Rasla v Minister for Immigration
[2016] FCCA 1830
•19 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RASLA v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1830 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Other Family (Migrant) (Class BO) visa – whether the Tribunal applied the wrong test – whether the Tribunal’s decision was rational and logical – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 476 Migration Regulations 1994, reg.1.15AA, Sch.2, cl.116.211. |
| Applicant: | MAGDA RASLA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 45 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 19 July 2016 |
| Date of Last Submission: | 19 July 2016 |
| Delivered at: | Sydney |
| Delivered on: | 19 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Johnson |
| Solicitors for the Applicant: | Turner Coulson Immigration Lawyers |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the First Respondent: | DLA Piper |
ORDERS
The name of the Second Respondent be changed to the Administrative Appeals Tribunal and the need to file any further document in this regard is dispensed with.
Leave is granted to the Applicant to rely on the further amended application.
The further amended application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $5,700.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 45 of 2015
| MAGDA RASLA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
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 1 December 2014 affirming a decision of the delegate not to grant the visa applicant Other Family (Migrant) (Class BO) visas. The review applicant is the mother of the first visa applicant and also joined as visa applicants before the Tribunal was the wife of the review applicant’s son and their two children.
The visa applicants are citizens of Egypt. The Tribunal identified that a delegate refused to grant the visas on the basis that cl.116.211 in schedule 2 of the Migration Regulations 1994 was not met because the delegate was not satisfied that the requirements of reg.1.15AA were met. The Tribunal notes the delegate was not satisfied the assistance required by the sponsor, who was the review applicant, could not reasonably be provided by any other relative or obtained from welfare, hospital, nursing or community services in Australia.
That decision was affirmed by the Tribunal on 16 January 2014. That decision quashed and then remitted on 29 July 2014 for further determination. By letter dated 22 August 2014 the Tribunal invited the review applicant and the visa applicants to appear at a hearing to be held on 27 October 2014. The review applicant did not appear on that date, however, the first visa applicant, her son, appeared on that date to give evidence and present arguments, and the Tribunal also received evidence from one of the review applicants’ daughters.
The review applicant and visa applicants were also represented by their registered migration agent at that hearing. Following the hearing on 3 November 2014 the Tribunal sent a letter to the review applicant and visa applicants consistent with s.359A of the Migration Act 1958 raising the following information:
At the hearing on 27 October 2014, the visa applicant told the Tribunal that if the visa was granted and he came to Australia he would be able to support his family by running his business by working from home on his computer for 30 minutes to one hour per day. If this did not prove to be possible he stated he would look for part-time work to support his family.
The Tribunal identified in the letter how the information was relevant. The Tribunal expressly referred to the legislative requirement that the visa applicant must be willing and able to provide to the review applicant substantial and continuing assistance of the kind needed.
The Tribunal noted that the information suggested that if the visa applicant was not able to continue to work in his present business and he had to obtain other work these work commitments may prevent him from providing substantial and continuing assistance. The Tribunal identified in the letter that it was in those circumstances that the Tribunal may decide that the visa applicant is not willing and able to provide the assistance required that may lead to affirming the decision under review.
The visa applicants’ and review applicant’s legal representative responded to the s.359A letter relevantly asserting that the visa applicant was confident that he could run his business with about 30 to 60 minutes on his computer each day. The letter in response by the migration representative noted that the first visa applicants’ fall-back position was that if such efforts were not able to support his family he would find a part-time job of the same kind to support his family. It was explained that the part-time job of the same kind would be a job he could do on his computer from home. It was said that this would not interfere with his duty to care for his mother.
It was said that the first visa applicant was quite clear that his reasonable belief was that such work would not be necessary. The response further added the instruction that other members of the first visa applicant’s family in Australia would support him financially if it became necessary. The letter in response foreshadowed the provision of statements supporting that proposition. It is apparent from the material in the Court book that further statements were provided to the effect that family financial support would be provided to the first visa applicant.
The Tribunal identified that the issue in the present case was whether the first visa applicant is willing and able to provide to his mother Mrs Rasla substantial and continuing assistance of the kind needed. The Tribunal referred to the certificate that was provided dated 16 April 2012 issued in accordance with the regulations. Regulation 1.15AA(1) relevantly provides 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) …
(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) …
(d) …
(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.
The Tribunal in its reasons referred to the fact that reg.1.15AA(1)(f) requires the first visa applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed. The Tribunal identified the different considerations of willingness and ability. The Tribunal also referred to the content of substantial and continuing assistance. The Tribunal noted that there were a number of medical, social and psychological reports on the Department file which indicate that the review applicant Mrs Rasla needs 24/7 care. The Tribunal found as a fact that it accepted that Ms Rasla needs 24/7 care.
Relevantly, the Tribunal found that it was not satisfied that taking into account the lack of credibility of the second visa applicant and the second visa applicant’s work plans that the second visa applicant was willing and able to provide substantial and continuing assistance needed by the review applicant, his mother. The Tribunal found that the second visa applicant was not willing and able to provide the Australian relative substantial and continuing assistance of the kind needed and therefore did not meet the requirements of reg.1.15AA(1)(f).
It was in those circumstances that the Tribunal concluded that at the time of the decision the first visa applicant was not a carer of the Australian relative, being the review applicant, and did not satisfy cl.116.221. The Tribunal found that the first visa applicant did not meet the criteria for a subclass 116 visa and accordingly affirmed the decision of the delegate.
The grounds of the further amended application are as follows:
1. The Tribunal applied the wrong test.
Particulars
a. The Tribunal applied a test that the visa applicant must be able to provide all the care required by his mother.
b. The correct test is only that a visa applicant provide 'substantial and continuing assistance of the kind needed under sub-paragraph (b) (iv) or paragraph (d), as the case requires' Migration Regulations reg l.15AA.
2. The Tribunal's decision was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.
Particulars
a. The Tribunal, at [36], made critical findings of fact adverse to the visa applicant that:
i. It was not credible that the visa applicant would be able to run what he described at hearing, as a full time business, for which he attended the office 4 days of the previous week as well as working from home, in 30 - 60 minutes per day, from his computer at home.
ii. It was not credible that the visa applicant would be able to find other work 'of the same kind' if he was not able to support his family in this way, and that the visa applicant will be able to secure work of the flexible/home-based kind claimed.
iii. The Tribunal was not satisfied on the basis of the findings referred to in (i) and (ii) above that the visa applicant will be able to provide substantial and continuing assistance of the kind needed.
The conclusion that the Tribunal was not satisfied that the visa applicant will be able to provide substantial and continuing assistance of the kind needed, which was the centrally determinative finding against the visa applicant, was unreasonable irrational or illogical in that a premise upon which the conclusion was based (see (ii) above) did not support the conclusion.
b. The Tribunal, at [37], gave limited weight to the evidence contained in the statements of Wahid Girgis and Violet Girgis, and in so doing it rejected the visa applicant's claim that members of his extended family in Australia would, if the visa was granted, provide him with financial and other assistance. The sole basis upon which this evidence was given limited weight was that it was provided 'in the light of the issues raised by the Tribunal in its letter of3 November 2014'.
c. The Tribunal, at [26], found that the visa applicant was ' objectively fit' to provide substantial and continuing assistance to the applicant, and that the question of whether he was willing to do so was in doubt. The Tribunal proceeded, at [33] - [38] to make findings apparently in respect of the visa applicant's ability to provide the assistance, without addressing the question of whether he was willing to do so.
In relation to ground 1, counsel for the applicant sought to argue that the Tribunal had, in effect, applied a test differing to that identified by reg.1.15AA(1)(f) to the effect of considering whether the first visa applicant was able to provide all the care required by his mother. I do not accept that the Tribunal’s reasons support any such finding. The Tribunal’s reasons do not reflect the erroneous application of the correct test identified in reg.1.15AA(1)(f).
In support of the argument advanced on behalf of the applicant, counsel referred to para.33 of the Tribunal’s reasons and the reference to the review applicant needing 24/7 care. The Tribunal’s reasons are not to be read with a keen eye for error. The Tribunal correctly referred to the relevant test twice in para.33 of substantial and continuing assistance, and there is no basis to read into the Tribunal’s reasons any such error of the kind alleged in ground 1. Ground 1 fails to make out any jurisdictional error.
In relation to ground 2, counsel for the applicant sought to attack the last sentence of para.36 as being an irrational, illogical and unreasonable finding. Given the identification of the needs of the review applicant, it cannot be said that no reasonable Tribunal could make the finding found in the last sentence of para.33, namely “the Tribunal considers that if the visa applicant was to work part-time, he would not be able to provide substantial or any assistance as required by his mother.” The adverse finding made by the Tribunal was open and cannot be said to lack an evident and intelligible justification.
Counsel for the applicant also sought to attack the finding of the Tribunal placing little weight on the evidence of family members, that they would provide financial support to the first visa applicant if it was needed. The specific finding attack was that the Tribunal places limited weight on this evidence.
The criticism was advanced that the Tribunal’s reference to the circumstances in which that evidence was put forward as a result of a s.359A letter was said to undermine the rational and logical basis upon which the Tribunal could come to an adverse conclusion in relation to that evidence.
It was open to the Tribunal to make the adverse finding made in relation to the evidence proffered belatedly as to the financial support being provided to the first visa applicant by his family. It was also open to the Tribunal to take into account that no evidence had been given to that effect by the first visa applicant at the hearing. There was no irrational, illogical or unreasonable finding by the Tribunal by reason of the decision to place limited weight on the evidence of the family members about the ability to financially support the first visa applicant.
The further grounds upon which it was argued that there was irrationality, unreasonable or illogicality was based on the reference in para.26 to the physical objective fitness of the first visa applicant to provide substantial and continuing care. On the further analysis engaged in by the Tribunal as to the ability of the applicant to provide that care, there was no inconsistency, illogicality, or unreasonableness in relation to those findings.
Insofar as it was argued in support of ground 2 that the Tribunal had to make a finding about the level of care that the first visa applicant could provide, the relevant consideration under reg.1.15AA(1)(f) referred to the applicant being willing and able to provide the resident substantial and continuing assistance of the kind needed that was identified by reference to reg.1.15AA(1)(iv). It was common ground in the material before the Tribunal that the nature of that care was 24/7 and the Tribunal so found.
There was no requirement of the Tribunal to make a finding about the level of care that the first visa applicant was able to offer in the context of his part-time employment. There was no jurisdictional error of the kind alleged in ground 2.
The application fails to make out any jurisdictional error. The further amended application is dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 27 July 2016
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