Nguyen v Minister for Immigration

[2016] FCCA 1203

FEDERAL CIRCUIT COURT OF AUSTRALIA

NGUYEN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1203

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Family Migration (Class BO) visa – whether the Tribunal asked itself the wrong question – whether the Tribunal made an erroneous assumption – whether the Tribunal misapplied the relevant law – whether the Tribunal failed to take relevant considerations into account – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 476

Migration Regulations 1994, regs.1.15AA(1)(e), 1.15AA(1)(f), 13.03C(1)(e), Schedule 2, cl.116.221

Applicant: VAN TAN NGUYEN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2007 of 2015

Judgment of: Judge Street

Hearing date: 18 May 2016

Date of Last Submission: 18 May 2016

Delivered at: Sydney

Delivered on: 18 May 2016

REPRESENTATION

The applicant's daughter, Ms T Nguyen, appeared on his behalf with the leave of the Court

Counsel for the First Respondent: Mr M Cleary

Solicitors for the First Respondent: Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2007 of 2015

VAN TAN NGUYEN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 24 June 2015, affirming a decision of the delegate not to grant the visa applicant’s Family Migrant (Class BO) visas. On 10 January 2014 a delegate refused to grant the visa applicants, being Mr Truong Chinh Nguyen and his wife and their three children and grandchild an Other Family Migrant (Class BO) visa under s.65 of the Migration Act 1958.

2. The visa applicants applied for the visa on 27 June 2013 on the basis that Mr Truong Chinh Nguyen is the carer of his father, Mr Van Tan Nguyen, who was the review applicant before the Tribunal and is the applicant in this Court.  The applicant was born in Vietnam in 1931 and is now an Australian citizen.  On 6 December 2012 the applicant was found to be suffering from dementia, dizziness, osteoarthritis and COPD.  The applicant was identified as having a 40 point impairment rating at that time.

3. The delegate refused to grant the visa on the basis that the requirements of cl.116.221 were not met. The delegate noted that the review applicant has 13 adult relatives in Australia. It was in those circumstances that the delegate was not satisfied that the review applicant’s assistance could not reasonably have been provided by the relatives in Australia in accordance with reg.1.15AA(1)(e). On 20 May 2014 a differently constituted Tribunal held it did not have jurisdiction in relation to the decision of the delegate.

4. That decision was reversed by an order of this Court on 23 December 2014.  The Tribunal the subject of the application in this Court held a hearing on 27 April 2015 at which the visa applicant, Mr Truong Chinh Nguyen, appeared.  The Tribunal also received oral evidence from Ms Thi Thuy Kieu Nguyen, Ms Thuy Mong Linh Nguyen, Mr Ngoc Lam Nguyen and Ms Thi Chi Ta. The Tribunal noted that all the above witnesses were children of the review applicant.  The Tribunal noted that the hearing was conducted with the assistance of a Vietnamese interpreter and that the review applicant was represented by his registered migration agent.

5. The Tribunal noted that the review applicant was unable to give evidence due to the nature of his medical condition.  The Tribunal identified the evidence from the review applicant’s children and turned to the consideration of the requirements of reg.1.15AA(1).  The Tribunal made reference to the combination of relatives of the review applicant living in Australia and made findings in relation to whether the criteria under reg.1.15AA(1)(e) was satisfied.  The Tribunal made reference to the fact that the assistance to the review applicant could be shared between the relatives as well as making reference to the community services available to the review applicant.

6. It was in those circumstances that the Tribunal found that this was a case where the person requiring care has a number of relatives living close by, all of whom except one can reasonably provide assistance to the review applicant.  The Tribunal found that while no one relative in Australia can necessarily provide all the assistance, the Tribunal considers that the assistance can reasonably be provided by a combination of relations in conjunction with the reasonably obtained community services.

7. It was in those circumstances that the Tribunal found that the requirements of reg.1.15AA(1)(e) were not met.  The Tribunal also went on to consider whether the visa applicant met the requirements under reg.1.15AA(1)(f), as to whether the applicant was willing and able to provide to the review applicant substantial and continuing assistance of the kind needed under reg.1.15AA(1)(b)(iv) or reg.1.15AA(1)(d). Regulation 1.15AA(1)(b)(iv) refers to the carer having a medical condition which will continue for at least two years and need for direct assistance in attending to the practical aspects of daily life.

8. The Tribunal found that the visa applicant, by reason of the combination of his lack of English and lack of ability to drive and his other family responsibilities, was not a person who met the requirements of reg.1.15AA(1)(f).  There was material before the Tribunal identifying the daily, weekly and monthly medications that the applicant had to take, being in English. 

9. The grounds of the application are as follows:

   1. The Migration Review Tribunal Member quoted in the Decision Record at point 36 case Xiang v MIMIA [2004] FCAFC 64 and at point 39 Pham v MIAC [2013] FMCA 29 but this case is different as in FCAFC 64 the Federal Court of Australia remitted the matter to the Tribunal as the Tribunal made a finding that the applicant was not able. In this case the visa applicant is willing and is able to be a carer and the Tribunal ignored the visa applicant's previous visit to Australia and the ability to look after the father and the fact now that he completed English course as well as undertaking driving lessons and the Tribunal failed to ask itself whether driving is a mandatory requirement and whether it was recommended by Medibank Health Solutions. The visa applicant's evidence proved his ability and willingness to be a carer to his father and contrary to the Tribunal's findings the visa applicant is capable of substantially meeting his father's needs and the Tribunal failed to accept the visa applicant's ability and willingness to do so.

   2. The Medibank Health Solutions quoted the serious medical condition of the review applicant and assigned a 40 point impairment rating and accepted that no one of family members is claiming carer allowance because there is no one who is available to take care on 24 hour basis 7 days a week. The Tribunal accepted the evidence yet failed to accept the visa applicant who is the only available carer who can dedicate his time, love and support to his father who suffers serious medical condition. The Tribunal assumed that family members can continue taking care of the seriously sick father and ignored his need for a full-time carer and the fact that the visa applicant previously took care of him.

   3. There is no evidence to support the Tribunal’s finding that the English language was required and driving licence is required because the father needs the love and support at home on full time basis and the visa applicant established his full knowledge of his father's requirements yet the Tribunal ignored his ability and willingness without further investigation whether the sick father needs an expert to drive him or to speak English.

   4. The decision of the Tribunal is illogical and unreasonable compared to the evidence which supports the visa applicant and the transcript will be provided to the Honourable Court soon.

10. On 9 March 2016 this matter was listed for hearing.  The review applicant’s daughter has attended and identified that her father, the applicant in these proceedings, is not well enough to come to Court. No application for an adjournment was made.  The Court inquired of the first respondent whether it had any objection to the applicant’s daughter, who is not a lawyer, being heard in relation to the applicant’s application and the first respondent had no objection to that course. 

11. The Court is satisfied that the applicant was well aware of today’s hearing and, in the circumstances, determined to proceed with the hearing generally in accordance with reg.13.03C(1)(e).  At the commencement of the hearing the Court explained to the applicant’s daughter that the nature of the hearing was to determine whether the Tribunal’s decision was affected by relevant legal error.

12. The Court explained that the relevant legal error had to be either an excess of statutory powers by the Tribunal or a denial of procedural fairness to the applicant.  The applicant’s daughter confirmed that she understood what had been said by the Court.  The Court proceeded to explain that, if satisfied that the Tribunal’s decision was affected by relevant legal error it would set aside the Tribunal’s decision but if not so satisfied it would dismiss the applicant’s application.  The Court explained that it would identify the evidence and then hear submissions from the applicant’s daughter and then submissions from the first respondent’s counsel and then hear submissions and then hear submissions from the applicant’s daughter in reply.

13. The applicant’s daughter confirmed that she understood the nature of the hearing as explained by the Court.  In addition to written submissions prepared on behalf of the applicant which were marked as an exhibit, the applicant’s daughter articulated the needs of her father and contended that those here in Australia could not provide the care that he needed.  The applicant’s daughter referred to the hardship imposed on the applicant’s children.  This Court does not have power to set aside the Tribunal’s decision on compassionate grounds.  This was explained to the applicant’s daughter. 

14. In relation to ground 1, this appears to be an impermissible challenge to the adverse finding of the Tribunal in relation to the requirements of reg.1.15AA(1)(f).  The adverse finding of the Tribunal was not made solely on the basis of the visa applicant’s inability to drive.  It was a combination of matters as identified by the Tribunal.  Equally, the visa applicant’s lack of facility with English was only one of the considerations taken into account by the Tribunal in that regard.  The Tribunal indicated that it had also taken into account the family responsibilities of the visa applicant in relation to his wife, three children, and grandchild. 

15. There is no substance in the proposition that the Tribunal ignored any relevant evidence or that the adverse finding by the Tribunal was not open on the material before the Tribunal.  The adverse finding in relation to the criteria under reg.1.15AA(1)(f) cannot be said to lack an evident and intelligible justification.  Ground 1 fails to make out any jurisdictional error. 

16. Ground 2 is in substance an impermissible challenge to the adverse findings in fact made by the Tribunal that a combination of the relatives in Australia are able to provide assistance in accordance with reg.1.15AA(1)(e).  That adverse finding was open and it cannot be said to lack an evident and intelligible justification.  Ground 2 fails to make out any jurisdictional error. 

17. In relation to ground 3, for the reasons earlier identified, it was not just the limitations of the visa applicant’s English and driving that gave rise to the adverse finding. Ground 3 is an impermissible challenge to the adverse findings of fact made by the Tribunal. Ground 3 fails to make out any jurisdictional error. 

18. In relation to ground 4, the Tribunal’s reasons are orthodox and identify the relevant regulations applied.  The findings were open on the material before the Tribunal and those findings cannot be said to lack a logical basis on the evidence before the Tribunal.  There is no unreasonableness in the adverse findings made by the Tribunal.  The submissions filed on behalf of the applicant asserted that the Tribunal misunderstood the evidence or asked the wrong question. 

19. There is nothing on the face of the Tribunal’s decision to support that the Tribunal misunderstood the evidence nor is there anything to establish that the Tribunal asked itself the wrong question.  The submissions also suggest that the Tribunal made an erroneous assumption.  That proposition is in essence an impermissible challenge to the adverse finding of fact by the Tribunal in relation to the criteria that had to be met under reg.1.15AA(1)(f). 

20. The submissions otherwise in substance repeated the grounds in the application.  Nothing in the written submissions identified any jurisdictional error by the Tribunal.  Nothing said by the applicant’s daughter from the bar table identified any jurisdictional error.  The application is dismissed. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  20 May 2016