FEDERAL COURT OF AUSTRALIA

Lin v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 606

MIGRATION – Reg 1.15AA – Carer visa – review of MRT decision – whether MRT erred in applying par 1.15AA(1)(e) – asking the wrong question – distinction between reasonably providing assistance and reasonably obtaining assistance – whether MRT ignored relevant material – assistance required for meal preparation – cultural suitability of assistance –whether relevant consideration in assessing whether assistance cannot reasonably be obtained

Migration Regulations 1994 sch 2 cl 116, reg 1.15AA

Craig v State of South Australia (1995) 184 CLR 163 referred to

Issa v Minister for Immigration & Multicultural Affairs [2000] FCA 128 considered

The Oxford English Dictionary 2^nd Edition

XI SHENG LIN AND ZHEN FENG LIN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND MIGRATION REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA

N 1560 of 2003

BRANSON J

13 MAY 2004

ADELAIDE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1.                  Order for a writ of certiorari directed to the second respondent quashing the decision of the second respondent.

2.                  Order for a writ of mandamus directed to the second respondent requiring it to determine the second applicant’s application for a visa according to law.

3.                  The first respondent pay the applicants’ costs.

REASONS FOR JUDGMENT

INTRODUCTION

1                     This is an application for review of a decision of the Migration Review Tribunal (‘the Tribunal’) dated 22 September 2003.  By its decision the Tribunal affirmed a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (‘the delegate’) refusing to grant the second applicant a Subclass 116 visa (‘Carer visa’).

Background

2                     The first applicant, Xi Sheng Lin (‘Mrs Lin’) is the wife of Mr Wen Yao Guo (‘Mr Guo’).  Mrs Lin and Mr Guo migrated to Australia from the People’s Republic of China in 1993 and are Australian permanent residents.  When Mr Guo arrived in Australia he was approximately 62 years of age.  He will soon be 73 years of age.  It appears that neither Mrs Lin nor Mr Guo is fluent in English although Mr Guo has a greater capacity to communicate in English than Mrs Lin.

3                     The second applicant, Zhen Feng Lin (‘Mr Lin’), is a citizen of the People’s Republic of China.  It is not in dispute that Mr Lin is the nephew of Mrs Lin.  On 6 June 2002 Mr Lin applied for a Carer visa.  Pursuant to par 116.212(b) of Schedule 2 of the Migration Regulations 1994 (‘the Regulations’) Mrs Lin sponsored Mr Lin’s application for a Carer visa.

4                     An applicant for a Carer visa must satisfy two sets of primary criteria contained in Schedule 2 of the Regulations.  The first set of criteria is to be satisfied at the‘time of application’ and is set out at cl 116.21 of Schedule 2 of the Regulations.  Subclauses 116.211 and 116.212 relevantly provide:

‘116.211         (1) The applicant claims to be a carer of an Australian relative of the applicant.

(2) In this clause, Australian relative, in relation to an applicant, means a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

116.212                 The applicant is sponsored:

(a)          by the Australian relative mentioned in clause 116.211 if that relative has turned 18; or

(b)          by the spouse of the Australian relative if:

(i)       the spouse cohabits with the relative; and

(ii)     the spouse is an Australian citizen or an Australian permanent resident or an eligible New Zealand citizen; and

(iii)   the spouse has turned 18.’

5                     The Minister does not suggest that Mr Lin’s visa application fails to satisfy the requirements of cl 116.21. 

6                     The second set of criteria contained in Schedule 2 of the Regulations is to be satisfied at the ‘time of decision’ for approval of the visa application.  Subclause 116.221 prescribes that at the time of decision ‘the applicant is a carer of the Australian relative’.  The definition of ‘carer’ is contained in reg 1.15AA of the Regulations.  Regulation 1.15AA relevantly provides:

‘(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 be reasonably 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 to 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.

(2)              A certificate meets the requirements of this subregulation if:

(a)         it is a certificate in relation to a medical assessment carried out on behalf of Health Services Australia that is signed by the medical adviser who carried it out; or

(b)         it is a certificate issued by Health Services Australia in relation to a review of an opinion in a certificate mentioned in paragraph (a) that was carried out by Health Services Australia in accordance with its procedures.

….’

7                     It is not in dispute that Mr Lin’s application for a carer’s visa satisfies pars (a), (b), (c) and (d) of subreg 1.15AA(1).  Mr Guo is an Australian permanent resident who, because of a medical condition ‘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’.

8                     In 1999 at age 68 Mr Guo was paralysed from the chest down after an operation for an aortic aneurysm.  He is confined to a wheel chair.  Because of his paraplegia, Mr Guo requires substantial care.  The Health Services Australia assessment certificate made pursuant to par 1.15AA(1)(b) and subreg 1.15AA(2) records that Mr Guo has a medical condition that satisfies (i)-(iv) of par 1.15AA(1)(b).  Mr Guo’s impairment rating is 40, which is 10 points above the impairment rating specified by the Gazette Notice.  Annexed to the Health Services Australia assessment certificate is a document headed ‘Statement of Care Needed’.  The document records that Mr Guo ‘needs help with bathing, transfer, turning in bed at night’.  A list of examples of the direct assistance required by Mr Guo because of his medical condition is given.  The examples include the following:

·        All washing

·        All toileting and bowel care

·        Dressing, grooming

·        Preparation of Meals

·        Motorised Wheelchair

·        Providing medications

9                     Mrs Lin is primarily responsible for the care of Mr Guo.  Mrs Lin is 69 years old.  Medical reports indicate that she suffers from a range of medical conditions that include low blood pressure and a history of back strain.  The NSW Department of Ageing, Disability and Home Care (‘DADHC’) provides two hours homecare support in the morning to assist Mr Guo with getting out of bed, and with toileting, washing and grooming and a further half an hour’s support assisting him into bed at nights.  Mr Guo on occasions spends time in respite care at a nursing home called Ferguson Lodge.

10                  Mrs Lin is unable to continue to take care of Mr Guo’s daily needs such as cleaning, cooking, washing, turning him at night and cleaning him and the bed when his catheter breaks. 

11                  On 27 September 2002 the delegate refused to grant Mr Lin a Carer visa.  Mrs Lin, as the sponsor of Mr Lin’s visa application, lodged an application for review with the Tribunal on 20 November 2002.

Evidence before the tribunal

12                  On 25 June 2003 the Tribunal sent a letter addressed to Mr Guo inviting him to comment, in writing, on the following information:

·        You have relatives in Australia, including your wife, your daughter, your wife’s sister (Ling Ching Shen) and her 3 sons.

·        At the time of the department’s decision you had been receiving nursing home care.

·        The visa applicant is recorded to have stated that he had no experience caring for the elderly or had been responsible for the care of any elderly family members in China.  He also is recorded to have stated that he wanted to go to Australia to look after you and attend educational courses.

13                  On the following page of the letter the Tribunal stated:

The Tribunal may find that the assistance required can be reasonably obtained from another relative or from welfare, hospital, nursing or community services in Australia.

14                  Further information was provided to the Tribunal.  Three of Mrs Lin’s nephews residing in Australia provided the Tribunal with statutory declarations.  The content of their respective statutory declarations is summarised in the following three paragraphs.

15                  Mr Chun Ho Cheng stated that his wife resigned from work to look after his two children (a three-year-old son and a six-month-old daughter).  He works for ‘an international company’ and is unable to offer any assistance to ‘the husband of my auntie’.  He further stated that he had no contact with Mr Guo for three years.

16                  Mr Chun Fook Cheng stated that he works full time and is a single parent of a five-year-old daughter.  He also lives with his aged mother, Mrs Lin’s sister, who recently underwent heart surgery.  He stated that he is unable to provide assistance to Mr Guo.  Mr Chun Fook Cheng further stated that he only sees Mr Guo once a year. 

17                  Mr Chun Ngai Cheng stated that he works full time and assists his wife who suffers from serious arthritis.  He stated that he helps his brother in the care of his sick mother and is unable to assist Mr Guo. Mr Chun Ngai Cheng further stated he has ‘not met [Mr Guo] for a long time’.

18                  Mr Guo’s daughter, Mrs Lin Guo, provided the Tribunal with a typed letter.  Mrs Lin Guo stated in the letter that she was unable to provide any assistance to her father for the following reasons.  Her mother and father had lived with her until she sold her house and her parents then moved into government housing.  Mrs Lin Guo and her husband work full time and her husband is a shift worker.  She suffers from high blood pressure and diabetes.  In addition Mrs Lin Guo stated, ‘many different things can happen to a paraplegia to fix day and night that can not expect help from some one who dose [sic] not live in the same house’.

19                  The Tribunal hearing was held on 27 August 2003.  Mr Guo, with the assistance of an interpreter, gave oral evidence.  The Tribunal summarised Mr Guo’s evidence as follows:

‘●     Mr Guo stays at a nursing home Ferguson lodge, regularly in order to give his wife a break.  He stays there for 1-2 months at a given time.  He goes to nursing home for respite care every 3-4 months; he has to apply and let them know and he is accepted if there is a vacancy.

·        He has not contemplated long term nursing care because he wants to be with his wife.  His wife stated that she did not think long term beds were available there.  Also the nursing home does not provide Chinese food.

·        At present he obtains Homecare assistance and has not really investigated other forms of help.’

The Tribunal’s decision

20                  As noted earlier, there is no dispute that Mr Lin’s visa application satisfied pars 1.15AA(1)(a), (b), (c) and (d).  The Tribunal affirmed the decision of the delegate on the basis that subparas 1.15AA(1)(e)(i) and 1.15AA(1)(e)(ii) were not satisfied. 

21                  The Tribunal, as I understand its reasons for decision, gave separate consideration to two possibilities:

(a)                that Mr Guo will continue to reside, respite care aside, at home with his wife; and

(b)               that Mr Guo will be obliged to seek residential care in a nursing home.

22                  The Tribunal’s critical findings are in [39] of its reasons for decision which records:

‘The Tribunal finds that in this case, the assistance that Mr Guo requires could reasonably be obtained through a combination of assistance provided by other relatives and welfare, hospital, nursing or community services.  However, even if the Tribunal is wrong on the issue of whether assistance can reasonably be obtained from any other relative, the Tribunal still finds that assistance can reasonably be obtained from welfare, hospital, nursing or community services in Australia.’

23                  Because the subparagraphs of 1.15AA(1)(e) were not satisfied the Tribunal did not proceed to consider whether the visa application satisfied par 1.15AA(1)(f).

24                  The Tribunal accepted that Mrs Lin’s medical condition limits the assistance that she can reasonably provide to Mr Guo.  The Tribunal also accepted that Mrs Lin’s sister was not in a position to reasonably provide assistance to Mr Guo.

25                  The Tribunal’s consideration of the other sources of assistance available to Mr Guo is contained in [30] – [38] of its reasons for decision which record:

‘[30]   The Tribunal has taken into account of the evidence that other relatives such as Mr Guo’s daughter and nephews are not in a position to provide assistance…The Tribunal finds … that her medical condition does not prevent her from undertaking full time employment.  The Tribunal is not satisfied that the evidence establishes that some of the assistance Mr Guo requires in attending to the practical aspects of his daily life cannot be reasonably obtained from his daughter.

[31]    Mr Guo’s nephews in Australia have given evidence that they have their own work and family commitments…

[32]    The Tribunal is not satisfied that the evidence establishes that the nephews cannot reasonably provide some assistance to Mr Guo in attending to the practical aspects of his daily life.

[33]    The Tribunal finds that the work and family commitments of Mr Guo’s daughter and nephews are likely to apply to most families.  The question is, whether the circumstances of the daughter and the nephews are such as to preclude a situation where assistance could be reasonably obtained from them.  There is no evidence that the daughter and the nephews have considered or attempted to re-arrange family schedules and priorities in order to be able, collectively, to provide assistance to Mr Guo.   The Tribunal is not satisfied that their evidence establishes that collectively they cannot reasonably provide a range of assistance at different times of the week to supplement the assistance provided by Mr Guo’s wife.

[34]    Taking account of all the evidence before it the Tribunal is not satisfied that the assistance in paragraph (b)(iv) cannot reasonably be obtained by any other relative of Mr Guo who is also a resident.’

[35]    The evidence before the Tribunal is that Mr Guo already obtains significant assistance from Homecare Services on a daily basis.  Homecare provides assistance for 2 hours each morning and for a further ½ hour each evening.  Homecare services is a part of the NSW Department of Ageing, Disability and Home Care (DADHC).  The Tribunal notes that a range of other services are also available from DADHC, including respite care.  The evidence is that Mr Guo has also availed himself of respite care services on a regular basis in order that Mrs Lin can obtain a break from caring for him.

[36]    There is little evidence before the Tribunal that Mr Guo has investigated the range of other services that might be available to provide assistance, including any additional modifications or equipment that might facilitate his turning in bed.

[37]    There is also no evidence that Mr Guo cannot reasonably obtain long-term assistance from nursing home or other similar community based services if required.  Mr Guo has given evidence that he has not contemplated that because he wishes to be with his wife.  There is also evidence that Mr Guo prefers the food prepared by his wife.  The Tribunal understands Mr Guo’s preferences in terms of remaining with his wife, and in relation to food, but the issue is whether assistance from nursing or community services cannot reasonably be obtained.  The Tribunal is not satisfied that the evidence has established that this is the case.  The Tribunal also notes Mrs Lin’s view that there are no long-term options available at Ferguson Lodge, where Mr Guo has received respite care.  There is no formal evidence that this is the case.  In any case, even if Ferguson Lodge were not able to provide long term nursing home accommodation, that does not establish that other nursing home care is not reasonably available.

[38]    Having regard to the evidence the Tribunal is not satisfied that the assistance mentioned in paragraph (b)(iv) cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.’

consideration

26                  By an amended application filed on 9 March 2004 the applicants contend that the Tribunal erred in its application of each criterion of par 1.15AA(1)(e) to Mr Lin’s visa application.  There are separate grounds of complaint for each criterion.

27                  Mr Karp, counsel for the applicants, contended that the Tribunal misinterpreted and misapplied the criterion in subpara 1.15AA(1)(e)(i).  In particular, he contended that the Tribunal erred in the way identified by Madgwick J in Issa v Minister for Immigration & Multicultural Affairs [2000] FCA 128 (‘Issa v MIMIA’).  The relevant passage of Madgwick J’s in Issa v MIMIA reasons is at [12] where his Honour said:

It occurred to me that the Tribunal member may have misdirected herself by focusing on whether the other Australian relatives and/or welfare services could reasonably make their support available to the applicant, rather than whether she could reasonably obtain it from them.  This is not mere semantics.  There would be many families in which, if they were minded to, the children could provide a high level of care for a parent, but in which in practice they might not be willing to do so.  In such a case the applicant might be quite unable to obtain care and support from their children.  The bare language used by the Tribunal member is suggestive that she confused these two concepts.

28                  Notwithstanding the above observation of Madgwick J in Issa v MIMIA, his Honour in that case concluded that no legal error in the way the Tribunal applied the criterion in subpara 1.15AA(1)(e)(i) had been established.  His Honour noted that the Tribunal member had correctly paraphrased the requirements of the paragraph.  Further, his Honour concluded that it was open to the Tribunal member, on the evidence before her, to proceed on the basis that there was no real alienation between the applicant and her children and that the applicant’s children would assist her to the extent that they could.

29                  In this case, all of Mrs Lin’s nephews residing in Australia provided evidence that they were not in close or regular contact with Mr Guo.  They indicated that, by reason of their respective circumstances, they were not able to provide assistance to Mr Guo.  Their evidence provides little, if any, support for an inference that they would be willing to assist Mr Guo if their circumstances were to change. 

30                  In my view, the language used by the Tribunal in this case supports Mr Karp’s contention that the Tribunal misinterpreted and misapplied the criterion in subpara 1.15AA(1)(e)(i).  The findings of the Tribunal at [30]-[34] indicate that the Tribunal member did not recognise the distinction identified by Madgwick J in Issa v MIMIA.  The Tribunal asked whether Mr Guo’s relatives ‘cannot reasonably provide some assistance’ rather than whether Mr Guo cannot reasonably obtain assistance from them.  I agree with Madgwick J that the distinction is not merely semantic.  The failure to make the distinction led the Tribunal to misapprehend the significance of the criterion in the light of the evidence before it.  The Tribunal did not consider whether, and if so how, Mr Guo can reasonably obtain assistance from relatives in Australia who are apparently not minded to provide him with assistance.

31                  Mrs Lin Guo’s position appears to be different.  If would seem reasonable to assume that Mr Guo could obtain assistance from his daughter more readily than from his spouse’s nephews.  In her letter to the Tribunal Mrs Lin Guo did not address the frequency or quality of the contact she has with Mr Guo or her willingness to support him.  She did, however, state that, in effect, a person living outside the home of a paraplegic should not be expected to provide the kind of support that a paraplegic requires.  The Tribunal member did not consider this evidence when applying the criterion in subpara 1.15AA(1)(e)(i) to Mr Lin’s visa application.  It may be that Mrs Lin Guo’s comments do not disclose an unwillingness to provide assistance to Mr Guo.  That is a matter for the Tribunal to decide.  However, even if it were open to the Tribunal to find that Mr Guo can reasonably obtain assistance from his daughter, as opposed to Mrs Lin’s nephews, this is not, in my view, critical to the applicants’ case in this proceeding.  The Tribunal found that the criterion in subpara 1.15AA(1)(e)(i) is not satisfied because Mrs Lin Guo and the nephews could ‘collectively’ provide support to Mr Guo.

32                  Paragraphs [35] and [36] of the Tribunal’s reasons for decision appear to be relevant to the Tribunal’s consideration of whether the assistance required by Mr Guo can be provided to him while he continued to reside principally with his wife.  The paragraphs contain implicit findings that assistance from welfare and other services is available to Mr Guo while he continues to reside at home with his wife.  Nothing in the Tribunal’s reasons for decision suggests that the Tribunal was satisfied that assistance of the kind identified in [35] and [36] would meet Mr Guo’s long term need for assistance absent the assistance from relatives to which it had earlier given consideration.

33                  I do not consider that it is to bring an excessively critical eye to the Tribunal’s reasons for decision to conclude, as I do, that in considering the possibility of residential nursing home care being available to Mr Guo, the Tribunal proceeded on the basis that Mr Guo’s ‘preference in terms of remaining with his wife, and in relation to food’ were irrelevant considerations (see [37] of the Tribunal’s reasons for decision which is set out in [25] above).  It is therefore necessary to determine whether, within the meaning of reg 1.15AA, factors of a kind that might broadly be described as cultural may impact on whether assistance from a particular source or sources may be reasonably obtained.

34                  The certificate issued by Health Services Australia, as required by subreg 1.15AA(2), indicated that Mr Guo needed direct assistance in respect of, amongst other things, the preparation of meals.

35                  ‘Reasonably’ is a word of broad meaning.  The Oxford English Dictionary 2^nd Edition includes the following meanings:

‘1.        According to reason, with good reason, justly, properly.

…

3.         Sufficiently, suitably, fairly.’

The Macquarie Dictionary 2^nd Edition suggests similar meanings.

36                  The Regulations are intended to impact particularly on non‑citizens of Australia.  In the context which they provide, in the absence of an indication to the contrary, an assessment of what is reasonable in particular circumstances will, in my view, involve, amongst other considerations, consideration of cultural suitability.

37                  The evidence before the Tribunal revealed that the availability of Chinese food was an issue of apparent significance to Mr Guo.  In her letter of 11 July 2003 addressed to the Tribunal, Mrs Lin had referred to her husband being sent home from hospital ‘so that he can experience once again the warmth of family care the meals he liked’.  In the same letter Mrs Lin referred to having ‘to prepare all the meals and tea’ for her husband herself after the homecare worker has left, and to the applicant knowing Chinese cooking.  Mr Guo’s evidence to the Tribunal was that he did not contemplate long‑term nursing home care because ‘the nursing home does not provide Chinese food’.  There was also evidence before the Tribunal that suggested that Mr Guo, and to a greater extent Mrs Lin, did not speak English fluently. 

38                  I accept that it was open to the Tribunal to attach weight to, amongst other things, the fact that Mr Guo, to provide respite to his wife, had spent time in nursing homes that did not provide Chinese food and where the staff apparently spoke no Mandarin.  It does not necessarily follow, however, that what might be reasonable for a limited period, might not be unreasonable in the longer term.  I also accept that notwithstanding Mr Guo’s preference for the food of his own culture and his and his wife’s apparent lack of fluency in English, the Tribunal may not be satisfied that the assistance that Mr Guo requires cannot reasonably be obtained from a nursing home in Australia.

39                  However, in my view, the Tribunal made an error of law by treating as an irrelevant consideration for the purposes of subreg 1.15AA(1) a consideration raised by the evidence before it, namely the preference of an ill and elderly Chinese person to eat Chinese food.  That is, in considering whether the direct assistance in respect of the preparation of meals that Mr Guo required could reasonably be obtained from a source that would not, or might not, be able to provide food that he found acceptable on cultural grounds.

Conclusion

40                  For the above reasons I conclude that the decision of the Tribunal is invalid as the Tribunal fell into errors of law which, so far as subpara 1.15AA(1)(e)(i) is concerned, caused it to ask itself the wrong question and, so far as subpara 1.15AA(1)(e)(ii) is concerned, caused it to ignore relevant material (Craig v State of South Australia (1995) 184 CLR 163 at 179).

41                  In the circumstances, certiorari will issue to quash the decision of the Tribunal and mandamus will issue to the second respondent directing it to determine the second applicant’s application according to law.  I see no necessity for the issue of a writ of prohibition.

Associate:

Dated:              13 May 2004