Moohseni v Minister for Immigration
[2016] FCCA 3036
•16 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MOOHSENI v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3036 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a carer’s visa – Tribunal not satisfied that the required care was not available from public facilities – whether the Tribunal failed to engage in an active intellectual process, overlooked evidence or failed to deal with a claim considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.65, 477 Migration Regulations 1994 (Cth) |
| Cases cited: Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 Kalala v Minister for Immigration (2001) 114 FCR 212 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration v SZGUR (2011) 241 CLR 594 Tickner v Chapman (1995) 57 FCR 451 at 462 |
| Applicant: | OSMAN MOOHSENI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 314 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 21 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 16 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application as amended on 21 November 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 314 of 2016
| OSMAN MOOHSENI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant (Mr Moohseni) is an elderly Australian citizen with various medical conditions, including Parkinson’s disease. He lives with his wife, who also has serious medical conditions. The couple have been supported by relatives but Mr Moohseni sought to sponsor his niece (Ms Barey) from the United States of America to be his carer. Ms Barey’s visa application was rejected by a delegate of the Minister (delegate) and Mr Moohseni sought review before the Administrative Appeals Tribunal (Tribunal). On 15 December 2015 the Tribunal affirmed the delegate’s decision. Mr Moohseni now seeks review by the Court of that decision.
The background facts in this matter are otherwise dealt with in the applicant’s submissions filed on 11 November 2016.
On 12 September 2013[1] the applicants (Fazila Barey (the primary applicant) and her husband) applied for a subclass 116 carer visa[2]. The relative in Australia who needed care was Mr Moohseni, an uncle of the primary applicant[3].
[1] date appears at Court Book (CB) 37 and CB 90
[2] CB 1-36
[3] CB 13
In the following year the applicants provided documents to the Minister’s Department in support of the application. One document was a letter from Dr Abdul Barez dated 2 June 2014 in which Dr Barez, after stating that he was the family doctor of Mr Moohseni, continued that Mr Moohseni was “in need of full time care” and “Mr and Mrs Moohseni both require a regular carer 24 hours per day seven days per week”[4].
[4] CB 83
On 15 August 2014 the delegate made a decision refusing to grant the applicants a carer visa[5].
[5] CB 90-97
On 22 September 2014[6] the applicants applied to Tribunal for review of the delegate’s decision[7].
[6] date appears at CB 117
[7] CB 98-108
By letter dated 27 October 2015[8] the applicants’ migration agent provided submissions and evidence to the Tribunal. The evidence included a letter from Dr Kawaljit Singh (geriatrician and consultant physician) dated 24 June 2015. Dr Singh, after stating that he reviewed Mr Moohseni that day and setting out Mr Moohseni’s multiple ailments, continued:
He needs assistance with his day-to-day activity including showering, dressing and meals … I feel that given his current health condition and inability to communicate effectively, he needs a full time carer at home.
[8] CB 124-127
On 4 November 2015 the applicant attended a hearing before the Tribunal[9].
[9] CB 119, 182
By letter dated 6 November 2015[10] the applicant’s migration agent provided an assessment in respect of Mr Moohseni by the Western Sydney Aged Care Assessment Team in July 2015[11]. The document recorded that from 15 July 2015 Mr Moohseni was eligible to receive “Care at home – Home Care Package level 3 and 4”. The document, although it refers on a few occasions to “Home Care Package level 3 and 4”, does not detail the services or assistance provided, or extent of services provided, to the client in these home care packages.
[10] CB 186-187
[11] CB 188-201
On 9 November 2015 the Tribunal sent Mr Moohseni (through his migration agent) a letter which invited him, among other matters, “to provide information on why the assistance Mr Moohseni requires cannot reasonably be … obtained from welfare, hospital, nursing or community services in Australia”[12].
[12] CB 208
By letter dated 5 December 2015 (received by the Tribunal on 9 December 2015) the applicant’s migration agent responded to the invitation. She stated in part:
Mariam, the daughter of Mr Moohseni, made inquiries to the Aged Care Assessment Team … and was told that 24 hour assistance is not provide under a government assisted scheme at home.
The migration agent included, among other evidence, a statement from an academic at a university in Sydney in which the academic stated that Mr Moohseni “has been desperately in need of round-the-clock in-home care as acute medical treatment”[13].
[13] CB 225
On 15 December 2015 the Tribunal issued a decision affirming the delegate’s decision not to grant the applicants a carer visa[14].
[14] CB 246-253
The present proceedings
These proceedings began with a show cause application filed on 12 February 2016. That was 24 days outside the period prescribed in s.477(1) of the Migration Act 1958 (Cth) (Migration Act). Accordingly, Mr Moohseni required an extension of time pursuant to s.477(2) of the Migration Act. An extension of time was opposed by the Minister. Nevertheless, I accepted from the affidavit of Mr Moohseni made on 9 February 2016 that a reasonable explanation had been provided for the delay. It is not in dispute that Mr Moohseni suffers from serious medical conditions and is, for all intents and purposes, disabled. Further, I accepted from the amended application filed in court by leave on 21 November 2016 that there is sufficient merit in the application to grant an extension of time in the interests of the administration of justice. I ordered that time be extended up to and including 12 February 2016.
The applicants now rely upon an amended application filed in court by leave on 21 November 2016. There are three grounds in the amended application:
1. The Tribunal failed to engage in an active intellectual process in relation to the applicant’s claim (and the evidence in support of the claim) that he required 24 hour care but the “Home Care Package Level 3 and 4” did not offer 24 hour care. This is a jurisdictional error.
2. The Tribunal overlooked the evidence before it from qualified medical practitioners that Mr Moohseni required 24 hour care. Where the Tribunal overlooks and fails to deal with important evidence, this is a jurisdictional error.
3. The Tribunal failed to deal with an issue or claim in the matter. The claim was that the applicant could not reasonably obtain assistance from community services in Australia because he required 24 hour care but the “Home Care Package Level 3 and 4” did not offer 24 hour care. Where the Tribunal fails to deal with an issue or claim it commits jurisdictional error.
I have before me as evidence the court book filed on 14 April 2016. Both Mr Moohseni and the Minister, through their counsel, provided pre-hearing submissions and made oral submissions at the trial of the matter on 21 November 2016.
Consideration
The relevant visa criteria are appended to the Tribunal decision at CB 253. Relevantly the criteria are:
The applicant is a carer of the Australian relative mentioned in clause 116.211.
Regulation 1.15AA(1) of the Migration Regulations provides in part:
An applicant for a visa is a carer of a person who is an Australian citizen ... if:
(a)...
(b)according to a certificate that meets the requirements of subregulation (2):
(i)a person has a medical condition and ...
(v) because of the medical condition, the person has and will continue for at least 2 years to have a need for direct assistance in attending to the practical aspects of daily life; and
(c) ...
(d) ...
(e)the assistance cannot reasonably be ... obtained from welfare, hospital, nursing or community services in Australia ...
Mr Moohseni’s challenge to the Tribunal decision is based on the following propositions.
There was evidence before the Tribunal by medical practitioners qualified to give the evidence that Mr Moohseni requires 24 hour care[15].
[15] see CB 83 (opinion of Dr Barez in letter dated 2 June 2014) and CB 133 (opinion of Dr Singh in letter dated 24 June 2015)
There was also evidence before the Tribunal that the “Home Care Package Level 3 and 4” does not offer 24 hours assistance[16].
[16] see CB 211
The Tribunal in its decision:
a)although it referred to the letter from Dr Barez dated 2 June 2014[17] and the letter from Dr Singh[18], did not refer to their opinion that Mr Moohseni requires 24 hour care;
b)did not refer to the evidence that the “Home Care Package Level 3 and 4” does not offer 24 hours assistance;
c)did not address the issue of the adequacy of the “Home Care Package Level 3 and 4” in circumstances where Mr Moohseni claimed (and there was medical evidence in support of the claim) that he required 24 hour care.
[17] at [28]-[29]
[18] at [26]
In the circumstances, the Tribunal is claimed to have fallen into jurisdictional error. The asserted error can be characterised in the following ways:
a)the Tribunal must engage in an “active intellectual process” in relation to evidence and submissions before it[19]. Where the Tribunal does not refer to an important piece of evidence in its reasons for decision required by s.360 of the Migration Act, the court on a judicial review application can infer that the Tribunal failed to engage in an active intellectual process in relation to the evidence[20]. In the present case, the Tribunal failed to engage in an active intellectual process in relation to the applicant’s claim (and the evidence in support of the claim) that he required 24 hour care but the “Home Care Package Level 3 and 4” did not offer 24 hour care. This is a jurisdictional error;
b)the Tribunal overlooked the evidence before it from qualified medical practitioners that Mr Moohseni required 24 hour care. Where the Tribunal overlooks and fails to deal with important evidence, this is a jurisdictional error[21];
c)the Tribunal failed to deal with an issue or claim in the matter. The claim was that the applicant could not reasonably obtain assistance from community services in Australia because he required 24 hour care but the “Home Care Package Level 3 and 4” did not offer 24 hour care. Where the Tribunal fails to deal with an issue or claim, it commits jurisdictional error[22].
[19] Tickner v Chapman (1995) 57 FCR 451 at 462; NAJT v Minister for Immigration (2005) 137 FCR 51 at [212]; SZMIA v Minister for Immigration [2008] FCA 1909 at [31]-[32]; WZAQU v Minister for Immigration (2013) 140 ALD 612 at [12]
[20] Minister for Immigration v Yusuf (2001) 206 CLR 323 at [69]; Singh v Minister for Immigration (2001) 109 FCR 152 at [62]; Kalala v Minister for Immigration (2001) 114 FCR 212 at [23]
[21] WAFP v Minister for Immigration [2003] FCAFC 319 at [19]-[21]
[22] NABE v Minister for Immigration (2004) 144 FCR 1 at [55] and [63]; Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at [46]-[47]
While these assertions are arguable, I am not persuaded that they have been made out.
The Tribunal found that community services had been offered to Mr Moohseni and were available to him, and was not satisfied that the assistance he requires cannot reasonably be obtained from those services[23]. Accordingly the visa applicants did not satisfy clause 116.221, so the visa had to be refused[24].
[23] CB 252 [37]
[24] see Migration Act, s.65(1)(b)
The Tribunal decision is unusual in that a number of issues were explored but not dealt with. For example, at [32] the Tribunal notes that Mr Moohseni and Ms Barey were invited to provide DNA evidence of their biological relationship as the Tribunal was not satisfied that Ms Barey was in fact related to Mr Moohseni. That evidence was not provided for reasons explained at CB 212-213 and the Tribunal made no finding whether or not in fact Ms Barey is related to Mr Moohseni. Secondly, at [33] the Tribunal records that it invited Mr Moohseni to provide information why the assistance he requires cannot be provided by another relative. This is in the context that there was information before the Tribunal establishing that home care had been provided to Mrs Moohseni by Ms Shekila Ghafnoor[25]. Again, that issue was left unresolved.
[25] see Tribunal reasons at [15], CB 248
Ultimately, the Tribunal’s reasoning focused on one of four issues identified by the Tribunal at [7] of its reasons[26]. That is, whether assistance can reasonably be obtained from welfare, hospital, nursing or community services in Australia? The Tribunal reasoned that it was not satisfied that assistance for Mr Moohseni could not reasonably be obtained from those services in Australia. At [35]-[37] the Tribunal said[27]:
The evidence before the Tribunal is that, Mr Moohseni has been assessed by the Western Sydney Aged Care Assessment Team. The result of the assessment is that Mr Moohseni is approved from 15 July 2015, as eligible for Permanent Residential Care, Residential respite care at high level and Home Care Package Level 3 and 4 and alternatively Home Care Package Level 1 and 2. Mr Moohseni was advised these approvals do not lapse. The Tribunal is satisfied that the services that are available to … Mr Moohseni are appropriate to his needs and of the nature that is required to assist him in attending to the practical aspects of daily life.
In addition, Mr Moohseni’s migration agent stated that after speaking to the delegate a reassessment for Mr Moohseni was possible as the home care package 1 and 2 is unlikely to be sufficient and the home care package 3 and 4 seemed more appropriate.
Given that community services have been offered to Mr Moohseni it follows that Mr Moohseni can obtain services. There is no evidence before the Tribunal that any aspect of the services offered to Mr Moohseni on 15 July 2015 have been investigated to determine what assistance can be reasonably obtained for him or tested to determine how these services may assist him. The Tribunal has considered Mr Moohseni’s particular circumstances including his language skills, diet and culture, but is not satisfied that the assistance he requires cannot reasonably be obtained by community services because there is no evidence from community services that these services cannot be obtained. As a result, the Tribunal is not satisfied that assistance for Mr Moohseni cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.
[26] CB 247
[27] CB 251-252
While Mr Moohseni contends that the Tribunal overlooked evidence before it, I am not persuaded that this is so. The Tribunal states that it has considered all the evidence before it at [8][28]. Further, the Tribunal refers to evidence that Mr Moohseni requires 24 hour care[29]. I was taken during argument by counsel for the Minister to the decision of the High Court in Minister for Immigration v SZGUR[30]. As in that case, Mr Moohseni has not discharged his onus of showing that, on the balance of probabilities, evidentiary statements were overlooked.
[28] CB 247
[29] see [24] at CB 249; [26] at CB 250 and [28] at CB 250
[30] (2011) 241 CLR 594 at [33] per French CJ and Kiefel J and [66]-[73] per Gummow J
Mr Moohseni’s submissions refer to the submission to the Tribunal at CB 211.9 stating that Mr Moohseni’s daughter had been told that 24 hour assistance is not provided under a government assisted scheme at home. Again, the Tribunal refers to this submission at [34][31] so it cannot be inferred that any part of it was overlooked.
[31] CB 251
I am not persuaded that any of this evidence was overlooked. Rather, on a fair reading the Tribunal considered that the assessment by Western Sydney Aged Care Assessment Team[32], established that there were community services appropriate to Mr Moohseni’s needs, which had not been investigated or tested by him. That led to the Tribunal not being satisfied that regulation 1.15AA(1)(e)(ii) applied. Mr Moohseni’s disagreement with this conclusion by the Tribunal does not establish any jurisdictional error as the Court cannot review the merits of the Tribunal’s decision[33].
[32] at CB 189-201, referred to by it at CB 251-251 [31], [35]-[37]
[33] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272
Mr Moohseni also contends that the Tribunal failed to engage in an active intellectual process. The Tribunal’s ultimate reasoning follows rather abruptly from the identification of the issues and description of the evidence. Nevertheless, the Tribunal’s reasoning does disclose an active intellectual process. In my opinion, the Tribunal should be taken to have accepted that Mr Moohseni requires a high level of care 24 hours a day. That is consistent with medical opinion available and the assessment by the Western Sydney Aged Care Assessment Team. The Tribunal appears to have reasoned that the package of care approved by the assessment team, namely permanent residential care, residential respite care at high level and home care package level 3 and 4 was appropriate to Mr Moohseni’s needs and the Tribunal was not persuaded that anything had been raised to establish that those services were not appropriate or not available. Plainly, they were available. The submission that home care package levels 3 and 4 did not extend 24 hour care did not answer the question whether that care, combined with residential respite care at the high level and (perhaps ultimately) permanent residential care would meet Mr Moohseni’s needs. Plainly, while Mr Moohseni would much prefer to remain at home under the care of relatives and while the tax payers of this country might support that proposition, the Tribunal was not persuaded that the circumstances warranted the granting of a visa to an alleged relative from the USA for that purpose.
In my opinion, Ground 3 adds nothing to Grounds 1 and 2. To the extent that the evidence relied upon amounted to a claim, it was considered by the Tribunal, albeit not in apparent detail, although the Tribunal’s thinking process is tolerably clear.
Conclusion
I conclude that Mr Moohseni has not established that the decision of the Tribunal was affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed.
I will hear the parties as to costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 16 December 2016
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