FEDERAL CIRCUIT COURT OF AUSTRALIA
| VU v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2015] FCCA 3378 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether there was information that was the reason or part of the reason for the Administrative Appeals Tribunal affirming the decision under review, thereby enlivening obligations under s.359A or s.359AA of the Migration Act 1958 (Cth) – whether the Administrative Appeals Tribunal misconstrued and misapplied reg.1.15AA(1)(e) of the Migration Regulations 1994 (Cth) in considering whether assistance could reasonably be obtained from community services – whether the Administrative Appeals Tribunal erred in finding that the Visa Applicant did not meet the requirements of reg.1.15AA(1)(f) of the Migration Regulations 1994 (Cth) – whether the Administrative Appeals Tribunal’s findings were open to it – whether the Administrative Appeals Tribunal’s conclusion that the Visa Applicant did not satisfy the condition of “carer” in reg.1.15AA(1) of the Migration Regulations 1994 (Cth) was open to it – no jurisdictional error – application dismissed. |
| Legislation: Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.359A, 359AA, 424A, 474 Migration Regulations 1994 (Cth) reg.1.15AA, Schedule 2 – cls.116.211, 116.221 Migration Amendment Regulations 2009(No 13) (Cth) |
| Applicant: | THI HUONG VU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2343 of 2015 |
| Judgment of: | Judge Emmett |
| Hearing date: | 15 December 2015 |
| Date of Last Submission: | 15 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 17 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Leonard J. Karp |
| Solicitors for the Applicant: | My T Nguyen Solicitors |
| Counsel for the Respondents: | Mr Martin Smith |
| Solicitors for the Respondents: | DLA Piper |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2343 of 2015
| THI HUONG VU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) by the applicant (“the Review Applicant”) for judicial review of a decision of the second respondent (“the Tribunal”) to refuse to grant the Review Applicant’s daughter (“the Visa Applicant”) a subclass 116 visa. The Visa Applicant’s husband and two children were also included in her application by virtue of their membership of her family unit. The Review Applicant is a citizen of Australia, whereas the Visa Applicant currently resides in Vietnam.
Pursuant to cl.116.211 and cl.116.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”), the Visa Applicant must…
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Details
- Case
- [2015] FCCA 3378
- Decision Date
CaseChat Overview and Summary
This matter concerned an appeal by Mrs Vu against a decision of the Minister for Immigration and Border Protection to refuse her visa application. The primary dispute revolved around whether Mrs Vu required substantial and continuing assistance from her sponsor, her daughter-in-law, due to her health conditions, and whether her family in Australia could provide such assistance. The case was heard by Emmett J in the Federal Court of Australia.
The legal issues before the Court were whether the Administrative Appeals Tribunal (the Tribunal) erred in finding that the requirements of regulation 1.15(AA)(1)(e) and (f) of the Migration Regulations 1994 (Cth) were not met. Specifically, the Court had to determine if the Tribunal’s findings that community services were available to assist Mrs Vu, and that the visa applicant would not be able to provide the necessary substantial and continuing assistance due to her own responsibilities and lack of English, were supported by the evidence.
Emmett J reasoned that the Tribunal’s findings were based on an assessment of the evidence before it, including reports from aged care assessment teams and statutory declarations from family members. The Tribunal considered that while Mrs Vu had significant health issues requiring care, community services were available and had been declined by the family. Furthermore, the Tribunal found that the visa applicant, Mrs Vu’s daughter-in-law, would be unable to provide the required 24-hour care due to her own obligations of caring for two young children and her husband, and that her lack of English would be a barrier to providing safe care in an emergency. The Tribunal also noted discrepancies in documents provided by the applicant's representatives, leading to concerns about the authenticity of some evidence.
The Court ultimately dismissed the appeal, finding that the Tribunal’s decision was open to it on the evidence presented and that no error of law had been demonstrated. The Tribunal’s conclusion that the visa applicant would not be able to provide the necessary substantial and continuing assistance was upheld.
The legal issues before the Court were whether the Administrative Appeals Tribunal (the Tribunal) erred in finding that the requirements of regulation 1.15(AA)(1)(e) and (f) of the Migration Regulations 1994 (Cth) were not met. Specifically, the Court had to determine if the Tribunal’s findings that community services were available to assist Mrs Vu, and that the visa applicant would not be able to provide the necessary substantial and continuing assistance due to her own responsibilities and lack of English, were supported by the evidence.
Emmett J reasoned that the Tribunal’s findings were based on an assessment of the evidence before it, including reports from aged care assessment teams and statutory declarations from family members. The Tribunal considered that while Mrs Vu had significant health issues requiring care, community services were available and had been declined by the family. Furthermore, the Tribunal found that the visa applicant, Mrs Vu’s daughter-in-law, would be unable to provide the required 24-hour care due to her own obligations of caring for two young children and her husband, and that her lack of English would be a barrier to providing safe care in an emergency. The Tribunal also noted discrepancies in documents provided by the applicant's representatives, leading to concerns about the authenticity of some evidence.
The Court ultimately dismissed the appeal, finding that the Tribunal’s decision was open to it on the evidence presented and that no error of law had been demonstrated. The Tribunal’s conclusion that the visa applicant would not be able to provide the necessary substantial and continuing assistance was upheld.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The background to this proceeding, the review hearings and the Tribunal’s reasons and decision are accurately summarised in the Review Applicant’s written submissions as follows:“EVIDENCE BEFORE THE DELEGATE5. It was said in the application that Mrs Vu suffered from dementia, osteoarthritis, “acopia”, gallstones and “epistaxis” and that she needed constant care and supervision for personal hygiene, medication, cooking and other things (CB 17). 6. Included with the application was a statutory declaration from Mrs Vu’s husband, Mr Vu Hoa who declared that he had cared for his wife in the past, but over the past two years (that is the two years before the application) had been struggling to continue to do so owing to number of medical problems of his own. By the time of writing he was unable to care for her and there was nobody who could. The family had sought assistance from Homecare and the South Western Sydney Local Health District but there were no services available (CB 60). A medical certificate for Mr Vu attached at CB 63 was to the effect that he suffered from coronary disease, hypertension and probable diabetes. 7. A statutory declaration by Mr and Mrs Vu’s son, Vu Thai Hoc stated that he was unable to assist his mother because he was suffering from anxiety and depression (CB 65). That of another son, Vu Quoc Khanh was to the effect that he could not care for his mother because of his work and the need to care for his young son (CB 69). That of a daughter, Vu Thi Thanh Thuy, was to the effect that she too was unable to care for her mother because she suffered from depression and her parents in law were living with her to help care for her children and herself (CB 74). An attached medical certificate stated that she was suffering from long term chronic insomnia and depression (CB 76).8. Yet another son in a statutory declaration at CB 77 stated that she had full time employment and a partner on an IVF program who was in and out of hospital often and required his care. Finally, another son, Vu Bo stated that he was unable to look after his mother because he was in full time employment and his wife was enduring a difficult pregnancy (CB 83).9. A medical adviser’s report dated 23 January 2012 confirmed that Mrs Vu was suffering from dementia, severe right knee osteoarthritis with constant pain, osteoarthritis of the spine, and both hands, and bilateral lateral epicondylitis which limited her capacity for showering and dressing. The assessment was that she needed assistance with hygiene, toileting, dressing, feeding, mobility, medication, and that she required supervision to prevent unsafe behaviour, and transport. It was assessed that she needed personal care and attention on a daily basis to carry out routine bodily functions and required constant supervision on a permanent basis. She was assessed as having an impairment rating of 40 (CB 89-93).10. A letter from Home Care NSW dated 18 May 2012 confirmed that the organisation did not have the capacity to assist her (CB 99).11. The application was refused by a delegate of the Minister in Ho Chi Minh City on 12 October 2012 (CB 141-149), on the basis that Mrs Vu’s family could look after her (CB 147-8.THE MATTER BEFORE THE FIRST TRIBUNAL12. The application to the Tribunal was lodged on 16 October 2012 (CB 158ff). 13. On 9 May 2013 a geriatrician, Dr Ernest Tam reported that there had been a significant change in Mrs Vu’s medical and cognitive functions and was of the opinion that she was in urgent need of a dedicated carer to look after her. He continued (CB 182);“Mrs Vu cannot cook and look after herself. She has to rely on her carer for medication compliance. She needs people to help with her transfers, or to go to shower or to the bathroom.”14. A further submission from Mrs Vu’s solicitors and migration agents dated 11 July 2013 canvassed the possibility of support from family; and noted that (at CB 195-6);a) Mrs Vu’s husband is elderly, frail and sick, and that he himself needs a carer;b) Vu Van Hua, a son, resides in Western Australia.c) Vu Hoang Nam, another son, is abusive and has been disowned by the family, and his whereabouts were unknown.d) Vu Thai Hoc, another son, suffers from anxiety and depression. He has two young children and part time work.e) Another son, Vu Quoc Khanh is a single parent who works extremely long hours. His child is sent to a minder to be cared for.f) Vu Thi Thanh Thuy, a daughter suffers from depression, is mentally unstable and is being cared for by her in laws.g) Vu Bac, a son currently has full time work and is taking care of his wife who was ill and undertaking IVF treatment.h) Vu Bo, a son, works extremely long hours, has a newborn child, and he and his wife work different shifts and take turns caring for their son.15. The submission, at CB 195-197 dated 11 July 2013 also canvassed community services that had been approached and which had been unable to assist. Additional evidence given at the hearing by Vu Bo was that a doctor had advised that a nursing home would not be suitable for his mother, that they had attempted to obtain assistance from Home Care and a local Catholic organisation but none could be provided. Mrs Vu was then being looked after by her husband and where possible by his sister’s parents in law, who were finding it difficult (CB 216 [17]).16. Medical reports for several of Mrs Vu’s children were attached to a further submission dated 15 August 2013 (CB 206-211). Those reports were to the following effect;a) Vu Thai Hoc had anxiety and major depression. He could not care for his mother as this would only increase his stress levels and upset the balance he was trying to maintain between health, family and work (CB 208).b) Vu Bac has chronic depression, his ability to function of a daily basis had diminished and was capable only of part time work and could not care for his mother due to the serious nature of his medical condition (CB 209; cf 210).17. The Tribunal reached a decision on 17 September 2013 (CB 214-221). That decision was quashed and remitted for reconsideration by the Federal Circuit Court (Vu v Minister for Immigration & Anor [2014] FCCA 2579). THE MATTER BEFORE THE SECOND TRIBUNAL18. On 2 April 2015 the Tribunal received a letter from the South Western Sydney Local Health, District faxed by the applicant’s solicitors and migration agents. That letter referred to an assessment carried out by one Alex Ho, a member of an “Aged Care Assessment Team” (ACAT). The letter stated that the applicant had been approved for “Home Care Package Level 3 and 4”, and that that approval did not lapse (CB 260). There was no explanation of what that entailed, or whether, or when, the applicant could avail herself of it. 19. Sent to the Tribunal with that letter was a copy of the ACAT report (CB 263-272). On 15 April 2015 an officer of the Tribunal, acting on instructions, contacted Mr Ho to ask why the assessment did not include and entitlement to receive permanent residential or residential respite care. Mr Ho is reported to have directed the officer to page 8 of the report which noted that the son had the residential care offer on the basis that they were obtaining a carer from overseas. Mr Ho is also reported to have stated that the family had declined any other support (CB 273). 20. Mr Ho sent a copy of the report on his file to the Tribunal (email at CB 274, report at CB 279-288). As the Tribunal was later to note, there were discrepancies between page 8 of the report forwarded by the solicitors (CB 271), and that sent by Mr Ho (CB 287).21. The Tribunal invited the applicant to appear at a hearing set down for 16 June 2015 (CB 290). It recorded that at that hearing it put the discrepancies to the applicant’s son. An adjournment was sought and granted (CB 377-378 [32]-[38]). 22. The solicitor’s response, also dated 16 June 2015 (CB 309) stated that neither the solicitor nor the review applicant knew “what is going on.” She stated that Mr Ho had refused to comment when contacted and that the document emailed to her office by Mr Ho was submitted to the Tribunal. Mr Ho’s email was attached (CB 311).23. On 22 June 2015 Mr Ho was again contacted by the Tribunal. He is recorded as saying that the ACAT report that he had sent to the Tribunal was the correct and only report, and that the modifications were not made by the ACAT team (CB 346). The Tribunal put this information to the applicant (i.e. her son) and the solicitor at a resumed hearing on 24 June (CB 379 [49]). It also took evidence from the visa applicant in Vietnam (CB 380 [52]-[57]). 24. The hearing was resumed on 8 July 2015, during which the Tribunal raised the spectre of PIC 4020. The applicant’s son complained that his solicitor had asked Mr Ho to appear at the hearing to give evidence, but that he declined. It was submitted that there was no reason to supply a bogus report to the Tribunal (CB 380 [58]-[59]).25. Transcripts of the hearings are annexed to an affidavit of My Yen Tran made on 30 November 2015.THE TRIBUNAL’S REASONS26. The Tribunal found that the applicant, through her representative had provided a bogus document (CB 380-381 [[63]), although it did not decide the matter by invoking PIC 4020. It accepted the statement in the ACAT report sent to it by Mr Ho that that children were providing support on a rotational basis (CB 381 [64]). It continued at [65]-[67];“65. The Tribunal finds that community services are available. The genuine ACAT report recommends a Home Care package level 3-4. The report indicates that respite care was declined and further specialised aged care services were recommended but declined.66. The Tribunal is satisfied that specialised services can be provided which can assist the caree in a culturally appropriate manner.67. After considering all the above the Tribunal is satisfied that the assistance can reasonably be provided by welfare, hospital, nursing or community services in Australia.”27. It therefore found that the requirements of reg 1.15(AA)(1)(e) were not met (CB 381 [68]). Having so found it moved to reg 1.15(AA)(1)(f), and wrote as follows (CB 381);“71. The applicant’s evidence is that the caree requires twenty-four hour care. The visa applicant has two young children and a husband she intends to bring with her. She does not speak English. The applicant has given evidence that the intensive care is too much for him and his siblings.72. The Tribunal accepts that the caree is unwell and needs intensive care. The Tribunal is not satisfied on the evidence provided that the visa applicant will be able to provide the twenty four hour care. For her two young children and husband. Her lack of English would also be a barrier to her providing safe care in the event of an emergency.73. The Tribunal after considering all of the above is not satisfied that the visa applicant is willing and able to provide to the caree substantial and continuing assistance of the kind needed as the evidence provided points to having to care for her two young children and she does not speak English.” 28. It therefore found that the requirements of reg 1.15(AA)(1)(f) were not met (CB 381 [68]).29. The decision under review was affirmed (CB 382 [79]).”
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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