FEDERAL COURT OF AUSTRALIA

Jung v Minister for Immigration and Border Protection [2017] FCA 173

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellants are to pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

1    The First Appellant, Mr Hyunil Jung, is the husband of the Second Appellant, Ms Youngja Youn.

2    In August 2010 the Appellants applied to what was then the Department of Immigration and Citizenship for carer visas on the basis that they were to care for the First Appellant’s mother in Australia.

3    A delegate of the Minister refused that application in November 2012. The delegate concluded that cl 836.221 of Sch 2 to the Migration Regulations 1994 (Cth) (the “Migration Regulations”) had not been met. The Appellants then applied to the former Migration Review Tribunal for review of that decision. That Tribunal affirmed the delegate’s decision in June 2014.

4    The Appellants then applied to the Federal Circuit Court of Australia seeking judicial review of the Tribunal’s decision. That Court dismissed that application in May 2016: Jung & Anor v Minister for Immigration & Anor [2016] FCCA 1026.

5    The Appellants now appeal to this Court. Before this Court they were represented by Counsel; the Respondent Minister was also represented by Counsel.

6    The appeal is to be dismissed with costs.

Clause 836.221

7    Clause 836.221 of Sch 2 to the Migration Regulations requires an applicant to be the “carer of a person…”.

8    Regulation 1.15AA(1) relevantly defines a “carer” as follows:

(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

…

(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.

The claims as made and resolved by the Tribunal

9    Of present relevance is the fact that the Applicant son maintained before the Tribunal that in Korean culture it was the responsibility of the eldest son to assume responsibility for an aged parent and it was to be expected that the daughter-in-law would provide help.

10    The son’s Statutory Declaration that was before the Tribunal thus stated in part as follows (without alteration):

I am willing and able to provide appropriate care to my mother.

I am the eldest son and it is a Korean tradition and culture that the eldest son and his wife are expected to look after elderly parents. My sister, Gyeong Hee STROUD is an Australian Citizen who has been looking after my mother occasionally before I came to look after my mother. My mother’s care is needed more frequently and longer, my sister has been unable to provide care to my mother, because she suffers from breast cancer and on her cancer treatment. In addition, her husband, Eddie has also health problems that she needs to care. More importantly, her son, Matthew has caused lots of problems to her and her family so she has been under lots of pressure and worries for her son.

The claim was also made as follows in a report from a social worker, which was also before the Tribunal:

Due to the high care needs of [the mother], on two occasions her eldest son, Hyunil Jung, has come from Korea to provide full time care. Within Korean culture, it is traditional for the eldest son to assume the responsibility and care of an elderly parent, therefore, Hyunil Jung is evidently the most appropriate person to care for Mrs Yoon. From medical information provided, it is also evident that this is most beneficial to Mrs Yoon, as it has a positive effect on her mood. At the family’s expense, Mr Jung has flown backwards and forwards between Korea and Australia to provide this care.

11    A further aspect of the claim made before the Tribunal was that the son was willing to provide the support for his aged mother and that such residential care as could be provided for his mother by a “low residential care facility” would not be in her best interests.

12    In support of this concern was a detailed report prepared by Dr Nguyen, a Consultant Geriatrician. In the report’s concluding paragraph, the doctor stated that it “seems appropriate to have a family member to support Mrs Yoon with her current physical and emotional needs”.

13    The reasons provided by the Tribunal as to the manner in which it resolved these claims (and the other claims advanced on behalf of the Appellant son) were as follows (without alteration):

42.    After a short adjournment to consult with their representative, the representative said that the sponsor lives in the Parramatta area and attends Westmead Hospital, and there are not the facilities in the area. One place, Windemere, which does cater for Korean people, does not have vacancies at the moment. The visa applicants have not extended the enquiries to the extended area which the Tribunal had indicated and will make these enquiries. Also, in relation to the assistance the sponsor’s daughter and granddaughter could provide, such as with transport, this is difficult as the granddaughter does not speak Korean at all and so this would cause difficulties with assisting. The Friday and Saturday Church activities are from 6-9pm and the daughter finishes work around 5.30pm and it would sometimes be difficult to meet the commitment to transport.

43.    The representative stressed that culturally it is expected that the eldest son would take responsibility for aged parents and it is expected that daughters in law would provide help, which is what the second applicant has done. There is no direct responsibility on her but there is an expectation. The representative said that the applicant did the heavy lifting of equipment for the sponsor, such as her walking frame.

44.    The representative said that the applicant could work flexible hours; also, whatever the arrangements were, he would be the one who, as her son, had the responsibility for the sponsor’s care.

45.    Following the hearing, then applicant’s representative sent further information to the Tribunal. In a written submission, she stressed the sponsor’s deep commitment to her Church and that she needs one person’s assistance to mobilise with her walkers. The representative submitted that the sponsor is mentally alert and that if she is unable to exercise her mental ability as she does through these Church activates, she is likely to sink further into depression and become psychologically distressed.

46.    The representative also submitted that the sponsor’s daughter had made further enquiries about residential care and she provided emails from four such places, which have been carefully considered.

47.    Based on the evidence before it, the Tribunal is of the view that the relatives in Australia cannot provide the full-time care required. The sponsor’s grandson is estranged from the family. However, the sponsor’s daughter and granddaughter are in a position to provide some assistance, such as with transport and doctor’s appointments on a reasonably regular basis. This would include providing transport to Church if required.

48.    In relation to the assistance which could reasonably be obtained from welfare and other services, the Tribunal is satisfied that the sponsor has been approved for high care residential care on a permanent basis and this approval is on-going. She can access this care when any suitable vacancy becomes available and there is no information that such a vacancy will not become available. There are no financial barriers to her obtaining this care. There are also facilities which provide care for people of Korean background and which provide Korean speaking staff and culturally appropriate meals.

49.    The Tribunal is mindful of the sponsor’s deep commitment to her Church. It is also mindful that these Church activities provide mental stimulation and psychological benefits to her. The Tribunal accepts that residential facilities cannot necessarily provide the transport and assistance with mobility which the sponsor needs. However, as noted previously, her daughter and granddaughter would be able to provide such assistance on a fairly regular basis between them. The Tribunal is of the view that the granddaughter’s lack of Korean language skills would not be a barrier to her assisting in this way; and that the daughter would be able to provide the assistance after she finishes work.

50.    The sponsor is reluctant to live in a residential facility and the submission is that a course would exacerbate her depression and cause psychological issues for her. However, it is of the view that this is speculative; there is no independent information to indicate that this would be the likely outcome.

51.    Given these factors, the Tribunal is not satisfied that the assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(c) are not met.

The Tribunal then directed its attention to reg 1.15AA(1)(f) and found as follows (without alteration):

52.    For completeness, the Tribunal also considered the further requirements for the grant of the visas.

53.    Regulation 1.15AA(1)(f) requires that the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed. In addressing this criterion, it should be noted that ‘willingness’ is concerned with the applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.

54.    The terms ‘substantial and continuing assistance’ has not been directly considered in this context, but has been the subject of judicial consideration in the context of the definition of ‘special need relative’ in r.1.03. In Perera v MIMIA [2005] FCA 1120, the Court held that the term ‘substantial’ is directed to the level of assistance and the term ‘continuing’ is directed at the duration of the assistance and that it is a composite phrase, in the sense that its two elements are cumulative. Although the comments in this case were not made in the context of the definition of ‘carer’, the Tribunal considers them to be of assistance when considering that definition.

55.    As indicated, the Tribunal is satisfied that the first visa applicant is able and willing to provide the assistance the sponsor required. The issue is whether this is “substantial and continuing assistance”. The information provided by the visa applicants is that the first visa applicant would have to work, at least part-time, for financial reasons. There would therefore be regular periods of time when he was not able to provide any assistance. Further, the information concerning the actual care provided at this time shows that the second visa applicant provides at least half the assistance required; possibly more. She does the majority of the personal care such as toileting, dressing, mobilising of the sponsor. She also does her cooking and takes her for outings, including to Church with the first visa applicant. The Tribunal is of the view that it is the second applicant who does the greater proportion of caring and that, when the first visa applicant were to go out to work this proportion would increase.

56.    The Tribunal finds that the review applicant is not willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and therefore does not meet the requirements of r.1.15AA(1)(f).

The Grounds of Appeal – general principles

14    The Grounds of Appeal as filed in this Court in June 2016 set forth 7 Grounds.

15    A recurring theme underlying many of the Grounds of Appeal was the repeated contention that the Tribunal had failed to take into account or failed to properly taken into account the claims made. Particular passages from the claims made were seized upon by Counsel for the Appellants and the submission thereafter developed that the failure on the part of the Tribunal to expressly deal with such matters was tantamount to a failure to consider the claim.

16    In resolving these submissions it is prudent at the outset to set forth, albeit in very summary form, a number of generally accepted principles.

17    It is unquestionably the case that a failure on the part of an administrative decision-maker to deal with a claim raised by the evidence and the contentions advanced for resolution may constitute jurisdictional error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [63], (2004) 144 FCR 1 at 20 to 21 per  Black CJ, French and Selway JJ; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [45], (2003) 236 FCR 593 at 604 per French, Sackville and Hely JJ. So, too, may a failure on the part of an administrative decision-maker to deal with a particular piece of evidence found an argument that the decision-maker has fallen into jurisdictional error: MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94 at [26] per Black CJ, Sundberg and Bennett JJ.

18    But considerable care should be taken before concluding that a particular claim or contention has not been taken into account – and even greater care before concluding that a particular piece of evidence has not been taken into account – such that the decision-maker has fallen into jurisdictional error. In the latter case, it may well be that the failure to consider a particular piece of evidence may only lend support to a proposition that an integer of a claim or submission has not been properly taken into account.

19    To recognise that there has been a failure to take into account a particular piece of evidence, it is respectfully considered, is not to ignore the fact that a Court should constantly keep in mind the difference between a failure to consider an integer of a claim or a submission which has been made and a failure to take into account a particular piece of evidence. The difference may in some cases be difficult to discern, but the difference remains.

20    In many cases, and the present is but a further example, it may be unclear whether evidence has been properly taken into account. In some cases it may not be sufficient for a decision-maker to simply refer to a submission which has been made, albeit a submission well founded upon the available evidence to be taken into account and evaluated by the decision-maker. In many cases it is preferable for a decision-maker expressly to refer to the evidence upon which a submission is advanced; to do so not only removes any ambiguity as to whether that evidence has been taken into account, it also provides considerable comfort to a claimant that his case has been properly considered. To fail to expressly refer to evidence, particularly evidence which is of central importance to a claim being made, assumes particular significance upon an application for review. There remains, of course, no necessity for an administrative decision-maker to expressly refer to every item of evidence placed before him, no matter how remote its relevance or importance to the issues to be resolved. Much depends upon the importance of the evidence to the issues to be resolved: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, (2003) 236 FCR 593 at 604. French, Sackville and Hely JJ there observed:

[46]    It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact … and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason …

See also: Minister for Immigration and Multicultural and Indigenous Affairs v W306/01A [2003] FCAFC 208 at [45] per French and Hill JJ. Similarly, in Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294, Allsop J (as his Honour was then) said that Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, (2001) 206 CLR 323:

[57] … does not stand for the proposition that a relevant consideration has not been taken into account and the decision-maker thereby has failed to embark on or complete his or her jurisdictional task merely because some piece of evidence which the court thinks is relevant in the evidential or probative sense can be seen not to have been weighed or discussed. “Relevant” for this purpose means that the decision-maker is bound by the statute or by law to take this into account.

His Honour repeated much the same proposition as follows in Minister for Immigration and Multicultural and Indigenous Affairs v NBDS [2006] FCA 265, (2006) 90 ALD 614:

[21]    … the Tribunal is not obliged to refer to every piece of evidence or to give a line by line refutation of evidence. …

See also: Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at [29] per Cooper and Finkelstein JJ.

21    It is against this background that the Grounds of Appeal are to be resolved.

The first Ground of Appeal – The taking into account of the claim & evidence

22    The first Ground of Appeal is expressed as follows:

The primary Judge erred in drawing the inference that the Tribunal took into account the evidence and claim that in Korean culture the eldest son takes responsibility for the care of the aged parent in reaching its conclusion that the requirements of reg.1.15AA(1)(e) of the Migration Regulations 1994 were not met.

23    The first Ground of Appeal, as drafted, focusses attention upon whether the Tribunal “took into account the evidence and claim that in Korean culture the eldest son takes responsibility for the care of an aged parent”.

24    In advancing that matter as a matter to be taken into account by the Tribunal, the Appellant son relied (inter alia) upon:

    his statutory declaration; and

    the report of Dr Nguyen.

25    The sole consideration given to this claim and evidence is to be found at paras [43] and [44] of the Tribunals reasons for decision.

26    Counsel for the Appellants placed at the forefront of his submissions the contention that:

    the Tribunal had failed to actively engage in any analysis of the evidence and the claims made.

By way of an expansion upon this contention, Counsel for the Appellants contended that:

    the issues raised in para [42] of the reasons for decision were addressed by the Tribunal at paras [48] and [49] of its reasons; and that

    the issues raised in paras [45] of the reasons for decision were addressed by the Tribunal at paras [49] and [50] of its reasons

but that:

    the issues raised in paras [43] and [44] of the reasons for decision were not addressed at all in any later paragraph of the reasons for decision.

27    Counsel for the Respondent Minister maintained that the last contention was misplaced because:

    the Tribunal addressed and resolved the requirements imposed by reg 1.15AA(1)(e)(i) at para [47] of the Tribunal’s reasons for decision; and that

    the issues raised in paras [43] and [44] of the Tribunal’s reasons for decision and the requirements imposed by reg 1.15AA(1)(e)(ii) were addressed in para [48] of the Tribunal’s reasons for decision.

28    During the course of oral submissions, it thus quickly emerged that the impasse between the parties focussed upon whether the Tribunal had at para [48] of its reasons for decision properly taken into account the submission at para [43] as to the expectation in Korean culture that the eldest son would assume responsibility for an aged parent.

29    At least two possibilities emerged during the course of oral submissions, namely:

    paragraph [48] adequately addressed the submission and the evidence relied upon at para [43]; or

    paragraph [48] sought to address the submission and evidence relied upon, but failed to adequately explain the basis upon which the conclusion at para [48] was reached – in which case there was the potential that the Tribunal had failed to adequately discharge the function imposed upon it by s 368 of the Migration Act 1958 (Cth) to explain the basis upon which it had proceeded.

The latter possibility was not raised by any of the Grounds of Appeal as filed.

30    The proceeding was adjourned to enable the Appellants to consider whether any amendment to the Grounds of Appeal was to be made and the fate of any such application to amend. At the resumed hearing, Counsel for the Appellants advised that no application to amend was to be raised. The fate of the appeal was to be resolved by reference to the Grounds of Appeal as initially drafted.

31    Perhaps trespassing beyond those Grounds of Appeal, and the central contention sought to be resolved on appeal, Counsel for the Appellants further maintained that the failure of the Tribunal to actively engage in a resolution of the claims made by the Appellant son was not only exposed by the failure of the Tribunal to address (or adequately address):

    the claims and evidence as to the cultural expectation that an eldest Korean son would assume responsibility for his aged parent, as supported by Dr Nguyen

but also the failure of the Tribunal to adequately address:

    the strong preference expressed by the mother to stay at home rather than be accommodated in a residential care facility;

    the fact that the Westmead Aged Care Assessment Team had recommended that the “living environment” that was “most appropriate” for the mother’s care was “private residence”;

    the opinion expressed by a Centrelink social worker as to the expectations imposed by Korean culture;

    the fact that the Appellant son would return to Korea if his application was unsuccessful, leaving his mother in Australia without the means of support that he would otherwise provide; and

    the opinion of the mother’s doctor that “it is in her best interests to have a full time carer live with her and look after her in [her] own home”.

Each of these factual matters was placed before the Tribunal.

32    When much the same argument as is now embraced in Ground 1 of the Notice of Appeal was before the Federal Circuit Court Judge, her Honour relevantly concluded (in part) as follows (without alteration):

[50]    As is clear from paragraphs [43] and [44] of the Tribunal’s decision record cited above, the Tribunal understood that the claim that the eldest son would take responsibility for aged parents in Korean culture was stressed by the Applicant’s representative, as was the assistance the applicants were able to provide to the Sponsor. The Tribunal immediately went on to consider the Sponsor’s deep commitment to her Church and the assistance that she needs to continue to participate in those activities. The Tribunal then considered the availability of residential care facilities.

…

[53]    In the circumstances, I do not accept the Applicant’s contention that the Tribunal ignored the Applicant’s claim that in Korean culture it is expected that the eldest son will take responsibility for aged parents. The manner in which the Tribunal identified the relevant claims and the structure of its findings lead to the overwhelming inference, which I draw, that indeed the Tribunal considered that claim in reaching its conclusion that the requirements of reg 1.15AA(1)(e) of the regulations were not met.

33    The submission advanced on appeal, and as advanced before the Federal Circuit Court, was that a recitation of the submission advanced on behalf of the Appellant was not tantamount to a proper consideration of the evidence or the claim founded upon that evidence.

34    On the facts of the present case and the reasons given by the Tribunal, a conclusion may have been reached that the reference to the submission at para [43] of the Tribunal’s reasons for decision was not sufficient and that the Tribunal had fallen into jurisdictional error by failing properly to consider the evidence of the son in his statutory declaration or the evidence of the social worker.

35    But such was not the conclusion of the Federal Circuit Court Judge. Nor is it the role of this Court on appeal to allow an appeal simply because it may have reached a different conclusion to that at first instance. Even if a different conclusion may have been reached, the decision should not be disturbed in the absence of appellable error. The approach to be adopted has been summarised as follows by Gibbs ACJ, Jacobs and Murphy JJ in Warren v Coombes (1979) 142 CLR 531 at 551:

Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. These principles, we venture to think, are not only sound in law, but beneficial in their operation.

Their Honours continued on to observe (at 522):

The duty of the appellate court is to decide the case—the facts as well as the law—for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.

36    Notwithstanding some considerable reservation, it is respectfully considered that no conclusion should be reached that the primary Judge was “wrong” and that no conclusion should be reached that the Tribunal failed actively to engage with the submission and evidence of the mother and son now relied upon. Such findings and reasons as have been provided by the Tribunal are Delphic; but no challenge is made to the adequacy of those findings and reasons. It would, obviously enough, have been far preferable for the Tribunal to more fully set forth its reasoning process. But, that having been said, no appellable error is discernible in the conclusion reached by the Federal Circuit Court Judge.

37    Some degree of comfort is drawn in reaching that conclusion by the fact that:

    there is little evidence which goes beyond that which is embraced by the submissions set out at paras [43] and [44] of the Tribunal’s reasons for decision; and

    to the extent that para [44] refers to the ability of the son to “work flexible hours”, the paragraph exposes an understanding of evidence going beyond that set forth in the statutory declaration and the evidence of the social worker.

There is, with respect, little difference between the “submission” as advanced on behalf of the mother and son before the Tribunal and the “evidence” relied upon. Albeit using different terminology, Robertson J in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, (2013) 212 FCR 99 at 130 made the same point when his Honour observed:

[111]    In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.

38    The first Ground of Appeal has not been made out.

The evidence of Dr Huong Van Nguyen

39    The second Ground of Appeal provides as follows:

The primary Judge erred in finding that the Tribunal had not overlooked the evidence from Dr  Huong Van Nguyen, Consultant Geriatrician when it found that there was no independent information to indicate that care in a residential facility would exacerbate the depression of the sponsor and cause psychological issues for her.

40    The evidence relied upon by the son and mother before the Tribunal included a detailed report prepared by Dr Nguyen. Included within that report, and in its concluding paragraph, the doctor stated (without alteration):

I am concerned that Mrs Yoon’s recurrent falls and mild depression have contributed to her fear of living alone and reduced ability to manage activities of daily living. At her age, I don’t anticipate that these problems will resolve in the medium term. Certainly being around her family has helped ease some symptoms of depression however I wonder whether she would benefit from an anti-depressant such as an SSRI or some psychological counselling. In terms of her falls, I have referred her for further gait and balance re-training at Bankstown Hospital. For her overall care needs, low level residential care facility may be a suitable option for her but I am not certain that this will provide the necessary social environment for her mental well-being. A 24-hour Korean-speaking carer has been an option that her family investigated but at this stage they are unable to afford the cost of having such a carer. It therefore seems appropriate to have a family member to support Mrs Yoon with her current physical and emotional needs.

41    The relevant conclusion of the Tribunal was as follows (without alteration):

[50]    The sponsor is reluctant to live in a residential facility and the submission is that a course would exacerbate her depression and cause psychological issues for her. However, it is of the view that this is speculative; there is no independent information to indicate that this would be the likely outcome.

42    Of particular relevance to the second Ground of Appeal was the doctor’s opinion that a “low level residential care facility may be a suitable option for her but I am not certain that this will provide the necessary social environment for her mental well-being”.

43    In resolving a closely aligned submission to that now advanced on appeal, albeit an argument previously advanced in different terms, the Federal Circuit Court Judge relevantly concluded (without alteration):

[34]    I accept [Counsel for the Minister’s] submission that the Tribunal’s finding at para [50] of its decision record did not rest on independent medical evidence. The Tribunal noted that if the Sponsor was unable to exercise her mental ability through Church activities, she was likely to sink further into depression and become psychologically distressed. To this end, the Tribunal found that the assistance in transporting the Sponsor to Church activities on a regular basis could reasonably be provided by the Sponsor’s daughter and granddaughter. In such circumstances, it was open to the Tribunal to find that it was “speculative” to claim that living in a residential care facility would exacerbate the Sponsor’s depression and cause psychological issues. The Tribunal made a clear finding that if in a residential care facility, the Sponsor’s daughter or granddaughter could and would take her to relevant Church activities.

[35]    The consultant geriatrician’s opinion does not constitute evidence contrary to those findings. The consultant geriatrician’s report, dated 29 September 2010, acknowledged that the Sponsor suffered from mild depression and that has “contributed to her fear of living alone and reduced ability to manage activities of daily living.” The report noted that being around the Sponsor’s family helped ease some of the symptoms of depression but that anti-depressants may also assist. The report concluded that “for her overall care needs, low level residential facility may be a suitable option for her but I am not certain this will provide the necessary social environment for her mental well-being.”

44    It is not open to conclude that the Tribunal “overlooked” Dr Nguyen’s opinion; nor is it open to conclude that the Tribunal “overlooked” that part of his opinion which referred to his reservation as to whether a low level residential care facility “will provide the necessary social environment for her mental well-being”. It was open for the Tribunal to conclude that it was “speculative” that living in a residential care facility would exacerbate the mother’s depression.

45    Indeed, considerable reservation is expressed as to the merit of a submission which seizes upon one sentence in an extensive and detailed report of a medical practitioner and which seeks to elevate that one sentence to prominence. The reasons for decision of an administrative decision-maker, and the findings of fact made by a decision-maker, it must constantly be recalled, are not to be scrutinised with an eye keenly attuned to the detection of legal error: cf. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. No criticism can legitimately be directed to the manner in which the Tribunal addressed the passage in Dr  Nguyen’s report which is now seized upon.

46    The second Ground of Appeal, as the argument is now advanced, is rejected.

Reasonableness from the mother’s perspective

47    The third and fourth Grounds of Appeal (omitting the Particulars provided in respect to the fourth Ground) provide as follows:

3.    The primary judge erred in finding that the Tribunal had not failed to assess the question of reasonableness of obtaining the assistance that the sponsor needed from the perspective of the sponsor.

4.    The primary judge should have found that the Tribunal failed to assess the question of reasonableness of obtaining the assistance that the sponsor needed from the perspective of the sponsor because the Tribunal did not have regard to the following matters:

…

These Grounds of Appeal seek to assert error on the part of the Tribunal in not focussing upon the reasonableness of the assistance required from the perspective of the mother. It was in this context that the preference expressed by the mother to stay at her own home, along with the other facts identified by Counsel during oral submissions, assumed particular relevance.

48    In doing so, Counsel for the Appellants contended that the Tribunal fell into the same kind of error as was identified by Gray J in Biyiksiz v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 814. His Honour was there construing a form of definition of “special need relative” expressed in slightly different terms to that now in force. But those differences, for present purposes, assume no relevance. As the definition stood at the time of Gray J’s decision, it provided in part as follows:

“special need relative”, in relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or an eligible New Zealand citizen, means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:

(a)    the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and

(b)    the assistance cannot reasonably be obtained from:

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

(ii)    welfare, hospital, nursing or community services in Australia.

49    When construing this provision, his Honour observed:

The meaning of ‘cannot reasonably be obtained’

[17]    It cannot have been the intention of the framer of the Migration Regulations that the residence visa should be available to no-one, or should only be available in the rarest of cases. In Australia, health and welfare services are highly developed. There must be very few disabilities or prolonged illnesses for which assistance is unavailable from health or aged care institutions and professionals. If para (b)(ii) of the definition of ‘special need relative’ were to be construed as meaning that assistance reasonably available was reasonably obtainable in every case, there would be very few, if any, visas granted. For this reason, to accord with the purpose of the Migration Regulations in this respect, it is necessary to construe ‘cannot reasonably be obtained’ as ‘cannot reasonably be obtained by the person requiring assistance’. It is necessary to recognise that this aspect of the definition of ‘special need relative’ focuses on obtainability by the person requiring assistance, as distinct from availability to the person requiring assistance.

…

[20]    … The words ‘cannot reasonably be obtained’ must be construed by reference to reasonableness from the point of view of the person requiring assistance, and not only by reference to the reasonable availability of the assistance from other sources. This proposition accords with my own view of the purpose of the definition of ‘special need relative’ in the context of the criteria for a visa of the kind sought by the applicant.

His Honour continued:

Evaluation of the Tribunal’s approach

[22]    There can be no doubt that the Tribunal focused heavily on the availability of external assistance for the applicant’s mother in the present case. Its reasoning in paras 66 and 67 of its reasons for decision is directed towards minimising obstacles to the availability of the requisite assistance from either of the two places it discussed. The Tribunal clearly thought that considerations such as that the applicant’s mother wished to stay with the applicant and would not be comfortable in a nursing home had no weight. Similarly, the Tribunal obviously thought that the fact that the applicant’s mother had given evidence to the Tribunal through a Turkish interpreter eliminated any issue of language barriers to her residence in a nursing home. It is plain from para 68 of the Tribunal’s reasons that this was the nature of the reasoning of the Tribunal. In that paragraph, it expressly rejected the preferable method of care as a question for it. It also rejected as a consideration the question whether it is preferable for an aged person to remain in her own home for as long as possible.

[23]    In my view, in these respects, the Tribunal fell into error. It considered the question whether assistance could reasonably be obtained from welfare, hospital, nursing or community services from the point of view of the availability of assistance from those services, and did not consider whether the assistance was reasonably obtainable by the applicant’s mother from those services. To do so, it would have been necessary for the Tribunal to consider the preferable mode of care for the applicant’s mother, including in particular her preference for being cared for in her own home by her own daughter. The Tribunal was also bound to give weight to financial circumstances and to the question of the comfort of the applicant’s mother. It was bound to consider whether she would have been uncomfortable as a Kurdish Alevi forced to live among others who were predominantly Turkish-speaking Sunni Muslims. It was not enough for the Tribunal to say that whatever discomfort this gave rise to might have been reduced if one or two people on the staff of the institution concerned spoke Kurdish. It had to consider the matter from the point of view of the applicant’s mother. The Tribunal was also bound to take into account any period of delay in the admission of the applicant’s mother to the Turkish Village, or to any other place that might have been available to her. Given that the applicant’s mother was found to need a level of care sufficient to meet the other elements of the definition of ‘special need relative’, the question of how she would be cared for if the applicant failed to obtain a visa and had to leave Australia within a short time of the decision assumed some importance.

[24]    The Tribunal made no finding about many of these matters and did not mention many of them in its evaluation of the applicant’s case. It thereby failed to consider the applicant’s case as it was put, and failed to consider whether the assistance required could reasonably be obtained by the applicant’s mother from the services with which the Tribunal dealt.

His Honour proceeded to conclude that the Tribunal had fallen into jurisdictional error by failing to take into account a relevant consideration. This decision was subsequently distinguished by Kenny J in Enano v Minister for Immigration and Multicultural Affairs [2006] FCA 426 at [17] to [24] where her Honour concluded that the Tribunal had not fallen into error because it had focussed on the availability of assistance from other family members.

50    The difficulty in the path of the Appellants in the present case, as correctly identified by the Federal Circuit Court Judge, was that the Tribunal did consider the reasonableness of obtaining assistance from the perspective of the mother.

51    Grounds 3 and 4 of the Notice of Appeal are rejected.

Substantial and continuing assistance

52    Grounds 5 to 7 of the Notice of Appeal provide as follows:

5.    The primary judge erred in finding that the Tribunal’s findings and conclusions that the applicant did not meet the requirements of reg.1.15AA(1)(f) of the Regulations were open to the Tribunal for the reasons it gave.

6.    The primary judge should have found that the Tribunal had misunderstood and misapplied the statutory test in regulation 1.15AA(1)(f) of the Migration Regulations 1994 when it found that breaks when the applicant worked meant that the assistance was not continuing.

7.    The primary judge should have found that the Tribunal had misunderstood and misapplied the statutory test in regulation 1.15AA(1)(f) of the Migration Regulations 1994 when it found that the assistance that the applicant could provide was not substantial as it was the second applicant who does the greater proportion of caring and that, were the first visa applicant to go out to work, this proportion would increase.

53    These Grounds each seek to challenge the conclusion of the Tribunal as to the inability of the son to provide “substantial and continuing assistance”, as required by reg 1.15AA(1)(f) of the Migration Regulations.

54    The relevant findings as made by the Tribunal are as follows:

[54]    The term ‘substantial and continuing assistance’ has not been directly considered in this context, but has been the subject of judicial consideration in the context of the definition of ‘special need relative’ in r.1.03. In Perera v MIMIA [2005] FCA 1120, the Court held that the term ‘substantial’ is directed to the level of assistance and the term ‘continuing’ is directed at the duration of the assistance and that it is a composite phrase, in the sense that its two elements are cumulative. Although the comments in this case were not made in the context of the definition of ‘carer’, the Tribunal considers them to be of assistance when considering that definition.

[55]    As indicated, the Tribunal is satisfied that the first visa applicant is able and willing to provide the assistance the sponsor requires. The issue is whether this is “substantial and continuing assistance”. The information provided by the visa applicants is that the first visa applicant would have to work, at least part-time, for financial reasons. There would therefore be regular periods of time when he was not able to provide any assistance. Further, the information concerning the actual care provided at this time shows that the second visa applicant provides at least half the assistance required; possibly more. She does the majority of the personal care such as toileting, dressing, mobilising of the sponsor. She also does her cooking and takes her for outings, including to Church with the first visa applicant. The Tribunal is of the view that it is the second applicant who does the greater proportion of caring and that, when the first visa applicant were to go out to work this proportion would increase.

[56]    The Tribunal finds that the review applicant is not willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and therefore does not meet the requirements of r.1.15AA(1)(f).

55    The Federal Circuit Court Judge rejected a like challenge to that now advanced by relevantly concluding as follows:

[62]    The Tribunal found that there would be regular periods of time when the Applicant would not be able to provide any assistance as he would have to work at least part-time for financial reasons. The Tribunal found that the second applicant did the majority of the personal care and provided at least half the assistance required, possibly more. The Tribunal found that the second applicant, who does the greater proportion of caring, would need to increase her care when the Applicant went to work.

[63]    Accordingly, the Tribunal found that the Applicant was not willing and able to provide to the Sponsor substantial and continuing assistance of the kind needed. Therefore, the Tribunal found that the Applicant did not meet the requirements of reg 1.15AA(1)(f) of the Regulations. Those findings and conclusions were open to the Tribunal on the evidence and material before it, and for the reasons it gave.

[64]    The Applicant’s contentions in relation to Ground 3 essentially arise out of a disagreement with the findings and conclusions of the Tribunal on this issue …

56    On appeal, much the same argument was advanced. In essence, Counsel for the Appellant contended that the fact that:

    the Appellant son may only provide assistance on a “part-time” basis does not mean that the assistance he does provide is not “continuing”; and

    the wife of the Appellant son may “provide at least half the assistance required; possibly more” and the fact that the wife provides “the greater proportion of caring” does not mean that such assistance as is provided by the Appellant son is not “substantial”.

These contentions, it was further submitted, do not sit comfortably with the finding of fact that was made by the Tribunal, namely that:

    the Appellant son “is able and willing to provide the assistance the sponsor requires…”.

57    The finding that the son was “able and willing to provide the assistance” his mother requires does not necessarily answer the requirements of reg 1.15AA(1)(f). It was to those requirements that the Tribunal directed its attention at para [55] of its reasons for decision. A  fair and balanced reading of the Tribunal’s reasons for decision does not, it is respectfully considered, disclose that the Tribunal was making a decision that the son did not provide the assistance required because his assistance was not continuing, or because his assistance was less than that provided by his wife. Those reasons for decision simply expose a reasoning process whereby the Tribunal evaluated the assistance in fact provided by the son.

58    So construed, the challenge by the Appellants becomes a mere challenge to the factual conclusions reached by the Tribunal. No question arises that the Tribunal misconstrued the term “substantial”. Nor was any question raised as to the adequacy of its reasoning process. It may well have been preferable for the Tribunal to have stated more clearly whether it was satisfied that the son had failed to establish that he provided “substantial” assistance or failed to establish whether such assistance as was provided was “continuing”. A fair reading of the reasons provided would suggest that the finding was that the assistance was not “substantial”. But no question was raised in the Grounds of Appeal as filed which sought to challenge the adequacy of the reasons provided; nor was any such question sought to be raised by way of any amendment to the Grounds of Appeal.

59    The final Grounds of Appeal are thus rejected. No appellable error is discernible in the decision of the Federal Circuit Court Judge.

CONCLUSIONS

60    No Ground of Appeal has been made out.

61    Although some reservation has been expressed in respect to the manner in which the Tribunal dealt with the evidence before it and resolved the claims being made, it has been ultimately concluded that no appellable error is discernible in the reasons for decision of the Federal Circuit Court Judge.

62    The appeal is to be dismissed.

63    There is no reason why the Appellants should not pay the costs of the Respondent Minister.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellants are to pay the costs of the First Respondent.

Associate:

Dated:    1 March 2017