Federal Court of Australia

CYW21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1084

ORDERS

THE COURT ORDERS THAT:

1.    The applicants be referred to by pseudonyms.

2.    The application for an extension of time (filed on 2 February 2021) to file a notice of appeal be granted.

3.    Within seven days, the applicants file and serve a notice of appeal substantially in the form of annexure “DY4” to the affidavit of Dickran Yakenian dated 13 August 2021.

4.    The appeal be treated as having been heard.

5.    The appeal be dismissed.

6.    The applicants pay the first respondent’s costs of the application for an extension of time and the appeal, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

7.    Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.

8.    In the absence of any agreement:

(a)    within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)    within a further 14 days, the applicants file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c)    in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The applicants seek an extension of time to file a notice of appeal in respect of a judgment and orders of the Federal Circuit Court of Australia. The first applicant, a citizen of Vietnam, was the primary applicant for a visa. The second applicant is the husband of the first applicant. The third and fourth applicants are their adult children. For convenience, I will refer to the first applicant as the applicant in these reasons.

2    On 2 December 2020, the Federal Circuit Court dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal), which affirmed a decision of a delegate of the first respondent (the Minister) to refuse the applicants’ application for Other Family (Residence) (Class BU) visas.

3    The application for an extension of time was filed on 2 February 2021, which was 12 days after the deadline for filing a notice of appeal.

4    The applicants’ proposed grounds of appeal are set out in an amended draft notice of appeal which is annexure “DY4” to the affidavit of Dickran Yakenian, a solicitor, dated 13 August 2021. The applicants do not press ground 3. The first two grounds refer to the “sponsor” of the visa application. This was the applicant’s mother. For ease of reference, I will generally refer to the sponsor as the applicant’s mother in these reasons. Grounds 1 and 2 are as follows:

1.    The Court Below erred (at [28] and [30] of its reasons) in finding that there was no requirement for the Tribunal to make findings as to the nature and extent of the [applicant’s mother’s] care requirements.

2.    The Court Below erred (at [29] and [30] of its reasons) in finding that the second respondent (the Tribunal) complied with the requirements of Migration Regulation 1.15AA(l)(e) in that it determined the nature and extent of the [applicant’s mother’s] care requirements.

5    The application for an extension of time was set down for hearing together with the appeal (should an extension of time be granted).

6    For the reasons that follow, I have concluded that the application for an extension of time should be granted, but the appeal should be dismissed.

Background facts

7    On 12 February 2015, the applicant and her immediate family arrived in Australia holding visitor visas. At that time, the applicant’s mother (who is an Australian citizen) was living in the home of one of the applicant’s sisters, who was caring for the mother.

8    Subsequently, the applicant’s mother moved to live with the applicant and her immediate family in rental accommodation.

9    On 24 June 2015, the applicant applied for an Other Family (Residence) (Class BU) visa. She applied for the visa on the basis of the care she would provide to her mother, who sponsored the application. The applicant’s husband and their two adult children were included in the application as members of her family unit.

10    In support of the visa application, the applicant provided a Carer Visa Assessment Certificate dated 18 May 2015 in relation to her mother (the Certificate). The Certificate was prepared by a doctor. In the Certificate, the doctor expressed the opinion that the applicant’s mother satisfied the requirements for a carer as she:

(a)    had an impairment rating of 30 or more points based on the applicable Social Security Tables (and a total rating of 90 was assigned);

(b)    had a medical condition that was causing physical, intellectual or sensory impairment of the ability of the applicant’s mother to attend to the practical aspects of daily life;

(c)    had a need for direct assistance in attending to the practical aspects of daily life because of the medical condition; and

(d)    because of the medical condition, the need for direct assistance in attending to the practical aspects of daily life would continue for at least two years.

11    The Certificate contained details of the applicant’s mother’s medical conditions, which were identified as: spinal claudication with bilateral lower limb pain due to severe stenosis at L4/L5 region; osteoarthritis; diabetes; urinary and faecal incontinence; and severe major neurocognitive disorder due to Alzheimer’s disease. The Certificate noted that the applicant’s mother was currently living with her daughter, who was her full-time carer. (That appears to be a reference to the applicant, as she was the daughter who accompanied the mother to the examination described in the Certificate.) The Certificate stated that the applicant’s mother was “almost totally dependent in her Activities of Daily Living”. The Certificate continued:

She needs help with transfer, with mobility, with basic hygiene, with feeding and with changing. She was totally wheelchair bound. And she also suffers from constant urinary and faecal incontinence. Furthermore, she suffers from severe Alzheimer’s Disease and she was disorientated to time and place.

12    In support of the visa application, the applicant also provided: a statutory declaration from her mother, who stated that she “had no choice but to rely on assistance from [the applicant]”; and statutory declarations from the applicant’s mother’s three other children who lived in New South Wales, who stated that they could not care for the applicant’s mother due to family or work commitments.

13    On 6 January 2016, 24 February 2016 and 5 April 2016, a delegate of the Minister requested further information from the applicant, including evidence of why the assistance for the applicant’s mother could not reasonably be obtained from welfare, hospital, nursing or community services and why other relatives could not reasonably provide assistance. The applicant provided responses to the delegate on 11 February 2016, 17 March 2016 and 3 May 2016. On 18 January 2017, the applicant provided a report by a psychologist, expressing the view that community health services were inappropriate and could not be reasonably obtained.

14    On 19 December 2017, a delegate of the Minister refused to grant the visa on the basis that the criteria in clauses 836.213 and 836.221 of Sch 2 of the Migration Regulations 1994 (Cth) were not satisfied. Among other things, the delegate was not satisfied that the applicant was the “carer” (as defined in reg 1.15AA of the Migration Regulations) of her mother.

15    The definition of “carer” in reg 1.15AA is central to the proposed grounds of appeal. In the version of the Migration Regulations provided by the parties, the regulation provided:

1.15AA      Carer

(1)    An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:

(a)    the applicant is a relative of the resident; and

(b)    according to a certificate that meets the requirements of subregulation (2):

(i)    a person (being the resident or a member of the family unit of the resident) has a medical condition; and

(ii)    the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and

(iii)    the impairment has, under the Impairment Tables (within the meaning of subsection 23(1) of the Social Security Act 1991), 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.

(Emphasis added.)

16    The delegate was not satisfied that the assistance required by the applicant’s mother (being the “person” referred to in reg 1.15AA(1)) could not reasonably be provided by other relatives resident in Australia or obtained from welfare, hospital, nursing or community services in Australia. The requirement in paragraph (e) of reg 1.15AA(1) was therefore not met, in the delegate’s view. The delegate also decided that the sponsorship requirements were not met.

The Tribunal’s decision

17    The applicants applied to the Tribunal for merits review of the delegate’s decision. A hearing before the Tribunal took place on 23 July 2019. The applicant appeared at the hearing and gave evidence and presented arguments.

18    On 13 August 2019, the Tribunal decided to affirm the delegate’s decision. The Tribunal’s reasons are set out in its statement of decision and reasons dated 13 August 2019 (the Tribunal’s reasons).

19    The Tribunal set out the background to the application for review at [4]-[15] of its reasons. The Tribunal referred to further information provided to the Tribunal subsequent to the delegate’s decision at [16]-[22]. The Tribunal’s consideration of the claims and evidence was set out at [24]-[65].

20    At [24], the Tribunal identified the issues as being whether the applicant met the definition of a “carer” in reg 1.15AA and whether the sponsorship requirements were met. The Tribunal first considered the “carer” issue. As the Tribunal ultimately decided that issue adversely to the applicant, it did not go on to consider the sponsorship issue.

21    At [28], the Tribunal listed relatives of the applicant’s mother (other than the applicant) who were resident in Australia. Ten relatives were listed. These included two daughters of the applicant’s mother. As noted above, prior to the applicant’s arrival in Australia the applicant had been living with one of these daughters. I will refer to that daughter as the applicant’s sister in these reasons.

22    At [31]-[33], the Tribunal considered whether the applicant’s sister was reasonably capable of providing assistance to the applicant’s mother. The contention of the applicant, supported by two statutory declarations of her sister, was that the sister could no longer care for her mother as her husband had multiple medical conditions and she was his carer. The Tribunal considered that there was little information as to why it would not be reasonable for the applicant’s sister to provide a substantial amount of care for her mother, noting that the mother had previously been living with her and she had previously been able to provide care to both her mother and her husband. The Tribunal found at [33] that, in all the circumstances, the applicant’s sister “would be able to provide substantial assistance to the [applicant’s mother]”.

23    The Tribunal then considered, at [34]-[52], whether other relatives resident in Australia could reasonably provide assistance to the applicant’s mother. Following that discussion, the Tribunal stated at [53] that it accepted that “no one relative would reasonably be able to provide all the assistance to the [applicant’s mother]”. The Tribunal found, however, “that a combination of the relatives of the [applicant’s mother] would be able to meet all the assistance requirements of the [applicant’s mother]”: at [53]; see also [56]. Accordingly, the Tribunal was not satisfied that the assistance required by the applicant’s mother could not reasonably be provided by the other relatives of the applicant’s mother resident in Australia: at [57].

24    The Tribunal also considered, at [58]-[60], whether assistance could not reasonably be obtained from welfare, hospital, nursing or community services in Australia. The Tribunal observed that little had been done by the applicant or any of her relatives in Australia to genuinely pursue such assistance. The Tribunal found that assistance could reasonably be obtained from community and welfare services to provide assistance to the applicant’s mother. Although this assistance would not meet all of her needs, it would “further complement the assistance that can reasonably be provided by the relatives of the [applicant’s mother] resident in Australia”.

25    For these reasons, the Tribunal concluded that the applicant did not satisfy the requirements in paragraph (e) of the definition of “carer” in reg 1.15AA(1).

The proceeding in the Federal Circuit Court

26    The applicants applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. The applicants and the Minister were represented at the hearing. The primary judge gave ex tempore reasons for judgment.

27    His Honour set out the background to the application at [1]-[21]. I note that there is a factual error in [6] of the reasons in that it states that the applicant is her mother’s only daughter. However, it appears from the materials that the applicant’s mother has three daughters. Nothing turns on that factual error for present purposes.

28    At [22] of the reasons, the primary judge noted that the proceeding had been commenced on 24 February 2020, which was outside the time permitted for the commencement of such a proceeding. His Honour considered that it was appropriate to extend time for the applicants to file the application.

29    The two grounds in the amended application were set out in [24] of the primary judge’s reasons. It is only necessary for present purposes to refer to ground 1, which was in the following terms:

The Tribunal in purporting to address the requirements of Migration Regulation 1.15AA(1)(e) erred in failing to determine the nature and extent of the sponsor’s care requirements.

30    The primary judge’s core reasoning in relation to this ground was at [28]-[30] of his reasons:

28.    There was no statutory requirement upon the Tribunal to make findings as the nature and the extent of the assistance as contended for in relation to ground 1.

29.    Further, it is apparent that the Tribunal identified the particular Carer Visa Assessment Certificate that correctly identified the assistance required in accordance with the language of reg 1.15AA(1)(b)(iv). No submission was advanced that the Tribunal should have assessed the other criteria in reg 1.15AA(1) before turning to paragraph (1)(e).

30.    It is apparent that the Tribunal took into account that Certificate, in its reasons, in respect of the nature of the assistance identified as being required by reg 1.15AA(1)(b)(iv). As there is no such requirement for the Tribunal to make findings as to the nature and extent of the sponsor’s caring requirement, no jurisdictional error, as alleged in ground 1, is made out.

31    His Honour also concluded that ground 2 was not made out. He therefore dismissed the amended application.

The application for an extension of time

32    In considering an application for an extension of time the relevant considerations include the length of the delay, the applicant’s explanation for the delay, any prejudice to the respondent and the substantive merits of the proposed appeal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349; Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [20] per Perram, Farrell and Perry JJ. Here, although the explanation for the delay is rather weak (in summary, that the delay occurred “due to [the solicitor’s] workload at the time”), the length of delay is relatively short and the proposed grounds of appeal have some merit. Further, the Minister accepted that he could not point to any specific prejudice. Accordingly, I consider it appropriate to grant an extension of time to file the notice of appeal.

The appeal

33    For ease of expression, I will continue to refer to the applicants as the “applicants” rather than as the appellants.

34    The applicants’ grounds of appeal have been set out above.

35    The applicants’ submissions in relation to ground 1 can be summarised as follows:

(a)    Before it can be determined whether assistance can or cannot reasonably be provided by relatives or obtained from community services, it is necessary for findings to be made as to the nature and extent of the assistance required by the person in need of care. That arises by implication from reg 1.15AA(1)(b), read with reg 1.15AA(1)(e).

(b)    That submission is supported by authority. It was held, in Biyiksiz v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 814 (Biyiksiz) at [20] that 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. In El-Chahini v Minister for Immigration and Border Protection (2018) 74 AAR 224; [2018] FCA 202 (El-Chahini), Jagot J held at [21] that “[i]t is not apparent that the Tribunal has engaged with the actual needs of the mother for assistance and the impact of those needs on the capacity of her daughter in Young and adult grandchildren, all of whom are married, working and have their own families, to provide such assistance”.

(c)    The needs of the person requiring care are integral to the questions of whether care cannot reasonably be provided by relatives or obtained from community sources. It goes without saying that some relatives can give certain kinds of care but not others. It is thus necessary, and implicit in reg 1.15AA(1)(e), that the Tribunal make findings as to what assistance is necessary before it can make findings as to whether assistance cannot reasonably be provided or obtained. The Federal Circuit Court’s contrary findings were in error.

36    The applicants’ submissions in relation to ground 2 can be summarised as follows:

(a)    It may be inferred from the Federal Circuit Court’s reference at [29] to the Tribunal’s identification of the Certificate, and its reference at [30] to the Tribunal taking into account the Certificate, that the Court found that the Tribunal did identify the nature of the assistance required by the applicant’s mother.

(b)    If that is the inference to be drawn from the Court’s reasons, then the Court was incorrect. The Tribunal’s reference to the Certificate and to the applicant’s mother suffering multiple medical conditions including Alzheimer’s disease does not constitute a finding as to the nature or extent of assistance required by the applicant’s mother. There is no reference in the Tribunal’s reasons to the specific needs of the applicant’s mother. The Tribunal found that the applicant’s sister could provide substantial care, including at night ([32]-[33]). But it also acknowledged that her husband required assistance. The evidence was that the applicant’s mother requires, “24/7” assistance with all aspects of daily life. This includes help with basic hygiene, feeding, showering and changing her incontinence pad.

37    It is convenient to consider the two grounds of appeal together.

38    The issue may be stated as whether the primary judge erred in not holding that the Tribunal fell into jurisdictional error in its consideration of whether the applicant met the requirement in paragraph (e) of reg 1.15AA(1) of the Migration Regulations (set out above). Paragraph (e) commences with a reference to “the assistance”. This is evidently a reference to the assistance described in sub-paragraph (b)(iv) of the regulation. That sub-paragraph sets out a requirement that, because of the medical condition (being the medical condition referred to earlier in paragraph (b)) “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”.

39    I accept that, in forming a view, for the purposes of paragraph (e), as to whether the assistance cannot reasonably be (a) 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 (b) obtained from welfare, hospital, nursing or community services in Australia, it is necessary for the Tribunal to have regard to the nature and extent of the relevant person’s need for direct assistance in attending to the practical aspects of daily life. However, I do not accept the proposition that it is necessary for the Tribunal to make express findings about those matters. The terms of the regulation do not require express findings to be made. Further, the purpose and context of the regulation do not support the implication of a requirement to make express findings. In particular, reg 1.15AA(3) provides that the Minister (or the Tribunal standing in the shoes of the Minister) is to take the opinion in the Certificate 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.

40    In the present case, I do not consider that the Tribunal fell into error by failing to have regard to the nature and extent of the applicant’s mother’s need for direct assistance in attending to the practical aspects of daily life.

41    First, the Tribunal referred to the Certificate at [5] and [11] of its reasons. The Certificate contained a description of the applicant’s mother’s medical conditions and the care she required. It contained details about the nature and extent of the applicant’s mother’s care requirements. Although the Tribunal did not set out details of those matters in its reasons, I infer that the Tribunal was aware of those matters from its consideration of the Certificate.

42    Secondly, while it is true that the focus of the Tribunal’s consideration at [27]-[57] of its reasons was on the availability of the relatives to provide assistance, rather than on the nature and extent of the applicant’s mother’s care requirements, this appears to reflect the way the applicants’ case was presented to the delegate and the Tribunal: see [8] and [16]-[19] of the Tribunal’s decision.

43    Thirdly, a major factual issue before the Tribunal was whether the applicant’s sister (with whom the mother had previously lived) could reasonably provide assistance. The Tribunal dealt with this issue at [31]-[33]. Because the sister had previously provided care for the mother, there was no real issue that she was capable in principle of providing the type of care the mother required. The issue was, rather, whether she was available to do so, given the need to care for her husband. In this context, it is unsurprising that the Tribunal did not refer in any detail to the applicant’s mother’s care requirements in this part of its reasons.

44    Further, in the course of considering whether the relatives could reasonably provide assistance, the Tribunal made a number of references to the applicant’s mother’s care requirements. This tends to confirm that it was aware of those requirements. I note in particular:

    In [33], the Tribunal referred to the applicant’s sister providing assistance during “the day and at night”.

    In [40], the Tribunal found that one of the applicant’s brothers could reasonably provide substantial assistance, including by providing “transport, shopping, household chores, company and supervision” for his mother.

    In [43], the Tribunal found that it would be reasonable for one of the granddaughters (of the applicant’s mother) to provide assistance, including “general supervision, personal care and hygiene, cooking, cleaning and general household chores”.

45    In light of these matters, I consider that the Tribunal did not err by failing to have regard to the nature and extent of the applicant’s mother’s need for direct assistance in attending to the practical aspects of daily life.

46    I do not consider there to be any inconsistency between the reasons set out above and the judgment of Jagot J in El-Chahini at [21]. In that case, Jagot J held that the Tribunal had not “engaged with the actual needs of the mother for assistance and the impact of those needs on the capacity of her daughter … and adult grandchildren, all of whom are married, working and have their own families, to provide such assistance”. In the present case, in contrast, for the reasons set out above, I consider that the Tribunal did engage with the actual needs of the applicant’s mother for assistance.

47    I note that in Biyiksiz it was held at [20] that the words “cannot reasonably be obtained” must be construed by reference to reasonableness from the point of view of the person requiring assistance. In this case, the Tribunal’s reasons do not suggest that it made any such error.

48    For these reasons, I conclude that no error has been established in the conclusions of the primary judge.

Conclusion

49    It follows that the appeal is to be dismissed. At the hearing, both parties accepted that costs should follow the event. I will therefore order that the applicants pay the Minister’s costs, with such costs to be fixed by way of a lump sum.

Associate:

Dated:    10 September 2021

SCHEDULE OF PARTIES