FEDERAL COURT OF AUSTRALIA

Naidu v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1692

MIGRATION – Reg 1.115AA – Carer’s visa – review of Migration Review Tribunal decision – whether Tribunal erred in applying par 1.15AA(1)(e) by asking the wrong question – distinction between whether applicant resident’s relatives can reasonably provide assistance and whether applicant can reasonably obtain assistance from those relatives – circumstances in which distinction needs to be drawn – effect of relatives’ expressing unwillingness to provide requisite assistance – effect of finding that assistance could be obtained from welfare, hospital, nursing or community services which would suffice in conjunction with that which could reasonably be provided collectively by Australian resident relatives.

Migration Regulations 1994 (Cth) Reg 1.115AA and Sch 2 par 116.22

Lin v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 606

Rafiq v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 564

SFGB v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 231

Tran v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCA 1522

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

Issa v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCA 933

Minister for Immigration, Multicultural and Indigenous Affairs v Wu Shan Liang (1996) 185 CLR 259

BAL CHANDRA NAIDU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 1118 of 2003

RYAN J

21 DECEMBER 2004

MELBOURNE

THE COURT ORDERS THAT:

1.                  The decision of the Migration Review Tribunal made on 20 November 2003 be set aside and the matter be remitted to the Tribunal, differently constituted, to be heard and determined according to law. 

2.         The respondent pay the applicant’s costs, including any reserved costs, to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

Introduction

1                     This is an application for review of a decision of the Migration Review Tribunal (“the Tribunal”) on 20 November 2003 affirming a decision of the respondent Minister’s delegate not to grant an Other Family (Migrant) (Class BO) visa (“the visa”) to the applicant’s son (“the visa applicant”) and the visa applicant’s wife and three children.  The applicant seeks relief by way of declaration, certiorari and mandamus.

Background

2                     The applicant has been an Australian citizen since October 2000.  His eldest son, the visa applicant, lives in Fiji with his wife and three children.  On 21 August 2002, the applicant applied to sponsor the visa applicant and his family.  On 28 August 2002, the visa applicant himself applied for the visa.

3                     The applicant’s personal circumstances were summarised as follows by the Tribunal in its reasons, where the applicant is called “the review applicant”;

‘10.      In his application the visa applicant stated that the review applicant was unable to care for himself following a stroke. The review applicant needed assistance with all daily needs such as bathing, dressing, ‘toiletting’, cooking, walking, eating, shopping etc. and the visa applicant is able and willing to assist him in all these ways. The review applicant would need the assistance indefinitely. The review applicant had other relatives in Australia but they were unable to provide the constant care required twenty-four hours a day because they as well as their spouses were working full time.

11.       In a submission … the visa applicant's agent stated the following:

* The review applicant has suffered three strokes that have left him completely dependent on others for his entire daily needs. His condition is so severe that his doctor has advised the family that the review applicant is eligible for nursing home care as he needs 24-hour monitoring. His physical impairment makes him need direct assistance in attending to the practical aspects of medical life. The medical condition that has caused the impairment will continue for at least two years.

* The review applicant is 69 years old and has a strong Indian cultural background and speaks and understands only a dialect of Gujerati. He has no understanding of western culture and his strong religious and cultural practice of Hinduism makes it harder for him to leave his present environment and to be without the help he expects from his family.

* He is left virtually bed-ridden, is unable to speak and has to be fed through

a tube. He has renal problems and is generally weak. Even if his condition were to improve so that he can be fed without a tube, he will need special care as he is `a pure vegetarian' and will eat only specially prepared meals because of his religion. He will not eat anything outside or cooked by anyone other than a family member. He has to make an offering to God before all meals. There are no `ethno specific Indian nursing homes' in Melbourne that could cater to the review applicant's needs. If he were to find a place in a `normal' nursing home, a family member will have to be in daily attendance to look after his needs.

* The review applicant's wife is now emotionally and physically drained after having looked after him for several years after the stroke. She is no longer physically up to the physical task of providing care including bathing and helping the review applicant to move. A more physically able person is needed.

* The review applicant has eight children residing in Australia. Some of them contribute on occasion towards their father's care but due to financial and family commitments such as looking after school going children, they are unable to provide the full and ongoing 24-hour care required by their father. Three of the children live interstate and cannot make any contribution.

* The family has tried its best to cope with the pressure of providing care but the toll has become intolerable especially to the review applicant's wife. The family is now desperate. The only practical solution is to sponsor the visa applicant and he together with his wife will be able to provide the care required.

12.       A certificate (D1 f 33) from Dr Leela Pushpa dated 22 July 2002 stated that the review applicant had a major stroke in 2001 and that he was bed-bound since then. His wife was diabetic and had back pains and was unable to lift him or to help him. He needs help with medication and with showering.

13.       The visa applicant also submitted a copy of the Administration Order made on 26 March 2001 by the Victorian Civil and Administrative Tribunal appointing the review applicant's wife as the administrator for the review applicant because of his disability and his inability to make reasonable judgments in respect of his estate (D1 f 35) .

14.       The applicant submitted a Carer Visa Assessment Certificate from Health Services Australia (HSA) dated 30 April 2002 that gave the review applicant an impairment rating of 40. The HSA certificate indicates that the review applicant has a medical condition that will continue for at least 2 years and that the review applicant has a need for direct assistance in attending to the practical aspects of his daily life. Dr Dorner who did the assessment stated that following two strokes the review applicant has been left with paralysis of the right side of the body, urinary and faecal incontinence, loss of speech and difficulty in swallowing. He is fed through a tube, totally dependent and can be transported only by ambulance. He has been assessed as eligible for nursing home care because of the severity of the dependence (D1 f 42).’

4                     As will be evident from the facts recited later in these reasons, the applicant’s family’s ability and willingness to provide assistance to the applicant is of significant importance to this application.  The Tribunal summarised as follows its findings on this aspect of the case;

‘18.      … The review applicant was in attendance but being unable to speak, his wife Mrs Maria Amma Naidu gave evidence on his behalf. Also giving evidence were the review applicant's daughter, and sister of the visa applicant, Sarojina Nand, and Sarojina Nand's husband, Mrs Baswa Nand. (sic)

19.       Mrs Maria Amma Naidu, said her husband, the review applicant had suffered a severe stroke 3 years ago and she had looked after him. She had received increasing help from two daughters but was less able to assist as she was also ill herself. She said they lived in a rented house in Vermont South, and the daughter Sarojina helped her most and she lived near by. She said she had nine children altogether, eight of whom live in Australia and five in Melbourne. Asked about her five children she said she had a daughter Sarojina who lived nearby, a son Ranga Naidu who lives in Keilor, a son Balgopan who lived in Endeavour Hills, a daughter Bushba who lives in Burwood and a daughter Kanta who lives in Oakleigh South.

20.       Mrs Maria Amma Naidu said she and her daughter Sarojina look after the review applicant at the moment, and the daughter Kanta comes once a week to help. She said she did have the council worker coming for half an hour, but she could not understand what they said, and they do not come now. She said a nurse comes once a month to check her husband. She said she had no other help. She said she had been told by her husband before he took ill that they should never place him in a nursing home. She said their religion dictates that she and the family should care for the father, it was important to their culture and she had promised her husband she would not send him to one. She said she wanted her own son to come and help, as he was the eldest and he had lived with them before for 32 years. She said this son, the visa applicant had a motor business in Fiji and he had three children. She said her eldest son had spent much time with them and they wanted him to come. She said the other children helped but most of them had mortgages and family responsibilities of their own and could not. She said she and her husband were old and they do not want to look after them. She said the daughter Kanta came and ironed her clothes and helped. She said Sarojina, did all her shopping and cleaned her house and her husband did all the gardening and lawns. She said she could not leave her husband alone. She did the cooking basically, and her daughter helped her lift him. However she was old herself and ill with diabetes and was less able to help. He said she was in an unhappy situation and they needed help.

21.       Mrs Sarojina Nand gave evidence, she said she was the daughter of the review applicant and sister of the visa applicant. She said she was one of nine children, and she lives in Vermont with her husband and daughter. She said she and her husband both work full time. However after hours she helps her parents a lot. She said it was the tradition that the eldest son should care for the parents. She said the next eldest a brother in Brisbane had his home there and job and was too busy to assist. She said that Ranga Naidu had his own business, his wife also worked and they had two children. She said Balgopan was married and both he and his wife worked and they had two children, he comes every two weeks to visit his parents. She said that her sister Bushba was a nurse but was also a student at Deakin University, she was married with two children and her husband also worked. She said her sister Kantra did help once a week but she and her husband worked and they had two children.

22.       Mrs Sarojina Nand said she did all the shopping for her mother and cleaned the house. Her husband did the lawns and garden. She would help her father to shower and toilet and shave. She also helped feed her father. She said she was also worried about her mother who had diabetes and was getting old and was tired and not coping. She said there was no nursing home suitable. They had sent the father to a Rehabilitation Centre but he was so unhappy and difficult there, the place asked for him to be taken home.

23.       Mr Baswa Nand said he was the husband of Mrs Sarojina Nand, and he was a process worker. He said it had come to a stage where his wife spent more time with her parents than with him. He said something needed to be done. He said only one other sister helps. He said he did the garden and lawns and sometimes he would help vacuum. There was a problem in lifting the father. He said the stress on his wife was considerable and she was tired, and the situation created tension.’

Legislation

5                     It appeared to be accepted by both parties that, of the various subclasses contained within the Other Family (Migrant) (Class BO) visa type, the applicant’s claims were advanced only in respect of the subclass 116 (Carer) visa (“carer’s visa”), found in Sch 2 of the Migration Regulations 1994 (Cth) (“the Regulations”).  The relevant criterion for a carer’s visa was, at the time of the respondent’s delegate’s decision, as follows;

‘116.22 Criteria to be satisfied at time of decision

116.221 The applicant is a carer of the Australian relative mentioned in clause 116.211.’ (emphasis added)

6                     For the purposes of criterion 116.221, the term “carer” was, at the relevant time, defined in subreg 1.15AA(1) of the Regulations as follows:

‘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.’

Tribunal’s decision

7                     The Tribunal accepted that the visa applicant was a relative of the resident (the applicant in these proceedings) for the purposes of subreg 1.15AA(1)(a) and appeared to accept, although it did not expressly make a finding to that effect, that the requirements in subregs 1.15AA(1)(b) and (c) had also been satisfied.

8                     However, the Tribunal ultimately found that the visa applicant was not a carer, by reason of a failure to satisfy subreg 1.15AA(1)(e).  The Tribunal held, in the relevant aspects, that:

‘39.      The Tribunal accepts that the nominator and review applicant suffers from a chronic illness and is severely impaired. The review applicant is clearly in need of considerable assistance which is continuing and substantial.

40.       It is argued that the eldest son, as the eldest son and the son who lived with his parents for 32 years in Fiji is the one who should assume the responsibility for caring. It is argued that the other eight children, five of whom live in Victoria have commitments and responsibilities that prevent them from providing the care their father requires.

41.       The Tribunal notes not only the severe impairment of the father (review applicant), but also notes that two daughters do assist their parents, and the daughter Sarojina especially. The Tribunal understands that Sarojina has a senior post in her place of work, a husband and daughter yet still manages to render considerable assistance to her parents. The daughter Kanta also gives assistance once a week. However the other siblings all pleaded mortgages, work and families as reasons why they cannot help. The Tribunal also notes that there are cultural factors which mitigate against a nursing home being a suitable place for the review applicant and accepts these circumstances.

42.       While the Tribunal accepts these situations, they reflect the priorities of the families in placing these matters ahead of the needs of the father. There are no special impediments that would prevent the families from helping, simply a preference to attend to their own family life and business affairs. Given that the importance of culture and family tradition have been emphasised in this case, it is not logical to apply the importance of culture and tradition to the older brother and yet not to the other eight children of the nominator, especially the five who live in Victoria .

43.       It would seem reasonable that given there are five children all resident in Melbourne, that they should be able to assist their father. The obligations of caring for parents are there. It would seem reasonable to assume that an arrangement could be made by family members to provide the help required. The parents could well live with one of the children all could contribute to finance the costs of care. It is reasonable to think that children, even when they have their own personal obligations and problems should readjust work and personal schedules and even place of residence, to assist their parents.

44.       A Hindi speaking carer could be engaged, paid for by the 5 siblings, to assist the mother. This could be supplemented by the visits of a district nurse and other services from bodies such as the local government authority. The ability of the visa applicant to help would also be limited by his own family responsibilities of a wife and children, as well as there are the settling in requirements such a family might have which may lessen the ability of the visa applicant to provide the assistance required.

45.       While the need for help has been demonstrated and the Tribunal is mindful of what the family currently does, the Tribunal is not satisfied that the criteria in terms of paragraph (e) are satisfied. The Tribunal finds that the visa applicant failed to meet the criteria set out in subclause (e) of regulation 1.15AA(1).’

9                     In effect, the Tribunal said that it was not satisfied that the requisite assistance could not reasonably be obtained from any other relative of the resident in accordance with subreg 1.15AA(1)(e)(i).  The Tribunal seemed to suggest, as well, in par 44 of its reasons, that assistance could also reasonably be obtained from welfare, hospital, nursing or community services in accordance with subreg 1.15AA(1)(e)(ii), although the Tribunal did accept that cultural factors would militate against the applicant’s being placed in a nursing home. 

10                  I note also that, while the Tribunal alluded, in the last sentence in par 44 of its reasons, to subreg 1.15AA(1)(e)(i), it did not make a specific finding that the requirement stipulated in that sub-paragraph had not been satisfied in this case.

Submissions

11                  The applicant submitted that the Tribunal, in finding that assistance for the applicant could reasonably be obtained from the applicant’s relatives, made three jurisdictional errors.  The first is that, in finding that there was no evidence of the inability of the siblings to provide the required assistance to the applicant, the Tribunal failed to consider the evidence before it.  Rather, it is said, the Tribunal imposed its own opinion of whether the assistance could reasonably be provided by the applicant’s family.  Secondly, the applicant alleges that there was no evidence on which the Tribunal could have found that a Hindi carer could care for the applicant and that the Tribunal imposed its own opinion in resolving that issue.  Further, the Tribunal did not give the applicant an opportunity to respond on the question of whether such a Hindi carer exists.

12                  The third error alleged by the applicant was that the Tribunal, by assessing whether the applicant’s family could reasonably assist the applicant, rather than assessing whether the applicant could reasonably expect that assistance from his family, asked itself the wrong question;  (see Lin v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 606 and Rafiq v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 564).  

13                  The respondent submits that the Tribunal’s finding that it was not satisfied that assistance could not reasonably be obtained from the applicant’s family was a finding of fact which could not give rise to an error of law;  (see SFGB v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 231).  It was for the applicant to provide evidence that assistance could not reasonably be obtained from relatives or from welfare, nursing, hospital and community services;  (see Tran v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCA 1522).

14                  The respondent also submits that in determining whether assistance cannot reasonably be obtained, no distinction should be drawn between whether assistance can reasonably be provided and whether the assistance can reasonably be obtained (see Issa v Minister for Immigration, Multicultural and Indigenous Affairs [2000] FCA 128 and Issa v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCA 933).  In the respondent’s submission, Lin and Rafiq were wrongly decided and, in any event, are distinguishable on their facts from the present case.

Resolution of the issues

15                  The gravamen of the applicant’s contention is that, in effect, the Tribunal misconstrued the test, enunciated in Lin and Rafiq, for determining whether a visa applicant is a carer for the purposes of reg 1.15AA.  As Lin and Rafiq both refer to Issa v Minister for Immigration, Multicultural and Indigenous Affairs (supra), it is useful to analyse in more detail the reasoning in that case.

16                  In Issa, the issue before Madgwick J was whether the applicant was a “special need relative” of her mother, Mrs Issa.  The applicant needed to establish that “substantial and continuing assistance  … cannot reasonably be obtained from another relative or welfare services in Australia”.  His Honour set out at [8] of his reasons these findings of the Tribunal:

‘The applicant's daughter attended at the hearing ... with her mother.  Despite her protestations and having had the opportunity of seeing her give evidence to me I am not satisfied that she cannot do anything to help her mother.  Whilst she was stated it is due to her problems being separated, I am not satisfied that she cannot assist her mother.  Furthermore, I am not satisfied that her sons and their families are not able to assist the applicant... The mere fact that the visa applicant claims that her sons are too busy or that they have a bad attitude or that they get irritated quickly, does not convince me that they cannot do anything to help their mother.  Furthermore, the evidence is that the review applicant does not often see her sons, but nevertheless she does see her sons.  She admitted to the Tribunal that she sees her daughter on an average once a week.  I am not satisfied that her daughter and her sons are unable to assist her.’  (emphasis added by his Honour)

Madgwick J proceeded, at [12]-[13], to discuss whether the Tribunal had erred in its approach to the question of whether the assistance required by the applicant could not reasonably be obtained by the applicant;

‘It occurred to me that the Tribunal member may have misdirected herself by focussing 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. 

However, it is only fair to understand the reasons of the Tribunal member in other than a narrow and point-taking way.  In the first place, the Tribunal member did, as I have indicated, correctly paraphrase the requirements of the regulation; she set out the relevant question as being whether the assistance could not reasonably "be obtained" from another relative or welfare services in this country.  In the second place, there was material which suggested that there was no real alienation of Mrs Issa from any of her other natural children.  The younger daughter, Nour, professed herself willing to help her mother as much as she reasonably could, but pointed out that she was at the time looking for work and was trying to re-establish her life after the separation from her husband.  The Tribunal member was therefore entitled to understand and to conclude that to the extent that Nour and Mrs Issa's sons could reasonably help her, they would.  On the facts of the case, then, the question as to whether Mrs Issa could reasonably obtain assistance from her relatives or the welfare services, would be answered by whether the relatives and those services could reasonably furnish such assistance.  I think that that is what the Tribunal member was expressing.  There is no legal error in such an approach on the facts of this case, although I point out the conceptual distinction for what use it may have in other cases.’ (emphasis added)

17                  On the approach adopted in Issa, the determination of whether the assistance required by an applicant cannot reasonably be obtained from another relative involves two distinct conceptual steps. The first requires an acknowledgement of the distinction between whether relatives could reasonably provide assistance or reasonably make such assistance available to the applicant on the one hand, and whether the applicant could reasonably obtain the required assistance, on the other.  The second step is an assessment of whether the distinction ought to be made on the facts of the particular case. Specifically, it is necessary to ask whether, to the extent that the relatives could reasonably provide assistance, they would do so.  If that question be answered affirmatively, it is unnecessary to give effect to the distinction between the relatives’ being reasonably able to provide assistance and the applicant reasonably obtaining the necessary assistance. 

18                  In Rafiq, the mother of the applicant required assistance.  The only other relative of the mother residing in Australia was the applicant’s sister, who had been providing assistance to the mother for 23 years.  However, that sister indicated before the Tribunal that she was no longer willing to provide the care required by the mother.   The Tribunal was not satisfied that the assistance required by the mother could not reasonably be provided by that sister and found that the applicant did not satisfy subreg 1.15AA(1)(e)(i).  Finn J found that, in reaching its conclusion, the Tribunal had asked and answered the wrong question.  His Honour then said, at [10]-12] of his reasons;

‘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. 

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. 

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.’  (emphasis added)

19                  In Lin, the applicant had applied for a carer’s visa in respect of his uncle, Mr Guo, who lived with his wife, Mrs Lin, in Australia. Mr Guo, who was confined to a wheelchair and required substantial care, received his care primarily from his wife and, occasionally, from community services and a nursing home.  The evidence before the Tribunal was that Mrs Lin was no longer able to care for Mr Guo and that Mrs Lin’s three nephews residing in Australia had infrequent contact with Mr Guo and were not prepared to provide the required assistance.  Further, Mr Guo’s daughter, Mrs Lin Guo, had given evidence that she was unable to provide any assistance to her father due mainly to time pressures and her own health considerations.  The Tribunal was not satisfied that the evidence established that some of the assistance which Mr Guo required could not be obtained from his daughter or his wife’s nephews.  As in the application presently before me, the Tribunal also found that there was no evidence that the daughter and his wife’s nephews had attempted to re-arrange their family schedules and priorities in order to provide assistance to Mr Guo and it was further not satisfied that collectively the relatives could not reasonably provide a range of assistance at different times during the week. 

20                  In her reasons in Lin, Branson J referred to the decision in Issa and distinguished it on the basis that, in the case before her, the evidence provided little, if any, support for the inference that the wife’s nephews would be willing to assist Mr Guo.  Her Honour then concluded, at [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.’

21                  With respect, I consider that the line of authorities discussed above correctly identifies that, in assessing whether subreg 1.15AA(1)(e) of the Regulations has been satisfied, a real conceptual distinction has to be drawn between whether the assistance can reasonably be obtained from relatives and whether it can reasonably be provided by relatives.  Whether something can be provided is a notion that is addressed from the perspective of the provider. Conversely, whether something can be obtained is addressed from the perspective of the person requiring what is to be obtained.  The language of subreg 1.15AA(1)(e) uses the word ‘obtained’ and therefore, in my view, it requires the question to be directed to the point of view of the person who needs the assistance.

22                  The significance of the distinction becomes apparent when one applies the concept of “reasonableness”, as subreg 1.15AA(1)(e) requires.  The structure of the paragraph entails that reasonableness must be assessed in light of the circumstances of the applicant, not of the relatives who might be proposed as being expected to provide the care.  It may be a reasonable expectation that members of a resident’s family will provide care in a particular case.  If, contrary to that expectation, a resident’s children refuse to provide the requisite care, that refusal may be unreasonable when viewed from the standpoint of the children.  A refusal by the available children to provide the care, even if unreasonable from that standpoint, cannot detract from the conclusion, from the standpoint of the resident, that he or she cannot reasonably obtain the care.

23                  In my view, the Tribunal has misdirected itself in the present case as to the appropriate test for the application of subreg 1.15AA(1)(e).  Specifically, the Tribunal has failed to draw the distinction between whether assistance can reasonably be provided and whether it can reasonably be obtained.  This is apparent from a reading of pars 42 and 43 of the Tribunal’s reason (set out at [8] above), where the Tribunal has clearly focused on whether it is reasonable to expect the members of the applicant’s family in Australia to continue to provide the care which he needs. This is illustrated by observations like “There are no special impediments that would prevent the families from helping, simply a preference to attend to their own family life and business affairs” and “It is reasonable to think that children, even when they have their own personal obligations and problems should readjust work and personal schedules and even place of residence, to assist their parents.”  I have not selected these examples in an over-zealous desire to detect error (as cautioned against in Minister for Immigration, Multicultural and Indigenous Affairs v Wu Shan Liang (1996) 185 CLR 259, at 271-272).  Rather, the Tribunal’s remarks clearly indicate that the Tribunal focused, when considering the evidence before it, on whether it was reasonable to expect the family already in Australia to provide the care required by the resident father.  On the other hand, I have not been able to discern in the Tribunal’s reasons an assessment of whether, from the father’s standpoint, it was reasonable for him to obtain the assistance of his relatives who were not minded or willing to provide it.

24                  The facts in this case are distinguishable from those in Issa.  In that case, the Court held that the Tribunal was entitled to, and did, find that, where the relatives could assist the resident, they would.  Therefore, the question of whether assistance could reasonably be obtained could be answered by assessing whether the assistance could reasonably be provided.  In the present case, on my reading of the Tribunal’s reasons, there was no evidence that the applicant’s relatives would provide assistance where they could.  On a beneficial reading of the Tribunal’s reasons, it may be inferred that the resident’s daughter, Sarojina Nand, would continue to provide assistance where she could do so.  However, the Tribunal held that the assistance could reasonably be provided by all the applicant’s relatives collectively, not just from Sarojina Nand, and there was no evidence before the Tribunal that the other relatives were willing to provide assistance.  By contrast, the facts of this case are more akin to those in Lin, where Branson J observed, at [31];

‘Mrs Lin Guo’s position appears to be different.  It 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.’

25                  It is necessary to refer only briefly to the Tribunal’s findings in relation to subreg 1.15AA(1)(e)(ii).  As I have pointed out at [9] of these reasons, the Tribunal seemed to suggest, in par 44 of its reasons, that assistance could also reasonably be obtained from welfare, hospital, nursing or community services, as contemplated by subreg 1.15AA(1)(e)(ii).  However, it is not clear whether this was a finding of fact that, independently of any assistance obtained from the applicant’s relatives, the applicant could reasonably obtain the required assistance from welfare, hospital, nursing or community services in Australia.  If there had been such a finding, the Tribunal would have been entitled to conclude that the applicant had not satisfied subreg 1.15AA(1)(e).  (See Issa, at [14].)

26                  However, I am not prepared to read the Tribunal’s reasons in this way.  Rather, in my view, the preferable inference is that the Tribunal held that the assistance required by the applicant could be obtained from welfare, hospital, nursing or community services in Australia only in conjunction with the assistance which it considered could reasonably be provided by the applicant’s relatives.  Therefore, if the finding that the applicant could reasonably obtain assistance from his relatives is infected by a jurisdictional error, the Tribunal’s findings in relation to subreg 1.15AA(1)(e)(ii) cannot prevail to preserve its decision from review.

27                  I accept the submission of the respondent that it is for the applicant to adduce evidence that assistance cannot reasonably obtained by relatives or appropriate community services (see Tran v Minister for Immigration, Multicultural and Indigenous Affairs (supra) at [25]).  However, in misdirecting itself as to the test required to satisfy subreg 1.15AA(1)(e), the Tribunal did not properly consider the evidence which had been adduced by the applicant.  Accordingly, the error of the Tribunal was not in making a finding of fact like that instanced in SFGB at [20] of its reasons.  Rather, the error involved misconstruing the criteria required to be satisfied by the visa applicant as conditions of obtaining the visa. Specifically, the Tribunal did not ask itself whether the evidence established that the applicant could reasonably obtain from his relatives the assistance he required.  The Tribunal failed to exercise the jurisdiction entrusted to it (see Rafiq at [13], citing Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [82]), and thus committed a jurisdictional error not protected by s 474 of the Act. 

Conclusion

28                  For the reasons which I have endeavoured to explain, the decision of the Tribunal made on 20 November 2003 must be set aside and the matter be remitted to the Tribunal, differently constituted, to be heard and determined according to law.  The respondent must pay the applicant’s costs, including any reserved costs.

Associate:

Dated:              21 December 2004