Yi v Minister for Immigration

[2017] FCCA 828

FEDERAL CIRCUIT COURT OF AUSTRALIA

YI & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 828

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal erred in making a finding of fact without any evidence – whether the Administrative Appeals Tribunal erred in not giving proper weight to the evidence provided by the applicants – whether the Administrative Appeals Tribunal erred by taking into account an irrelevant consideration – whether the Administrative Appeals Tribunal erred in construing regulation 1.15AA of the Migration Regulations 1994 (Cth) – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31,338, 357, 359, 359A, 360, 474
Migration Regulations 1994 (Cth), regs. 1.15AA, 2.01, Schedule 2 –cls.836.212, 836.221

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

First Applicant: HEA CHUL YI

Second Applicant: AHYOUNG YI

Third Applicant: JEREMY MIN HYOUNG YI

Fourth Applicant: MEAN CHIN HYANG

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2061 of 2015

Judgment of: Judge Emmett

Hearing date: 12 April 2017

Date of Last Submission: 12 April 2017

Delivered at: Sydney

Delivered on: 30 May 2017

REPRESENTATION

Counsel for the Applicant: Mr Jonathan Cohen

Solicitors for the Applicant: Cambridge Lawyers

Counsel for the Respondents: Ms Rachel Francois

Solicitors for the Respondents: DLA Piper Australia

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 2061 of 2015

HEA CHUL YI

FIRST APPLICANT

AHYOUNG YI

SECOND APPLICANT

JEREMY MIN HYOUNG YI

THIRD APPLICANT

MEAN CHIN HYANG

FOURTH APPLICANT

AND

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

FIRST RESPONDENT

ADMINISTRATIVE APPEALS TRIBUNAL

SECOND RESPONDENT

REASONS FOR JUDGMENT

1. 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”) for judicial review of a decision of the Administrative Appeals Tribunal dated 16 June 2015 (“the Tribunal”).

2. The first applicant (“the Applicant”) in this proceeding is the brother of an Australian citizen (“the Sponsor”) and the primary applicant for an Other Family (Residence) (Class BU) Subclass 836 (Carer) Visa (“Carer Visa”). The second applicant is the wife of the Applicant, and the third and fourth applicants are their two children. The second, third and fourth applicants were included in the Applicant’s application for a Carer Visa as a member of his family unit. The claims of the second, third, and fourth applicants are wholly dependent on those of the Applicant.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.

Background

1. On 7 October 2013, the Applicant lodged an application for a Carer Visa with the Department of Immigration and Citizenship (“the Department”).

2. On 11 March 2014, the Delegate refused the Applicant’s application for a Carer Visa.

3. On 20 March 2014, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.

4. On 16 June 2015, the Tribunal affirmed the decision of the Delegate not to grant a Carer visa.

5. On 23 July 2015, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is an Other Family (Residence) (class BU) Carer (subclass 836) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

3. At the time of the Tribunal’s decision, an applicant for a Carer Visa must satisfy, inter alia, the criteria under cl.836.212 and cl.836.221 of Schedule 2 to the Regulations, which state:

   “836.21 Criteria to be satisfied at time of application

   836.212 The applicant claims to be the carer of an Australian relative.

   836.22 Criteria to be satisfied at time of decision

   836.221 The applicant is a carer of a person referred to in clause 836.212.”

4. The term ‘carer’ is defined in reg.1.15AA of the Regulations. Relevantly, reg.1.15AA(1)(e) and (f) of the Regulations are as follows:

   “1.15AA   Carer

   (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:

   …

   (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.

   (f) the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed...”

5. Under s.338 of the Act, a decision to refuse to grant a Carer Visa is a decision which may be reviewed by the second respondent.

6. The requirements of the natural justice hearing rule are exhaustively stated in Division 5 of Part 5 of the Act (s.357A of the Act). Division 5 Part 5 includes ss.359A and 360, which provide that:

   “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.

   360  Tribunal must invite Applicant to appear

   (1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

7. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

8. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The Delegate’s decision

1. On 31 December 2013, the Delegate requested the Applicant to provide further information evincing that care was not available from any other family members of the Sponsor in Australia, or that the required care was not available from Australian welfare organisations or nursing homes.

2. On 20 January 2014, the Applicant responded with a signed statement in which he stated that the Sponsor had her mother, husband and two sisters living in Australia. In further response to the request, the Sponsor’s husband, two sisters, and twin daughters all provided statutory declarations to the Delegate in which they stated they were unable to provide care for the Sponsor, for various reasons.

3. The Delegate was not satisfied on the information provided that the Sponsor could not receive the assistance she requires from the combination of her husband and her sisters (who are Australian citizens or permanent residents) together with community support. The Delegate referred in particular to the proximity of the family members to the home address of the Sponsor and their close relationships.

4. The Delegate found that no evidence had been provided to demonstrate that the Applicant or the Sponsor had sought assistance from welfare, hospital, nursing or community services in their area. As a result, as stated above, the Delegate was not satisfied on the information provided that aspects of the assistance could not reasonably be obtained from community services in Australia, particularly in combination with assistance available from family.

5. The Delegate was not satisfied that the Applicant is willing and able to provide to the Sponsor substantial and continuing assistance of the kind needed as the Delegate was not satisfied that the Applicant had a firm understanding of the nature and longevity of the assistance required. Further, the Delegate was not satisfied that the Applicant, who is not currently providing substantial care to the Sponsor, would provide such care if the Carer Visa was granted.

6. Accordingly, on 11 March 2014, the Delegate refused the Applicant’s application for a Carer Visa on the basis that the Applicant did not satisfy reg.1.15AA(1)(e) and (f) of the Regulations, and therefore did not meet cl.836.221 of the Regulations.

The Tribunal’s review and decision

1. On 20 March 2014, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. The Applicant did not provide further documents in support of his review application. 

3. On 18 February 2015, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 10 June 2015 to give oral evidence and present arguments.

4. On 10 June 2015, the Applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the second applicant and the Sponsor. The Applicant was represented before the Tribunal by his migration agent.

5. The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.

6. The Tribunal explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses.

7. The Tribunal was satisfied that the Applicant is a relative of the Sponsor, an Australian citizen, within the definition of “relative” as set out in r.1.03 of the Regulations. Therefore, the Tribunal found that the Applicant met the requirements of r.1.15AA(1)(a). Further, the Tribunal was satisfied that the Sponsor is an Australian citizen, thereby satisfying the requirements under r.1.15AA(1)(ba).

8. The Tribunal noted the medical assessment certificate in relation to the Sponsor issued by Medibank Health Solutions on 11 September 2013. The Tribunal was satisfied that the certificate meets the requirements of r.1.15AA(1)(b), namely, that it stated that the Sponsor has a continuing medical condition that requires direct assistance in attending to the practical aspects of daily life. The Tribunal noted that the Sponsor requires care in hygiene, toileting, preparation of food, supervision and assistance with transport.

9. The Tribunal noted that the Applicant provided no information on whether services were available to provide support and care for the Sponsor. The Tribunal noted that the Applicant had not pursued any information on whether there is assistance available from welfare, hospital or nursing or community services.

10. Therefore, the Tribunal was not satisfied that the assistance required by the Sponsor could not reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia. As a result, the Tribunal found that the Applicant did not meet the requirements of r.1.15AA(1)(e).

11. The Tribunal found that the Applicant was not willing and able to provide substantial and continuing assistance of the kind needed by the Sponsor. For completeness, the Tribunal found that the Sponsor’s sister-in-law, the Applicant’s wife, currently provides to the Sponsor substantial and continuing assistance of the kind needed. Therefore, the Tribunal found that the Applicant did not meet the requirements of r.1.15AA(1)(f).

12. Accordingly, the Tribunal affirmed the decision of the Delegate on the basis that the Applicant is a not a carer of the Sponsor and therefore does not satisfy cl.836.221 of Schedule 2 to the Regulations.

The proceeding before this Court

1. The applicant was represented before this Court by Mr Jonathan Cohen, of counsel.

2. Mr Cohen confirmed that the applicant relied on the grounds contained in an Amended Application as follows:

   “1. The Tribunal erred by making a finding of fact not based on any evidence, that there were generally case services available in the Korean Community and the sponsor “could” be cared for by such services.

   2. The Tribunal erred by not giving proper weight to the evidence that the sponsor did not wish or intend to be cared for by somebody who was not a relative.

   3. The Tribunal erred by taking into account an irrelevant consideration, namely that the applicant did not have evidence about the financial situation of his brother-in-law.

   4. The Tribunal made an error of law by concluding that because the applicant was sharing care duties with his wife, in particular, bathing, this meant that he was not her primary carer.”

Grounds 1 and 2

1. Counsel for the Applicant, Mr Cohen, submitted in support of Ground 1 that the Tribunal had not assessed whether the Sponsor’s wish to be bathed by the Applicant’s wife was reasonable in all circumstances; and that the Tribunal failed to undertake that assessment because the Applicant had not taken steps to ascertain whether welfare, hospital, nursing or community services could reasonably be obtained where the Sponsor had taken a position that she would refuse such assistance irrespective of whether they were available.

2. Mr Cohen submitted that because of the Sponsor’s position was that she did not wish to be bathed by anyone else other than the Applicant’s wife and that such position was reasonable, the Applicant could not consider the availability of any welfare, hospital, nursing or community services.

3. The written submissions in support of Grounds 1, 2 and 3 asserted that the Tribunal had no evidence before it to conclude that it could be satisfied that there were other community services available to the Sponsor; and that if the Tribunal had information regarding community services available to the Sponsor, that evidence should have been given to the Applicant pursuant to s.359 of the Act.

4. Ground 2 asserted that the Tribunal failed to give proper weight to the Sponsor’s evidence that she did not wish or intend to be cared for by a person who is not a relative.

5. Regulation 1.15AA of the Regulations requires the Applicant to satisfy the Tribunal that assistance to the Sponsor cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia and that the Applicant is willing and able to provide to the Sponsor substantial and continuing assistance of the kind needed.

6. The Applicant provided no information on whether any welfare, hospital, nursing or community services were available to the Sponsor. In the circumstances, the Tribunal found that the Applicant had not pursued any information on whether there was assistance available from welfare, hospital, nursing or community services. In the absence of any such information, the Tribunal was not satisfied that the assistance could not reasonably be obtained, other than that the Sponsor did not want it.

7. In making that finding, the Tribunal referred to a discussion that it had with the Applicant and the Sponsor where the Tribunal put to them that the Sponsor had received medical assistance and care from professionals in the past. The Tribunal noted the Sponsor’s response that she had put up with it but did not want to use professional care. The Tribunal stated that whilst it could understand that the Sponsor may not want to use the services of professional carers at the present, the Sponsor had needed and received such care in the past.

8. It was for the Applicant to satisfy the Tribunal that he met the relevant criteria for the grant of a Carer Visa, one of which is, as stated above, that the applicant needed to satisfy the Tribunal that assistance could not reasonably be obtained from welfare, hospital, nursing or community services in Australia.

9. In the absence of any evidence to that effect, it is unsurprising that the Tribunal concluded that the requirements of reg.1.15AA(1)(e) were not met.

10. Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.

11. In reaching that conclusion, it is clear from the summary above that the Tribunal was aware that the Sponsor did not wish to be cared for or bathed by any person other than a family member. However, the Tribunal noted that the Sponsor had received professional care services in the past. It is clear from the exchange among the Tribunal, the Sponsor and the Applicant that the Applicant had not made any inquiries about the availability of any welfare, hospital, nursing or community services in Australia. In the absence of any information regarding the availability of any such services, it was open to the Tribunal to conclude that the Applicant did not meet reg.1.15AA(1)(e) of the Regulations.

12. To the extent that the written outline of submissions relied upon by the Applicant asserted that the Tribunal should have given information regarding the availability of community services to the Applicant and that its failure to do so was in breach of s.359 of the Act, such assertion misunderstands the obligation of the Applicant to satisfy the Tribunal that he met the criteria contained in reg.1.15AA(1)(e) and (f). The Tribunal was not obliged to give to the Applicant information regarding the availability of any community services and its failure to do so did not breach s.359 of the Act.

13. Accordingly, Grounds 1 and 2 are not made out.

Ground 3

1. Ground 3 asserts that the Tribunal took into account an irrelevant consideration, being that the Applicant did not have evidence about the financial situation of his brother-in-law.

2. There was no relevant elaboration on this ground either in oral submissions by counsel for the applicant, or in the written submissions. It would appear that the ground is directed to the Tribunal’s statement at the hearing that given there is a large Korean community in Sydney and that as the Applicant’s brother-in-law was financially supporting the family, he may be able to provide some finances towards paying for some help.

3. The Tribunal noted the Applicant’s response that the he did not know about his brother-in-law’s finances.

4. The Tribunal did not make any finding in relation to the finances of the Applicant’s brother-in-law arising out of that discussion. The discussion alone is not capable of identifying any jurisdictional error on the part of the Tribunal. There is nothing in the Tribunal’s decision record to suggest that the Tribunal took into account adverse to the Applicant that he, the Applicant, did not have any evidence about the financial situation of his brother-in-law.

5. Accordingly, Ground 3 is not made out

Ground 4

1. Ground 4 asserts that the Tribunal erred in its conclusion that because the Applicant was sharing the care duty with his wife, in particular bathing, this meant he was not the Sponsor’s primary carer.

2. Counsel for the Applicant, Mr Cohen, submitted that the premise of the Tribunal’s decision was that there cannot be two substantial carers and that the Tribunal had not considered the quality of care provided by the Applicant as it merely found that because the Applicant’s wife was providing substantial care, the Applicant was not. Mr Cohen submitted that the Applicant was providing heavy lifting and that had not been considered as substantial.

1. Ground 4 also alleges that the Tribunal erred in finding that in relation to reg1.15AA(1)(f) of the Regulations, it was not satisfied that the Applicant is willing and able to provide to the Sponsor substantial and continuing assistance of the kind needed.

2. In considering reg.1.15AA(1)(f) of the Regulations, the Tribunal noted that the Applicant was required to satisfy the Tribunal that he was willing and able to provide to the Sponsor’s substantial and continuing assistance of the kind needed. The Tribunal noted “willingness” is concerned with the Applicant’s state of mind, whereas the issue of ability is an objective inquiry as to whether the Applicant is a person who is suitable or fit to provide assistance. The Tribunal also noted that the term “substantial” is directed to the level of assistance and the term “continuing” was directed at the duration of the assistance and that it is a composite phrase in the sense that the two elements are cumulative.

3. The Tribunal then referred to medical evidence before it provided by the Applicant that indicated the Sponsor had received care from the Applicant’s wife and not from the Applicant. The Applicant is the Sponsor’s brother and it is his wife to whom the psychologist referred to as the carer. Further, the Carer Visa Assessment Certificate noted that the Sponsor came to the assessment with her sister-in-law.

4. The Tribunal noted that at the hearing, the Applicant and the Sponsor agreed that the Applicant’s wife had been providing the care. The Tribunal noted that when this was put to the Applicant as an issue, as he has listed himself as the carer to his sister, the Applicant stated that they shared the care duties. The Tribunal noted that the Applicant said he did some of the caring and when asked to elaborate, the Applicant stated that he did the heavy tasks but could not bathe his sister as he is a man.

5. The Tribunal ultimately found that the Sponsor’s sister-in-law (the Applicant’s wife) was providing the Sponsor with substantial and continuing assistance of the kind needed. The Tribunal found that the Sponsor’s sister-in-law bathed and fed the Sponsor, cooked for her and took her to medical appointments. The Tribunal also noted that all independent reports referred to the sister-in-law as being the carer.

6. The Tribunal further noted that the Applicant stated that he did some work for his brother-in-law’s business when assistance was needed and that he cared for his mother as she was unwell and needed his care. The Tribunal noted that when it asked the Applicant how he could care for his children, his mother and his sister (the Sponsor), he replied that he did it with his wife.

7. Ultimately, the Tribunal found that the Applicant had not been providing substantial and continuing assistance of the kind needed to the Sponsor and was not willing and able to do so in the future for a substantial period of time. Therefore, the Tribunal found that the Applicant did not meet the requirements of reg.1.15AA(1)(f) of the Regulations.

8. Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.

9. The Tribunal did not make a finding of the kind asserted in Ground 4 that because the Applicant was sharing care duties with his wife, this meant that he was not the primary carer. Rather, the Tribunal found that the Applicant’s wife was providing the Sponsor with substantial and continuing assistance of the kind needed. The Tribunal found that the Applicant had not been providing substantial and continuing assistance of the kind needed to the Sponsor. Based on those findings, the Tribunal concluded that the Applicant would not be willing and able to do so in the future for a substantial period of time, particularly, having regard to the other members of his family in respect of whom he claimed to be caring.

10. In the circumstances, the Tribunal was not satisfied that the Applicant met the requirements in reg.1.15AA(1)(f) of the Regulations. That being a mandatory requirement, the Applicant did not satisfy the definition of a ‘carer’ of an Australian relative, being the Sponsor.

11. In the circumstances, the Tribunal concluded that the Applicant did not satisfy cl.836.221of the Regulations.

12. Accordingly, Ground 4 is not made out.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant, the Sponsor and the migration agent at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his ability to care for the Sponsor and noted the Applicant’s responses.

2. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal 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.

3. 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.

4. 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 power to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 30 May 2017