Nguyen v MIBP

[2015] FCCA 3254

FEDERAL CIRCUIT COURT OF AUSTRALIA

NGUYEN v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 3254

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal erred in finding a number of the relatives of the review applicant could provide care where reg.1.15AA(1)(e)(i) of the Migration Regulations 1994 (Cth) refers to the singular “any other relatives” – whether the Administrative Appeals Tribunal erred in finding that assistance could be provided by a combination of both relatives and “welfare, hospital, nursing or community services in Australia” – whether the expression in reg.1.15AA(1)(e)(ii) of the Migration Regulations 1994 (Cth) is confined to publicly provided services – whether the Administrative Appeals Tribunal erred in finding that “welfare, hospital, nursing or community services in Australia” as referred to in reg.1.15AA(1)(e)(ii) of the Migration Regulations 1994 (Cth) included private services of a commercial nature – whether the Administrative Appeals Tribunal’s conclusions in relation to the ability of relatives to provide care were open to it – whether the Administrative Appeals Tribunal gave proper, genuine and realistic consideration to the requirements of reg.1.15AA(1)(e) of the Migration Regulations 1994 (Cth) – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 338, 431, 474
Migration Regulations 1994 (Cth), regs.1.15AA, 2.01, Schedule 2 – cl.116.221
Acts Interpretation Acts 1901 (Cth), s.23

Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Jajo v Minister for Immigration & Border Protection & Anor [2013] FCCA 1554 El Achkar v Minister for Immigration & Anor [2015] FCCA 2165 Abbott Laboratories v Corbridge Group Pty Ltd [2002] FCAFC 314 Taylor v Owners - Strata Plan No 11564 (2014) 306 ALR 547; [2014] HCA 9 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 SZQMT v Minister for Immigration and Citizenship [2012] FCA 840 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Applicant:

THI BACH TUYET NGUYEN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2486 of 2015

Judgment of: Judge Emmett

Hearing date: 3 November 2015

Date of Last Submission: 3 November 2015

Delivered at: Sydney

Delivered on: 8 December 2015

REPRESENTATION

Counsel for the Applicant: Mr Nick Gangemi

Solicitors for the Applicant: Pham Lawyers

Counsel for the Respondents: Mr Tim Reilly

Solicitors for the Respondents: DLA Piper Australia

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2486 of 2015

THI BACH TUYET NGUYEN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 11 August 2015 and handed down on 12 August 2015 (“the AAT”).

2. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the AAT’s review and decision.

Background

1. The review applicant in this proceeding is the sponsor and the person requiring care. She is an Australian national and lives in Australia with one of her sons. She is currently receiving care and assistance from that son on a full-time basis.  

2. The visa applicant is another of the applicant’s sons. He is a national of Vietnam.

3. On 21 May 2013, the visa applicant lodged an application for an Other Family (Migrant) (Class BO) visa (“Carer Visa”) with the Australian Consulate-General Ho Chi Minh City, Vietnam. The visa applicant’s application for a Carer Visa included his wife and two children, and was made on the basis of a sponsorship by the applicant.

4. On 9 July 2014, the Delegate refused the visa applicant’s application for a Carer Visa.

5. On 29 July 2014, the review applicant lodged an application for review of the Delegate’s decision by the AAT.

6. On 12 August 2015, the AAT affirmed the decision of the Delegate not to grant a Carer Visa.

7. On 9 September 2015, the review applicant filed an application in this Court seeking judicial review of the AAT’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is the Other Family (Migrant) (Class BO) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. For the grant of the visa, the visa applicant was required to satisfy the criteria in cl.116.221 of Schedule 2 to the Regulations that he was a ‘carer’ of the sponsoring Australian relative. The term ‘carer’ is defined in reg.1.15AA(1) of the Regulations. Relevantly, reg.1.15AA(1)(e) of the Regulations provides as follows:

   “(1) An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:

   …

   (e) the assistance cannot reasonably be:

   (i) provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

   (ii) obtained from welfare, hospital, nursing or community services in Australia.”

   (Emphasis added.)

3. Under s.338 of the Act, a decision to refuse to grant a Carer Visa is a decision which may be reviewed by the second respondent.

4. Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

5. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The Delegate’s decision

1. The Delegate found that the review applicant had five children, and one adult grandchild already living in Australia. The Delegate found that the review applicant was living with one of her sons and that that son was providing the majority of care required by the review applicant. The Delegate also found that the review applicant’s four other children and one adult grandchildren in Australia could provide additional care and assistance to the review applicant. The Delegate accepted that it may not be possible for all of the care requirements of the review applicant to be met by her family in Australia. However, the Delegate was not satisfied that an additional family member was required to migrate to Australia to provide full-time care for the review applicant.

2. The Delegate also noted that the review applicant had been receiving some community care and also qualified for nursing home care. As such, the Delegate was not satisfied that the assistance required by the review applicant could not reasonably be obtained from “welfare, hospital, nursing or community services in Australia.”

3. Accordingly, the Delegate was not satisfied that the visa applicant would be the ‘carer’ of the review applicant for the purposes of reg.1.15AA(1) of the Regulations. As such, the Delegate found that the visa applicant did not satisfy the requirements of cl.116.221 of Schedule 2 to the Regulations for the grant of a Carer Visa.

4. Given the above, on 9 July 2014, the Delegate refused the visa applicant’s application for a Carer Visa.

The AAT’s review and decision

1. On 29 July 2014, the applicant lodged an application for review of the Delegate’s decision by the Migration Review Tribunal, which later became subsumed into the AAT.

2. The review applicant provided further documents in support of her review application, including written submissions from her legal representative dated 2 August 2015, medical reports and statutory declarations from her children.

3. On 14 July 2015, the AAT wrote to the review applicant informing her that the AAT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the review applicant to attend a hearing on 10 August 2015 to give oral evidence and present arguments.

4. On 10 August 2015, the review applicant attended the AAT hearing and gave evidence. Three of the review applicant’s children, including her current carer, also gave evidence at the hearing.

5. The AAT explored the review applicant’s claims with her in some detail at the hearing.

6. The AAT was satisfied that the visa applicant was the son of the review applicant and, therefore, a ‘relative’ of the review applicant for the purposes of the Regulations. The AAT also accepted that the review applicant had a medical condition that impaired her ability to attend to the practical aspects of daily life and that she required care for the purposes of the Regulations.

7. The AAT identified the issue before it as being whether the assistance required by the review applicant could reasonably be provided by any other relative of the review applicant already living in Australia, or whether such assistance could reasonably be obtained from “welfare, hospital, nursing or community services in Australia.”

8. The AAT considered the evidence of the son that was providing full-time care to the review applicant, which was to the effect that he could not continue providing care as he was an ordained monk and had been offered a role in a temple in Vietnam and he wished to take up that offer.

9. The AAT also took into consideration the review applicant’s evidence that none of her five children and two adult grandchildren in Australia could provide the care that she required, particularly night-time assistance. The AAT also had regard to the review applicant’s claims that the assistance she required could not be provided by community organisations in Australia.  Further, the AAT had regard to oral evidence of the review applicant’s children, as well as statutory declarations, medical evidence and other material provided by her children and two grandchildren in Australia.

10. On the evidence and material before it, the AAT accepted that the review applicant’s family in Australia had various work and family commitments, and that some of her children had health problems. The AAT accepted that, due to these factors, none of the review applicant’s relatives in Australia could provide full-time care of the review applicant.

11. However, having considered the evidence and material before it, the AAT was not satisfied that the review applicant’s relatives in Australia could not provide some degree of care individually, such that the cumulative effect, when combined with the assistance available from community services, was that the review applicant would be provided with the level of care that she required.    

12. Accordingly, the AAT was not satisfied that the assistance the review applicant required could not reasonably be provided by a relative in Australia, or that such care could not reasonably be obtained from “welfare, hospital, nursing or community services in Australia.”

13. Accordingly, the AAT found that the visa applicant was not a ‘carer’ of the review applicant for the purposes of the Regulations. As such, the AAT found that the visa applicant did not meet the criteria in cl.116.221 of Schedule 2 to the Regulations for the grant of a Carer Visa.

14. The AAT therefore affirmed the decision of the Delegate.

The proceeding before this Court

1. The applicant was represented before this Court by Mr Nick Gangemi, of counsel. 

2. On 21 October 2015, Orders were made by consent in Chambers setting the matter down for final hearing on an expedited basis as the Court was informed that the review applicant in this matter was an elderly lady requiring care. The review applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the AAT hearing, as well as submissions in support by 28 October 2015.

3. On 28 October 2015, the applicant’s solicitors filed written submissions in support of her application.

4. Counsel for the applicant, Mr Gangemi, confirmed that the applicant relied on the grounds contained in the initiating application filed on 9 September 2015, as follows:

   “Ground one

   1. The Tribunal asked the wrong question and applied the wrong statutory test, and thus erred as to their jurisdiction, when they found that the visa applicant did not satisfy the criteria for the grant of a subclass 116 (Carer) visa, because he was not a “carer” as required by clause 116.221, and defined by regulation 1.15AA of the Migration Regulations 1994 (Cth) (“the Regulations”).

   Particulars

   1.1 The basis of the tribunal's refusal was that the tribunal was not satisfied that the visa applicant satisfied 1.15AA(1)(e) of the Regulations.

   1.2 The Tribunal accepted that there was no relative (as that term is used in sub-clause 1.15AA(1)(e) of the Regulations) who could provide the assistance needed by the visa sponsor, but held that the visa applicant did not satisfy the criterion because several relatives could provide “some degree of care”, and a private carer could be employed “say for instance at night”.

   1.3 The Tribunal erred in its understanding the sub-clause in each of the following ways:

   (i) The first limb of clause 1.15AA(1)(e)(i) of the Regulations requires the Tribunal to consider whether it is satisfied that the assistance cannot be reasonably provided by any relative, not relatives. In other words, it is directed at whether or not there is a carer already in Australia who could take the place of the visa applicant (the proposed carer).

   (ii) Sub-clauses 1.15AA(1)(e)(i) and (ii) of the Regulations are in the alternative, or disjunctive. In other words, the question is whether the assistance can be reasonably provided by either a relative as defined in the sub-clause, or by “welfare, hospital, nursing or community services in Australia”, not whether a conglomeration of both will provide the requisite level of assistance.

   (iii) “Welfare, hospital, nursing or community services” is an expression directed at publicly provided services of that nature, and does not refer to services of a private, commercial nature.

   Ground two

   2. ln the alternative, the Tribunal side-stepped the question it had to address or failed to give genuine, proper and realistic consideration to the question it had to address, when it concluded that “the relatives” could provide “some degree of care, so that they together, and in addition to any paid services, will provide the care that the review applicant needs”.

   2.1 The Tribunal should have considered the nature and extent of assistance which could reasonably be provided by each relative (as that term is defined in clause 1.15AA(1)(e)(i) of the Regulations), in order to determine clause 1.15AA(1)(e)(i) of the Regulations was satisfied.”

Ground 1

1. I understand the complaints in Ground 1 to be:

   (i)That the AAT erred in finding that a number of the relatives of the review applicant could provide the care, where reg.1.15AA(1)(e)(i) of the Regulations refers to the singular, “any other relative”.

   (ii)The AAT erred in finding that assistance could be provided by a combination of both relatives and “welfare, hospital, nursing or community services in Australia”.

   (iii)The expression “welfare, hospital, nursing or community services” is directed at publicly-provided services and the AAT erred in proceeding to make its findings on the basis that it included also private services of a commercial nature.

2. In relation to (i), as to whether the term “relative” in reg.1.15AA(1)(e)(i) of the Regulations is to be read only to include the singular, I refer to my consideration of that issue in Jajo v Minister for Immigration & Border Protection & Anor [2013] FCCA 1554 at [48] – [56] as follows:

   “48. In particular, s.23 of the Acts Interpretation Act 1901 (Cth) states that words in the singular number include the plural, and words in the plural include the singular. In the circumstances, s.23 of the Acts Interpretation Act 1901 (Cth) applies to the construction of reg.1.15AA(1)(e)(i), unless, on a proper construction, reg.1.15AA evinces a contrary intention, such that s.23 is displaced.

   49. Mr Turner, submitted that a proper construction of reg.1.15AA(1)(e)(i) does evince a contrary intention and that reference to “a relative” does not therefore include the plural, however, he did not elaborate further.

   50.    In Azzi, Allsop J held that the MRT did not err in law in holding that the criterion in relation to a “special need relative” is met if a combination of relatives could reasonably assist the nominator.

   51.    Mr Turner submitted that there is a distinction between a carer’s visa and a special relative’s visa, such that the Court in this case is not assisted by Azzi in construing “a relative” in reg.1.15AA(1)(e)(i).

   52.    However, I am not persuaded that the distinction between a carer’s visa and a special need relative’s visa is relevantly different such that the construction applied by Allsop J in Azzi is not of assistance in construing similar words used in reg.1.15AA(1)(e)(i) .

   53.    It is common ground that this Court is not bound by Azzi because Azzi was considering the construction of reg.1.03(b)(i) in relation to assistance for the nominator being obtained from “any other relative” in an application for a special needs visa; whereas the case before this Court involves the proper construction of assistance being provided to the Review Applicant by “a relative” in reg.1.15AA(1)(e)(i) in relation to an application for a carer’s visa.

   54.    However I am not persuaded that there is any relevant difference in the approach to construction of the language in relation to whether assistance can be provided by one relative or several.

   55.    Azzi is of significant persuasive value to this Court. In construing whether “a relative” includes the plural in reg.1.15AA(1)(e)(i), I can find no reasonable justification to depart from the construction given by Allsop J. There is no apparent intention in reg.1.03 in the use of the singular “any other relative” in considering a special needs visa as opposed to a carer’s visa, to suggest that the singular does not include the plural. There is no relevant distinction in the language or construction to be placed on reg.1.03(b)(i) and reg.1.15AA.(1)(e)(i) in terms of the use of the language in suggesting that either evinces an intention that the singular should not include the plural.

   56.    Accordingly, I find that s.23 of the Acts Interpretation Act 1901 (Cth) is not displaced by reg.1.15AA.

3. Similar findings were made by Judge Smith in El Achkar v Minister for Immigration & Anor [2015] FCCA 2165 at [11], where his Honour stated as follows:

   “11. First, contrary to the assertion in the first ground, there was no mere assumption by the Tribunal that the applicant’s two sons and husband could reasonably provide assistance. It was her own evidence that those family members were able-bodied and lived in the same household as the applicant and her disabled son. Next, while the Tribunal accepted that each of these three men worked full-time, the assistance required by her was at night time. There was no suggestion that the three men were not available at that time. It is clear that the Tribunal proceeded on the basis that the assistance could reasonably be given collectively. That was the correct approach on a proper construction of reg.1.15AA: Jajo v Minister for Immigration & Border Protection (2013) 281 FLR 269 applying the reasoning of Allsop J (as his Honour then was) in Azzi v Minister for Immigration & Multicultural Affairs (2002) 120 FCR 48. Finally, it is important that the test posed by the definition of “carer” is a negative one. That is, that the Tribunal has to be satisfied that the relevant assistance cannot reasonably be provided by other relatives. In light of that, there is an onus on a review applicant to put forward whatever material he or she argues that suggests that the assistance cannot reasonably be provided.”

   (Emphasis added.)

1. Both those decisions involve a finding by this Court that s.23 of the Acts Interpretation Acts 1901 (Cth) is not displaced by reg.1.15AA of the Regulations and, in the circumstances, the singular includes the plural.

2. In relation to (ii), the applicant contends that regs.1.15AA(1)(e)(i) and (ii) of the Regulations are in the alternative and are not intended to be a combination of both, the applicant’s counsel, Mr Gangemi, submitted that the AAT erred in assuming that the clauses were not in the alternative but were supplementary to each other.

3. However, I accept the submission of counsel for the first respondent, Mr Reilly, that “or” is not necessarily strictly disjunctive and can mean “or, or as well”.

4. In Abbott Laboratories v Corbridge Group Pty Ltd [2002] FCAFC 314 (“Abbott Laboratories”), the Full Court of the Federal Court of Australia per Lee, Emmett and Hely JJ stated at [39]:

   “39. “Or” quite commonly and grammatically can have a conjunctive sense: Minister for Immigration & Ethnic Affairs v Baker (1997) 73 FCR 187 at 195. Thus the phrase, “I need a computer for use at home or in the office”, conveys that the computer should be suitable for both uses.”

5. The example used in “I need a computer for use at home or in the office”, as using “or” in the conjunctive sense has the same subject-matter; that is, the need for a computer. The AAT was not satisfied that the provision is in relation to the requirement that “the assistance cannot reasonably” be provided by any other relative or obtained from “welfare, hospital, nursing or community services in Australia.” Both alternatives relate to the same subject matter and, in the circumstances, in my view, “or” should be read as conjunctive for the reasons referred to by the Full Court of the Federal Court of Australia in Abbott Laboratories. I accept the submission of counsel for the first respondent that there is no apparent reason to exclude the possibility of reading “or” as conjunctive.

6. In the circumstances, the approach taken by the AAT is without error.

7. In relation to (iii), the applicant contends that the reference in reg.1.15AA(1)(e)(ii) of the Regulations refers to “welfare, hospital, nursing or community services” in Australia, the applicant contends that each of those words has a “public, community or institutional dimension or character” and does not include paid, commercial services.

8. The AAT stated that “the Tribunal is not satisfied that the relatives cannot provide some degree of care, so that they together, and in addition to any paid service, will provide the care that the review applicant needs.” The AAT decision record makes clear that a part-time carer may be hired by the family in order to provide care that the family was otherwise unable to provide collectively, in particular, during the night.

9. Counsel for the first respondent referred the Court to Taylor v Owners - Strata Plan No 11564 (2014) 306 ALR 547; [2014] HCA 9 (“Taylor”) at [35] – [40] in support of the submission that on their face, “welfare, hospital, nursing or community services” do not exclude those services being provided of a private, commercial nature. I accept the submission of the first respondent that “it is notorious that there are both public and private providers of health and other services in Australia.” At [38] of Taylor, French CJ, Crennan and Bell JJ stated as follows:

“38. The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision[1]. It is answered against a construction that fills “gaps disclosed in legislation”[2] or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”[3].”

[1]     Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630 per Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ; [1984] HCA 48; Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 at 651-652 [9] per French CJ and Bell J; [2009] HCA 40.

[2]     Marshall v Watson (1972) 124 CLR 640 at 649 per Stephen J; [1972] HCA 27.

[3]     Western Bank Ltd v Schindler [1977] Ch 1 at 18 per Scarman LJ cited by Lord Nicholls of Birkenhead in Inco Europe Ltd v First Choice Distribution (a firm) [2000] 1 WLR 586 at 592; [2000] 2 All ER 109 at 115.

1. In the circumstances, there is no apparent intention in the regulation to limit the obtaining of assistance in the context of reg.1.15AA of the Regulations to public providers only of “welfare, hospital, nursing or community services in Australia.”

2. Accordingly, the AAT’s finding that the review applicant’s relatives in Australia could collectively pay for a part-time carer, for example, during the night, was open to it in considering whether the criteria in reg.1.15AA of the Regulations were met. The AAT accepted that the money required by the visa applicant and his family would be considerably less than the money that might be required were the family to hire a carer. Whilst the AAT acknowledged that concern, the AAT found that a full-time carer was not required because other family members would be able to contribute some degree of care and support. The AAT did not accept the claim that the family would not be able to arrange a carer on a part-time basis (for example, during the night) while collectively contributing to the review applicant’s needs at other times. The AAT did accept that the review applicant required a degree of care at night and that, once the son who presently resides with her returns to Vietnam, none of her relatives in Australia were able to provide such care.

3. Ultimately, the AAT found as follows:

   “40. Overall, the Tribunal accepts that each of the review applicant's children and the two adult grandchildren in Australia have various commitments that preclude them from being full-time carers. The Tribunal accepts that none of the relatives are able to provide the requisite degree of care on their own. However, the Tribunal is not satisfied that the relatives cannot provide some degree of care, so that they together, and in addition to any paid service, will provide the care that the review applicant needs.

   41. Having considered the ‘totality of the evidence before it, the Tribunal is not satisfied that the assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia. Therefore the requirements of r.1.15AA(1)(e) are not met.

   42. Given these findings the Tribunal concludes that at the time of decision the visa applicant is not a carer of the Australian relative, being the review applicant, and therefore does not satisfy cl.116.221.”

4. Those findings would appear to be open to the AAT on the evidence and material before it and for the reasons it gave.

5. Accordingly, Ground 1 is not made out.

Ground 2

1. Ground 2 asserts that the AAT “side-stepped” the question that it had to address when it concluded that the relatives could provide some degree of care so that they together, with the addition of paid service, could provide the level of care needed by the review applicant. In particular, counsel for the applicant contended that in failing to consider the level of care able to be provided by each relative, the AAT failed to give proper, genuine and realistic consideration to the requirements arising from reg.1.15AA of the Regulations.

2. Counsel for the first respondent referred the Court to Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, 176 where the High Court of Australia stated as follows:

   “34. It has been recognised that to describe reasoning as irrational or unreasonable may merely be an emphatic way of disagreeing with it[4].  In referring to “any rational, reasonable approach to the evaluation” and the need for “a proper, genuine or realistic evaluation” of the letters, the Federal Court was registering emphatic disagreement with the Tribunal's assessment of the factual matters to which the letters were relevant.  It appears the Federal Court would have weighed the letters differently which seems to suggest that, on the basis of the letters, the Federal Court would have been satisfied that Maoists were pursuing the first respondent in Kathmandu.  When employing the formula “proper, genuine and realistic evaluation” in respect of the letters, the Federal Court did not appear to consider that one of the matters against which the Tribunal weighed the letters was the first respondent's evidence of the effects of social and political changes in Nepal.”

   [4]    Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at 1167 [5] per Gleeson CJ; 198 ALR 59 at 61; [2003] HCA 30.

3. Counsel for the applicant referred to SZQMT v Minister for Immigration and Citizenship [2012] FCA 840 where Flick J, on appeal from the then Federal Magistrates Court, was considering whether the Tribunal had “side-stepped” a proper consideration that it was required to determine.

4. In the case before this Court, the AAT’s decision record discloses that the AAT identified each of the relatives of the review applicant in Australia and their particular circumstances that may mitigate against them being able to provide full-time care on their own. The AAT noted the evidence of the review applicant that she has five children and two adult grandchildren in Australia, none of whom are able to care for her. The AAT noted the review applicant’s evidence that, even if the children could make alternative work arrangements, they were not able to stay with her at night-time and she needs assistance at night.

5. The review applicant presently lives in a two-bedroom public housing apartment. The review applicant stated that if the visa applicant came to Australia, he would live with her but his children would live with an aunt about ten minutes’ drive away. The visa applicant’s wife would spend the night at the apartment of the review applicant but would spend days with the children. The review applicant also gave evidence that her other children in Australia would provide financial support to the visa applicant’s family and that one of her sons has a very high income.

6. The AAT took oral evidence from three of the review applicant’s children, including the son who presently cares for her. The AAT noted in some detail the evidence given by one of her sons who works full-time, as does his wife. They have three children aged between 5 and 10 years old. That son has various health problems. The AAT accepted that that son’s family commitments, financial and work commitments meant that he was unable to provide the 24-hour-a-day care that the review applicant requires.

7. The AAT also took oral evidence from one of the review applicant’s daughters, who is a house-wife with four children and who also has bad health. However, the AAT noted her evidence that she regularly cares for seven young children. The AAT was not satisfied that caring for seven young children would require less physical health or commitment than providing assistance to the review applicant. The AAT did accept that this daughter could not provide assistance to her mother 24-hours-a-day but was not satisfied that her health prevented her from providing some assistance to her mother.

8. The AAT noted the review applicant’s representative’s submission that the Australian Government would provide some financial assistance to the visa applicant and that his remaining siblings were willing to provide him with financial assistance.

9. The AAT noted that it gave careful consideration to the written submissions made by the visa applicant, as well as the written and oral evidence to the AAT. As stated above, the AAT accepted that all of the review applicant’s children in Australia had various commitments and some had health problems.

10. However, the AAT was not satisfied that the relevant assistance could not reasonably be provided by the Australian relatives. The AAT noted that none of the children claimed that they were unwilling to provide assistance to the review applicant. Rather, they claimed that for various reasons they were unable to do so.

11. The AAT noted that it considered the statements and declarations provided by each of the review applicant’s adult children and grandchildren, and the medical evidence accompanying the statements. The AAT found that the evidence before it did not establish that the relatives were incapable of providing some level of support each, such that the totality of support would adequately address the review applicant’s needs. The AAT referred to the example of one daughter, whose eldest child is 17 and noted that it was not explained why that eldest child would not be able to assist the mother in caring for the younger children. The AAT also referred to another daughter with four children aged between 2 and 19 and noted that there appeared to be no reason why that daughter could not at least help the review applicant in the taking of medication, cooking and emotional support. In relation to the son who worked long hours with a number of health conditions, the AAT noted that his health conditions did not appear to affect his ability to sustain long hours of employment.

12. In the circumstances, whilst minds may differ, the AAT concluded that the requirements of reg.1.15AA of the Regulations were not met, in that the AAT was not satisfied that the assistance required by the review applicant could not reasonably be provided by a relative in Australia or be obtained from “welfare, hospital, nursing or community services in Australia”, including the provision of a part-time, private carer.

13. Based on those findings, the AAT concluded that at the time of the decision, the visa applicant was not a carer of the review applicant and, therefore, did not satisfy cl.116.221 of Schedule 2 to the Regulations.

14. In the circumstances, a fair reading of the AAT’s decision record makes clear that it did give proper, genuine and realistic consideration to each of the matters it was required to consider in determining whether the visa applicant was a carer for the purposes of the legislation.

15. The AAT has set-out the findings it has made, the fact that it did not provide more detailed reasons does not establish an error of law. Section 431(c) of the Act requires the AAT to set-out its findings on those questions of fact, which it, the AAT, considered to be material to its decision and the reasons it had for reaching that decision (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68] – [69], per McHugh, Gummow and Hayne JJ).

16. Accordingly, Ground 2 is not made out.

Conclusion

1. As stated above, the AAT’s findings were open to it on the evidence and material before it and for the reasons it gave. A fair reading of the AAT’s decision record makes clear that the AAT reached conclusions based on the findings made by it and to which it applied the correct law.

2. In the circumstances, the AAT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The AAT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  8 December 2015