Tran v Minister for Immigration

[2015] FCCA 3395

FEDERAL CIRCUIT COURT OF AUSTRALIA

TRAN v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3395

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision (Tribunal) - Other Family (Migrant)(Class BO) visa (Carer Visa) – whether care could reasonably be provided to the review applicant by the review applicant’s children living in Australia – whether there was an issue as to whether one of the review applicant’s sons medical condition rendered him violent towards others including the review applicant – whether there was an issue that the review applicant had moved out of her home in order to enhance the visa applicant’s prospects of being granted a Carer Visa – whether the Tribunal was bound to give the review applicant notice of these issues – whether the Tribunal gave the review applicant notice of these issues – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.360(1)

Migration Regulations 1994 (Cth), reg.1.15AA(1), 1.15AA(1)(e), 1.15AA(2)

Commissioner for Australian Capital Territory Revenue v Alphaone Pty [1994] FCA 1074; (1994) 49 FCR 576

SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 228 CLR 152

Applicant: THI TY TRAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1014 of 2014

Judgment of: Judge Manousaridis

Hearing date: 12 November 2014

Date of Last Submission: 5 November 2014

Delivered at: Sydney

Delivered on: 18 December 2015

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: My T Nguyen Solicitors

Counsel for the Respondents: Mr J Smith SC

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application is dismissed.

2. The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1014 of 2014

THI TY TRAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By this application for judicial review, the applicant claims the second respondent (Tribunal), contrary to s.360(1) of the Migration Act 1958 (Cth) (Act), failed to give to the review applicant notice of two matters on which the Tribunal relied for affirming the decision of a delegate of the first respondent (Minister) not to grant the visa applicant and her family an Other Family (Migrant)(Class BO)(subclass 116) visa (Carer Visa).

Background

1. The applicant (review applicant) is an Australian citizen of Vietnamese origin. She is a widow, and suffers from severe dementia, osteoporosis, and other conditions. Because of her medical condition, the review applicant requires 24 hour high-level care and assistance in her daily living.[1]

   [1] CB102

2. The review applicant’s daughter (visa applicant), who also is a Vietnamese citizen, but, unlike the review applicant, resides in Vietnam, applied for a Carer Visa. She applied on 21 September 2012.[2] To have been entitled to a Carer Visa, the visa applicant had to satisfy the Minister she was a “carer” of the review applicant within the meaning of reg.1.15AA(1) of the Migration Regulations 1994 (Cth) (Regulations).

   [2] CB4

3. A person is a “carer” of another person within the meaning of reg.1.15AA(1) of the Regulations if, among other things:

   a)according to a certificate that complies with reg.1.15AA(2), the other person has a medical condition that is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and

   b)because of the medical condition, the other person has, and will continue for at least two years to have, a need for direct assistance in attending to the practical aspects of daily life; and

   c)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 . . .”

4. The delegate refused to grant a Carer Visa to the visa applicant because the review applicant’s “large family already in Australia can continue to provide the required care for the” review applicant, and because the delegate did not find any compelling reason for the visa applicant to travel to Australia to care for the review applicant.[3] The review applicant’s large family in Australia to which the delegate referred is the review applicant’s six children.

   [3] CB153

Review applicant’s case before the Tribunal

1. Before the Tribunal, it was submitted on behalf of the review applicant that assistance in attending to the practical aspects of the review applicant’s daily life cannot reasonably be provided by any of her six children living in Australia. In support of that case, the following matters were submitted to the Tribunal:

   a)One of the review applicant’s daughters lives in Canberra, has work and young children there, and cannot relocate to Sydney.[4]

   b)Another daughter has full time work, and cares for her child who suffers from developmental delay and who, therefore, requires assistance.[5]

   c)One of the review applicant’s sons (Son B) suffers from multiple medical and mental conditions, including psychosis.[6] He lives in the house[7] in which the review applicant lived (Home) until the day she moved to a friend’s home one or two weeks before the visa applicant applied for the Carer Visa.

   d)The third daughter of the review applicant (Daughter A) lives in the Home.[8] She is married and has full time employment. She has to take care of Son B who suffers from anxiety, depression, and psychosis, and who often has violent outbursts, which requires control and supervision.[9]

   e)Another of the review applicant’s sons (Son A) also lives in the Home,[10] and has full time employment and cares for Son B.[11]

   f)The third of the review applicant’s sons has full time employment, is married, but does not get along with his mother.[12]

   g)Approximately one week before 14 September 2013, the review applicant moved out of the Home because she was worried about her safety because Son B “suffers from mental conditions [and] has become violent” and she is concerned for her well-being.[13]

   [4] CB1, 117

   [5] CB1, 113

   [6] CB1, 125-127

   [7] Transcript page 4.15

   [8] Transcript page 4.15

   [9] CB1, 128

   [10] Affidavit of M Y Tran, annexure “A” (Transcript), page 3.30

   [11] CB1, 131

   [12] CB1, 121

   [13] CB37, [2]

Proceedings before the Tribunal

1. Son A gave evidence to the Tribunal that included the following: he lived in the Home; the Home was the family home; the Home has four bedrooms; until the review applicant moved out of the Home, Son A and Daughter A cared for the applicant; Son B is not very well; Son B became sick in 2007 with anxiety; he has never been in hospital, but he receives a disability pension; Son B began to have violent episodes in 2007 and 2008; those episodes consisted in Son B getting angry, hitting his head against the wall, and punching the door; Son B has not assaulted anyone; and Son A has never called the police because the matter is dealt with within the family.

2. In response to the Tribunal saying “[t]ell me why your mother moved”, Son A said that since early September 2012 Son B “get so violent on that day, so my mother very scared” and she “want to move out to the present house”.[14] The house into which the review applicant moved (Present House) is about ten minutes drive from the Home, and is owned by a friend of Son A’s father. The review applicant has her own room in the Present House, and the owners prepare food for her.

   [14] Transcript, p 8.25

3. In the course of her questioning Son A, the Tribunal member said to Son A she had to consider whether “the care can reasonably be provided by your family members in Australia”, and that the main issue “is whether the relatives in Australia can reasonably provide the care”.[15] The following exchange then took place:[16]

   Son A:I think we have to work full-time and in our family there is a sick – a very sick person, and we cannot provide them a good care in a good way, for both of them.

   Member:But why did that suddenly change in 2012?

   Son A:Yes.

   Member:It seems odd that the situation changes just a week or two before you lodge this application, when you have been managing to cope with it for years.

   Son A:We cope with it for two year. Is very tiring for us. Before that, we wish to sponsor our sister, but the case that my mother move out is not the thing we expect, because it is – it suddenly happened. So we had to – and she doesn’t want to stay in our house with my sick brother any more.

   [15] Transcript pages 16.45-17.5

   [16] Transcript, page 17.5-17.20

4. A little later the Tribunal member stated that the only medical report that relates to Son B was not “a very detailed medical report” and there was no evidence, apart from what Son A said, about Son B’s violent outbursts. [17] The Tribunal member allowed the review applicant to provide further medical evidence about Son B. The Tribunal member said:[18]

   It’s just too scant. This little bit of information is no good to me. I need details, lots of details, to be satisfied that you need to be caring for him, and that’s why you can’t care for your mother.

   [17] Transcript, page17.35

   [18] Transcript, page 18.15

5. The information the Tribunal required is evidenced in the following exchange:[19]

   [19] Transcript, page 18.45-19.20

   Son A:You mean my brother’s full history?

   Member:Yes, yes. Detailed medical evidence about your brother’s mental illness and details of incidents which occurred.

   Son A:Incidents. What does that mean?

   Member:Incidents reported to the doctor. So if this is an ongoing issue, I would expect there will be a lot of medical evidence about him, especially if he is causing distress and people are fearful of him. I need to be satisfied about that. . . .

   Son A:Yes, but you can see it from me.

   Member:Because I haven’t spoken to your mother, so I can’t get the evidence from her, because I think she has difficulty communicating properly now; is that correct?

   Son A:No, she is illiterate.

   Member:So I am relying on your evidence, but you have a vested interest in this matter because you want to get your sister out here, so I need independent evidence.

6. After the hearing, the Tribunal received a report from a consultant psychiatrist.[20] The report noted the psychiatrist first saw Son B in June 2012. By that time, Son B had been diagnosed with anxiety, osteoarthritis/chronic back pain, depression, rhinitis allergic, and psychosis with frequent episodes of violent behaviour and occasional thoughts of self-harm. The report stated the psychiatrist had seen Son B on four other occasions. On each occasion Son B told the psychiatrist that he hears various voices talking to him in Vietnamese to hurt himself, and he feels he is being followed and spied on. The report concluded that Son B suffers from “psychotic illness, namely schizophrenia”, and that he “continues to require full time care and supervision”.

   [20] CB206

Tribunal’s decision

1. The Tribunal was not satisfied that the review applicant’s children in Australia cannot provide the review applicant with the required care. Its reasoning is contained in the following passage from its reasons for decision:[21]

   The issue in the present case is whether the care cannot reasonably be provided by any other relative of the review applicant in Australia. The Tribunal notes that shortly before the time of application the review applicant was being cared for by her son, [Son A] and her daughter, [Daughter A] in the family home. It is claimed that the sponsor moved to a friend’s place because she was fearful of her son, [Son B]. The Tribunal accepts that [Son B] suffers from a psychotic illness and that he is under the care of a psychiatrist and taking medication. The Tribunal notes that the medical report from his psychiatrist mentions ‘violent outbursts resulting in self harm’ and his family reports that since December 2013, his violent outbursts are more regular and on each occasion the family members had to ‘refrain (sic) him from injuring himself’. The medical reports do not suggest that [Son B] is a danger to others. The Tribunal is not satisfied that the review applicant moved from her home because she feared her son, [Son B]. It is the Tribunal’s view that the move was arranged to strengthen the case for the visa applicant. The Tribunal accepts that it is challenging for [Son A and Daughter A] to provide the care for their mother and their brother. However, this is not sufficient for the Tribunal to be satisfied that they cannot reasonably provide the assistance required for the review applicant.

   [21] CB217, [32]

The parties’ submissions

1. The review applicant’s submissions are as follows:[22]

   a)s.360 of the Act requires the Tribunal to let the review applicant know, either expressly or by necessary implication, what are the issues, unless they arise from the delegate’s decision;

   b)the general issue of satisfaction of reg.1.15AA(1)(e) of the Regulations was raised in the delegate’s decision; however, the Tribunal dealt with that issue in a markedly different manner;

   c)in particular, the Tribunal reasoned that there was no evidence Son B was a danger to others, and the review applicant moved out of the Home, not because she was scared of Son B, but because those sponsoring the visa applicant’s application wanted to strengthen the visa applicant’s case; and

   d)the Tribunal came under an obligation to disclose the following two issues (Claimed Issues):

   i)whether Son B is violent towards others, including the review applicant; and

   ii)whether the review applicant moved out of the Home to strengthen the visa-applicant’s case for a visa.

   [22] Applicant’s Outline Submissions, [20]-[22]

2. The Minister, on the other hand, submits the Tribunal sufficiently raised both issues because both issues were subsets of other issues, the primary issue being whether the review applicant’s relatives in Australia could reasonably provide the care required by the review applicant. The elements of that submission are:[23]

   a)one of the issues before the Tribunal was whether the review applicant’s relatives could not reasonably provide the care required by the applicant;

   b)an underlying issue was whether the relatives could not reasonably provide the care required by the review applicant because she no longer lived in the same house as Son A and Daughter A;

   c)relevant to the issue in (b) were the reasons the review applicant left the Home at the time she did;

   d)the issue in (c) was before the Tribunal because the review applicant herself raised it in a statutory declaration she made in which the review applicant said she moved out of the Home because she was worried about her safety due to Son B’s mental condition; and the Tribunal itself raised it at the hearing; and

   e)the Tribunal also raised doubts about whether Son B’s condition was in fact the reason for the review applicant leaving the Home.

   [23] First Respondent’s Submissions, [10], [11], [12]

Principles in SZBEL

1. The outcome of the applicant’s challenge turns, in the first instance, on the correct application of the principles identified by the High Court in SZBEL v Minister for Immigration and Multicultural Affairs (SZBEL principles).[24] Those principles may be summarised as follows:[25]

   a)At common law, a duty to accord procedural fairness consists in providing to the person likely to be affected by the decision with an opportunity to put information and submissions to the decision-maker in support of the outcome the persons seeks.[26]

   b)The duty extends to requiring the decision-maker to identify to the person likely to be affected “any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made”, and to inform the person to be affected “of any adverse conclusion which has been arrived at which would not obviously be open on the known material”.[27]

   c)Section 360 of the Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal.[28] It requires the Tribunal to invite the applicant to “give evidence and present arguments relating to the issues arising in relation to the decision under review”. Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to the visa in question.[29]

   d)The issues that arise in relation to the decision are to be identified by the Tribunal. If “the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”.”[30]

   e)There may be cases where the Tribunal’s statements or questions during a hearing sufficiently indicate to an applicant that everything he or she says in support of the application is in issue.

   That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. . . . But where . . . there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.[31]

   [24] [2006] HCA 63; (2006) 228 CLR 152

   [25] See SZSRB v Minister for Immigration [2013] FCCA 1382 at [46] and [48]

   [26] SZBEL at [29]. The quoted passages are from Commissioner for Australian Capital Territory Revenue v Alphaone Pty [1994] FCA 1074; (1994) 49 FCR 576 at 591-592 (Northrop, Miles and French JJ).

   [27] SZBEL at [29]. The quoted passages are from Commissioner for Australian Capital Territory Revenue v Alphaone Pty [1994] FCA 1074; (1994) 49 FCR 576 at 591-592 (Northrop, Miles and French JJ).

   [28] SZBEL at [33]

   [29] SZBEL at [34]

   [30] SZBEL at [35]

   [31] SZBEL at [47]

2. Under the SZBEL principles, the Tribunal’s obligation to give notice arises only in relation to “issues”. At the very least, the issues in any application for review before the Tribunal would include asserted facts which, under the relevant criteria, the Tribunal must be satisfied exist before it can be satisfied the relevant criteria for the granting of the visa in question are met (principal facts). In most cases, however, the issues would extend beyond the principal facts; in all but the simplest of cases, the issues would also include asserted facts, the existence or non-existence of which are relevant to the existence or non-existence of the principal facts. There is every reason, at least in most cases, to regard asserted facts that are relevant to the existence or non-existence of the principal facts, to be “issues” for the purposes of the SZBEL principles. That is so because a finding on a fact relevant to the principal facts will or may bear on whether the Tribunal is satisfied that one or more of the principal facts exists or does not exist. In some cases, the issues may include matters that are relevant only to the credibility of the applicant.

3. A corollary of these observations is that not every matter an applicant raises in a case, or which the Tribunal decides or considers, becomes an “issue” for the purposes of the SZBEL principles, only because the matter has been raised, or considered, or decided. A Tribunal’s considering and determining a matter that cannot reasonably be regarded as relevant to whether an applicant satisfies the criteria that apply to the granting of a visa cannot, therefore, be an “issue” that attracts the SZBEL principles.

Relevant questions

1. Having set out the relevant principles that are to guide me in determining the applicant’s case, it should be apparent there are three questions I must consider: were the Claimed Issues “issues” for the purposes of the SZBEL principles? If so, was the Tribunal required to give the review applicant notice of those issues? If so, did the Tribunal give the review applicant the requisite notice?

Were the Claimed Issues “issues”?

First claimed issue

1. The review applicant relied on the medical condition of Son B as a reason for Son A’s and Daughter A’s not being in a position to look after the applicant. The reasons Son A gave for not being able to care for his mother are that he works full time and that he, together with Daughter A, jointly care for Son B;[32] and the reasons Daughter A gave are that she and Son A have to care for Son B who suffers from anxiety, depression, and psychosis, and that Son B has violent outbursts which require control and supervision which cannot be provided by one person alone.[33]

   [32] CB131

   [33] CB128

2. From this material, an issue arose about whether Son B was violent; and it was an issue the review applicant herself raised. Whether Son B was violent was relevant to the claims that Son A and Daughter A could not reasonably take care of the review applicant. Son B’s violent outbursts was something which required constant control and supervision; and because it was Son A and Daughter A who controlled and supervised Son B, it was not reasonable to expect that they also provide the review applicant with the required care.

Second claimed issue

1. The review applicant, in her statutory declaration, stated she left the Home because she was worried about her safety due to Son B’s mental conditions and violence. It is unclear, however, what the intended relevance of that evidence was.

2. It was not suggested on behalf of the review applicant that her moving out of the Home and living in the Present House per se rendered it more unreasonable for her Australian relatives and, in particular, for Son A and Daughter A, to provide care to the review applicant. That is not surprising; if anything, the review applicant’s moving to the Present House, which was only a ten minute drive from the Home, could only have eased the burden on Son A and Daughter A because the review applicant received at least some support from the persons who live in the Present Home. Nor did Son A or Daughter A say they instigated the review applicant’s move out of the Home because, for example, they were unable to care for both Son B and the review applicant, or because they considered it unsafe for the review applicant to remain in the Home. Son A told the Tribunal that the applicant’s moving out was “not the thing we expect, . . . it suddenly happened”.[34]

   [34] Transcript, page 17.15

3. The reasons for which the review applicant moved out of the Home, therefore, formed no part of the review applicant’s case that the review applicant’s relatives cannot reasonably provide the care the review applicant requires. The Tribunal, however, did make a finding about the reasons for which the review applicant moved out of the Home, namely, to enhance the review applicant’s case that the review applicants’ children could not reasonably provide the care the review applicant required. Did that make the reasons why the review applicant moved out of the Home an issue before the Tribunal?

4. In my opinion, it did not. That can be seen by asking whether the Tribunal’s not deciding the review applicant moved out of the Home to enhance the claim for the grant of a Carer Visa could conceivably have made any difference to the decision the Tribunal made. It would have made no difference because the review applicant did not rely on her moving out of the Home as a reason for the review applicant’s relatives not reasonably being able to provide the review applicant the care she requires.

5. If, as I have found, there was no issue before the Tribunal about why the review applicant left the Home, it must follow there was no issue for the purposes of the SZBEL principles as to whether the applicant left the Home to strengthen her claim for the Carer visa.

Was the Tribunal required to give the applicant notice?

1. The Tribunal was not required to give the review applicant notice that it regarded as an issue whether Son B is violent towards others, including the review applicant. That is so because it was the review applicant who claimed the review applicant experienced violent incidents because of Son B’s mental condition. The Tribunal’s finding the “medical reports do not suggest that [Son B] is a danger to others” was well within the scope of the issue the review applicant herself raised.

2. As to the second claimed issue, given that I have found it was not an issue, the Tribunal was not required to give notice to the review applicant. If, contrary to my finding, the reason the review applicant left the Home was to strengthen the visa applicant’s case for a Carer visa was an issue, the Tribunal would have been required to give the review applicant notice of that issue.

Did the Tribunal give the review applicant notice?

1. Even though I have found the Tribunal was not required to give the review applicant notice that it regarded as an issue whether Son B is violent towards others, including the review applicant, the Tribunal nevertheless gave the review applicant notice of that issue. By describing in detail the type of information the Tribunal suggested the applicant should provide about Son B’s medical condition and, in particular, evidence of incidents, it would have been, or, at least, ought reasonably to have been, clear to those representing the review applicant that the Tribunal considered that, whether the medical condition of Son B and, in particular, whether he was prone to episodes of violence, including violence towards the review applicant, was an issue.

2. If, contrary to my conclusion, whether or not the review applicant left the Home to enhance the visa-applicant’s case for the grant of a Carer Visa was an issue, the Tribunal did not give the review applicant notice of that issue. The Tribunal informed Son A it found it odd that “the situation changes just a week or two before you lodge this application, when you have been managing to cope with it for years”;[35] and before the Tribunal made that statement, it asked Son A why things suddenly change in 2012. That was obviously a reference to the review applicant’s having left the Home. From these two statements, it ought reasonably to have been apparent to those representing the review applicant that the Tribunal considered that the reason the review applicant left the Home was relevant. The statements, however, could not reasonably have alerted those who represented the review applicant that one reason the Tribunal might find the review applicant left the Home at the time she did was because those representing the review applicant desired to enhance the visa-applicant’s prospects of being granted a Carer Visa.

Conclusions and disposition

[35] Transcript, page 17.10

1. My conclusions are as follows:

   a)whether or not son B is violent towards others, including the review applicant, was an issue that was before the Tribunal; it was an issue about which those representing the review applicant were aware because it was the review applicant who raised it and relied on it; and, in any event, the Tribunal gave those who represented the review applicant notice that whether or not son B was violent was an issue in relation to which the Tribunal might make a finding;

   b)whether the review applicant moved out of the Home to strengthen the visa-applicant’s case for the grant of a Carer visa was not an issue that was before the Tribunal; but, if it was, the Tribunal did not give appropriate notice to those representing the review applicant that it was an issue in relation to which the Tribunal might make a finding; and

   c)the Tribunal, therefore, did not fail to comply with s.360(1) of the Act.

2. I propose, therefore, to order that the application be dismissed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent. I will hear submissions on costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 18 December 2015