FEDERAL COURT OF AUSTRALIA

Le v Minister for Immigration and Border Protection [2017] FCA 1053

ORDERS

THE COURT ORDERS THAT:

1.    The applicant is granted an extension of time pursuant to r 36.05 of the Federal Court Rules 2011 for the filing of the notice of appeal filed on 30 August 2016.

2.    The first respondent pay the applicant’s costs of and incidental to the application.

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

REASONS FOR JUDGMENT

GREENWOOD J:

1    These proceedings are concerned with an application for an extension of time under r 36.05 of the Federal Court Rules 2011 (Cth) within which to file a notice of appeal from orders of the Federal Circuit Court of Australia (the “Federal Circuit Court”) made on 8 August 2016 dismissing an application for review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) by which the Tribunal, on 22 January 2016, affirmed a decision of the first respondent Minister’s delegate, not to grant the applicant a visa described as an “Other Family (Residence) (Class BU)” visa.

2    That class of visa has a sub-class described as “836 (Carer)”. In this case, the applicant, Ms Thi Tang Hong Le, a 60 year old citizen of Vietnam, applied for such a visa on the footing that she satisfies the requirements of the Migration Regulations 1994 (Cth) (the “Regulations”) applicable to such a visa and, in particular, she satisfies the requirement of Reg 836.221 that she is a “carer” of an Australian relative, her mother, Ms Thi Hai Vo, who is the applicant’s sponsor for the visa.

3    The question of whether the applicant is a “carer” for the purposes of the Migration Act 1958 (Cth) (the “Act”) and Regulations falls to be determined by reference to the statutory conception of the term “carer” which, by Reg 1.03, has the meaning given by Reg 1.15AA. Regulation 1.15AA, at the relevant time, was in these terms:

1.15AA    Carer

1.15AA (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.

[emphasis added]

4    It is not necessary to step through all of the integers of Reg 1.15AA(1). The particular question addressed by the Tribunal was whether it could be satisfied that the applicant had made good, on the facts, the requirements of each limb of sub-para 1(e). However, it is necessary to have regard to the way in which sub-para 1(e) relates back to aspects of sub-para 1(b). So, to be specific, Reg 1.15AA(1)(e) provides, taking into account the introductory words, that an applicant for a visa (Ms Le) is a “carer” of a person (who is relevantly an Australian resident and in this case Ms Vo, the applicant’s mother, described as “the resident”) if the assistance (a concept I will return to) cannot reasonably be provided by any other relative of the resident, being a relative (who is, relevantly, an Australian citizen or an Australian permanent resident) or, the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

5    The reference to “the assistance” in sub-para 1(e) refers back to elements of sub-para 1(b).

6    Sub-para 1(b)(ii) contemplates that the resident (or a member of the family unit of the resident) has a medical condition which is causing, physical or sensory impairment of the ability of that person to attend to the practical aspects of daily life. No doubt, many things might be comprehended by a person’s ability to attend to the practical aspects of life each and every day but presumably it engages such practical aspects as bathing, dressing, toileting, cooking, mobility, shopping for food and other goods and communicating with others, among many other things.

7    Sub-para 1(b)(iv) contemplates that because of the medical condition, the person has and will continue for at least two years to have, a need for direct assistance in attending to the practical aspects of daily life. That is, “the assistance” contemplated by sub-para 1(e), is direct assistance in attending to the practical aspects of daily life, which “cannot reasonably be provided” by any other relative “or cannot reasonably be obtained” from welfare, hospital, nursing or community services in Australia.

8    The application is supported by an affidavit of the applicant in which she says that the decision of the Federal Circuit Court was made on 8 August 2016 although the reasons for judgment were not published on that date. Ms Le is here referring to the written published reasons which are dated 31 August 2016. The orders of the Federal Circuit Court were made on 8 August 2016 and reasons in support of the orders were given ex tempore by Judge Vasta on 8 August 2016.

9    Ms Le says that she instructed her representatives to file an appeal from the Federal Circuit Court orders with the Federal Court. However, her representatives waited to receive the published reasons (that is, the settled reasons from the transcript) before filing the notice of appeal. Ms Le says that her representatives were expecting to receive the settled reasons prior to the expiration of the time limited for lodging an appeal: 21 days; r 36.03. Thus, Ms Le seeks an extension of time.

10    The application for the extension of time was filed on 31 August 2016. She was two days out of time. Ms Le was represented in the proceedings before the Federal Circuit Court by Essen Lawyers who instructed Mr S Nguyen of counsel. Mr Unantenna appeared for Ms Le before this Court. As counsel for the Minister, Mr B McGlade, recognises the delay is “very short” and the Minister concedes that no prejudice arises by reason of the delay. Had a notice of appeal been filed without the benefit of reflection upon the written reasons for judgment, an application to amend the notice of appeal would, no doubt, have been forthcoming. Nevertheless, having had the benefit of ex tempore reasons, the prudent course would have been to file a notice of appeal doing the best the appellant could to identify any contended error in the reasoning supporting the orders. However, because the delay is very short, no prejudice arises and the advisers did not have the written reasons in front of them, I am satisfied that the delay is properly explained.

11    An extension of time engages the exercise of a discretion and relevant to that matter (apart from an explanation for the delay) is the merits of the grounds of appeal sought to be agitated. The relevant threshold on the merits issue to be reached in exercising the discretion is whether the interests of justice are served by providing an applicant with an opportunity to agitate the particular ground or grounds of appeal sought to be relied upon. If the decision is shown to be attended by sufficient doubt so as to warrant reconsideration by this Court exercising appellate jurisdiction and an injustice would result if an extension was refused, the interests of justice are served by granting the extension. Counsel for the Minister contends that the grounds sought to be agitated have “no reasonable prospects of success” and that that is a sufficient basis to refuse an application for an extension of time: Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]. However, an applicant that demonstrates that the decision of the primary judge is attended by sufficient doubt to warrant reconsideration by an appeal court and injustice would arise if an extension were refused, has demonstrated a sufficient basis for the grant of an extension of time.

12    I now turn to the question of whether the applicant has demonstrated a basis for the grant of an extension of time on that footing.

13    The grounds of appeal sought to be agitated are these:

Grounds of appeal

1.    The Federal Circuit Court made an error of law by failing to find that the Second Respondent denied procedural fairness to the Applicant or committed an error of law pursuant to s 422B of the Migration Act 1958 (Cth) by failing to consider the claim made by the First Appellant and by not acting in a fair and just manner.

Particulars:

(i)    The Tribunal failed to consider the reasons advanced by the Caree’s Australian relatives in relation to their inability to provide care to the Caree. It made an erroneous finding that the relatives can provide care to the Caree.

(ii)    [I]t failed to consider that the Applicant is assisting both her elderly parents including the applicant’s 91 year old father.

(iii)    [I]t unreasonably decided that the community or welfare services will meet [the] Caree’s needs in the circumstances that the Caree has stated that she is not comfortable with strangers or non-Vietnamese Carers.

2.    The Federal Circuit Court made an error of law by failing to find out that the errors made by the Tribunal were material to the Tribunal’s ultimate decision.

Particulars:

(i)    The Tribunal found against the applicant with respect of two issues in relation to regulation 1.15AA(1)(e)(i) and (ii).

(ii)    The Court found that any jurisdictional error must be an error that infect[s] both criteria in [regulation] 1.15AA(1)(e)(i) and (ii)[.]

(iii)    It failed to consider that the Tribunal made errors in relation to both criteria and therefore the errors were material to the ultimate decision. In particular, [t]he Tribunal’s failure to consider the evidence and materials that suggest that the community or welfare services will not necessarily meet all of the Caree’s needs.

3.    The Federal Circuit Court erred in dismissing ground one of the Application.

Particulars:

(i)    The Court observed that the Tribunal may have made errors in arriving [at] its decision in relation to interpretation and application of [the] criterion in sub paragraph 1.15AA(1)(i) of the Regulations.

(ii)    It erroneously decided the ground was not made as the errors were not material to the Tribunal’s ultimate decision.

14    Before going to those grounds, it is necessary to examine the elements of the Tribunal’s decision.

15    Before doing that, it is necessary to make some observations about the way in which the present application has been addressed. The applicant contends that there are strong grounds and reasons for concluding that the Tribunal fell into jurisdictional error with the result that the Federal Circuit Court erred in failing to so find having regard to the grounds of appeal sought to be agitated. The first respondent Minister contends, on the other hand, that there are no reasonable prospects of success in relation to any of the grounds of appeal and thus the grant of an extension of time should be refused. The merits of the grounds are therefore hotly disputed and it is common ground that a view has to be formed about the merits at least in a preliminary way as that matter is relevant to the exercise of the discretion. The parties have put on quite extensive written submissions debating the merits of the grounds. In the ordinary course, on an application for an extension of time or, for that matter, in applications for leave to appeal, the Court in deciding those matters would not descend in any real detail into the contested merits but would simply form a view about whether the matters sought to be agitated ought to be addressed by an appeal court. The parties, in a sense, have treated the analysis of the merits in much more detail than that. I propose to engage on those matters having regard to the submissions.

The Tribunal’s decision

16    There is no discussion in the Tribunal’s reasons of the content of the assistance required by Ms Vo having regard to the medical condition giving rise to the impairment of her ability to attend to the practical aspects of daily life. There is simply a reference to “the assistance” required by Ms Vo. The Tribunal must necessarily have accepted that she has and will continue to have a need for “direct assistance in attending to the practical aspects of daily life”. The first question then, properly framed, to be considered by the Tribunal is whether it can be satisfied that Ms Vo’s need for direct assistance in attending the practical aspects of daily life cannot reasonably be provided by any relative of Ms Vo (other than Ms Le), being a relative who is an Australian citizen or an Australian permanent resident.

17    The candidate relatives considered by the Tribunal were these:

Huu Tang Danh Le (husband aged 91 years)

Thi Tang Dung Le (daughter aged 62 years)

Thi Tang Hoa Le (daughter aged 58 years)

Thi Tang Diep Le (daughter aged 53 years)

Huu Tang Hoang Le (son aged 49 years)

Tang Hoang Danh Le (son aged 44 years)

Brian Bach (grandson aged 21 years)

18    The Tribunal accepted that Ms Vo’s husband, aged 91 years, suffers from a medical condition and cannot reasonably provide Ms Vo with such assistance.

19    Thi Tang Hoa Le and Thi Tang Diep Le both live in Queensland and since Ms Vo and her 91 year old husband live together in Melbourne, the Tribunal accepted that their potential for relocation to Queensland (a matter raised by the Tribunal) was such that the Tribunal was satisfied that each of these relatives cannot reasonably provide such assistance.

20    That left four candidate relatives: a 62 year old daughter, Thi Tang Dung Le; a 49 year old son, Huu Tang Hoang Le; a 44 year old son Tang Hoang Danh Le; and a 21 year old grandson, Brian Bach.

21    In considering each of these candidate relatives, the question of whether the assistance can be provided by a relative is a notion to be addressed from the perspective of the provider: Naidu v Minister for Immigration (2004) 140 FCR 284 at [21], Ryan J. His Honour in making that observation was emphasising the importance of the distinction to be drawn between whether the assistance can reasonably be obtained from a relative (or one or more relatives) and whether it can reasonably be provided by relatives (for the purposes of Reg 1.15AA(e)(i) as it then was when it spoke of whether the assistance cannot reasonably be obtained from relatives). Now, Reg 1.15AA(1)(e)(i) uses the phrase “the assistance cannot reasonably be provided by any other relative …”. Nevertheless, the observations of Ryan J remain important in understanding the notion of the perspective to be adopted when examining whether the assistance can “be provided” by the relevant relative. Also, the concept of reasonableness must be assessed in light of the circumstances of the provider.

22    Therefore, the question becomes one of: can the Tribunal be satisfied that, addressed from the perspective of the postulated provider, Ms Vo’s need for direct assistance in attending to the practical aspects of daily life cannot reasonably, having regard to the circumstances of the postulated provider, be provided by any relative of Ms Vo other than Ms Le?

23    As to Ms Vo’s 62 year old daughter, Thi Tang Dung Le, the Tribunal notes the contention that she cannot care for her mother because she takes care of her three year old great-nephew five days a week; she cooks for her husband and 21 year old son who both work full time; and she does not want to jeopardise her marital and family relationship by caring for her elderly mother as it will be too much strain for her. These circumstances were not doubted by the Tribunal. Other circumstances were that prior to applicant Le’s arrival in Australia (in March 2013, when she began to care for both elderly parents), Thi Tang Dung Le “spent significant time caring for her mother” and now her view is that it is best that applicant Le care for her mother, with Thi Tang Dung Le providing “respite care” when needed.

24    As to these circumstances, the Tribunal says that it acknowledges that once Thi Tang Dung Le ceased caring for Ms Vo from March 2013, she assumed care responsibilities for her three year old great-nephew (or as the Tribunal puts it, “she decided to care for her great-nephew). The Tribunal then says at para 21:

However it is the Tribunal’s view that [it] would be reasonably open to Ms [Thi Tang Dung] Le to decide to care for her mother, rather than care for her great-nephew.

25    That conclusion is attended by sufficient doubt as it reflects asking the wrong question, fails to take account of uncontested circumstances and reduces a reasonableness consideration to its own view of how Ms Thi Tang Dung Le ought to change her circumstances and abandon her five days a week caring responsibilities for her great-nephew. The correct question is - can a person, in the circumstances of Ms Thi Tang Dung Le, reasonably provide Ms Vo with “direct assistance” in attending to the “practical aspects” of “daily life”? There is no discussion of how she might reasonably provide direct assistance (one-on-one) with the practical aspects of Ms Vo’s life, each day, having regard to her own particular circumstances.

26    As to the 49 year old son, Huu Tang Hoang Le (“Huu”), he is a farmer and the Tribunal says that he lives three hours (presumably by car) from Melbourne although counsel for applicant Le says the brother lives four to five hours away from Melbourne. The Tribunal notes the contention that in order for Huu to assume caring responsibilities for his mother, he would have to give up work with resulting hardship. The Tribunal notes Ms Vo’s evidence that she has had no contact with Huu and that he is not willing or able to care for her. Huu’s brother, Tang Hoang Danh Le, put on evidence saying that Huu works full time on a farm at Robinvale and it would be unreasonable to ask him to terminate his employment and care for his mother. The Tribunal also notes that Tang Hoang Danh Le gave evidence that although Huu occasionally calls home to keep the family updated about his life, the family does not have his contact number and nor do they know his address or the details of his employer. The Tribunal reached this conclusion at para 25:

The Tribunal considers that the claim that Ms Vo’s family has no contact with Huu is inconsistent with their evidence that they know his location, his occupation and his financial situation. The Tribunal considers that it is not adequate for the applicant and the sponsor to simply assert that Huu cannot provide care. It is up to the applicant to make her case. Huu has not provided any oral or written evidence to the Tribunal regarding his circumstances or his inability to care for his mother. On the basis of the evidence before it, the Tribunal is not satisfied that Huu Tang Hoang Le cannot reasonably provide assistance to Ms Vo.

27    As to this conclusion, the claim was not that Ms Vo’s family has no contact with Huu. The claim was that Ms Vo has had no contact with her son, Huu. The family acknowledged that Huu occasionally calls home to update the family “about his life” but they do not have his contact details, address or the details of his employer. That might well explain why applicant Le and Ms Vo were not able to put on evidence from Huu. The Tribunal does not seem to call into question that Huu is a 49 year old son living well outside Melbourne and working full time on a farm. Viewed from a perspective of the postulated provider, just exactly how might a 49 year old man, working full time as a farmer, reasonably provide his mother, an elderly woman, with the “direct assistance” an elderly woman requires in attending the “practical aspects” of an elderly woman’s “daily life”? Just exactly how would such a person reasonably provide an elderly woman (his own mother) with “direct assistance” with toileting, bathing, continence issues, etc? There is no analysis of this in the Tribunal’s reasons concerning the circumstances of Huu Tang Hoang Le, no doubt because there is sufficient doubt that the Tribunal has asked itself the correct properly formulated question.

28    As to the 44 year old son, Tang Hoang Danh Le, he lives with his parents and applicant Le in Kings Park, Melbourne. He gave evidence that he had been made redundant in 2014. His general practitioner provided a letter stating that Mr Le suffers from “significant pain and disability associated with lumbar radiculopathy” and that he “currently has no vocational work capacity”. The Tribunal notes that the GP’s letter does not go further and say that Mr Le’s disability associated with lumbar radiculopathy restricts his ability to care for his mother. The Tribunal concludes at para 25:

While the Tribunal acknowledges that his condition may limit the level of care he can provide, the Tribunal is not satisfied that he cannot reasonably provide some level of assistance to Ms Vo. At the very least, the Tribunal considers that Mr Le could interpret for his mother if she accessed personal care services from non-Vietnamese speaking workers.

29    The question for the Tribunal is – can a man in the accepted circumstances of Tang Hoang Danh Le reasonably provide an elderly woman with the “direct assistance” an elderly woman requires in attending to the “practical aspects” of an elderly woman’s “daily life”? There is no analysis of that question because there is serious doubt the Tribunal asked itself the correct question. It found, in fact, inferentially, that Tang Hoang Danh Le could not reasonably provide Ms Vo with the direct assistance she requires in attending to the practical aspects of her daily life, and found that he could provide something less than “the assistance” contemplated by Reg 1.15AA(1). It found he could provide “some level of assistance” which is something other than “the assistance” for the purposes of the Regulation. The form of assistance he might provide consisted of acting as an interpreter in relation to personal care services obtained from non-Vietnamese speaking workers.

30    The final candidate is the 21 year old grandson of Ms Vo, Mr Brian Bach.

31    Brian Bach is single and lives with his parents in Kings Park. The Tribunal notes his evidence that he runs a network marketing business “most days of the week” and works “part time as a pharmacy assistant”. The Tribunal notes Mr Bach’s evidence that he lacks the expertise and care skills required to care for his grandmother and that she “cannot depend on him for 24 hours care”. These particular factual contentions as to Mr Bach’s circumstances are not doubted by the Tribunal. The conclusion arising from them is put this way at para 27:

The Tribunal finds that Brian lives just a few streets from his grandmother. While acknowledging that he has work commitments, the Tribunal is not satisfied that [this] prohibits him from providing some level of care for his grandmother. The Tribunal does not accept that Brian requires “expertise” to assist in the care of his grandmother, as many family members provide quality care for elderly relatives without having prior experience or expertise.

32    Mr Brian Bach is a 21 year old young man.

33    Again, the forensic question is – can a 21 year old grandson of Ms Vo in the unchallenged circumstances of Brian Bach, reasonably provide his elderly grandmother with the “direct assistance” she requires in attending to the “practical aspects” of an elderly woman’s “daily life”? The second question arising (as it does in the case of all of these providers) is – having regard to a consideration of that forensic question, in the context of all the circumstances confronting the postulated provider, can the Tribunal be satisfied that the postulated provider cannot reasonably provide “the assistance” having regard to the statutory elements of that phrase, as described?

34    There is more than sufficient doubt about whether the Tribunal asked itself the correct question in the case of each of these postulated providers, so as to warrant consideration of the proposed grounds of appeal by an appeal court subject to, first, the question of “aggregation” raised by the Tribunal; second, the challenge to the findings concerning Reg 1.15AA(1)(e)(ii), that is to say, whether the Tribunal could be satisfied that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia; and third, the relationship between these matters and the proposed grounds of appeal.

35    As to aggregation, the Tribunal at para 31 says that the question is “whether assistance cannot reasonably be provided by other relatives in Australia” and not “whether other relatives are willing to provide that care”. The Tribunal says that the “only” question is “whether it is reasonable that they provide that care”. Framing the question in that way might suggest that the Tribunal thinks its task is to decide for itself what is reasonable. The question the Tribunal has to reach a state of satisfaction about is whether, in all the relevant circumstances, it can be satisfied that the assistance, in terms of the statute, cannot reasonably be provided by any other relative.

36    The Tribunal concludes that Thi Tang Dung Le (the 62 year old daughter), Tang Hoang Danh (the 44 year old son), Huu Tang Hoang Le (the 49 year old farmer son) and Brian Bach (the 21 year old grandson) can reasonably provide Ms Vo with “some level of care” and puts it this way at para 31:

While accepting that they cannot reasonably provide Ms Vo with the care she requires on an individual basis, the Tribunal finds that it would be reasonable for them to provide assistance to Ms Le [which should be a reference to Ms Vo] in combination [that is to say, aggregated] notwithstanding their work or family commitments and health concerns, as outlined in the documentary evidence submitted and oral evidence received during the hearing.

37    Thus, the Tribunal, by para 31, accepts that each postulated provider cannot, individually, having regard to their circumstances, reasonably provide “the assistance” to Ms Vo but that, in combination, they can reasonably provide her with “some level of care”. That follows for the Tribunal because “when an elderly family member requires care, it is often necessary for other family members to make adjustments to current and planned arrangements so that they can support the person requiring care”: para 32. Of course, what might often be necessary (or not) as a general reductionist statement across the broad sweep of family experiences is something entirely divorced from the actual circumstances of the particular postulated providers relevant to the Tribunal’s decision.

38    There is serious doubt about whether there is any factual foundation for the conclusion that each nominated relative acting in combination, having regard to each of their particular circumstances, can reasonably provide Ms Vo with, not just “some level of care” but with the direct assistance she requires in attending to the practical aspects of an elderly woman’s daily life, so as to support a conclusion that the Tribunal cannot be satisfied that the four relatives cannot reasonably provide the assistance contemplated by Reg 1.15AA(1)(e)(i). Framing the conclusion that way substitutes the notion of “some level of care” to that of the statutory conception of “the assistance” and fails to have regard to the requirement of taking into account reasonableness from the perspective of the circumstances confronting each provider. Reaching such a conclusion on such a foundation is an error of law because it fails to have regard to the relevant question and fails to take into account the relevant circumstances. The Tribunal fell into error by asking itself a question concerned with whether the four nominated relatives could reasonably provide Ms Vo with “some level of care” rather than asking the statutory question concerning “the assistance” contemplated by Reg 1.15AA(1)(e)(i).

39    None of this would matter if the Tribunal could not be satisfied, in any event, that “the assistance” cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

40    Again, the relevant forensic question is whether Ms Vo’s need, as an elderly woman, for direct assistance in attending to the practical aspects of her daily life can reasonably be obtained from welfare, hospital, nursing or community services in Australia, and therefore whether the Tribunal can be satisfied, in all the circumstances, that such assistance “cannot reasonably be obtained” from such sources in Australia.

41    I now turn to that question.

42    Applicant Le contended before the Tribunal that it was not feasible for Ms Vo to access community or health services because Ms Vo only speaks the Vietnamese language; she can only tolerate eating Vietnamese food; she does not want to be separated from her 91 year old husband; and she does not want to be looked after by strangers. In addition, Ms Vo, in her written statement of 4 December 2015, stated that many of the residential care facilities are expensive and she would not be able to afford such care even with the assistance of government.

43    At para 37, the Tribunal identifies particular documents put before it on these questions.

44    At para 38, the Tribunal says that it has had regard to the submissions of the representative of applicant Le dated 8 December 2015 in which the representative says that applicant Le made appointments to discuss the services provided by Grantham Green, Kalyna Care and Estia Health. The contention put to the Tribunal was that none of these facilities were able to provide carees with Vietnamese food or interpreters in the Vietnamese language. The Tribunal says at para 38 that it gives “no weight to this claim” as it is not supported by independent evidence from the providers that they were, in fact, contacted by Ms Vo’s family.

45    At para 39, the Tribunal reaches a conclusion which may derive from the observation just mentioned at para 38, or otherwise. The conclusion or finding, however, is explained by reference to three factors set out at paras 39, 40 and 41. Those paragraphs are in these terms:

39.    It is the Tribunal’s view that Ms Vo’s family has not made serious attempts to identify appropriate services. Firstly, they sent inquiries to Silver Chain, Comcare and Carers Victoria. While Comcare advised that they do not provide relevant services, both Silver Chain and Carers Victoria invited Ms Vo’s family to contact them to discuss options further, however there is no information before the Tribunal that the family did so.

40.    Secondly, the family’s approaches to service providers were made on the basis that Ms Vo requires full time in-home care, and that she must have carers who speak Vietnamese. The Tribunal finds that this indicates that the family has not considered how Ms Vo may be cared for by a combination of relatives and service providers. It also indicates that the family is not open to having non-Vietnamese speaking carers providing services, in the context of family members interpreting for Ms Vo. The Tribunal considers that this is a practical option, given that Ms Vo lives with her son, Tang Hoang Danh Le, who is unemployed.

41.    Thirdly, there is no written confirmation from the Mekong Vietnamese Aged Care facility that there are no vacancies and/or waiting list. The Tribunal asked [applicant Le] if she followed up with the Mekong facility. She said that they asked her for documents in order to consider an application, however she did not follow up as her mother does not want to go into residential care.

46    As to the financial issues, the Tribunal accepted the family’s evidence that they cannot afford private services. However, the local Council for the area where Ms Vo lives is the Brimbank City Council. The Tribunal notes that the Council states on its website that it provides support and assistance with personal care, home care, meals on wheels, respite care and home maintenance. Thus, the Tribunal asked applicant Le whether she had applied to the Council for access to home services. Applicant Le told the Tribunal that she had not done so because her mother does not want strangers to care for her. At para 42, the Tribunal concludes that the family’s decision not to contact the Council indicates to the Tribunal that the family has “not seriously attempted to obtain services which may meet Ms Vo’s care needs”.

47    At para 43, the Tribunal refers to an “ACAS Assessment” report by “Western Health” dated 26 August 2015 which recommended referral of Ms Vo to a continence nurse. However, Ms Vo declined the referral. The report said that Ms Vo was eligible for permanent and respite care at a low level at an aged care facility. However, the Tribunal observes that Ms Vo does not wish to have approvals for respite or permanent care. The report observes that Ms Vo lives with her son Danh and his wife Giau in Danh and Giau’s home and that Danh and Giau work full time. At para 43, the Tribunal observes that this observation in the report is inconsistent with Danh’s statutory declaration of 13 January 2016 in which he says that he was made redundant in April 2014 and thus, in the Tribunal’s view, the family has “provided inaccurate information” to the ACAS assessor about their family circumstances. Against that background, the Tribunal said this at para 43:

This leads the Tribunal to give limited weight to the assessor’s conclusion that Ms Vo would not have not have the quality of life she currently benefits from in the absence of the care of [applicant Le]. It is apparent that the assessor did not have independent knowledge of the care provided to Ms Vo prior to [applicant Le’s] arrival in Australia.

48    At para 44, the Tribunal finds that Ms Vo and her family have “dismissed the option of accessing additional support services provided by community and health providers on the basis that they cannot accommodate Ms Vo’s personal care requirements in a culturally sensitive way”. The Tribunal also observes at para 44 that “this position” would be “credible” if Ms Vo was currently accessing available services and was finding that they were “insufficient for her needs” or “culturally inappropriate”.

49    The Tribunal, at para 45, notes that applicant Le put to the Tribunal that Ms Vo will not tolerate non-family members caring for her, whether in her home or in an aged care facility. The Tribunal acknowledges the evidence put to it that Ms Vo does not want to live in an aged care facility. The Tribunal then says that it is not satisfied that “residential options have been seriously discussed with her”. The Tribunal then recognises the distinction between, on the one hand, a “preference” for a particular service and the significance of a “cultural factor”, on the other hand, in determining whether the relevant assistance is “reasonably obtainable”. The Tribunal also observes that a person’s “mere preference” to be cared for by family members rather than strangers, is not “a barrier to [his or her] obtaining welfare assistance”.

50    The Tribunal accepts that Ms Vo is “very attached to [applicant Le] and would prefer to be cared for by her rather than by people outside the family”. The Tribunal observes, however, that “this preference” does not satisfy the Tribunal that the assistance cannot reasonably be obtained from relevant services.

51    At para 46, the Tribunal also recognises that, unsurprisingly, Ms Vo does not wish to be separated from her 91 year old husband. As to that consideration, the Tribunal observes that “it is increasingly common for residential care facilities to provide accommodation for couples” and concludes that “Ms Vo’s family has not demonstrated that they have explored this possibility with relevant facilities”.

52    As to the cost of residential care, the Tribunal, as already noted, accepted the family’s evidence that they cannot afford private services. At para 47, the Tribunal says that it has researched aged care funding options for residential care and particularly a booklet issued by the Commonwealth Department of Social Services which sets out fees for “home care packages and residential aged care for people entering care from 1 July 2014”. The Tribunal observes that the booklet says that new funding arrangements involve a number of options including arrangements for fully supported, concessional and charge exempt residents. The Tribunal also notes that the representatives for applicant Le submitted a pricing schedule for the Regis Shelton Manor in Frankston, Victoria, to illustrate that the cost of residential care is prohibitive for Ms Vo. The Tribunal says that it is not clear why that example was selected as it is located 80 kilometres from Ms Vo’s home. Nevertheless, the Tribunal notes that the website for Regis facilities indicates that supported places are available in several of its facilities including Blackburn and Ringwood and that supported beds cost from $0 to $53 per day based upon eligibility. The Tribunal then says this at para 48:

In the context of this information, the Tribunal is not satisfied that Ms Vo’s family has seriously explored the range of financial options available to them. The Tribunal therefore does not accept that the cost of residential care is a barrier to Ms Vo being cared for in such a facility.

53    At para 48, the Tribunal concludes that based on the oral and written evidence available to it, the Tribunal is not satisfied that the assistance required by Ms Vo cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia and thus, the Tribunal is not satisfied about either limb of Reg 1.15AA(1)(e).

54    On that footing, the Tribunal determined at para 51 that it was not necessary to consider whether applicant Le is “willing and able to provide to the resident substantial and continuing assistance of the kind needed as required by r.1.15AA(1)(f)”.

55    In the result, the Tribunal determined that applicant Le is not a “carer” for the purposes of the Act and Regulations and affirmed the decision not to grant her an Other Family (Residence) (Class BU) visa.

56    The applicant says that the Tribunal has failed to address a number of key factual questions material to the decision in relation to the second limb. The applicant says that the Tribunal has failed to consider the evidence and materials in relation to the nature of the care required by Ms Vo and thus the analysis of “the assistance” required by her and its impact upon her capacity to reasonably obtain that assistance from welfare, hospital, nursing or community services in Australia, to that extent, has not been considered at least so far as the exposed reasons of the Tribunal are concerned.

57    The applicant says that the Tribunal had evidence and materials before it which were probative of the factual matter that Ms Vo did not wish to receive care from strangers as her care, as an elderly woman, involves matters of intimacy and, in particular, engagement with her in relation to matters of personal hygiene, toileting, bathing and other such matters. Although the Tribunal recognised that Ms Vo had a “preference” to be cared for by applicant Le, the Tribunal attributed that preference to a discretionary unwillingness on the part of Ms Vo to receive services from anyone other than applicant Le, rather than analysing the expression of opinion in terms of the cultural sensitivities applicable to an elderly Vietnamese woman who preferred to be receiving “the assistance” from a mature female member of her own family, for cultural reasons.

58    These cultural questions of the relationship between the nature of the care, the detail of the care, the demands of Ms Vo in terms of her condition requiring assistance with matters of personal hygiene, continence, toileting, bathing and her natural disposition to remain in a settled situation with her 91 year old husband are not addressed in any measured analytical way from a cultural perspective. Some of these important factual matters are not addressed at all. Others are framed in terms of a contention and then dismissed. I can find no discussion in the reasons about the relationship between these cultural factors and the reasonableness in obtaining the relevant “assistance”. The natural disposition of Ms Vo, as an elderly woman towards the end of her life, to be cared for by a woman with a mother/daughter relationship to her, assisting her with all matters of personal hygiene are matters the detail of which go to the statutory integer of “reasonableness”.

59    These matters do not just go to factual concerns about which minds might differ. They do not just go to matters of merits about which no appellate court has a role to play. They go to a question of taking into account facts material to the statutory integers and the failure to do so, against the background of the statutory integers, is an error of law.

60    I am satisfied that there is sufficient doubt as to this limb so as to warrant reconsideration by a court exercising appellate jurisdiction.

61    I am satisfied that these matters fall within the scope of the grounds of appeal in challenging the decision of the Federal Circuit Court in failing to recognise contended jurisdictional error on the part of the Tribunal. I am satisfied that an extension of time is to be granted so as to enable these matters to be properly agitated before an appeal court.

62    As I observe at [15] of these reasons, I have examined these matters in much greater detail than would ordinarily be the case and I have done so because the parties have extensively addressed the merits, albeit in the context of an application to grant an extension of time. The parties, in that sense, have had the benefit of an expression of view about aspects of the challenge to the decision of the Tribunal.

Associate:

Dated:    5 September 2017