Sefesi v MIBP
[2016] FCCA 975
•29 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SEFESI & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 975 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision was affected by jurisdictional error by reason that it failed to take relevant considerations into account. |
| Legislation: Migration Act 1958, s.474 Migration Regulations 1994, reg.1.15AA, cl.836.221 of sch.2 |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| First Applicant: | SOSITENI USALEVA SEFESI |
| Second Applicant: | MELE AMALANI UNALOTO SEFESI |
| Third Applicant: | TAUMEE SEFESI |
| Fourth Applicant: | MELE LUPE O MATAMOANA PU SEFESI |
| Fifth Applicant: | FEOFAAKI SEFESI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1851 of 2014 |
| Judgment of: | Judge Cameron |
| Hearing date: | 19 April 2016 |
| Date of Last Submission: | 19 April 2016 |
| Delivered at: | Sydney |
| Delivered on: | 29 April 2016 |
REPRESENTATION
| The First Applicant appeared in person |
| Counsel for the First Respondent: | Ms A. Mitchelmore |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1851 of 2014
| SOSITENI USALEVA SEFESI |
First Applicant
| MELE AMALANI UNALOTO SEFESI |
Second Applicant
| TAUMEE SEFESI |
Third Applicant
| MELE LUPE O MATAMOANA PU SEFESI |
Fourth Applicant
| FEOFAAKI SEFESI |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants, who are citizens of Tonga, applied for Carer (Residence) subclass 836 visas on 14 March 2012. The first applicant, Mr Sefesi, was the primary applicant on the application while his wife, the second applicant, and their children, the third, fourth and fifth applicants, were included as members of Mr Sefesi’s family unit. The applicants’ application was made on the basis that Mr Sefesi was the carer of his paternal aunt, Mrs Mele Moeia Tupou, an Australian citizen. On 1 May 2013 the applicants’ application was refused by a delegate of the first respondent (“Minister”) on the basis that Mr Sefesi did not satisfy cl.836.221 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicants then applied to the second respondent (“Tribunal”) for a review of that departmental decision. They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicants’ application for visas. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Relevant legislation
The criteria for the grant of subclass 836 visas are found in pt.836 of sch.2 to the Regulations. One of the criteria which Mr Sefesi had to satisfy was cl.836.221 which required him, at the time a decision was made on his application, to be the carer of an Australian relative.
Regulation 1.15AA sets out the definition of “carer”. It relevantly provides:
1.15AACarer
(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
(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 ... for this paragraph; 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) ...
(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.
(4) In this regulation:
Impairment Tables means the Tables for the Assessment of Work‑related Impairment for Disability Support Pension in Schedule 1B to the Social Security Act 1991.
Background facts
Visa application
As already noted, the applicants lodged their application on 14 March 2012. In a covering letter accompanying their application the applicants submitted:
a)Mrs Tupou was eighty years old and unwell. She suffered from severe arthritis and osteoarthritis and had difficulty moving about. She also suffered from high blood pressure and had previously been treated for breast cancer;
b)due to difficulties with her mobility Mrs Tupou required assistance bathing and showering, getting in and out of bed, dressing and undressing, eating, drinking and preparing food, sitting and getting up from chairs and in walking and managing stairs. She also required supervision while in the bathroom and assistance throughout the day for her own safety;
c)Mrs Tupou required a carer to carry out household cleaning tasks and to do her shopping, fill her prescriptions, monitor her blood pressure, open jars and drawers for her, assist her in exercising, retrieve her mail and attend medical appointments and church with her;
d)one of Mrs Tupou’s daughters, Mapu Mei Hengalu Tupou, was fifty-three years old and suffered from polio and osteoarthritis. She also required assistance with day-to-day and household tasks;
e)Mrs Tupou’s other family members were unable to care for her because of family and work commitments. One of Mrs Tupou’s daughters, Mrs Sinaita Nakao, who had been her carer previously could no longer care for her due to her changed family and work commitments. Mrs Nakao’s husband had been involved in a car accident and was no longer able to work and so she had become her family’s sole financial provider; and
f)Mrs Tupou and Ms Mapu Tupou had not sought assistance from any Australian welfare organisation, doctor or health professional, hospital, nursing home or other community service. It was unlikely that a carer outside the family would be suitable to provide care to them and, given their cultural background, they would be extremely distressed at being placed in residential care away from their home and family environment.
The applicants also provided the following documents in support of their application:
a)statutory declarations declared on 26 February 2013 by Mr Sefesi and his wife concerning their willingness and ability to care for Mrs Tupou and Ms Mele Tupou;
b)two statutory declarations declared by Mrs Tupou on 4 March 2013. Mrs Tupou declared that she was widowed and had seven children, three of whom lived overseas, one who lived in Canberra and another who lived in Brisbane. She declared that she and Ms Mapu Tupou lived with Mrs Nakao and Mrs Nakao’s husband and son. Mrs Tupou declared that Mrs Nakao’s husband was unable to work because of injuries he sustained in a car accident and so Mrs Nakao had had to return to work and could no longer provide full-time care for her;
c)a statutory declaration made on 4 March 2013 by Mrs Nakao. Mrs Nakao stated that she had been caring for her mother and sister but had returned to full-time employment and started a business so she was no longer able to care for them;
d)a medical report from Medibank Health Solutions which assessed Mrs Tupou as fulfilling the criteria for a carer’s visa and a carer visa assessment certificate dated 26 March 2013 which certified that Mrs Tupou met the requirements for a carer;
e)a letter dated 22 April 2013 from the registered nurse in charge at the Gladstone House nursing home. The sister stated that after discussing Mrs Tupou’s needs with Mr Sefesi and his wife, it was her professional opinion that Mrs Tupou would be better cared for at home and that the nursing home would not be able to cater to her personal, cultural and religious needs; and
f)a statutory declaration made on 23 April 2013 by Lise Kei. Ms Kei declared that she had worked in the aged care industry for twenty-three years and had known Mrs Tupou and her family for more than five years. Ms Kei declared that it would be preferable for Mrs Tupou to receive care from her family members. She declared that a nursing home would be unable to provide Mrs Tupou with the Tongan food she preferred and there would be no-one to read the Bible and pray with her.
On 1 May 2013 a delegate of the Minister refused the applicants’ application. The delegate was not satisfied that the assistance required by Mrs Tupou could not reasonably be obtained from welfare, nursing and community services in Australia. Consequently, the delegate was not satisfied that reg.1.15A(1)(e)(ii) had been met and so found that Mr Sefesi did not satisfy cl.836.221 of sch.2 to the Regulations.
Tribunal proceedings
Mr Sefesi appeared before the Tribunal on 29 May 2014 and gave the following evidence:
a)he and his family had been in Australia for two years. He and his two oldest children lived with a cousin while his wife and youngest child lived with Mrs Tupou. He could not live with Mrs Tupou because the property was crowded but he visited her every day, arriving at 9.30am and leaving by 3pm;
b)he assisted Mrs Tupou by running her errands, helping in lifting her, vacuuming, preparing food and assisting with her medication. As a male there were certain things he could not do for her and so his wife performed those duties;
c)Mrs Tupou’s three children who lived in Sydney all lived with her. However, Ms Mapu Tupou had polio and was paralysed, Mrs Nakao was married with a small child and wanted to establish her own business and one of Mrs Tupou’s sons, Lisiate Tupou, only lived in Sydney because of his work but his family was in Brisbane. Another of Mrs Tupou’s sons lived in Canberra and had done so for more than ten years;
d)although in Tongan culture children were expected to look after their parents, Mrs Tupou’s children were members of the Tongan nobility through their father and normally had other people care for their parents;
e)Mrs Tupou had an elderly brother who lived in Australia. Mrs Tupou’s brother had seven children, five of whom lived in Sydney. However, all of Mrs Tupou’s nieces and nephews in Australia had family and work responsibilities;
f)Mrs Tupou had previously received community assistance at home for one hour a week. Any care she received from outsiders would not be equal to the care she received from family members; and
g)he had applied for permission to work but his application was refused. He and his wife had not worked since their arrival in Australia and were supported by other family members.
Mr Sefesi provided to the Tribunal a letter dated 29 May 2014 in which he set out enquiries he had made with four aged care organisations. He stated that the advice he had received from those organisations confirmed that the best solution was for Mrs Tupou to be cared for by him and his wife.
The Tribunal also received the following evidence from Mrs Nakao:
a)her mother, Mrs Tupou, and disabled sister Ms Mapu Tupou lived with her. Her brother was also temporarily living with her because of his work in Sydney but his wife and children had moved to Brisbane;
b)her mother could not cook, had mobility problems, required a walker, required supervision when showering and could not undertake basic household tasks;
c)she received a carer’s allowance in respect of her mother. She was working part-time but needed to work full-time. She was also developing a business;
d)her mother had had an Aged Care Assessment Teams (“ACAT”) assessment in the past when she had difficulty with the use of her hand. A nurse had visited her mother at home for a certain number of hours a week for a period of time but that assistance stopped once her mother’s condition improved. Her mother had not had a more recent ACAT assessment; and
e)the number of hours of assistance her mother could obtain through community assistance was very limited and it would be more convenient for relatives to look after her.
The Tribunal’s decision and reasons
The Tribunal affirmed the delegate’s decision to refuse to grant the applicants visas. In doing so it noted that the Medibank Health Solutions certificate found that Mrs Tupou suffered from osteoarthritis of the knees and hands and had assigned her a 30 point impairment rating.
In reaching its decision on the review, the Tribunal noted that Mrs Tupou had four adult children in Australia, three of whom lived with her and one of whom who lived in Canberra. It noted that she also had a brother and five adult nieces and nephews who lived in Sydney. The Tribunal found that it had no reason to doubt that all those relatives were either Australia citizens, permanent residents or eligible New Zealand citizens. It went on to consider whether the assistance Mrs Tupou needed could reasonably be provided by her relatives in Australia. In that regard, it noted that it would be unreasonable to expect her son in Canberra and her elderly brother to provide assistance. It also noted that one of her daughters, Ms Mapu Tupou, suffered from polio and had a significant disability, that her son who lived in the same household with her intended to join his family in Brisbane in the future and that her other relatives in Sydney, including Mrs Nakao who had provided assistance in the past, had their own work and family responsibilities. Nevertheless, given the number of relatives Mrs Tupou had, the Tribunal was not convinced that most of them could not reasonably provide some assistance to Mrs Tupou in accordance with their family and work responsibilities.
The Tribunal also considered whether the assistance Mrs Tupou required could reasonably be obtained through welfare, hospital, nursing and community services. In that regard it accepted evidence that Mrs Tupou preferred not to receive outside assistance and noted that there was no suggestion that she should enter a nursing home. However, the Tribunal did not accept that it was unreasonable for Mrs Tupou to receive assistance from the community sector. It noted that she had done so in the past and could not identify any reason, apart from personal preference, why she could not do so again. The Tribunal accepted that any community assistance Mrs Tupou received would be in addition to her family’s assistance, rather than a replacement, but it was unconvinced that she could not reasonably obtain assistance through the community sector. The Tribunal also noted that the Federal Court had held, in relation to a special need relative visa, that there is no apparent reason to limit the enquiry to what one person could do and that it was not erroneous to approach the issue by reference to the availability of assistance from a number of sources. On that basis, the Tribunal was not satisfied that the assistance Mrs Tupou required could not reasonably be provided by a combination of relevant relatives and welfare, hospital, nursing or community services in Australia. It therefore found that the requirements in reg.1.15AA(1)(e) were not met.
The Tribunal also noted that Mr Sefesi had applied for permission to work, did not reside at the same premises as Mrs Tupou and had three children to look after. It found that those matters raised questions about whether he was willing and able to provide substantial and continuing assistance to Mrs Tupou as required by reg.1.15AA(1)(f). However, given its finding in relation to reg.1.15AA(1)(e), the Tribunal found that it did not need to consider that issue any further.
Proceedings in this Court
Ground 1
In the first ground of the application commencing this proceeding the applicants alleged:
1.The second respondent misconstrued and/or erred in applying par 1.15AA(1)(e) of the Migration Regulations 1994 by failing to apply it to each relevant relative separately before reaching a conclusion as to the operation of subpar (i).
To the extent that, other than the first applicant, Mrs Tupou had relatives in Australia who were identified to it, it is correct that the Tribunal could not complete the review task without considering whether or not those relatives could reasonably be expected to provide her with the assistance she needed. However, it was the first applicant who sought the grant of a carer’s visa and so it was up to him to demonstrate to the Tribunal that such other relatives as Mrs Tupou did have in Australia could not reasonably provide that assistance.
To the extent that it had evidence of the circumstances of Mrs Tupou’s other relatives, the Tribunal did consider whether they could assist her and so the error alleged is not, to that extent, made out on the facts. To the extent that there were further relatives whose circumstances were not clarified by the applicants, the Tribunal did not err by not considering them individually if there was no information to consider.
In the latter regard and, contrary to the implication in this ground of the application, the Tribunal was not required to inquire into the circumstances of Mrs Tupou’s other relatives so as to determine whether they were or were not able and available to provide her with the assistance she needed. It is for an applicant to put his or her case to the Tribunal and it is generally no part of the latter’s role to make up for deficiencies in an applicant’s presentation or arguments. It will be a rare case in which the duty to review will require the Tribunal to make a particular enquiry and the applicants did not demonstrate that this was such a case.
Ground 2
In the second ground of the application the applicants alleged:
2.The second respondent misconstrued and/or erred in applying par 1.15AA(1)(e) of the Migration Regulations 1994 by failing to determine the nature and scope of the assistance needed, being the assistance referred to in the paragraph.
The terms of reg.1.15AA make it clear that the assistance in question is the assistance referred to in reg.1.15AA(1)(b)(iv), namely direct assistance in attending to the practical aspects of daily life which is needed because of an identified medical condition. However, contrary to the allegation made in the second ground of the application, the Tribunal was not required by reg.1.15AA to turn its mind to the “the nature and scope of the assistance needed” by Mrs Tupou. The nature and scope of Mrs Tupou’s impairment and any consequential need for assistance was the subject of the Medibank Health Solutions certificate which the Tribunal was required by reg.1.15AA(3) to accept as correct. Relevantly for the present allegation, the Tribunal was required to accept the advice of the certificate and to not enquire further into the matters it addressed.
Ground 3
In the third ground of the application the applicants alleged:
3.The second respondent misconstrued and/or erred in applying par 1.15AA(1)(e) of the Migration Regulations 1994 by failing to determine the nature and scope of the assistance which could reasonably be obtained within subpar (ii).
The implication of this allegation is that the Tribunal was required to identify which aspects of the care required by Mrs Tupou could be obtained from welfare, hospital, nursing or community services before deciding that the first applicant was not a “carer” for the purposes of reg.1.15AA. For the reasons given in relation to the second ground of the application, the Tribunal was not required to consider such matters.
Grounds 4 and 5
In the fourth and fifth grounds of the application the applicants alleged:
4.The second respondent failed to take into account relevant claims and/or evidence that:
a)Mrs Tupou (the person in need of care) requires assistance bathing and showering;
b)Mrs Tupou requires supervision whilst in the bathroom for her own safety;
c)Mrs Tupou requires assistance getting in and out of bed;
d)Mrs Tupou requires assistance dressing and undressing;
e)Mrs Tupou requires assistance eating and drinking and food preparation;
f)Mrs Tupou requires assistance sitting and getting up of a chair;
g)Mrs Tupou requires assistance walking and managing stairs;
h)Mrs Tupou requires assistance throughout the day for her own safety
i)Mrs Tupou requires assistance from a person able to speak Tongan.
5.The second respondent failed to take into account relevant claims and/or evidence that Mrs. Tupou needs a carer to do the following:
a)vacuuming;
b)house cleaning, dusting and tidying, making beds;
c)cooking;
d)washing dishes;
e)laundry;
f)ironing;
g)mending;
h)shopping;
i)going to the chemist for prescription filling;
j)general gardening;
k)mowing the lawn;
l)monitoring blood pressure;
m)opening jars, tins and the like;
n)opening drawers;
o)going to the doctor, dentist, optometrist and waiting with her and assisting her;
p)preparing and assisting with snacks during the day;
q)motivational and physical exercises;
r)getting the mail;
s)going to church weekly, her main social outlet.
These allegations are not, in substance, different from the second and third grounds of the application and for the reasons given in connection with those allegations do not identify jurisdictional error on the Tribunal’s part.
Generally
Before concluding, I note that the schedule to the Social Security Act 1991 to which reg.1.15AA(4) refers has been repealed and was replaced with effect from 1 January 2012: s.2 of and sch.3 to the Social Security and Other Legislation Amendment Act 2011; Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (legislative instrument F2011L02716). Those facts raise questions concerning the extent to which reg.1.15AA can operate in its present form. However, any such invalidity would have no impact on the outcome of this case because it would not be relevant to the allegations of jurisdictional error made by the applicants and, in any event, would make it impossible to satisfy the criteria for the grant of a carer’s visa, rendering any remittal to the Tribunal futile.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 29 April 2016
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