Nguyen v Minister for Immigration

[2015] FCCA 2980

FEDERAL CIRCUIT COURT OF AUSTRALIA

NGUYEN v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2980

Catchwords:
MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – whether the Tribunal failed to take into account a relevant consideration – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), reg.115AA, Schedule 2

Anveel & Ors v Minister for Immigration & Anor [2013] FCCA 2181
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9
Jajo v Minister for Immigration & Border Protection & Anor [2013] FCCA 1554; (2013) 281 FLR 269

Applicant: THI DE NGUYEN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1102 of 2014

Judgment of: Judge Nicholls

Hearing date: 16 July 2015

Date of Last Submission: 16 July 2015

Delivered at: Sydney

Delivered on: 6 November 2015

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: VietAust Lawyers

Counsel for the Respondents: Ms A Mitchelmore

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

2. The application made on 23 April 2014 and amended on 1 July 2015 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $6646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1102 of 2014

THI DE NGUYEN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 23 April 2014, and amended on 1 July 2015, seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), now the Administrative Appeals Tribunal, made on 19 March 2014, which affirmed the decision of the Minister’s delegate to refuse the grant of an Other Family (Migrant) (Class BO) (Carer) visa (“the visa”) to the visa applicant, the daughter of Mrs Thi De Nguyen (“the applicant”).

2. The evidence before the Court is contained in a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”).

Background

1. The applicant is an Australian citizen who was born in 1930 (over 82 years old at the time of the visa application) and suffers from a number of serious medical conditions which means that she requires personal care and attendance on a regular basis in relation to daily functions (see Medical and Social Workers’ reports at CB 204 to CB 222).

2. The evidence before the Court reveals, and there was no dispute between the parties, that the applicant has eight adult children, and a number of grandchildren living in Sydney. One of the applicant’s sons, Mr Chuc Nguyen, lives with her. He provides daily assistance. However, he is at work on week days from 2:00pm to midnight.

3. The visa applicant, who is 63 years old, is the applicant’s daughter and resides in Vietnam. She is married and has two dependent children over the age of 18 years (CB 7 and CB 10). She applied for the visa on 28 September 2012 (CB 1 to CB 37 and [2] at CB 533). She was sponsored for the visa by the applicant, as were three members of the visa applicant’s nuclear family. The basis for the sponsorship and the visa application was for the visa applicant to be allowed to come to Australia to care for the applicant.

4. A key criterion for the grant of the visa was that “…the [visa] applicant claims to be a carer of an Australian relative of the [visa] applicant” (cl.116.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”)). The term “carer” which is defined, relevantly, in reg.1.15AA(1)(e)(i) of the Regulations, requires that in order to satisfy the definition the following condition must be satisfied:

   “(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;…”

5. The application for the visa was accompanied by Statutory Declarations from each of the applicant’s children living in Sydney (including Mr Chuc Nguyen) and some of her grandchildren. The Statutory Declarations set out their individual difficulties in providing care for the applicant. The relatives in Australia all supported, and endorsed, the visa applicant as a full time carer for the applicant (CB 237 to CB 355).

6. The Minister’s delegate refused the visa application and notified the applicant on 7 January 2013 (CB 391 to CB 405). In essence, the delegate’s decision turned on the finding that reg.1.15AA(1)(e)(i) of the Regulations was not satisfied because, in the circumstances presented, the applicant had a large family in Australia who could, reasonably, be expected to provide the care the applicant needed.

7. The applicant applied to the Tribunal for review of the delegate’s decision on 25 February 2013 (CB 406 to CB 416). Further Statutory Declarations were provided by some of the relatives who had previously provided Statutory Declarations. These, in essence, updated the relevant circumstances (CB 444 to CB 509). A firm of solicitors who were also migration agents were appointed to represent the applicant on 24 February 2014 (CB 439).

8. The applicant appeared at a hearing before the Tribunal on 3 March 2014. She was accompanied by her representative. A number of persons also gave evidence including the visa applicant and Mr Chuc Nguyen (CB 528 and [11] at CB 534 to [25] at CB 536).

9. Relevantly, Mr Chuc Nguyen’s evidence was that he was unable to provide care for his mother during the time he was at work. Further, that working and taking care of his mother “…was overwhelming and exhausting…” ([16] – [18] at CB 535).

10. The Tribunal found that reg.1.15AA(1)(e)(i) of the Regulations was not satisfied. In reaching this conclusion the Tribunal accepted that the applicant’s relatives in Australia had various work, study, family and financial commitments. It also accepted that Mr Chuc Nguyen found it difficult to balance work and care commitments.

11. However, the Tribunal was not satisfied that these other relatives could not provide assistance when Mr Chuc Nguyen was at work. In reaching this finding the Tribunal had specific regard to the evidence of the applicant’s children and, particularly, to that of Mr Chuc Nguyen. At [38], the Tribunal referred to some of the relatives’ evidence, and to the following extract of Mr Chuc Nguyen’s evidence (at CB 538):

    “In her statutory declaration, Oanh states that she has 6 children and works long hours, including sometimes on the weekends. She states, however, that she visits from time to time and assists with ‘whatever’ she can. In her statutory declaration, Thi Minh Chau states that she does not get along with the review applicant. However, she states that she sometimes visits the review applicant and drives her to see treating doctors when she has time.  In her statutory declaration, Thi Ngoc Linh states that she manages her own business and looks after three children ranging in age from 5 to 19 years. The Tribunal is not satisfied that they cannot reasonably provide assistance, given their own evidence regarding the assistance they provide and the evidence of Chuc, who states in his statutory declaration:

    My sisters Oanh or Chau or Linh also come round to help her with medication or having a shower or going to bathroom. They also help mum with dinner sometimes. They bring dinner from their home to her or prepare it at my house.”

12. Further, the Tribunal was not satisfied that Mr Chuc Nguyen could not continue to provide the care required while he was not at work. The Tribunal stated (at [42] – [43] at CB 539):

    “[42] While sympathetic to Chuc, who is overwhelmed and exhausted, based on the evidence before it, the Tribunal finds that he is providing the review applicant with assistance, including taking her to the doctors, overseeing her medication, doing the housework and helping her with matters of personal hygiene. The Tribunal is not satisfied that he cannot reasonably provide the assistance, given that he lives with the review applicant and he is receiving assistance from his siblings.

    [43] While the Tribunal notes that Chuc undertakes shift work from 2 pm until 12 am, the Tribunal is not satisfied that the assistance cannot reasonably be provided by the review applicant’s other Australian relatives during this period of time.”

Application Before the Court

1. There is one ground in the amended application, in the following terms:

   “The Tribunal erred in failing to consider the full circumstances relevant to the ability of the applicant’s relatives to provide her with the assistance that was necessary to enable her to attend to the practical aspects of daily life, that being a consideration relevant to the exercise of the Tribunal’s jurisdiction.

   Particulars

   (a) Failure to consider the ability of the applicant’s relatives to be present to assist the applicant during the hours when the applicant’s son, Chuc Nguyen, was at work.

   (b) Failure to consider the ability of the applicant’s relatives, other than Chuc Nguyen, to be present to assist the applicant overnight.”

Consideration

1. There was no dispute between the parties as to the applicable law. With reference to Anveel & Ors v Minister for Immigration & Anor [2013] FCCA 2181 at [61] – [62] (“Anveel”) both parties agreed that the relevant test for reg.1.15AA(1)(e)(i) was as follows:

   “[61] This does not mean that it is not necessary to look at what care is actually required by the person needing care, in this case Mrs Rawaini. But it also requires consideration of whether the care can be reasonably ‘provided’ by the Australian relatives, which requires a focus on whether they cannot reasonably provide it, from their perspective.

   [62] It is important to note that the relevant test at reg.1.15AA(1)(e)(i) of the Regulations is stated in the negative. It is not whether the care ‘can’ be ‘provided’, it is whether it ‘cannot’ be provided by the Australian relatives. The focus of the Tribunal therefore must be on the reasons as to why the relatives cannot provide the care.”

2. In short, as the applicant submits, attention is directed to the specific care required by the sponsor of the visa and whether the Australian relatives cannot reasonably provide that care.

3. The applicant does not complain that the Tribunal did not refer to the correct test. Rather, the dispute between the parties centres on the applicant’s assertion that the Tribunal failed to consider the entire circumstances relevant to the ability or otherwise of the applicant’s Australian relatives, in light of her needs, to provide her with the assistance necessary. That lack of consideration was said to reveal jurisdictional error.

4. The applicant’s submission was that the applicant requires full time care given the level of her various losses of function and mobility. Her son Mr Chuc Nguyen cannot provide full time care, as stated above, because he works on weekdays from 2:00pm to midnight and is “exhausted” when he comes home.

5. The applicant also referred variously to the evidence of the other relatives who, for a variety of reasons, were said to reasonably be unable to provide the care necessary for the times Mr Chuc Nguyen is at work. While some of the Australian relatives do provide some care, it is not sufficient to meet the applicant’s needs.

6. The applicant argued that while the Tribunal had regard to the evidence that Mr Chuc Nguyen’s sisters (Oanh Thi, Thi Minh Chua and Thi Ngo Linh) provide some assistance, it accepted that all the relatives also had family and work commitments (see [34] at CB 537).

7. The applicant’s complaint, is that taking into account what was not in dispute, that is Mr Chuc Nguyen’s absence at work, the Tribunal did not consider how the applicant would receive care and assistance while he was at work. This was in circumstances where no other relative was able to be with her, particularly during the hours, and late at night, when Mr Chuc Nguyen was absent.

8. The applicant submitted that the central issue to arise from this complaint is that the Tribunal found that the applicant needed constant care at all times but did not assess whether the relatives could not provide care as against this finding.

9. It must be said one part of the Tribunal’s analysis causes some initial difficulty. That is, its reference to “24/7” as it first appears at [33] (at CB 537). In its analysis the Tribunal had regard to the relevant “MHS” Certificate (the “Carer Visa Certificate Assessment”, see at CB 210). It found “…[a]lthough not stipulated in the MHS certificate, the Tribunal gives the review applicant the benefit of the doubt and accepts that she generally requires 24/7 care” ([33] at CB 537).

10. It is to be remembered that the starting point for the Tribunal’s analysis must be what is actually relevantly required by the applicant. The Tribunal accepted the matters put forward as to her medical condition and needs.

11. The difficulty is when it came to assess whether the Australian relatives could not reasonably meet those needs, the Tribunal’s reference to “24/7” leaves unclear the temporal extent to which the applicant’s needs extend. This temporal dimension is part of the context against which the relatives’ circumstances, as to why they could not provide care, was to be considered and assessed.

12. The Tribunal’s exact words (at [33] at CB 537) were that the applicant “generally requires 24/7 care”. The applicant submitted that the term “24/7” should be taken at face value to mean that she needs constant care at all times, including those times when Mr Chuc Nguyen is at work and the other relatives are unable to be with the applicant.

13. The Minister submitted that the term “24/7” is qualified by the word “generally” as it appears in [33] immediately before the reference to “24/7” (at CB 537). That is, the Tribunal’s finding was that the applicant “generally requires 24/7 care”. The Minister submitted this allowed for the understanding that while the need for care required is high, and certainly the Tribunal accepted at a higher level than stipulated in the MHS Certificate, the word “generally” means that the need is not required for “every minute of every day”. That is, the need is considerable in terms of time required to meet the need, but not constant, without some temporal gaps.

14. This case illustrates the difficulty with the use of colloquial terms by a Tribunal which, in the circumstances of this case, can be described as infelicitous. However, that of itself does not reveal jurisdictional error. It is the case that Tribunal decisions are to be read fairly, including holistically (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). However, this does not mean that any ambiguity can be simply explained on this basis (SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9).

15. In my view, the Tribunal’s language at [33] (at CB 537), does of itself, create some uncertainty. The question is whether on a fair and holistic reading of its analysis that uncertainty can be explained and unambiguously resolved.

16. The Tribunal noted the applicant’s circumstances in living with Mr Chuc Nguyen and that she had seven other children living in Sydney. It said it had regard to their Statutory Declarations and accepted they all had various commitments ([34] at CB 537). The Tribunal had regard to the relevant test. There is no error in its expressed understanding of it ([35] at CB 538).

17. The Tribunal then had regard to what each of the relatives said as to why they could not provide the care needed. The Tribunal noted that four of the relatives (Hoa Minh Nguyen, Oanh Thi, Thi Minh Chua and Thi Ngo Linh) all stated that they could not care for the applicant on a “full time basis”.

18. The Tribunal made particular reference to what was stated by Hoa Minh Nguyen in his Statutory Declarations ([37] at CB 538, and see CB 246 to CB 247). It appears that the term “24/7” had its genesis in Hoa Minh Nguyen’s Statutory Declaration ([7] at CB 245):

    “I love my mother and I am always willing and making effort to care for Mum despite work commitments, and family obligations. However, putting the sentimental issue and willingness aside and focusing on the real and practical issue that whether I or my siblings can care for her as required. My view is to properly care for her, one of us must stay with her 24/7. It also means one of us must give up our work/job that provides use our livings…”

    [Emphasis in original.]

19. The Tribunal noted what was said regarding the inability of some of the relatives to give up their work to care for their mother. The Tribunal rejected this proposition and found ([37] at CB 538):

    “Hoa Minh, Oanh Thi, Thi Minh Chau and Thi Ngoc Linh state in their statutory declarations that they cannot care for the review applicant on a full-time basis. Hoa states in his statutory declaration that in his view, in order to properly care for the review applicant one of the children must stay with the review applicant 24/7 and must give up their work. The Tribunal finds that their claim that the assistance cannot be provided because the person providing the care must remain with the review applicant 24/7 and give up their work is not reasonable. The assistance can be derived from a number of Australian relatives.”

20. The applicant now does not take issue with the Tribunal’s finding that care does not have to be provided by any one of the relatives. The assistance can be provided as an aggregate contribution by all or some of the relatives (Jajo v Minister for Immigration & Border Protection & Anor [2013] FCCA 1554; (2013) 281 FLR 269). There is no legal error in the Tribunal’s finding in this regard.

21. The Tribunal’s reference to “24/7” at [33] (at CB 537) can therefore be fairly seen, particularly in light of [37] (at CB 538), as the Tribunal seeking to address the argument made to it, in a sense, by all the relatives, but with specific reference to “24/7” by Hoa Minh Nguyen.

22. The Tribunal then (at [38] at CB 538) specifically addressed what was relevantly said by the other three relatives, which it named at [37] (at CB 538, see the findings at [38] at CB 538, at [13] above). The Tribunal squarely addressed the issue raised Mr Chuc Nguyen. That is, that he is absent at work on weekdays between 2:00pm and midnight.

23. In this light also, the Tribunal also had regard to the evidence of Hoa Minh Nguyen. He relevantly states in his Statutory Declaration that he visits his mother on weekends, and gave no reason as to why he could not continue to do so ([39] at CB 538). In context, this addresses the argument raised by the applicant that Mr Chuc Nguyen is exhausted by the care he gives and his work commitments. The import of the Tribunal’s finding is that, in addition to care during the week being given by three of the sisters (as at [37] – [38] at CB 538), Hoa Minh Nguyen can provide assistance on weekends.

24. The Tribunal also had regard to the particular circumstances of Joseph Hien Minh Nguyen (one of the applicant’s sons) and accepted that he could not reasonably provide the care needed ([41] at CB 539). The Tribunal’s conclusion was at [42] – [43] (at CB 539, see above at [13]).

25. On balance, when fairly read, the Tribunal’s reference to “generally 24/7” was meant to address the “argument” raised by the relatives that their mother needed full time care. In context, the term “generally 24/7” can reasonably be understood to mean full time care, but not necessarily care for every minute of every day of the week.

1. In any event, the Tribunal’s “second” reference to “24/7” at [37] of its decision record (at CB 538) may be reasonably and fairly read as a reference to the claim that someone was required to provide the care at all times. The Tribunal found that this claim was not reasonable given the number of relatives in respect of whom it was not persuaded could not provide such care.

2. While at [33] (at CB 537), the Tribunal accepted that the applicant “generally” required care “24/7”, at [37] (at CB 538) there is no reference to “generally”. The Tribunal rejected the claim raised by the relatives that the care requirement was constant and would require one of them to give up their work to provide that care. These findings were all reasonably open to the Tribunal to make on what was before it. No jurisdictional error is revealed.

Conclusion

1. The applicant’s ground is not made out. The application should be dismissed. I will make an order accordingly.

I certify that the preceding forty-three(43) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 6 November 2015