Valencia v Minister for Immigration
[2018] FCCA 939
•17 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VALENCIA v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 939 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of family migrant visas – assessment that necessary assistance could be provided by relatives in Australia and commercial services – whether the Tribunal misconstrued the visa criterion, failed to consider relevant evidence or failed to comply with s.359A of the Migration Act 1958 (Cth) considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.338, 347, 359A, 359AA, 359B, 379A, 424A Migration Regulations 1994 (Cth) |
| Cases cited: Ali v Minister for Immigration (2016) [2016] FCCA 2314 ATP15 v Minister for Immigration [2016] FCAFC 53 Issa v Minister for Immigration [2000] FCA 128 Lin v Minister for Immigration [2004] FCA 606 SZEWL v Minister for Immigration (2009) 174 FCR 498; [2009] FCA 209 SZTGV v Minister for Immigration (2015) 229 FCR 90 |
| Applicant: | LOURDES VALENCIA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 417 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 17 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 17 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Chia |
| Solicitors for the Applicant: | Jessie Icao Solicitors |
| Counsel for the Respondents: | Mr D Hughes |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application as amended on 3 May 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 417 of 2017
| LOURDES VALENCIA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant, Ms Valencia, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 17 January 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the visa applicants family migrant visas. Ms Valencia was the review applicant before the Tribunal and the sponsor of the visa applicants.
The following statement of background facts is derived from the submissions of the parties.
Ms Valencia is a 66 year old Australian citizen. She lives in Sydney with her husband and son; she also has a brother, sister and daughter living elsewhere in Sydney. All of Ms Valencia’s relatives in Sydney are Australian citizens.
The visa applicants are citizens of the Philippines. On about 30 April 2012, Ms Guerrero, as the primary visa applicant, applied offshore for an other family (Class BO) visa in Manila, the Philippines.[1] She sought to satisfy the requirements for the grant of a carer (Subclass 116) visa. Ms Guerrero’s partner and four children were nominated as members of her family unit, and Ms Valencia was nominated as their sponsor and the person requiring care.
[1] Court Book (CB) 1
On 12 March 2013, a delegate of the Minister refused the application.[2]
[2] CB 156
Tribunal proceeding
On 18 April 2013, Ms Valencia applied to the Tribunal for review of the delegate’s decision,[3] annexing further supporting documentation, which included, among other things, a letter from Angela Cummins, styled “Social Worker (BSW), Medical Rehabilitation Outpatient’s Dept, St Joseph’s Hospital, Auburn” and dated 4 April 2013 (St Joseph’s Hospital letter).[4] Because the visa applicants were offshore, the right to apply to the Tribunal for a review was conferred upon the sponsor.
[3] At the time of the application for review, the Tribunal was the “Migration Review Tribunal”, the delegate’s decision was an “MRT-reviewable decision” under s.338(5) as it then provided, and the application for review was required to be made by the sponsor under s.347(2)(b) of the Migration Act 1958 (Cth) (Migration Act).
[4] CB 178-180
On 9 April 2014, Ms Valencia’s solicitor provided written submissions to the Tribunal, annexing further supporting documentation.[5] On 14 April 2014 Ms Valencia appeared before the Tribunal, giving evidence with the assistance of an interpreter in the Tagalog and English languages.[6]
[5] CB 196 to 259
[6] CB 260
On 23 June 2014, the Tribunal affirmed the decision of the delegate refusing to grant Ms Guerrero a carer visa.[7]
[7] CB 263
Ms Valencia applied to this Court for judicial review of the Tribunal’s decision and on 21 November 2016 orders were made, among other things, for the issue of writs of certiorari and mandamus.[8]
[8] Valencia v Minister for Immigration & Anor [2016] FCCA 2956
The matter returned to the Tribunal for reconsideration and, on 13 January 2017, further supporting documentation was provided to the Tribunal.[9]
[9] CB 289-296
On 17 January 2017, Ms Valencia attended a hearing before a differently constituted Tribunal and again gave evidence with the assistance of an interpreter in the Tagalog and English languages. At the hearing, evidence was also given to the Tribunal by Ms Valencia’s husband in person and Ms Guerrero by telephone.
Just over an hour after the hearing concluded,[10] the Tribunal issued its decision, the subject of the current proceeding, affirming the earlier decision of the delegate not to grant Ms Guerrero and her family the visas.[11]
[10] The hearing finished at 9:50am (CB 299) and the decision was issued at 11:25am (CB 307)
[11] CB 307
The Tribunal accepted that Ms Guerrero satisfied the requirements of regulations 1.15AA(1)(a), (b), (ba) and (c) of the definition of “carer” in the Migration Regulations 1994 (Cth) (Regulations). Namely, the Tribunal accepted that Ms Guerrero was a relative of Ms Valencia (that is, the sponsor); that Ms Valencia had a medical condition which caused the requisite impairment, evidenced by the certificate which met the requirements of subregulation 1.15AA(2); that Ms Valencia was an Australian citizen; and that the impairment rating specified in the certificate met the specified requirements.[12]
[12] Reasons at [6]-[12] (CB 308-309)
The Tribunal also found that regulation 1.15AA(1)(d) did not apply.[13]
[13] Reasons at [13] (CB 309)
However, the Tribunal found that Ms Guerrero did not satisfy regulation 1.15AA(1)(e) of the Regulations, which requires that the assistance cannot reasonably be provided by another Australian relative or obtained from welfare, hospital, nursing or community services in Australia. After summarising the evidence, the Tribunal continued:[14]
Overall, the Tribunal accepts that due to various health concerns, family and work commitments, and distance from the review applicant, none of the review applicant’s relatives in Australia can act as full-time carers for her. The Tribunal accepts that at present the husband is the primary caregiver and that he is unable to provide the required care. The Tribunal accepts that the present arrangement is not satisfactory and that the review applicant would benefit from a female carer. However, the Tribunal is not satisfied that the review applicant’s relatives in Australia, which include two children, two siblings and several nieces and nephews, are incapable of contributing to her care …
The Tribunal questioned the review applicant about hiring professional help. She said it was expensive but there is no evidence to indicate that she has made inquiries or had approached any agency or organisation about such help. The Tribunal is mindful that the review applicant’s siblings have undertaken to provide financial support to the visa applicants, which would suggest that the family is able to make some financial contribution towards hiring a carer, at least for a limited number of hours, to perform some of the tasks that cannot be performed by other relatives. The Tribunal is not satisfied that the combination of such care arrangements would be inadequate or inappropriate.
On the evidence before it, the Tribunal is not satisfied that the assistance cannot reasonably be provided by any other relative of the review applicant. The Tribunal is not satisfied that the visa applicant meets r.1.15AA(1)(e).
[14] Reasons at [22]-[24] (CB 311)
The critical question for the Tribunal was whether Ms Guerrero was a “carer” within the meaning of regulation 1.15AA of the Regulations. The definition that applied at the relevant time is set out at CB 269.
For the Tribunal to be satisfied that the visa applicant is a “carer”, it must be satisfied of all of the elements of regulation 1.15AA(1). First, the Tribunal must be satisfied that the applicant has a medical condition of sufficient seriousness and needs assistance. The Tribunal was satisfied of this at [7] and [9].
The Tribunal was not, however, satisfied of one element of regulation 1.15AA(1), namely the requirement contained in regulation 1.15AA(1)(e). To meet the requirement, Ms Valencia needed to satisfy the Tribunal that:
(e) the assistance cannot be 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;
The Tribunal was not satisfied of this element. In particular, the Tribunal was not satisfied that the required assistance could not be provided by one or more of Ms Valencia’s relatives who live in Australia.
The Tribunal concluded that Ms Guerrero was not a “carer” for the purposes of regulation 1.15AA, that she did not meet the criterion in clause 116.221 of Schedule 2 to the Regulations, and affirmed the decision of the delegate not to grant Ms Guerrero and her family the visas.
The present proceedings
These proceedings began with a show cause application lodged on 13 February 2017. Ms Valencia now relies upon an amended application filed on 3 May 2017.
By her amended application, Ms Valencia seeks judicial review of the Tribunal’s decision on three alternative grounds, which may be summarised as follows:
a)Ground 1 – the Tribunal misconstrued the requirements of regulation 1.15AA(1)(e) and misdirected itself by:
i)asking whether other relatives of the applicant could provide “some financial contribution” as opposed to the “direct assistance” needed by the applicant; and/or
ii)asking whether nursing services cannot reasonably be provided to the applicant as opposed to whether such services cannot reasonably be obtained;
b)Ground 2 – the Tribunal failed to consider relevant evidence; and
c)Ground 3 – the Tribunal failed to comply with the requirements of s.359A of the Migration Act.
Ground 4 of the amended application was not pressed.
I have before me as evidence the court book filed on 11 April 2017 and the affidavit of Gail Margaret Hargreaves made on 28 April 2017, to which is annexed a transcript of the hearing conducted by the Tribunal.
Both Ms Valencia and the Minister filed helpful pre-hearing submissions and also made oral submissions through their counsel at the trial of this matter on 17 April 2018.
Consideration
Ground 1 – did the Tribunal misconstrue the relevant visa criterion?
Regulation 1.15AA(1) is in the following terms:
(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.
Other relatives being “able” to make “some financial contribution” towards hired care
In Issa v Minister for Immigration,[15] Madgwick J drew a distinction between assistance which cannot reasonably be obtained and that which cannot reasonably be provided in regulation 1.15AA(1)(e), the former being concerned with what assistance the other relatives are willing and able to give and the latter being concerned only with the assistance those relatives could make available. At the time, regulation 1.15AA(1)(e)(i) required that “the assistance cannot reasonably be … obtained from” another relative. His Honour said:[16]
It occurred to me that the Tribunal member may have misdirected herself by focussing on whether the other Australian relatives and/or welfare services could reasonably make their support available to the applicant, rather than whether she could reasonably obtain it from them. This is not mere semantics. There would be many families in which, if they were minded to, the children could provide a high level of care for a parent, but in which in practice they might not be willing to do so. In such a case the applicant might be quite unable to obtain care and support from their children. The bare language used by the Tribunal member is suggestive that she confused these two concepts.
[15] [2000] FCA 128
[16] Ibid at [12]
The distinction made by Madgwick J in Issa was later applied by Finn J in Rafiq v Minister for Immigration:[17]
It is one thing to ask whether assistance can reasonably be obtained from a relative. It is quite another to ask whether that assistance can reasonably be provided by a relative: see Issa … . What a relative is capable of doing and what that person is willing to do are not necessarily the same.
There is an obvious reason why the subparagraph has the focus it has. Its object is not to effect a form of civil conscription of “available” relatives. Nor does it require a relative to act selflessly and contrary to that person’s own wishes, even if absent any alternative means of assistance that relative might continue to provide assistance for reasons of love, duty etc.
In approaching the matter as it did, the Tribunal concerned itself with what the applicant’s sister was capable of doing. That is not the concern of the subparagraph. Had the Tribunal asked itself the correct question it could well have reached the contrary conclusion in light of the sister’s own and repeated evidence of her inability or unwillingness to continue providing the assistance she did.
[17] [2004] FCA 564 at [10]-[12]. Issa was also applied in Naidu v Minister for Immigration [2004] FCA 1692 and Lin v Minister for Immigration [2004] FCA 606
For visa applications made after 9 November 2009, regulation 1.15AA(1)(e)(i) was amended to require that “the assistance cannot reasonably be … provided by any other relative …”. However regulation 1.15AA(1)(e)(ii) continued to refer to “assistance [which] cannot reasonable be … obtained from welfare, hospital, nursing and community services in Australia”.
By her first ground of judicial review, Ms Valencia says that the Tribunal has misconstrued regulation 1.15AA(1)(e) and misdirected itself. The Tribunal found at [23]-[24] of its reasons that it was not satisfied “the assistance” could not reasonably be provided by other relatives because “the family is able to make some financial contribution towards hiring a carer” (emphasis added) to perform some of the tasks that cannot be performed by other relatives and it was not satisfied the combination would be inadequate or inappropriate.
In the circumstances of the present case, the reference to “the assistance” in regulation 1.15AA(1)(e) can only be a reference to the “direct assistance in attending to the practical aspects of daily life”,[18] of which “kind” the applicant must be “willing and able to provide”.[19] The reference to “the assistance” in regulation 1.15AA(1)(e) does not, in Ms Valencia’s submission, encompass assistance provided by other relatives indirectly by “hiring a carer”. If that were the case, regulation 1.15AA(1)(e) would collapse into being a financial means test of Ms Valencia’s family in Australia.
[18] regulation 1.15AA(1)(b)(iv)
[19] regulation 1.15AA(1)(f)
Ms Valencia submits that the legislature, in drafting regulation 1.15AA(1)(e), intended to take into account assistance rendered by “hired carers”, but did so by making the carer visa available only if the requisite direct assistance could not be “obtained from welfare, hospital, nursing or community services”, which phrase encompasses both public and private care providers.[20] Ms Valencia submits that, had the Tribunal not misconstrued regulation 1.15AA(1)(e) and not misguided itself, the question to be asked was whether the requisite direct assistance could be rendered by a combination of the care the applicant’s other relatives were capable of providing and the private or “hired” care that she could obtain. In turn, whether the private care could be obtained depended not just upon whether, as the Tribunal found at [23], the family (including the “two children, two siblings and several nieces and nephews”)[21] were “able” to make some financial contribution, but also upon whether they were willing to do so. The Tribunal is thus said to have misconstrued regulation 1.15AA(1)(e) and misdirected itself and thereby constructively failed to exercise its jurisdiction.
[20] Though the Tribunal used the term “hired carer” in its reasons, it was clearly envisaging nursing services. The member had just over an hour earlier at the hearing referred in the same context to the possibility of “hiring a nurse” (Transcript, page 12).
[21] [22]
It is necessary to test these propositions against the terms of the legislation and the application of them by the Tribunal to the facts of the case. The requirement in regulation 1.15AA(1)(e) is an onerous criterion to satisfy. To succeed, the decision-maker must be satisfied of a negative. That is, the decision-maker must be positively satisfied by the material put forward by the applicant that all the sponsor’s relatives who are citizens or permanent residents cannot reasonably provide the assistance that the sponsor requires. Moreover, relevant authorities make clear that:
a)the assistance provided by relatives must be approached cumulatively. That is, where a sponsor has numerous relatives living in Australia, the decision-maker is not obliged to limit its inquiry to what one relative can do. A decision-maker can legitimately look at the assistance that could be provided cumulatively by several relatives, and come to a state of non-satisfaction that they cannot provide the assistance required;[22]
b)the two sub-paragraphs of regulation 1.15AA(1)(e) also operate cumulatively. That is, the decision maker must be positively satisfied that the assistance required cannot be obtained from relatives, or obtained from community sources, or sourced respectively from a combination of the two;[23]
c)the question whether a relative can reasonably “provide” assistance looks at the relative’s capacity to provide assistance, and not their willingness;[24] and
d)a decision-maker can reach a state of non-satisfaction in respect of regulation 1.15AA(1)(e) without working out a detailed analysis of how a patchwork of familial and privately contracted care might combine to provide the required care.[25]
[22] Azzi v Minister for Immigration (2002) 120 FCR 48 at [89]; Ali v Minister for Immigration & Anor [2016] FCCA 2314 at [24]
[23] Nguyen v Minister for Immigration [2016] FCA 1460 at [69]
[24] see Nguyen [45]–[53]
[25] Nguyen v Minister for Immigration [2016] FCA 688 at [36]–[40]
A particular difficulty faced by Ms Valencia in the proceedings before the Tribunal derived from the fact that she has a large number of “relatives” who are citizens or permanent residents of Australia. The expression “relative” is defined in regulation 1.03 and includes, relevantly, any spouse, child, niece or nephew. The Tribunal found that the following relatives of Ms Valencia were citizens or permanent residents and lived in Australia: her husband, her son, her daughter, her brother, her sister, and an uncertain number of nieces and nephews (the evidence was contradictory, but Ms Valencia said that there were some12 nieces and nephews living in Australia who were over 18).[26]
[26] at [20]–[21]; Transcript, page 5, lines 10 – 20
Ms Valencia led some evidence in an attempt to persuade the Tribunal that, cumulatively and with professional assistance, the relatives could not provide the assistance she required. The evidence about the relatives was:
a)Husband: the husband provided a statutory declaration, and accompanying medical reports, to the effect that he was willing to look after Ms Valencia but could not provide all the care she required because of his own medical difficulties.[27] The Tribunal accepted that the husband continues to provide support but cannot provide sufficient support on his own;[28]
b)Son: Ms Valencia’s son was 31 years old at the time of the Tribunal decision. He lived with Ms Valencia and her husband. He provided three short statutory declarations.[29] The effect of his evidence was that he worked full time (as a network engineer), and comes home late and needs time to sleep and rest, and sometimes needs to travel for work. The only evidence of assistance that he presently provides is that he takes out the rubbish bins.[30] The Tribunal did not accept that the son could only provide such limited assistance.[31] While there might be some assistance of a personal nature that he cannot provide, the Tribunal found that he could provide other assistance;
c)Daughter: Ms Valencia’s daughter lives 10 kilometres away from Ms Valencia and was 33 years old at the time of the Tribunal decision. She provided two short statutory declarations.[32] The effect of her evidence was that she has family responsibilities and works full time at Cumberland Hospital for the Health Care Interpreter Service.[33] The Tribunal did not accept that the daughter’s family responsibilities prevented her from providing assistance, but accepted that the assistance that she could provide was limited;[34]
d)Brother: Ms Valencia’s brother made one short statutory declaration.[35] He lives in Sydney, and works for the post office and has a wife and four children. The Tribunal accepted that he could not act as carer on a full time basis, but was not satisfied that he was unable to contribute to the care required;[36]
e)Sister: Ms Valencia’s sister made one short statutory declaration.[37] She lives in Sydney and works as a public servant, and has four adult children and five grandchildren. Her statutory declaration did not identify any reason why she could not provide assistance. At the hearing, Ms Valencia told the Tribunal that her sister was “sickly” but did not specify the problem.[38] The Tribunal accepted that she could not act as carer on a full time basis, but was not satisfied that she was unable to contribute to the care required.[39] Separately, it appears that the sister gave a report in the nature of an expert report about her sister;[40] and
f)as for the nieces and nephews, as the Tribunal noted at [21], almost no documentary evidence was provided. Of itself, that could have been a reason why the Tribunal could not form the state of satisfaction required by regulation 1.15AA(1)(e). The Tribunal was unable to accept that they were all unable to contribute to some degree of care.
[27] CB 67, 237
[28] at [17]
[29] CB 69, 242, 294
[30] Transcript, page 9, line 3
[31] At [19]
[32] CB 75, 239
[33] CB 240
[34] at [18]
[35] CB 84
[36] at [20]
[37] CB 91
[38] Transcript, page 10, line 8
[39] at [20]
[40] CB 223
In overview, having regard to the issues read in relation to Ms Valencia’s relatives, the Tribunal accepted that none of them could act as full time carers for her. However, the Tribunal was not satisfied that they were incapable of contributing to her care.[41] The Tribunal had regard to the principle in Azzi that care could be provided by more than one relative.
[41] at [22]
The Tribunal also considered a further matter, which arose from Ms Valencia’s evidence. Many of the statutory declarations put forward by Ms Valencia included offers or promises to provide financial assistance towards Ms Valencia’s care.[42] Against that background the Tribunal considered whether Ms Valencia could hire professional help obtained with the assistance of the relatives. The Tribunal was not satisfied that the combination of care arrangements, together with relatives, would be inadequate or not appropriate.
[42] see CB 69 (son), CB 75 (daughter), CB 84 (brother), CB 91 (sister)
In my opinion, Ground 1 does not arise because the finding at [22] of the Tribunal’s reasons was dispositive:
Overall, the Tribunal accepts that due to various health concerns, family and work commitments, and distance from the review applicant, none of the review applicant's relatives in Australia can act as full-time carers for her. The Tribunal accepts that at present, the husband is the primary caregiver and that he is unable to provide the required care. The Tribunal accepts that the present arrangement is not satisfactory and that the review applicant would benefit from a female carer. However, the Tribunal is not satisfied that the review applicant's relatives in Australia, which include two children, two siblings and several nieces and nephews, are incapable of contributing to her care. The Tribunal is mindful of the reasoning in Azzi v MIMIA [2002] FCA 24 at [89]-[90] indicating that the Tribunal's inquiry is not limited to what assistance can be obtained from one relative.
Those findings about the relatives, on their own, provided a more than sufficient basis for the Tribunal to come to a position of non-satisfaction as to regulation 1.15AA(1)(e).
The nub of the applicant’s argument is that the Tribunal was wrong to take into account or consider the ability of the relatives to assist with the hire of professional help.
It is in my view unhelpful to deconstruct the wording of regulation 1.15AA(1)(e) as Ms Valencia does. Assistance can be “provided by” a relative in a number of ways, one of which is by contributing towards, for example, a nurse. In a case such as this, where many relatives have offered assistance of this kind, it is an obvious and proper consideration for the Tribunal to have regard to.
Contrary to Ms Valencia’s submissions, this interpretation does not cause the criterion to collapse into a financial means test. There is always the question of whether a financial contribution could be “reasonably” provided. In a case such as the present, however, where many offers of contribution have actually been made, that question does not arise.
Ground 2
Ground 2 asserts that the Tribunal did not consider the letter reproduced at CB 178.
In VAAD v Minister for Immigration[43] the visa applicant was a national of Sri Lanka who had claimed to fear persecution, among other things, on the basis of her support for the UNP. The Tribunal had before it a letter from the General Secretary of the UNP referring to the visa applicant as having applied to be a UNP candidate in local government elections. The Full Court of the Federal Court held that whether the Tribunal was obliged to consider a piece of evidence will depend on the circumstances of the case and the nature of the evidence:[44]
… [W]hether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In this case the Tribunal failed to consider a document, the UNP Letter, which was not only particular to the first appellant but arguably of critical importance to the claims of all the appellants. This is not a situation of the kind to which Mason J referred in Minister for Aboriginal Affairs v Peko-Wallsend Ltd … where the factor was so ‘insignificant that failure to take it into account could not have materially affected the decision’. The failure to do so led the Tribunal into error and that error had an adverse effect on the Tribunal’s assessment of the first appellant’s credibility. The Tribunal failed to have regard to material evidence …
[43] [2005] FCAFC 117
[44] at [77] per the Court (Hill, Sundberg and Stone JJ); approved in ATP15 v Minister for Immigration [2016] FCAFC 53 at [29] per Tracey and Griffiths JJ
The Full Federal Court has more recently held that the relevant factors include the cogency of the corroborative material and the place of that material in the assessment of the appellant’s claims.[45]
[45] Minister for Immigration v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [112] per Robertson J, approved in Minister for Immigration v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16 at [54] per the Court (Katzmann, Griffiths and Wigney JJ); Minister for Immigration v MZYTS (2013) 136 ALD 547; [2013] FCAFC 114 at [68]-[70] per the Court (Kenny, Griffiths and Mortimer JJ); and Pokharel v Minister for Immigration [2016] FCAFC 34 at [47] per the Court (Buchanan, Perram and Rangiah JJ)
In the present case, Ms Valencia contends that it was central to the Tribunal’s findings in respect of regulation 1.15AA(1)(e) that “a hired carer” could be provided for her. The Tribunal stated at [23] that there was “no evidence to indicate that [Ms Valencia] has made enquiries or had approached any agency or organisation about such help”. However, Ms Valencia in fact had provided the Tribunal with the St Joseph’s Hospital letter, in which a social worker from the hospital described Ms Valencia’s medical history, functional disabilities and social circumstances and continued:
I have referred Mrs Valencia to community services to provide domestic assistance, lawn mowing service, personal care services, meals on wheels and in-home respite services. However, these community services will incur a cost and they will also provide a very limited and very basic amount of care and service hours which will probably be culturally inappropriate. Community services and community nursing services have become increasingly restrictive over the years in the type of care and service they provide e.g. Alberto must physically place the medication in his wife’s hand for her to take- no community service will do this. Paying for private services is out of the question as personal care services commence at approx. $38 per hour …
The letter notes that Ms Valencia and her husband are both pensioners and that the burden of care lay with the husband, who himself has serious health conditions, and continued:
I understand that [the visa applicant] is an experienced carer … . Culturally, it is preferred by Filipinos to be cared for by family members and most are especially reluctant to have paid carers assist with personal care tasks …
Although the Tribunal’s reasons appear to refer to the St Joseph’s Hospital letter at [15], it does so only noting that there are no appropriate community or government funded services and placement in a nursing home would not be suitable or available.
The Tribunal made no reference to the statements in the St Joseph’s Hospital letter regarding the limitations to the care provided by nursing services, the cost and cultural considerations which made paid care “out of the question”. Ms Valencia submits that the observation in the Tribunal’s reasons that there was “no evidence” she had “approached any agency or organisation about such help” gives rise to the necessary inference that the above passages from the letter were overlooked and not considered when the Tribunal made its decision. The fact that, as has already been noted, the decision was issued just over an hour after the hearing completed is said to weigh in favour of the drawing of an inference that the material was overlooked.
The above passages from the St Joseph’s Hospital letter are said to have been material of relevance to the dispositive issue on the review, namely whether the required assistance could be provided by private nursing services or “hired carers”. The Tribunal does not refer to any other documentary evidence relevant to that issue. Yet, in finding that Ms Guerrero did not satisfy regulation 1.15AA(1)(e), no regard was had to it. Ms Valencia submits that the failure to do so also amounted to a constructive failure to exercise jurisdiction and to jurisdictional error.
I prefer the Minister’s submissions in relation to this ground.
The conclusion that the Tribunal overlooked a document is unlikely, given that the Tribunal expressly referred to that document at [15]. Of course, even if the letter were not referred to, that would not prove that it was not considered. Still less would it amount to a jurisdictional error.
Ms Valencia draws attention in her submissions to a passage in the letter where the writer expresses a view that Ms Valencia could not afford community nursing because she and her husband are on pensions. This appears to be no more than the expression of an opinion by the letter writer based on an assumption about Ms Valencia’s financial means, and those of her husband.
It is not surprising that the Tribunal did not expressly refer to this part of the document. In circumstances where several relatives had offered to make financial contributions, the assumption made by the letter writer was wrong. The Tribunal was therefore addressing a very different question at [23], namely whether the family members who had made an offer of contribution had investigated hiring professional help. No error is shown.
Ground 3 – did the Tribunal fail to comply with s.359A of the Migration Act?
Section 359A is analogous to s.424A of the Migration Act (the latter applying to Part 7-reviewable decisions) and provides as follows:
Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
…
Section 379A requires that the invitation be in writing and s.359B sets out various other requirements for written invitations not relevant to the current proceedings.
The requirements of s.359A(1) are mandatory and failure to comply will constitute jurisdictional error.[46]
[46] SAAP v Minister for Immigration (2005) 228 CLR 294; [2005] HCA 24 at [77] per McHugh J, at [173] per Kirby J, and at [208] per Hayne J
In the present case, one of Ms Valencia’s witnesses, Ms Guerrero, gave evidence to the Tribunal that her “other brother and sister they will be able to help financially”.[47] Ms Valencia contends that this was “information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that is under review” for the purposes of s.359A(1)(a) of the Migration Act because, in accordance with the decision of the High Court in SZBYR v Minister for Immigration,[48] it was evidence that contained “in [its] terms a rejection, denial or undermining” of the applicant’s claims.[49] The statutory criteria in regulation 1.15AA(1)(e) required, relevantly, that the requisite direct assistance cannot reasonably be obtained from nursing services in Australia or (as the Tribunal reasoned) paid for by Ms Valencia’s family. The financial support provided by relatives was, and the Tribunal at [23] considered it to be, of central relevance to the issue of what “hired carer” could be provided. It was not an inconsistency in Ms Valencia’s own evidence going to her credibility but rather is said to be evidence from another source that was directly relevant to the statutory criteria for the grant of the visa sought. It is said not to have been evidence the content of which, if believed, would have been a relevant step towards rejecting, rather than affirming, the decision under review and therefore it was not akin to the passages from the statutory declaration at issue in that case. It is said to have been in this sense akin to the oral evidence of the daughter held by the High Court to have been “information” attracting the obligation under s.424A(1) of the Migration Act in SAAP.[50]
[47] Transcript at page 17, line 10. This appears to be a reference to the de facto partner’s brother and sister
[48] (2007) 235 ALR 609; [2007] HCA 26
[49] at [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ
[50] op cit. at footnote 46
Ms Valencia submits, moreover, that none of the exceptions set out in ss.359A(3) and (4) applied to the information. The Tribunal did not purport to, and did not in fact, give particulars of information and invite Ms Valencia to comment and respond in accordance with the procedure set out in s.359AA of the Migration Act. At the hearing, the Tribunal did not put to Ms Valencia, either formally or informally, the evidence provided by Ms Guerrero and, even if it had, it did not advise Ms Valencia she could seek an adjournment under s.359AA(3)(b) of the Migration Act. Further, the information in question was not information that Ms Valencia had “given” to the Tribunal for the purposes of s.359A(4)(b),[51] and it was not information that Ms Valencia had given to the Minister’s Department at any stage for the purposes of s.359A(4)(ba).
[51] SZEWL v Minister for Immigration (2009) 174 FCR 498; [2009] FCA 209
The Tribunal is thus said to have failed to give information and invitation under s.359A of the Migration Act in relation to Ms Valencia’s witness and thereby committed jurisdictional error.
In my opinion, no obligation of disclosure was enlivened under s.359A in this case.
Ground 3, as particularised in the amended application, says nothing about what information the Tribunal failed to give in accordance with s.359A. The case now made in Ms Valencia’s submissions, is that the information that should have been provided in accordance with the mechanism of s.359A was Ms Guerrero’s evidence that her “other brother and sister they will be able to help financially”.
If this information bears upon the Tribunal’s reasons, then it must be a reference to the reasoning at [23], where the Tribunal referred to the offers to pay by Ms Valencia’s relatives. This was in my view information that was given by Ms Valencia. The following exchange suffices to make this clear:[52]
T: So you have said that your brother and sister and your children will provide some money to support your daughter who is coming here with her family.
A.Yes if I will ask for help.
[52] Transcript, page 12
The Tribunal was referring to statutory declarations led by Ms Guerrero, in which the brother and sister offered to help financially.[53] Those statutory declarations, put before the delegate in support of the visa application, removed any obligation for the Tribunal to put their contents to the review applicant under s.359A. Even if I were wrong in that finding, Ms Valencia, by agreeing with the proposition put by the Tribunal in the passage set out above, adopted the information and gave it to the Tribunal.[54] Accordingly, the information was excluded from s.359A(1) by the exception in s.359A(4)(b).
[53] CB 84, CB 91
[54] see SZTGV v Minister for Immigration (2015) 229 FCR 90 at [22]
Moreover, what Ms Valencia is concerned about is not the information that her relatives were willing to assist financially, which was directed specifically to the support of Ms Guerrero, but rather to the Tribunal’s subjective appraisal of that evidence as supporting a conclusion that they had the capacity to assist with the cost of professional care. That subjective appraisal was not “information” requiring disclosure under s.359A.
Conclusion
I conclude that Ms Valencia has failed to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 17 May 2018
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