Phan v Minister for Immigration

[2020] FCCA 3277

FEDERAL CIRCUIT COURT OF AUSTRALIA

PHAN & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 3277

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Other Family (Residence) (Class BU) visas – whether the Tribunal failed to determine the nature and extent of the sponsor’s care requirements – whether the Tribunal misconstrued reg. 1.15AA of the Migration Regulations 1994 (Cth) – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 477

Migration Regulations 1994 (Cth), reg.1.15AA

First Applicant: THI TUYET NHUNG PHAN

Second Applicant: PHUOC THO PHAN

Third Applicant: QUOC TAN PHAN

Fourth Applicant: QUOC TIEN PHAN PHAN

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 455 of 2020

Judgment of: Judge Street

Hearing date: 2 December 2020

Date of Last Submission: 2 December 2020

Delivered at: Sydney

Delivered on: 2 December 2020

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: Legal Edge Australia

Solicitors for the Respondents: Mr A Cunynghame, Sparke Helmore

ORDERS

1. Leave is granted to the applicant to rely upon the amended application attached to the affidavit of Dickran Yakenian of 3 November 2020 and the Court directs that it be electronically filed on or before close of business on 4 December 2020.

2. The time for the commencing of the proceedings is extended under s 477 of the Migration Act 1958 (Cth) up to and including 24 February 2020.

3. The amended application is dismissed.

4. The applicants pay the first respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 2 December 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 455 of 2020

THI TUYET NHUNG PHAN

First Applicant

PHUOC THO PHAN

Second Applicant

QUOC TAN PHAN

Third Applicant

QUOC TIEN PHAN PHAN

Fourth Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

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) (“the Act”), in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 13 August 2019 affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicants Other Family (Residence) (Class BU) visas. 

2. The first applicant is the primary applicant in the application, the second applicant is her husband, and the third and fourth applicants are her adult children included, purportedly, as members of the family unit.

3. The applicants applied for the visa on 24 June 2015. On 10 December 2017, the Delegate refused the grant of the visa on the basis that cl 836.221 was not met because the Delegate was not satisfied that the applicant was the carer of the sponsor, as defined by reg 1.15AA of the Migration Regulations 1994 (Cth) (“the Regulations”).

4. Specifically, the Delegate was not satisfied that the assistance required by the sponsor cannot reasonably be provided by any other relevant resident in Australia, or obtained from welfare, hospital, nursing or community services in Australia.

5. The applicant applied for a review and appeared before the Tribunal to give evidence and present arguments, on 23 July 2019. 

6. The Tribunal, in its reasons, identified the background to the review application and noted that the sponsor has four children, aged between 62 and 41, resident in Australia, with the first applicant being the only daughter, aged 52. 

7. The applicant and her family arrived in Australia on 12 February 2015, holding Visitor visas.

8. The Tribunal identified the submissions advanced in relation to cultural barriers and, in particular, special dietary requirements due to diabetes, and the contention that home and community services were not able to offer appropriate care for the sponsor, both during day and night. 

9. The Tribunal identified the Carer Visa Assessment Certificate dated 18 May 2015 that had been provided in respect to the sponsor having multiple medical conditions, including a severe neurocognitive disorder due to Alzheimer’s disease, and a total impairment rating of 90.

10. That certificate went into the detail that the sponsor needs two people to transfer her from a wheelchair to the bed, and she has difficulty sitting back up from a lying position, and she has difficulty sitting up, as well as identifying her living currently with her daughter and being almost totally dependent on her in her activities of daily living, and that her daughter helps with her transfer, mobility, basic hygiene, feeding and changing, and that the sponsor is totally wheelchair‑bound and suffers from constant urinary and faecal incontinence and from severe Alzheimer’s disease.

11. The certificate also identified, in relation to the requirements on page 83 of the court book, the opinion that because of the medical condition the sponsor has a need for direct assistance when attending to the practical aspects of daily life that will continue for at least two years. 

12. The Tribunal expressly referred to the requirements of cl 836.221 and reg 1.15AA of the Regulations.

13. The Tribunal went into the details of the relatives who reside in Australia and the basis upon which it is claimed that they are not reasonably able to provide the assistance to the sponsor.

14. The Tribunal explored with the applicant, at the hearing, why the children and grandchildren were not reasonably able to provide the assistance to the sponsor, either individually or in combination, and referred to the applicant’s evidence. 

15. The Tribunal identified that it would first consider whether or not the requirements of reg 1.15AA(1)(e) of the Regulations can be met. The Tribunal then identified all the relatives who are resident in Australia, and their age.

16. The Tribunal turned to the assistance that could be provided by the sons living in Australia, and turned to the assistance that could be provided by the granddaughter and the grandson, as well as another two granddaughters. 

17. The Tribunal considered all the circumstances of the relatives of the sponsor who are Australian citizens or are permanent residents in Australia. The Tribunal accepted that no one relative would reasonably be able to provide all the assistance to the sponsor. The Tribunal found, however, that the combination of relatives of the sponsor would be able to meet all the assistance requirements of the sponsor.

18. The Tribunal was not satisfied that the assistance required by the sponsor cannot reasonably be provided by other relatives of the sponsor, resident in Australia. 

19. The Tribunal found that assistance can reasonably be obtained from community and welfare service in Australia to provide assistance to the sponsor. 

20. Accordingly, the Tribunal was not satisfied that the assistance cannot reasonably be provided by a relative or obtained from welfare, hospital, nursing or community services in Australia. 

21. Therefore, the Tribunal found that the requirements of reg 1.15AA(1)(e) of the Regulations are not met and found that the first applicant did not satisfy cl 836.221, and affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 24 February 2020. Mr Karp, counsel on behalf of the applicant, sought leave to rely upon an amended application. The Court was satisfied at an impressionistic level that there is a sufficiently arguable case in relation to ground 1 and ground 2 of the proposed amended application, in respect to which leave was granted to the applicant to rely upon, that it was necessary in the interests of the administration of justice to extend time under s 477 of the Act, notwithstanding the substantial delay, and notwithstanding also that this is a case where a deliberate decision had been made to seek ministerial intervention.

2. Mr Karp confirmed that the parties were in a position to proceed with the substantive hearing. 

The grounds

1. Grounds 1 and 2 in the amended application are as follows:

   1.The Tribunal in purporting to address the requirements of Migration Regulation 1.15AA(1)(e) erred in failing to determine the nature and extent of the sponsor’s care requirements.

   2.The Tribunal misconstrued the requirements of reasonableness in Migration Regulation 1.15AA(1)(e) by equating reasonableness in providing assistance with having time to provide such assistance.  

Ground 1

1. In relation to ground 1, Mr Karp submitted that the Tribunal had erred because it had not determined the nature and extent of the sponsor’s care requirements. 

2. Regulation 1.15AA is as follows: 

   MIGRATION REGULATIONS 1994 - 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, 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.

3. It is apparent from the provision that the nature of the assistance required is identified in (1)(b)(iv), that the person has and will continue, for at least two years, to have a need for direct assistance in attending to the practical daily aspects of life.

4. There was no statutory requirement upon the Tribunal to make findings as the nature and the extent of the assistance as contended for in relation to ground 1. 

5. Further, it is apparent that the Tribunal identified the particular Carer Visa Assessment Certificate that correctly identified the assistance required in accordance with the language of reg 1.15AA(1)(b)(iv). No submission was advanced that the Tribunal should have assessed the other criteria in reg 1.15AA(1) before turning to paragraph (1)(e).

6. It is apparent that the Tribunal took into account that Certificate, in its reasons, in respect of the nature of the assistance identified as being required by reg 1.15AA(1)(b)(iv). As there is no such requirement for the Tribunal to make findings as to the nature and extent of the sponsor’s caring requirement, no jurisdictional error, as alleged in ground 1, is made out.

Ground 2

1. In relation to ground 2, Mr Karp submitted that the Tribunal had misconstrued the requirement and reasonableness by equating reasonableness in providing assistance with having time to provide such assistance, and that the Tribunal had failed to consider whether it was reasonable for the particular relatives to provide the assistance. Notwithstanding the skilful way in which Mr Karp put the submissions this was, in substance, an invitation to engage in merits review.

2. The Tribunal, on a fair reading, clearly turned its mind to whether it was reasonable for the individual family members to provide assistance, as identified in paragraphs 31, 34, 37, 41, 44, 47, 49 and 51 of its reasons. 

3. The Tribunal made a finding in those circumstances that it would be reasonable for most of the other relatives of the sponsor to provide assistance at various times. The amount of time the sponsor’s relatives had available in order to provide assistance was an obvious consideration in determining the reasonableness of their ability to provide assistance, which the Tribunal took into account.

4. The Tribunal did not, on a fair reading, equate reasonableness of providing assistance with having to provide assistance and this is further supported given that the Tribunal expressly considered the other factors, such as the competing care requirements in paragraphs 32 and 39, the medical conditions in paragraph 34, the language abilities in paragraph 55 and the fact that family members had previously provided the sponsor with care or had been involved in her financial affairs, in paragraphs 32 and 37.

5. The Court accepts the first respondent’s submission that the Tribunal did consider a multitude of factors in determining whether or not the assistance can reasonably be provided, and made an adverse finding in relation to reg 1.15AA(1)(e) that was open for the reasons given by the Tribunal.

6. No jurisdictional errors alleged in ground 2 is made out.

7. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 2 December 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 15 December 200