FEDERAL COURT OF AUSTRALIA

Nguyen v Minister for Immigration and Border Protection [2016] FCA 1460

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondents’ costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia on 18 May 2016, by which his Honour dismissed an application to review a decision of the former Migration Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal). The Tribunal had, on 24 June 2015, affirmed a decision of the delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant an Other Family (Migrant) (Class BO) Carer (subclass 116) visa to the appellant’s son, Mr Truong Chinh Nguyen (the visa applicant), and thus also not to grant visas to the visa applicant’s wife, three children and grandchild. For the reasons that follow, the appeal must be dismissed with costs.

2    At the commencement of the hearing of this appeal, and with the prior consent of the Minister conveyed by email to my Associate, I made orders that Ms Thuy Mong Linh Nguyen, the appellant’s youngest daughter, now aged 42, be appointed as his litigation representative. Ms Nguyen had also appeared on behalf of her father at the hearing before the Federal Circuit Court without objection.

Overview of the visa applied for and the criteria to be met

3    On 27 June 2013, the visa applicant and his family applied for visas on the basis that he was the carer of his father, Mr Van Tan Nguyen, the appellant before this Court. The appellant was the review applicant before the Tribunal, and the judicial review applicant in the Federal Circuit Court.

4    The criteria for the subclass 116 carer’s visa are contained in cl 116 in Schedule 2 of the Migration Regulations 1994 (Cth). That clause included the following as at the date of the Tribunal’s decision:

116.21—Criteria to be satisfied at time of application

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.

116.22—Criteria to be satisfied at time of decision

116.221

The applicant is a carer of the Australian relative mentioned in clause 116.211.

(Bold and italics in original.)

5    Regulation 1.15AA(1) of the Migration Regulations at the date of the Tribunal’s decision provided the relevant definition of “carer” 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:

(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

(ba)    the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

(c)    the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister for this paragraph; and

(d)    if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); and

(e)    the assistance cannot reasonably be:

(i)    provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

(ii)    obtained from welfare, hospital, nursing or community services in Australia; and

(f)    the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires.

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

(a)    it is a certificate:

(i)    in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and

(ii)    signed by the medical adviser who carried it out; or

(b)    it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures.

(3)    The Minister is to take the opinion in a certificate that meets the requirements of subregulation (2) on a matter mentioned in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer.

(4)    In this regulation:

Impairment Tables means the Tables for the Assessment of Work-related Impairment for Disability Support Pension in Schedule 1B to the Social Security Act 1991.

(Bold and italics in original.)

6    The key criteria for this appeal will be referred to in these reasons as paragraph (e)(i), paragraph (e)(ii) and paragraph (f).

7    The terms of paragraph (e) have been in their current form since 9 November 2009. Accordingly, authority dealing with reg 1.15AA(1)(e) prior to that date must be approached with caution.

Before the delegate

8    On 9 January 2014, the Minister’s delegate refused to grant the visas sought by the visa applicant and his family. The refusal of the visas turned on the delegate not being satisfied that the criteria in paragraph (e) had been met. The delegate did not consider the other applicable paragraphs of reg 1.15AA(1), including paragraph (f), as those paragraphs are conjunctive such that failure against any of them necessarily entailed a failure to meet the definition of “carer” and therefore failed to meet an indispensable requirement for the grant of the visa.

9    The appellant, who was the visa applicant’s sponsor requiring assistance, was born in Vietnam in 1931 and is an Australian citizen. The visa applicant, was, at the time of the delegate’s decision, a 47 year old man living in Vietnam. The visa applicant applied for the carer’s visa with the stated intention of permanently emigrating to Australia with his wife, three children and grandchild, to be the care provider for his father, the appellant.

10    The Minister’s delegate listed the names, dates of birth, ages, sex and relationship to the appellant of 13 family members already in Australia. Those family members included three daughters (at that time aged 39, 52 and 56), one son (at that time aged 58), three granddaughters (at that time aged between 22 and 27) and six grandsons (at that time aged between 18 and 36, one of whom was working in Singapore).

11    The delegate considered the position in relation to those 13 individuals. The decision record stated that the delegate could see no need for an additional family unit to migrate to Australia to provide care for the appellant. The delegate was not satisfied that the appellant’s everyday care needs could not reasonably be provided by his own immediate family members already living in Australia. Thus the delegate was unable to be satisfied that the criterion in paragraph (e)(i) was satisfied.

12    In relation to the alternative or additional basis for care, being that provided by welfare, hospital, nursing and community services, evidence was submitted to demonstrate that the appellant or his family had sought care from these services and was eligible for certain assistance packages or benefits. However, the decision record also noted a request being made by the Minister’s Department for evidence of investigation into services available to provide care, support or assistance to the appellant. The appellant had provided a written statement acknowledging that he was eligible for services but had declined certain of those services on account of care being promised by a family member during their trip to Australia from the United States. After the family member cancelled their trip to Australia, the appellant sought to access the services previously declined but was apparently informed that he would have to re-join a waiting list, as well as being informed by other care providers that he would have to wait to receive services.

13    The decision record states that no documentary evidence of any investigation into such services had been provided to the Department. The delegate was therefore not satisfied that these options for help had been fully investigated, finding that such services could potentially meet all care needs if they were accessed, or could potentially supplement the family care, or that they may not be required, given that there were 12 relatives in Australia who could assist with the provision of care. Thus the delegate was unable to be satisfied that the criterion in paragraph (e)(ii) was satisfied.

14    The delegate was therefore not satisfied that the requirements of paragraph (e)(i) or paragraph (e)(ii) had been met. Accordingly, the carer’s visa application was refused as failure to establish any of the criteria in reg 1.15AA(1) was fatal to the application.

Before the Tribunal

15    On 4 February 2014, the appellant applied for a review of the delegate’s decision to the Tribunal. On 27 April 2015, the Tribunal conducted a hearing during which evidence was taken from the visa applicant by telephone from Vietnam, from three of his sisters in Australia and from a brother in Australia. That is, the Tribunal heard evidence from all five adult children of the appellant, four of them living in Australia.

16    Amongst the evidence before the Tribunal was a certificate and report from a Dr N McNamara of Medibank Health Solutions dated 6 December 2012. Dr McNamara provided the certification necessary to meet the visa criteria requirements in reg 1.15AA(1)(b) and (2). The accompanying report provided a summary of clinical findings related to the appellant’s impairment. That summary also referred to other medical reports.

17    Dr McNamara described the appellant’s medical conditions as including early dementia, chronic dizziness/vertigo and a number of other serious medical conditions, resulting in the assignment of a 40 point impairment rating. The appellant was described as someone who could not be left unsupervised to complete his basic self-care needs, and for all of those and other reasons detailed in the report, fulfilled the criteria for needing a carer. It is important to note, in light of the submissions made on the appellant’s behalf in support of his appeal, that it is clear that the Tribunal specifically had regard to that certificate and report: Tribunal’s reasons at [3] and [28].

18    The Tribunal’s inquiry, once it was satisfied that the requirements of reg 1.15AA(1)(a), (b), (ba) and (c) had been met, and that (d) did not apply, focused on paragraphs (e) and (f).

19    The Tribunal summarised the evidence given at the hearing. In particular, the Tribunal recorded the evidence of the visa applicant that he did not speak English. His evidence, as recorded in the transcript of the Tribunal hearing, was (through an interpreter) “I only speak Vietnamese”, although he later said, “My English is limited but when I come over to Australia I will also try to study more English”.

20    The Tribunal considered the requirements of paragraphs (e) and (f) concisely under separate headings. The Tribunal correctly paraphrased the test under paragraph (e), as being a requirement:

… that the assistance cannot reasonably be provided by: any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia.

21    Each of [31] to [34] of the Tribunal’s reasons addressing this test makes reference to the notion of “provide” or “reasonably provide” assistance to the appellant.

22    With the exception of one of the sisters of the visa applicant (a daughter of the appellant), whom the Tribunal accepted gave convincing evidence at the hearing as to why she was not in a position to provide any assistance to her father, the Tribunal considered the situation was different with his other three adult children in Australia. The Tribunal noted that while none of these adult children claimed to be in a position to provide all of the assistance, they each gave evidence that they were able (although apparently not willing) to provide some assistance according to their respective health and work commitments.

23    The Tribunal also noted that the family gave evidence that they had applied for community assistance and the appellant was entitled to a high level of assistance. While the appellant did not wish to be placed in a nursing home, that did not mean that assistance at home was not appropriate. The Tribunal did not accept that the assistance could not be shared between a number of relatives and community services.

24    The Tribunal described this matter as being a good example of a case where a person requiring care has a number of relatives living close by and all of whom, apart from the daughter who gave convincing evidence to the contrary, could reasonably provide assistance. This was in addition to the fact that the appellant could reasonably obtain some community assistance. The Tribunal concluded that while no single relative in Australia could necessarily provide all of the assistance, assistance could reasonably be provided by a combination of relatives in conjunction with reasonably being obtained from community services. The Tribunal therefore concluded that the requirements of paragraph (e) were not met, in context a reference to not meeting the test reproduced at [20] above. The finding in relation to each of paragraph (e)(i) and paragraph (e)(ii) was fatal to the success of the carer’s visa application.

25    Turning to paragraph (f), the Tribunal noted that this required that the visa applicant was “willing and able” to provide to the Australian relative substantial and continuing assistance of the kind needed. The Tribunal noted that “willingness” was concerned with the visa applicant’s state of mind, whereas the issue of “ability” is an objective inquiry as to whether the visa applicant is a person who is suitable or fit to provide the assistance, citing Xiang v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 64; (2004) 81 ALD 301.

26    While the Tribunal accepted that the visa applicant was able to recite the appellant’s medical problems and was subjectively willing to provide all necessary assistance to his father, the same conclusion was not able to be reached in relation to the objective inquiry of him being able to do so. While the Tribunal accepted that the visa applicant was physically capable of providing some care such as assistance with tasks of daily living and noted that he had undertaken some aged care courses in Vietnam, a proportion of the assistance needed by the appellant included transportation. Moreover, the appellant was prone to fainting and required ongoing medical treatment. This and other components of the assistance required would entail communication with various health professionals and emergency services.

27    The Tribunal noted that the Federal Circuit Court in Pham v Minister for Immigration and Citizenship [2013] FMCA 29 found that it was open for a tribunal to take into account the ability of an applicant to drive the person in need of care to medical appointments where the applicant did not possess a licence and had no knowledge of local streets when considering ability to provide care of the kind needed. As noted above, during the hearing the visa applicant gave evidence to the effect that he was not fluent in English, as well as giving evidence that he could not drive a car. While documents provided to the Tribunal after the hearing indicated that he had completed a communication program in English proficiency, it was not clear from the certificate what level of English was required to have obtained it. In any event, the visa applicant made no claims, either in the written application concerning his language proficiency or at the hearing, that he had competent English. There was also no evidence that as at the date of decision he was able to drive a car, despite evidence of having started driving lessons a few weeks earlier.

28    The Tribunal noted that the visa applicant had five dependants being his wife, three children and a grandchild. He claimed that he would still be able to provide assistance to his father notwithstanding his family commitments. The visa applicant stated he would be financially supported by his children going to work.

29    The Tribunal concluded that the combination of the visa applicant’s lack of English, his lack of driving ability and his own immediate family responsibilities meant that he did not meet the requirements of paragraph (f). This finding was fatal to the success of the carer’s visa application independently of the fatal adverse findings in relation to paragraph (e)(i) and paragraph (e)(ii) referred to above.

30    On 24 June 2015, the Tribunal affirmed the delegate’s decision not to grant the visas sought.

Before the Federal Circuit Court

31    The application for review before the primary judge contained four grounds. Those grounds were reproduced in the primary judge’s reasons at [9] as follows:

1.    The Migration Review Tribunal Member quoted in the Decision Record at point 36 case Xiang v MIMIA [2004] FCAFC 64 and at point 39 Pham v MIAC [2013] FMCA 29 but this case is different as in FCAFC 64 the Federal Court of Australia remitted the matter to the Tribunal as the Tribunal made a finding that the applicant was not able. In this case the visa applicant is willing and is able to be a carer and the Tribunal ignored the visa applicant’s previous visit to Australia and the ability to look after the father and the fact now that he completed English course as well as undertaking driving lessons and the Tribunal failed to ask itself whether driving is a mandatory requirement and whether it was recommended by Medibank Health Solutions. The visa applicant’s evidence proved his ability and willingness to be a carer to his father and contrary to the Tribunal’s findings the visa applicant is capable of substantially meeting his father’s needs and the Tribunal failed to accept the visa applicant’s ability and willingness to do so.

2.    The Medibank Health Solutions quoted the serious medical condition of the review applicant and assigned a 40 point impairment rating and accepted that no one of family members is claiming carer allowance because there is no one who is available to take care on 24 hour basis 7 days a week. The Tribunal accepted the evidence yet failed to accept the visa applicant who is the only available carer who can dedicate his time, love and support to his father who suffers serious medical condition. The Tribunal assumed that family members can continue taking care of the seriously sick father and ignored his need for a full-time carer and the fact that the visa applicant previously took care of him.

3.    There is no evidence to support the Tribunal’s finding that the English language was required and driving licence is required because the father needs the love and support at home on full time basis and the visa applicant established his full knowledge of his father’s requirements yet the Tribunal ignored his ability and willingness without further investigation whether the sick father needs an expert to drive him or to speak English.

4.    The decision of the Tribunal is illogical and unreasonable compared to the evidence which supports the visa applicant and the transcript will be provided to the Honourable Court soon.

32    The primary judge dealt with those grounds as follows:

14.    In relation to ground 1, this appears to be an impermissible challenge to the adverse finding of the Tribunal in relation to the requirements of reg.1.15AA(1)(f). The adverse finding of the Tribunal was not made solely on the basis of the visa applicant’s inability to drive. It was a combination of matters as identified by the Tribunal. Equally, the visa applicant’s lack of facility with English was only one of the considerations taken into account by the Tribunal in that regard. The Tribunal indicated that it had also taken into account the family responsibilities of the visa applicant in relation to his wife, three children, and grandchild.

15.    There is no substance in the proposition that the Tribunal ignored any relevant evidence or that the adverse finding by the Tribunal was not open on the material before the Tribunal. The adverse finding in relation to the criteria under reg.1.15AA(1)(f) cannot be said to lack an evident and intelligible justification. Ground 1 fails to make out any jurisdictional error.

16.    Ground 2 is in substance an impermissible challenge to the adverse findings in fact made by the Tribunal that a combination of the relatives in Australia are able to provide assistance in accordance with reg.1.15AA(1)(e). That adverse finding was open and it cannot be said to lack an evident and intelligible justification. Ground 2 fails to make out any jurisdictional error.

17.    In relation to ground 3, for the reasons earlier identified, it was not just the limitations of the visa applicant’s English and driving that gave rise to the adverse finding. Ground 3 is an impermissible challenge to the adverse findings of fact made by the Tribunal. Ground 3 fails to make out any jurisdictional error.

18.    In relation to ground 4, the Tribunal’s reasons are orthodox and identify the relevant regulations applied. The findings were open on the material before the Tribunal and those findings cannot be said to lack a logical basis on the evidence before the Tribunal. There is no unreasonableness in the adverse findings made by the Tribunal. The submissions filed on behalf of the applicant asserted that the Tribunal misunderstood the evidence or asked the wrong question.

19.    There is nothing on the face of the Tribunal’s decision to support that the Tribunal misunderstood the evidence nor is there anything to establish that the Tribunal asked itself the wrong question. The submissions also suggest that the Tribunal made an erroneous assumption. That proposition is in essence an impermissible challenge to the adverse finding of fact by the Tribunal in relation to the criteria that had to be met under reg.1.15AA(1)(f).

33    The reasons given by the primary judge are more in the nature of conclusions. It undoubtedly would have been better to have provided a clearer basis for those conclusions. However, no express point was taken about sufficiency of reasons, and the paucity of the reasons was to a fair extent compensated for by the quality of the Tribunal’s reasons.

Appeal to this Court

34    The notice of appeal filed within time in this Court on 3 June 2016 provided the following grounds of appeal:

1.    His Honour Judge Street failed to consider the evidence before him which includes a long submission submitted in Court, a copy to the Australian Government Solicitors.

2.    Until now I have not received a judgment in order to respond to particulars.

3.    The Order of His Honour is unreasonable.

35    On Monday, 31 October 2016, the appellant filed a “notice of acting – appointment of lawyer” form and a covering letter which stated that both solicitors and counsel had been briefed by the appellant. I note that the solicitor on record for the appellant is the same solicitor listed on the visa applicant’s visa application lodged on 27 June 2013.

36    On Thursday, 3 November 2016, the day before the hearing and one week after the Minister’s written submissions had been filed, the appellant filed a document with the Court indicating that the appellant wished to raise new grounds of appeal at the hearing. The document was received by the Court as correspondence only pending submissions from the parties, including the views of the Minister, as to whether leave should be granted to file an amended notice of appeal in the proper form in accordance with the proposed grounds. Also on 3 November 2016, the appellant filed a solicitor’s affidavit that annexed the transcript of the hearing before the primary judge.

37    At the hearing, the appellant sought to move on the three grounds of appeal included in the document provided the previous day, which provided extensive particulars written in the form of submissions. The Minister consented to a truncated version of proposed grounds 1 and 3 (which were acknowledged by the Minister to be a re-argument of what was put in the Court below), but sought an adjournment of the hearing of the appeal to deal with those new grounds.

38    Because those grounds covered somewhat similar territory to the grounds advanced before the primary judge, albeit with greater detail and somewhat different arguments (there having been no legal representation before the primary judge), and because the appellant faced financial difficulty in affording a further hearing day with counsel if the matter was to be adjourned, I determined that any prejudice to the Minister could be met by allowing a short period of one week for any further written submissions by the Minister, with one week for any response by the appellant. Leave was therefore granted to the appellant to rely upon a truncated version of those two new grounds as was clearly explained to counsel for the appellant at the hearing. Orders were made to file an amended notice of appeal accordingly.

39    The Minister opposed the grant of leave for the second proposed ground of appeal, principally upon the basis of there being insufficient prospects of success and also on the basis of the ground being new in the sense of not having been advanced in the Court below. Reliance was placed on a very helpful summary of the relevant principles by Perry J in Hossam v Minister for Immigration and Border Protection [2016] FCA 1161 at [38]-[43]. In particular, her Honour referred at [40] to the established principle that where there is no adequate explanation for the failure to take the point in the Court below and it seems of doubtful merit, leave should generally be refused.

40    I allowed counsel for the appellant to address me on that proposed ground in the course of addressing the grounds upon which leave had been granted. After doing so, I formed the view that there was no merit in the proposed ground and therefore insufficient prospects of success to justify the grant of leave to advance a ground of appeal for the first time in this Court. I therefore upheld the Minister’s objection and refused leave to rely upon that further ground. The reasoning in support of that conclusion is set out at the end of these reasons.

41    Initially an amended notice of appeal was filed which exceeded the leave granted. That was subsequently rectified at the request of the Court. The amended notice of appeal ultimately filed on 18 November 2016 (i.e. after the hearing concluded but reflective of the grounds which were pressed at the hearing and for which leave was granted), stated the following grounds (emphasis in original):

Ground 1: Jurisdictional Error – Failure to address and register findings on an integer of the Appellant’s claim.

PARTICULARS

The Court erred in not considering, addressing or making a finding on an integer of the Appellant’s claim in Ground Two of the Appellant’s application in the lower court, namely the Appellant’s contention that “The Tribunal assumed that family members can continue taking care of the seriously sick father”

Ground 2 [formerly proposed ground 3]: Jurisdictional Error – Failure to consider Appellant’s claim and evidence

PARTICULARS

The lower court erred in failing to find that the Tribunal erred in arriving at its conclusion [at 42] that the visa applicant did not meet the requirements of reg.1.15AA(1)(f) of the Regulations in that:

(a)    the Tribunal failed to address the visa applicant’s evidence [Exhibit C] that he had spent 6 months in Australia in 2010 and during that period, he had successfully taken care of his father and provided assistance;

(b)    there was no evidence to support the Tribunal’s finding that the visa applicant could not support his family as well as undertake the role of carer for his father;

(c)    the Tribunal failed to consider the Visa Applicant’s evidence [at Exhibit C] that he intended to sell his home in Vietnam and was financially viable to take care of his family and take on the role of carer for his father.

Ground 1

42    This ground essentially addresses and re-agitates ground 2 before the primary judge. In that regard, counsel for the appellant in this Court relied upon written submissions before the primary judge which were marked by his Honour as “Exhibit E”. Essentially, this was an argument that the conclusions reached by the Tribunal in [33] of its reasons about the ability of each Australian family member to provide an amount of assistance to the appellant had been reached in error.

43    This ground was supported by reference to various parts of the evidence by which it was asserted that the testimony of the family member witnesses before the Tribunal did not support the conclusions reached by the Tribunal at [33] to the effect that they gave evidence that they were able to provide some assistance. Having compared the transcript of the evidence given with the summary provided in the Tribunal’s reasons, I am unable to accept that is correct. The Tribunal’s conclusions at [33] were fairly open to it. This aspect of this ground must fail.

44    The appellant’s misconceived factual case on this ground is exacerbated by the fact that his legal case is also entirely misconceived. The argument advanced relied upon previous decisions of this Court in Issa v Minister for Immigration and Multicultural Affairs [2000] FCA 128 at [12]-[13], which was followed in Rafiq v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 564 at [10]-[12], and referred to (but distinguished) in Naidu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1692; (2004) 140 FCR 284 at 292 [17].

45    Each of the three cases of Issa, Rafiq and Naidu, decided in 2000 and 2004, relies upon a form of paragraph (e) that used to be cast in very different terms. That can be readily seen by an examination of the terms of paragraph (e) reproduced in Naidu at 288 [6]. At that time, the regulation stated that “the assistance cannot reasonably be obtained” from a relative of the person in need of care or from welfare, hospital, nursing or community services in Australia. Each of those three decisions turned on the meaning of “obtained” in relation to assistance from relatives. There is a significant legal distinction between “obtained” as used in relation to assistance from a relative and “provided” as it now appears (and has since 9 November 2009) in paragraph (e): “… the assistance cannot reasonably be: (i) provided by any other relative of the resident …”.

46    The reasoning in the prior cases is illuminating as to the distinction. In Issa, it was stated:

12    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.

47    In Rafiq, it was stated:

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.

(Emphasis in original.)

48    In Naidu, it was said at 292:

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.

49    After discussing Rafiq and another case of Lin v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 606; (2004) 136 FCR 556, it was stated in Naidu at 293:

21    With respect, I consider that the line of authorities discussed above correctly identifies that, in assessing whether reg 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 reg 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 reg 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.

(Emphasis in original.)

50    The net effect of paragraph (e) as it existed in the previous format relying on the term “obtained” is that it was previously open to family members in Australia, although perfectly capable of reasonably providing assistance, to decline or refuse to do so. If so, it could not be said that such assistance could reasonably be “obtained”.

51    Regulation 1.15AA has undergone significant amendments in the period between the time that Issa was decided and as recently as 10 September 2016. The change of the test from “obtained” to “provided” was made by the Migration Amendment Regulations 2009 (No. 13) (Cth): see Sch 3 items 2, 3 and 4, which commenced on 9 November 2009. The Explanatory Statement for that amendment included the following in relation to that change:

The purpose of this amendment is to ensure that it is open to decision-makers to conclude that assistance could reasonably be provided by relatives residing in Australia even in circumstances where those relatives residing in Australia claim to be unwilling or unable to provide assistance.

52    Counsel for the Minister made clear oral submissions at the hearing and provided concise and helpful further written submissions (by the leave mentioned above) on the importance of the legislative change to paragraph (e).

53    The further written submissions provided by counsel for the appellant (by the leave mentioned above) acknowledged the correct version of paragraph (e), the context provided in the Explanatory Statement and the shift from a more subjective test to an objective test. However, in substance, the first part of those further submissions on ground 1 continued to argue the appellant’s case on the basis of the long-repealed version of paragraph (e) by suggesting that there was an obligation on the part of the Tribunal to have given consideration to the repealed and therefore incorrect test of “obtained” as against the present test, said by counsel for the appellant to be raised as the “Distinction Issue”. I am unable to accept that there was any obligation on the Tribunal to have any regard to a test that no longer existed. The obligation of the Tribunal was to have regard to the current test, which is precisely what took place.

54    A second aspect of the further submissions by counsel for the appellant on ground 1 was no more than a challenge to the factual findings made by the Tribunal as to whether it was reasonable for the appellant’s family members in Australia to provide assistance. That is plainly nothing other than impermissible merits review.

55    A third aspect of the further submissions by counsel for the appellant on this ground was to argue that because the test in paragraph (e) is cast in negative terms, viz “the assistance cannot reasonably be: (i) provided…”, the Tribunal erred by having any regard to whether the assistance could reasonably be provided by the appellant’s family members in Australia. Reliance was placed on a decision of the Federal Circuit Court of Australia in Anveel v Minister for Immigration and Border Protection [2013] FCCA 2181 at [62] where it was stated:

It is important to note that the relevant test at reg. 1.15AA(1)(e)(i) of the Regulations is stated in the negative. It is not whether the care “can” be “provided”, it is whether it “cannot” be provided by the Australian relatives. The focus of the Tribunal therefore must be on the reasons as to why the relatives cannot provide the care.

56    The problem with this submission is twofold. First of all, the undoubted requirement to focus on the test framed in negative terms does not deny the Tribunal having regard to which family members can provide assistance in addressing that test. The second problem is that it is clear that the Tribunal did have regard to the negative test as required, and once again the arguments to the contrary amounted to no more than merits review. Reference to the capacity of relatives living close by who could reasonably provide assistance was considered in the context of the Tribunal’s conclusion at [33] that it did not accept that assistance in the appellant’s case “cannot be shared between a number of relatives and community services” (emphasis added).

57    The success of the appellant’s legal argument depends in significant measure on language in paragraph (e) that has not existed for over seven years. The balance of the argument depends upon misreading the Tribunal’s reasons and engaging in a process of impermissible merits review. It follows that this ground of appeal must fail.

Ground 2

58    This ground, although dressed up in the language of jurisdictional error, once considered carefully, is in truth a reasonably blatant attempt at impermissible merits review. It essentially takes issue with various factual findings made by the Tribunal and attempts to characterise them as being infected not just with factual error or legal error, but with jurisdictional error. In my view, the three particulars advanced in support of this ground each fail at the first threshold in that no factual error is established let alone any legal error. There is nothing factual or legal to support anything remotely approaching jurisdictional error in ground 2.

59    Amongst the evidence that was before the Tribunal and also before the primary judge (marked Exhibit C) was a letter from the visa applicant to the Tribunal which, in addition to providing some background detail of his father’s history and family circumstances in Australia, also detailed a six-month period that he had spent in Australia caring for his father and also made reference to planning to sell his family home in Vietnam. That letter is specifically referred to in the Tribunal’s reasons at [26], although it does not appear that the Tribunal regarded any part of it as being of sufficient moment to refer to its contents. The reason for that is readily apparent. Much of the visa applicant’s letter addressed the care the appellant needed and the care that he had given to the appellant when he was in Australia, so provided more detail of the matters about which he had given evidence at the Tribunal hearing. The Tribunal did not doubt that the appellant needed care, or that the visa applicant was willing to give the assistance required; its concern was whether he was able to provide the level of care required, having regard to a want of English language and driving skills and his competing immediate family commitments.

60    It is plain from the Tribunal’s reasons at [23] that the member had regard to the care that the visa applicant had given to the appellant during the time that he had been in Australia as specific reference was made to the tasks that the visa applicant had carried out for his father, albeit by reference to his evidence at the hearing rather than by reference to the additional detail contained in the visa applicant’s letter. In those circumstances, the appellant is unable to establish that the Tribunal went further than not seeing a need to repeat what had already been given in evidence, and not attaching substantial weight to the parts of the letter that contained new information that did not sufficiently address the Tribunal’s concerns. This did not entail overlooking an integer of a claim. The authorities pointed to by counsel for the appellant in her further submissions did not overcome this. In the cases referred to by counsel for the appellant, a conclusion was able to be reached not merely that weight had not been attached to particular material, but that, being central to a claim, it had not been considered at all. That conclusion is not available in this case.

61    It is clear that the issue for the Tribunal was not the capacity of the visa applicant to provide the direct personal care that was needed, but rather what it regarded, legitimately in my view, as important collateral requirements to providing the care required, such as driving and communicating in English with health professionals. The Tribunal was also concerned about the visa applicant’s competing obligations in that he would also have to provide for his own family (noting that the care provided by the visa applicant to his father during the six-month period was in circumstances in which he came to Australia alone, having left his family behind). Thus there was a sound basis upon which the Tribunal could take into account the visa applicant’s additional family responsibilities in competition with being able to care for the appellant.

62    The Tribunal did not have to take into account in its reasons specifically the evidence that the visa applicant merely said he intended to sell his home in Vietnam. In any event, there was no information provided as to how much would be realised from that intended sale, so the Tribunal was not in any position to know whether this would make him sufficiently financially able to take care of his family as well as taking on the role of carer for the appellant. The Tribunal was entitled not to refer to that bare statement of intention in its reasons.

63    The Tribunal was not required to have particular regard to any aspect of the evidence before it unless it went beyond fact-finding and constituted an integer of the claims made which were required to be addressed. None of the evidence in the letter from the visa applicant went beyond evidence in support of the assertions made about his capacity to care for his father.

64    It was open to the Tribunal to conclude that the visa applicant was not able to provide the overall level of care required by a combination of features, being his own dependants, his inability to speak English fluently and his lack of driving ability.

65    It follows that this ground of appeal must fail.

Reasons for refusing leave to rely upon a proposed new ground of appeal

66    As noted above, leave was not granted to the appellant to rely on an additional proposed ground of appeal going beyond the matters that were raised in the Court below. As also noted above, I indicated to counsel for the appellant that I would hear submissions and consider granting leave in relation to a truncated form of what was sought to be relied upon in the following terms:

Jurisdictional Error – Unreasonableness in Conclusions as to Satisfaction of Particular Matters

PARTICULARS

The lower court erred in not finding that the Second Respondent erred by making a finding inconsistent with a previous finding, failure to register a finding in respect of a legislative requirement and engaging in unreasonable and illogical reasoning in making conclusions, leading to a constructive failure to exercise jurisdiction, amounting to jurisdictional error.

67    The submissions in support of this proposed ground contended that there was an inconsistency between [31] and [33] of the Tribunal’s reasons. However, it is apparent that that asserted error does not exist but rather arises from a misreading of each of those paragraphs. Contrary to the submissions made on behalf of the appellant, [31] does not involve the Tribunal accepting that each of the relevant relatives had given “evidence” as to why they could not reasonably provide any assistance to the appellant. Rather, [31] records that each of those relatives had given reasons as to why they reasonably (but subjectively) could not do so, and [33] is the point at which the Tribunal explains why the reasons given were not accepted.

68    It was further submitted that the Tribunal was required to consider the nature and scope of medical assistance required as outlined in the Medibank Health Solutions report prepared by Dr McNamara and assess the extent to which the appellant could not “reasonably obtain” the requisite assistance from any of the children. For the reasons set above, this submission proceeds upon the same mistake as ground 1 by stating the wrong test of “obtained” rather than the correct test of “provided”.

69    It was further asserted that a finding by the Tribunal that assistance could be shared between a number of relatives and community services did not state specifically that the requirement in paragraph (e)(i) had not been satisfied. In my view, that is legally and factually incorrect. The test in paragraph (e) was whether the assistance could not reasonably be provided by relatives “or” obtained from welfare, hospital, nursing or community services in Australia. The proper way to read the word “or” is so that the assistance can be provided by relatives, obtained from community sources or sourced respectively from a combination of the two. There was no error in the Tribunal proceeding in the way that it did.

70    The suggestion that the finding of the Tribunal at [33] does not address the legislative requirement in paragraph (e) to consider and state its findings as to whether the requisite assistance cannot reasonably be provided by relatives or obtained by the appellant from community sources is similarly not made out.

71    The balance of the submissions made on this proposed ground of appeal attempted to elevate disagreements with factual findings made by the Tribunal in a manner that was reasonably open to it into legal findings. There is no proper basis for asserting that there was anything unreasonable at all in the approach taken or conclusions reached by the Tribunal, let alone that degree of legal unreasonableness required to amount to jurisdictional error: see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332.

72    Leave was therefore refused to rely on this proposed ground as it had no reasonable prospect of success.

Conclusion

73    As both grounds of appeal have failed, the appeal must be dismissed with costs.

Associate:

Dated:    6 December 2016