Truong v Minister for Immigration

[2014] FCCA 1289

FEDERAL CIRCUIT COURT OF AUSTRALIA

TRUONG v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1289

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of family migrant visas – whether the Tribunal erred in considering the capacity of the principal visa applicant to care for the visa sponsor considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

SZRHL v Minister for Immigration [2013] FCA 1093

Pham vMinister for Immigration & Anor [2013] FMCA 29
Xiang vMinister for Immigration [2004] FCAFC 64

Applicant: HONG THUY TRUONG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1846 of 2013

Judgment of: Judge Driver

Hearing date: 19 June 2014

Delivered at: Sydney

Delivered on: 10 July 2014

REPRESENTATION

Counsel for the Applicant: Mr Q Nguyen

Solicitors for the Respondents:

Ms H Dejean

Australian Government Solicitor

ORDERS

1. The application, as amended on 26 June 2014, is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1846 of 2013

HONG THUY TRUONG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the Migration Review Tribunal (Tribunal).  The decision was made on 4 July 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the visa applicants Other Family (Migrant) (Class BO) visas.  There were five visa applicants as well as a review applicant before the Tribunal.  Ms Truong, the applicant in these proceedings, was the review applicant before the Tribunal.

2. The following statement of background facts is derived from the submissions of the Minister filed on 2 April 2014. 

3. Ms Truong is a citizen of Australia and suffers from chronic post-traumatic stress disorder and psychotic disorder (schizophrenia) as well as long standing back pain[1].  Ms Troung was a single parent living with her son who at the time of the applications for visas was 15 years old.

   [1] Court Book (CB) 31

4. The purpose of the visa applications was to provide Ms Truong with care.  Ms Truong’s brother (the primary visa applicant) and his family (the family group applicants) are citizens of Vietnam.  On 23 July 2012 the primary visa applicant applied to the Minister’s Department for a carer visa sponsored by Ms Truong[2].  That application included a visa certificate assessment issued by Medibank Health Solutions dated 20 April 2011 which assigned an impairment rating of 40[3].  The certificate indicated that Ms Truong needed assistance in attending to the practical aspects of daily life.  Further information was provided by Ms Truong on request[4]. 

   [2] CB 1-35

   [3] CB 35

   [4] CB 41-43

5. The delegate interviewed Ms Truong and the primary visa applicant, and decided that on-shore assistance was already available to Ms Truong through her son[5] and was not satisfied Ms Truong’s sister who lived in Sydney was not available to provide assistance[6].

   [5] CB 52

   [6] CB 53

6. The Tribunal received an application for review on 14 December 2012[7].  The Tribunal conducted a hearing on 24 April 2013 at which Ms Truong gave evidence[8]. Attempts were made to speak to the primary visa applicant on 24 April 2013 and then again on 12 June 2013, which proved unsuccessful.  Ms Truong submitted a written statement from the primary visa applicant, translated into English[9].

   [7] CB 55

   [8] CB 103

   [9] CB 96-7

The Tribunal’s decision

1. The Tribunal found:

   a)that the primary visa applicant was a relative of Ms Truong, satisfying regulation 1.15AA(1)(a) and that Ms Truong was an Australian citizen, satisfying regulation 1.15AA(1)(ba)[10];

   b)that Ms Truong’s visa assessment certificate satisfied regulation 1.15AA(1)(b) and(c)[11];

   c)that because of the Tribunal’s findings on regulation 1.15AA(1)(f), it did not have to consider regulation 1.15AA(1)(e)  (that assistance cannot reasonably be provided by a relative in Australia or obtained from welfare, hospital, nursing or community services in Australia)[12];

   d)that the primary visa applicant is willing to provide Ms Truong with assistance[13];

   e)but that:

   i)without experience in caring for someone with a mental illness[14]; and

   ii)without a driver’s licence and the ability to speak English

   he was not able to provide, at the time of decision, Ms Truong with substantial and continuing assistance[15].

   [10] [30] CB 105

   [11] [30] CB 105

   [12] [31] CB 105

   [13] CB 105 [33]

   [14] CB 105-6

   [15] CB 106 [38]

2. The Tribunal found that the requirement of regulation 1.15AA(1)(f), that the primary applicant is willing and able, to provide Ms Truong substantial and continuing assistance, was not met[16].

   [16] [39] CB 106

The judicial review application

1. These proceedings began with a show cause application filed on 7 August 2013.  It contains the following particularised ground of review:

   In making a decision to affirm the first respondent’s refusal of a subclass 116 Carer visa, the second respondent failed to take into account a relevant consideration.

   Particulars

   1. The applicant sought to sponsor a non-citizen for a subclass 116 Carer visa based on the grounds that the non-citizen was the “carer” of the applicant within the meaning of reg 1.15AA of the Migration Regulations 1994 (the regulations).

   2. The applicant claimed that the assistance she sought from the non citizen could not reasonably be obtained from any other relative or from welfare, hospital, nursing or community services in Australia, in accordance with reg 1.15AA(e) of the regulations.

   3. The second respondent at [38] of its decision concluded that ‘the tribunal finds that Mr Truong’s inability to speak English and lack of a driver’s licence lead the tribunal to find that Mr Truong is not able to provide Ms Truong substantial and continuing assistance.  While he may well be able to assist Ms Truong with domestic tasks, it is seems to the tribunal that he is unable to provide essential assistance in terms of transportation and communication with health professionals in the event of emergency situations such as a psychotic episode’.  However, in reaching this conclusion, the Tribunal failed to take into account the evidence that Mr Truong gave that relate to these subjects.

   4. In reaching its decision, the Tribunal at [38] also made a conclusion that ‘However it is speculative as to how long it would take Mr Truong to acquire these skills, if at all’ of being able to speak English and of obtaining a drivers [licence].  Such a conclusion failed to take into account the evidence that Mr Truong gave relating to the acquisition of these skills, as well as public and commonly known information open to the Tribunal to take into account for the acquisition of these skills.

   5. In reaching its decision, the Tribunal at [38] also made a conclusion that ‘At any rate the tribunal is not satisfied that as at the time of the decision Mr Truong has the sufficient skills to provide substantial and continuing assistance to his sister’.  Such a conclusion failed to take into account, properly or at all, capacity to acquire these skills of being able to speak English and of obtaining a drivers [licence].

2. At the trial of this matter on 19 June 2014, counsel for Ms Truong sought an adjournment.  This was for the purpose of listening to the audio recording of the hearing conducted by the Tribunal and considering whether the judicial review application should be amended.  I refused the adjournment on the basis that the issues raised in the application essentially concern the capacities of the primary visa applicant, who did not attend the Tribunal hearing, and Ms Truong had had, in my view, sufficient time to consider amending her application or filing additional evidence consistently with procedural orders that I made on 3 September 2013. 

3. However, I gave Ms Truong the opportunity to file and serve an amended application after the trial of the matter reflective of oral submissions put on behalf of Ms Truong by her counsel, which raised the issue of legal unreasonableness. 

4. An amended application was filed on 26 June 2014 which contains the following additional ground:

   In making a decision to affirm the first respondent’s refusal of a subclass 116 Carer visa, the second respondent failed to take into account a relevant consideration, and was unreasonable in all the circumstances.

   Particulars

   6. Further, the decision to affirm the first respondent’s refusal of a subclass 116 Carer visa was unreasonable in all the circumstances:

   a. Regulation 1.15AA(1)(f) of the Migration Regulations 1994 requires the Applicant as willing and able to provide the resident substantial and continuing assistance;

   b. The Tribunal gave reasons that substantial and continuing assistance in this case was to be decided on the basis of inability to provide “essential assistance in terms of transportation and communication with health professionals in the event of emergency situations such as a psychotic episode”.

   c. Evidence was given that the Applicant was experienced as a carer, that his wife would also assist with personal care such as bathing, and that the Applicant would also learn English and obtain a driver’s [licence] after coming to Australia.

   d. As an objective matter, the Applicant was a person suitable and fit to provide substantial and continuing assistance in all the circumstances, particularly given capacity and the marginal nature of inabilities that formed the basis of the decision by the Tribunal.

5. I received as evidence the book of relevant documents filed on 3 September 2013. 

Consideration

1. The Tribunal’s reasoning bearing upon this case is contained at [32]-[38] of its decision[17]:

   Regulation 1.15AA(1)(f) provides that the applicant is willing and able to provide the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d) as the case requires.

   The phrase ‘willing and able’ has two limbs.  Being willing is concerned with an applicant’s state of mind.  In this sense the tribunal accepts Mr Truong’s written evidence to the effect that he is willing provide his sister assistance.  However being able calls for an objective enquiry and “whether the visa applicant is a person who is suitable or fit to provide the assistance” (Xiang v MIMIA [2004] FCAFC 64).

   Both Ms Truong’s evidence and Mr Truong’s written statement indicate that he has had experience caring for their mother.  She was reported to have suffered illness due to old age and had suffered a stroke.  There is no suggestion or evidence that Ms Truong’s mother suffered mental illness.  Mr Truong’s written statement indicated that he is aware that Ms Truong suffers from schizophrenia.  However there is no evidence before the tribunal that Mr Truong has any experience or training in caring for people with mental illness.

   There is no clear evidence before the tribunal as to how Mr Truong and his family will be supported except Ms Truong’s suggestion that her brother’s children can work part time.  Mr Truong’s statement also did not mention how he will attend to general family commitments.  However Ms Truong gave evidence that the children require little supervision because they are older.

   Ms Truong gave evidence that Mr Truong does not have a driver’s licence and does not speak English.  Ms Truong also gave evidence that she suffers from acute psychotic episodes that have required hospitalisation. She also supplied various medical reports to this effect.  The tribunal infers that due to the nature of Ms Truong’s medical condition she would require at times urgent assistance with transportation and urgent contact with health professionals. 

   In Pham v MIAC [2013] FMCA 29 the Court found that it was open for a tribunal to take into account the ability of the visa applicant to drive the applicant to medical appointments, where the applicant did not possess a licence and had no knowledge of local streets, when considering the ability to provide care of the kind needed.

   Taking into account the nature of Ms Truong’s medical condition, the tribunal finds that Mr Truong’s inability to speak English and lack of a driver’s licence lead the tribunal to find that Mr Truong is not able to provide Ms Truong substantial and continuing assistance.  While he may well be able to assist Ms Truong with domestic tasks, it is seems to the tribunal that he is unable to provide essential assistance in terms of transportation and communication with health professionals in the event of emergency situations such as a psychotic episode. Mr Truong indicated that he will be prepared to obtain a drivers licence.  The tribunal presumes Mr Truong would also eventually learn English.  However it is speculative as to how long it would take Mr Truong to acquire these skills, if at all.  At any rate the tribunal is not satisfied that as at the time of decision Mr Truong has the sufficient skills to provide substantial and continuing assistance to his sister.

   [17] CB 105-106

2. Ms Truong contends, correctly, that the primary visa applicant’s inability to speak English and his lack of a driver’s licence was central to the Tribunal decision.  Ms Truong contends that the Tribunal should have considered the primary visa applicant’s ability to gain those skills. 

3. Ms Truong further contends that the Tribunal erred by proceeding on the basis that the primary visa applicant would require English and a driver’s licence in order to deal with emergency situations such as a psychotic episode.  Ms Truong points out that in the case of a medical emergency, the primary visa applicant could ring “000” for emergency ambulance transportation.

4. In considering these contentions, it is necessary first to consider the legislative framework in which the Tribunal was operating. 

5. A visa may only be granted if the criteria described for that visa by the Migration Act 1958 (Cth) and the Migration Regulations1994 (Cth) (Regulations) have been satisfied. The relevant criteria for an Other Family (Migrant) (Class BO) visa, subclass 116 (Carer) are set out in Part 116 of Schedule 2 to the Regulations.

6. The primary criteria to be satisfied at the time of the application are as follows:

   a)the visa applicant must claim to be a “carer” of an Australian relative of the visa applicant;

   b)the visa applicant must be sponsored at the time of application by the Australian relative or the Australian relative’s spouse who has turned 18. 

   There is no issue that the primary visa applicant satisfied these criteria[18].

   [18] CB 51 (delegate) CB 101 [7] (Tribunal)

7. Of the various primary criteria to be satisfied at the time of the decision, importantly, the visa applicant must be a “carer” of the Australian relative.  Carer is defined in regulation 1.15AA:

   (1) An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:

   (a)the applicant is a relative of the resident; and

   (b)according to a certificate that meets the requirements of subregulation (2):

   (i)     a person (being the resident or a member of the family unit of the resident) has a medical condition; and

   (ii)    the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and

   (iii)   the impairment has, under the Impairment Tables, the rating that is specified in the certificate; and

   (iv)   because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and

   (ba) the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (c)the rating mentioned in subparagraph (b) (iii) is equal to, or exceeds, the impairment rating specified by Gazette Notice 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 obtained:

   (i)     from 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.

8. The Tribunal:

   a)was satisfied that the criteria in regulation 1.15AA(1)(a), (b), (ba) and (c) were satisfied;

   b)did not consider regulation 1.15AA(1)(e) because of its conclusion on regulation 1.15AA(1)(f); and

   c)found that the primary visa applicant, although willing to provide care, was not able, to provide the appropriate care.

9. In my view, in making its decision within the legislative framework the Tribunal did not err as alleged by Ms Truong.

10. At a factual level there is no issue that as at the time of the Tribunal’s decision the primary visa applicant could not speak English and did not have a driver’s licence[19]. Further, there was no evidence either that the primary visa applicant had commenced driving lessons, or English lessons, either from himself or from his sister, Ms Truong.

    [19] see CB 97; CB 103 [21] evidence of Ms Truong

11. The relevant consideration that the Tribunal was required to consider was whether, on the evidence before it, it was satisfied that the primary visa applicant was willing and able to provide the requisite care.

12. The Tribunal found that the primary visa applicant was willing to provide his sister with the requisite care[20]. However, it was not satisfied he was able to provide her with the requisite care. First, the Tribunal concluded that the requisite care was different to the care provided by the primary visa applicant to his elderly mother[21]. The Tribunal identified the relevant care[22]:

    due to the nature of [the applicant’s] medical condition that she would require at times urgent assistance with transportation and urgent contact with health professionals.

    [20] CB 105 [33]

    [21] [34]

    [22] [36] CB 106

13. Secondly, the Tribunal concluded that as at the time of decision the evidence was the primary applicant would be[23]:

    unable to provide essential assistance in terms of transportation and communication with health professional in the event of emergency situations such as a psychotic episode.

    [23] [38]

14. The Tribunal acknowledged it was likely the primary visa applicant would acquire the necessary skills but said it was speculative as to how long it would take[24].

    [24] [38]

15. Contrary to Ms Truong’s assertion, the Tribunal did not overlook the possibility of the primary visa applicant acquiring a driver’s licence and English language ability.  The Tribunal noted the primary visa applicant’s intention to obtain a driver’s licence[25] and the Tribunal presumed that he would also “eventually learn English”.  Accordingly, Ms Truong’s contention that the Tribunal failed to take into account the possible acquisition of those skills by the primary visa applicant, fails.

    [25] at [38]

16. To the extent the ground of review also asserts a failure to properly take into account the possible acquisition of the relevant skills, this is also not made out.  The Tribunal clearly turned its mind to the possibility of the skills being acquired but decided that, given the skills were a necessary part of offering the appropriate care to Ms Truong, the lack of the skills in the primary visa applicant was determinative of his status as a “carer” for his sister[26].

    [26] [38]

1. I also reject the contention that the Tribunal’s reasoning was in any relevant legal sense unreasonable.  I accept that a Tribunal decision may be unreasonable if it is based upon a false factual premise[27].  If, hypothetically, the primary visa applicant could speak English or did have a driver’s licence when the Tribunal’s reasoning was that he had neither, the decision might have been unreasonable.  Here, however, Ms Truong’s contention is that it was unreasonable for the Tribunal to assume (albeit implicitly) that the appropriate response to a medical emergency involving a psychotic episode would be for the primary visa applicant to transport her in a private motor vehicle for medical attention.  That may have been a false assumption but neither the Tribunal nor I have any evidence as to what would be a necessary or appropriate response to such a medical emergency.  The assumption made by the Tribunal was drawn from the written statement provided by the primary visa applicant which was based on the same assumption.  If the Tribunal was wrong, it was because the primary visa applicant was wrong in making that assumption.  The Tribunal was entitled to deal with the case put before it.  That case was that the primary visa applicant would have the capacity to deal with all circumstances by learning English and learning to drive.  The Tribunal was entitled to conclude, as it did, that that did not provide an adequate answer to the Tribunal’s need for satisfaction on the primary visa applicant’s capacity.

   [27] SZRHL v Minister for Immigration [2013] FCA 1093

Conclusion

1. Ms Truong has failed to establish a case of jurisdictional error by the Tribunal.  The Tribunal’s decision is therefore a privative clause decision and the application must be dismissed.

2. I will so order.

3. I will hear the parties as to costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  10 July 2014