FEDERAL COURT OF AUSTRALIA

Rafiq v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 564

MIGRATION – application for carer visa – whether assistance can reasonably be obtained from a resident relative where relative not willing to provide it – constructive failure to exercise jurisdiction

Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 applied

Issa v Minister for Immigration and Multicultural Affairs [2000] FCA 128 applied

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 applied

MOHAMMED RAFIQ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, LINDA PEARSON, MEMBER MIGRATION REVIEW TRIBUNAL AND PRINCIPAL MEMBER OF THE MIGRATION REVIEW TRIBUNAL

No S 683 of 2003

FINN J

ADELAIDE

6 MAY 2004

THE COURT ORDERS THAT:

1. A writ of certiorari be issued, directed to the second respondent, removing her decision in this matter into this Court for the purpose of quashing it.

2. The decision be quashed.

3. A writ of mandamus be issued, directed to the Refugee Review Tribunal, requiring it to hear and determine the matter the subject of the decision, according to law.

4. A writ of prohibition be issued, directed to the first respondent, prohibiting her from acting upon or giving effect to the decision of the second respondent.

5. The first respondent pay the applicant’s costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant in this remitted application seeks relief under s 75(v) of the Constitution in respect of a decision of the Migration Review Tribunal refusing to grant him a Subclass 836 (Carer) visa.

2                     The applicant is a citizen of Fiji. His mother and one of his sisters are citizens of, and reside together in, Australia. He also has a brother residing in Fiji and a sister in New Zealand. The applicant’s visa application was made on the basis (inter alia) of his nomination by his mother than he was her carer. At the time of the application his Australian resident sister indicated she was no longer willing to provide the care required by their mother. This notwithstanding, the Tribunal concluded that the mother could reasonably obtain assistance from that sister. That conclusion gives rise to the principal issue in this proceeding.

STATUTORY SETTING

3                     To qualify for a carer visa a visa applicant must be a “carer of a person” as defined in Regulation 1.15AA of the Migration Regulations. That regulation states:

“(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; 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 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; 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 obtained:

(i)                 from 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)               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.”

4                     To anticipate matters, the Tribunal found that the applicant did not satisfy the criteria set out in pars 1.15AA(1)(e) and (1)(f) and was not, in consequence, a carer.

THE TRIBUNAL’S FINDINGS AND CONCLUSIONS ON PARA 1.15AA(1)(E)

5                     The issue that was to be determined was whether the assistance required by the applicant’s mother could not reasonably be obtained from his Australian resident sister.

6                     At the time the visa application was made (7 April 2000), the applicant’s mother lodged a statutory declaration in which she claimed that although her daughter provided assistance to her for the preceding six months, she was for her own personal reasons unable to continue to assist her. She relied in consequence upon the applicant. The applicant’s sister provided a letter to the Department on 10 April 2000 and, two years later, gave oral evidence to the Tribunal. The burden of those communications, as well as the Tribunal’s findings on par 1.15AA(1)(e)(i), are contained in the following paragraphs of the Tribunal’s reasons:

“37. The nominator’s daughter, Mrs Mary Nur Jahan Mohammed, is a relative as defined in regulation 1.03. The Tribunal finds, based on the evidence given at the hearing, that the nominator has lived with her daughter, Mrs Mary Nur Jahan Mohammed, for many years, and that until the arrival of the visa applicant, she provided the care required by her mother. In considering whether the assistance provided by the visa applicant cannot reasonably be obtained from Mrs Mohammed, the Tribunal notes the letter dated 10 April 2000, in which Mrs Mohammed states that she has been looking after the nominator for the past 23 years and she now has personal problems with her husband and she requires some support herself. In this letter, Mrs Mohammed also stated that she is unable to look after the nominator now that the nominator is getting old and she has health problems.

38. Mrs Mohammed gave evidence at the hearing to support her claim that she is unable to continue to look after her mother. The Tribunal notes, however, that Mrs Mohammed is able to work 4 days a week. It is not apparent from the evidence available to the Tribunal that Mrs Mohammed’s personal difficulties with her husband have prevented her providing the assistance with the practical aspects of daily life for her mother. The Tribunal finds, based on the evidence of the visa applicant, that he moved away from his sister’s house with his wife in April 2002, and returned in November 2002. The visa applicant was not able to indicate precisely how long his mother stayed at Liverpool while he was living with his wife, however it appears that it was for a relatively short time. That means that for some months during 2002 the nominator was living with her daughter, and that the visa applicant provided assistance after work, at times when it would appear his sister was also available. In light of this evidence, the Tribunal is not satisfied that the assistance required by the nominator cannot reasonably be provided by her daughter, Mrs Mohammed.

39. The visa applicant does not satisfy paragraph 1.15AA(1)(e)(i).”

CONTENTIONS AND CONCLUSION ON PAR 1.15AA(1)(e)(i)

7                     The applicant contends that the Tribunal failed to address the sister’s stated unwillingness and inability to provide continuing assistance when applying the subparagraph. That provision does not deal with whether the applicant’s sister could reasonably provide the necessary assistance. Its concern in the circumstances was with whether the applicant’s mother could reasonably obtain that assistance from the applicant’s sister. The Tribunal misunderstood the test to be applied and in so doing committed a jurisdictional error.

8                     The respondent’s contention is that the Tribunal asked and answered the right question; it took account of the sister’s evidence in reaching its conclusion; and the applicant’s challenge is to a fact finding with which he disagrees.

9                     My own view is that it is clear that, in purporting to apply the subparagraph 1.15AA(1)(e)(i) criterion, the Tribunal asked and answered the wrong question. Having found that the applicant’s sister both provided assistance to her mother when the applicant was not available to provide it and was apparently “available” when the applicant was providing support, the Tribunal concluded that it was “not satisfied that the assistance required cannot reasonably be provided by her daughter, Mrs Mohammed”: emphasis added. This was not the criteria it was asked to apply.

10                  It is one thing to ask whether assistance can reasonably be obtained from a relative. It is quite another to ask whether that assistance can reasonably be provided by a relative: see Issa v Minister for Immigration and Multicultural Affairs [2000] FCA 128 at [12]. What a relative is capable of doing and what that person is willing to do are not necessarily the same.

11                  There is an obvious reason why the subparagraph has the focus it has. Its object is not to effect a form of civil conscription of “available” relatives. Nor does it require a relative to act selflessly and contrary to that person’s own wishes, even if absent any alternative means of assistance that relative might continue to provide assistance for reasons of love, duty etc.

12                  In approaching the matter as it did, the Tribunal concerned itself with what the applicant’s sister was capable of doing. That is not the concern of the subparagraph. Had the Tribunal asked itself the correct question it could well have reached the contrary conclusion in light of the sister’s own and repeated evidence of her inability or unwillingness to continue providing the assistance she did.

13                  Having failed to apply itself to the question asked by subpar 1.15AA(1)(e)(i), the Tribunal to that extent constructively failed to exercise the jurisdiction entrusted to it: Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [82]. Whether, for discretionary reasons, relief should be denied depends upon whether the applicant can establish that the Tribunal erred as well in applying subpar 1.15AA(1)(f). As the requirements of these two subparagraphs are cumulative the applicant must succeed on both challenges to warrant the matter being remitted to the Tribunal.

THE TRIBUNAL’S FINDINGS AND CONCLUSIONS ON PARA 1.15AA(1)(f)

14                  The issue to be determined, the evidence and the Tribunal’s reasoning and conclusion are captured in the following paragraphs of the Tribunal’s reasons:

“40. Paragraph 1.15AA(1)(f) requires the Tribunal to consider whether the visa applicant is willing and able to provide substantial and continuing assistance ‘of the kind needed under paragraph (b)(iv)’. The Tribunal notes the evidence of Mrs Mohammed and Mr Buksh that it is important that the visa applicant, as the youngest son, be with his mother. The definition of carer in regulation 1.15AA, however, requires the Tribunal to focus on the nominator’s need for, and the visa applicant’s ability to provide, assistance in the practical aspects of daily life.

41. The visa applicant stated that he was willing and able to provide the assistance required by the nominator. The visa applicant stated that he assists his mother with her medication. His evidence suggests that the nominator takes Nurofen on a regular basis, and her other medication as needed. The Tribunal finds, based on the evidence at the hearing, that the visa applicant sets out the nominator’s clothes, and she is able to dress herself with appropriate assistance from her daughter. The visa applicant provides assistance with the taps, and otherwise the nominator is able to wash herself. The Tribunal finds, based on the visa applicant’s evidence, that he prepares meals for the nominator.

42. The Tribunal finds, based on the evidence of the visa applicant and the statement from McGrath Parts & Paint provided at the hearing, that the visa applicant has been employed since July 2001, for 8 hours a day Monday to Friday. That means that he is absent from the house at least 8 hours each day. During the periods when he and his sister are absent from the house, the wife of the nominator’s cousin is available to assist the nominator.

43. Paragraph 1.15AA(1)(f) refers to ‘substantial’ assistance. This term is not defined in the regulations. The Macquarie Dictionary defines the term to mean ‘of ample or considerable amount, quantity, size etc’. [The visa applicant is able to provide assistance with many of the practical aspects of his mother’s daily life, and so is his sister.] Given his employment commitments, however, he is not able to provide assistance to the nominator during the day. Having considered the assistance provided by both the visa applicant and his sister in light of the nominator’s overall need for assistance, the Tribunal is not satisfied that the visa applicant is able to provide substantial assistance, and he does not satisfy paragraph 1.15AA(1)(f).”

CONTENTIONS AND CONCLUSIONS ON PARA 1.15AA(1)(f)

15                  The applicant’s case, at best I can understand it, is that by aggregating the assistance provided by both the applicant and his sister, the Tribunal failed to consider whether either each individually or only both collectively could render substantial continuing assistance to the nominator. I should indicate immediately that why this “failure” gave rise to a jurisdictional error is not self-evident.

16                  The respondent’s submission is that the Tribunal explicitly addressed the question posed by the subparagraph and made a finding that was open to it about the applicant’s ability to provide substantial assistance.

17                  There is, I consider, a short answer to be given in the distinctive circumstances of this matter. Unless and until the Tribunal has made a proper determination under subpar 1.15AA(1)(e)(i) that the requisite assistance cannot be obtained from the applicant’s sister, the need to consider the subpar 1.15AA(1)(f) criterion does not arise. But if such a determination is made, i.e. that the assistance cannot be provided by the sister, the subpar 1.15AA(1)(f) is to be applied in light of that determination. The Tribunal, in my view, has failed to address the matter in this way hence its continuing preoccupation with the assistance provided and to be provided by the applicant’s sister.

18                  It may well be the case that notwithstanding that the assistance cannot be obtained from the applicant’s sister for subpar 1.15AA(1)(e)(i) purposes, she will still be able to provide some level of practical assistance. In that setting, and having regard to the mother’s overall need for assistance, the question whether the applicant is able to provide “substantial” assistance is to be addressed. It is not the setting considered by the Tribunal.

19                  In my view the Tribunal again made an error going to jurisdiction. That error, which flowed from its earlier error, demonstrated a basic misunderstanding of the interrelationship of the two subparagraphs and of the consequences that flowed from that interrelationship in a case such as the present. It “undermined the lawfulness of the decision in question in a fundamental way”: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 at [88].

CONCLUSION

20                  I am satisfied that the applicant succeeds on both of the challenges it has made to the Tribunal and that there are no discretionary grounds for refusing the relief sought.

21                  Accordingly I will order that:

(i)                  a writ of certiorari be issued, directed to the second respondent, removing her decision in this matter into this Court for the purpose of quashing it;

(ii)                the decision be quashed;

(iii)               a writ of mandamus be issued, directed to the Refugee Review Tribunal, requiring it to hear and determine the matter the subject of the decision, according to law;

(iv)              a writ of prohibition be issued, directed to the first respondent, prohibiting her from acting upon or giving effect to the decision of the second respondent; and

(v)                the first respondent pay the applicant’s costs.

Associate:

Dated: 6 May 2004