Velasquez v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FedCFamC2G 952
•27 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Velasquez v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 952
File number: MLG 2386 of 2018 Judgment of: JUDGE FORBES Date of judgment: 27 October 2023 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal – application for visa to provide care for aging father – where father has complex medical needs and requirement for constant care – where Tribunal found that another relative can provide a level of care – whether Tribunal properly engaged with and considered the father’s actual needs for assistance and the relative’s capacity to provide that assistance – whether Tribunal properly directed its enquiry into the availability of other services to provide assistance – judicial error found Legislation: Migration Act 1958 (Cth) s 65
Migration Regulations 1994 reg 1.15AA
Cases cited: Biyiksiz v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 814
El-Chahini v Minister for Immigration and Border Protection [2018] FCA 202
Mariam v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 436
Minister for Immigration and Border Protection v Nguyen (2017) 254 FCR 522
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Nguyen v Minister for Immigration and Border Protection [2016] FCA 688
Division: Division 2 General Federal Law Number of paragraphs: 81 Date of hearing: 28 September 2022 Place: Melbourne Counsel for the Applicants: Ms Chan Solicitor for the Applicants: Bardo Lawyers Counsel for the Respondents: Mr Barrington Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 2386 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MELISSA DEL CARMEN GODOY VELASQUEZ
First Applicant
JORGE ALEXIS SAAVEDRA DAZAROLA
Second Applicant
JORGE ANDRES SAAVEDRA GODOY (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
27 OCTOBER 2023
THE COURT ORDERS THAT:
1.The decision of the Second Respondent made on 17 July 2018 be quashed.
2.A writ of mandamus be directed to the Second Respondent to rehear and determine the Applicants’ application according to law.
3.The Minister pay the Applicants’ costs of proceeding.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
In this matter the first applicant, Ms Velasquez, seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 17 July 2018 which affirmed a decision of a delegate of the first respondent (the Minister) to refuse to grant her (and her dependents) Other Family (Residence) (Class BU) visas under section 65 of the Migration Act 1958 (Cth) (the Act).
For the reasons set out below, I have determined that the decision of the Tribunal is affected by judicial error and that the substantive application should be remitted to the Tribunal to be reheard and determined according to law.
BACKGROUND
Ms Velasquez is a 38-year-old national of Chile. She applied for a carer visa so that she may provide direct assistance to her father, who is a 75-year-old Australian citizen living in Australia.
The second, third and fourth applicants are members of the first applicant’s family unit and are eligible for the grant of a visa if Ms Velasquez is successful in obtaining a carer visa. The fate of their judicial review applications are dependent on the outcome of the first applicant’s review application.
It is not in issue that the first applicant’s father suffers from a variety of serious medical conditions that significantly impair his ability to attend to routine daily functions. Some of those conditions include chronic kidney disease that complicates his diagnosis of diabetes, osteoarthritis, depression, hypertension and diabetic retinopathy, an eye condition that can cause vision loss and blindness.
The delegate was not satisfied that the first applicant was a carer of an Australian relative and therefore did not meet the requirements of cl 836.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations). A central issue in this review proceeding was whether Ms Velasquez was a “carer” within the legislative scheme.
LEGISLATIVE FRAMEWORK
Clause 836.221 of Schedule 2 to the Regulations set out the primary criteria for a carer visa which must be satisfied, at the time of decision, by Ms Velasquez.
The statutory criteria for the relevant kind of visa included the matters set out in reg 1.15AA(1) of the Regulations which provides that:
(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.
It is a requirement of reg 1.15AA(b) that there be a certificate which meets the requirements of subregulation (2). That certificate must be prepared in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister and it must be signed by the medical advisor who carried it out.
Subregulation (3) provides that the Minister is to take the opinion in a complying medical certificate to be correct for the purposes of deciding whether an applicant satisfies the criterion that the applicant is a carer.
TRIBUNAL DECISION
The applicants applied to the Tribunal for merits review of the delegate’s decision. The first applicant appeared before the Tribunal on 16 July 2018 to give evidence and present arguments. The Tribunal considered a number of statements, including one from the first applicant’s brother, and received oral evidence from the applicant, her husband, her sister and the sponsor (Ms Velasquez’ father).
On 17 July 2018 the Tribunal published the record of its decision and reasons.
For the purposes of the application the “Australian relative” was identified as the first applicant’s father and evidence of the relationship was submitted with the application. The Tribunal accepted that the applicant is a “relative” of the Australian resident and therefore met the requirements of reg 1.15AA(1)(a).
The Tribunal also accepted that a medical opinion of Dr Lim from BUPA Medical Visa Services describing her father’s medical condition complied with the requirements of a “certificate” as set out in subregulation (2). That opinion addressed the father’s medical condition, the physical, intellectual or sensory impairment caused by that condition, the impairment rating of the medical condition and the need for direct assistance in attending to the practical aspects of daily life caused by the condition. The certificate indicated an impairment rating of 30 and explained the need for direct assistance in attending to the practical aspects of daily life for at least two years. The Tribunal found that the certificate addressed each of the required matters in reg 1.15AA(b)(i)-(v).
Relevantly, the medical certificate prepared by Dr Lim[1] observed that the first applicant’s father was in need of personal care and attention on a daily basis to carry out routine bodily functions and that he was in the need for constant supervision or monitoring because he may be a danger to himself or others. The medical certificate identifies that the father requires assistance in and out of the shower and toilet, is at risk of falls due to poor sensation in his feet and poor eyesight, is unable to do any food preparation, has issues with balance and requires assistance with transport. As mentioned, the doctor stated that the father required permanent care for at least two years.
[1] Court Book (CB) 62-65
The Tribunal also found that the impairment rating specified in the certificate met the requirements of reg 1.15AA(1)(c) and that reg 1.15AA(1)(d) did not apply.
The issue before the Tribunal was therefore whether the required assistance could not reasonably be provided by another relative who met the requirements of reg 1.15AA(1)(e)(i) or obtained from welfare, hospital, nursing or community services in Australia as described in reg 1.15AA(1)(e)(ii).
In relation to the first limb of reg 1.15AA(1)(e) the Tribunal received evidence or considered statements from various of the sponsor’s relatives as to why they were unable to care for him.
That evidence included a statement from the sponsor’s son and first applicant’s brother, Carlos Manuel Godoy Velasquez, who stated that he could not provide full-time care to his father because he works on a casual basis and is studying toward a certificate course, which requires full day attendance one day per week. He also stated that he lives with his wife, who works long hours, and that he has significant child care responsibilities for their 2 ½ year old daughter, on the days she does not attend childcare. Mr Velasquez also stated that he lives some distance away from his father’s home (approximately 25 kilometres).
That evidence was corroborated by the first applicant. She told the Tribunal that her brother does not work but takes care of his young daughter while his wife works. The first applicant told the Tribunal that her brother does not help with her father and does not care for him, sentiments which seem to have also been confirmed by the father in his evidence.
It is noteworthy that the first applicant’s brother was not available to give oral evidence to the Tribunal, as a consequence of which the Tribunal observed that it had not had the opportunity to test his evidence[2].
[2] Paragraph [26] of the Tribunal’s Reasons
The sponsor’s daughter (and sister of the applicant) Jessica Maria Godoy Velasquez provided a declaration in which she stated that she cannot provide full-time care to her father because she is a single mother of a 9-year-old and worked long night shifts. The Tribunal was informed that she worked as a security guard 12 hours a day and various shifts. She said that due to her work commitments she was unable to provide the necessary care and assistance required by her father. Based on this evidence the Tribunal accepted that the applicant’s sister cannot provide assistance to the father[3].
[3] Paragraph [25] of the Tribunal’s Reasons
There was considerable analysis by the Tribunal regarding the relationship between the sponsor father and his former spouse, Silvia Ines Velasquez Figueroa. The parties claimed to have been estranged for some time. The wife provided evidence that she was unable to provide full-time care for her husband as she was a cleaner five days a week for two and a half hours each day. She also described her own health problems and stated that she did not consider herself qualified to deliver the care he required.
The delegate had not been satisfied that the couple had separated. After some analysis of the evidence at paragraphs [20]-[23] the Tribunal also expressed reservations concerning the parents’ claimed separation. Nevertheless, the Tribunal decided to give the parties the benefit of the doubt and accepted, for the purposes of the application, that the father and his former partner were no longer in a spousal relationship. The effect of this finding was that the wife was not a “relative” for the purpose of reg 1.15AA(1)(e)(i)[4].
[4] Paragraph [24] of the Tribunal’s Reasons
On the evidence before it, the Tribunal was not satisfied that the assistance required by the sponsor father could not reasonably be provided by another relative, namely his son (the first applicant’s brother)[5]. At paragraph [26] of its reasons, the Tribunal concluded that distance from the father did not preclude his son from “providing a level of care”. The Tribunal also concluded that the son had claimed unavailability to provide care, but not expressed an unwillingness to do so.
[5] Paragraph [29] of the Tribunal’s Reasons
At paragraph [27], the Tribunal stated:
“The Tribunal is not satisfied that the applicant’s brother is unwilling to provide any care to his father. While the Tribunal acknowledges that he has a small child, that in itself is not sufficient to exclude the brother’s availability. The applicant’s own evidence is that she takes care of her two children and her small niece and these children do not affect her capacity to act as a carer and, in the same way, the Tribunal does not consider that the presence of a child - it would be going to school or kindergarten - would preclude the applicant’s brother from acting as a carer. The Tribunal accepts that he may not be able to do it on a full-time basis but in the Tribunal’s view, the applicant’s brother - who has no work commitments – is able to provide a substantial level of care to his father. The Tribunal does not accept he is unwilling to do so. The Tribunal considers that the assistance can reasonably be provided by this relative”.
As to the second limb of reg 1.15AA(1)(e), the Tribunal was also not satisfied that assistance could not reasonably be obtained from welfare, hospital, nursing or community services in Australia.
In relation to that criterion the Tribunal noted (at paragraph [28]) evidence from the first applicant and the father that the father would not be willing to be placed in a nursing home and that it would be culturally inappropriate for him to go to a nursing home. While the Tribunal accepted that there had been some exploration of the possibility of a nursing home, it was not satisfied that adequate enquiries had been made about other options. The Tribunal continued at paragraph [28]:
“[28][…] Even if the Tribunal were to accept that placing the sponsor in an aged care facility would not be appropriate, the Tribunal is not satisfied that the family have explored other arrangements such as in-home care. The applicant told the Tribunal that the sponsor has not been assessed by an Aged Care Assessment Team. There is no evidence that the family have explored the option of hiring a professional healthcare worker or that they otherwise sought help from organisations that could provide in-house care. Such assistance would not preclude the sponsor from staying at home and living with his family, as is his preference.”
The Tribunal then concluded at [29]-[30]:
“[29]On the evidence before it, the Tribunal is not satisfied that the assistance cannot reasonably be provided by another relative (the sponsors son) or obtained from welfare, hospital, nursing or community services in Australia. The Tribunal is also of the view that a combination of such assistance - from a relative and from other organisations - would be adequate and suitable in the sponsors circumstances. The Tribunal is not satisfied the requirements of r. 1.15AA(e) are met.
[30]Given these findings, at the time of decision the applicant is not a carer of the Australian relative, being the sponsor, and therefore does not satisfy cl. 836.221. The secondary applicants do not meet cl. 836.321 and there is nothing to suggest they meet the primary criteria for visa grant.”
PROCEEDINGS IN THIS COURT
By an amended application dated 7 September 2022 the applicants identified three grounds of judicial error, of which only two were pressed at the hearing. Omitting particulars, the applicants prosecuted the following two grounds:
(1)The Tribunal asked the wrong question; and/or failed to apply the correct meaning of “assistance” reg 1.15AA(1) of the Regulations; and/or failed to perform its statutory task by failing to engage with the actual needs of the father for assistance;
(2)The Tribunal’s state of satisfaction at paragraph [29] of its reasons that “[…] the assistance cannot reasonably be […] obtained from welfare, hospital, nursing or community services in Australia” for the purposes of reg 1.15AA(1)(e)(ii) of the Regulations was based on irrational or illogical reasons and/or was legally unreasonable; and/or was formed by taking into account irrelevant considerations and disregarding relevant considerations; and/or involved a misunderstanding of the applicable law.
At the judicial review hearing on 28 September 2022, both parties were represented by counsel. Ms Chan appeared on behalf of the applicants and Mr Barrington on behalf of the Minister.
Prior to the hearing, each party had filed detailed written submissions and lists of the authorities on which they relied. A court book was prepared by the Minister’s representatives and tendered without objection.
The applicants also sought to rely upon the affidavit of Rayan Hazim, a solicitor, which annexed the transcript of the proceedings before the Tribunal, prepared from a recording which had been obtained following a Freedom of Information request. There was no objection to that material.
Ground 1
By this ground the applicants contend that the Tribunal fell into error in concluding that the assistance required by the father can reasonably be provided by the first applicant’s brother, Mr Velasquez.
The applicants submit that the jurisdictional error made by the Tribunal in arriving at that conclusion can be characterised in a number of different ways, namely as the Tribunal asking itself the wrong question; by the failure to apply the correct meaning of the expression “assistance” (reg 1.15AA(1)); or as a failure to perform its statutory task by failing to engage with the actual needs of the father for assistance.
Whichever way the error is characterised, the applicants seek to impugn the Tribunal’s conclusion as a failure by the Tribunal to properly engage in an analysis between the father’s specific needs and the son’s actual capacity to provide the care necessary to meet those needs.
The gravamen of the applicants’ submission is that the expression “the assistance” to which reg 1.15AA(1)(e) is directed must be understood as a reference to the direct assistance that, in the medical assessor’s opinion, is required in attending to the practical aspects of the person’s daily life over a period of at least two years. In the context of this application, the applicants contend that the brother’s ability to reasonably provide “the assistance” must be determined having regard to the actual assistance required by the father, rather than by whether the brother has the capacity to provide some unspecified level of “care”.
The applicants submit that nothing in the Tribunal’s reasons reveal any forensic analysis of Dr Lim’s opinion or proper consideration of the direct assistance required by the father having regard to his specific conditions. As mentioned above, the medical assessor opined that the father required assistance with showering, toileting, food preparation, transport and that he was in need for constant supervision and monitoring.
The applicant submits that the Tribunal’s broad finding that the brother could “provide a level of care” at paragraph [26] reveals the misdirection of its enquiry. It is submitted that the statutory task of the Tribunal when considering the criterion under reg 1.15AA (1)(e) was not to determine whether the brother could provide “care”, but whether he could reasonably provide “the assistance” required by the father as specified by the medical assessor.
It is submitted that the failure by the Tribunal to mention the specific needs of the father and its conclusion that the brother could provide some unascertained level of “care” exposes jurisdictional error. Had the Tribunal directed itself to the correct question, the Tribunal would have asked itself whether the brother was reasonably able to provide assistance with helping his father in and out of the shower and on and off the toilet, and whether he was reasonably able to provide food preparation, transport, administration of medication and, critically, constant supervision and monitoring. The applicants submit that the Tribunal did not engage with the father’s need for assistance as it was required to do and offers no path of reasoning for its conclusion that those needs could be reasonably met by the brother.
Counsel for the applicants submitted that the error in this case was similar to that found by Justice Jagot in El-Chahini v Minister for Immigration and Border Protection [2018] FCA 202 (“El Chahini”). In that case, Her Honour quashed a decision of the Federal Circuit Court and held at [27] that the mere expression of a conclusion of a lack of satisfaction that other family members could not reasonably provide the requisite assistance did not at all engage with the actual assistance required. Similar to the present case, the applicants contend that the lack of engagement in El Chahini was apparent from the Tribunal’s failure to mention the centrally relevant specifics of the person’s requirement for assistance.
The Minister contends that there is no substance to this ground and that the applicants’ submissions should be rejected for a number of reasons.
First, the Minister submits that there is nothing of any substance in the Tribunal’s interchangeable use of the expressions “care” and “assistance”. It is submitted that those expressions are broad synonyms and contextual concepts which largely overlap. In effect the Minister submits that the applicants are grasping for a distinction which is of no moment and are seeking to make something out of nothing. The fact that the Tribunal may have been somewhat casual in the use of those expressions, even within the confines of a single paragraph (eg paragraph [27]) does not reveal any failure to apply the correct test.
The Minister submits that the statutory language of “assistance” can in any event be found at paragraphs [8], [10], [15], [19], [21], [25], [27], [28] and [29] of the Tribunal’s reasons. It is submitted that the Tribunal was aware of the correct test and even though it concluded in [27] that the brother could provide a “level of care”, it also properly found that the “assistance” could reasonably be provided by the brother - as required by the statutory test.
Secondly, the Minister submits that the Tribunal did carefully consider whether the relevant assistance could be provided by another relative. Contrary to the applicants’ submissions, the Minister says that paragraphs [8] and [10] reveal that the Tribunal had specific regard to the medical certificate, the requirement that the father needed direct assistance in attending to the practical aspects of daily life and the need for that direct assistance to continue for at least two years. The Minister submits that it is therefore clear that when the Tribunal gave consideration to the brother’s work and childcare obligations, it did so against a context of the father’s actual needs for assistance.
Thirdly, and furthermore, the Minister submits that the Tribunal’s express acknowledgement of the medical certificate was a sufficient recognition of the father’s actual needs. The regulations require the Tribunal to treat the certificate as conclusive of the matters addressed therein, relieving the Tribunal of any need to make or set out any findings about the person’s condition or the need for assistance.
Moreover, the Minister contends that the Tribunal’s awareness of the father’s needs is also revealed by its acceptance of evidence that it was “culturally inappropriate” for the father to be placed in an aged care facility and acknowledging his preference to stay at home and be with his family. That awareness of the father’s needs, as set out in the Tribunal’s reasons, is said to distinguish the present case from El Chahini.
It is submitted in the present case that the Tribunal expressly considered not only father’s specific needs such as his preference to remain at home, but also expressly considered the first applicant’s brother’s circumstances, and his ability to meet those needs. The Minister submits that the Tribunal expressly considered what constraints the brother might have about being able to provide assistance including his family life, his care responsibilities for his daughter, how far he lives from his father and his work commitments. This is quite different from El Chahini where Jagot J found that the Tribunal had failed to engage with the “actual needs of the mother for assistance and the impact of those needs on the capacity of her daughter […] and adult grandchildren, all of whom are married, working and have their own families, to provide assistance”[6].
[6] El-Chahini v Minister for Immigration and Border Protection [2018] FCA 202 at [21] (“El-Chahini”)
Ultimately, the Minister submits that even if the Tribunal did not expressly set out each and every one of the father’s care needs, there is express acknowledgement of Dr Lim’s certificate in the Court should be satisfied that the content of that certificate was evaluated when the Tribunal apply the relevant criteria. It is submitted that there is no proper basis for inferring that the father’s needs for the certificate were overlooked in the assessment process.
CONSIDERATION
In El-Chahini, Jagot J said at [4] that:
“[…] the “assistance” referred to in reg 1.15AA(1)(e) is the assistance described in reg 1.15AA(1)(b)(iv), being the relevant person’s need for direct assistance in attending to practical aspects of daily life because of a medical condition. It necessarily follows that the question which must be answered under reg 1.15AA(1)(e)(i) (which the Tribunal relied to reach its conclusion in this matter) is whether the assistance the relevant person needs in attending to the practical aspects of daily life because of the person’s medical condition cannot reasonably be provided by a relative of the person who is an Australian citizen or permanent resident.”
In that case, the Tribunal considered the capacity of a mother’s two daughters and six adult grandchildren to provide assistance. The Tribunal found that each of them had various commitments, including work and family commitments, which precluded any of them from providing 24-hour support as a full-time carer. However, the Tribunal did not accept that they could not each contribute some degree of care, so that they together, and in addition to any paid service, could provide the care that the mother required. The Tribunal found that the level of care could be provided if the elderly mother relocated from Sydney to Young, where she should be able to find accommodation and doctors and where her family could jointly provide the required assistance.
Justice Jagot found that the conclusions of the Tribunal in El-Chahini revealed a failure by the Tribunal to engage with the actual needs of the mother for assistance. Her Honour found that although the Tribunal referred to the medical assessment in its reasons and identified the wide range of assistance the mother required for daily living, when the Tribunal came to assess whether the mother’s relatives could reasonably provide those kinds of assistance it did not mention, let alone evaluate, the nature of the mother’s needs. Her Honour found that important aspects of the material before the Tribunal, which was centrally relevant to the Tribunal’s conclusions, were not mentioned at all, including the mother’s risks of falling and the requirement for help with virtual aspects of her daily life. The most significant failure on the part of the Tribunal was its conclusion that it would not be impossible for the mother to find accommodation in Young and “the unstated and unexplored premise”[7] that the mother could live on her own with her daughter and grandchildren providing the required assistance.
[7] El-Chahini at [23]
Notwithstanding these findings, Jagot J cautioned that each case turns on its own facts in terms of the material put before the Tribunal and the reasons for decision[8].
[8] El-Chahini at [19]
In this case, counsel for the Minister similarly cautioned that the Court should not read the Tribunal’s decision overly finely with an eye attuned to the perception of error[9]. The Minister submits that the reasons should be taken as a whole and that the Court should be slow to conclude that the Tribunal did not address the correct question.
[9] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272.
In Nguyen v Minister for Immigration and Border Protection [2016] FCA 688, which was cited by Jagot J in El-Chahini, Buchanan J held at [40] that it was not necessary for the Tribunal to specify precisely how the relevant person’s needs might be met by the family members already in Australia. His Honour went on:
“[…]Those are, ultimately, decisions for the family itself as the AAT clearly recognised. The AAT’s task (in this particular respect) was to make an assessment of the matters referred to in reg 1.15AA(1)(e), namely whether the appellant’s need for direct assistance in attending to the practical aspects of daily life could reasonably be provided by relatives in Australia or obtained from appropriate services available to her. Completion of the task did not require the degree of prescriptive detail and particularity which Ground 5 suggests. Nor was it a jurisdictional error not to specify, in greater detail, how each family member might be able or expected to contribute, in order for the AAT to conclude that it was not satisfied that the visa condition had been met”.[10]
[10] Nguyen v Minister for Immigration and Border Protection [2016] FCA 688 at [40]
In order to discharge its statutory task, the Tribunal is not required to develop a care plan for the individual who requires assistance. In El Chahini, Jagot J agreed that the Tribunal does not have to provide details of how, practically, each relative could do something to provide the mother with what was required[11]. A failure by the Tribunal to prescribe the minutiae of how care is to be delivered or needs met is a merits complaint and does not give rise to jurisdictional error.
[11] El Shahini at [22]
That said, it remains incumbent on the Tribunal to assess the issue under reg 1.15AA(1)(e)(i), namely whether the assistance the relevant person needs in attending to the practical aspects of daily life because of the person’s medical condition cannot reasonably be provided by a relative of the person who is an Australian citizen or permanent resident.
In my view the Tribunal failed to do so because it did not engage with the “actual needs” of the father for assistance and the impact of those needs on the capacity of the brother to provide that assistance. As in El Chahini, the Tribunal proceeded on an unexplored premise. The Tribunal found that the brother could meet the father’s needs because the brother’s childcare responsibilities and work commitments were not sufficient to exclude his availability to provide a substantial level of care to his father. The premise of the finding was that the availability of the brother was a sufficient basis for finding that he could alone, or with the assistance of some other organisation, reasonably provide the assistance required by the father.
Counsel for the Minister conceded that the Tribunal did not expressly set out the father’s needs in its decision. However, the Minister submitted that it was sufficient for the Tribunal to have acknowledged the existence of the medical certificate and to have set out the relevant test it was required to apply.
I disagree. In my view, on a fair reading, the reasons do not reveal any meaningful engagement by the Tribunal with the nature and extent of the actual assistance required by the father (as specified in the medical certificate) and/or the level of assistance which could be reasonably and practically provided by the first applicant’s brother or whether the requisite level of assistance could be provided by him for at least two years.
The Tribunal’s determinative finding at [27] that “[…] the assistance can reasonably be provided by this relative” is not preceded by any degree of analysis of the father’s actual direct needs. I agree with the applicants that the Tribunal appears to have approached the question from the perspective of whether the brother had the availability and willingness to provide some generalised notion of “care”, rather than considering whether the father’s complex needs for assistance could reasonably be met by him.
When considering the criterion in reg 1.15AA(1)(e)(i) the Tribunal failed to discharge its statutory task and fell into error.
The Minister submits that such an error, if found by this Court, is in any event immaterial. The Minister submits that there was an independent basis for the Tribunal’s decision not to grant the visa, namely its non-satisfaction that the requisite assistance could not be “obtained from welfare, hospital, nursing or community services in Australia”[12].
[12] Migration Regulations 1994 reg 1.15AA(1)(e)(ii)
It is necessary to examine the Tribunal’s finding in relation to reg 1.15AA(1)(e)(ii). The relevant discussion and finding can be found at [28]-[29] of the Tribunal’s reasons.
The Minister contends that while the Tribunal was provided with evidence that there had been some exploration of a nursing home for the father, there had been no assessment of the father by an aged care assessment team nor any exploration of the option of hiring a professional health care worker or seeking help from organisations that could provide in-home care. The Minister submits that the state of the evidence left it open to the Tribunal to conclude that it was not satisfied that the requisite level of assistance could not be obtained from the sources identified in reg 1.15AA(1)(e)(ii).
The Minister submits that the Tribunal only made a finding of non-satisfaction, not a positive finding that assistance could be sourced from other providers. The Minister submits that this conclusion of non-satisfaction can stand independently as a basis for visa refusal, as it did in Mariam v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 436 (“Mariam”).
In Mariam, the Tribunal had limited evidence before it about the assistance that could be provided by relevant organisations and found that the availability of services had not been fully investigated. The Tribunal found that due to perceived deficiencies in the evidence it was not in a position to generally assess what assistance was able to be provided to the sponsor. The Court on review found that the applicants had put some evidence before the Tribunal but the evidence was insufficient to persuade the Tribunal and that there was no error.
This case is not like Miriam for two reasons. First, on a proper reading of the Tribunal’s reasons, I do not agree that its conclusion was simply to reach a state of non-satisfaction in relation to the reg 1.15AA(1)(e)(ii) criterion. Secondly, the Tribunal’s consideration of the criterion was misdirected because, for the reasons discussed earlier, the Tribunal did not frame its enquiry about the availability of other services by any reference to the father’s actual needs for assistance. In other words, the Tribunal’s failure to engage with the father’s actual need for assistance affected the entire decision, including its conclusion on reg 1.15AA(1)(e)(ii).
As to the first point, the Tribunals conclusion at [29] (set out earlier) extends beyond non-satisfaction. The first sentence certainly expresses the conclusion that the evidence before the Tribunal did not satisfy it that the necessary assistance cannot be obtained from welfare, hospital, nursing or community services in Australia. But then the Tribunal goes on to find, positively, that a combination of such assistance - from a relative and from other organisations - would be adequate and suitable in the sponsors circumstances. It is on that basis that the Tribunal is not satisfied the requirements of r 1.15AA(e) are met.
The finding at [29], that assistance from other organisations “would be adequate and suitable” to the father’s needs implies a conclusion that such assistance exists, is available and that it has been evaluated by the Tribunal as appropriate to meet the needs that the brother cannot. It is not merely a lack of satisfaction that assistance cannot be obtained.
It is here that the earlier error bites and is proven material. Having failed to have regard to the actual nature and extent of the father’s need for direct assistance in attending to the practical aspects of his daily life, the Tribunal was not capable of performing the requisite analysis of determining whether such assistance could be obtained from organisations which provide in-house care or elsewhere. The Tribunal did not and could not consider how the services from which assistance can be purportedly obtained actually ‘matches up’ with the person’s particular facts and circumstances. For that reason the Tribunal fell into jurisdictional error of the type found by Gray J in Biyiksiz v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 814 and the Full Court in Minister for Immigration and Border Protection v Nguyen (2017) 254 FCR 522.
Ground 1 is made out. The Tribunal has fallen into jurisdictional error and the applicants are entitled to the relief sought in her application.
Ground 2
Although not strictly necessary for me to do so, I have considered Ground 2 in the event I am found to be wrong relation to the first ground.
By ground 2, the applicants contend that the Tribunal’s consideration of reg 1.15AA(1)(e)(ii) was irrational or unreasonable. The applicants submit that it was not rational for the Tribunal to conclude that the first applicant had not fully explored other arrangements given evidence that she could not afford to pay for such services and there was no evidence that anyone else in the family could pay.
I accept the Minister’s submission that this ground of attack on the Tribunal’s decision is flawed and should be rejected. The applicants’ argument does not come close to demonstrating the sort of “extreme illogicality” necessary to sustain this species of judicial error.
The flawed premise of the applicants’ submission is that each of the services which might be available from external providers would involve a cost to the family. The premise was not established and it was evident from the Tribunal’s reasons that the first applicant had been invited but had failed to explore services which might involve little or no cost, such as might be available if the father was subject to an Aged Care Assessment.
The first applicant’s evidence that she could not afford to hire a professional nurse or the absence of evidence that any other family member could contribute financially does not undermine the Tribunal’s conclusion that the first applicant had not explored other arrangements. The financial capacity of the first applicant and other family members does not amount to a complete answer to the question whether the assistance could reasonably be obtained from welfare, hospital, nursing or community services in Australia.
Ground 2 must be dismissed.
DISPOSITION
For the reasons set out above, I find that decision of the Tribunal made on 17 July 2018 is affected by jurisdictional error.
The applicants are entitled to the relief sought in the amended application. The decision of the Tribunal should be quashed and the application remitted to the Tribunal to be reheard and determined according to law.
The Minister should pay the applicants’ costs of the proceeding.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 27 October 2023
SCHEDULE OF PARTIES
MLG 2386 of 2018 Applicants
Fourth Applicant:
COSTANZA ALEJANDRA SAAVEDRA GODOY
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