia.
At the hearing, the applicant elaborated upon the basis of the ground relied upon by reference to three main authorities.
The first was Biyiksiz v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 814 (Biyiksiz). That case concerned an analogous provision in the Regulations. The Migration Review Tribunal erred in considering the provision from the perspective of availability of services, without also considering reasonable obtainability from the perspective of the person requiring care.
The second case relied upon was El-Chahini v Minister for Immigration and Border Protection [2018] FCA 202; 74 AAR 224 (El-Chahini). In that case, the Tribunal had reasoned, inter alia, that it would not be unreasonable for the person requiring assistance to relocate to Young to be closer to her daughter: [9]. The Tribunal was not satisfied that the mother’s care needs could not be provided through some combination of family assistance. The Tribunal’s assessment in this regard was considered to have “consisted of nothing more than a stated satisfaction that it would not be impossible for the mother to find accommodation in Young, it would be possible for her to find doctors in Young and her family could jointly provide the required assistance”: [21]. However, this did not engage with the case that had been put to the Tribunal regarding the “actual needs of the mother for assistance and the impact of those needs on the capacity of” her family to provide the contemplated care: [21]. The Tribunal was therefore found to have failed to assess reasonableness by reference to the needs of the mother, and to have failed to perform the required statutory task: [23]-[24].
The third case relied upon by the applicant is Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149; 254 FCR 522 (Nguyen). In that case, the Tribunal made a number of positive findings regarding care options being available, suitable and reasonably obtainable by the applicant’s mother (see [26]). In making these findings, the Tribunal relied upon its consideration that there were “73 aged care facilities available” in the area. The Tribunal did not, however, make specific findings in respect of the services provided by (any of) the 73 facilities. Nor did it make other findings of fact exposing the basis of its conclusion that the assistance required was reasonably obtainable from (any of) the facilities referenced. In the absence of such findings, the Court considered that “it would not be open to the Tribunal to express a mere conclusion that reasonable assistance could be so obtained by the mother”. Whilst the Tribunal had considered the facts and circumstances of the mother, it had not considered the “other side of the equation”, namely, how the identified facilities “matched up” with the mother’s circumstances. The Tribunal was therefore found to have erred in construing and applying reg 1.15AA(1)(e) (at [31]-[39]).
Mr Godwin sought to rely upon the above cases as authority for the proposition that “fairly detailed findings” are required regarding “both what the [Sponsor’s] needs are and what the available care is.” He submitted that the Tribunal in this case effectively made a “finding that it won’t make a finding” about what the Sponsor’s care needs were in stating that there was some doubt about the level of care required.
I do not accept this. The Tribunal did express doubt in its decision regarding at least some of the evidence that had been provided regarding the Sponsor’s care needs (such as his claimed need for 24/7 care from the applicant and evidence that he was unable to travel). At the hearing, it put to the applicant that there had been no (presumably current) assessment of care needs (p 6 of the Transcript). However, in its decision record the Tribunal accepted that the Sponsor required “some form of care and support as outlined in the carer visa assessment provided by Bupa” (at [28]). This was an assessment of the Sponsor’s care needs. At minimum, it shows that the Tribunal had “regard to” the Sponsor’s care needs (see CYW21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1084 at [39]).
I accept that this assessment was not as detailed or comprehensive as it ought to have been. In particular, the Tribunal did not expressly refer to evidence regarding the Sponsor’s emotional care needs (see pages 6, 13 and 18 of the Transcript).
However, it is difficult to conclude that this caused the Tribunal’s exercise of jurisdiction to miscarry in the present case. This is because the Tribunal’s decision did not turn on whether or not assistance was reasonably obtainable from a particular provider or provider(s) that may have met the Sponsor’s physical but not his emotional needs. The Tribunal’s decision turned on its lack of satisfaction generally that the applicant had adequately looked into what providers were out there and what they could provide. In the absence of a comparator (i.e. potential supplier(s) of services), or sufficient evidence that a comparator could not reasonably be located, the Tribunal considered that it was unable to assess whether or not the Sponsor’s care needs were able to be met in an alternative way that was reasonably obtainable by him in his circumstances.
Mr Godwin submitted that the Tribunal was not in a position to conclude that inadequate investigation of relevant services had been undertaken without first determining what needs they were proposed to address. There is some attractiveness to this argument. However, as stated above, I find that the Tribunal did make an assessment of the applicant’s needs. To the extent that it was deficient in not referring to the Sponsor’s emotional needs, I am unable to conclude that this caused the Tribunal’s reasoning process to miscarry. This is because the issue the Tribunal’s decision turned upon was more fundamental than the applicant’s failure to research providers capable servicing a particular physical or emotional need. Due to perceived deficiencies in the evidence, the Tribunal did not consider that it was in a position generally to assess what assistance was able to be provided to the Sponsor (whether that assistance was physical, emotional, or in some particular form).
Mr Godwin submitted that this reasoning was an abrogation or misunderstanding of the Tribunal’s task. He submitted that it was necessary for the Tribunal to identify what evidence was available about the facilities that were out there before concluding that the applicant’s investigation was inadequate. However, as I put to Mr Godwin, it must be open to the Tribunal to find in appropriate cases that the evidence before it is so deficient that it is unable to determine whether there are relevant facilities and/or what needs they were capable of servicing. Mr Godwin accepted that if the applicant had provided no evidence of any attempt to look into relevant services, the onus would not thereby have been placed on the Tribunal to undertake its own research in order to determine what services were available and whether they were reasonably obtainable.
This is, of course, not the case here. The applicant did provide some evidence that inquiries had been undertaken regarding the obtainability of services. However, the Tribunal was not persuaded by that evidence.
The Tribunal’s reasoning in this case was therefore different than in Biyiksiz, El-Chahini or Nguyen. The Tribunal did not find that some potential option was available to, or reasonably obtainable by, the Sponsor. The Tribunal instead found that the evidence before it was inadequate and that it was therefore unable to be satisfied that relevant assistance could not be reasonably obtained.
Whilst the Tribunal did refer to “many organisations” that it considered may be “contacted regarding home care”, this was generally expressed. The Tribunal appears to have had in mind organisations such as the Cancer Council, that may have been able to provide some further information regarding the availability or unavailability of relevant care. The Tribunal did not find that there were home care options available that were reasonably obtainable by the Sponsor, or that there was some other course that was reasonably available to him in this regard (such as moving to an area that would facilitate access to some combination of care).
The Tribunal’s reasoning in this case was therefore less ambitious than that considered in El-Chahini and Nguyen. It is also dissimilar to the reasoning in Biyiksiz. I am not satisfied that the Tribunal fell into the error considered in those cases.
I am accordingly not persuaded that ground 3 is able to succeed.
CONCLUSION
For the above reasons, I conclude that the application must be dismissed.
I will hear from the parties as to costs.
60 I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.
Associate:
Dated: 5 July 2022
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