Valencia v Minister for Immigration
[2016] FCCA 2956
•21 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VALENCIA v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2956 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it failed to ask itself the right question, failed to afford the applicant a meaningful opportunity to give evidence and present arguments and failed to put adverse information to the applicant. ADMINISTRATIVE LAW – Jurisdictional error arising out of failure to put applicant on notice of issue determinative of review. |
| Legislation: Migration Act 1958, ss.360, 474 Migration Regulations 1994, regs.1.03, 1.15AA, cls.116.211, 116.221 of sch.2 |
| Cases Cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | LOURDES VALENCIA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2009 of 2014 |
| Judgment of: | Judge Cameron |
| Hearing date: | 8 November 2016 |
| Date of Last Submission: | 9 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 21 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Chia |
| Solicitors for the Applicant: | Jessie Icao Solicitors |
| Counsel for the First Respondent: | Mr P. Knowles |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
A writ of certiorari issue bringing into this Court to be quashed the second respondent’s decision of 23 June 2014.
A writ of mandamus issue directing the Administrative Appeals Tribunal, as successor to the second respondent, to re-determine according to law the applicant’s application made to the second respondent on 18 April 2013.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2009 of 2014
| LOURDES VALENCIA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Ms Lorna Guerrero is a Filipino citizen resident in the Philippines. On 30 April 2012 Ms Guerrero applied to what is now the Department of Immigration and Border Protection (“Department”) for an Other Family (Class BO) subclass 116 carer visa. Her de facto partner and their four children were included in that application as members of her family unit. Ms Guerrero’s application was made on the basis that she sought to become the carer of her mother, Mrs Lourdes Valencia, an Australian citizen and the applicant in this proceeding. On 12 March 2013 Ms Guerrero’s application was refused by a delegate of the first respondent (“Minister”) on the basis that she did not satisfy cl.116.211 of sch.2 to the Migration Regulations 1994 (“Regulations”). Mrs Valencia, as Ms Guerrero’s sponsor, then applied to the second respondent (“Tribunal”) for a review of the delegate’s decision. On 23 June 2014 the Tribunal affirmed the delegate’s decision and Mrs Valencia has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the Tribunal’s decision will be set aside and the matter remitted to be determined according to law.
Relevant legislation
The criteria for the grant of a subclass 116 visa are found in pt.116 of sch.2 to the Regulations. One of the criteria which Ms Guerrero had to satisfy at the time she made her application was cl.116.211 which provided:
(1)The applicant claims to be a carer of an Australian relative of the applicant.
(2)In this clause, Australian relative, in relation to an applicant, means a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
At the time a decision was made on her application, Ms Guerrero had to satisfy cl.116.221 which at all relevant times provided:
The applicant is a carer of the Australian relative mentioned in clause 116.211.
Regulation 1.03 defines “relative” to include a child or a parent.
The term “carer” is defined in reg.1.15AA. At the time the Tribunal made its decision reg.1.15AA provided:
1.15AACarer
(1)An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:
(a)the applicant is a relative of the resident; and
(b)according to a certificate that meets the requirements of subregulation (2):
(i) a person (being the resident or a member of the family unit of the resident) has a medical condition; and
(ii) the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and
(iii) the impairment has, under the Impairment Tables, 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)…
(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.
(2)A certificate meets the requirements of this subregulation if:
(a)it is a certificate:
(i) in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and
(ii) signed by the medical adviser who carried it out; or
(b)it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures.
(3)The Minister is to take the opinion in a certificate that meets the requirements of subregulation (2) on a matter mentioned in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer.
(4) In this regulation:
Impairment Tables means the Tables for the Assessment of Work‑related Impairment for Disability Support Pension in Schedule 1B to the Social Security Act 1991.
For the purposes of sub-reg.1.15AA(1)(c), legislative instrument IMMI 07/012 specified an impairment rating of 30.
Background facts
Visa application
As noted, Ms Guerrero made her application on 30 April 2012. In her application form she indicated that Mrs Valencia has a husband (Ms Guerrero’s step-father) and a daughter and son (Ms Guerrero’s half-siblings) who live in Australia and are Australian citizens. Mrs Valencia also has a sister and brother who are Australian citizens. Ms Guerrero answered “No” to the question:
Has anyone sought assistance from any Australian welfare organisation, doctor or health professional, hospital, nursing home or other community service to assist your relative?
and gave the following reason for her answer:
The Sponsor first language is Filipino, she has some inability to understand the English language well.
In support of her application, Ms Guerrero provided a Carer Visa Assessment Certificate dated 16 February 2012. The certificate was signed by an examining medical adviser from Medibank Health Solutions (“MHS”) who assessed Mrs Valencia as suffering from epilepsy, neuropathy and depression and determined that she met the requirements for a carer because she had:
a)a total impairment rating of 40;
b)a medical condition which caused physical, intellectual or sensory impairment of her ability to attend to the practical aspects of daily life;
c)a need for direct assistance in attending to the practical aspects of daily life because of the medical condition; and
d)a medical condition that would continue for at least two years such that she would have a need for direct assistance in attending to the practical aspects of daily life.
In a “Report on Examinee” attached to the certificate the MHS medical adviser noted that Mrs Valencia also suffered from diabetes and that all four of her medical conditions were permanent. The adviser noted that:
a)as a result of her epilepsy Mrs Valencia suffered seizures approximately once a month which lasted for three to five minutes with a postictal phase of a few minutes. The medical adviser noted that Mrs Valencia took medication twice a day and visited a neurologist every three months;
b)her neuropathy required her to use a four-wheel frame and meant she required assistance with all transfers and mobility. It caused her to suffer constant numbness in both lower limbs and episodic, severe pain. The MHS medical adviser noted that Mrs Valencia had a history of multiple falls and that, apart from when she attended medical appointments, she did not walk outside her house;
c)her diabetes caused no functional impairment and had always been controlled by diet; and
d)her depression caused no major functional impairment.
The MHS medical adviser noted in the Report on Examinee that Mrs Valencia required 24-hour assistance with all aspects of personal care due to her debilitating neuropathy. The medical adviser assessed Mrs Valencia as requiring direct assistance with hygiene, toileting, dressing and grooming, eating, mobility, taking medication, supervision and monitoring and transport for medical appointments.
Ms Guerrero also provided the following in support of her application:
a)a psychologist report and two medical reports in relation to Mrs Valencia’s medical conditions;
b)a statutory declaration made by Mrs Valencia’s husband on 10 March 2012. Mr Valencia indicated that he is a retired pensioner and declared that he was unable to look after his wife on a full-time basis because of his own health condition. A medical certificate dated 24 February 2012 was attached to the statutory declaration and stated that Mr Valencia could not undertake full household duties or take care of his wife because he suffered from chronic heart failure, obesity, intermittent cellulitis of the leg and paroxysmal atrial fibrillation and had a cardiac pacemaker;
c)a statutory declaration made by Mrs Valencia’s daughter on 10 March 2012. Ms Valencia declared that she was recently married and no longer lived with her mother. She declared that she worked full-time and could not provide full-time care to her mother;
d)a statutory declaration made by Mrs Valencia’s son on 17 March 2012. He listed the same address as his mother’s address and declared that he was employed on a full-time basis and regularly required to travel interstate for work which meant he was not at home most of the time. He declared that he was also occupied with his ongoing university studies;
e)a statutory declaration dated 5 March 2012 from Mrs Valencia’s sister declaring that she worked full-time, was married and had four grown children and five grandchildren; and
f)a statutory declaration dated 21 March 2012 from Mrs Valencia’s brother declaring that he was married and had four children who lived at home.
On 30 January 2013 the Department wrote to Ms Guerrero requesting evidence to support her claim that welfare, hospital, nursing and community services in Australia could not reasonably meet Mrs Valencia’s care needs. In response Ms Guerrero provided:
a)a letter dated 1 February 2013 over the names of two neurologists at the Westmead Hospital Neuromuscular Clinic. The letter stated that given Mrs Valencia’s degree of neurological disability as a result of neuropathy she would benefit from having a full-time carer at home;
b)a report from an occupational therapist at St Joseph’s Hospital dated 5 February 2013 stating that Mrs Valencia was a patient of the hospital’s rehabilitation outpatient department as a result of her neuropathy. The report stated that Mrs Valencia required access to a carer on a 24-hour basis due to her high level care needs. It also stated that community services in her local area would support her carer but would not be sufficient to meet her overall care needs; and
c)a letter dated 10 February 2013 from a mental health social worker at the Healthway Medical Practice. The social worker stated that Mrs Valencia was a family oriented, conservative and reserved person and that placement in a nursing home or other residential care other than her family home would not be in her best interests and would affect her mental health. The social worker also stated that Mrs Valencia did not meet the criteria for aged care placement because of her age (sixty-two years) and that community support services could not provide the 24-hour intensive support she required.
On 12 March 2013 the delegate refused Ms Guerrero’s application. The delegate found that Ms Guerrero did not meet reg.1.15AA, and therefore cl.116.211 of sch.2, because she had failed to demonstrate that the assistance Mrs Valencia required could not be reasonably obtained from welfare, hospital, nursing or community services in Australia.
Tribunal proceedings
On 18 April 2013 Mrs Valencia, as Ms Guerrero’s sponsor, sought review of the delegate’s decision with the Tribunal. Accompanying the review application was:
a)a letter dated 27 March 2013 from the manager of the Glen Lyn Aged Care Facility. The letter stated that an enquiry had been made about a bed placement for Mrs Valencia but that she could not be placed on a waiting list because she had no current aged care client record. Later submissions made by Mrs Valencia’s representatives stated that she could not obtain an aged care client record because she was not yet sixty-five years old;
b)a letter dated 4 April 2013 from a social worker at the St Joseph’s Hospital Medical Rehabilitation Outpatient Department. The letter stated that Mrs Valencia required 24-hour care and that there were no community or government funded services which could provide the level of care she required. It stated that she was too young to be placed in a nursing home and, in any event, any such placement would make her even more depressed and possibly suicidal. It went on to state that Mrs Valencia had been referred to community services which provided domestic assistance, lawn mowing, personal care services, meals on wheels and in-home respite care but those services would incur a cost and would only provide limited and basic care;
c)a letter dated 4 April 2013 from an assessor at the Home Care Service of NSW, stating that Mrs Valencia’s local branch of the home care service was operating at capacity and was unable to progress her referral for further assessment; and
d)a report from a mental health social worker at Shakthi Clinic dated 4 April 2013 stating that Mrs Valencia could not be placed in a nursing home because of her age and that any such placement would be detrimental to her mental health.
On 10 April 2014 Mrs Valencia’s representative provided to the Tribunal written submissions dated 9 April 2014 which attached medical evidence in relation to Mrs Valencia’s conditions previously provided to the Department. The submissions also attached:
a)a letter dated 16 May 2013 from the Parramatta City Council stating that since 29 April 2013 Mrs Valencia had been receiving prepared meals from the council’s food service;
b)a letter dated 22 May 2013 from BCS Aged Care indicating that Mrs Valencia was on a waiting list for their domestic assistance program;
c)two letters dated 11 March 2014 from Community Wheels Inc stating that both Mr and Mrs Valencia were registered clients of the organisation and used its transport services to attend various medical appointments;
d)a letter dated 14 March 2014 from the program coordinator of the Wesley Home and Carer Support Services stating that Mrs Valencia had been a client of the service for nine months and had been receiving two hours of domestic assistance per fortnight at a cost of $10 an hour;
e)a letter dated 14 March 2014 from the Parramatta City Council stating that since 29 May 2013 Mr Valencia had been receiving assistance from the council’s Community Assist Lawn Mowing program. The letter stated that Mr Valencia qualified for assistance because of his age and mobility issues;
f)a letter from Mrs Valencia dated 8 April 2014 in which she stated that in addition to her other medical conditions, she had a haematoma on her head which affected her walking and balance. Mrs Valencia stated that she had received prepared meals as part of a food service but had stopped the service because the food did not suit her tastes. She stated that she would feel at ease if Ms Guerrero became her carer because they could speak in their first language and Ms Guerrero would be able to cook to her cultural tastes;
g)a statutory declaration made on 4 April 2014 by Mr Valencia in which he reiterated that he could only provide his wife with limited assistance because of his own health issues. He declared that he and his wife paid a fee to Community Wheels Inc to transport them to their medical appointments. He also stated that their children could not provide physical support because of their full-time work but they paid for water, council, electrical and household bills;
h)a statutory declaration from Mrs Valencia’s son dated 22 March 2014 stating that he could not look after his mother because he regularly travelled across Australia and New Zealand for work. A letter from Mrs Valencia’s son’s employer dated 7 April 2014 stated that he was required to work late and for long hours and was also required to be available to travel to the company’s forty-six locations in Australia and New Zealand with minimal notice; and
i)a statutory declaration from Mrs Valencia’s daughter dated 22 March 2014 stating that her home is about ten kilometres from her parents’ home but that she could not care for her mother because of her full-time work and her plans to start a family.
The Tribunal’s decision and reasons
The Tribunal accepted that Ms Guerrero was Mrs Valencia’s relative within the meaning of sub-reg.1.15AA(1)(a) and that Mrs Valencia was an Australian citizen as required by sub-reg.1.15AA(1)(ba). It also referred to the Carer Visa Assessment Certificate dated 16 February 2012 which allocated Mrs Valencia an impairment rating of 40 and found that the certificate met the requirements of sub-regs.1.15AA(1)(b) and 1.15AA(1)(c).
The Tribunal went on to consider whether the assistance Mrs Valencia required could not reasonably be provided by any other relative or obtained from welfare, hospital, nursing or community services in Australia. In that regard:
a)the Tribunal noted that Mrs Valencia’s husband already provided her with a significant level of assistance, including with toileting, showering, dressing, getting into bed, preparing meals and feeding, with medications and with driving her to church on Sundays. While the Tribunal accepted that Mrs Valencia’s husband had his own medical issues, it was not satisfied that they would lead to any reduction in the level of care he could continue to provide;
b)the Tribunal noted that the evidence given at its hearing was that Mrs Valencia’s son travelled for work twice a month for about two days on each occasion and that on weekends he studied and went out with friends. It noted that he helped with taking out garbage, washing the dishes and with taking care of the back yard. Although in its decision record the Tribunal attributed that evidence to Mrs Valencia’s son, the evidence was in fact given by Mr Valencia. The Tribunal further noted that Mrs Valencia gave evidence that her son was always tired and did not do anything around the house, although he ate with them sometimes, did his own washing and cleaned his room. The Tribunal accepted that Mrs Valencia’s son provided very little household assistance and no personal assistance to his mother. It accepted that as a male there were limits to the personal care he could provide. However, it found that there was no indication that he could not provide assistance with household tasks, such as cooking, some additional cleaning, washing and shopping during the period that he was not travelling for work, and particularly on weekends;
c)the Tribunal noted that Mrs Valencia’s daughter visited her once a week on weekdays and sometimes helped with showering and dressing her mother. She also did shopping on weekends, some minor cleaning and went to the doctor with her mother. The Tribunal found that there was no information indicating that this assistance would not continue;
d)the Tribunal noted that Mrs Valencia’s brother visited her and sometimes brought a cooked meal, while her sister had a husband who was house-bound and required care. It accepted that the brother and sister could provide some assistance but that it would continue to be limited; and
e)the Tribunal found that Mrs Valencia also received some community services. In that regard it noted that she received assistance with cleaning on a fortnightly basis, with mowing and with transport for her medical appointments. It further noted that at some stage she had also received prepared meals, although she had discontinued the service because she did not like the food. The Tribunal found that there was no evidence that the community services Mrs Valencia accessed were too costly for her to manage or culturally inappropriate.
The Tribunal concluded that Mrs Valencia was receiving assistance from various family members and from some community services and that that assistance would continue. It was therefore not satisfied that the assistance Mrs Valencia required could not reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia. In those circumstances, it found that the requirements of sub-reg.1.15AA(1)(e) were not met and so affirmed the delegate’s decision.
Proceedings in this Court
Ground 1
In the first ground of her amended application Mrs Valencia alleged:
1.In finding that it was not satisfied the requirement of paragraph 1.15AA(1)(e) of the Migration Regulations 1994 (respectively, the “Relevant Criterion” and “Regulations”) had not been met and therefore that the applicant’s daughter (the “visa applicant”) was not at the time of decision a “carer” for the purposes clause 116.221 of Schedule 2 to the Regulations, the second respondent (“Tribunal”) asked itself the wrong question and thereby constructively failed to exercise its jurisdiction.
Particulars
The applicant had provided a certificate pursuant to paragraph 1.15AA(1)(b) of the Regulations (“Certificate”) stating, inter alia, that because of her medical condition she had, and would continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life. The Tribunal was required under subregulation 1.15AA(3) of the Regulations to take the opinion in the Certificate as correct for the purposes of deciding whether the visa applicant satisfied a criterion for her being a “carer”.
The Relevant Criterion required that the direct assistance cannot reasonably be “provided by any other relative of the [applicant], being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen” (“Australian Relative”) ... or “obtained from welfare, hospital, nursing or community services in Australia” (“Community Services”).
The Tribunal reasoned that the Relevant Criterion had not been met because “some level and type of care” was being and could reasonably be provided by the applicant's Australian Relatives and the applicant was receiving “some community services” which could continue.
The Tribunal did not ask itself whether the level and type of care it held the applicant’s Australian Relatives could provide (or which could be obtained from Community Services) met the applicant’s particular need for assistance set out in the Certificate, namely the need for 24-hour supervision and care, including physical assistance with transfer, mobility and dealing with epileptic seizures.
The substance of Mrs Valencia’s first allegation, as expanded on in submissions was that, when considering whether she needed assistance which could not reasonably be provided by another relative with residency rights or by local support services, the Tribunal had asked the wrong question, or perhaps more accurately the Tribunal failed to ask the right question. It was said that the Tribunal failed to consider the nature of the assistance Mrs Valencia needed, as identified in the Carer Visa Assessment Certificate and accompanying Report on Examinee referred to earlier in these reasons at [10], [11] and [12]. In her written submissions Mrs Valencia expressed the argument in this way:
Subregulation1.15AA(3) provides that the Tribunal … is to take the opinion in the Certificate on a matter mentioned in paragraph 1.15AA(1)(b) to be correct. The Certificate stated that based on the medical assessment the applicant was in need of direct assistance in attending to the practical aspects of daily life and that opinion was set out in more detail in the accompanying Report on Examinee which stated that the applicant requires “24 hour assistance with all personal cares due to debilitating peripheral neuropathy” and that this would include hygiene, namely washing the applicant and helping her in and out of the bath or shower, toileting, dressing and undressing, eating and mobility, including moving in and out of bed or turning. It also stated that the applicant needed personal care and attention on a daily basis to carry out routine bodily functions and constant supervision or monitoring because the applicant may be a danger to herself.
Although Mrs Valencia pointed to reg.1.15AA(3), whose effect was that the Tribunal was to take the opinion in the Carer Visa Assessment Certificate to be correct for the purposes of deciding whether Ms Guerrero was a “carer” for the purposes of that regulation, the certificate contained none of the detail which was the basis of the first ground of the amended application. Relevantly, what it said was that Mrs Valencia had a medical condition which impaired her ability to attend to the practical aspects of daily life such that she needed direct assistance with those matters. It did not say, for instance, that Mrs Valencia needed 24-hour supervision and care. In any event, the Tribunal’s reasons make it quite clear that it did have close regard to the certificate and, most relevantly, to the certificate’s statement that Mrs Valencia needed direct assistance in attending to the practical aspects of daily life and would do so for the ensuing two years.
The question really presented by the first ground of the amended application was whether the Tribunal had to have regard to the content of the Report on Examinee and, if so, whether it did. Regulation 1.15AA(3) does not expressly impose such an obligation but I find that it does do so by necessary implication. Without regard being had to the Report on Examinee, the Tribunal would not know what assistance Mrs Valencia needed. Put another way, the Tribunal could not discharge its duty to apply reg.1.15AA without having regard to the content of the Report on Examinee. In order to determine whether the assistance needed by Mrs Valencia could or could not be provided by a relative with residency rights or by local support services, the Tribunal had to consider Mrs Valencia’s needs as identified in the Report on Examinee. Failure to test the availability of assistance by reference to each of Mrs Valencia’s identified needs would amount to a failure to have regard to a relevant consideration and a failure to ask the right question.
The Tribunal said this about Mrs Valencia’s health:
Information provided with the visa application and to the Tribunal indicates that the review applicant, who is 62 years old, suffers from epilepsy, diabetes, neuropathy and depression. The neuropathy causes her to require a walking frame; and she needs assistance with transfers and mobility. There is no functional impairment from the depression. The diabetes causes no functional impairment. She has grand mal seizures about once a month, lasting 3-5 minutes with a postictal phase of a few minutes only.
From a review of the material, it is apparent that this information came from the Report on Examinee. However, one part of that report was not expressly cited. It said:
She requires 24 hour assistance with all personal cares due to debilitating peripheral neuropathy.
Nevertheless, it is apparent that the Tribunal was aware of this statement and of its significance. In this connection, although the Tribunal referred to Mr and Mrs Valencia’s resident adult son and to the perceived limits on his ability to assist his mother with her personal care, it also observed that Mr Valencia assisted his wife with such tasks and could continue to do so notwithstanding limitations he confronted because of his own compromised health and fitness. The letter from St Joseph’s Hospital Auburn dated 4 April 2013 referred to earlier at [16(b)] stated that Mr Valencia provided care around the clock and it must be inferred that the Tribunal conceived of his ability to care for his wife in those terms notwithstanding that he was assisted during the day by family and support services.
It was put in addresses that the Tribunal contented itself with concluding that “some level and type of care” was available to Mrs Valencia without turning its mind to whether that care was to a necessary level and, in particular, whether Mr Valencia could provide care to that level 24 hours a day. However, as I have already observed, the Tribunal’s discussion of the care which Mr Valencia could provide did implicitly address that issue.
Ground 2
In the second ground of the amended application Mrs Valencia alleged:
2.Further or in the alternative, the Tribunal failed to “invite” the applicant to give evidence and present arguments as required by section 360 of the Migration Act1958.
The question raised by this allegation was whether the Tribunal had put Mrs Valencia on notice of a matter said to have been dispositive of the review, namely whether her son who lived with her and her husband did some things around the house, as Mr Valencia said, or whether he did nothing, as Mrs Valencia said. The parties relied on differing transcripts of the relevant parts of Mrs Valencia’s oral evidence to the Tribunal and, having listened to the sound recording of the Tribunal hearing which was introduced into evidence, I prefer the Minister’s transcript as the more accurate. However, nothing much turns on which transcript was the more accurate because they both recorded Mrs Valencia as having said that, other than looking after his own room and clothes, her son did nothing around the house because, when at home, if he was not studying he was too tired to provide assistance. The transcripts also differed where they recorded the relevant part of Mr Valencia’s evidence and again I prefer the Minister’s transcript subject to one correction. Having listened to the sound recording with the assistance of Mrs Valencia’s version of the transcript I find that Mr Valencia’s answer at T24, line 4 of the Minister’s transcript, which apparently could not be transcribed, should read:
He needs … He help me to throw the garbage.
The Tribunal concluded, based on Mr Valencia’s evidence, that the couple’s son helped with taking out the garbage, with washing the dishes and with taking care of the back yard. Mrs Valencia argued that the assistance which the Tribunal found her son provided was a matter determinative of her review and, as such, something which s.360 of the Act required the Tribunal to put to her.
Contrary to Mrs Valencia’s submission, whatever little assistance her son provided was of no consequence to the Tribunal. Relevantly it said:
The review applicant’s son also lives with her. He does not provide any personal assistance at this time and very little household assistance. The Tribunal accepts that, being a male, there would be limits to the personal care he could give. However, there is no indication that he could not provide assistance with household tasks, such as cooking, some additional cleaning, washing, shopping, other than the 4-5 days he is away each month and particularly on weekends.
As the Minister identified in his submissions, the issue concerning Mrs Valencia’s son was not what he did do but what he could do. The Minister submitted that Mrs Valencia had been put on notice of the issue of her son’s potential to provide assistance in the following exchange recorded at T10 of the Minister’s transcript:
Tribunal:Right. So does he do anything at all around the house?
Interpreter: No.
Tribunal: Why not?
Interpreter: He’s always tired.
No other part of the Minister’s transcript of the Tribunal hearing records the Tribunal suggesting to Mrs Valencia that her son might have been of more assistance to her than he was.
Although the Tribunal queried why Mrs Valencia’s son did not provide more assistance than he did, it did not suggest to her that her son was in a position to do so or that his perceived ability to do so would be a factor in its decision. The Tribunal said that there had been “no indication” that Mrs Valencia’s son could not do more but if it had raised the issue squarely with Mrs Valencia perhaps such an indication might have been given. Given that the Tribunal’s decision, particularly para.30, appears to place some weight on the potential of Mrs Valencia’s son to assist her, it should have raised that potential with her so she could have given evidence or made arguments in relation to it.
Because the Tribunal did not put Mrs Valencia on notice of that issue, it breached one aspect of the procedural fairness obligations found in s.360 of the Act with the result that its decision is affected by jurisdictional error.
Ground 3
In the third ground of the amended application Mrs Valencia alleged:
3.Further or in the alternative to grounds 1 and 2, the Tribunal did not comply with the mandatory requirement of section 359A of the Act to give the applicant clear particulars of information it considered would be the reason, or a part of the reason, for affirming the decision under review and invite comment and response.
Particulars
The applicant’s husband gave oral evidence that their son did some domestic chores for the applicant. This contradicted the applicant’s evidence.
The Tribunal did not give to the applicant, either orally or in writing, particulars of this information and invite comment or response.
The information was part of the reason the Tribunal found it was not satisfied the Relevant Criteria had been met and therefore affirmed the decision under review.
This allegation is a variation on the allegation made in the second ground of the amended application. As noted in connection with that ground, the significance of Mrs Valencia’s resident son lay in the assistance which the Tribunal believed he could provide, not what he actually provided. Consequently, the information provided by Mr Valencia about the son’s efforts around the house was not, in my view, information which provided the reason or part of the reason for the Tribunal’s affirmation of the delegate’s decision.
Conclusion
Jurisdictional error on the part of the Tribunal has been demonstrated.
Consequently, the Tribunal’s decision will be set aside and the matter remitted to it to be determined according to law.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Date: 21 November 2016
1
4