Nguyen v Minister for Immigration
[2017] FCCA 339
•28 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NGUYEN v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 339 |
| Catchwords: MIGRATION – Application for a “Carer’s Visa” (Class BU) – visa refused – Judicial Review. |
| Legislation: Constitution of the Commonwealth of Australia, s.75(v) Migration Act 1958 (Cth), ss.368(1), 359A, 359AA, 368, 424A, 424AA, 474, 476 Migration Regulations, r.1.15AA(1) |
| Cases cited: Biyiksiz v Minister for Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 814 |
| Applicant: | THI VE NGUYEN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 268 of 2016 |
| Judgment of: | Judge Howard |
| Hearing date: | 15 February 2017 |
| Date of Last Submission: | 15 February 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 28 February 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Boccabella |
| Solicitors for the Applicant: | T Lawyers |
| Counsel for the Respondents: | Ms Stoker |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
A writ of certiorari issue directed to the second respondent quashing its decision dated 23 February 2016.
A writ of mandamus issue directed to the second respondent requiring it to reconsider and determine the applicant’s application for review made on 28 October 2014 according to law.
That the first respondent pay the applicant’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 268 of 2016
| THI VE NGUYEN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 28 May 2014 the applicant applied for a class BU visa. At that time class BU contained three subclasses including subclass 836 (carer). The applicant was therefore seeking what is referred to as a “carer’s visa”.
The Minister’s delegate rejected the application on 17 October 2014. On 28 October 2014 the applicant sought a review of the delegate’s decision by the second respondent. In a decision dated 23 February 2016 the Tribunal affirmed the decision of the delegate not to grant the applicant a visa. On 21 March 2016 the applicant filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia.
Jurisdiction
The applicant in this case seeks the issue of constitutional writs.
Section 476(1) of the Migration Act 1958 (“the Act”) provides:-
“476(1) Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.”
Section 75 of the Constitution relevantly provides:-
75. Original jurisdiction of High Court
In all matters:
…
v. in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;
the High Court shall have original jurisdiction.”
The jurisdiction of the Federal Circuit Court of Australia to issue constitutional writs is subject to section 474 of the Act. Section 474 of the Act relevantly provides:-
“474. Decisions under Act are final
(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) In this section:
“privative clause decision” means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).”
The relevant decision of the Tribunal in this case was made on 23 February 2016 and is a privative clause decision.
The Court does, however, still have jurisdiction to issue constitutional writs in relation to the Tribunal’s decision – provided the Court is satisfied that the decision made by the Tribunal is, in fact, affected by jurisdictional error.
In the decision of Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 McHugh, Gummow and Hayne JJ stated at paragraph 82:-
“82. It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia (1995) 184 CLR 163 if an administrative tribunal (like the Tribunal):-
“falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it”.
“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.” [1]
[1] In these reasons for judgment the emphasis and the underlining has been added.
In SZAYG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 90 at paragraph 6, in relation to the role of the Court in reviewing a decision of the Tribunal, Allsop J (as His Honour then was) stated, inter alia:-
“6. … It is important to understand that that application is not simply a rehearing of what was before the Tribunal. It is not hearing afresh the evidence to decide whether or not a visa should be given. It is a review by the Court of the decision of the Tribunal in order to ascertain whether the Tribunal has acted lawfully. That is sometimes expressed in the legal expression to ascertain whether the Tribunal has committed any jurisdictional error…”
Regulation 1.15AA
As noted, the Minister’s delegate had rejected the application. The decision seems to have related to a conclusion reached by the delegate that the applicant had failed to meet regulation 1.15AA(1)(b)(i) – as the sponsor was not usually resident in the home of the person requiring care. I note paragraph 34 of the decision of the Tribunal (page 15 of the Court Book which is exhibit 1) states:-
“34. The tribunal accepts the sponsor and Ms Hoa, who has the medical condition, were usually resident in the same household and a member of the family unit at the time of application and decision. The tribunal finds the visa applicant is the carer of a member of the family unit of the resident who has a medical condition and therefore meets r.1.15AA(1)(b)(i).”
The Tribunal went on to consider other aspects of regulation 1.15AA – in particular regulation 1.15AA(1)(e) which relevantly provides:-
“Reg 1.15AA Carer
(1) An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, …(the resident) if:
(a) the applicant is a relative of the resident;
(b) according to a certificate that meets the requirements of subregulation (2):
(i) …
(ii) …
(iii) …
(iv) because of the medical condition, the person has, and will continue for a least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and
(ba) …
(c) …
(d) …
(e) the assistance cannot reasonably be:
(i) provided by any other relative of the resident, being a relative who is an Australian citizen…; or
(ii) obtained from welfare, hospital, nursing or community services in Australia;”
It is not in dispute that the applicant meets all the other terms of regulation 1.15AA – apart from subregulation 1.15AA(1)(e).
Over time there has been some change in the wording of subregulation 1.15AA(1)(e)(i) – but apparently not to subparagraph (ii). Earlier authorities therefore remain relevant to subregulation 1.15AA(1)(e)(ii). It is convenient to consider subparagraph (ii) at the outset. I note the decision of Gray J in Biyiksiz v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 814. The case was concerned with a “special need relative” rather than a “carer” – but the wording used in the relevant regulation in Biyiksiz is similar to the relevant wording in subregulation 1.15AA(1)(e)(ii). At paragraph 17 Gray J stated, inter alia:-
“The meaning of ‘cannot reasonably be obtained’
17. It cannot have been the intention of the framer of the Migration Regulations that the residence visa should be available to no-one, or should only be available in the rarest of cases. In Australia, health and welfare services are highly developed. There must be very few disabilities or prolonged illnesses for which assistance is unavailable from health or aged care institutions and professionals. If par (b)(ii) of the definition of ‘special need relative’ were to be construed as meaning that assistance reasonably available was reasonably obtainable in every case, there would be very few, if any, visas granted. For this reason, to accord with the purpose of the Migration Regulations in this respect, it is necessary to construe ‘cannot reasonably be obtained’ as ‘cannot reasonably be obtained by the person requiring assistance’. It is necessary to recognise that this aspect of the definition of ‘special need relative’ focuses on obtainability by the person requiring assistance, as distinct from availability to the person requiring assistance.”
Gray J concluded that there must be a subjective element to the interpretation of “reasonable” – being “reasonable” to the person who needs the assistance. In paragraphs 20 and 21 Gray J in Biyiksiz stated (inter alia):-
“20. …The words ‘cannot reasonably be obtained’ must be construed by reference to reasonableness from the point of view of the person requiring assistance, and not only by reference to the reasonable availability of the assistance from other sources. This proposition accords with my own view of the purpose of the definition of ‘special needs relative’ in the context of the criteria for a visa of the kind sought by the applicant.
21. For this reason, factors that are subjective to the person requiring long term assistance will be of relevance in determining whether assistance can reasonably be obtained by that person from sources other than an applicant for the relevant visa.”
In Biyiksiz, Gray J proceeded to undertake an evaluation of the reasoning process of the Tribunal and concluded that the reasoning process was defective stating in paragraphs 22 and 23 of the judgment, inter alia:-
“22. …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. Similarly, the Tribunal obviously thought that the fact that the applicant’s mother had given evidence to the Tribunal through a Turkish interpreter eliminated any issue of language barriers to her residence in a nursing home. It is plain from par 68 of the Tribunal’s reasons that this was the nature of the reasoning of the Tribunal. In that paragraph, it 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 for as long as possible.
23. In my view, in these respects, the Tribunal fell into error. It considered the question whether assistance could reasonably be obtained from welfare, hospital, nursing or community services from the point of view of the availability of assistance from those services, and did not consider whether the assistance was reasonably obtainable by the applicant’s mother from those services. To do so, it would have been necessary for the Tribunal to consider the preferable mode of care for the applicant’s mother, including in particular her preference for being cared for in her own home by her own daughter.”
Gray J concluded that the Tribunal in Biyiksiz’s case had misconstrued the regulation and had fallen into jurisdictional error. In paragraph 53 of the decision in the present case the Tribunal stated:-
“53. Further, and in any event, the tribunal also considers permanent residential care options can be reasonably obtained for Ms Hoa. As discussed at hearing there were 73 available residential places in their area at the time hearing, some of which had Vietnamese speakers. The tribunal accepts Hoa Thi Nguyen would prefer to be at home and in a Vietnamese cultural/religious environment, but the tribunal does not accept that she would not be cared for in residential care. There is evidence that there are Vietnamese staff in residential care homes in the area and the many other places also cater to different cultural, religious and ethnic needs.”
The submission on behalf of the applicant is that the Tribunal fell into the same error as the Tribunal in Biyisksis by failing to consider, appreciate or properly take into account the subjective nature of the test as identified by Gray J in Biyizskis.
It is important to keep in mind that the person requiring assistance in the present case (“Hoa”) is significantly disabled. Hoa has bilateral paraplegia. She is 89 years old and is bedridden. Hoa speaks no English. She only speaks Vietnamese. Hoa can be mobilised in a wheelchair but she needs a significant amount of lifting and the applicant, Hoa’s daughter, is attending to all of this plus all of her other care needs. Hoa would prefer to live at home with her family and be cared for by one of her family – namely her daughter, the applicant. Hoa does not eat western food – she only eats Vietnamese food.
I note the following written submissions on behalf of the applicant contained in paragraphs 23 and 24 of the submissions filed on 3 February 2017. The applicant states (via her Counsel, Mr Boccabella):-
“23. For an 89 year old Australian citizen, very much in the twilight of her life, while not mentally incapable is losing her acuity, with only residual physical ability, does not speak English and has no appetite for Western food (let alone institutional food), in contrast to being looked after at home with her family around her, speaking her language, serving her culturally appropriate food, going the extra mile for her, then assistance is not reasonably obtainable from an institution which may have rostered staff only at times speaking her language, but would have no connection with her, serve institutional food not culturally compatible and would not be in a position to go the extra mile for her. Further this business of the family having to provide food adds another layer to the concept that institutional care cannot be reasonably be obtained by the mother. Afterall with all the relevant relatives working full time this is hardly reasonable.
24. Hence the tribunal misinterpreted subregulation 1.15AA(1)(e)(ii) and in the process asked itself the wrong question or questions.”
I agree with these submissions made by Mr Boccabella on behalf of the applicant. In this case the Tribunal focused on the availability of residential care facilities and not the obtainability of residential care facilities for this particular person who requires assistance. As noted, paragraph 53 of the Tribunal’s reasons contains the following sentence:-
“The tribunal accepts Hoa Thi Nguyen would prefer to be at home and in a Vietnamese cultural/religious environment, but the tribunal does not accept that she would not be cared for in residential care.”
In Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480[2] – the High Court held that a statement of reasons must explain the actual “path of reasoning” in sufficient detail for the Court to see whether the decision does or does not involve an error of law in relation to the conclusion reached. The sentence quoted above from paragraph 53 of the Tribunal’s decision in this case does not provide a path of reasoning sufficient to enable the Court to see whether the Tribunal’s decision does or does not involve an error of law. The subjective preference of Hoa has not been properly considered by the Tribunal. The Tribunal states that Hoa “would prefer to be at home” – but the Tribunal then fails to provide a “path of reasoning” to explain why or how the Tribunal decided to reject Hoa’s subjective preference to remain living at home and cared for fulltime by her daughter (the applicant).
[2] From paragraph 48.
When considering subparagraph (ii) of the relevant subregulation – it is also important to note that the Tribunal made mention of a combination of “institutional” assistance combined with family assistance. It is therefore necessary to refer to Hoa’s family at this stage. Leaving aside the applicant – Hoa’s adult relatives work fulltime. Two great grandchildren attend school. Hoa requires, essentially, an intense level of personal care 24 hours a day. It was sensibly conceded on behalf of the first respondent by Ms Stoker of Counsel – at the hearing on 15 February 2017 – that Hoa requires an intense level of personal care. The evidence (via the aged care assessment team, ACAT) concluded that Hoa required 24 hour care. If a person with bilateral paraplegia requires an “intense level of personal care” it is difficult to see how anything other than 24 hour care would be appropriate.
There is no “path of reasoning” in sufficient detail for this Court to see whether the Tribunal’s decision does or does not involve an error of law – in relation to the conclusion reached by the Tribunal that, in the present case, “the assistance” could reasonably be obtained. Further, there is no proper path of reasoning to explain how Hoa’s other relatives – all whom work fulltime – are going to be able to provide any meaningful assistance to Hoa. In paragraphs 50 and 51 of the Tribunal’s decision it is stated:-
“50. The tribunal has considered the post hearing statement information. While the sponsor’s family have explored some inhome assistance availability and talked to Forest Lake residential care facility, the tribunal is not satisfied that appropriate services cannot be reasonably obtained.
51. The tribunal accepts the family would prefer the visa applicant to assist the sponsor to care for Ms Hoa at home, but it is evident that there are a number of options available, being residential care or a combination of respite care, family providing assistance and inhome packages, which could assist.”
Again, the reasoning of the Tribunal focused on the availability of residential care or “in home” care provided by outside providers. The Tribunal did not adequately explain by means of a pathway of reasoning the obtainability of those types of care by the person requiring assistance in the case, namely Hoa.
Conclusion in relation to subregulation 1.15AA(1)(e)(ii)
In essence, the Tribunal in this case (as in Biyizskis) “clearly thought that considerations such as that the applicant’s mother wished to stay with the applicant and would not be comfortable at a nursing home had no weight.” In the Tribunal’s decision it is stated that there were nursing homes in the area that had Vietnamese staff. I note references in paragraphs 16, 47, 49 and 53 – to this issue of the availability of Vietnamese speakers employed at residential care facilities. In paragraph 16 of the Tribunal’s decision it is clearly stated that there was one home at “Forest Lake” which had Vietnamese speakers. In paragraphs 49 and 53 the Tribunal noted more than one residential care facility that apparently had Vietnamese staff. The problem highlighted by the family members to the Tribunal – namely that the Forest Lake care facility could not guarantee that the two Vietnamese speakers on staff would be working all the time – has not been addressed by the Tribunal. Hoa requires intensive 24 hour care. It is obvious. This 89 year old bedridden woman has bilateral paraplegia. She speaks no English whatsoever and only speaks Vietnamese. The Tribunal failed to explain how, for instance, an invalid in Hoa’s position was supposed to communicate with her carers – unless there are available, on a full time 24 hour-basis, carers who are able to speak Vietnamese. Without providing a proper pathway of reasoning and without giving some detailed consideration to the issue – the Tribunal in this case fell into error in a similar way that the Tribunal in Biyizskis also fell into error. There were no findings made by the Tribunal as to the availability – on a 24 hour basis (as is appropriate for the care requirements of Hoa) of a Vietnamese speaker in any residential care facilities suitable for Hoa. It was incumbent upon the Tribunal to specifically address this issue in its reasons because the applicant and, indeed, the sponsor’s daughter (Margaret) had specifically raised (note paragraph 47 of the Tribunal’s decision) the fact that the Forest Lake facility had two Vietnamese staff – but the facility could not guarantee that those staff would be on duty at all times. The fact that this issue was raised – essentially – on behalf of the applicant meant that the Tribunal had an obligation to address this particular point. Instead, the Tribunal provided no proper pathway of reasoning or detailed consideration of the issue and, frankly, glossed over the issue of the availability of “Vietnamese speakers” employed in residential care facilities.
In these respects the Tribunal has fallen into error.
It is also convenient at this juncture to consider one of the other grounds raised on behalf of the applicant. In various paragraphs of the Tribunal’s decision reference is made to residential care facilities. The Tribunal in fact states that there were “73 permanent residential places available in their area at the moment including one at Forest Lake which had Vietnamese speakers” (see paragraph 16 of the Tribunal’s decision). The Tribunal in its decision referred to this number (73) in paragraphs 16, 49 and 53 of its reasons. The Tribunal made references to Vietnamese speakers at care facilities in various paragraphs including paragraph 16, 47, 49 (including footnote 1 from paragraph 49) and 53. The issues relating to the number of residential places available and the availability of Vietnamese speakers at those residential facilities was raised at the Tribunal hearing on 14 December 2015. The transcript of the hearing is annexure “PT1” to the affidavit of Pamela Tieu filed 3 February 2017. At page 22 of the transcript it is noted that the Tribunal member stated (from line 420):-
“420. MEM And you know and then if that becomes too difficult or not viable there are plenty of residential care places and there’s 73 available in your area at the moment.
421. [interpreter translates]
422. MEM Including one at Forest Lake at which there are Vietnamese speakers.
423. [interpreter translates]”
It was submitted on behalf of the applicant that the Tribunal breached sections 359A and 359AA of the Migration Act – by failing to provide notice to the applicant of this information and failing to give to the applicant an opportunity to comment or respond to the information. Sections 359A and 359AA state as follows:-
“359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(5) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
359AA Information and invitation given orally by Tribunal while applicant appearing
(1) If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).”
The availability of 73 permanent residential places – including “places that offered specific services for Vietnamese clients” (note paragraph 49 of the Tribunal’s decision) was the reason – or at the very least, part of the reason – that the Tribunal affirmed the delegate’s decision that was then under review. This issue was clearly raised in the written submissions of the applicant filed 3 February 2017 – in particular in paragraphs 44 – 47 inclusive. The written outline of submissions on behalf of the first respondent (filed on 14 February 2017) responds to the submission. It was submitted on behalf of the first respondent that the ultimate findings of fact made by the Tribunal were contained at paragraph 51 of its decision. That paragraph states:-
“51. The tribunal accepts the family would prefer the visa applicant to assist the sponsor to care for Ms Hoa at home, but it is evident that there are a number of options available, being residential care or a combination of respite care, family providing assistance and inhome packages, which could assist.”
In fact, that appears to be a brief summary of some of the findings of fact made by the Tribunal. More particulars of the findings of fact are contained at various parts of the decision. Paragraph 49 is worth revisiting. The last two sentences state:-
“49. … For instance, the tribunal noted there were 73 aged care facilities available on the day of hearing in the Hoa Thi Nguyen’s area. Further, there were places that offered specific services for Vietnamese clients (footnote 1: Eg. Forest Lake Lodge, Algester Lodge (and others) – from myagedcare.gov.au finder.”
I have come to the conclusion that the availability of 73 residential places did form part of the Tribunal’s decision to affirm the delegate’s earlier decision. Further, I have come to the conclusion that the Tribunal’s finding that there were residential places that offered specific services for Vietnamese clients (which, in the context of the reasons generally, could only be taken to refer to Vietnamese speaking staff members) was another reason or part of the reason that the Tribunal affirmed the decision. The Tribunal’s decision states in paragraph 49 (and footnote 1 thereof) that there were two named facilities that offered specific services for Vietnamese clients and an unspecified number of other unnamed facilities which also apparently provided specific services for Vietnamese clients.
None of the exceptions contained in section 359A(4) are applicable in this case. The information is specifically about the applicant. It relates to the need for 24 hour intense personal care provided by Vietnamese speaking care staff. The applicant did not give the information to the Tribunal. None of the other exceptions in section 359A(4) apply.
Further, the Tribunal is not excused in this instance by reason of section 359A(3). The Tribunal did not give clear particulars of this important reason that it affirmed the delegate’s decision – namely that there were 73 aged care facilities available on the day of the hearing – including places that offered specific services for Vietnamese speaking clients.
The Tribunal did make reference to 73 available places – “including one at Forest Lake at which there are Vietnamese speakers”. But the Tribunal did not give clear particulars of this information and the Tribunal did not comply with provisions of section 359AA(a) and (b). As noted, there was a reference in the hearing to the 73 available places including residential facilities that offered specific services for Vietnamese clients – but there were not clear particulars given at the hearing of the specific facilities. There was no ensuring that the applicant understood why the information was relevant to the review. The Tribunal did not orally invite the applicant to respond to the information and nor did the Tribunal advise the applicant that she may seek additional time to comment or respond to the information. For these reasons the Tribunal breached section 359AA of the Act. The availability (or otherwise) of fulltime residential care facilities with Vietnamese speaking carers was, in fact, a key reason for the Tribunal’s decision.
The applicant and her sponsor were intelligent enough – notwithstanding the Tribunal’s failure to comply with sections 359A and 359AA – to realise that they should follow up the assertion made during the Tribunal hearing that the Forest Lake facility employed Vietnamese speakers. The Tribunal did allow some time for further submissions. Although this specific issue was not drawn to the attention of the applicant with the requisite advice required pursuant to section 359AA. A statutory declaration was prepared by Margaret Hanh Nguyen. Margaret Hanh Nguyen is the granddaughter of Hoa. She carried out some investigations and in the statutory declaration (contained at pages 38 and 39 of the Court Book which is exhibit 1) Ms Margaret Hanh Nguyen states:-
“Although Forest Lake Nursing Home has 2 Vietnamese speaking staff, the nursing home cannot guarantee that there will always be a Vietnamese speaking staff member who can attend to my grandmother.”
This evidence was provided to the Tribunal prior to the Tribunal making its decision. The Tribunal mentioned this evidence and they ignored it. The Tribunal failed (in breach of section 368 of the Act) to make proper findings or provide a path of reasoning to explain that crucial shortcoming in its decision. How can an 89 year old paraplegic – who only speaks Vietnamese – be placed into a facility (such as Forest Lake) where there can be no guarantee of access to Vietnamese speaking carers on a 24 hour basis?
The Tribunal breached sections 359A and 359AA of the Act – because the applicant should have been told the names of every single facility which apparently employed Vietnamese speakers (along with the sources of information) and should have been told of the importance of the issue and given an opportunity to respond/comment – as required by sections 359A and/or 359AA. My conclusion in this regard is reinforced by the evidence of the process that did in fact occur as a part of this Tribunal hearing. At page 23 of the Court Book there is contained a letter from the applicant’s lawyers (T Lawyers) dated 30 January 2016 addressed to the Tribunal. The letter refers to the hearing that had taken place before the Tribunal on 14 December 2015. The letter states, inter alia:-
“We submit that it was our understanding before the hearing that this case would be conducted solely on the basis that the only issue before the Tribunal is whether the sponsor meets Regulation 1.12(e)(ii). That is whether the person with the medical condition (Ms Hoa Thi Nguyen) is “usually resident” in the same household as the sponsor, Thi Huyen Nguyen. No other issue was used by the delegate in the refusal letter and therefore we were of the opinion that no other issue would be raised.”
It is apparent that the applicant’s contention was that there had been no proper notice given that the issue of care options etc was to be discussed – or was to be a matter in issue – at the Tribunal hearing.
The Tribunal did not accept that the applicant was not aware that the issue about care options was in fact a live issue. I note, for instance, paragraph 21 of the Tribunal’s decision. But from the receipt of the letter from T Lawyers dated 30 January 2016 – the Tribunal would have been well aware that the applicant, at least, considered that there had not been proper notice given to her in relation to the matters that were to be considered by the Tribunal. In the letter dated 30 January 2016 the applicant’s lawyers enclosed an ACAT assessment and the statutory declaration from Ms Hoa’s granddaughter (Margaret). The last paragraph of the letter states:-
“If the Tribunal is not satisfied with the above and is minded to make an adverse decision against the visa applicant then we ask that the Tribunal delays its findings and inform us of the nature and content of the Tribunal’s concerns so that the affected parties are given the opportunity of submitted material and have the right to be heard.”
Having received a letter in the abovementioned terms – the Tribunal should have taken steps to ensure that, for instance, section 359A of the Act was followed in the terms outlined above.
Having been told about the Forest Lake facility – the applicant had it checked out. The applicant (via the statutory declaration of Hoa’s granddaughter) was able to respond to that information from the Tribunal. But the Tribunal did not give clear particulars in relation to Algester or the other facilities which the Tribunal asserted in its decision (in fact in paragraphs 49 and 53) employed Vietnamese staff. The applicant ought to have been given an opportunity to check the Algester facility and the “other places” which apparently provided Vietnamese speaking staff.
The first respondent sought additional time to provide copies of further cases in relation to this issue. Leave to provide further cases and/or submissions was opposed by Counsel for the applicant –on the grounds that the applicant had clearly stated her case and her impecuniosity would prevent a further submission in reply. The issue was clearly raised in the written submissions that were provided by the applicant (filed 3 February 2017 – in particular between paragraphs 44 and 47). In those cirucmstances the Court refused to grant to the first respondent leave to provide copies of any further cases (or, by implication, provide any further submission).
Sections 424A and 424AA of the Act are in similar terms to sections 359A and 359AA. The “coherent and complementary” nature of the two sections (sections 359A and 359AA – by analogy with sections 424A and 424AA) was referred to in SZMCD v Minister for Immigration and Citizenship & Anor [2009] FCAFC 46. When that case is read in conjunction with the High Court’s decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 – it is apparent that non-compliance by the Tribunal with section 359A of the Act constitutes jurisdictional error.
Further, I agree with the submission made on behalf of the applicant that ground 9 is also made out because, in conducting its own investigations (discovering, apparently, 73 available places in residential care facilities including two named facilities which apparently provided Vietnamese speaking carers and an undisclosed number of unnamed other facilities which apparently provided Vietnamese speaking carers) in circumstances where the Tribunal failed to produce all of the relevant material forming part of that investigation – the Tribunal did run the risk of becoming a type of prosecutor or contradictor. I note what was stated by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at paragraph 47 where Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ stated, inter alia:-
“47. …The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor.”
Even if my view expressed in the last preceding paragraph is not correct – for the reasons stated earlier (in particular in relation to sections 359A and 359AA) the Tribunal has fallen into jurisdictional error.
Subregulation 1.15AA(1)(e)(i)
I note the following paragraphs from the Tribunal’s reasons:-
“44. The tribunal has considered all the submissions, documentary and oral evidence regarding the difficulties in other family members providing assistance to the sponsor to care for the mother, Ms Hoa. While the tribunal accepts the sponsor, her daughter and niece (ie. granddaughters of Ms Hoa)work and have family commitments, one lives with the sponsor and Ms Hoa in the same premises and the other lives nearby in Redbank Plains. The tribunal notes the medical reports provided regarding their health were from 2013 and 2014. In any event, the tribunal accepts that they suffer anxiety or depression. However, they continue to both be able to work full time and look after their family which suggests it is not debilitating. The tribunal accepts they would have to juggle their time and spend less time with their immediate families and it may be difficult. The tribunal does not accept that they could not provide some assistance to the sponsor to care for Ms Hoa after work or assist on weekends. The tribunal does not accept between them they could not work out a roster and provide some assistance to the sponsor to care for Ms Hoa on weekends or after work. The tribunal accepts, however, they may need to rely on other community or welfare services to assist as well.
…
49. At hearing, the tribunal noted Level 4 care packages offer significant assistance for in home care which can be tailored individually and include equipment needed for lifting, or respite care, in home care to the value of more than $50,000 each year. There were many available. For instance, the tribunal noted there were 73 aged care facilities available on the day of hearing in the Hoa Thi Nguyen’s area. Further, there were places that offered specific services for Vietnamese clients.
…
52. The tribunal considers while in home level 3 and 4 packages are not immediately available to the four providers the applicant checked, there are many providers. Further, the four providers checked by Margaret noted Level 1 and Level 2 packages were available and could be utilised until a level 4 package became available. The tribunal considers it is not unreasonable that once registered for the in home service that there may be a waiting period for those services and interim services. It is unfortunate the family did register for the package assistance in 2015, when they were first eligible. Further, respite care for up to 63 days a year is also available and there are many providers of Level 4 packages in the area. The tribunal considers the assistance can be reasonably obtained and provided by combining the use of respite care, assistance from the granddaughters and the immediate Level 2 packages, while waiting for Level 4 availability or using other Level 4 providers.
…
55. Having considered the evidence overall, the tribunal is not satisfied that assistance cannot be reasonably provided by and obtained from a combination of the assistance, two granddaughters, respite care and in home care packages or residential care to assist the sponsor to care for her mother, Ms Hoa.”
I note section 368(1) of the Migration Act 1958 where it is stated:-
“Section 368(1) Where the Tribunal makes its decision on a review…the Tribunal must…make a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based;”
The Tribunal needed to set out its findings on material questions of fact. The Tribunal also needed to refer to the evidence on which the findings of fact were based. The evidence that is available in relation to the relatives of Hoa is that they each work fulltime and (even with some institutional “in home” assistance) could not possibly provide “the assistance” needed by Hoa in this case – noting her particular circumstances as a bedridden paraplegic 89 year old woman with particular language, dietary and cultural needs. In regulation 1.15AA(1)(e) – the first two words are, “the assistance”. “The assistance” required by Hoa, as noted several times in these reasons for judgment, is 24 hour intense personal care – provided by a Vietnamese speaker. Each of Hoa’s adult relatives works on a full time basis. The Tribunal has provided no proper path of reasoning of findings as to how “the assistance” required by Hoa could possibly be provided by her relatives. The Tribunal then seeks to blandly state that:-
“55. …the tribunal is not satisfied that assistance cannot be reasonably provided by and obtained from a combination of the assistance, two granddaughters, respite care and in home care packages or residential care to assist the sponsor to care for her mother, Ms Hoa.
56. 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 and therefore the requirements of r.1.15AA(1)(e) are not met.”
The Tribunal failed to provide a path of reasoning to explain how the adult relatives of Ms Hoa (all of whom work full time) were supposed to achieve this feat of caring for Ms Hoa whilst they are working elsewhere. The conclusions reached by the Tribunal in this regard are illogical.
Further, in relation to the conclusions reached in paragraph 55 of the Tribunal’s decision – the Tribunal has rolled into one conclusion different subparagraphs of regulation 1.15AA(1)(e). In particular the Tribunal has rolled into one conclusion its views on subparagraphs (i) and (ii) – without differentiating the different tests to be applied. If the contention was that the adult relatives could provide care and assistance to Ms Hoa when those adult relatives were present at the home of Ms Hoa – and in the meantime outside carers could come to the residence – it was incumbent on the Tribunal to note the two different standards or tests to be applied. The assistance “obtained” from outside services in Australia – ought to have been considered within the light of the Biyizskis decision and the subjective nature of that test. For instance, precisely which “outside carer” facilities could have been provided to Ms Hoa within the house that she lives? Were they available on a 24 hour basis to fill in the gaps when the relatives were at work? Were they Vietnamese speakers capable of communicating with Ms Hoa? In the absence of those types of findings and in the absence of an actual path of reasoning in sufficient detail – the Court is not able to see whether the Tribunal’s decision does or does not involve an error of law.
Conclusion in relation to subregulation 1.15AA(1)(e)(i)
For the reasons stated I have concluded that the Tribunal fell into jurisdictional error. There was no proper pathway of reasoning explained. I do not consider that section 368(1) of the Migration Act has been followed in sufficient detail. In addition, the point made by the Tribunal in paragraph 48 of the decision about available assistance of $50,000 failed to address the point raised by the applicant and/or the sponsor that modifications to a residence are not or might not be available to a person living in rented accommodation (such as Ms Hoa). Further, the Tribunal’s conclusion in relation to the involvement of the relatives to care of Ms Hoa was illogical in the sense that that expression was used by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (see below).
Conclusion
It is important to note in the circumstances of this case that many of the issues discussed when considering the proper interpretation of regulation 1.15AA(1)(e) are relevant when considering whether or not the decision was unreasonable.
In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 the High Court noted:-
“72. Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41, Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is “manifestly unreasonable”. Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.
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75. In Peko-Wallsend (1986) 162 CLR 24, Mason J, having observed that there was considerable diversity in the application by the courts of the test of manifest unreasonableness, suggested that “guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion”. House v The King (1936) 55 CLR 499 holds that it is not enough that an appellate court would have taken a different course. What must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into consideration. The analogy with the approach taken in an administrative law context is apparent.
76. As to the inferences that may be drawn by an appellate court, it was said in House v The King (1936) 55 CLR 499 that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
In the present case it has to be said that the conclusion that the relatives could take care of Ms Hoa involved illogical reasoning. The relatives work full time. The Tribunal did not explain how the relatives could re-juggle their working and family lives to care for the 89 year old bedridden Hoa – who suffers bilateral paraplegia. There is another layer of illogicality in that the Tribunal very much glossed over the health issues of the relatives themselves. Not to mention that one of those relatives lives 20 kilometres away from where Ms Hoa lives.
There was also an illogicality to the reasoning process and the conclusion reached by the Tribunal in relation to the obtainability of institutional care for Ms Hoa. Her specific requirements – 24 hour 7 day a week intense personal care to be provided by a Vietnamese speaker – was not an issue upon which the Tribunal provided material findings of fact or a proper path of reasoning. Having referred the applicant to the Forest Lake residential facility (during the course of the Tribunal hearing) and stated that the Forest Lake facility had available Vietnamese speakers to care for Hoa – the applicant arranged for a statutory declaration from Hoa’s granddaughter on the issue. As noted earlier in these reasons for judgment – the evidence from Hoa’s granddaughter is that the Forest Lake facility could not guarantee that a Vietnamese staff member would always be available (they only employed two staff). This was crucial because Hoa requires 24 hour care. Having been informed of this fact (via the statutory declaration) – the Tribunal proceeded to essentially ignore that evidence. This crucial shortcoming in the Tribunal’s decision does leave the impression that the conclusion of the Tribunal that the Forest Lake facility was a suitable residential care facility was in fact an illogical conclusion. Unless there are available Vietnamese speaking carers on a 24 hour basis – how can such a facility be suitable for Hoa? That question was not answered.
For the reasons outlined above – I have come to the conclusion that the decision reached by the Tribunal was, in a legal sense, unreasonable.
For the reasons stated (throughout) I have come to the conclusion that the Tribunal fell into jurisdictional error. Several of the grounds of the application for judicial review filed by the Applicant on 21 March 2016 have been made out – including grounds 1, 2, 4, 7, 8 and 9. It should be noted that some of the grounds were more fully particularised in the applicant’s written outline of submissions. This included the breach of section 359A of the Act. Several of the grounds overlap.
Appropriate orders will be made to reflect the decision of the Court.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 28 February 2017
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