Yee Joy v MIBP
[2015] FCCA 2537
•17 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| YEE JOY v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2537 |
| Catchwords: MIGRATION – Carer visa – refusal – whether care could be provided by a relevant relative or obtained from a service in Australia – whether the applicant was willing and able to provide substantial and continuing assistance given the applicant’s other family commitments – whether the Tribunal failed to take into account a relevant consideration, namely that the improvement in condition of the caree based on the applicant’s care – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 Migration Regulations 1994 (Cth), reg.1.15AA(1), pt.836 of sch.2 |
| Applicant: | JUSTIN NICHOLAS YEE JOY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 468 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 26 August 2015 |
| Date of Last Submission: | 26 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 17 September 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Ms J. Davidson |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 468 of 2015
| JUSTIN NICHOLAS YEE JOY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This case concerns an important subclass of visas that entitles a person to remain in Australia in order to provide assistance to a sick relative. There are a number of criteria for the grant of that visa, however, for present purposes, the critical criteria are contained in reg.1.15AA(1) of the Migration Regulations 1994 which, broadly stated, are:
a)the assistance needed by the sick relative cannot reasonably be:
i)provided by any other relative of the resident, being a relative who is an Australian citizen, and Australian permanent resident or an eligible New Zealand citizen; or
ii)obtained from welfare, hospital, nursing or community services in Australia; and
b)the applicant is willing and able to provide to the relative substantial and continuing assistance of the kind needed.
The applicant applied for a visa in this subclass in order to provide assistance to his maternal uncle who was not only effectively blind but suffered the complications of end stage renal failure. The Tribunal was not satisfied that the applicant met either of the above criteria and so affirmed the decision of a delegate of the Minister to refuse to grant the applicant the visa.
The applicant seeks judicial review of the Tribunal’s decision pursuant to this Court’s jurisdiction under s.476 of the Migration Act 1958. The Court may only grant the relief sought if there is a jurisdictional error in the Tribunal’s decision. For that reason, the issue in these proceedings is not whether the applicant met the criteria for the grant of the visa, but rather, whether, in determining that it was not satisfied that that was the case, the Tribunal fell into error affecting its jurisdiction.
For the reasons that follow, it is concluded that there is no error affecting the Tribunal’s decision and the application must be dismissed.
Background
The applicant applied for an Other Family Residence (class BU) visa. That class of visa contained a number of subclasses, one of which was subclass 836 (Carer). The criteria for the grant of that subclass of visa were contained in cl.836 in sch.2 to the Regulations. One of the criteria in that clause was that, at the time of the decision, the applicant was a “carer” of an Australian relative.
A carer is defined for the purposes of the Regulations in reg.1.15AA(1) of the Regulations which, at the time of application, relevantly provided:
(1)An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia … if:
(a)the applicant is a relative of the resident; and
(b)according to a certificate that meets the requirements of subregulation (2):
(i) a person (being the resident or a member of the family unit of the resident) has a medical condition; and
(ii) the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and
(iii) the impairment has, under the Impairment Tables, the rating that is specified in the certificate; and
(iv) because of the medical condition, the person has, and will continue for at least two 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 by Gazette Notice 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.
The applicant was sponsored in this application by his uncle who required assistance in bathing, feeding, being taken to medical appointments and companionship because of his blindness and kidney problems. The applicant obtained a certificate from Medibank Health Solutions to the effect that his uncle:
a)had an impairment rating of 50 points based on the Social Security Tables for the assessment of work-related impairment for Disability Support Pension;
b)had a medical condition causing physical, intellectual or sensory impairment of the uncle’s ability to attend to the practical aspects of daily life;
c)had a need for direct assistance in attending to the practical aspects of daily life because of the medical condition; and
d)because of the medical condition the need for direct assistance in attending to the practical aspects of daily life would continue for at least two years.
That certificate satisfied the criterion in sub-reg.1.15AA(1)(b).
In order to show that he met the criterion in sub-reg.1.15AA(1)(d) the applicant provided five statutory declarations. The first was from one of the uncle’s daughters who said that she was unable to look after her father due to the fact that she lived three hours away and had seven children to look after. The second was by another daughter who stated that she could not care for her father because she worked five days a week and also had three children aged 10, 9 and 7. The third declaration was by yet another daughter who said that she had four young children. The fourth declaration was from the uncle’s son who said that he was unable to look after his father as he had started his own business. Finally, the applicant’s aunt made a declaration saying that she was unable to look after her husband because she was “still working” and that her shift work time varied on a day-to-day basis.
The applicant also provided a statutory declaration of his own indicating his intention and ability to care for his uncle. In the declaration he stated that he was unemployed but if given the chance his wife would find work while he looked after his uncle. His wife was, at that time, in Fiji with the applicant’s three children. Although they had been included as secondary applicants for the visa, that inclusion was not valid as they were offshore at the time of the application.
The applicant also provided a letter from a renal social worker who stated amongst other things that the uncle’s wife was in full-time employment and that the applicant had been living with family and assuming a carer’s role since March 2013.
On 10 October 2013 a delegate of the Minister decided to refuse to grant the applicant a visa and the applicant applied to the Tribunal for review of the decision.
In an undated letter to the Tribunal the applicant explained why none of his uncle’s five children could provide any assistance to his uncle. The first had seven children and lived in Newcastle; the second had two children and lived in Auburn and is married to a man who was a train driver who worked shifts; the third had four children aged from 10 months to 7 years old; the fourth had three kids aged 7 to 10 and worked nightshift: the fifth, the only son, had started working as a subcontractor and his work took him to different locations polishing concrete. The applicant also explained that he was the sole provider for his family and that he left his job with the hope of making a brighter future for his children.
The applicant then provided evidence from three of his uncle’s daughters in the form of letters giving further details about the reasons why they could not look after their father.
The applicant was invited to, and attended, a hearing conducted by the Tribunal on 21 January 2015. His aunt and uncle also attended the hearing and gave evidence. The Tribunal made its decision on 27 January 2015 affirming the decision of the delegate.
Tribunal’s decision
The Tribunal found that the medical assessment certificate issued by Medibank Health Solutions met the requirements of reg.1.15AA(2) and that it addressed each of the matters mentioned in sub-regs.1.15AA(1)(b)(i)-(iv). For that reason it was satisfied the requirements of in sub-reg.1.15AA(1)(b) were met.
The Tribunal was also satisfied that the requirements of sub-regs.1.15AA(1)(ba) and (c) were met and, because the person to whom the certificate related was the Australian relative, that sub-reg.1.15AA(1)(d) did not apply. It then turned to consider whether the requirements of sub-reg.1.15AA(1)(e) were met.
In this respect, the Tribunal was not satisfied that the applicant had been entirely truthful with the Tribunal and that he had exaggerated his role as carer and downplayed the part played by his uncle’s wife and children. It then stated:
[37]The Tribunal after considering all the evidence provided is satisfied that the caree could be provided with reasonable care from his spouse and family members. The applicant has provided some assistance however the Tribunal finds that the caree would continue to receive assistance with his care from his spouse and the other members of his family if the applicant was not present.
[38]The applicant gave evidence that his Uncle was offered a community package but declined to accept any help. 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.
I note in passing that the Tribunal’s findings in [37] do not reflect the wording of the criterion in sub-reg.1.15AA(1)(e) in so far as they refer to “reasonable care” rather than referring to the assistance being able to be “reasonably provided”. At first glance this suggests that the Tribunal misunderstood the relevant criterion. The care that must be provided is in fact the “assistance” that is referred to in sub-reg.1.15AA(1)(b)(iv), namely, the direct assistance in attending to the practical aspects of daily life that the Australian relative needs because of his or her medical condition. However, the correct test is reflected in the following paragraph of the Tribunal’s reasons and, allowing as I must, for the occasional sloppy use of language, I consider that there was no error made by the Tribunal in this respect. If I were wrong about that the Tribunal’s decision would have been affected by jurisdictional error because it would have addressed the wrong question and so constructively failed to exercise its jurisdiction.
The Tribunal next turned to consider sub-reg.1.15AA(1)(f). First, it noted that in the phrase “substantial and continuing assistance”, the word “substantial” was directed to the level of assistance, and the term “continuing” was directed at the duration of that assistance. The Tribunal noted that it was a composite phrase in the sense that the two elements in it were cumulative. Next, while it accepted that the applicant had been providing some assistance since he started to be a carer, the Tribunal was not satisfied that the applicant “will be able to care for and provide financially for three young children and his wife and continue to provide substantial and continuing assistance of the kind needed to the caree.” For that reason it found that the applicant was not willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and therefore did not meet the requirements of sub-reg.1.15AA(1)(f).
For those reasons, the Tribunal concluded that the applicant was not a carer of the Australian relative, being the sponsor, and therefore did not satisfy cl.836.221. It is also not satisfied that the applicant satisfied the criteria for the other subclasses of visa within Class BU. Accordingly, the Tribunal affirmed the decision of the delegate.
Consideration
There are four grounds in the application. The first two concern the Tribunal’s finding in respect of sub-reg.1.15AA(1)(e) and the third and fourth grounds concern its finding in respect of sub-reg.1.15AA(1)(f).
Grounds 1 and 2
The first ground is that the Tribunal erred when it was not satisfied that the assistance to the caree could not reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia. The ground is particularised by ground two in which there are three points.
The first point is that the Tribunal was wrong to find that the relevant requirements were not met in circumstances where family members of the caree (other than the spouse) were not staying with the caree who required continuing assistance for having a medical condition and being blind. If this ground is intended to assert that the only relatives of a caree that are relevant to the assessment of sub-reg.1.15AA(1)(e) are those who live in the same house or other accommodation as the caree, it has no basis in the legislation. The only qualifications as to which relatives are relevant to this assessment are: first, that they are “other”, in other words, that they are not the applicant for the visa or, if sub-reg.1.15AA(1)(d) applied, the sponsor; secondly, that they are Australian citizens, Australian permanent residents or eligible New Zealand citizens; and thirdly, that the required assistance cannot reasonably be provided by them. The only relevance of where a particular relative lives is provided by the word “reasonably”. Thus, if, as was the case here, a relative lives many hours away from the proposed caree, it may be that the assistance could not reasonably be provided by that relative.
It appears, however, that the applicant’s real complaint is that the Tribunal ought to have found that the required assistance could not reasonably be provided by his uncle’s children because they did not live with his uncle. Understood in that way, this point only goes to the merits of the decision and does not raise any jurisdictional error.
The second point is that, even though some family members of the caree lived nearby, they were not in a position to provide any assistance to the caree. This point is an undisguised attack on the merits of the Tribunal’s decision. It was the applicant’s case before the Tribunal that none of his uncle’s children could give him the assistance he required because they were too busy either with work or with children of their own. The Tribunal did not accept that. Indeed, it found that the applicant had exaggerated both the role that he had played as a carer for his uncle and the part played by his uncle’s children in providing assistance to him: see paragraph [36] of the Tribunal’s reasons.
The third point is that the applicant had provided continuing assistance to the caree for about four years. Once again, that is an assertion of fact that is both inaccurate and of no assistance in identifying any jurisdictional error. The applicant’s own evidence was that he started caring for his uncle in 2013, only two years ago. In any event, the length of time he was caring for his uncle is irrelevant to the issue of whether the assistance could reasonably be provided by the uncle’s other relatives.
For those reasons the first two grounds are rejected.
Ground 3
The third ground is that the Tribunal erred in concluding that the applicant was not willing and able to provide substantial and continuing assistance. There are three particulars to this ground: first, the Tribunal wrongly took into consideration the applicant’s family circumstances when his family was not in Australia and it was not known when they would be; secondly, the Tribunal assumed that the applicant wanted to bring his three young children and get work while being under a subclass 836 visa; and third, the Tribunal was influenced by an irrelevant fact namely that the applicant’s wife was unemployed in Fiji.
As already noted, one of the reasons for the Tribunal’s decision was that it was not satisfied that the applicant would be able to care for and provide financially for three young children and his wife and continue to provide substantial and continuing assistance of the kind needed to his uncle. The first point made in ground three relies on the assumption that the Tribunal based this conclusion on the fact that the applicant would bring his wife and three children to Australia. However, there is nothing in the Tribunal’s reasons to suggest that that is the case. In any event, it was the applicant’s own evidence that he intended to bring his wife and three children to Australia once he obtained the carer visa. For instance, in a letter to the Tribunal dated 14 August 2014 the applicant wrote that he had “a young family back in Fiji” which he “would like to bring up (sic) to Australia asap.” Thus, even if the Tribunal proceeded on the basis that the applicant’s wife and three children were to travel to Australia, that basis was open to it on the material before it.
Further, the need for the applicant to financially support his family was relevant to the question posed by sub-reg.1.15AA(1)(f). That provision required, amongst other things, that the visa applicant be able to provide substantial continuing assistance of the kind needed under subparagraph (b)(iv). The assistance referred to in subparagraph (b)(iv) is direct assistance in attending to the practical aspects of daily life. Importantly, however, the Australian relative must have a need for such assistance that is both caused by a medical condition and expected to continue for at least two years. When the words “continuing assistance” that appear in sub-reg.1.15AA(1)(f) are read in the context of subparagraph (b)(iv), it is clear that the ability referred to in the criterion must be ongoing with at least the prospect that it continue for two years. Once that is understood, the fact that the applicant’s wife and three children were, at the time of the decision, in Fiji, did not render irrelevant the need for the applicant to financially provide for them. While it might have been otherwise if there was no indication that the applicant’s wife and children were to travel to Australia, that, as I have said, was not the applicant’s case. For those reasons, the Tribunal properly took into account the applicant’s need to financially support his wife had three children regardless of whether they were in Australia at the time of decision.
The second point made in ground three is that the Tribunal assumed that he wanted to bring his three young children to Australia and to get work. As already noted, any assumption by the Tribunal was properly based upon the applicant’s evidence of his intention to bring his wife and three children to Australia. In any event, as also explained, there was no such assumption in the Tribunal’s decision.
The third point made in the third ground relates to the fact that the applicant’s wife was unemployed in Fiji. At the hearing of this matter, the applicant explained that this was irrelevant because the wife could not work in Fiji because she was not a citizen of that country. That may well be correct: the applicant’s visa application showed that his wife was a citizen of Kiribati, a small nation near Nauru close to the equator consisting of a series of atolls. However, the applicant frankly admitted that he had not raised this issue before the Tribunal. For that reason, there could be no error in the Tribunal’s failure to consider it.
For those reasons the third ground is rejected.
Ground 4
The fourth ground is that the Tribunal failed to take into account a relevant consideration, namely that the condition of the applicant’s uncle had improved substantially since the applicant had begun taking care of him. This ground is based upon a letter from a renal social worker dated 11 September 2013 in which the author states that the applicant was contributing hugely to the psychological and physical well-being of his uncle. It may be the case that the effectiveness of care provided by a visa applicant might be probative of the applicant’s ability to provide the required assistance. However, the issue for the Tribunal was whether the applicant was able in a broader sense to provide the required assistance. That is, whether the applicant would have the time to provide the assistance as well as to do what was necessary to financially provide for his wife and family. In light of that, the Tribunal was not required to set out any findings of fact concerning the effectiveness of the applicant’s care for his uncle. For that reason, the fourth ground is rejected.
Conclusion
There is no jurisdictional error in the Tribunal’s decision. The application is dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 17 September 2015
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