Vo v Minister for Immigration
[2014] FCCA 679
•11 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VO v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 679 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – refusal of Other Family (Migration) (Class BO) visa – no reviewable error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65(1)(b), 358, 359(1), 360, 423 Migration Regulations 1994 (Cth), rr.1.03, 1.15AA |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 Lafu v Minister for Immigration [2009] FCAFC 140 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 WZAQU v Minister for Immigration and Citizenship [2013] FCA 327 |
| Applicant: | NGUYEN THI VO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3102 of 2012 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 12 July 2013 |
| Delivered at: | Sydney |
| Delivered on: | 11 April 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr N Poynder |
| Solicitors for the Applicant: | Ms M Nguyen of My T Nguygen Solicitors |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the First Respondent: | Ms H Dejean of Australian Government Solicitors |
| The Second Respondent: | The Second Respondent filed a submitting notice of appearance. |
ORDERS
The name of the First Respondent be amended to read “Minister for Immigration and Border Protection”.
The Application filed on 24 December 2012 and the Amended Application filed on 23 May 2013 is dismissed.
The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to the Application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3102 of 2012
| NGUYEN THI VO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under the Migration Act 1958 (Cth) (“the Migration Act”) seeking judicial review in respect of a decision of the Migration Review Tribunal (the “Tribunal”), being MRT Case Number 1112308, a decision of Tribunal Member Alan Duri dated 28 November 2012, affirming the decision of a delegate of the Minister for Immigration and Border Protection (at the time of the decision the “Minister for Immigration and Citizenship”) (the “Minister”), to refuse to grant the applicants Other Family (Migrant) (Class BO) visas.
The solicitor for the Minister filed a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided is identified as the Court Book (“CB”) and has been marked Exhibit “A”. The applicant was granted leave to file and serve any affidavit evidence by 30 April 2013. The applicant filed and served the affidavit of Michelle Nguyen, solicitor in the proceedings, which annexed a transcript of the recording of the hearing before the Tribunal on 2 November 2012 (the “Transcript”), affirmed 29 April 2013 and filed 30 April 2013 (the “Nguyen Affidavit”).
The applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review upon, together with any supporting affidavit material. The applicant filed an amended application on 23 May 2013 (the “Amended Application”).
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties. Where this information is extracted from the Court Book, each item contains a reference for that material. I have not made further attribution as this would make the summary unwieldy.
The visa applicant, Mr Quang Thanh Le (“Mr Le”) was at the time of the visa application a 51 year old citizen of Vietnam who lived in Vietnam with his wife and 12 year old daughter. His 23 year old son, Quang Hoai Trung Le, was married to an Australian citizen and living in Sydney.
Mr Le was the only son of the applicant mother (“Ms Vo”), who at the time of the application was a 75 year old Australia citizen. Ms Vo also had six daughters, one of whom lived in Vietnam and one of whom lived in Queensland. The other four, aged between 39 and 54 years – lived in Sydney with their own families.
Ms Vo’s husband died in 1990, shortly after she migrated to Australia. At the time of the application she was living in Sydney with her 50 year old daughter, Thi Bich Thuy Le (also known as “Kathy”), Kathy’s husband and their dependent children. In recent years Ms Vo’s increasingly poor health had made the role of caring for her very difficult for Kathy. The purpose of the visa application was to seek a Carer visa so that Mr Le could move to Australia to take over the care of Ms Vo from Kathy.
The primary issue in the application for the visa and on review was whether Kathy and her sisters – in combination with any available community services – could look after Ms Vo. Apart from Kathy, each of Ms Vo’s Australian-based daughters claimed that they were unable to provide her with the necessary assistance because of their own family and personal commitments.
The Delegate’s Decision
The delegate of the Minister identified numerous relatives of Ms Vo living in nearby parts of Sydney and noted that they all provided statutory declarations stating their respective work and family commitments were prohibitive to provide Ms Vo with her required care. The delegate was not satisfied that the assistance for Ms Vo could not be reasonable provided by her various relatives already in Australia or that the assistance could not be reasonably be obtained from welfare, hospital, nursing or community services in Australia (CB 368).
The delegate concluded that cl.116.221 was not satisfied (CB 368).
Evidence before the Tribunal
The evidence provided by Ms Vo’s children throughout the visa application and review process may be summarised as follows:
a)Huong Thi Le (DOB 23 July 1956) said that she lives in Queensland with her husband and child and is unable to move to Sydney to assist Ms Vo (CB 317). Her husband Quang Truong (CB 168) and her daughter, Alida Ka Yan Truong (CB 177), also provided statutory declarations to the same effect. Alida subsequently provided the Tribunal with statutory declaration to the effect that she was now living in Sydney but only for a short-term, and any in event Ms Vo was not familiar with her and she could not therefore provide the required care (CB 313).
b)Thi Bich Thuy (also known as Kathy) (DOB 7 June 1962) said:
i)Her husband, Hein Le Truong, has a full-time job (CB 125). Her husband also provided a statutory declaration saying that he is self-employed as an electrician and works seven days per week (CB 181);
ii)That she has two dependent children aged 12 and 14 (CB 125);
iii)That she works five days a week from 8:00am until 3:30pm (CB 125 at [3]). She provided a pay slip for her employment at the Westpac Bank for the fortnight from 3 to 16 December 2010 showing a total of 51 hours of work for the period (CB 129-130). She subsequently provided a statutory declaration stating that she was working 4-5 days a week as a teller at St George Bank (alternating every second week) and that she had been providing care to her mother before 8:00am and after 3:30pm each day (CB 323 at [3]);
iv)That she had been caring for her mother outside her work hours; however in 2010 her mother’s health deteriorated dramatically and she now require round the clock care (CB 125 at [3]) ;
v)That she is exhausted and does not have the time to provide for her mother any more (CB 125 at [3]).
c)Nhung Bich Thi Le (DOB 31 October 1963) said:
i)She is employed five days per week from 9.30am to 3.00pm (CB 131 at [2]). She provided a pay slip for her employment at Mai Shoes Pty Ltd for the period from 20-24 December 2010 showing that she had worked 28 hours in that period (CB 135). In a further statutory declaration provided to the Tribunal, she said that she has a heart condition which prevents her from carrying out any heavy physical work as would be required to care for the applicant (CB 335-336);
ii)She is married with two dependent children aged 9 and 11 (CB 131 at [3]);
iii)Nhung’s husband, Ky Phong Nguyen Pham, also provided a statutory declaration (CB 186) confirming that he is employed full-time as a credit manager, and he provided pay slips for his employment at the Westpac Bank for the fortnight from 23 September to 6 October 2011 showing that he had worked for 75 hours in that period (CB 187-188);
iv)That she could not provide care for her mother due to her work and family commitments. She said that her family requires financial assistance and she needs to work to pay the mortgage for the upkeep of the family (CB 131 at [4] and [6]);
v)At the hearing Kathy gave evidence that she tried to arrange for Nhung to take over the care of her mother but Ms Vo only lasted on day and demanded to be returned to Kathy (Transcript 13.26-45, p.18.9-12).
d)Trang Bich Thi Le (DOB 6 August 1966) said:
i)She is married with two children aged 10 and 12 (CB 136 at [2];
ii)Her husband has full-time employment (CB 136 at [3]) Garry Nguyen, her husband, also provided a statutory declaration confirming that he is employed full-time in his family business, the Sunrise Vietnamese Daily Newspaper (CB 196);
iii)She works five days per week, from 9.00am to 3.00pm (CB 136 at [3]). Trang also provided pay slips for her employment at the Westpac Bank for the fortnight from 22 April to 5 May 2011 showing 60.8 hours of work for the period (CB 160-161). In a further statutory declaration provided to the Tribunal, Trang said that she works five days per week at the Westpac Bank, and she added that she and her mother do not get along and her mother does not want her to look after her (CB 341-342). In another statutory declaration provided to the Tribunal, Trang said that she is working four days per week at the Westpac Bank;
iv)At the Tribunal hearing, Kathy said that Trang and the Ms Vo do not get along and Trang does not feel comfortable visiting the house. She said that Trang had not visited in the last year (Transcript p.19.10-30).
e)Ha Bich Thi Le (DOB 4 May 1971) said:
i)She is married with two children aged 8 and 11 (CB 140 at [2]);
ii)She works seven days a week (CB 140 at [2]);
iii)Ha’s husband, Kim To, also provided a statutory declaration saying that he and his wife both work seven days in their own bakery business (CB 202). In a further statutory declaration provided to the Tribunal Ha said that her work hours are 8.30am to 4.00pm and sometimes longer (CB 330-332);
iv)Ms Vo said that Ha had been looking after her at her workplace when Kathy was working (CB 105 at [10]). However, in his interview on 3 November 2011 Mr Le, the visa applicant said that this had to be discontinued because Ms Vo was unable to cope with the noise made by the customers (CB 221.5).
f)In addition Mr Le’s 25 year old son in Australia, Quang Hoai Trung Le, provided a statutory declaration to the effect that he is currently residing in Australia on a Student visa and studying for his Masters in Accounting. Quang said that is wife, Julie Nguyen, is employed part-time as a nail artist and since they had only recently been married he could not ask her to assist in caring for his grandmother (CB 209). Mr Le repeated this in a further statutory declaration provided to the Tribunal (CB 346).
g)During the course of the application and review, evidence was also provided about available external sources of care for the applicant as follows:
i)In her statutory declaration Ms Vo said that the Multicultural Community Care Service (MCCS) has been providing her with home care for 6 hours per week (CB 106 at [16]). In his interview on 3 November 2011 Mr Le said that this had been going on for about two years (CB 221 at [7]). In her declaration Ms Vo said that she had been approved for the highest level of care, which is 6-15 hours per week, although “there is a long waiting list” and even this would not be adequate as she needs 24 hour care (CB 106 at [16]);
ii)In a letter dated 11 May 2011 Dr Du-Thuyen Nhu Nguyen of the Sydney South West Area Health Service (CB 159) said that Ms Vo had recently had a fall at her home and that her condition was deteriorating. Dr Nguyen noted that Kathy is receiving home services one day a week for feeding and grooming but Ms Vo now requires 24 hour care (CB 106 at [16]);
iii)At an interview with an officer of the Minister at the Australian Consulate-General in Vietnam on 3 November 2011 Mr Le said that Ms Vo’s daily routine was as follows:
1. Kathy was feeding Ms Vo in the morning;
2. The “Government” was sending people , presumably MCCS to feed and look after Ms Vo from 11.00am - 1.00pm every Monday, Tuesday and Thursday but recently this was reduced to Monday and Tuesday only;
3. Kathy returns home at 3.00pm after picking the children up from school and bathes Ms Vo and changes her diaper;
4. The other lunchtimes his sisters have been taking it in turns to feed Ms Vo;
5. Otherwise Kathy was doing all the cooking, cleaning and personal hygiene, with a little help from the sisters on the weekend (CB 221).
iv)In a report made on 27 September 2012, shortly before the Tribunal hearing on 2 November 2012, Dr Ernest Tam, Consultant Physician and geriatrician, noted that Ms Vo was receiving home care for four days per week; in total 10 hours care per week with 2 hours respite (CB 321). The details of this care were summarised in a submission form Ms Vo’s representative dated 8 November 2012, referring to “At Home Care” from Hammond Care of 10 hours per week together with an additional two hours respite care for Kathy, which had commenced in May 2012 (CB 350.3).
h)Ms Vo’s deteriorating medical condition was well documented throughout the application and review process. The most up-to-date account was in Dr Tam’s report of 27 September 2012, which summarised her condition as follows:
Ms Vo is suffering from total blindness, severe dementia which is worsening and with other physical medical problems as mentioned above. She requires intensive 24 hours care and attention by her family member at home. She is dependent in all her activities of daily living. She requires supervision and assistance in maintaining her personal care including showering, dressing and toileting. She needs her family carer to help with her feeding and preparation of food. She walks with a four-wheel walker and one assistant. She is housebound. She needs assistance for walking, transfer, to toilet and outdoor mobility. She has high risks of falls and injuries. She had urinary incontinence, requiring care and attention from her family member…
…
All of Ms Vo’s medical conditions will continue for at least two or more years, to have a need for direct assistance attending to the physical aspects of her daily life.
Ms Vo requires intensive supervision and care by her family members at home…
Due to her blindness, BPSD and emotional dependency on her family members, putting Ms Vo in a Nursing Home is inappropriate.
…
Ms Vo desperately needs her only son, Mr Quang Thanh Le, to be in Sydney to care for her.
(CB 321-322)
i)In addition, evidence was provided of the increasingly difficult situation for Kathy, who was suffering from depression, as well as back pain which prevented her from being able to move Ms Vo around, and marital difficulties caused by the strain of having to look after her mother (CB 323- 325).
Decision of the Tribunal
At [48]-[56] (CB 370-371) the Tribunal made findings that Mr Le was able to meet various provisions for a Carer visa, including that Ms Vo exceeded the prescribed impairment rating.
The Tribunal then considered the primary issue; namely, whether assistance for Ms Vo could not reasonably be provided by an Australia relative or obtained from welfare, hospital nursing or community service in Australia.
The Tribunal founds as follows:
a)It accepted that assistance could not reasonably be provided by Ms Vo’s eldest daughter Huong Le, who lived in Queensland (CB 372 at [63] ;
b)It considered that Huong Le’s daughter Alida – who was currently living and working in Sydney – would be in a position to provide some assistance, albeit in a very limited way because of the language barrier and her own work commitments (CB372 at [63]);
c)Given the nature of Ms Vo’s condition and Kathy’s circumstances, it accepted that it was difficult for Kathy to provide full time care for her mother (CB 372 at [64]);
d)The Tribunal then referred to the circumstances of Trang, Nhung and Ha and said (CB 372 at [68]);
68. Although Trang, Nhung and Ha have their respective work and family commitments, the tribunal dies (sic) not accepts (sic) that they ate (sic) not in a position to provide at least some assistance to their mother.
(CB 372 at [68])
e)The Tribunal accepted that Mr Le’s son, who is neither an Australian citizen nor resident, was not caught by the relevant provisions and could not therefore be considered further;
f)After referring at CB 373 at [70] to “the fact” that Ms Vo has five daughters living in Australia, four of whom live in Sydney and one of who currently provides the bulk of her care, and at [71] of the Decision Record accepting a submission that this alone does not necessarily mean that the relevant provision cannot be satisfied, the Tribunal went on, at [72]:
72. The tribunal accepts that based on Ms Vo’s high care needs, there is no one person who is equipped to provide all her care needs… It seems apparent to the tribunal that it is unreasonable to expect one person to provide all of Ms Vo’s care needs. In this case there are four adult daughters who live nearby and an adult granddaughter who lives further afield but still in the same city. The tribunal does not accept that it is unreasonable for the Australia relatives, particularly the daughters, to provide Ms Vo’s assistance.
(CB 373 at [72])
g)At [73] of the Decision Record the Tribunal accepted that Ms Vo needs to be in a stable and familiar environment with a person who speaks her language and can prepare Vietnamese food, so that full time care in a nursing home is not reasonably obtainable.
The Tribunal went on at [74] of the Decision Record:
74. At any rate Ms Vo currently receives 18 hours per week assistance through community care. The tribunal accepts that this level of care in itself is insufficient to meet all of Ms Vo’s care needs. As noted above, in this case there is no one individual Australian relative or one particular community service that is in a position to meet all of Ms Vo’s needs. However it seems to the tribunal that a combination of care by her Australia relatives in combination with community services would give the assistance required to Ms Vo…
(CB 373 at [74])
Then the Tribunal concluded at [75]:
75. In summary the tribunal finds that the assistance required by Ms Vo can reasonably be provided by her Australia relatives and reasonably obtained from community services.
(CB 373 at [75])
Relevant Legislative Provisions
The criteria for a subclass 116 visa are set out in Schedule 2 to the Migration Regulations 1994. Relevantly, both at the time of the application (subclause 116.211) and at the time of the decision (subclause 116.211) the visa applicant must be the carer of an Australian relative.
Relevantly to the present case, Reg 1.15AA(1)(e) defines “carer” as a relative of an Australian citizen or resident who had a permanent or long-tern need for assistance, 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
The term “community services” is defined by Reg 1.03 to include the provision of an Australian social security benefit, allowance or pension.
Grounds of Review
The original application, filed 24 December 2012, contains four grounds of review, however, in the short minutes of order made on 22 May 2013, the Court ordered, by consent, that leave be granted for the applicant to file and serve and Amended Application in this matter, as per the Amended Application annexed and marked “A”. The Amended Application contained one ground, as follows:
The second respondent failed to comply with its obligation under s 359(1) of the Migration Act 1958 to have regard to the information provided by the applicant.
Particulars
The second respondent failed to engage in an active intellectual process with regard to the reasons given by the applicant’s relatives as to why because of medical, family and work commitments they were unable to provide care to the applicant.
At the commencement of the hearing, Mr Poynder, Counsel for the applicant, informed the Court that he relied upon the Amended Application filed in these proceedings on 30 April 2013 and that the grounds contained in the Original Application were no longer pressed. Mr Poynder read the Nguyen Affidavit which attached the Transcript of the Tribunal hearing on 2 November 2012. Mr Poynder informed the Court that there are references throughout the Transcript to Ms Vo. However, it is agree between the parties that the person speaking on those occasions was Ms Vo’s daughter, identified as Thi Bich Thuy Le and known as Kathy Le. Kathy is currently the primary carer of her mother, Ms Vo.
Applicant’s Submissions
In the Amended Application Ms Vo claims that the Tribunal failed to comply with its obligations under s.359(1) of the Migration Act to have regard to the information provided in support of Mr Le’s application. Ms Vo contends that the Tribunal failed to engage in an active intellectual process with regard to the reasons given by her relatives as to why because of medical, family and work commitments they were unable to provide care to Ms Vo.
The decision of the Tribunal was based on a series of assertions that the assistance required by Ms Vo, could reasonably be provided by a combination of the relatives and community services. The totality of the Tribunal’s findings on this issue can be summarised on the passages set out in the Decision Record at [68], [72], [74] and [75].
Nowhere in its findings and reasons did the Tribunal attempt to deal with the very significant impediments raised by each of the four Sydney-based daughters (Trang, Nhung, Ha and Kathy) or the other identified relative (Alida) which, according to Ms Vo, effectively prevented them and their families from providing care to Ms Vo .
Ms Vo submits that each of the relatives had given multiple statutory declarations explaining in great detail why they could not assist Ms Vo yet, apart from adverting to this evidence at [63]-[68] of the Decision Record, none of the claimed impediments were examined by the Tribunal in any depth at all in its decision. Nowhere, for example, did the Tribunal attempt to resolve the difficulty faced by Kathy, who said that she was too exhausted to provide for her mother anymore, or Nhung and Trang, who did not get on at all with Ms Vo. Nowhere did the Tribunal attempt to resolve the difficulties faced by Ha and her husband, both of whom work seven days per week in their bakery business from at least 8.30am to 4.00pm, or Ms Vo’s granddaughter Alida, who was only in Sydney for a short time and with whom the applicant was not familiar. The Tribunal simply stated that it “does not accept” that the relatives cannot provide the assistance ([68] and [72]) and it badly asserted that, in combination, the relatives along with community services were able to provide the required assistance (CB 373-374 at [74] and [75]).
The Tribunal’s failure to take into account the particular circumstances of each of the relatives is further illustrated by the almost total omission in the Claims and Evidence section of any detailed references to the evidence provided in the statutory declarations. In Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59 at [46] :
46. A statement of reasons given by a decision maker can constitute evidence of the material put before the decision maker, the way in which that material has been dealt with and the reasons for which the decision was made. A failure to include reference to a matter in a statement of reasons may justify the inference that, as a matter of fact, the matter was not taken into account. Thus, a statement of reasons may be accepted as evidence of the truth of what it says, namely, that the findings made and the evidence referred to and the reasons set out are as stated in the statement of reasons. It can be accepted as evidence that no finding, evidence or reason that was of any significance to the decision has been omitted…
Ms Vo does not contend that the Tribunal was not aware of the claims made by Mr Le in relation to the difficulties faced by the relatives. However, as was the case in WZAQU v Minister for Immigration and Citizenship [2013] FCA 327 at [24], the difficulty here arises by reason of the manner in which the claims and evidence were addressed and resolved. Here the Tribunal failed to make any attempt to resolve the difficulties raised by each of the relatives in arriving at its ultimate finding that the relatives, in combination with community services, could reasonable provide the required assistance. As in WAZQU (supra) at [29], the cursory manner in which the Tribunal summarily dismissed the claims being made led to the conclusion that no proper and genuine consideration was given to the claims an materials sought to be relied upon.
There have been a number of other decisions where the courts have found that a failure to “engage with” the case raised by an applicant amounts to jurisdictional error.
In Tickner v Chapman (1995) 57 FCR 451 the Full Federal Court at [39] said:
39. …Consideration of a document such as a representation or a submission (there is little, if any, difference between the two for these purposes) involves an active intellectual process directed at that representation or submission.
(emphasis added)
A similar statement of principle was set out in the decision of the Full Federal Court in Lafu v Minister for Immigration [2009] FCAFC 140 at [49] and [50]:
49. …we remain of the view that the AAT’s reasons for decision fall on the wrong side of the line: they do not show an active intellectual engagement with the question how the factor or consideration of general deterrence was taken into account, and therefore whether it was taken into account at all, in the exercise of a discretion to cancel. Mr Lafu would be left to guess what role, if any, the issue of general deterrence had played. Yet it will be recalled (see [32] above) that Mr Lafu had expressly submitted that “[g]iven the lack of publicity about the matter, and the lack of any gang involvement, cancelling the applicant’s visa would have no deterrent value"
…
50. We do not think that the structure of the AAT’s reasons for decision is to be ignored. It was at [124]-[127] that the AAT deliberately turned its attention to the requirement that it consider a question of general deterrence, yet we find in those paragraphs no engagement with the question how the AAT considered the way, if any, that the issue of general deterrence related to the facts of Mr Lafu’s case.
In MZYPW v Minister for Immigration (2012) 128 ALD 520 the Full Federal Court considered a case where the applicant for a Protection visa had submitted to the Refugee Review Tribunal that they could not relocate safely to Kabul because of a lack of family support and because of their dialect. Flick and Jagot JJ at [19] considered that this submissions had been left “unresolved”, and Yates J at [38] (finding only in relation to the issue of dialect) considered that the issue “…was simply side- stepped by the IMR doing no more than recording that the appellant had identified Hazaragi as his language and finding that the appellant and his children conversed in the Hazaragi language.”
In the present case it could similarly be said that the Tribunal “side-stepped” the issues raised by the applicant regarding the inability of her Australian-based relatives to provide the necessary care, instead merely asserting that they would reasonably be able to provide the required care .
Respondent’s Submissions
This is an application for review of a decision of Tribunal made on 28 November 2012 affirming a decision of a delegate of the Minister to refuse the visa applicants, Mr Le, his wife and daughter) Other Family (Migrant) (Class BO) (subclass 116) visas (CB 363-376).
The facts are set out at [5]-[8] above, however, in short, the Tribunal was not satisfied that Mr Le was a “carer” of his mother, Ms Vo, within the definition of “carer” in Reg 1.15AA of the Migration Regulations 1994, and in particular Reg 1.15AA (e) having regard to the availability of assistance for her from her Australian relatives did not satisfy cl116.221, do the visa had be refused: see s.65(1)(b) of the Migration Act.
The Amended Application claims that the Tribunal failed to comply with s.359(1) of the Migration Act. The particulars given and Ms Vo’s submissions do not explain how s.359(1) is relevant, but asserts that the Tribunal failed to engage in an “active intellectual process” with regard to Ms Vo’s daughter’s assertions that they could not care for her.
The Minster submits there are a number of difficulties with the applicant’s case, the first being that s.359(1) only applies to information that the Tribunal “gets”. This means information the Tribunal gets on its own initiative, not that is just supplied by an applicant in writing or at a hearing as part of their case: SZDMC v Minister for Immigration and Multicultural Affairs [2005] FCA 763 per Stone J at [20]-[28] and the cases cited therein. Accordingly, the ground pleaded fails at the outset, as there is no information that falls within s.359(1).
Secondly, jurisdictional error cannot be made out simply by an assertion of failure by the Tribunal to engage in an “active intellectual process” in relation to evidence without some recognised category of jurisdictional error being established. Indeed it is well established that the Tribunal can overlook an item of evidence in support of a claim without committing jurisdictional error so long as the claim itself is addressed, for example, Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 at [28] per North and Lander JJ: Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 at [51]. Further, as held in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [29]-[37], the requirement that the Tribunal give “proper, genuine and realistic consideration” to evidence before it cannot found a jurisdictional error simply because the Tribunal makes an allegedly wrong finding of fact, or gives what is alleged to be insufficient weight to some evidence: Minister for Immigration and Citizenship v MZYHS (2011) 119 ALD 534 per Kenny J at [36]-[43].
The cases relied upon in the applicant’s submissions all concern a failure by the Tribunal to address a claim or a relevant consideration. Here the applicant claimed that her daughters could not adequately care for her and that she needed her son’s care as well. The Tribunal considered this submission but rejected it: CB 373-374 at [70]-[75]. The Tribunal at CB 373 at [74] concluded that the combination of care by the applicant’s Australian relatives and community services would meet her needs: CB 373 at [74]. Accordingly, the Tribunal did consider the applicant’s claim.
The Minister submits that in this context, the applicant’s assertion that the Tribunal did not engage in an “active intellectual process” is really just disagreeing with the Tribunal’s factual conclusion that she could be adequately cared for by the combination of her Australian relatives and community services. There is no error of law in the Tribunal making a wrong finding of fact: Waterford v Commonwealth (1987) 163 CLR 54 at 77; Australia Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [37]; and the Court cannot review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [56]. Nor can the Tribunal’s decision be said to be irrational within Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [84], [131].
The Minister submits that it follows that no jurisdictional error is made out on any possible formulation of the applicant’s case.
Consideration
Initially, Mr Poynder drew to the Court’s attention an error in the pleaded ground in respect to the reference to s.359(1) of the Migration Act. This error was also identified by Mr Reilly in his written submissions which are reproduced above at [36]. Mr Poynder contends that the alleged error in this matter is probably best described in the Particulars in the grounds of the Amended Application in that the error derives from the obligation of the Tribunal to have regard to the evidence and submissions made by an applicant for a visa. The issue raised by Mr Reilly is that this obligation does not necessarily derive from s.359(1) of the Migration Act and refers to the decision in SZDMC v Minister for Immigration and Multicultural Affairs (supra) per her Honour Stone J at [20]-[28]. The point made by her Honour at [20] is that the equivalent of s.359(1) for the Refugee Review Tribunal is s.424(1) of the Migration Act, which states:
Tribunal may seek information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
At [24] of SZDMC her Honour states:
…in order for s 424(1) of the Act to be enlivened, there must be a positive act on the part of the Tribunal…
In Adebi v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 186, his Honour Merkel J states at [20]-[21] :
20. A claim in relation to s 424(1), similar to that made by the applicant in the present case, was considered in Applicant "F" v Minister for Immigration and Multicultural Affairs [2001] FCA 304. In that case Carr J rejected the applicant's submission that the word "get" in s 424(1) meant "obtain" or "received" and therefore included country information supplied to the RRT on behalf of the applicant together with the applicant's submissions to the RRT. Carr J stated at [31]-[32]:
“In my view, this submission misconstrues s 424(1). I think that it is sufficiently plain that s 424 deals with information which the Tribunal gets (in the sense of `obtains') by its own initiative. The context suggests that it is not intended to refer to information proffered by the applicant - s 423 deals with that.
Mr Poynder acknowledges that in the matter before this Court the information was not sought by the Tribunal, but rather, was proffered by the applicant. He accepts that the relevant section for the Migration Review Tribunal is s.358, which simply says:
Documents to be given to the Tribunal
(1) An applicant for review by the Tribunal may give the Tribunal:
(a) a written statement in relation to any matter of fact that the applicant wishes the Tribunal to consider; and
(b) written arguments relating to the issues arising in relation to the decision under review.
However, as was noted in Abedi, ss.358 or 423 deal with information to be proffered by the applicant and under that provision allows for an applicant to give the Tribunal written statements or arguments which once accepted and it is encumbered on the Tribunal to take those into account and to address them. Section 360 enables the Tribunal to invite the applicant to appear and give oral evidence and present argument. Mr Poynder argues that the oral submissions, once given, are equivalent to the ones in writing and once those statements or arguments are provided to the Tribunal, then unless they are irrelevant, the Tribunal is required to have regard to them.
Mr Poynder submits that it is not just a matter of acknowledging the receipt of written statements and arguments to indicate an awareness of them: Tickner v Chapman (supra) per Black CJ at 462 where his Honour states:
The meaning of “consider” used as a transitive verb referring to the consideration of some thing is given in the Oxford English Dictionary, 2nd ed, as “to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of”. Consideration of a document such as a representation or a submission (there is little, if any, difference between the two for these purposes) involves an active intellectual process directed at that representation or submission.
In Tickner v Chapman (supra) her Honour Kiefel J at 495 stated:
To “consider” is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s 10(1)(c) speaks is not different. It requires that the minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the minister is required to know what they say. A mere summary of them cannot suffice for this purpose, for the minister would not then be considering the representations, but someone else's view of them, and the legislation has required him to form his own view upon them.
Mr Poynder, while acknowledging the error in the Amended Application, maintains that the Tribunal is required to consider evidence and submissions made by an applicant which are relevant to the case. The particular species of error alleged is that while the Tribunal was obviously aware of the evidence and submissions made on behalf of the visa applicant (Mr Le, the only son of Ms Vo) as to why his Australian-based sisters could not care for their mother. The argument advanced is that the Tribunal failed entirely to undertake the required active intellectual process with the substantial issue raised on behalf of Ms Vo and that error is encapsulated in the grounds of failure to give proper, genuine and realistic consideration to the evidence. Mr Poynder acknowledges that this is not a case where there is a failure to accord weight to evidence and submissions, but rather, it is simply a failure to engage with the evidence and submissions in the way that it is required.
Accepting that the matter, as pleaded, which relies on s.359(1) of the Migration Act must fail, the parties have indicated to the Court that the Amended Application be read as if the particular is, in itself, a pleaded ground. I agree that it is appropriate to adopt that approach in fairness to the parties involved and the significance that the outcome of these proceedings would have on the applicant’s family members. What, in effect, is directly applicable to this matter is a line of well-established case law from decision regarding the Migration and Refugee Review Tribunals that is focused on the consideration of claims where the relevant principle is that the decision in a Tribunal review situation, has to consider claims that are properly made and if that process is not followed then a jurisdictional error occurs. However, a jurisdictional error cannot be made out simply by an assertion of failure by the Tribunal to engage in an “active intellectual process” in relation to evidence without some recognised category of jurisdictional error being established.
I agree with the submissions made by Mr Reilly that it is well-established that the Tribunal can over-look an item of evidence in support of a claim without committing jurisdictional error so long as the claim itself is addressed: Minister for Immigration and Citizenship v SZNPG (supra) per North and Lander JJ (Katzmann J agreeing in a separate judgment) at [28]:
28. However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294.
In Chen v Minister for Immigration and Citizenship (supra) per Bennett, Nicholas and Yates JJ at [51] it states:
51. In any event, it does not follow, logically, that the length or number of phone calls establishes a genuine spousal relationship. For example, the lengthy phone calls were made immediately prior to the hearing before the Tribunal at which the Visa Applicant gave evidence by telephone from China. Even if an inference were able to be drawn from the phone records, failure to do so does not constitute jurisdictional error (SZNPG at [28]). It cannot be said that such failure amounted to a failure to consider the claims. At most, the phone records could be said to have been evidence in support of the claim to a genuine spousal relationship.
In Minister for Immigration and Citizenship v SZJSS (supra) at [29]-[37] it states:
29. In NAIS v Minister for Immigration and Multicultural and Indigenous Affairs, the Minister accepted that a statutory provision requiring a Tribunal to give an applicant an opportunity to appear before it and give evidence implies that such evidence is to be given proper, genuine and realistic consideration. The Minister reiterated that position in this case.
30. In Swift v SAS Trustee Corporation, Basten JA (with whom Allsop P agreed) noted Khan’s case and said of the language of “proper, genuine and realistic consideration”:
That which had to be properly considered was “the merits of the case”. Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review.
31. The first and second respondents contended that the Tribunal’s treatment of the facts, more particularly the letters, was arbitrary, capricious, irrational and unreasonable, and accordingly was inconsistent with the Tribunal’s statutory duty to review. It was submitted that the Federal Court’s findings of irrationality, unreasonableness (without describing it as such) and a constructive failure to exercise jurisdiction were wholly consistent with the accepted principles governing judicial review.
32. The Minister contended that the weight to be accorded to the letters, and the factual matters to which they gave rise, were entirely matters for the Tribunal as they concerned the merits of the application. It was submitted that the Federal Court employed the language of “proper, genuine and realistic consideration” to register the court’s response to a weighing of the evidence with which the court disagreed. This, it was said, does not amount to jurisdictional error of the kind discussed by this court in Minister for Immigration and Citizenship v SZMDS.
33. The Minister’s submissions on the letters issue must be accepted as on a fair reading of the whole of the Tribunal’s decision, when the Tribunal said that it gave the letters “no weight” it was referring to the fact that it did not accept the letters as evidencing that the first respondent was in some danger from the Maoists in Kathmandu. This was in large part because of social and political changes which had occurred since the letters were written. The evidence given by the first respondent, including his evidence about the effect of those changes, undermined his claim of political and social activism, thereby contradicting the support which the letters gave to his assertion that Maoists were continuing to pursue him in Kathmandu. The weighing of various pieces of evidence is a matter for the Tribunal.
34. It has been recognised that to describe reasoning as irrational or unreasonable may merely be an emphatic way of disagreeing with it. In referring to “any rational, reasonable approach to the evaluation” and the need for “a proper, genuine or realistic evaluation” of the letters, the Federal Court was registering emphatic disagreement with the Tribunal’s assessment of the factual matters to which the letters were relevant. It appears the Federal Court would have weighed the letters differently which seems to suggest that, on the basis of the letters, the Federal Court would have been satisfied that Maoists were pursuing the first respondent in Kathmandu. When employing the formula “proper, genuine and realistic evaluation” in respect of the letters, the Federal Court did not appear to consider that one of the matters against which the Tribunal weighed the letters was the first respondent’s evidence of the effects of social and political changes in Nepal.
35. Whether the letters were “highly supportive” or “powerfully corroborative” (as they appeared to the Federal Court) of the first respondent’s claim that Maoists were pursuing him in Kathmandu was a question upon which reasonable minds might come to different conclusions. The Tribunal’s preference for other evidence, including the first respondent’s own evidence about numerous matters, including the effect of social and political changes from, and since, 2006, over the evidence of the letters written during the first half of 2006, could not be said to constitute a failure to take into account a relevant consideration as canvassed in Peko-Wallsend or Yusuf’s case. Nor could it be said to be a failure to respond to a substantial argument thereby giving rise to the kind of error identified in Dranichnikov v Minister for Immigration and Multicultural Affairs.
36. The conclusion that the Tribunal erred in giving “no weight” to the letters, with the implication that it should have given different, presumably determinative, weight to them, depended on the Federal Court reviewing the factual findings of the Tribunal rather than the process by which it arrived at its conclusions.
37. Further, the Federal Court’s conclusion that the Tribunal erred in this way did not, in the light of the whole of the evidence, require the further conclusion that the result in the Tribunal was manifestly irrational or unreasonable. Nor did it support a finding of any other failure which might be characterised as jurisdictional error.
(footnotes omitted)
In Minister for Immigration and Citizenship v MZYHS (supra) her Honour Kenny J was considering an appeal from a decision of this Court which upheld an application for review of a decision of the Refugee Review Tribunal into whether the Tribunal failed to take into account relevant considerations. The issue was whether a psychologists report is corroborative evidence of a claim to be a refugee. The question was whether the failure to consider the report as corroborative amounts to jurisdictional error. At [23] her Honour sets out the basic principles about jurisdictional error and when a jurisdictional can be made out by a failure to have regard to a relevant consideration:
23. The basic principles as to when jurisdictional error will arise for failure to consider a relevant consideration are well-accepted. Jurisdictional error may be shown where a statutory decision-maker disregards a relevant consideration, in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (“Peko-Wallsend”): see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (“Yusuf”) at 351 [82], citing Craig v South Australia (1995) 184 CLR 163 at 179. That is, the ground of failure to take into account a relevant consideration is only made out if the decision-maker failed to take into account a consideration that the decision-maker was bound to take into account in making the decision: Peko-Wallsend at 39-41. Governing legislation may expressly state all these considerations, although often it does not. In this latter case, relevant considerations in this limited sense are to be determined by reference to the subject-matter, scope and purpose of the governing legislation, which, in the current context, includes the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth): see, e.g., Yusuf at 347–8 [73] (McHugh, Gummow and Hayne JJ), citing Abebe v Commonwealth (1999) 197 CLR 510 at 579 [195]. Their Honours went on to say in Yusuf (at 348 [74]):
What is important … is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.
(emphasis added)
Then at [24] her Honour stated:
[24] Referring to Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 (“Htun”) at 259 [42], the Minister accepted that, having regard to the statutory framework governing applications for protection visas, an applicant’s claim to be a refugee and the integers of that claim are considerations that a decision-maker is bound to take into account. See also Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 (“WAEE”) at 641 [46]; and NABE v Minister of Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (“NABE”) at 20 [63]. The Minister drew a distinction between a failure to consider an integer of a claim to be a refugee (or a contention that, if accepted, might establish a well-founded fear of persecution) and a failure to take into account evidence that, if accepted, might have led to a different finding of fact. As the Minister submitted, and I accept, a failure to refer to, or adequately to consider, evidence, whether or not it might be thought probative, does not give rise to jurisdictional error, even though it may have led to an erroneous finding of fact. The authorities for this proposition are numerous: see, for example, Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 at 308–9 at [21]–[28] (North and Lander JJ, with whom Katzmann J agreed (see at [35])); Htun at 259 [42] (Allsop J, with whom Spender J agreed); WAEE at 641 [46]; and Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at 423 [79] (Allsop J, with whom Heerey J agreed). Related propositions are that the weight to be given evidence is a matter for the decision-maker and that a wrong finding of fact does not of itself give rise to jurisdictional error. Furthermore, making findings on credibility is the function of the decision-maker; and they are not ordinarily open to challenge in a court on a judicial review application: NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9]; Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 58 ALD 609 at 624–5 [64]–[67] (McHugh J); Abebe v Commonwealth (1999) 197 CLR 510 at 560 [137] (Gummow and Hayne JJ); and Enfield City v Development Assessment Commission (2000) 199 CLR 135 at 153–4 [44] (Gleeson CJ, Gummow, Kirby and Hayne JJ).
(emphasis added)
Then at [41] her Honour states:
41. In any case, a unanimous judgment of the High Court of Australia in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 overturned the judgment of Rares J in this court. The High Court held that the Tribunal’s failure to accord weight to three letters that the visa applicants had produced in support of their visa application could not be characterised as a jurisdictional error. Essentially, the High Court characterised this court’s decision as a review of the factual findings of the Tribunal and as therefore being in error. French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ agreed with Basten JA in Swift that the epithets “proper, genuine and realistic consideration” “[t]aken out of context and without understanding their original provenance … are apt to encourage a slide into impermissible merit review”.
42. Their Honours went on to observe (at [32]–[37]) that:
(Previously extracted above at [52] above)
At [43] her Honour concludes:
43.Here, in so far as the first respondent’s “proper, genuine and realistic consideration” argument invited a second-guessing of the merits of the Tribunal’s decision, it must be rejected on the basis that judicial review of administrative decisions does not permit merits review. In so far as this argument encompassed an accepted ground of failure to take into account a relevant consideration, it must be rejected for the reasons already stated. The recent decision of the High Court in SZJSS apparently rules out any other basis for review of the Tribunal’s decision in this case.
I agree with the argument advanced by Mr Reilly that the cases relied upon by the applicant all concern a failure by the Tribunal to address a claim or a relevant consideration. Ms Vo’s claim is that her daughters, resident in Australia, and in particular, Sydney, could not adequately care for her and that she needed her son, currently a resident in Vietnam, to come to Australia and to act as her carer.
The Tribunal considered Ms Vo’s claim, but rejected it for the reasons set out in the Findings and Reasons of the Tribunal’s Decision Record at [70]-[75] (CB 373-374). Rather, concluding that a combination of care by Ms Vo’s Australian relatives and community services would meet her needs:
74. At any rate Ms Vo currently receives 18 hours per week assistance through community care. The tribunal accepts that this level of care in itself is insufficient to meet all of Ms Vo’s care need. As noted above, in this case there is no one individual Australian relative or one particular community service that is in a position to meet all of Ms Vo’s needs. However it seems to the tribunal that a combination of care by her Australian relatives in combination with community services…
(CB 373)
These paragraphs indicate that the Tribunal did consider Ms Vo’s claim and the approach is consistent with the line of authorities referred to above.
In this matter, the question to be resolved is what did the Tribunal have to consider? In effect, it had to consider the claim of whether Ms Vo required her son, currently resident in Vietnam as her carer, in addition to the current assistance provided by her daughters resident in Australia and ancillary services. The definition of carer is defined in Reg.1.15AA of the Migration Regulations and the relevant part is reproduced at [18] above. The issue was to consider the claims made about why the assistance could not reasonably be provided by any other relative or obtained from community services. On a fair reading of the Tribunal’s Decision Record the argument that those claims have not been considered in the sense of the Tribunal not turning its mind to them cannot be sustained.
In the Findings and Reasons at [63]-[67] the Tribunal considered in turn all of the relatives in Australia who might be able to provide some assistance to Ms Vo. In that review, the Tribunal finds that some of her relatives such as the eldest daughter who lives in Queensland cannot provide assistance, whereas others can. In particular, Kathy, who is dealt with at [64] of the Decision Record, the Tribunal accepts that it is difficult for her to provide full time care for her mother.
At [65]-[67] the Tribunal refers, individually, to the three other daughters and concludes at [68] that:
68. Although Trang, Nhung and Ha have their respective work and family commitments, the tribunal dies (sic) not accepts (sic) that they ate (sic) not in a position to provide at least some assistance to their mother.
(CB 372 at [68])
Although one sister indicated that she did not get on with her mother and another sister worked seven days a week in a family bakery the Tribunal formed the view that they could still provide some assistance. Ultimately, it is a matter of judgment that although the relatives may have difficulties in providing services, some level of assistance can usually be provided when the relatives are in the same city.
I agree with the argument advanced by Mr Reilly that the submission being made on behalf of the applicant are in the nature of contesting the merits of the decision by trying to contest the Tribunal’s conclusion at [68]. The conclusions reached at [68] is difficult to characterise as not being open to the Tribunal because the relatives identified are themselves not invalid or remote such as living in another state, but rather, are simply people with normal human circumstances who could provide at least some assistance to their mother. Whether that conclusion drawn by the Tribunal is right or wrong it does not give rise to a jurisdictional error. Having made those findings, the Tribunal moves at [70]-[75] to the core issue. The Tribunal’s reasoning is that while no one-person could provide all of the care needed at [72] of the Decision Record its states:
72. The tribunal accepts that based on Ms Vo’s high care needs, there is no one person who is equipped to provide all her care needs. Based on the evidence obtained at the hearing and on Dr Tan’s report, Ms Vo appears to be very difficult to manage and has a dreadful combination of illness ranging from schizophrenia, blindness and urinary incontinence. She is also reported to be verbally abusive. It seems apparent to the tribunal that that it is unreasonable to expect one person to provide all of Ms Vo’s care needs. In this case there are four adult daughters who live nearby and an adult granddaughter who lives further afield but still in the same city. The tribunal does not accept that it is unreasonable for the Australian relatives, particularly the daughters, to provide Ms Vo’s assistance.
(emphasis added)(CB 375)
That conclusion was open to the Tribunal based on what it already stated at [68] and then finally at [74]:
74. …As noted above, in this case there is no one individual Australian relative or one particular community service that is in a position to meet all of Ms Vo’s needs. However it seems to the tribunal that a combination of care by her Australia relatives in combination with community services would give the assistance required to Ms Vo…
(CB 373 at [74])
I am satisfied that the Tribunal has engaged and turned its mind to the submissions on behalf of Ms Vo, however, the Tribunal simply did not agree. The Tribunal did not accept that four adult daughters, a granddaughter and community services could not reasonably provide the assistance that Ms Vo needs. The Tribunal did not accept that assistance can only be provided by her son who is still in Vietnam and who is not a professional carer, but who works in an electrical manufacturing company.
I agree with the arguments advanced by Mr Reilly that the Tribunal has had regard to the matters raised by Ms Vo and her daughters as to why they say they cannot provide assistance for her care, but the Tribunal has not accepted, that in combination with all of Ms Vo’s daughters and community services, that assistance is not reasonably attainable.
The case advanced on behalf of the applicant relies substantially on the decision in WZAQU v Minister for Immigration and Citizenship (supra) per Flick J. That is a refugee case, being an appeal from an Independent Protection Assessment Reviewer. His Honour made the point that Assessor was aware of the claims being made and the material being relied upon, but the difficulty was the way the materials were dealt with. At [29] his Honour stated:
29. The fundamental and fatal difficulty exposed by paragraphs [98] and [99], with respect, is that it remains unclear what claims or what parts of the claims being advanced by the Appellant were being resolved. Reasons for the recommendation of the Independent Protection Assessor, it may be accepted, should not be construed in any overly critical manner: Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Ambiguity in reasons provided may not be sufficient to expose legal error. But the cursory manner in which the Independent Protection Assessor summarily dismissed the claims being made, together with a lack of certainty as to what was in fact being resolved, leaves inescapable the conclusion that no proper and genuine consideration was given to the claims and materials sought to be relied upon.
(emphasis added)
Then at [32]:
32. …The Appellant has discharged the onus of establishing that there was a failure on the part of the Independent Protection Assessor to consider the claims made during the November 2011 interview and a failure to consider the materials relied upon. Although those materials were referred to in the reasons for decision of the Assessor, there was a failure to engage in “an active intellectual process” in resolving the issues raised by those materials and the claims made.
Mr Poynder argues that the species of error identified by his Honour Flick J is the same as the applicant in this matter relies upon. Mr Poynder acknowledges that the applicant’s claim is more accurately dealt with in the particulars of the ground of the Amended Application.
Mr Poynder then directed the Court to passages appearing in the Tribunal Decision Record, being:
a)At [22] – the fact that there were statutory declarations before the delegate;
b)At [27] – the Tribunal states “Prior to the hearing the tribunal received various statutory declarations and medical reports.”
c)At [28]-[45] – the Tribunal summarised the evidence given at the hearing;
d)At [48] – the Tribunal sets out the substance of its decision;
e)At [48]-[56] - the Tribunal made findings in favour of the visa applicant that he could meet the various provisions for a carers visa, including that the applicant exceeded the prescribed impairment rating;
f)At [59] – the Tribunal turned to the primary issue, namely, whether the assistance for the applicant could reasonably be provided by an Australian relative or retained from welfare, hospital, nursing or community services in Australia;
g)At [61] – the Tribunal acknowledged that the applicant has high care needs;
h)At [63]-[70] dealt with assistance from various family members;
i)At [72] – the Tribunal accepted that based on Ms Vo’s high care needs, there is no one person who was equipped to provide all of her needs – it is unreasonable to expect one person to provide all of Ms Vo’s care needs.
Mr Poynder then refers to the Decision Record at [72] where it states:
72. … The tribunal does not accept that it is unreasonable for the Australian relatives, particularly the daughters, to provide Ms Vo’s assistance.
(CB 373)
Mr Poynder submits that there is no engagement with the arguments or the evidence put forward and it is simply a bald statement that the Tribunal does not accept that the family members, in Sydney, cannot provide the necessary care with not attempt to come to grips with the reasons that the family has given for not being able to assist. In WZAQU (supra) at [24] Flick J stated:
24. The difficulty … arises not by reason of the Independent Protection Assessor not being aware of the claims being made and the material relied upon; the difficulty arises by reason of the manner in which those claims and materials were addressed and resolved.
Then at [32]:
32. …there was a failure on the part of the Independent Protection Assessor to consider the claims made during the … interview and a failure to consider the materials relied upon. Although those materials were referred to in the reasons for decision of the Assessor, there was a failure to engage in “an active intellectual process” in resolving the issues raised by those materials and the claims made.
Mr Poynder’s argument is that in this matter as in WZAQU (supra) that the decision comes down to a cursory and summary dismissal of the claims being made, with no proper of genuine consideration of the issues being raised by the applicant.
I believe that the matter before this Court can be distinguished from that of WZAQU (supra) on the basis of the approach taken by the decision-maker. In WZAQU as indicated above “the difficulty arises by reason of the manner in which those claims and materials were addressed and resolved.” His Honour Flick J states at [25]:
25. That resolution is to be found – if at all – in paragraph [98] of the reasons of the Independent Protection Assessor.
The contents of [98] and [99] are considered and the conclusion drawn at [29] of WZAQU:
29. The fundamental and fatal difficulty exposed by paragraphs [98] and [99], with respect, is that it remains unclear what claims or what parts of the claims being advanced by the Appellant were being resolved.
Whereas the matter before this Court, the issue to be resolved is whether Reg.1.15AA(1)(e) is satisfied before or Other Family (Migrant)(Class BO) visa can be granted. The criteria to be met is set out at [18] above.
I disagree with Mr Poynder’s argument that the species of error identified by his Honour Flick J in WZAQU is the same as the applicant relies on in this matter. The Tribunal Member sets out the elements relevant to the requirements of Reg.1.15AA(1)(e) as follows:
a)At [62]-[70] identifies and considers the position of the five daughters and other relatives resident in Australia and the fact that the four reside in Sydney;
b)At [71] that one or more relatives can satisfy the regulation;
c)At [72] that there is no one person equipped to provide all the services;
d)At [73] that home care is most appropriate at the time as opposed to full time nursing home care;
e)At [74] the provisions of community assistance for 18 hours per week;
f)At [74] that plurality of services can be relied on.
The finding at [74] –[76] is clear when it states:
74. At any rate Ms Vo currently receives 18 hours per week assistance through community care. The tribunal accepts that this level of care in itself is insufficient to meet all of Ms Vo’s care needs, As noted above, in this case there is no one individual Australian relative or one particular community service that is in a position to meet all of Ms Vo’s needs. However it seems to the tribunal that a combination of care by her Australia relatives in combination with community services would give the assistance required to Ms Vo. The Federal Court has held, in relation to the Special Need Relative visa, that there is no apparent reason to limit the enquiry to what one person can do. A finding of fact that the assistance could be derived from a number of sources, or a number of relatives, would not itself involve an error of law for reasons only of the plurality of sources, although in given circumstances the plurality of sources might conceivably go to whether the assistance could still reasonably be obtained from resort to a combination of all sources.
75. In summary the tribunal finds that the assistance required by Ms Vo can reasonably be provided by her Australian relatives and reasonably obtained from community services.
76. The tribunal considered that r.1.15AA(1)(e) is not satisfied.
(CB 373-374)
I am satisfied that this argument advanced by Mr Poynder cannot be sustained and should be dismissed. Consequently, the application is dismissed with costs to be paid by the applicant to the first respondent.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 11 April 2014
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