Nguyen v Minister for Immigration

[2017] FCCA 1211

FEDERAL CIRCUIT COURT OF AUSTRALIA

NGUYEN v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1211

Catchwords:
MIGRATION – Application for Other Family (Residence) (Class BU) visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred in relying on incorrect information relating to tertiary studies – whether the Tribunal erred in finding that the applicant was not willing to provide continuing assistance – whether the Tribunal erred in finding that other Australian resident family members could provide assistance to the Australian relative – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), reg.1.15AA
Social Security Act 1991 (Cth), s.94, sch.1B

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2

Applicant: THI PHUONG MAI NGUYEN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1287 of 2016

Judgment of: Judge Smith

Hearing date: 30 May 2017

Date of Last Submission: 30 May 2017

Delivered at: Sydney

Delivered on: 16 June 2017

REPRESENTATION

The applicant appeared in person

Counsel for the First Respondent: Mr T. Reilly

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1287 of 2016

THI PHUONG MAI NGUYEN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Vietnam who applied for an Other Family (Residence) (Class BU) visa on 20 March 2015. One of the criteria for the grant of that visa, was that the applicant was a carer of an Australian relative. A “carer” is a person identified in reg.1.15AA(1) of the Migration Regulations1994 (Cth) (Regulations). Regulation 1.15AA at the time the visa application was made  provided:

   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, 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; 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.

   (Emphasis in original)

Background

1. The applicant claimed to be the “carer” of her aunt, an Australian relative within the meaning of the Regulations.

2. On 29 July 2015, a delegate of the Minister made a decision to refuse to grant the applicant a visa on the basis that he was not satisfied that the requirements in sub-regs.1.15AA(1)(e) and (f) were met. The applicant applied to the Administrative Appeals Tribunal for review of that decision.

3. On 22 April 2016, the Tribunal affirmed the decision of the delegate not to grant the applicant an Other Family (Residence) visa. The applicant now seeks judicial review of the Tribunal’s decision.

4. In order to succeed, the applicant must establish that the Tribunal’s decision was affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [76]; [2003] HCA 2 (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). For the reasons that follow, the applicant has failed to do that and the application must be dismissed.

5. The applicant’s sponsor was an Australian citizen who had a number of medical conditions including fibromyalgia and cervical spondylosis. A Carer Visa Assessment certificate dated 24 February 2015 recorded an opinion that the sponsor had a medical condition that was causing physical, intellectual or sensory impairment of her ability to attend to the practical aspects of daily life. The certificate also recorded that the medical condition meant that the sponsor had a need for direct assistance in attending to those aspects of daily life and that need would continue for at least two years. The certificate gave the permanent conditions a rating of 40 under the Impairment Tables[1].

   [1] Impairment Tables means the Tables for the Assessment of Work-related Impairment for Disability Support Pension in Sch.1B to the Social Security Act 1991 (Cth).

6. In light of that certificate, there were two critical issues in determining the visa application:

   i) whether the assistance could not reasonably be provided by any other relative of the resident, being a relative who is an Australian citizen, or an Australian permanent resident or obtained from welfare, hospital, nursing or community services in Australia[2]; and

   ii)secondly, whether the applicant was willing and able to provide to the resident substantial and continuing assistance[3].

   [2] See sub-reg.1.15AA(1)(e) of the Regulations.

   [3] See sub-reg.1.15AA(1)(f) of the Regulations.

7. The applicant’s sponsor had a number of relatives who were Australian citizens: four nephews, two nieces and two brothers. Each of them made statutory declarations as to why they could not give the sponsor the assistance she required because of her medical condition.

8. On 6 April 2016, the applicant attended a hearing conducted by the Tribunal together with her sponsor and five of her relatives. On 22 April 2016, the Tribunal affirmed the delegate’s decision.

Tribunal’s decision

1. The Tribunal found that the assistance required by the applicant’s sponsor could reasonably be provided by a combination of care provided by her extended family members in Australia, in addition to services provided by community agencies. This finding was based on the Tribunal’s consideration of the evidence in respect of each of the sponsor’s relatives. While it accepted that some of those relatives did not have the capacity to provide assistance to the sponsor, the Tribunal found that the sponsor’s younger brother, niece and two nephews did have some capacity.

2. In respect of the two nephews it was claimed that their studies meant that they were unable to provide any assistance. The Tribunal noted, at [33] of its reasons, that those nephews were in a similar situation to the applicant who was able to study and care for the sponsor as well.

3. The Tribunal also considered the assistance that might be obtained from welfare, hospital, nursing or community services in Australia. In this respect, it found that the sponsor had not made any genuine attempts to contact key government-funded agencies to obtain assistance. The Tribunal found the sponsor was motivated by her personal preference to be cared for by the applicant.

4. For those reasons it was not satisfied that the requirements of sub-reg.1.15AA(1)(e) of the Regulations were met.

5. The Tribunal next found that the applicant herself was not “willing and able to provide substantial and continuing assistance” to her sponsor and so sub-reg.1.15AA(1)(f) was not met.

6. For those reasons, the Tribunal affirmed the delegate’s decision.

Consideration

Grounds 1 and 2

1. There are four grounds in the application. The first two grounds are based on a claim that the Tribunal was wrong to base its decision on the fact that the applicant was studying because the applicant’s student visa had in fact been cancelled. The difficulty with these grounds is that the only evidence before the Tribunal was that the applicant was then currently studying at University. The question was addressed at the hearing and, as the following passage reveals, the applicant’s evidence was unequivocal:

   Applicant:     So I enrolled myself ahead with all 6 subjects pertaining to this course bachelor degree program but I am currently studying 3 subjects first.

   Tribunal: So this semester you are doing 3 subjects only?

   Applicant:Correct

   Tribunal:And so the other 3 subjects are for next semester?

   Applicant:That's right I pursue 3 subject first 3 subjects for this semester and then related to the other 3 subjects they will announce to me later as time frame.

   Tribunal:And when does the first semester finish for your degree?

   Applicant:Sometime in May.

   Tribunal:So the current three subjects that you have been studying are they the first three subjects that you've done for this degree?

   Applicant:That's correct

   Tribunal:And does the Southern Cross University regard you as a full time student?

   Applicant:This is what I'm currently studying at this Uni I'm not sure if they recognize me as a full time student.

   Tribunal:And when are you expecting to finish the degree?

   Applicant:In 2018

   (Without correction)

2. While the applicant may not have been studying, in light of her evidence at the hearing, it was open to the Tribunal to find that she was studying. For that reason, the first two grounds must be rejected.

Ground 3

1. Ground three is that the Tribunal was wrong to find that the sponsor’s younger brother had some capacity to provide care to the sponsor. The applicant argued that the younger brother had not fully recovered from an injury and was a single father caring for his two children.

2. The Tribunal considered the circumstances of the younger brother at [26] of its reasons:

   … He gave evidence at the hearing that he lives in Ashcroft with one of his adult sons. Mr Chi Loi Nguyen is divorced. He said that he is employed as a team leader at a factory in Smithfield and rarely sees his sister because he is busy with his job. Due to a recent work injury Mr Chi Loi Nguyen has been assigned to light duties and is working 25 hours per week. He used to provide some financial assistance to his sister, but can no longer afford to do so. Mr Chi Loi Nguyen has not provided any medical evidence to indicate that he is unable to provide any care or assistance to his sister due to his workplace injury. Given his sons are adults and one is living independently, the Tribunal does not accept that they require a significant amount of day-to-day care or assistance from him as claimed in the written submissions received prior to the hearing. The Tribunal is satisfied that Mr Chi Loi Nguyen has the capacity to provide some care and assistance to his sister around his work commitments.

3. This passage shows that the Tribunal considered the arguments and evidence about the sponsor’s younger brother. While the Tribunal accepted most of his claimed circumstances, it did not accept that his time was taken up caring for his sons. That, together with the fact that there was no medical evidence to suggest that the brother could not provide assistance to the sponsor, was critical to the Tribunal’s conclusion. That conclusion was open to the Tribunal and this ground is rejected.

Ground 4

1. Ground four is that another relative, Ms Minh Nguyen worked long hours and did not even have time to go out to look for a boyfriend. The Tribunal accepted that this relative worked hard; however, it found that she lived with the sponsor and had no other care responsibilities, and so, had the capacity to provide some care and assistance to the sponsor during evenings and weekends. The Tribunal’s consideration of this relative was based on her own evidence and shows no error. The applicant now only takes issue with the merits of the Tribunal’s conclusion and the ground is rejected.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       16 June 2016