Vu v Minister for Immigration & Border Protection - [2015] FCCA 3378

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)

Cases Cited:
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507
SZMCD vMinister for Immigration and Citizenship (2009) 174 FCR 415
Rafiq v Minister for Immigration [2004] FCA 564

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 satisfy the decision-maker that, at time of application and at the time of decision, she is a carer of an Australian relative.
The term ‘carer’ is relevantly defined in reg.1.15AA of the Regulations as follows:
“(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; an
(ii)     the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and
(iii)    the impairment has, under the Impairment Tables, the rating that is specified in the certificate; and
(iv)    because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and
(ba)   the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(c) the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister for this paragraph; and
(d)     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.”
(Emphasis added)
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 DELEGATE
5.   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 TRIBUNAL
12.    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 TRIBUNAL
18.    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 REASONS
26.    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]).”
At the commencement of the hearing, by consent, an Amended Application was filed in Court by the Review Applicant identifying the following grounds:
“1. The second respondent (the Tribunal) erred by failing to comply with s. 359A of the Migration Act.
Particulars
(a) Failure to disclose to the applicant, in the manner required by that section, the information at paragraph 49 of the Tribunal's reasons that;
(i) The Tribunal had spoken to the relevant ACAT assessor, and,
(ii) That person had confirmed that there was only one report on their file, and,
(iii) He confirmed that the report that had been sent to the Tribunal was a true copy of the original.
2. The Tribunal erred by misconstruing and misapplying Migration Regulation 1.15AA(l)(e).
Particulars
(a) Error in failing to ask itself whether suitable community services could be reasonably be obtained by the applicant, as opposed to whether they may be "available" or whether she is eligible for them.
(b) Error in finding that community services could be provided, whereas Reg 1.15AA(l)(e)(ii) required a findings as to whether such services could reasonably be obtained.
3. The Tribunal erred in its finding that the visa applicant did not meet the requirements of Migration Regulation l.15AA(1)(f)
Particulars
(a) There was no evidence to support the Tribunal's finding, at paragraph 71 of its reasons, that the visa applicant's children were "young".
(b) Those children were 23 and 16 at the time of the Tribunal decision.
(c) There was no evidence that the visa applicant's husband required the "care" of his wife.”

Ground 1

Ground 1 contends that the Tribunal failed to comply with s.359A of the Act in failing to give relevant information to the Visa Applicant for comment, either in writing in accordance with s.359A of the Act or orally at the hearing in accordance with s.359AA of the Act. Sections 359A and 359AA of the Act are as follows:

“359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

359AA Information and invitation given orally by Tribunal while applicant appearing
(1) If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

(2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).”

Counsel for the Review Applicant, Mr Karp, submitted that the information that enlivened s.359A of the Act was contained in a case note of a Tribunal Officer and dated 22 June 2015 (“the Case Note”), reflecting a conversation between an officer of the second respondent and Mr Alex Ho from the Bankstown Aged Care Assessment Team.
The Case Note, dated 22 June 2015, is in the following terms:
“At the Member’s instructions I contacted Mr Alex Ho from Bankstown ACAT team. I spoke to Alex regarding the ACAT report dated 1 April 2015 that he provided to the tribunal. Alex explained that the ACAT report he gave is the correct the [sic] report and the only report that he has for the Review Applicant. He stated that he has looked at the report that the agent sent to him and he noticed that there were modifications in that report that was [sic] not written by him by the ACAT team.
He gave an example: “Client is very frail and requires one on one care, 24 hours a day, our package offer limited care during the day which will not meet her needs…” Alex said that he would not say that because they are not a service provider and ACAT does not provide this sort of detailed information in their report. He also noted that a couple of other modifications were made to the report which was not done by him of the ACAT team. He said that he has spoken to the agent about the modified report and has referred her to their medico-legal team for further assistance.
Alex re-iterated that there is only one report for the Review Applicant and ACAT has the original report. There are no other reports.
I thanked him for his time.” (Emphasis added)
Counsel for the Review Applicant, Mr Karp, identified the relevant information as the bolded part above that there was only one report and there are no other reports.
In support, Mr Karp referred the Court to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 (“SAAP”) in support of the proposition that a failure to comply with s.424A of the Act (in similar terms to s.359A of the Act but relating to a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal) is a failure to accord procedural fairness and that such failure may give rise to jurisdictional error (see SAAP, 319-322 per McHugh J, 345-346 per Kirby J, 353-355 per Hayne J).
Counsel for the first respondent, Mr Martin Smith, submitted that the information identified above was not information that enlivened any obligation under s.359A or s.359AA of the Act. Mr Smith submitted that such information was not a rejection, denial or undermining of the Visa Applicant’s claims and was not capable of being so (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 (“SZBYR”) at [11] and [17]; Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 at [22]). I agree with that submission.
I also accept Mr Smith’s submission that the information that the Tribunal did consider to be the reason, or part of the reason, for affirming the decision under review was the fact that an altered version of the ACAT Report had been provided to the Tribunal by the Review Applicant. That information was given to the Review Applicant for comment in accordance with s.359AA of the Act and I do not understand counsel for the Review Applicant to contend otherwise.
Having complied with s.359AA of the Act in giving that information to the Review Applicant’s representative at the Tribunal hearing for comment, there was no need for compliance with s.359A of the Act by giving that information in writing to the Visa Applicant for comment (see SZMCD vMinister for Immigration and Citizenship (2009) 174 FCR 415 at [2]).
Moreover, the Review Applicant tendered the bundle of relevant documents identified as ‘Court Book’ and filed on 9 October 2015. Those documents were marked Exhibit 1A. Exhibit 1A contains evidence relating to the ACAT Report and the Case Note referred to and cited above and which is the only evidence that there are no other reports.
Further, the Review Applicant read the affidavit of My Yen Tran, sworn/affirmed on 30 November 2015 and filed on 30 November 2015, which annexed transcripts of the hearings before the Tribunal. The transcripts disclose that the Tribunal Member put to the Visa Applicant’s solicitor that the ACAT Report provided to the Tribunal was a correct report and the only report held by ACAT. The Tribunal Member went on to state that Mr Ho had stated that there was only one report and he had sent the original copy to the Tribunal. The Visa Applicant’s solicitor confirmed with the Tribunal Member that Mr Ho had sent the original ACAT Report to the Tribunal.
That exchange between the Visa Applicant’s solicitor and the Tribunal Member immediately followed an exchange between the Tribunal Member and the Review Applicant’s son, Mr Vu, where Mr Vu said that he had a conversation with Mr Ho where he asked “there is two different ones. There is one draft and there is – there is one original.” He stuff up, but he doesn’t – he doesn’t admit it.”
Thereafter, the Tribunal Member stood the hearing over to allow the Review Applicant time to provide further written submissions and invited the Review Applicant to a further hearing. No further suggestion, submission or allegation was made either by the Review Applicant or the Visa Applicant, or any of the witnesses, to the effect that there was more than one valid ACAT Report.
The information that there was only one ACAT Report is therefore immaterial and was not information that formed the reason or part of the reason for the Tribunal affirming the decision under review. In the circumstances, the information identified by Mr Karp did not enliven any obligation on the Tribunal to give that information for comment, either under s.359A or s.359AA of the Act.
Accordingly, Ground 1 is not made out.

Ground 2

Ground 2 asserts that the Tribunal erred by misconstruing and misapplying reg.1.15AA(1)(e) of the Regulations.
In relation to recent relevant changes to reg.1.15AA(1)(e) of the Regulations, in his written submissions Mr Smith submitted that the present form of reg.1.15AA(1)(e) of the Regulations was inserted by the Migration Amendment Regulations 2009 (No 13) (Cth). The Explanatory Statement that accompanied the introduction of the amending regulation was expressed in Mr Smith’s written submissions to be “to ensure that it is open to decision-makers to conclude that assistance could reasonably be provided by relatives residing in Australia even in circumstances where those relatives residing in Australia claim to be unwilling or unable to provide assistance.” Whilst a copy of the Explanatory Statement was not tendered by Mr Smith, counsel for the Review Applicant, Mr Karp, did not suggest to the contrary.
Mr Karp submitted that the Tribunal’s finding that the Review Applicant was eligible for a “Home Care package level 3-4” was not based on any evidence before the Tribunal.
The Review Applicant’s complaints arise out of the following findings made by the Tribunal:
“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 Age Care Team 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 be reasonably be provided by welfare, hospital, nursing or community services in Australia.
68. The Tribunal is not satisfied that the assistance cannot be reasonably provided, or obtained from welfare, hospital, nursing or community services in Australia and therefor the requirements of r.1.15AA(1)(e) are not met.”
I do not accept that submission for the following reasons:
i)A copy of the ACAT Report in Exhibit 1A identifies the issues relating to the Review Applicant and makes the following three “Outcome/Recommendations”:
1. Home Care package level 3-4;
2. Respite was declined by family members although explanation was given that they do not have obligation to place her in facilities.
3. Referral to Specialized Aged Care Team for equipment and cognition assessment was recommended but son requested to have pending until family made the decision.”
ii)The ACAT Report makes clear that there is Home Care level 1-2 and Home Care level 3-4. The level identified for the Review Applicant was Home Care level 3-4.
iii)The ACAT Report noted that the Review Applicant needed the help or supervision of another individual at the time of assessment in respect of self-care, movement activities, moving around places at or away from home, health tasks, transport, activities involved in social and community participation, domestic assistance, meals and home-maintenance.
iv)The ACAT Report noted that the Review Applicant had the use or help with, or supervision of, another individual in respect of those activities.
v)The ACAT Report recommended that the Review Applicant receive assistance from formal services in respect of self-care, movement activities, moving around places at or away from home, transport, activities involved in social and community participation, domestic assistance and home-maintenance.
vi)The ACAT Report noted that the Review Applicant currently did not receive support or assistance from any of the following government-funded care programmes, including the Home Care level 3-4.
vii)The ACAT Report also noted that the Review Applicant or her carer had not used residential or community-based respite care in the past 12 months. The ACAT Report also noted that the National Respite for Carers Programme was recommended as a source of assistance for the Review Applicant. The ACAT Report also noted that the Review Applicant has one or more carers, including a co-resident carer.
In the circumstances, the Tribunal’s finding that community services are available; that the ACAT Report recommended a Home Care package level 3-4; that respite care was declined; and, that further specialised aged care team services were recommended but declined were open to it on the evidence and material before it and for the reasons it gave.
Otherwise, I understand the Review Applicant’s complaint in Ground 2 to centre around a contention that the Tribunal failed to ask itself whether suitable community services could reasonably be obtained by the Visa Applicant; and, erred in finding that community services could be provided. Regulation 1.15AA(1)(e)(ii) of the Regulations requires a determination as to whether such services could reasonably be obtained.
In support, counsel for Review Applicant, Mr Karp, referred to Rafiq v Minister for Immigration [2004] FCA 564 (“Rafiq”), which drew a distinction between assistance being “provided” and assistance being “obtained”. In particular, in Rafiq at [10], Finn J stated that it was one thing to ask whether assistance can reasonably be obtained and another to ask what can reasonably be provided.
However, I accept the submission of counsel for the first respondent, Mr Smith, that, as referred to above, the current form of reg.1.15AA(1)(e)(i) of the Regulations was amended to overcome the findings of Finn J in Rafiq.
Counsel for the Review Applicant contended that the Case Note in Exhibit 1A, dated 22 June 2015, made clear that the Tribunal had been told by Mr Ho that ACAT is not a service provider and did not provide that sort of detailed information in their report. However, that statement by Mr Ho is intended to be an explanation as to why the fraudulent ACAT Report was not written by him, particularly insofar as it stated that “client is very frail and requires one on one care, 24 hours a day, our package offer limited care during the day which will not meet her needs.”
It is clear that the ACAT Report is to provide recommendations for services needed, rather than necessarily provide those services. As stated above, the Tribunal’s finding that community services are available was open to it on the evidence and material before it and for the reasons it gave. The Tribunal was entitled to have regard to that finding in considering whether or not it was satisfied that the assistance needed by the Review Applicant could be obtained from “welfare, hospital, nursing or community services in Australia”. In relation to considering whether or not those services could be obtained, the Tribunal was entitled to have regard to the evidence before it that respite care had been declined by the Review Applicant and further specialised aged care team services had been declined by the Review Applicant.
I do not accept the submission of the Review Applicant that the Tribunal misconstrued and misapplied reg.1.15AA(1)(e) of the Regulations by those findings. Certainly the Tribunal’s clear conclusion based on findings open to it and to which it referred is as follows:
“68. The Tribunal is not satisfied that the assistance cannot reasonably be provided by a relevant relative, or obtained from welfare hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e) are not met.”
By that language the Tribunal expressed the relevant test. A fair reading of the Tribunal’s decision record does not support the contention that the Tribunal misconstrued or misapplied that test.
Accordingly, Ground 2 is not made out.
Moreover, the criteria in reg.1.15AA(1) of the Regulations are cumulative. In the circumstances, it is necessary for the Review Applicant to satisfy the Court that the Tribunal’s decision in respect of both of the relevant criteria in regs.1.15AA(1)(e) and (f) of the Regulations was affected by jurisdictional error. This is because where a decision is made on two independent bases, one of which is affected by jurisdictional error, such an error may be immaterial because it cannot undermine “the essential legal basis that sustains the decision” (see SZBYR at [88] per Kirby J). I accept the submission of counsel for the first respondent that, in such a case, the Review Applicant is not entitled to the relief she seeks (see SZBYR at [91] per Hayne J).
However, although I have concluded that the Visa Applicant does not meet criterion reg.1.15AA(1)(e) of the Regulations, for the sake of completeness, I have also considered below whether the Visa Applicant meets the criterion in reg.1.15AA(1)(f) of the Regulations.

Ground 3

Ground 3 asserts that the Tribunal erred in finding that the Visa Applicant did not meet the requirements of reg.1.15AA(1)(f) of the Regulations in that, there was no evidence to support the Tribunal’s finding that the Visa Applicant’s children were “young” and no evidence to support the Tribunal’s finding that the Visa Applicant’s husband required the care of his wife.
The relevant findings of the Tribunal are as follows:
“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.”
Counsel for the Review Applicant, Mr. Karp, submitted that there was no evidence to suggest that the husband required his wife to care for him and that he drove a truck in Vietnam. Further, Mr Karp submitted that the children referred to as “young” were, at the time of the decision, 23 and 16 respectively.
However, those findings of the Tribunal were made in the context of evidence before it that the Review Applicant requires 24-hour care; that the Visa Applicant lived with her husband and children in Vietnam; that the children attended school in Vietnam and were described as “relatively grown-up”, although they lived at home.
I accept the submission of counsel for the first respondent that the Tribunal’s findings are no more than findings that the Tribunal was not satisfied that the Visa Applicant would be able to provide her mother with 24-hour care, being care that was beyond the capacity of other members of the family; the fact that the Visa Applicant’s husband and children live with her; and, that her lack of English would also be a barrier for her providing safe care in the event of an emergency. Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.
The transcripts make clear that the Tribunal was aware that the children were studying in Vietnam and would continue to study in Australia.
I do not accept the Review Applicant’s submission that the Tribunal erred in describing the children as “young”. The evidence before the Tribunal is that they were the Visa Applicant’s children and would continue to reside with the Visa Applicant in Australia. One of the children was still of school age. Plainly, the Visa Applicant would have obligations to care for her family, being her children and husband, in addition to providing care for the Review Applicant.
Where the evidence before the Tribunal is that the Review Applicant requires 24-hour care, it was open to the Tribunal to find, as it did, that a person such as the Visa Applicant with other family obligations and a language barrier may well be found not to satisfy the definition of “carer” in reg.1.15AA(1) of the Regulations in all the circumstances.
The Tribunal concluded that it was not satisfied that the Visa Applicant met the criterion in reg.1.15AA(1)(f) of the Regulations that the Visa Applicant is willing and able to provide to the Review Applicant substantial and continuing assistance of the kind needed. As stated above, that conclusion was open to the Tribunal in light of its findings that the Review Applicant requires 24-hour care and that the Visa Applicant will have an obligation to care for her “two young children” and husband and does not speak English.
Accordingly, based on its findings, the Tribunal’s conclusion that the requirements of reg.1.15AA(1)(f) of the Regulations are not met was open to it.
Accordingly, Ground 3 is not made out.

Conclusions

As stated above, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 17 December 2015