Nawaqaliva v Minister for Immigration
[2016] FCCA 2080
•17 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NAWAQALIVA v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2080 |
| Catchwords: MIGRATION – Judicial review of decision of Migration Review Tribunal (Tribunal) not to grant applicant Other Family (Residence) (Subclass 836) visa (Carer visa) – whether Tribunal misconstrued reg.1.15AA(1)(e) of the Migration Regulations 1994 (Cth) as it stood before 9 November 2009 by failing to consider whether sponsor’s Australian relatives were willing to provide assistance to the sponsor – jurisdictional error established. |
| Legislation: Migration Amendment Regulations 2009 (No. 15), sch.3 |
| Cases cited: Issa v Minister for Immigration & Multicultural Affairs [2000] FCA 128 Lin v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 606; (2004) 136 FCR 556 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Naidu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1692; (2004) 140 FCR 284 Rafiq v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 564 |
| Applicant: | SALANIETA SELERUARUA NAWAQALIVA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2133 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 4 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 17 August 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Nair of Nair & Co |
| Counsel for the Respondents: | Mr R Hughes |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The decision of the second respondent made on 30 June 2014 affirming the decision of the delegate of the first respondent made on 3 May 2013 not to grant the applicant an Other Family (Residence) (Subclass 836) visa (Carer visa) is quashed.
The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.
Pursuant to Item 15AG of Schedule 9 to the Tribunals Amalgamation Act 2015 (Cth) the Administrative Appeals Tribunal determine according to law the application made to the Migration Review Tribunal to review the decision of a delegate of the first respondent made on 3 May 2013 not to grant the applicant a Carer visa.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2133 of 2014
| SALANIETA SELERUARUA NAWAQALIVA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The principal issue in this application for judicial review is whether, in affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant an Other Family (Residence) (Subclass 836) visa (Carer visa), the second respondent (Tribunal) misconstrued the definition of “carer” contained in reg.1.15AA(1) of the Migration Regulations 1994 (Cth) (Regulations) as it stood before 9 November 2009.[1]
[1] Regulation 1.15AA of the Regulations was amended by Schedule 3 to the Migration Amendment Regulations 2009 (No. 15). Under reg.3(2) of the Migration Amendment Regulations 2009 (No. 15), the amendments apply in relation to an application for a visa made on or after 9 November 2009.
Background
The applicant applied for a Carer visa on 2 October 2008.[2] She claimed to be the full-time carer of her mother, Mrs Nawaqaliva, who suffers from a variety of serious medical conditions.[3] Mrs Nawaqaliva is the sponsor of the applicant’s application for the Carer visa.
[2] CB1-46
[3] CB279-283
To have been entitled to the grant of a Carer visa at the time of the Tribunal’s decision, the applicant had to satisfy cl.836.221 of Schedule 2 to the Regulations. That required the applicant to be a “carer of a person referred to in” cl.836.212 of Schedule 2 to the Regulations. Clause 836.212 required that the applicant claim she was “the carer of an Australian relative”.
The word “carer” is defined in s.1.15AA(1) of the Regulations. Before 9 November 2009, when the Migration Amendment Regulations 2009 (No. 15) came into effect, “carer” was defined as follows:
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, 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
c)the rating mentioned in subparagraph (b) (iii) is equal to, or exceeds, the impairment rating specified by Gazette Notice 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 obtained:
i)from 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)from welfare, hospital, nursing or community services in Australia; and
f)the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b) (iv) or paragraph (d), as the case requires.
“Relative” was extensively defined in reg.1.03 of the Regulations to mean a “close relative” and grandparent, grandchild, aunt, uncle, niece or nephew, or a step‑grandparent, step‑grandchild, step‑aunt, step‑uncle, step‑niece or step‑nephew, or a first or second cousin of the person said to require care. “Close relative” was defined as the spouse, de facto partner, child, adopted child, parent, brother, sister, step‑child, step‑parent, step‑brother, or step‑sister of the person claimed to require care.
The applicant gave evidence before the Tribunal that she helps Mrs Nawaqaliva with personal grooming and hygiene; dressing; showering; changing her mother’s diapers or pads used for toileting; preparing meals and snacks; organising her mother’s medication; and checking on her during the night.[4]
[4] CB318-319, [21]
Tribunal’s reasons
The issue before the Tribunal was whether it was satisfied the applicant was a “carer” within the meaning of reg.1.15AA of the Regulations, as it stood before 9 November 2009. The Tribunal was satisfied of the following:
a)The applicant met reg.1.15AA(1)(a) because the applicant and Mrs Nawaqaliva are mother and daughter, and Mrs Nawaqaliva is an Australia citizen.[5]
b)Regulations 1.15AA(1)(b) and 1.15AA(2) were met because the applicant submitted a certificate that was signed and issued in relation to a medical assessment of Mrs Nawaqaliva which noted that Mrs Nawaqaliva has a medical condition causing impairment of her ability to attend to the practical aspects of daily life; the impairment on the certificate had a rating under the Impairment Tables; and because of the medical condition Mrs Nawaqaliva had, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life.[6]
c)The applicant met reg.1.15AA(1)(c) because the certificate provided to the Tribunal specified an impairment rating of 30, which is the amount that had been specified by the Minister in a legislative instrument.[7]
[5] CB317, [9]
[6] CB317, [10]-[13]
[7] CB317-318, [14]-[15]. The relevant legislative instrument is Migration Regulations 1994 – Specification – Impairment Rating – IMMI 07/012
The Tribunal considered the applicant’s evidence to be consistent with the medical assessment that reported that Mrs Nawaqaliva requires assistance with hygiene, toileting, dressing, undressing, grooming, eating, feeding, mobility, and transport.[8] The Tribunal noted that the medical assessment stated that a high care residential facility is not appropriate for Mrs Nawaqaliva because of cultural reasons.[9]
[8] CB281-283; CB318-319, [21]
[9] CB319, [22]
The Tribunal noted the evidence before it indicated the applicant has been Mrs Nawaqaliva’s full-time carer for some years, and that the applicant, her husband and son live with Mrs Nawaqaliva in a two bedroom unit together with the applicant’s intellectually impaired brother. The Tribunal then identified and considered the evidence of Mrs Nawaqaliva’s five other children residing in Australia as Australian citizens or permanent residents as follows:
a)One daughter was diagnosed with breast cancer in 2009 and again in 2013 and her husband is undergoing treatment for skin cancer. They have three adult children who are working to support themselves but two of them still live at home. The applicant told the Tribunal that one of the daughter’s children has Down Syndrome. The daughter works full-time at a nursing home. No evidence was provided regarding the daughter’s current medical condition and there was no independent evidence regarding her employment before the Tribunal.[10]
b)A second daughter has been diagnosed with breast cancer and is undergoing radiation and chemotherapy. A letter from the daughter stated that she has been unable to return to work and is too sick to look after herself and is not able to look after Mrs Nawaqaliva. The daughter has three adult children, two of whom help look after her. The Tribunal received a letter from the daughter’s treating doctor stating she is receiving intensive treatment for a serious medical condition and is not physically well enough to be a carer.[11]
c)A third daughter has four children and works full-time. She commutes almost 2 hours each way to and from work. She has just bought a new home and is working to help pay the mortgage. Three of her children still live at home – the youngest is in high school, the second is studying, and the third plays rugby.[12]
d)A fourth daughter is a single parent of three children, two of whom still live at home and attend high school. The daughter works 40 hours a week to meet her children’s needs.[13]
e)A son provided a letter stating he is not physically or academically fit to care for Mrs Nawaqaliva. The applicant gave evidence that her brother lives in the same household as her and their mother but is developmentally delayed and has a low IQ. In response to the Tribunal’s question whether the brother could assist with some of the less complex tasks, such as preparing food and helping her with hygiene, toileting and dressing, the applicant told the Tribunal their mother may feel uncomfortable with her son helping with her hygiene, toileting, and dressing because of the gender difference. A confidential psychological assessment was provided to the Tribunal after the hearing which indicated the son has a moderate intellectual disability, and is unable to read or write. He has difficulty with concepts such as money and time, his ability to communicate effectively is impaired, and has poor expressive and receptive processing.[14]
[10] CB319-320, [25]-[28]
[11] CB320, [29]-[31]
[12] CB320-321, [32]-[33]
[13] CB321, [34]
[14] CB321, [35]-[37]
The Tribunal accepted that no individual relative (whether a child or adult grandchild) residing in Australia could provide Mrs Nawaqaliva with all the assistance she requires; and it accepted that, because of their medical conditions, the second daughter and son have significantly limited ability to provide assistance.[15] The Tribunal noted, however, that the evidence suggests that Mrs Nawaqaliva’s other Australian relatives, namely, her children and adult grandchildren, either work or study, but no documentary evidence was before the Tribunal regarding their hours or patterns of study or work.[16] For those reasons, based on the number of Mrs Nawaqaliva’s adult relatives, and the limited evidence of their circumstances, the Tribunal concluded it was not satisfied Mrs Nawaqaliva “could not reasonably obtain some assistance from her Australian relatives working in collaboration”.[17]
[15] CB321, [38]
[16] CB321-322, [38]
[17] CB321-322, [38]
The Tribunal also considered whether assistance could be obtained from welfare, hospital, nursing, or community services in Australia. The Tribunal noted Mrs Nawaqaliva was assessed as eligible for a “Home Care Package Level 3 and 4”.[18] The Tribunal noted that Mrs Nawaqaliva was eligible for permanent residential care at a high level, and residential respite care at a high level. The Tribunal accepted, however, that it would not be reasonable for the sponsor to obtain “long-term residential care in a facility outside her home”.[19]
[18] CB322, [39]
[19] CB322, [41]
The Tribunal concluded as follows:[20]
While the Tribunal accepts that the sponsor may prefer to be cared by the applicant and experience some ill ease receiving care from a service provider in her home, the Tribunal is not satisfied that these circumstances make it unreasonable for her to obtain assistance from other Australian relatives and relevant services. The Tribunal is not satisfied that appropriate care that meets all of her needs cannot be obtained by the sponsor as a matter of practical reality and fact. In these circumstances, the Tribunal is not satisfied that the assistance cannot reasonably be obtained from a relevant relative or service in Australia and therefore the requirement of r.1.15AA(1)(e) are not met.
[20] CB323, [44]
Grounds of application
The applicant’s amended application contains two grounds of application. The first is:
The Tribunal misinterpreted and misapplied the criterion in regulation 1.15AA(1)(e). The finding of the Tribunal at (44) indicates that the Tribunal did not recognize the distinction identified by Madgwick J in Issa v MIMA. The Tribunal asked the wrong question. The Tribunal clearly thought that considerations such as that the applicant’s mother wished to stay with the applicant and would not be comfortable in a nursing home had no weight. The Tribunal expressly rejected the preferable method of care as a question for it. It also rejected as a consideration the question whether it is preferable for an aged person to remain in her own home and to be looked after by the applicant as long as possible
This ground includes a number of claims. For reasons that will become apparent, however, it is necessary that I consider only one of the claims, namely, that the Tribunal failed to recognise and apply the distinction identified by Madgwick J in Issa v Minister for Immigration & Multicultural Affairs.[21]
[21] [2000] FCA 128
The distinction Madgwick J identified is as follows:[22]
It occurred to me that the Tribunal member may have misdirected herself by focussing on whether the other Australian relatives and/or welfare services could reasonably make their support available to the applicant, rather than whether she could reasonably obtain it from them. This is not mere semantics. There would be many families in which, if they were minded to, the children could provide a high level of care for a parent, but in which in practice they might not be willing to do so. In such a case the applicant might be quite unable to obtain care and support from their children. The bare language used by the Tribunal member is suggestive that she confused these two concepts.
[22] [2000] FCA 128 at [12]
In the event, his Honour did not find the Tribunal had misdirected itself. In Lin v Minister for Immigration & Multicultural & Indigenous Affairs,[23] however, Branson J found the Tribunal did not recognise the distinction Madgwick J identified in Issa. Her Honour found the Tribunal asked whether the sponsor’s relatives “cannot reasonably provide some assistance”, [24] rather than whether the sponsor cannot reasonably obtain assistance from them. Her Honour concluded that the Tribunal’s failure to appreciate that distinction led it “to misapprehend the significance of the criterion in the light of the evidence before it”.[25] In particular, her Honour found the Tribunal “did not consider whether, and if so how” the sponsor “can reasonably obtain assistance from relatives in Australia who are apparently not minded to provide him with assistance”.[26]
[23] [2004] FCA 606; (2004) 136 FCR 556
[24] [2004] FCA 606; (2004) 136 FCR 556 at [25]
[25] [2004] FCA 606; (2004) 136 FCR 556 at [30]
[26] [2004] FCA 606 at [30]
In Rafiq v Minister for Immigration & Multicultural & Indigenous Affairs,[27] Finn J held the Tribunal made a similar error. His Honour said:[28]
It is one thing to ask whether assistance can reasonably be obtained from a relative. It is quite another to ask whether that assistance can reasonably be provided by a relative: see Issa v Minister for Immigration and Multicultural Affairs [2000] FCA 128 at [12]. What a relative is capable of doing and what that person is willing to do are not necessarily the same.
There is an obvious reason why the subparagraph has the focus it has. Its object is not to effect a form of civil conscription of “available” relatives. Nor does it require a relative to act selflessly and contrary to that person’s own wishes, even if absent any alternative means of assistance that relative might continue to provide assistance for reasons of love, duty etc.
In approaching the matter as it did, the Tribunal concerned itself with what the applicant’s sister was capable of doing. That is not the concern of the subparagraph. Had the Tribunal asked itself the correct question it could well have reached the contrary conclusion in light of the sister’s own and repeated evidence of her inability or unwillingness to continue providing the assistance she did.
[27] [2004] FCA 564
[28] [2004] FCA 564 at [10]-[12] (emphasis in original)
Ryan J reviewed these authorities in Naidu v Minister for Immigration and Multicultural and Indigenous Affairs.[29] In relation to the approach adopted in Issa, his Honour said (emphasis added):[30]
On the approach adopted in Issa, the determination of whether the assistance required by an applicant cannot reasonably be obtained from another relative involves two distinct conceptual steps. The first requires an acknowledgement of the distinction between whether relatives could reasonably provide assistance or reasonably make such assistance available to the applicant on the one hand, and whether the applicant could reasonably obtain the required assistance, on the other. The second step is an assessment of whether the distinction ought to be made on the facts of the particular case. Specifically, it is necessary to ask whether, to the extent that the relatives could reasonably provide assistance, they would do so. If that question be answered affirmatively, it is unnecessary to give effect to the distinction between the relatives’ being reasonably able to provide assistance and the applicant reasonably obtaining the necessary assistance.
[29] [2004] FCA 1692; (2004) 140 FCR 284
[30] [2004] FCA 1692; (2004) 140 FCR 284 at [17]
After reviewing Lin and Rafiq Ryan J concluded:[31]
With respect, I consider that the line of authorities discussed above correctly identifies that, in assessing whether subreg 1.15AA(1)(e) of the Regulations has been satisfied, a real conceptual distinction has to be drawn between whether the assistance can reasonably be obtained from relatives and whether it can reasonably be provided by relatives. Whether something can be provided is a notion that is addressed from the perspective of the provider. Conversely, whether something can be obtained is addressed from the perspective of the person requiring what is to be obtained. The language of subreg 1.15AA(1)(e) uses the word ‘obtained’ and therefore, in my view, it requires the question to be directed to the point of view of the person who needs the assistance.
[31] [2004] FCA 1692; (2004) 140 FCR 284 at [21]
Counsel for the Minister submitted the Tribunal’s findings were “couched in the language of the correct test”.[32] By this I understand counsel to mean the Tribunal “repeatedly focused on whether it was satisfied that the sponsor cannot “reasonably obtain” the assistance required”.[33] Counsel further submitted the Tribunal “correctly assessed that question from the point of view of the objective circumstances of the person seeking the care”.[34]
[32] First Respondent’s Written Submissions, 28.07.2015, [16]
[33] First Respondent’s Written Submissions, 28.07.2015, [17]
[34] First Respondent’s Written Submissions, 28.07.2015, [17]
It is true the Tribunal applied the language of reg.1.15AA(1)(e)(i) of the Regulations. That does not necessarily mean, however, the Tribunal correctly understood and applied reg.1.15AA(1)(e)(i) of the Regulations as construed in Issa, Rafiq, and Naidu. Those authorities establish that, when considering whether it is satisfied that a person could not reasonably obtain assistance from his or her relatives, , the Tribunal must consider whether the person’s relatives are willing to provide assistance. As Ryan J said, “it is necessary to ask whether, to the extent that the relatives could reasonably provide assistance, they would do so”. If the Tribunal were not satisfied the relatives of a person are willing to provide assistance to that person, even though the Tribunal may be satisfied the relatives are reasonably capable of doing so, it would not be open to the Tribunal not to be satisfied that the person could not reasonably obtain assistance from his or her relatives. The question, therefore, is whether the Tribunal considered, not only whether Mrs Nawaqaliva’s relatives could reasonably provide assistance to her, but whether they would do so.
In one part of its reasons for decision, the Tribunal referred to the applicant’s oral evidence as indicating that “although the sponsor’s relatives came to visit, the younger ones lacked maturity and may be unwilling to provide care”.[35] This may suggest the Tribunal was aware of the distinction between ability and willingness to provide care, and that it applied this distinction in its consideration of the review. The Tribunal, however, did not expressly consider whether any one of Mrs Nawaqaliva’s five children residing in Australia as Australian citizens or permanent residents or other relatives were willing to provide assistance to her. First, the Tribunal noted there was no current medical evidence about the first daughter’s medical condition “or how it impacts on her ability to care for her mother” and that, although the applicant said the first daughter was working, a letter provided by the first daughter did not mention she was working.[36] Second, the Tribunal accepted the assistance two of Mrs Nawaqaliva’s children could provide to her was “significantly limited by their respective medical conditions”.[37] Third, the Tribunal noted there was no documentary evidence before it about the hours or pattern of work or study undertaken by Mrs Nawaqaliva’s adult relatives, even though the Tribunal had requested such evidence. All these matters are relevant, and could only reasonably be seen to be relevant, only to the ability, not the willingness, of Mrs Nawaqaliva’s adult Australian relatives to provide assistance.
[35] CB322-323, [43], emphasis added
[36] CB320, [28]
[37] CB321, [38]
Further, although the Tribunal used the word “unwilling” when referring to the effect of the oral evidence the applicant gave about Mrs Nawaqaliva’s “younger” relatives, it did not use that word or any variant of that word when the Tribunal expressed its overall conclusion about the assistance that was available to be provided by all of Mrs Nawaqaliva’s adult relatives in Australia. As I have already noted, the Tribunal concluded it was not satisfied Mrs Nawaqaliva could not reasonably obtain some assistance from her relatives because of the number of Mrs Nawaqaliva’s adult Australian relatives, and “the limited evidence as to their personal circumstances”.[38] Nothing in that conclusion suggests the Tribunal had considered whether the relatives were willing to provide such assistance.
[38] CB321-322, [38]
Reading the Tribunal’s reasons as whole, and being aware that I must not read the Tribunal’s reasons overzealously and “with an eye keenly attuned to the perception of error”,[39] I am of the opinion that in the case both of the children, and the adult grandchildren, the Tribunal went no further than to consider whether they were reasonably capable of providing assistance, or whether sufficient evidence had been provided to enable the Tribunal to assess whether they were reasonably capable of providing assistance. In my opinion, the Tribunal did not consider, both in the case of the children and the adult grandchildren, whether, in addition to being capable of providing assistance to Mrs Nawaqaliva, they were also willing to provide such assistance.
[39] Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [30] (Brennan CJ, Toohey, McHugh and Gummow JJ)
Ground 1 of the amended application, therefore, succeeds to the extent it claims the Tribunal failed to apply the distinction in Issa.
Ground 2 of the amended application is as follows:
The particulars for Ground one are repeated here.
Further, the Tribunal’s statements at (44) and also at (18) cannot be said to be reasonable in terms of the pronouncements of thje High Court in Li (2013) HCA 18. It fails the test “whether the decisions falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.
Ground 2 claims the Tribunal’s conclusions at paragraphs 18 and 44 of its reasons for decision are unreasonable in that, although Mrs Nawaqaliva may prefer to be cared for by the applicant and may experience some unease about receiving home care from a service provider in her home, the Tribunal was not satisfied those circumstances make it unreasonable for Mrs Nawaqaliva to obtain assistance from her other adult Australian relatives and relevant services.
Assuming, contrary to what I have found, the Tribunal had applied the correct construction of reg.1.15AA(1)(e) of the Regulations by considering not only the ability, but also the willingness, of Mrs Nawaqaliva’s adult Australian relatives to provide assistance, I am not satisfied the Tribunal’s conclusions in paragraphs 18 and 44 were conclusions that no reasonable decision maker could have arrived at.[40]
[40] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Disposition
I propose to order that the decision of the Tribunal be quashed. I also propose to order that the Administrative Appeal Tribunal be substituted for the Tribunal as the second respondent and that it decide the application for review according to law.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 17 August 2016
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