Sun v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 424
•27 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sun v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 424
File number(s): SYG 820 of 2021 Judgment of: JUDGE ZIPSER Date of judgment: 27 March 2025 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant carer visa – Tribunal not satisfied that assistance cannot reasonably be provided by Australian relative or obtained from nursing or community services in Australia – whether Tribunal considered sponsor’s cultural, linguistic and personal preferences in determining whether assistance can be obtained from nursing or community services – whether Tribunal properly considered ‘assistance’ referred to in reg 1.15AA(1)(b)(iv) – whether Tribunal misled applicant during hearing - no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) s 359
Migration Regulations 1994 (Cth) reg 1.15AA(1), Sch 2 cl 836.221
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593
Biyiksiz v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 814
El-Chahini v Minister for Immigration and Border Protection [2018] FCA 202
KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111; 292 FCR 15
Le v Minister for Immigration and Border Protection [2017] FCA 1053
Nguyen v Minister for Immigration and Border Protection [2016] FCA 1460
Nguyen v Minister for Immigration and Border Protection [2016] FCA 688
Valencia v Minister for Immigration and Border Protection [2019] FCA 397
Division: Division 2 General Federal Law Number of paragraphs: 72 Date of hearing: 21 February 2025 Place: Parramatta Counsel for the Applicants: Mr D. Hughes Solicitor for the Applicants: D’Ambra Murphy Lawyers Counsel for the Respondents: Ms N. L. Gollan Solicitor for the Respondents: HWL Ebsworth Lawyers ORDERS
SYG 820 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ZHIJIAN SUN
First Applicant
LIJUAN DENG
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
27 MARCH 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicants pay the first respondent’s costs fixed in the amount of $11,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE ZIPSER
INTRODUCTION
On 10 May 2021, the applicants lodged an application for judicial review, pursuant to s 65 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 9 April 2021. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicants subclass 836 carer visas under s 65 of the Act.
For the reasons that follow, the application is dismissed.
LEGISLATION
Clause 836.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) provided at the relevant time, as a time of decision criterion for a subclass 836 carer visa:
The applicant is a carer of a person referred to in clause 836.212.
Regulation 1.15AA(1) of the Regulations relevantly provided at the relevant time:
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)…
(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.
There are complexities in the construction or interpretation of reg 1.15AA(1). Some propositions derived from Federal Court authorities are as follows:
(a)“The ‘assistance’ referred to in reg 1.15AA(1)(e) is the assistance described in reg 1.15AA(1)(b)(iv), being the relevant person’s need for direct assistance in attending to practical aspects of daily life because of a medical condition”: El-Chahini v Minister for Immigration and Border Protection [2018] FCA 202 at [4].
(b)The words “cannot reasonably be obtained” in reg 1.15AA(1)(e) “must be construed by reference to reasonableness from the point of view of the person requiring assistance, and not only by reference to the reasonable availability of the assistance from other sources”: Biyiksiz v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 814 (Biyiksiz) at [20]. For this reason, “factors that are subjective to the person requiring long-term assistance will be of relevance in determining whether assistance can reasonably be obtained by that person from sources other than an applicant for the relevant visa”: Biyiksiz at [21].
(c)Regulation 1.15(1)(e)(i) requires consideration to be given to whether the assistance “cannot reasonably be provided by any other relative”. The “question of whether the assistance can be provided by a relative is a notion to be addressed from the perspective of the provider” and “the concept of reasonableness must be assessed in light of the circumstances of the provider”: Le v Minister for Immigration and Border Protection [2017] FCA 1053 at [21]. It follows “that a person will not satisfy the carer requirements if there are Australian resident relatives who refuse to assist when they reasonably could”: Valencia v Minister for Immigration and Border Protection [2019] FCA 397 (Valencia) at [9], citing Nguyen v Minister for Immigration and Border Protection [2016] FCA 1460 at [45]-[53].
(d)The “analysis of what may reasonably be provided by the Australian resident relatives in subcl (1)(e)(i) or obtained from the assistance agencies in subcl (1)(e)(ii) permits of accumulation of effort between more than one relative and/or agency”: Valencia at [10].
(e)Since “subcl 1(e) is cast in the negative it must be shown that the direct assistance cannot be reasonably provided or obtained”: Valencia at [10]. In some cases, “this may be difficult to demonstrate”: Valencia at [10].
(f)The Tribunal, in not being satisfied that direct assistance cannot be reasonably provided or obtained in a particular case, “is not obliged to work out a detailed analysis of how a patchwork of familial or privately contracted care might combine to provide the required care”: Valencia at [11]. To point the point another way, the Tribunal’s task is “to make an assessment of the matters referred to in reg 1.15AA(1)(e), namely whether the [sponsor’s] need for direct assistance in attending to the practical aspects of daily life could reasonably be provided by relatives in Australia or obtained from appropriate services available to her” and completion of this task does not require the Tribunal “to specify how the [sponsor’s] needs might precisely be met by family members already in Australia” referred to in reg 1.15AA(1)(e)(i) or obtained from appropriate services referred to in reg 1.15AA(1)(e)(ii): Nguyen v Minister for Immigration and Border Protection [2016] FCA 688 at [40]. This “has the effect … of requiring the visa applicant to disprove a large range of potential scenarios involving the hypothetical assistance of the person to whom care is to be given”: Valencia at [11].
FACTUAL BACKGROUND
On 6 July 2017, the applicants, citizens of China, lodged an application for subclass 836 carer visas. The first applicant (Applicant) was the primary applicant. The second applicant is the wife of the Applicant and applied as a member of his family unit. The person in need of care was the Applicant’s mother (Sponsor).
On 2 May 2018, the Department of Home Affairs (Department) sent the applicants a letter requesting more information, including evidence concerning why the assistance required by the Sponsor could not reasonably be obtained from welfare, hospital, nursing or community services in Australia.
On 6 June 2018 and 7 August 2018, the applicants’ representative emailed the Department a large amount of further information in support of the application, as well as a submission dated 6 August 2018.
On 18 October 2018, a delegate of the first respondent made a decision refusing to grant the visas.
On 5 November 2018, the applicants applied to the Tribunal for review of the delegate’s decision.
On 24 September 2020, the Tribunal invited the applicants to attend a hearing on 8 October 2020.
On 2 October 2020, the applicants’ representative emailed a submission to the Tribunal.
On 8 October 2020, the applicants and their representative attended a hearing before the Tribunal. The Tribunal took evidence from the applicants. The Tribunal then stated it would take evidence from the applicants’ witnesses at a resumed hearing.
On 5 November 2020, the applicants’ representative emailed a bundle of materials with a covering submission to the Tribunal. The bundle of materials included a statutory declaration from Ms Tavui, an employee of the applicants’ representative, dated 4 November 2020. The statutory declaration contained evidence of Ms Tavui’s enquiries with a large number of nursing homes regarding the cost, availability and suitability of facilities to provide care for the Sponsor.
On 17 December 2020, the Tribunal invited the applicants to attend a resumed hearing on 28 January 2021.
In January 2021, the applicants’ representative provided to the Tribunal a “psychological assessment” of the Sponsor prepared by a counsellor, Gary Thornell, dated 20 January 2021.
On 28 January 2021, the applicants and their representative attended the resumed hearing. The Tribunal took evidence from the applicant, the Sponsor, the applicants’ son and another witness.
On 19 February 2021, the applicants’ representative provided a post-hearing submission to the Tribunal.
On 9 April 2021, the Tribunal made a decision affirming the delegate’s decision not to grant the applicants carer visas.
TRIBUNAL’S DECISION
The Tribunal accepted that the Sponsor required assistance in attending to the practical aspects of daily life. The assistance was explained in a Carer Visa Assessment Certificate and accompanying Carer Visa Report dated 5 July 2017 prepared by Bupa (Bupa Carer Certificate).
The issue for the Tribunal was whether the assistance required by the Sponsor could, with reference to reg 1.15AA(1)(e) of the Regulations, reasonably be:
(a)provided by other relatives of the Sponsor, specifically a son of the Sponsor who was an Australian resident (Australian Son), or one or both of that son’s two children who lived in Sydney (Australian Grandchildren); or
(b)obtained from welfare, hospital, nursing or community services in Australia.
In relation to whether the assistance could be provided by the Australian Son or the Australian Grandchildren, the Tribunal at [105] “was not satisfied that the [Australian Son] cannot reasonably provide assistance to the sponsor” and at [107] “was not satisfied that the [Australian Grandchildren] cannot reasonably provide assistance to the sponsor”.
In relation to whether the assistance could be obtained from welfare, hospital, nursing or community services in Australia, the Tribunal at [96] expressed concern “that between the lodgement of the application and preparation for the Tribunal hearing little effort had gone into obtaining a place for the sponsor”. The Tribunal at [99] described the applicants’ effort to obtain evidence concerning the possibility of accessing assistance for the Sponsor from welfare, hospital, nursing or community services as “perfunctory”. The Tribunal at [113] repeated its concern that “little effort had been made [by the applicants’ representative] to identify suitable care options”.
The Tribunal at [121] concluded that “on the evidence provided, the Tribunal is not satisfied that the assistance cannot reasonably be provided by a relevant relative or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of reg 1.15AA(1)(e) are not met”.
PROCEEDINGS IN THIS COURT
Application and steps up to 20 February 2025
On 10 May 2021, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision. The application included two grounds as follows (reproduced as written):
1.The Second Respondent Administrative Appeals Tribunal (the 'Tribunal') failed to deal with the case the applicants put.
Particulars
a.In submissions dated 6 August 2018, 2 October 2020 and 19 February 2021, it was submitted that: "We note that Mr Sun's wife also assists with matters relating to female grooming/hygiene. It is our submission that it is culturally inappropriate for Ms Cai to allow any other person other than her own son and daughter-in-law to give her the care and assistance she needs at this time, especially with more intimate assistance such as bathing, getting dressing, grooming and toileting."
b.The Tribunal did not deal with that submission: see Kheir & Ors v Minister forImmigration [2016] FCCA 1577 (6 July 2016).
2.The Tribunal failed to take into account the BUPA Carer Visa Medical Certificate and/or failed to give proper, genuine, and realistic consideration to it, and therefore erred in its application of "the assistance" under reg 1.15AA.
Particulars
a.Failure to consider the BUPA Carer Visa Medical Certificate.
At the hearing on 21 February 2025, the applicants relied on an additional ground in an amended application which was accepted for filing on 13 March 2025 (Amended Application) as follows:
3.The Tribunal made a jurisdictional error in that it failed to conduct a review as required by s 359 of the Migration Act 1958.
Particulars
(a)At the hearing on 8 October 2020, the Tribunal informed the applicants that they should provide further and more recent evidence as to the availability of assistance from welfare, hospital, nursing or community services for the purposes of satisfying paragraph 1.15AA(1)(e) of the Migration Regulations 1995.
(b)Prior to the hearing on 28 January 2021, the applications submitted further evidence relevant to that issue. At the hearing, the Tribunal said it was “satisfied” by that material. Contrary to that indication, in its reasons, the Tribunal held that it was not satisfied by that material: at [113] – [121].
(c)In so doing, the Tribunal failed to afford the applicants an opportunity to make arguments and give evidence on a relevant issue as required by s 359 of the Migration Act 1958.
On 7 February 2025, the applicants filed a written submission (AS). On 13 February 2025, the first respondent filed a written submission.
Hearing on 21 February 2025
At the hearing on 21 February 2025, David Hughes of counsel appeared for the applicants. Mr Hughes made oral submissions which supplemented the applicants’ written submission. The submissions are explained and addressed below. Nicola Gollan of counsel appeared for the first respondent. Ms Gollan made oral submissions which supplemented the first respondent’s written submission. A Court Book (CB) was tendered which contained the Tribunal’s decision dated 9 April 2021 and documents before the Tribunal.
CONSIDERATION
Ground 1
On 6 August 2018, the applicants’ representative provided a written submission to the Department. The submission, seeking to rely on the principle explained in Biyiksiz at [20]-[21] (see paragraph 5(b) above), stated in part: (CB 201, 206 and 209)
… Ms Cai needs to be cared by her own son in the security and familiarity of her own home … It is also our submission that placing Ms Cai in a nursing home is unreasonable due in part to the cultural inappropriateness of such an arrangement …
…
We note that Mr Sun’s wife also assists with matters relating to female grooming/hygiene. It is our submission that it is culturally inappropriate for Ms Cai to allow any other person other than her own son and daughter-in-law to give her the care and assistance she needs at this time, especially with more intimate assistance such as bathing, getting dressed, grooming and toileting.
…
We draw attention to the cultural inappropriateness of placing Ms Cai in the care of welfare, hospital, community or nursing services. To be cared for by a health worker … or to be placed in a nursing home where she is disconnected from her family and friends, would only accelerate a decline in her emotional and physical wellbeing and thus have an extremely negative impact on her existing medical conditions.
A submission to similar effect was repeated by the applicants’ representative over the next few years – see for example:
(a)submission dated 2 October 2020 at CB 403-404 and 406; and
(b)post-hearing submission dated 19 February 2021 at CB 683-685.
On 2 October 2020, the applicants’ representative provided to the Tribunal a handwritten statement of Ms Cai in Chinese dated 25 May 2019 and an English translation dated 27 May 2019: CB 410-411. Ms Cai, while expressing a strong desire for the applicants to care for her, did not express any concern about obtaining care from a nursing home.
In January 2021, the applicants’ representative provided to the Tribunal a report from a counsellor Gary Thornell (CB 596-598) concerning “the likely impact on [the Sponsor’s] mental health if [the applicants] were unable to remain in Australia to continue providing her with personal care”. Among other matters, Mr Thornell, in considering cultural factors, referred to “the obligation of adult children to care for elderly parents [which] has roots in Chinese history”, the Sponsor’s severe distress if the Applicant could not remain in Australia, and the fact that the Sponsor “requires culturally sensitive care that makes best use of her connection to the community and the environment”.
It is contended in ground 1 that the Tribunal “failed to deal with the case the applicants put” concerning the applicants’ “submission [to the Tribunal] that it is culturally inappropriate for Ms Cai to allow” any person other than the applicants to care for her.
It is stated at AS [41] that, “while the Tribunal noted the submission at [95], it does not mention or grapple with the submission in its dispositive reasoning”.
The Tribunal, in its summary of the evidence and submissions before it, referred a number of times to the representative’s submissions concerning the Sponsor’s cultural, linguistic and personal preferences in relation to the provision of care. For example:
(a)The Tribunal at [54] referred to the Applicant’s evidence concerning “family responsibility to care for his mother and that while she will receive professional care in a nursing home she will be uncomfortable because the staff won’t know her history or her personality and states that it would be worse if the employees are not Chinese and do not speak Cantonese”.
(b)The Tribunal at [63] referred to a statement from a witness which “refers to filial piety and social norms about caring for aged parents in Chinese culture”.
(c)The Tribunal at [78]-[80] carefully considered Mr Thornell’s report.
(d)The Tribunal at [89]-[90] summarised a submission by the applicants’ representative which referred to “the cultural inappropriateness of” the Sponsor being in residential care and stated that “the sponsor and her family have repeatedly indicated that living in a nursing home is culturally inappropriate”.
(e)The Tribunal at [94] stated:
It was submitted that placing the sponsor in a nursing home or forcing her to accept welfare, community or hospital services without due consideration for her financial, cultural, linguistic and emotional needs would have a seriously negative impact on her health and well-being. The sponsor and her family have sought to emphasise the cultural inappropriateness of her receiving assistance from a person outside of the family circle. It was submitted that the only acceptable option would be to allow the sponsor to be cared for by her own son within the security and familiarity of her own home.
(f)The Tribunal at [96] stated:
The Tribunal also explained [at the hearing] that it appreciates there are various issues in relation to availability, access to a private room as well as cultural considerations. The Tribunal noted that it is his mother’s preference that he and his wife provide her with the necessary care.
The Tribunal, in considering, with respect to reg 1.15AA(1)(e), whether or not it was satisfied that the assistance could not reasonably be provided by an Australian relative or obtained from welfare, hospital, nursing or community services in Australia:
(a)at [100]-[112] “considered the evidence regarding the possibility of the sponsor’s other family members assisting with the provision of care required by the sponsor in combination with other services” (Tribunal at [100]); and
(b)at [113]-[120] considered whether the relevant assistance could be obtained from welfare, hospital, nursing or community services.
The Tribunal, in considering whether the relevant assistance could be obtained from welfare, hospital, nursing or community services, addressed the sponsor’s cultural, linguistic and personal preferences explained in the submissions and evidence above in the following manner:
113.The Tribunal accepts the evidence that the sponsor needs assistance in many aspects of her daily care and that while she has been granted a Level Four Home Care Package, she requires more assistance. Furthermore, the Tribunal is concerned that despite the length of time between the Department’s refusal decision and the Tribunal consideration of the application little effort had been made to identify suitable care options beyond the Home Care Package. Indeed, some evidence was submitted indicating that a place with Chinese language speaking staff and facilities was available.
114.The Tribunal considered the reasons put forward as to why care obtained from welfare, hospital, nursing or community services would not be suitable for the sponsor. They included that:
•the sponsor will be uncomfortable because the staff will not know her history or her personality and that this will be worse if the staff are not Chinese and do not speak Cantonese.
•the sponsor worries about things including about her deteriorating condition, that she is forgetful and that she has a number of functional impairments.
•the sponsor was assessed as having severe symptoms of anxiety, depression, complicated grief and loss.
•the Covid-19 pandemic has been profoundly troubling for many Australians and that the introduction of a viral vector should raise a significant duty of care.
•the assistance of two people is sometimes required.
•the sponsor is personally vulnerable and has become reliant on the applicant and she has not cared for by any other person.
115.In relation to the need for the sponsor to be provided care in culturally and linguistically appropriate is acknowledged and in this regard the Tribunal notes that the evidence submit indicate that a number of locations employ Cantonese speaking staff. No evidence was provided as to why Thornleigh being in the upper North Shore, was considered not suitable by the staff of the migration representative.
116.The Tribunal accepts that the Covid-19 pandemic is troubling for many Australians and that any provider of services in the aged care sector has a duty of care.
117.The Tribunal accepts that Mr Thornell assessed the sponsor as having severe symptoms of anxiety, depression, complicated grief and loss sponsor and that the sponsor worries about things including about her deteriorating condition, that she is forgetful and that she has a number of functional impairments. No evidence was presented that since the assessment in December 2020 that she has been receiving treatment for her mental health but in any event, the Tribunal takes the view that her mental health and functional impairments can be addressed through selection of suitable welfare, hospital, nursing or community services that is most suitable for the sponsor.
118.The Tribunal accepts that in some situations, such as when her hair is being washed, the assistance of two people is sometimes required to support the sponsor. The Tribunal is of the view that professionally trained aged care service providers are able to ensure that such needs are addressed.
119.The Tribunal accepts that the sponsor is personally vulnerable and has become reliant on the applicant and she has not [been] cared for by any other person. Given this, the Tribunal considers that a period of transition will be required to enable her to adjust to any new care arrangements that are put in place for her.
In relation to the Tribunal’s reasons in these paragraphs:
(a)The “evidence” to which the Tribunal referred in the last sentence of [113] is contained in the statutory declaration of Ms Tavui dated 4 November 2020 at CB 511-513.
(b)The Tribunal at [114] used the phrase “included that” in listing in six dot points its consideration of “reasons put forward as to why care obtained from welfare, hospital, nursing or community services would not be suitable for the sponsor”. I consider that, on a fair reading of [114], the “reasons put forward” referred to by the Tribunal at [114] comprised the reasons set out by the Tribunal in its summary of the evidence and submissions before it, which reasons are collected in paragraphs 35 above. The Tribunal, by using the word “included”, indicated that it was not intending to exhaustively list the reasons it considered in the six dot points in [114]. That the Tribunal did not expressly refer to a particular reason in a dot point at [114] does not mean the Tribunal did not consider the reason.
(c)The Tribunal’s statement at [115] that “the evidence submit[ted] indicate that a number of locations employ Cantonese speaking staff” is supported by Ms Tavui’s statutory declaration at CB 511-513.
The Tribunal concluded at [121]:
Overall, on the evidence provided, the Tribunal is not satisfied that the assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e) are not met.
As stated in paragraph 5(b) above, the words “cannot reasonably be obtained” in reg 1.15AA(1)(e) “must be construed by reference to reasonableness from the point of view of the person requiring assistance, and not only by reference to the reasonable availability of the assistance from other sources” (Biyiksiz at [20]) and, for this reason, “factors that are subjective to the person requiring long-term assistance will be of relevance in determining whether assistance can reasonably be obtained by that person from sources other than an applicant for the relevant visa”: Biyiksiz at [21].
I consider that the Tribunal, consistent with the propositions from Biyiksiz, in the course of reaching its conclusion at [121], considered factors subjective to the Sponsor, including cultural, linguistic and personal factors. That the Tribunal was not persuaded by the applicants’ submissions on this issue does not mean the Tribunal did not consider them.
The applicants complain at AS [40] and [41] that the Tribunal “does not … grapple with” the applicants’ submission “that it was culturally inappropriate for the sponsor to allow any other person than her own son and daughter-in-law to give her care and assistance”. Mr Hughes did not clearly explain what additional step the Tribunal needed to take in order to “grapple” with the submission. For reasons explained above, I consider that the Tribunal carefully considered the applicants’ submissions concerning the Sponsor’s cultural, linguistic and personal preferences. I am not persuaded that the Tribunal fell into jurisdictional error in the manner in which it considered and had regard to the applicants’ submissions and evidence concerning this issue.
Ground 1 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 2
It is stated in ground 2 that the Tribunal “failed to take into account the BUPA Carer Visa Medical Certificate and/or failed to give proper, genuine and realistic consideration to it and therefore erred in its application of ‘the assistance’ under reg 1.15AA”.
The applicants’ written submission puts the point a little differently. It is stated at AS [44] and [45] that, while the Tribunal was aware of the BUPA Carer Certificate, “no part of the Tribunal’s reasons actually engaged with the assistance required by the [Sponsor] identified in the Certificate” and “nor does any of the Tribunal’s analysis of whether ‘assistance’ might be obtained or provided have regard to the actual assistance that the certificate identifies”. AS [45] continues:
Thus, the Tribunal’s analysis of the ability of family members to provide assistance is not analysed by reference to any particular assistance. The Tribunal simply found that it was not satisfied that 3 family members could not “provide assistance”: [105], [107]. The type of assistance, and whether it meets the certified needs, was not analysed at all. The same is also true of the assistance that could be provided by welfare, hospital, nursing or community services at [114] – [120]. Conspicuously absent is any reference to the assistance that the sponsor actually requires.
It is stated at AS [46] that the Tribunal in the present matter made the same error as was discussed in El-Chahini.
The BUPA Carer Certificate at CB 102-109 recorded, among other matters, that:
(a)the Sponsor required assistance with mobility, bathing/showering, toileting, dressing/grooming, eating/feeding and supervision of personal safety; and
(b)the Sponsor required personal care and attention on a daily basis to carry out routine bodily functions and constant supervision or monitoring because the Sponsor may be a danger to herself or another.
The Tribunal, in the course of summarising the written evidence before it under the heading “Written Evidence”, stated at [52] in relation to a submission by the applicants’ representative provided to the Tribunal on 2 October 2020:
The covering submission submits that the applicant is the primary carer for his elderly mother, the sponsor, and that medical reports indicate that the sponsor has a permanent need for assistance due to a suite of medical conditions that render her incapable of attending to the practical aspects of daily life. It was submitted that this assistance cannot reasonably be obtained from any other relative in Australia nor can it reasonably be obtained from welfare, hospital, nursing or community services in Australia. The submission goes on to refer to relevant clauses of the Regulations and refers to some case law. It outlines information provided in medical assessments.
The “information provided in medical assessments” referred to in the last sentence of [52] appears at page 7 of the representative’s submission. The information refers to the BUPA Carer Certificate and summarises the Sponsor’s medical conditions and need for assistance referred to in the BUPA Carer Certificate. Page 7 also summarises a more recent medical assessment undertaken by the Sponsor.
To similar effect, the Tribunal at [81] noted that a post-hearing submission dated 19 February 2021 included “a description of the sponsor’s … medical condition”. The description of the Sponsor’s medical condition, which appears at CB 677, summarises the Sponsor’s medical conditions and need for assistance referred to in the Bupa Carer Certificate.
I consider that the Tribunal, although it did not expressly refer to the BUPA Carer Certificate in its summary of the written evidence before it, was aware of the existence and content of the document. That the Tribunal did not expressly refer to the BUPA Carer Certificate does not mean the Tribunal overlooked it: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]-[47]; KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111; 292 FCR 15 at [54].
In order to evaluate ground 2 in the Amended Application, it is necessary to understand the structure of the Tribunal’s reasons at [96]-[122] under the heading “Conclusions”.
First, the Tribunal at [100]-[112] “considered the evidence regarding the possibility of the sponsor’s other family members assisting with the provision of care required by the sponsor in combination with other services”: at [100]. The phrase “in combination with other services” indicates that the Tribunal did not limit its consideration to whether the Sponsor’s Australian family members could provide all assistance mentioned in reg 1.15AA(1)(b)(iv). Instead, the Tribunal’s approach allowed for the possibility that the relevant assistance could be provided in part by the Sponsor’s Australian family members and obtained in part from welfare, hospital, nursing or community services. As stated in Valencia at [10] (see paragraph 5(d) above), this approach was permissible.
Second, the Tribunal at [112], in reaching its conclusion concerning whether assistance could be provided by one of the Sponsor’s Australian relatives, stated:
Overall, the evidence regarding whether the assistance mentioned in r.1.15AA(1)(b)(iv) cannot reasonably be provided by any other relative to the sponsor was not persuasive. It appeared somewhat contradictory and lacked substance and on the face of it was self-serving.
The Tribunal added at [113] that it “accepts the evidence that the sponsor needs assistance in many aspects of her daily care and that, while she has been granted a Level Four Home Care Package, she requires more assistance”.
I consider that the combination of the reference at [112] to “the assistance mentioned in reg 1.15AA(1)(b)(iv)” and the description of assistance at [113] indicates that the Tribunal was aware that the relevant assistance was that contained in the BUPA Carer Certificate.
Third, the Tribunal at [113]-[120], after noting at [113] that the Sponsor requires “more assistance” than that provided in the Level Four Home Care Package, considered whether assistance could be obtained from welfare, hospital, nursing or community services in Australia. A feature of the Tribunal’s reasons in considering whether assistance could be obtained from welfare, hospital, nursing or community services in Australia was that the Tribunal was critical of the limited efforts made by the applicants or their representative to investigate this matter. The Tribunal’s criticisms are collected in paragraph 23 above.
Fourth, the Tribunal at [121] concluded:
Overall, on the evidence provided, the Tribunal is not satisfied that the assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e) are not met.
On a fair reading of this finding, the reference to “the assistance” is a reference to “the assistance” at [112], being “the assistance mentioned in reg 1.15AA(1)(b)(iv)”.
While the Tribunal did not explain:
(a)what part of “the assistance mentioned in reg 1.15AA(1)(b)(iv)” might be provided by the Sponsor’s Australian relatives and what part might be obtained from welfare, hospital, nursing or community services in Australia; or
(b)from which nursing homes in the statutory declaration of Ms Tavui the Sponsor might obtain assistance,
cases such as Valencia referred to in paragraph 5(f) above indicate that the Tribunal was not required to provide these details.
For the above reasons, I consider that the Tribunal’s finding at [121] properly addressed the assistance in the BUPA Carer Certificate.
As stated above, Mr Hughes relied on the reasoning in El-Chahini. As stated in El-Chahini at [19], “each case turns on its own facts in terms of the material put before the Tribunal and the reasons for decision of the Tribunal”. A point of distinction between El-Chahini and the present matter is that, in El-Chahini, the Tribunal considered that the sponsor’s daughter and grandchildren could provide the sponsor with the required care. In the present case, the Tribunal, based in part on what it considered to be “perfunctory attempts” (Tribunal at [99]) by the applicants to provide evidence “regarding the possibility of accessing assistance from welfare, hospital, nursing or community services”, was not persuaded that the assistance could not reasonably be obtained from these services. This is an important distinction. In El-Chahini, Jagot J at [27]-[28] was concerned that the Tribunal did not explain “how it was that the mother’s needs could reasonably be met by her family in Australia” or “the impact of those needs on the capacity of [the Australian relatives] to provide such assistance”. In contrast, in the present matter, in the absence of evidence to the contrary or unusual circumstances, it is likely that a nursing home with Cantonese speaking staff could provide assistance to the Sponsor if she moved into the nursing home. I agree with the first respondent’s written submission that, in relation to the assistance the Sponsor needed identified in the BUPA Carer Certificate, “these are the usual forms of assistance that would be provided to residents in aged care facilities”.
Ground 2 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 3
It is contended in ground 3 that the Tribunal failed to conduct a review as required by s 359 of the Act. The applicants’ contention is explained in the particulars to ground 3 as follows:
(a)At the hearing on 8 October 2020, the Tribunal informed the applicants that they should provide further and more recent evidence as to the availability of assistance from welfare, hospital, nursing or community services for the purpose of satisfying reg 1.15AA(1)(e) of the Regulations.
(b)Prior to the hearing on 28 January 2021, the applicants submitted further evidence relevant to that issue.
(c)At the hearing, “the Tribunal said that it was satisfied by that material”. But, “contrary to that indication”, the Tribunal indicated in its reasons for decision that it was not satisfied by the material.
(d)The Tribunal’s conduct involved a failure to conduct a review as required by s 359.
For the following reasons, this ground does not identify a jurisdictional error in the Tribunal’s decision.
First, a review of the transcript of the Tribunal hearing on 28 January 2021 indicates that the Tribunal did not tell the applicant that it was satisfied by the evidence contained in the statutory declaration of Ms Tavui concerning the availability of assistance from welfare, hospital, nursing or community services. Mr Hughes relied on the following exchange between the Tribunal member (TM) and the applicants’ representative (AR) at the end of the hearing, recorded on page 28 of the transcript:
AR: Member, first of all, do I take it that you won’t be taking evidence from my staff members who did statutory declarations with respect to home care or residential care, no?
TM: I am satisfied with those documents.
However, as recorded on page 24 of the transcript, there was a long exchange between the Tribunal member and applicants’ representative where the member made it clear that “the availability of suitable services” within the meaning of reg 1.15(1)(e)(ii) was a live issue that the member would consider. I consider that it would have been clear to the applicants’ representative from this exchange that “the availability of suitable services” within the meaning of reg 1.15(1)(e)(ii) was a live issue. Further, the member’s statement recorded on page 28 of the transcript that she was “satisfied with those documents” responded to the representative’s question whether the member wanted to take evidence from the representative’s staff members who were authors of some “statutory declarations with respect to home care or residential care”, most significantly the statutory declaration of Ms Tavui dated 4 November 2020. To the extent that the member’s statement may have more than one possible meaning, I consider that the more obvious or natural meaning is that the member was satisfied with the authenticity of the statutory declarations or did not have any questions to ask the authors of the documents in relation to their content or subject-matter.
Second, Mr Hughes contended, as an alternative position, that, even if the Tribunal member did not communicate to the representative that she was satisfied that the relevant assistance could not be obtained from welfare, hospital, nursing or community services in Australia, the applicants’ representative believed that the Tribunal was satisfied and was thereby misled into not providing a post-hearing submission on this issue. Mr Hughes relied on a statement by the representative in a post-hearing submission that (CB 682):
To the extent that the Tribunal requested additional submissions with respect to residential and home care, which have been addressed at length in statutory declarations by Ms Gabriela Mancilla and Ms Lil Tavui …, and the Tribunal chose not to examine Ms Mancilla and Ms Tavui, we assume that the Tribunal accepts that appropriate surveys of available services have been conducted.
However, the post-hearing submission continued with a paragraph explaining why “it is not reasonable to obtain residential care for Ms Cai” and provided reasons in support of the submission: see CB 683. I am not persuaded by the materials before the Court that the applicants’ representative was misled. Further, even if the representative genuinely believed by a representation by the member at the end of the hearing on 28 January 2021 that the member was satisfied that the relevant assistance could not be obtained from welfare, hospital, nursing or community services in Australia, I consider that the representative’s belief was unreasonable. An unreasonable misunderstanding by a representative of a statement by a Tribunal member during a hearing does not mean the Tribunal failed to conduct a review as required by s 359.
For the above reasons, ground 3 does not identify a jurisdictional error in the Tribunal’s decision.
CONCLUDING OBSERVATION
Based on materials in the Court Book, I am sympathetic to the Applicant to the extent that he appears to be a devoted son to the Sponsor who has now spent a number of years in Australia caring for the Sponsor full-time, and he is willing to continue to care for the Sponsor full-time. However, first, the role of the Tribunal was to determine whether the Applicant satisfied the criteria for a subclass 836 carer visa, including whether the Applicant was a “carer” within the meaning of reg 1.15AA. As stated in Valencia at [10], since “subcl 1(e) is cast in the negative it must be shown that the direct assistance cannot be reasonably provided or obtained” and, as a result, in some cases, such as where a sponsor can afford to pay for residential care, “this may be difficult to demonstrate”. Second, the role of the Court is limited to determining whether there is a jurisdictional error in the Tribunal’s decision. For the above reasons, I am not persuaded there is a jurisdictional error in the Tribunal’s decision.
COSTS
At the conclusion of the hearing, Ms Gollan did not have instructions to propose an amount in respect of costs. I will hear submissions on costs at the delivery of judgment.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 27 March 2025
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