FEDERAL COURT OF AUSTRALIA

Sawpon v Minister for Immigration and Border Protection [2016] FCA 1461

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 29 July 2016. His Honour dismissed an application to review a decision of the Administrative Appeals Tribunal. The Tribunal had, on 31 March 2016, affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant an Other Family (Residence) (Class BU) Carer (subclass 836) visa to the appellant under s 65 of the Migration Act 1958 (Cth).

2    For the reasons that follow, the appeal must be dismissed with costs.

Overview

3    On 4 December 2014, the appellant lodged his application for the carer’s visa with the Minister’s Department in Sydney. The appellant was from Bangladesh, but was resident in Australia at the time that he made the application. The application was also made in respect of his wife and child as his dependents. Another child born after the application was made was subsequently added as another dependent. At the Tribunal review stage the part of the application pertaining to the appellant’s family was not pressed, leaving the appellant as the sole review applicant, although the Tribunal did also affirm the decision of the delegate not to grant visas to the appellant’s family.

4    The visa was sought to care for persons whom the appellant said were his uncle and aunt living in Australia, although the formal carer criteria were addressed only for the uncle as the appellant’s sponsor. Additional information set out in the application described the sponsor’s and his wife’s health needs. The application also made reference to the sons of the sponsor and his wife in Australia and why they could not provide the necessary care to their parents. One of those sons is a Mr Raymond Salomonn.

5    The criteria for the subclass 836 carer’s visa are contained in cl 836 in Schedule 2 of the Migration Regulations 1994 (Cth). That clause included the following as at the date of the delegate and Tribunal’s decisions:

836.21—Criteria to be satisfied at time of application

…

836.212

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

836.22—Criteria to be satisfied at time of decision

836.221

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

6    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.)

7    The criteria in issue in this case are those in reg 1.15AA(1)(e)(i), (e)(ii) and (f). In these reasons they will be referred to as paragraph (e)(i), paragraph (e)(ii) and paragraph (f).

Before the delegate and Tribunal

8    The Minister’s delegate refused to grant the visa sought by the appellant and his family by reason of the criteria in paragraph (e)(i) not being met. The delegate was not satisfied that the necessary assistance could not be provided by relatives of the sponsor uncle in Australia. The dominant reason for that conclusion was a lack of information or evidence to support the assertions in the written application. The delegate did not need to consider any other criteria because cl 836.221 had not been met.

9    On 1 July 2015, the appellant and his family applied for a review of the delegate’s decision by the Tribunal. The Tribunal conducted a hearing on 22 February 2016 at which the appellant and his cousin, the sponsor’s son, Raymond Salomonn, both gave evidence.

10    As noted above, during the Tribunal hearing the review application by the appellant’s family was abandoned, leaving him as the sole review applicant and therefore sole continuing visa applicant.

11    In affirming the delegate’s decision, the Tribunal was not satisfied that any of the criteria in paragraph (e)(i), (e)(ii) or (f) had been met. Failure to meet any of those three criteria was fatal to the success of the application. Accordingly, in order for the appellant to succeed in a judicial review of the Tribunal’s decision, the appellant had to establish jurisdictional error in respect of all three criteria, or overall in a way that infected all three.

12    In relation to paragraph (e)(i), the Tribunal found that the sponsor’s wife could reasonably provide only limited assistance to the sponsor because of her ill health. The Tribunal accepted that one of the sons of the sponsor and his wife was estranged from his parents and accordingly assistance required by the sponsor could not reasonably be provided by that son. However, the sponsor’s other son, Raymond Salomonn, lived with his parents and received a carer’s pension to look after them.

13    The Tribunal found that although Raymond Salomonn claimed to be seeking employment, there was no evidence before the Tribunal that he had applied for any jobs or was actively seeking employment. The evidence given by the appellant to the Tribunal was that Raymond Salomonn was on a carer’s pension, looking after his parents.

14    Claims made that Raymond Salomonn was suffering from depression and was unable to continue to care for his parents were not supported by recent medical evidence. To the contrary, such medical evidence as was provided indicated certain physical ailments, but there was nothing to indicate they would hinder his capacity to care for his father (the sponsor).

15    The reports provided to the Tribunal indicated Raymond Salomonn had been the carer of his parents for a number of years including at a time when he was diagnosed as suffering from stress and attention deficit hyperactive disorder. There was nothing to indicate he had not been adequately providing care to his parents over that period. Taking these and other matters detailed by the Tribunal into account, the Tribunal found that it would be reasonable for Raymond Salomonn to be able to provide a substantial amount of assistance to his father (the sponsor) which would amount to almost all of his care needs.

16    In relation to paragraph (e)(ii), the Tribunal also considered whether assistance could not reasonably be obtained from welfare, hospital, nursing or community services in Australia. The evidence of the appellant was that he was unaware of any attempts to obtain such services. Raymond Salomonn stated that no attempts had been made to obtain community services in Australia for the care of his father (the sponsor) since 2012. The Tribunal noted that there appeared to have been no attempt to obtain any limited welfare or community services to provide assistance to the sponsor. As there was no information before the Tribunal that any such attempts had been made, the Tribunal found that assistance for the sponsor could reasonably be obtained from those services. Although limited in nature, they would provide a significant part of any care needs for the sponsor.

17    The Tribunal was therefore not satisfied that assistance could not reasonably be provided by a relevant relative or obtained from welfare, hospital, nursing or community services in Australia, and therefore neither paragraph (e)(i) or (ii) had been met.

18    The Tribunal also considered the question of whether or not the appellant was willing and able to provide the assistance of the kind needed as required by paragraph (f) and concluded that he met neither limb. In reaching that conclusion, the Tribunal noted that the appellant had stated that he was required to work to be able to support his wife and children and would have to work full-time to be able to do so. He claimed that he would be doing this work at night and that as such that would not interfere with his capacity to provide substantial and continuing care for the sponsor. The Tribunal did not accept that if he was involved in full-time work, even if only at night, that he would be able to provide the sponsor the substantial assistance it was claimed the sponsor required. The Tribunal noted that if the appellant was working at night he would be required to sleep, which would be the time at which it would be expected that the sponsor would most need his assistance.

19    As there was no information that would indicate the sponsor or any other members of his family received any income apart from social security benefits, there was no information which would indicate that the sponsor or his family had any financial capacity to support the appellant and his family if they were living in Australia. In that regard, the Tribunal noted that when filing the review application, the appellant applied for a waiver of the filing fee on the basis of financial hardship.

20    The Tribunal also noted that the documents provided by the appellant after the hearing as to the medical condition of the sponsor and his wife did not indicate that he had been providing any care for them since he arrived in Australia. The Tribunal found that if the appellant had been willing and able to provide the sponsor the substantial and continuing assistance of the kind required by him, the current medical providers of the sponsor would have reported that the appellant was providing that assistance over the period since he filed his carer’s visa application and has been living in Australia.

21    The Tribunal also noted that it was only after the issue arose at the Tribunal hearing of whether the appellant would be willing and able to provide to the sponsor the substantial and continuing assistance of the kind needed that he took steps to withdraw his wife and children from the Tribunal review application.

22    In all the circumstances, the Tribunal was not satisfied that the appellant was willing and able to provide to the sponsor the substantial and continuing assistance of the kind needed. It follows that the Tribunal was not satisfied that the requirements of paragraph (f) had been met.

23    As the Tribunal was not satisfied that the criteria in paragraphs (e)(i), (e)(ii) or (f) had been satisfied, the Tribunal affirmed the delegate’s decision not to grant the carer’s visa.

Before the Federal Circuit Court

24    The application for review before the primary judge proceeded by way of an amended application, following leave to proceed upon that basis. Those grounds were reproduced in full at [16] of the primary judge’s reasons, but may be summarised as follows:

(1)    procedural unfairness by not informing the appellant about his representative, Raymond Salomonn’s, communication issues;

(2)    failure to assess Raymond Salomonn’s health issues properly;

(3)    failure to assess the sponsor’s wife’s health conditions properly;

(4)    incorrectly concluding that the appellant was unable and unwilling to care for the sponsor, his uncle, because of his intention to work in Australia; and

(5)    the Tribunal made an incorrect assessment of the sponsor’s wife’s ability to work based on her Centrelink payment type.

25    In relation to the first ground, the primary judge accepted submissions made by the Minister’s solicitor that the Tribunal’s decision was not affected by any unfairness in relation to the appellant’s cousin’s representation of him at the Tribunal hearing because those difficulties were properly taken into account in the Tribunal’s decision. His Honour observed that this is not a case of there being any fraudulent conduct by Raymond Salomonn, who was a struck-off migration agent, in assisting the appellant, although this arrangement was unsatisfactory. His Honour found that adverse findings by the Tribunal in relation to Raymond Salomonn being able to provide assistance were open on the material before the Tribunal, and accordingly ground 1 failed to identify any jurisdictional error.

26    In relation to grounds 2, 3 and 4, the primary judge noted that the Minister’s solicitor had characterised each as an attempt at impermissible merits review and effectively accepted that submission in respect of each of those grounds. In my opinion, that is a fair characterisation of each of those three grounds, especially having regard to the particulars set out in relation to each in the amended application. Each of those grounds was seeking a different factual conclusion, rather than raising any question of even legal error, let alone jurisdictional error.

27    In relation to ground 5, the primary judge accepted the Minister’s solicitor’s submissions that the Tribunal did not assess the aunt’s (sponsor’s wife’s) ability to work, but rather correctly focused on her ability to provide assistance to the sponsor. As noted above, the Tribunal found that she could only provide limited assistance. His Honour found that it was open to the Tribunal to take into account the Newstart allowance that the sponsor’s wife was receiving in relation to the finding as to limited assistance being able to be provided. In any event, his Honour concluded that nothing in ground 5 identified any jurisdictional error.

28    I am unable to find any error in the conclusions reached by the primary judge.

Before this Court

29    The notice of appeal to this Court contains three grounds as follows (reproduced verbatim):

1.    The Honourable Federal Circuit Court erred in failing to find that the second respondent failed to afford procedural fairness to the appellant.

2.    The Honourable Federal Circuit Court erred in failing to find that the second respondent failed to afford the appellant natural justice.

3.    The Honourable Federal Circuit Court erred in failing to find that the second respondent failed to disclose information to the appellant under s424A of the Migration Act 1958

30    No written submissions were provided by or on behalf of the appellant. At the hearing of the appeal, the appellant, who was assisted by an interpreter, declined an invitation extended several times to make any submissions or say anything he wished in support of his appeal. Counsel for the Minister had nothing to add to his written submissions.

31    Written submissions for the Minister correctly characterise each of the three grounds of appeal to this Court as being unparticularised. The Minister’s submissions correctly point out that each of grounds 1 and 2 is meaningless without particulars.

32    The Minister’s submissions further note that at the hearing before the primary judge, the appellant appeared for himself. The primary judge at [14]-[15] set out what occurred at the hearing on 29 July 2016. It is submitted by the Minister that there was nothing unusual or objectionable about the way in which the hearing was conducted before the primary judge and, in the absence of further particulars to grounds 1 and 2, both had to be rejected. In my opinion, that submission is also correct. An allegation of denial of procedural fairness or denial of natural justice, which amounts to the same thing in most judicial review cases, ordinarily cannot be advanced without explaining, with some precision, what it is that meets that description. There is nothing on the face of the material before me that enables such a conclusion to be drawn. Accordingly, grounds 1 and 2 must fail.

33    In relation to ground 3, the Minister’s submissions point out that s 424A of the Migration Act only applied to protection visa review proceedings before the Tribunal. However, even assuming that was meant to be a reference to the equivalent provision applying to non-protection visa applications, being s 359A in Part 5 of the Migration Act, there was no foundation for that complaint. There was no “information” that enlivened the Tribunal’s obligations under that provision. Once again, in the absence of further particulars to give some content to this ground of appeal, ground 3 must also fail.

Conclusion

34    As no appellable error on the part of the primary judge has even been identified, much less established, the appeal must be dismissed with costs.

Associate:

Dated:    6 December 2016