Pham v Minister for Immigration
[2013] FMCA 29
•23 January 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PHAM v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 29 |
| MIGRATION – Other Family (Migrant) (Class BO) visa, subclass 116 (Carer) – whether Tribunal complied with s.359A(1) of the Migration Act 1958 – where letter sent by Tribunal but no response received – deemed receipt – no error – unreasonableness – no error. |
| Migration Act 1958 (Cth), ss.359A, 359A(1), 359A(2)(a), 379A(5), 379C(5), 424A, 474, 476 Migration Regulations 1994 (C’th), reg. 1.15AA, 1.15AA(1)(f), cl.116.221 of Schedule 2 |
| Minister for Immigration and Multicultural Affairs; Re: Ex parte Applicant S20/2002 (2003) 198 ALR 59 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163 Tenorio v MIMA [2001] FCA 917 Xiang v MIMIA [2004] FCAFC 64 Xie v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCAFC 172 |
| Applicant: | NHAM VAN PHAM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 254 of 2012 |
| Judgment of: | Jarrett FM |
| Hearing date: | 24 May 2012 |
| Date of Last Submission: | 24 May 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 23 January 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Nguyen |
| Solicitors for the Applicant: | Southside Lawyers |
| Counsel for the first Respondent: | Mr Bickford |
| Solicitors for the first Respondent: | Clayton Utz |
| The second Respondent entered a submitting appearance |
ORDERS
The application filed on 19 March, 2012 is dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,240.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 254 of 2012
| NHAN VAN PHAM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) for review of a decision of a migration review tribunal to affirm a decision of a delegate of the first respondent not to grant Other Family (Migrant) (Class BO) visas to the primary visa applicant Thi Hong Hiep Pham and her spouse and two children. Ms Pham, her spouse and children all reside in Vietnam.
This application for review is advanced by Mr Nhan Van Pham, who is not one of the visa applicants, but who is the sponsor of the primary visa applicant, Ms Thi Hong Hiep Pham. Ms Pham is Mr Pham’s niece and he seeks that she should be his carer here in Australia.
Mr Pham’s grounds of review are:
a)The Tribunal “fell into jurisdictional error in that it failed to accord the applicant’s procedural fairness by breaching its statutory duty, namely the mandatory obligation imposed on the Tribunal to provide adverse information in writing ‘in all circumstances,’ as per section 359A of the Migration Act 1958 and its application in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24”; and
b)“The Tribunal fell into jurisdictional error in that it incorrectly applied that (sic) decision of a superior court and made unreasonable findings concluding that the visa applicant is not willing and able to provide her assistance for the Applicant”.
The parties agree that the decision of the Tribunal is a privative clause decision within the meaning of s.474 of the Act and is therefore prima facie not reviewable by this Court. However, the decision of the Tribunal will be reviewable by this Court if Mr Pham establishes that the decision was tainted by jurisdictional error or he establishes that the Tribunal went beyond jurisdiction in making its decision.
Background to application for review
Mr Pham is aged 72 and has limited mobility as a result of suffering a stroke some time ago. He is deaf and has cardiac problems. He cannot dress or wash himself without assistance, has limited communication abilities, needs help toileting and tends to fall asleep easily. Health Services Australia has certified that Mr Pham has a medical condition which is causing physical impairment of his ability to attend to the practical aspects of daily life. He has a need for direct assistance with the practical aspects of daily life.
Ms Pham applied to the first respondent’s department on 31 October, 2008 for Other Family (Migrant) (Class BO) visas for herself, her spouse and her two children. The application was sponsored by Mr Pham.
An invitation to attend an interview with a visa officer at the Australian Consulate General in Ho Chi Minh City was sent to Ms Pham on 22 January, 2009. She attended that interview on 17 February, 2009.
The Australian Consulate-General sent notification on 16 November, 2009 of the delegate’s decision made 13 November, 2009 to refuse to grant the visas.
Mr Pham made an application for review to the Tribunal on 12 February, 2010. The Tribunal sent an invitation to appear before the Tribunal to Mr Pham by facsimile on 29 November, 2011. He returned a completed Response to Hearing Invitation on 14 December, 2011 indicating that he and his representative would attend the hearing. The Tribunal conducted a hearing on 16 December, 2010 at which Mr Pham attended.
The Tribunal sent an invitation to comment or respond to information to Mr Pham’s representative by facsimile on 18 January, 2012. The Tribunal did not receive a response to this invitation.
The Tribunal notified Mr Pham of the Tribunal’s decision to affirm the delegate’s decision to refuse the grant of the visas by facsimile on 17 February, 2012.
On 19 March, 2012 Mr Pham made an application to this Court for review of the Tribunal’s decision.
Legislative framework
The Minister may only grant a visa if the Minister is satisfied that the criteria described for that visa by the Act and the Migration Regulations 1994 have been satisfied. The relevant criteria for an Other Family (Migrant) (Class BO) visa, subclass 116 (Carer) are set out in Part 116 of Schedule 2 of the Regulations.
The primary criteria to be satisfied at the time of the application are as follows:
a)The visa applicant must claim to be a ‘carer’ of an Australian relative of the visa applicant;
b)The visa applicant must be sponsored at the time of application by the Australian relative or the Australian relative’s spouse who has turned 18.
The primary criteria to be satisfied at the time of the decision are as follows:
a)The visa applicant is a carer of the Australian relative mentioned;
b)The sponsorship has been approved by the Minister and is still in force;
c)The visa applicant and family members satisfy certain public interest criteria;
d)The visa applicant satisfies certain passport requirements.
For the purposes of the Carer visa, Australian relative is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
There is no dispute that Mr Pham was an appropriate sponsor for Ms Pham’s visa application or that she was a relative of his for the purposes of the visa criteria.
The issue that concerned the Tribunal was that Ms Pham was not within the definition of carer for the purposes of the Regulations.
The term carer is defined in reg.1.15AA of the Regulations as follows:
(1) An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:
(a) the applicant is a relative of the resident; and
(b) according to a certificate that meets the requirements of subregulation (2):
(i) a person (being the resident or a member of the family unit of the resident) has a medical condition; and
(ii) the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and
(iii) the impairment has, under the Impairment Tables, the rating that is specified in the certificate; and
(iv) because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and
(c) the rating mentioned in subparagraph (b) (iii) is equal to, or exceeds, the impairment rating specified by Gazette Notice 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 obtained:
(i) from 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.
The Tribunal’s decision to affirm the delegate’s decision not to grant the visas was based on a finding that Ms Pham did not satisfy the requirements of cl.116.221 of Schedule 2 to the Regulations. In particular, the Tribunal was not satisfied that Ms Pham was a carer of Mr Pham for the purpose of the Regulations. It found that she was not willing and able to provide to Mr Pham substantial assistance of the kind needed within the meaning of reg1.15AA(1)(f) of the Regulations. More specifically, the Tribunal found that Mr Pham needed assistance with travelling to medical appointments by car, and that Ms Pham was not possessed of a driving licence nor any familiarity with Brisbane streets and so, the Tribunal was not satisfied that Ms Pham was willing or able to provide to Mr Pham substantial and continuing assistance of the kind needed by him.
Ground 1 – Procedural fairness under s.359A Migration Act 1958 (Cth)
The applicant argues that the Tribunal fell into jurisdictional error in that it failed to accord Mrs Pham procedural fairness. It did that, it is argued, by breaching the mandatory obligation imposed on the Tribunal to provide adverse information in writing to Ms Pham as required by s.359A of the Act. The argument is based upon the premise that, whilst the Tribunal sent a letter to Ms Pham containing an invitation to comment on information which might be the reason or part of the reason for affirming the decision under review, she says that she, nor her agent, ever received the letter and was thereby deprived of the opportunity to respond to it.
The letter, sent on 18 January, 2012 put certain information to Mr Pham and asked him to comment on it. The request was made in writing and was sent by facsimile to Mr Pham’s representatives, who are his solicitors on this review. In submissions, the applicant’s Counsel conceded that the letter and the invitation to comment on information was sent as the first respondent contends.
Mr Pham relies on the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 to suggest that the Tribunal breached the requirements of procedural fairness and the statutory requirements set out in s.359A(1) in the conduct of its review, because it did not ensure that Mr Pham commented upon the adverse information contained in the request for a response to the adverse information.
SAAP stands for the proposition that s.424A of the Act (which is a mirror provision of s.359A applying to the Refugee Review Tribunal) is a mandatory provision of the Act such that a breach of the requirements s.424A will cause the Tribunal to fall into jurisdictional error. SAAP has been applied in the context of s.359A(1) and where breached, has led to the identification of jurisdictional error in a tribunal’s decision.
The issue in the present case is whether s. 359A(1) has been breached.
Section 359A(1) of the Act requires that the Tribunal must:
a)provide 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”;
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.
By reason of s.359A(2)(a) and s.379A(5) of the Act the invitation must be given in writing which may be transmitted by fax, email or other electronic means.
The documents in the Court Book reveal that the Tribunal sent an invitation to comment and respond to information to Mr Pham’s representatives on 18 January, 2012. The Court Book contains a transaction report at page 24 which purports to show that the invitation and covering letter was transmitted successfully by facsimile to the fax number of the Applicant’s authorised representative on that day. Mr Pham did not take issue with the proposition that the request to comment and covering letter was sent by facsimile to his representatives by the Tribunal. His case is that the documents were never received by his representatives.
On 17 February, 2012, the Tribunal sent a letter and a copy of the Tribunal’s decision to affirm the delegate’s decision to refuse the relevant visas to Mr Pham’s representatives by facsimile to the same facsimile number as that to which the invitation to comment was sent. That drew a response on the same day from Mr Pham’s representatives to the effect that the invitation to comment referred to in the Tribunal’s reasons for decision had never been received by the representatives. They asked that the Tribunal’s decision be set aside, a copy of the invitation to comment be given to them and time be allowed for a response to the invitation. That request was refused by the Tribunal.
There is no sworn evidence from Mr Pham’s representatives demonstrating that the relevant facsimile of 18 January, 2012 was not received. There are no facsimile transaction reports from the representatives demonstrating no communication from the Tribunal. The documents demonstrate that the relevant facsimile was sent to the appropriate facsimile number of Mr Pham’s authorised representative.
Section 379C(5) of the Act provides that where a document is given to a person by a method in s.379A(5), the person is taken to have received the document at the end of the day on which the document is transmitted. Section 379C(5) of the Act has the effect that the Applicant’s authorised recipient was deemed to have been received the facsimile dated 18 January, 2012 at the end of the day on 18 January, 2012. The deemed receipt is not rebuttable by evidence to the contrary. In Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550 Spender J considered s.494C(4) of the Act and said at [69]:
“The person is "taken to have received the document", in the circumstances of this case, seven working days after the date of the document. In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that the person was not taken to have received the document where the documents had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only "until the contrary is proved".
That approach was cited with approval by the Full Court of the Federal Court in Xie v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCAFC 172 at [14]. Moreover, in Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163 the Full Court of the Federal Court concluded that Xie was correct with the effect that s.379C(4) of the Act does not create a rebuttable presumption of fact.
Finally, on this topic Counsel for Mr Pham contended in oral argument that the sending of the invitation to comment on information after the conclusion of the hearing before the Tribunal had the potential to work an injustice against Mr Pham because there was no way of knowing for sure that the facsimile was sent and received as the first respondent contended. I was taken to no authority to support that contention, nor any part of the Act which was said to support the proposition. In any event, the contention is answered by reference to s.379A(5) of the Act.
In my view, Mr Pham has not established that the Tribunal breached s.359A of the Act and it follows from the above that Mr Pham’s first ground of review must fail.
Ground 2 – Unreasonableness
Mr Pham contends that the Tribunal fell into jurisdictional error in that it “incorrectly applied the decision of a superior court and made unreasonable findings in concluding that the visa applicant is not willing and able to provide her assistance for the Applicant”.
The particulars to that ground contend that the Tribunal considered that the transportation of Mr Pham to medical appointments constitutes a significant component of the care that he required. It is contended that the Tribunal incorrectly interpreted the decision of the Federal Court in Tenorio v Minister for Immigration & Multicultural Affairs [2001] FCA 917, because the Tribunal seemed to place the driving ability of Ms Pham as the sole determining factor in satisfying the requirement for transportation. It could have, but did not consider, other alternative means of transport, like taxis, assistance from other family members or other forms of public transport.
The Tribunal accepted that Mr Pham was in need of care. It accepted the assessments carried out by Health Services Australia and it accepted Mr Pham’s wife’s evidence that she provided the majority of the care for Mr Pham. She too was old and exhausted from caring for him. Mr Pham did not tolerate being in a nursing home and was much better settled at home. Although he had other children in Australia, none were willing or able to care for him. The Tribunal accepted that Mr Pham had to be taken to his doctor once per fortnight and that his wife would take him. He would remain in the car however and the doctor would examine him in the car.
The Tribunal found:
46. The review applicant has indicated that there are no other Australian relatives who are willing or able to care for him. Family members already resident in Australia have stated that they cannot care for him, because of their own work and family commitments. The review applicant’s wife cares for him presently but is suffering from health problems herself and feels she cannot keep going. The Federal Court in Lin v MIMlA [2004] FCA 606 held that the proper test requires a consideration of whether any relatives wish to provide assistance and not whether any relatives can reasonably provide it. The review applicant's niece has indicated that she is both able and willing to care for the review applicant and provide the assistance that the review applicant needs.
47. The responsibility of caring for the review applicant has been very draining on the review applicant's wife. Mrs Tran's evidence, which the Tribunal accepts, is that the review applicant needs help with meal preparation, ensuring he takes medication, toileting, bathing, dressing and feeding. He also needs to be taken to the doctor.
After considering the words of the Full Court of the Federal Court in Xiang v MIMIA [2004] FCAFC 64 and noting the relevant test had two parts, the Tribunal continued:
49. The Tribunal is satisfied that the first named visa applicant is willing to give assistance to the review applicant. It is apparent from the evidence that the first named visa applicant's formal skills are principally restricted to fish wholesaling and nail technology. She does not drive. It is likely that she could assist with the hygiene and feeding needs of the review applicant. The review applicant however also visits the doctor every fortnight and is presently taken to his appointments with difficulty by his wife. As the first named visa applicant does not drive, Mrs Tran would need to continue driving him to his medical appointments. While the first named visa applicant may be willing to learn to drive, it is not known how long it may take her to acquire those skills, or if indeed she will ever be able to learn to drive in Brisbane.
50. The Tribunal considers that the transportation of the review applicant to medical appointments constitutes a significant component of the care he requires. It further notes that this issue was considered by the Federal Court in Tenorio v MIMA [2001] FCA 917 (Emmett J, 16 July 2001) at [19] where the Court upheld the Tribunal’s decision stating:
the Tribunal concluded that the applicant was not capable of giving assistance to her father that was considerable or substantial, having regard to the nature of his needs. It is significant that the Tribunal observed that the applicant has no special training in nursing sick people. She was not familiar with the medicines that her father was taking, or what they were for. She is unable to drive and therefore is unable to take her father to hospital for the essential treatment that he requires. She would not even be able to take him to see the doctor if she were at home during the day.
51. On the basis of the evidence, the Tribunal is not satisfied that the first named visa applicant is willing and able to provide to her Australian relative substantial and continuing assistance of the kind needed and therefore does not meet the requirements of r.l.15AA(1)(f). the (sic) first named visa applicant does not have a driver's licence and is unfamiliar with Brisbane streets. While it is hoped she may gain driving skills in time, the first named visa applicant does not have those skills at present and is incapable of providing this assistance.
52. The Tribunal finds on the evidence provided that although the first named visa applicant, might be able to provide limited care for the review applicant, she is incapable of substantially meeting his needs.
The test for unreasonableness in administrative decision making was recently restated in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. At [102], [122] – [123] the High Court confirmed that unreasonableness in the exercise of a statutory power may constitute jurisdictional error so as to grant relief pursuant to s.75(v) of the Constitution. At [128] – [130] Crennan and Bell JJ observed that there was “undeniable semantic overlap” between notions of “irrationality,” “illogicality” and “unreasonableness” in decision making, and that all are essentially complaints of the same order. Their Honours went on to say at [131]:
The test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a review in court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Mr Pham argues that here, the Tribunal has not given relevant weight to other factors that could have been considered concerning transport options for him. He argues that the Tribunal did not take into consideration any other alterative transport and based its “argument” solely on the fact that the applicant cannot drive. Further, he argues that the Tribunal by basing its decision upon this matter alone “made unreasonable findings with regards to its interpretation of material facts of the case”. He argues that the Tribunal “made unreasonable assumptions relying on the applicant’s inability to not drive, not taking into account that there are other means of getting to point A and B”.
In my view, however, the Tribunal’s decision is not unreasonable in the sense set out by the High Court in SZMDS (above). The Tribunal made findings about, and recounted the various types of care that Mr Pham required. It was clearly alive to his needs, and in that respect, accepted the evidence led on his behalf about those matters.
Having done that, the weight to be given to that evidence and the way in which Mr Pham’s various needs ought to be classified was a matter entirely for the Tribunal. Certainly it is the case that minds might differ about the weight to be given to the various matters before the Tribunal and the ultimate conclusion arrived at by it, but the approach adopted by the Tribunal and the conclusions reached by it were capable of being drawn by the Tribunal from the evidence before it.
Although Mr Pham’s argument relied upon Minister for Immigration and Multicultural Affairs; Re: Ex parte Applicant S20/2002 (2003) 198 ALR 59 as authority for the proposition that an administrative decision may be reviewed on the ground of unreasonableness. Whilst SZMDS demonstrates that that is so, Gleeson CJ sounded a warning at [5] and said:
As was pointed out in Minister for Immigration v Eshetu to describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision-maker, and to identify the legal principle or statutory provision that attracts the suggested consequence.
(citations omitted)
I accept the first respondent’s argument that the Tribunal made a finding of fact that a significant component of the care required by Mr Pham is transportation to medical appointments. This finding of fact was open to the Tribunal on the available evidence, especially in light of the invitation to comment sent to Mr Pham’s authorised representative on 18 January, 2012 to which the Tribunal received no response.
As to the allegation that the Tribunal misapplied the decision of the Federal Court in Tenorio (above), in my view the Tribunal did not misconstrue that case. It, in fact, appears to have reached its conclusions in this matter without reliance upon any conclusion set out in Tenorio. The reference to Tenorio appears to have been by way of illustration.
I accept the first respondent’s argument that the Applicant has not established that the Tribunal’s decision was so unreasonable as to be affected by jurisdictional error and, hence, this ground of review must fail.
Conclusion
For the reasons set out above, the Applicant has not established that the Tribunal’s decision was affected by jurisdictional error.
The application filed 19 March 2012 must be dismissed with costs.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Date: 23 January 2013
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