Taha v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 789
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Taha v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 789
File number(s): SYG 2017 of 2020 Judgment of: JUDGE CAMERON Date of judgment: 30 August 2023 Catchwords: MIGRATION – Carer visa – refusal – review of Administrative Appeals Tribunal (“Tribunal”) decision.
ADMINISTRATIVE LAW - Allegation the decision of the Tribunal was affected by jurisdictional error – allegation Tribunal failed to consider “matching up” of medical needs and available services - allegation Tribunal did not put relevant information to the applicant under s.360 of the Migration Act 1958.
Legislation: Migration Act 1958 (Cth) s 474
Migration Regulations 1994 (Cth) regs 1.03, 1.15AA(1)(e), sch 2 cls 116.211, 116.221
Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration and Border Protection v Nguyen (2017) 254 FCR 522
Biyiksiz v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 814
El Achkar v Minister for Immigration and Border Protection [2015] FCCA 2165
Nguyen v Minister for Immigration and Border Protection [2016] FCA 688
Division: General Number of paragraphs: 32 Date of hearing: 17 August 2023 Place: Sydney Counsel for the Applicant: Mr D. Godwin Counsel for the First Respondent: Ms N. Maddock Solicitor for the First Applicant: Minter Ellison ORDERS
SYG 2017 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RANIA TAHA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE CAMERON
DATE OF ORDER:
30 August 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
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 CAMERON
INTRODUCTION
The applicant in this proceeding, Rania Taha, sponsored an application for an Other Family (Migrant) (Class BO) Carer Subclass 116 visa made on 19 December 2016 to what is now the Department of Home Affairs (“Department”) by her sister, Rawaa Taha. The visa was refused by a delegate (”Delegate”) of the first respondent (“Minister”) on 21 March 2018. The applicant then applied to the Administrative Appeals Tribunal (“Tribunal”) for a review of that departmental decision. She was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In this judicial review proceeding the Court’s 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 Act 1958 (Cth) (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
LEGISLATION
At all material times, cl.116 of sch.2 to the Migration Regulations 1994 (Cth) (“Regulations”) relevantly provided as follows:
116.21—Criteria to be satisfied at time of application
116.211
(1)The applicant claims to be a carer of an Australian relative of the applicant.
(2)In this clause, Australian relative, in relation to an applicant, means a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
…
116.22—Criteria to be satisfied at time of decision
116.221
The applicant is a carer of the Australian relative mentioned in clause 116.211.
…
At all material times the term “carer” was relevantly defined in the Regulations as follows:
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 (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.
…
Regulation 1.03 defined the term “relative” in the following terms:
relative, in relation to a person, means:
(a)…
(b) in any other case:
(i) a close relative; or
(ii)a grandparent, grandchild, aunt, uncle, niece or nephew, or a step‑grandparent, step‑grandchild, step‑aunt, step‑uncle, step‑niece or step‑nephew.
and “close relative” relevantly as:
close relative, in relation to a person, means:
…
(b) a child, parent, brother or sister of the person; or
…
BACKGROUND FACTS
Relevant facts were summarised by the Tribunal as follows:
(a)the applicant lived with her husband, their 4 year old son and their 2 year old daughter in Guildford, a suburb of Sydney;
(b)the applicant’s son was born on 16 June 2016 with Treacher Collins Syndrome and suffered from a cleft palate, severe upper airway obstruction, severe feeding intolerance, nasopharyngeal airway dependence, hearing loss and hip dysplasia. He required hearing aids and was fed via a gastrostomy tube. A Carer Visa Assessment Certificate issued on 7 November 2016 recorded that the applicant’s son’s condition impaired his ability to attend to the practical aspects of daily life, for which he would require direct assistance for a period of at least 2 years;
(c)the applicant’s husband worked as a panel beater three days per week and had sustained an injury resulting in the loss of three fingers on one hand. The applicant claimed her husband provided essentially no assistance or care in relation to their son, did not understand the type of care her son required or how to look after him. Staff at Westmead Hospital had tried to teach him how to utilise and attach his son’s feeding tube but he was unable to learn and could not manage it. Further, the applicant asserted that her husband had been “difficult” and said that it was “not his job” to look after their child;
(d)the applicant was responsible for raising her two year old daughter and for her son’s care which included:
(i)feeding him via a gastrostomy tube;
(ii)attending to his personal hygiene;
(iii)transporting him to hospitals and doctors’ surgeries for medical appointments; and
(iv)giving him his medication;
(e)the applicant’s sister, Rawaa Taha, had learned how to care and assist the applicant’s son when he had visited Lebanon in 2019 for more than 6 weeks and the applicant expressed a strong preference that her sister provide the care her son required and to do so at their home;
(f)the applicant had sought professional psychological assistance for stress and anxiety due to the difficulty she faced raising her son and daughter;
(g)the applicant’s evidence was that at the time of the review, she was receiving assistance from the NDIS for the care of her son, albeit limited to the provision of some medical equipment and visits from a speech therapist. The applicant’s evidence at the Tribunal hearing had also been that she:
(i)had requested further assistance from the NDIS but had been told they did not provide 24/7 care;
(ii)had received visits from a hospital social worker;
(iii)had made enquiries into further care available beyond the NDIS, but had been informed of care options which were prohibitively expensive;
(iv)had placed her son in a free childcare option for two days per week for a period of about three months but it had not been a success;
(v)had not applied for respite care as her son would not accept strangers; and
(vi)had not applied to any community nursing agencies as her son was reluctant to be with anyone but herself or her sister.
After its hearing, the Tribunal wrote to the applicant asking that she provide a list of all her family members in Australia, their respective relationship to her, their suburbs of residence and their respective ages. The applicant responded with a list of 21 relatives who were either Australian citizens or permanent residents and lived in Sydney. The applicant claimed that she was not in contact with some of them and that all of them were unable to or did not help her with her son’s care. One relative of the applicant, Hana Taha, gave oral evidence at the Tribunal hearing in support of those claims.
THE TRIBUNAL’S DECISION AND REASONS
After discussing the claims made by the applicant and the evidence before it, the Tribunal affirmed the delegate’s decision. The Tribunal based its decision on the following findings and reasons:
(a)the Tribunal accepted that the applicant had a strong preference for the required care to be provided in her home by her sister and that her psychological heath had been challenged by looking after her son while also raising her daughter, causing her stress and anxiety and leading her to seek professional assistance;
(b)although the applicant was shouldering significant responsibility, the Tribunal did not accept that her husband had provided her no assistance whatsoever and that he was completely unwilling and unable to do so. The Tribunal did accept that the applicant’s husband had sustained a major hand injury but found that there was no other evidence that he was incapable of providing assistance and care for their son. In making its determination the Tribunal noted that they lived together, that the applicant’s husband usually only worked 3 days a week and that correspondence recorded that the applicant had indicated to a Westmead Hospital social worker that her husband’s inability to provide assistance was because of his casual work and did not record any unwillingness or inability to provide assistance;
(c)although the applicant had provided a statutory declaration stating why her aunts were unable to provide her with the assistance required, it was not satisfied that her evidence substantiated that claim. The Tribunal accepted that the applicant might not have had a significant relationship with certain family members, and that they might have been limited in the degree of assistance and care they could individually provide due to their own employment and family circumstances, but noted that no satisfactory corroborative evidence from any of the 21 relatives named by the applicant had been provided to substantiate her claim that they were unable or unwilling to assist her on an individual basis. The Tribunal was not satisfied that the applicant’s family could not individually, collectively on a roster basis or in conjunction with external care providers, provide the care and assistance required, particularly given the large number of them residing in relative proximity to her. It was not satisfied, on the evidence before it, that the assistance required by the applicant could not be reasonably provided by a relevant relative, namely her husband, with additional support from her numerous family members who lived within a reasonable distance. The Tribunal found therefore that the requirements of r.1.15AA(1)(e)(i) had not been satisfied; and
(d)the Tribunal found that there was no evidence before it of the applicant having made any effort to procure assistance beyond that which she was receiving from the NDIS, a hospital social worker and the Royal Institute for Deaf and Blind Children. It found, based on what it described as the small amount of corroborative and supporting evidence before it, that the applicant’s attempts to obtain assistance from welfare, hospital, nursing or community services had been extremely limited and it was not satisfied that those services could not be reasonably obtained in Australia. The Tribunal found as a consequence that the requirements of r.1.15AA(1)(e)(ii) had not been met.
Overall, the Tribunal was not satisfied that the assistance required could not reasonably be provided by a relevant relative or obtained from welfare, hospital, nursing or community services and found therefore that the requirements of r.1.15AA(1)(e) had not been met, which meant that the applicant’s sister did not meet the definition of “carer” and so did not satisfy the requirements of cl.116.221 of the Regulations and the criteria for a subclass 116 visa.
THE PROCEEDING IN THIS COURT
In her (further) amended application filed on 16 August 2023 the applicant alleged:
1. …
2. The Tribunal misapplied the applicable law because it did not consider how the care it identified the relatives might provide “matched up” with the needs of the review applicant's son.
3. …
4. …
5. The Tribunal misunderstood the statutory test as it required the review applicant to establish that there was no community assistance available to her.
6. …
7. The Tribunal failed to comply with s.360 of the Act
Particulars
Before the delegate the critical issue was the assistance which the review applicant's aunts could reasonably provide to her. The review applicant's cousins were not mentioned by the delegate. In the course of the hearing the Tribunal asked the review applicant about what cousins she had and asked her to prepare a list of them and send it to the Tribunal. The Tribunal stated
T. So you will send me that list of all of those names
RA. Can you give me 2 days and then I will send them to you. It is only their names and where they live no?
T.Their names and where they live um maybe if you could also, just thinking what else could be useful for us here. Um just their names and where they live thank you.
Then at the end of the hearing the Tribunal stated
T. I will write to you , we will send you an email today or if not tomorrow outlining the information I would like you send through to me in terms of other family members here in Australia. Ok. We will make that clear in that email what we are looking for. Ok.
The Tribunal then wrote to the review applicant and in the following terms: "you are requested to provide the following information:
A list of all family members in Australia. their specific relationship to you, their suburbs of residence and their respective roles.
A critical issue in the Tribunal's ultimate determination of the application was the failure of the review applicant to provide corroborating evidence from her cousins as to why it was not reasonable for them to provide assistance to her. The applicant was not advised that this was an issue in the review. The express representation by the Tribunal as to what evidence it required concerning those cousins meant that the need for such corroborating evidence was not obvious.
8.The Tribunal's finding that it was not satisfied that the care required is not reasonably obtainable from available welfare, hospital, nursing or community services was based upon what it considered would be reasonable steps to enquire into and obtain services rather than what could reasonably be obtained by a person in the circumstances of the review applicant.
9. The Tribunal failed to properly apply reg 1.15AA(1)(e) to the particular facts and circumstances of the sponsor.
Grounds 1, 3, 4 and 6 were abandoned.
CONSIDERATION
Ground 2 – reg.1.15AA(1)(e)(i)
The second ground of the application alleged that the Tribunal erred by failing to consider how the care which it identified the applicant’s relatives might provide “matched up” with the needs of the applicant’s son. The applicant referred in that regard to the following passage in the Tribunal’s reasons:
… the Tribunal furthermore notes that the review applicant has listed some 21 relatives all living either locally or within reasonable proximity. The Tribunal does not accept on the scarce evidence before it that they are unwilling and unable to provide any assistance the review applicant requires either individually, collectively or in conjunction with welfare, hospital, nursing or community services.
In Minister for Immigration and Border Protection v Nguyen (2017) 254 FCR 522 the Tribunal had considered whether care for respondent’s mother, who was in her late 80’s at the time of its review, could not reasonably be obtained from welfare, hospital, nursing or community services in Australia. In the course of its review the Tribunal made its own enquiries into services available to the respondent’s mother from which it concluded that there were 73 aged care facilities, some of which had staff who could speak Vietnamese, from which she could reasonably obtain assistance in the form of a residential care place. In that case, the Full Court of the Federal Court referred with approval to Biyiksiz v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 814, where Gray J concluded in the context of a visa application concerning a special need relative that the phrase “cannot reasonably be obtained” had to be read in the context of the person needing assistance. In Nguyen at 531 [33] the Full Court said:
The Tribunal did … consider the circumstances in which the mother found herself, including her desire to stay at home; the extent to which family members could render assistance; her commitment to her church; and her dietary and social needs. That which is “missing”, with respect, from the Tribunal’s analysis, are findings in respect to the services in fact provided by one or other (or all) of the 73 residential care facilities and findings as to the manner in which the mother could reasonably obtain a service which matched her own personal circumstances. The failure of the Tribunal to make such findings founds a conclusion that the Tribunal did not consider that such findings were necessary to a proper application of reg 1.15AA(1)(e) to the facts. (emphasis added)
The applicant submitted that the Tribunal had made a similar error in this case and had said, in effect, that some of the 21 named relatives living near her must have been a position to help her without knowing whether they could provide the sort of support that was needed. She argued that without having had any foundation to assume that her relatives could have helped her, the Tribunal found against her because she had not proved to its satisfaction that they could not.
The facts of the Nguyen case are not on all fours with this case. In Nguyen, the Tribunal made its own enquiries and inferred, without identifying a proper basis for doing so, that care suitable to the particular requirements of the respondent’s mother could be obtained from the aged care facilities it had identified with the consequence that the need for a carer visa had not been demonstrated. In this case, acknowledging the care requirements of the applicant’s son, the Tribunal found that the applicant had not demonstrated to its satisfaction that those requirements could not reasonably be met with the assistance of the family members whom she had listed in response to its enquiry. In Nguyen it was found that care could reasonably be provided and in this case it was found that the applicant had not demonstrated that care could not reasonably be provided.
Although there is no formal onus of proof in matters such as this, an applicant must nevertheless put material before the Tribunal that will satisfy it that the relevant visa criteria have been satisfied. The criterion relevant to the second ground of the application is that the relevant assistance could not be reasonably be provided by the applicant’s relatives: El Achkar v Minister for Immigration and Border Protection [2015] FCCA 2165 at [11].
It was not suggested to the Tribunal that care of the applicant’s son required training or experience of any particular sophistication. In any event, the Tribunal implicitly found to the contrary when it concluded that the applicant’s husband ought to be expected to participate in the provision of his care. It can be inferred that the Tribunal considered at least some the applicant’s relatives to have been at least as skilled in the care of a child, albeit a child with significant disabilities, as the applicant’s husband. The issue the applicant raised in relation to the contribution her family might be expected to made was not their lack of suitability but their lack of availability and willingness. It was to those matters that the Tribunal directed its attention in the passage from its reasons quoted earlier at [13].
What the Tribunal decided was that it was not persuaded that the applicant’s relatives were so lacking in availability and willingness to help that they would not provide assistance sufficient for the applicant’s husband to be able to provide the applicant with the support she required. That was a finding of fact and absent any other form of legal error affecting it, is not amenable to judicial review: Nguyen v Minister for Immigration and Border Protection [2016] FCA 688 at [38]-[40] per Buchanan J.
Grounds 5, 8 and 9 – reg.1.15AA(1)(e)(ii)
The applicant referred, in the context of grounds 5, 8 and 9 of the application, to the Tribunal’s findings that although over a number of years she had been without any substantive support in the care of her son, she had not satisfied it that she had, in that period, made:
… any efforts to procure care and assistance from community, government, hospital and welfare organisations beyond the assistance being received through the NDIS, the Royal Institute for Dead and Blind Children and through the hospital social worker,
and found that she had also not sought respite care or placed her son in childcare for more than a limited period and had not applied to any community nursing agencies. The applicant referred to the conclusion the Tribunal drew from these matters:
… The tribunal is not however satisfied that the care required is not reasonably obtainable from available welfare, hospital, nursing or community services in the absence of the review applicant undertaking what it considers are reasonable steps to enquire into and attempt to obtain such services (beyond the NDIS services which the Tribunal accepts).
That sentence of the Tribunal’s decision concludes with the following passage, which was omitted from the applicant’s written submissions:
… the Tribunal cannot be satisfied that these services and this care is not reasonably obtainable from welfare, hospital, nursing or community services in Australia.
The applicant rhetorically asked why, given the stresses that burdened her, she would not have sought external assistance if that were a reasonable option for her and her son. She argued that the Tribunal had, in essence, concluded that she had been acting unreasonably for 4 years by not accessing unspecified community assistance that was reasonably obtainable by her although it did not identify what services should have been sought out and why it would have been reasonable to obtain them. The applicant submitted that her task had been to demonstrate that the steps she had taken were reasonable, not what had been available to be accessed, and that in any event the issue was what was reasonable from her perspective and not what the Tribunal thought was reasonable. The applicant argued that the Tribunal’s approach represented a failure to properly apply reg.1.15AA(1)(e) of the Regulations to her particular circumstances.
The visa criterion relevant to grounds 5, 8 and 9 of the application is that the relevant assistance could not reasonably be obtained from welfare, hospital, nursing or community services in Australia.
The applicant’s allegations and submissions mischaracterise the Tribunal’s finding. The relevant intermediate finding was not that the applicant’s actions or inaction had been reasonable or unreasonable or that services had been or had not been reasonably available, but that her lack of enquiry meant that she was not in a position to say what services had not been reasonably available to her. The Tribunal’s concern was that, absent such evidence, her arguments as to the unavailability of such services lacked persuasive force and its ultimate conclusion was that, in the circumstances, they were indeed unpersuasive. It found:
The Tribunal considers on the evidence before it that the attempts that have been made to obtain welfare, hospital, nursing or community services have been extremely limited. On the basis of such little corroborative and supportive evidence concerning attempts to access such assistance, the Tribunal is not satisfied that the assistance (needed) cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e)(ii) are not met.
That too is a finding of fact which, absent any other legal error, is not reviewable in this proceeding.
Ground 7 – s.360
The Delegate’s decision had included a finding that the applicant’s statutory declaration contending that her three aunts were unavailable to assist her was unsubstantiated by any evidence from those potential witnesses corroborative of those claims. The Delegate found that the applicant’s aunts “could reasonably provide the assistance needed”. In her response to the Tribunal’s request for information, the applicant identified 21 relatives living nearby, including 13 cousins. The Tribunal relevantly found:
The Tribunal cannot however accept, on the paucity of corroborative evidence before it, the claim that the review applicant’s family locally is unable and unwilling to assist her. No evidence has been provided from any of the 21 named relatives to substantiate the claims that they are either unable or unwilling to assist the review applicant.
Section 360 of the Act relevantly provides:
360 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
…
Ground 7 of the application alleged that the Tribunal breached s.360 of the Act by misleading the applicant into believing that she needed to do no more in response to its request for information about her relatives than provide their details, rather than to also expand on why they could or would not assist her with her son’s care. The applicant submitted that she should have been, but was not, notified by the Tribunal that the availability and willingness of her cousins to provide her with assistance in the care of her son might be an issue determinative of the review.
The relevant issue before the Delegate had been whether the applicant could demonstrate that the assistance she needed could not reasonably be obtained from her relatives. Relevantly, that remained the relevant issue before the Tribunal. The evidence that the applicant led in relation to that issue was a matter for her.
Although the Tribunal did note that the applicant had not led any evidence from her wider family to the effect that they were unwilling or unable to assist her, the relevant finding made by the Tribunal was not that the applicant had failed to adduce additional evidence concerning her wider family, and in particular her cousins, but that such evidence as she had led on the issue of the unavailability of assistance from her relatives did not persuade it that relevant support was not reasonably available to her. The failure of the applicant to adduce evidence from her wider family underlined the paucity of her evidence on the subject but did not form a separate or new basis of decision that s.360 required be identified to her.
No breach of s.360 of the Act has been made out.
CONCLUSION
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 30 August 2023
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