FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Border Protection [2019] FCA 164

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

(Revised from the Transcript)

LEE J:

1    This is an appeal from an order made by the primary judge dismissing an application for judicial review of a decision of the second respondent (Tribunal). The Tribunal had reviewed a decision of a delegate of the first respondent (Minister) to refuse the appellant’s application for an Other Family (Residence) (Class BU) Carer Visa (visa) in order to look after the sponsor, who was her aunt.

2    As the primary judge correctly recorded at [16] of his reasons, the Tribunal was required to determine whether the criteria for the grant of the visa were met. One criterion was that the appellant was the sponsor’s “carer”. The relevant part of the definition of “carer” in regulation 1.15AA(1)(f) of the Migration Regulations 1994 (Cth) was that:

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.

3    In the course of his Honour’s comprehensive reasons, his Honour dealt with the three grounds raised by the appellant:

1. Administrative Appeal Tribunal affirmed the decision made by DIBP office to refuse to grant carer visa subclass 836.

2. There are clear evidences that I am related to the sponsor and I have responsibilities towards the sponsor to take care of her for her daily needs.

3. The tribunal affirmed the decision purely on this basis that I have not been living with my Aunty (Sponsor) as I am based in Sydney and my Aunty (Sponsor) lives Griffith, then as such why would she need the carer. My point of argument is that although I have been living with in Sydney and every week I go to Griffith to take care of Aunty (Sponsor), yet I have also checked with DIBP office many times who have told me that I have applied for the carer visa and until my visa is granted, I don’t have an obligation to live with my Aunty on a fulltime basis. On this basis of this, I have been living in Sydney so that I can work to earn and save some money which I often use to travel to my Aunty in Griffith every week and spend on her to take care of her. I have been organising all the necessary things when I visit her so that she is all ok for the next few days until to return back. My other point of argument is that if I were offshore, then I would have to wait until I am granted a visa to join my Sponsor (Aunty) to take care of her. So therefore I find an error in Administrative Appeal Tribunal's decision in not making a correct judgement and affirming the decision made by DIBP office.

4    In broad summary, the primary judge found that the first ground was a statement of fact and the second ground contained two assertions of fact, neither of which raised any jurisdictional error on the part of the Tribunal (see [14]-[18]). The third ground was rejected on the basis that the Tribunal’s conclusions were based on rational inferences drawn from the material before it (see [19]-[20]). Given the centrality to the disposition of the review by the Tribunal, it is worth setting out the relevant paragraphs of the Tribunal’s reasons in full (at AB 135 [19]-[21]):

19. Neither is the Tribunal satisfied that the applicant is willing and able to provide the substantial and continuing assistance. The applicant told the Tribunal she lives in Sydney with flatmates. She said the sponsor lives in Griffiths and she visits her aunt once a week. When asked why she does not live with her aunt, the applicant explained that her application was refused and she had to work to earn a living, so she could not stay in Griffith. It appears that the applicant's desire is to work in Australia rather than provide care to her aunt.

20. The applicant said that when she visits, she helps her aunt with cooking and cleaning and shopping. She spends a few hours or a full day in Griffith when she visits once a week and at other times, she works in Sydney 20 hours a week. The applicant told the Tribunal that she needs money for living expenses. When asked how she would support herself if granted the visa, the applicant said she would go to Griffith to look after her aunt who will provide her with food and accommodation and she might get government assistance. In the Tribunal’s view, if the applicant was willing to care for the sponsor, such arrangements could have been put in place throughout the applicant’s stay in Australia and not be dependent on the grant of the visa.

21. The Tribunal is not satisfied that the visa applicant is willing and able to provide the assistance required because the applicant appears to be more interested in her employment than in helping her aunt. The fact that the applicant chose to live away from the sponsor, spends not more than one day a week with the sponsor and claims she needs to work to survive, all suggest to the Tribunal that the applicant is not willing to provide the substantial and continuing assistance required by the sponsor. The Tribunal has formed the view that even if granted the visa, the applicant would prefer to live separately and engage in employment rather than provide the care required. The Tribunal is not satisfied on the evidence before it that the applicant is willing and able to provide to the sponsor substantial and continuing assistance of the kind needed under subparagraph (b)(iv). The Tribunal is not satisfied the applicant meets r. 1.15AA(f).

5    The conclusion of the primary judge was that the findings of the Tribunal referred to above were open on the basis of the material before it. Importantly, at [20] of the primary judgment, his Honour recorded:

It must be remembered that the assistance required was “in attending to the practical aspects of daily life”: sub-reg.1.15AA(1)(b)(iv). That is quite different to helping with the housework and shopping one day a week. The fact that the applicant was providing limited assistance one day a week before she is granted the visa, can support the inference that she would not want to do more after a visa was granted. For those reasons the third ground is rejected.

6    A notice of appeal was filed in this Court and raises two grounds:

1. My grounds of appeal are that the judgement made in my case at the federal court (sic) was incorrect and un-justified despite giving my evidences which clearly outlines my circumstances. My case was dismissed without any explanation.

2. I request for a thorough consideration in my matter and evidences to be taken from my relatives who sponsored me on the carer visa to establish grounds of my case.

7    The difficulty with the first ground is self-evident. It amounts to a mere assertion that the primary judge was “incorrect” and “unjustified” in reaching his Honour’s conclusions. The Minister submits that properly understood and in the absence of any particulars, this ground of appeal expresses mere general disagreement with the findings of the primary judge and nothing more. I agree.

8    The second assertion embedded within ground 1 is that the primary judge dismissed the application for judicial review “without any explanation”. This submission is untenable from a review of the comprehensive reasons of the primary judge which expose his Honour’s reasoning process as to why the three grounds identified by the appellant before his Honour were devoid of merit.

9    As to ground 2, the request for thorough consideration of the appellant’s matter and the “evidences [sic] to be taken from my relatives who sponsored me” appear to amount to an invitation to this Court, in the exercise of its appellate function, to review the evidentiary and other material before the Tribunal and substitute its determination for that of the Tribunal. I have already said enough to explain why this contention cannot be made out, given the nature of the exercise in which this Court is engaged.

10    It follows from the above that neither ground identified in the notice of appeal can be sustained.

11    When the matter was called on for hearing, however, the appellant made what amounted to three additional submissions.

12    First, the appellant submitted that she provided documents to her then migration agent which were not provided to the Tribunal. An affidavit was sworn by the appellant in the proceedings before the primary judge which submitted that “some of documents which was not done (sic) my migration agent” (see AB 157). These documents were attached to the affidavit and are those identified by the primary judge in his Honour’s reasons at [32]. I will take the oral submission as amounting to a contention that the primary judge’s rejection of the receipt of this material at [31] amounted to recognisable error.

13    His Honour gave comprehensive reasons for rejecting each document in turn. The first three documents were correctly identified as being irrelevant to the Court’s task. The attached affidavit was primarily directed to the relationship between the appellant and the sponsor, but this was a matter already found by the Tribunal to have been established. His Honour makes reference to this fact at [15]. The additional documents, for the reasons the primary judge explained, did not bear upon an issue to be determined in the judicial review proceedings and no error is demonstrated in his Honour’s rejection of them.

14    The second point is connected to the first. The appellant complains that two letters from her sponsor’s granddaughter indicating why she could not take care of the grandmother had been given to the migration agent and hence had not been taken into account.

15    The Minister’s representative informs me that this is the first time this contention has been made and although the affidavit referred to above related to only “some of the documents” which were apparently given to the migration agent, it is my function to determine whether there was error on behalf of the primary judge. It is not the function of this Court to engage in a process of speculation as to what the result would have been before the Tribunal or the primary judge in the event that additional material had formed part of the record. In any event, no such material is either before me and it is not material, which by its nature, can bear upon the conclusion of the primary judge that the Tribunal made findings which were based on rational inferences drawn from the material before it. Plainly, there was an inference available that the appellant was not willing and able to provide the care required, in circumstances where the appellant, at material times, lived and worked six days per week in Sydney and the sponsor lived in Griffith, many hours away from Sydney: see the primary judge’s reasons at [19].

16    The third and final point made in oral submissions was the fact that for the last seven months the appellant has contended that she has lived in Griffith to take care of her aunt and her aunt requires full time care. Even if one was to accept this contention at face value, it is not, of course, information which can determine whether or not jurisdictional error was committed by the Tribunal, nor can it be relied upon to demonstrate that the primary judge fell into error.

17    For these reasons, the appeal must be dismissed with costs.

Associate:

Dated:    19 February 2019