Nguyen v Minister for Immigration
[2019] FCCA 3317
•21 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NGUYEN v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3317 |
| Catchwords: MIGRATION – Application for carer’s visa – failure to satisfy residency requirement on the part of sponsor – where, in the circumstances of the case, that constituted a failure to satisfy criteria necessary for the grant of the visa – application dismissed. |
| Legislation: Migration Act 1958 (Cth.), s.476. Migration Regulations 1994 (Cth.), rr.1.03, 1.12, 1.15AA, Sch.2 cl.836.1, 836.111, 636.2, 836.21, 836.211, 836.212, 826.213. Acts Interpretation Act 1901 (Cth.) s.15AA. |
| Cases cited: Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 24. |
| Applicant: | THI VE NGUYEN |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 42 of 2019 |
| Judgment of: | Judge Egan |
| Hearing date: | 15 November 2019 |
| Date of Last Submission: | 15 November 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 21 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Boccabella |
| Solicitors for the Applicant: | T Lawyers |
| Counsel for the Respondents: | Mr A. Psaltis |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.’
The application for review filed on 15 January 2019 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 42 of 2019
| THI VE NGUYEN |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTRAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a Vietnamese citizen. She has been caring for her mother (the Mother) since September 2013. The Mother is an Australian citizen.
On 27 May 2014 the applicant applied for Class BU visa as a carer. [1] Relevant features of that application were as follows:
·the applicant specified that her application was as a carer in Australia (answer to question 2);
·the applicant’s address was recorded as being in Forest Lake, Queensland (answer to question 23);
·the relative in Australia in need of care was specified as being the Mother (answer to question 65) who also lived at the Forest Lake address.
[1] Court Book (CB) pages 727 – 745 inclusive.
A sponsorship form in Form 40 was filled out by the applicant’s sister (the Sister), as a sponsor, and that form was dated 6 October 2014. The form recorded that the Sister’s address was at an address other than the address nominated as being the address of the applicant and the Mother. (Whether the Sister’s address was different from the address of the applicant and the Mother as at 27 May 2014 when the applicant made application for the visa was unknown.)
There was no dispute that the Mother qualified for care. A Medibank Carer Visa Assessment Certificate had been issued confirming that fact. [2]
[2] CB page 717.
A delegate to the Minister refused to grant the carer visa on the ground that the Sister was not ordinarily resident in the household of the Mother at the time of the making of the carer visa application.
On 14 December 2015, the Administrative Appeals Tribunal (the Tribunal) heard evidence and received further submissions. On 23 February 2016 the Tribunal affirmed the decision of the delegate.
On 28 February 2017 the decision of the Tribunal was quashed by order of the Federal Circuit Court. An appeal by the Minister from such decision was dismissed by the Full Court of the Federal Court on 20 September 2017.
After remission of the application back to the Tribunal, the Tribunal heard further evidence and arguments on 4 December 2018. The Tribunal affirmed the decision of the delegate, finding that because the Sister was not a resident in the Mother’s home at the time of the making of the visa application, clauses 836.212 and 836.213 to Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations) had not been satisfied.
On 15 January 2019 the applicant filed an application for review of the decision of the Tribunal pursuant to the provisions of s. 476 of the Migration Act 1958 (Cth)(the Act).
The Grounds for review relied upon by the applicant as set out in the application for review were as follows:
“Grounds of application
1. The second respondent misapplied and misinterpreted clause 836.212 of Schedule 2 to the Migration Regulations 1994.
2. The second respondent misapplied and misinterpreted Reg 1.15AA to the Migration Regulations 1994.
3. The decision of the second respondent was unreasonable.
4. In reaching its decision the second respondent took into account irrelevant considerations.
5. In reaching its decision the second respondent failed to take into account relevant considerations.
6. The second respondent’s decision was an improper exercise of power.
7. The second respondent’ decision was not in accordance with the law.”
Relevant to a consideration of the above Grounds of Review are the following definitions:
Regulation 1.03 of the Migration Regulations
Definitions:
close relative, in relation to a person, means:
(a) the spouse or de facto partner of the person; or
(b) a child, parent, brother or sister of the person; or
(c) a step‑child, step‑brother or step‑sister of the person.
relative, in relation to a person, means:
(a) in the case of an applicant for a Subclass 200 (Refugee) visa or a protection visa:
(i) a close relative; or
(ii) a grandparent, grandchild, aunt, uncle, niece or nephew, or a step‑grandparent, step‑grandchild, step‑aunt, step‑uncle, step‑niece or step‑nephew; or
(iii) a first or second cousin; or
(b) in any other case:
(i) a close relative; or
(ii) a grandparent, grandchild, aunt, uncle, niece or nephew, or a step‑grandparent, step‑grandchild, step‑aunt, step‑uncle, step‑niece or step‑nephew.
Note: Close relative is defined in this regulation: see above.
Regulation 1.12 of the Migration Regulations
Member of the family unit
(1) For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:
(a) a spouse or de facto partner of the family head; or
(b) a dependent child of the family head or of a spouse or de facto partner of the family head; or
(c) a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or
(e) a relative of the family head or of a spouse or de facto partner of the family head who:
(i) does not have a spouse or de facto partner; and
(ii) is usually resident in the family head’s household; and
(iii) is dependent on the family head.
Regulation 1.15AA of the Migration Regulations
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 (within the meaning of subsection 23(1) of the Social Security Act 1991), 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.
(2) A certificate meets the requirements of this subregulation if:
(a) it is a certificate:
(i) in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and
(ii) signed by the medical adviser who carried it out; or
(b) it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures.
(3) The Minister is to take the opinion in a certificate that meets the requirements of subregulation (2) on a matter mentioned in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer.
Schedule 2 to the Migration Regulations
Subclass 836 – Carer
836.1—Interpretation
Clause 836.111
In this Part:
Australian relative means a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
Note: dependent child, eligible New Zealand citizen and settled are defined in regulation 1.03, and carer is defined in regulation 1.15AA.
Clause 836.2—Primary criteria
Note: The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need only satisfy the secondary criteria.
Clause 836.21—Criteria to be satisfied at time of application
Clause 836.211
The applicant is:
(a) the holder of a substantive visa (other than a Subclass 771 (Transit) visa); or
(b) a person who:
(i) is not the holder of a substantive visa; and
(ii) immediately before ceasing to hold a substantive visa, was not the holder of a Subclass 771 (Transit) visa; and
(iii) satisfies Schedule 3 criterion 3002.
Clause 836.212
The applicant claims to be the carer of an Australian relative.
Clause 836.213
The applicant is sponsored
(a) by the Australian relative, if the Australian relative:
(i) has turned 18; and
(ii) is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and
(iii) is usually resident in Australia; or
(b) by the spouse or de facto partner of the Australian relative, if the spouse or de facto partner:
(i) has turned 18; and
(ii) is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and
(iii) is usually resident in Australia; and
(iv) cohabits with the Australian relative.
Much argument at the hearing of the application for review concerned whether the words “the Australian relative”, as used in cl. 836.213, in the present context, could only refer to the Mother (with whom the applicant lived at the time of the making of the application) as opposed to the Sister (in her capacity as the applicant’s sponsor).
The Court finds that the applicant was a “Carer” as defined in r. 1.15AA of the Regulations. The “person”, for the purposes of r. 1.15AA(1), was the Mother who:
· was an Australian citizen usually resident in Australia;
· was a close relative of the applicant;
· satisfied the criteria as set out in r. 1.15AA(1)(b) of the Regulations;
· satisfied the requirements of sub-regulations (ba), (c), (e) and (f) of r. 1.15AA(1).
Notwithstanding the concession made by Counsel for the first respondent that a sponsor, in circumstances such as the present:
(a)had to be a person;
(b)had to be an Australian citizen; and
(c)had to be a relative of the applicant.
the Court finds that:
(d)though the applicant had claimed to be the carer of an Australian relative (namely the Mother) in compliance with cl. 836.212;
(e)the reference to “the Australian relative”, as referred to in cl. 836.213(a), could only be satisfied if that person – in this case the Sister – was a person who relevantly fell within the definition of “member of the family unit” in cl. 1.12 of the Regulations.
Section 15AA of the Acts Interpretation Act 1901 (Cth) provided as follows:
Interpretation best achieving Act’s purpose or objects
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
When considering the interpretation which would best achieve the purpose or object of the Act, the Court is mindful of the requirement to also have due regard to the actual words used in acts, regulations and other instruments, and of the ordinary meaning of such words. On the argument advanced by Counsel for the first respondent, the Sister could only be a valid sponsor if she had lived in the same dwelling as the Mother at the time of the making of the visa application. That argument was based upon the submission that the requirements of cl. 1.12 were clear as to what qualifying factors had to be met.
Such argument was advanced notwithstanding that the applicant had lived continuously with the Mother since 2014, as her carer, and that the Sister had lived nearby.
However, the note to cl. 836.2 referred to the mandatory requirement that the primary criteria to be satisfied at the time of the making of the application must be satisfied by a person who was a member of “a family unit”. Clause 836.213 was unable to be satisfied. The sponsor was not usually a resident in the Mother’s household, nor was the applicant a dependent of the Mother as the word dependent is defined in r. 1.05A(1) of the Regulations. That definition is as follows:
Regulation 1.05A
Dependent
(1) Subject to subregulation (2), a person (the first person) is dependent on another person if:
(a) at the time when it is necessary to establish whether the first person is dependent on the other person:
(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or
(b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.
(2) A person (the first person) is dependent on another person for the purposes of an application for:
(d) a protection visa; or
(ea) a Refugee and Humanitarian (Class XB) visa; or
(i) a Temporary Safe Haven (Class UJ) visa;
if the first person is wholly or substantially reliant on the other person for financial, psychological or physical support.
As to the question of whether the Tribunal properly interpreted the term “usually resident” in r. 1.12(1)(e)(ii), the Court finds that the Tribunal clearly considered matters relevant to that question. It referred to the test as set out in Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241 at [249] in that regard. The Tribunal drew a distinction between the Sister’s continuity of association with the Forest Lake house, and her lack of continuity of residence in such house. The Tribunal engaged on the issue appropriately.
For those reasons, Grounds 1, 2 and 7 of the application for review are without merit.
As to Ground 3 of the application for review, the Tribunal was painstaking in its analysis of all of the relevant facts before it. It carefully considered the arguments advanced on behalf of the applicant. [3]
[3] Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429 at [25] – [27] per French
CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
It cannot be said that no other rational or logical decision maker could not have made the same decision as did the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King 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 SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210, when discussing whether jurisdictional error had been demonstrated where some factual findings had been made which were either irrational or illogical, Wigney J, at [52] and [55], said:
“[52] As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or rationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 (at [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
…
[55] Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].”
As to Grounds 4 and 5 of the application for review, the Tribunal dealt at length with the issue as to whether the term “member of the family unit” had been satisfied or not. In doing so, the Tribunal closely considered the question of residence, and what was meant by the term “usually resident”. It appropriately dealt with that aspect of the applicant’s claims.
Further, the Tribunal dealt with the question as to whether or not the applicant was the carer of the Mother at the time of the making of the visa application. It made the finding that the applicant had been caring for her since September 2013. Grounds 4 and 5 of the application for review are without merit.
Ground 6, un-particularised as it is, is without merit. The Tribunal appropriately dealt with all relevant questions before it and made a decision which was open to it. The applicant has not demonstrated that the Tribunal engaged in an improper exercise of power.
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The application for review is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 21 November 2019
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Statutory Construction
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