FEDERAL COURT OF AUSTRALIA El-Chahini v Minister for Immigration and Border Protection [2018] FCA 202 Appeal from: El-Chahini v Minister for Immigration & Anor [2017] FCCA 2207 File number(s): NSD 1713 of 2017 Judge(s): JAGOT J Date of judgment: 2 March 2018 Catchwords: MIGRATION – reg 1.15AA of the Migration Regulations 1994 (Cth) – carer's visa – whether decision of the Administrative Appeals Tribunal miscarried in deciding that relatives who were citizens of or resided in Australia could reasonably provide assistance to the appellant – needs of the appellant in attending to practical aspects of daily life and capacity of relatives in Australia to provide care not properly considered – non-disclosure certificate under s 376 of the Migration Act 1958 (Cth) –whether non-disclosure constituted denial of procedural fairness – certificate arguably invalid – appeal allowed Legislation: Migration Act 1958 (Cth) s 376 Migration Regulations 1994 (Cth) reg 1.15AA Cases cited: BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198 Biyiksiz v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 814 Enano v Minister for Immigration and Multicultural Affairs [2006] FCA 426 Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149 Nguyen v Minister for Immigration and Border Protection [2016] FCA 688 Rasla v Minister for Immigration and Border Protection [2016] FCA 1575 Date of hearing: 20 February 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 28 Counsel for the Appellant: D Godwin Counsel for the First Respondent: T Reilly Solicitor for the First Respondent: DLA Piper Australia ORDERS NSD 1713 of 2017 BETWEEN: AZIZA EL-CHAHINI Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: JAGOT J DATE OF ORDER: 2 MARCH 2018 THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders of the Federal Circuit Court of Australia made on 12 September 2017 be set aside. 3. The decision of the Administrative Appeals Tribunal dated 16 September 2015 affirming the decision not to grant the visa applicant's Other Family (Migrant) (Class BO) visas be set aside. 4. The matter be remitted to the Tribunal for determination in accordance with law. 5. The first respondent pay the appellant's costs of the appeal and of the application to the Federal Circuit Court of Australia, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT JAGOT J: 1 I have concluded this appeal should be allowed. 2 The statutory criteria to determine if the appellant's daughter was a carer of an Australian citizen as provided for in reg 1.15AA(1) of the Migration Regulations 1994 (Cth), which had to be satisfied to enable the grant to the daughter (and her dependents) of Other Family (Migrant) (Class BO) visas, included that the assistance the citizen needs "cannot reasonably be provided by any other relative of the person, being a relative who is an Australian citizen or an Australian permanent resident…" (reg 1.15AA(1)(e)). The decision of the Administrative Appeals Tribunal, finding that the needs of the mother could be reasonably met by relatives who were citizens of or resided in Australia, miscarried in the manner described below. To understand this, it is first necessary to identify the statutory context in more detail and the material which was before the Tribunal about the mother's needs and the circumstances of her Australian relatives. 3 The statutory criteria for the relevant kind of visa included the matters set out in reg 1.15AA(1) of the Regulations which provides that: 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. 4 Importantly for present purposes, the "assistance" referred to in reg 1.15AA(1)(e) is the assistance described in reg 1.15AA(1)(b)(iv), being the relevant person's need for direct assistance in attending to practical aspects of daily life because of a medical condition. It necessarily follows that the question which must be answered under reg 1.15AA(1)(e)(i) (on which the Tribunal relied to reach its conclusion in this matter) is whether the assistance the relevant person needs in attending to the practical aspects of daily life because of the person's medical condition cannot reasonably be provided by a relative of the person who is an Australian citizen or permanent resident. 5 The relevant person in the present case is the mother. At the time of the Tribunal's decision the mother was more than 80 years old and living alone in a suburb of Sydney. The carer visa assessment certificate issued by an independent medical examiner in December 2012 recorded that information had been provided that the mother suffered from multiple serious illnesses and progressive deteriorating intellectual disorder and that "her daughter is unable to cope with her mother's medical and intellectual illnesses". The recorded information also noted that the mother's ability to look after herself had "deteriorated over the past 6 months". This information reflected an assessment by the mother's doctor in July 2012 to the effect that the mother's intellectual abilities were deteriorating. Other material before the Tribunal included a letter from a social worker dated 14 February 2013 noting that the mother suffered from a number of serious diseases including early dementia. The material also disclosed that the mother was being treated by her general practitioner and four specialists all based in Sydney. In a subsequent letter dated 9 May 2013 the mother's doctor described the mother's condition as "deteriorating". In another letter from August 2013 the doctor noted that the mother's condition was "getting worse" including persistent dizzy spells and risk of falling with osteoporosis and very high risk of bone fracture. In the letters from the mother's doctor there were a number of statements to the effect that the mother now needed someone to be with her for 24 hours, to live with her, and to stay with her, as the family's "periodic checking" was not meeting her needs. 6 In its reasons for decision the Tribunal referred to the carer visa assessment setting out the mother's medical conditions and her need for direct assistance in the areas of "hygiene, toileting, eating/feeding giving or supervising of medication, transport and supervision/monitoring" (at [10]). The Tribunal also noted that the mother had two daughters in Australia but did not talk to one of her daughters. The daughter with whom she talks lives in Young and visits her mother twice a week. She cannot visit more often as Young is too far away from Sydney. This daughter is also married with a sick husband and four children at home, living in a public housing property. The mother also has at least six adult grandchildren in Australia. The adult grandchildren have their own families and are working. 7 The Tribunal also recorded that the appellant has another daughter (the visa applicant) who lives in Lebanon with her own 13 year old daughter. This daughter had cared for her mother while her mother was living in Lebanon. This daughter has adult sons who would provide for her financially in the event she was able to move to Australia into her mother's existing home to provide care. The financial support from her sons meant that the daughter would not need to work in Australia. 8 In its reasons for decision the Tribunal said at [20]: The Tribunal questioned the review applicant whether she could move closer to her daughter to enable her daughter to spend more time with her. The review applicant said she cannot move and she has no place to live in Young and she is used to doctors nearby. The review applicant suggested she cannot live with her daughter because her grandchildren are too noisy. The Tribunal is not satisfied that it would be impossible to find accommodation in Young and the Tribunal is of the view that it would not be unreasonable for the review application to relocate to live closer to her daughter in Young, even if not in the same household as her daughter. 9 The Tribunal continued as follows: 25. The Tribunal accepts that the visa applicant has been providing care to her mother during the review applicant's residence in Lebanon and that she is both willing and able to continue to provide such care in Australia. However, the Tribunal is not satisfied that the assistance cannot reasonably be provided by relatives in Australia. 26. As noted above, the review applicant has two daughters and at least six adult grandchildren in Australia. Even if she has no contact with one daughter and her children, the Tribunal is not satisfied that her other daughter and six adult grandchildren cannot jointly provide the requisite assistance. Firstly, the Tribunal is not satisfied that it would be unreasonable for the review applicant to relocate closer to Young where her daughter will be able to spend more time with her. Secondly, the Tribunal is of the view that the six adult grandchildren are able to contribute to the provision of support. The Tribunal accepts that they all have various commitments, including work and family commitments and there is no suggestion that they could provide support on a 24 hour a day basis. However, the Tribunal does not accept the evidence that each of them cannot contribute towards the provision of such support. The Tribunal also accepts Ms El Omari's evidence that it is inappropriate for male relatives to provide some form of support for the review applicant but there is nothing to suggest they cannot provide other forms of support, including supervision with taking medication, mobility support, food preparation and housework, etc. 27. Overall, the Tribunal accepts that each of the review applicant's relatives in Australia has various commitments that preclude them from being full-time carers. The Tribunal accepts that none of the relatives are able to provide the requisite degree of care on their own. However, the Tribunal is not satisfied that the relatives cannot provide some degree of care, so that they together, and in addition to any paid service, will provide the care that the review applicant needs. 28. Having considered the totality of the evidence before it, 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. Therefore, the requirements of r.1.15AA(1)(e) are not met. 10 29. Given these findings the Tribunal concludes that at the time of the decision the visa applicant is not a carer of the Australian relative, being the review applicant, and therefore does not satisfy cl.116.221. Despite the reference to "welfare, hospital, nursing or community services in Australia" in paragraph [28] of the Tribunal's reasons (which is a criterion in reg 1.15AA(1)(e)(ii) of the Regulations), the first respondent acknowledges that the Tribunal's decision, as is apparent from paragraph [18], depended on reg 1.15AA(1)(e)(i) of the Regulations (that is, "the assistance cannot reasonably be provided by any other relative" in Australia). 11 There was other material before the Tribunal not referred to in its reasons. It is apparent from that material that the daughter who now lives in Young, when living in Sydney, had cared for her mother and received a carer's allowance in the period from 12 September 2011 to 25 March 2012. This daughter, I note, must be the daughter who had cared for her mother in 2011 and 2012 but said she was "unable to cope" with her mother's deteriorating condition. 12 Further, there was a document before the Tribunal, an internal Centrelink record, stating that the mother "is on a payment that would entitle them to a carer, there is currently no one receiving carers allowance or carers pension for this person". This was not known to the appellant because the Minister had certified that "matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate…could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed" as provided for in s 376 of the Migration Act 1958 (Cth) and the Tribunal did not disclose that matter to the appellant as provided for in s 376(3)(b) of that Act. 13 The amended notice of appeal alleges three kinds of error, however only two of these grounds were pressed by the appellant. First, the Tribunal failed to assess the question of reasonableness of obtaining assistance that the mother needed from the perspective of the mother. Second, the Tribunal's failure to disclose the existence of the s 376 certificate to the appellant denied the appellant procedural fairness as it worked a practical injustice to the appellant. While errors of these kinds were also put to the Federal Circuit Court of Australia, the appellant was not legally represented before that Court but was legally represented in this appeal. 14 The first error is derived from Biyiksiz v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 814, a case which turned on reg 1.15AA(1)(e)(ii) of the Regulations. Gray J observed at [22] that the Tribunal had answered the question under reg 1.15AA(1)(e)(ii) assuming that the preferences of the relevant person (such as her wish not be in a nursing home) could not be considered. Thus, the Tribunal assumed that the "preferable method of care" of the relevant person, from that person's perspective, was immaterial (at [22] and [23]). This, said Gray J, involved jurisdictional error requiring the Tribunal's decision to be set aside. 15 Other cases involving reg 1.15AA(1)(e)(ii) of the Regulations have involved jurisdictional errors of different kinds. In Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149 the Full Court decided that the Tribunal had considered the relevant person's personal circumstances but had not considered how the facilities it had identified "matched up" with the person's personal circumstances and thereby fell into jurisdictional error (at [35]). 16 In other cases the Tribunal's reasons have been found not to disclose jurisdictional error. Thus in Enano v Minister for Immigration and Multicultural Affairs [2006] FCA 426 Kenny J distinguished Biyiksiz saying at [22]: It would be wrong to find error simply because the MRT failed to note explicitly that it was not just considering whether other sources of assistance were available but was directing its attention to whether the nominator could reasonably obtain such assistance. A reviewing court should not read the MRT's decision overly finely with an eye attuned to the perception of error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271–272 and 291 per Kirby J. Taking the reasons as a whole, there are no grounds to conclude that the MRT failed to address the correct question when it considered whether other forms of assistance could be reasonably obtained by the nominator. In fact, it is clear that the MRT did address the correct question and made its finding consonant with it. 17 In Nguyen v Minister for Immigration and Border Protection [2016] FCA 688 Buchanan J said this: [38] It is apparent, on the face of the AAT decision, that it gave attention to the claims of the appellant, and the members of her family in Australia, that neither individually, nor in combination, nor with the assistance of outside agencies might the appropriate care be reasonably provided, or obtained, for the appellant. No doubt, there could be issue taken with that assessment. The appellant and her family might vigorously dispute it. However, that is not a question for this Court, and it was not a question for the FCCA. That assessment by the AAT is connected with the merits of the visa application which it rejected. A dispute about that assessment does not raise a jurisdictional error. [39] In its discussion (if it is read as a whole) it is apparent that the AAT gave close attention to the central tenet of the reasons advanced as to why a visa should be granted. It was that the present full-time carer wished to leave Australia. It was in that context that the AAT gave particular attention to the claimed need for 24 hour care for the appellant, and who might look after her immediate needs at night. [40] However, it was not necessary, in my view, for the AAT to specify how the appellant's needs might precisely be met by the family members already in Australia. Those are, ultimately, decisions for the family itself as the AAT clearly recognised. The AAT's task (in this particular respect) was to make an assessment of the matters referred to in reg 1.15AA(1)(e), namely whether the appellant's need for direct assistance in attending to the practical aspects of daily life could reasonably be provided by relatives in Australia or obtained from appropriate services available to her. Completion of the task did not require the degree of prescriptive detail and particularity which Ground 5 suggests. Nor was it a jurisdictional error not to specify, in greater detail, how each family member might be able or expected to contribute, in order for the AAT to conclude that it was not satisfied that the visa condition had been met. 18 In Rasla v Minister for Immigration and Border Protection [2016] FCA 1575 McKerracher J applied the same approach as Buchanan J in Nguyen. 19 All this discloses is that each case turns on its own facts in terms of the material put before the Tribunal and the reasons for decisions of the Tribunal. 20 In the present case, the description of the first asserted error (a failure to assess the issue from the mother's perspective) may not be the best label to describe the way in which the appellant contends in this appeal that the Tribunal erred. This is not a case where the Tribunal thought it had to ignore the mother's preferences. The Tribunal recognised the mother wished to remain in her home in Sydney and did not wish to relocate to Young, but nevertheless concluded that the mother's need for direct assistance in attending to practical aspects of daily life because of a medical condition could reasonably be provided by the combined efforts of her daughter in Young and six adult grandchildren. In so doing, the Tribunal said that it was not satisfied that it would be impossible for the mother to find accommodation in Young and was of the view that she would be able to find doctors in Young. It is these conclusions in particular that the appellant submitted, exposed a failure to engage with the case that had been put. 21 I agree. It 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. While the Tribunal referred to the carer visa assessment in its reasons and, as noted, at [10] identified the wide range of assistance the mother required for daily living, when the Tribunal came to assess whether the mother's relatives could reasonably provide those kinds of assistance it did not mention, let alone evaluate, the nature of the mother's needs. The Tribunal's assessment consisted of nothing more than a stated satisfaction that it would not be impossible for the mother to find accommodation in Young, it would be possible for her to find doctors in Young and her family could jointly provide the required assistance. 22 Many important aspects of the material before the Tribunal, which would be centrally relevant to the Tribunal's conclusions, are not mentioned at all. For example, the material showed that the mother had progressive dementia, was at high risk of falling and breaking bones due to osteoporosis, and needed help with virtually all aspects of daily life. It showed that the daughter in Young, by late 2012 (having cared for her mother in 2011 and 2012), felt unable to cope with her mother's deteriorating mental condition. It showed that the mother was under the continuing care of four specialist medical practitioners for a range of serious health problems, not confined to her dementia, each of whom was located in Sydney. Faced with this material, the Tribunal could not discharge its functions without considering not merely the mother's preferences but also how it was that the mother's needs could reasonably be met by her family in Australia if she moved closer to Young. By this I do not mean that the Tribunal had to provide details of how, practically, each relative could do something to provide the mother with what was required. It is that the conclusion that it would not be impossible for accommodation to be found for the mother closer to Young fails to engage with any aspect of the accommodation needs of someone more than 80 years old with serious health problems, including progressive dementia. The conclusion that she would find doctors in Young similarly fails to engage with any aspect of her need for the ongoing care of four specialists with the same kind of special expertise as those treating her in Sydney. The conclusion of lack of satisfaction that her daughter and six adult grandchildren could not reasonably provide the "requisite assistance" (at [26]) also does not engage at all with the actual assistance which the carer visa assessment said the mother required. 23 For example, it may be inferred from the Tribunal's reference to it not being impossible for the mother to find accommodation in Young that the Tribunal accepted that the mother could not live with the daughter who was in public housing and had a child and an ill husband at home. Nor does the Tribunal mention the possibility of the mother living with one of her grandchildren. The unstated and unexplored premise of the Tribunal's conclusion is thus that the mother could move to Young and live on her own with her daughter and grandchildren providing her with the required assistance. But evaluation of this unstated and unexplored premise was central to the Tribunal's apparent rejection of the evidence from the family and the doctor to the effect that the mother needed 24 hour live-in care. This evidence was supported by the kinds of care the mother was identified as needing in the carer visa assessment to which the Tribunal referred at [10] of its reasons dealing with the certificate requirements in reg 1.15AA(1)(b) and (2) of the Regulations, not reg 1.15AA(1)(e)(i). The lack of any such reference to the mother's actual needs in that part of its reasons dealing with the reasonableness of the relatives providing her with assistance in or near Young indicates that the Tribunal has not assessed reasonableness as required, that is by reference to the needs of the mother. 24 In other words, this is not a mere failure to refer to a particular piece of evidence, such as that the mother found Young "too cold" to live in. It is that from the Tribunal's reasons I infer that the Tribunal failed to perform the required statutory task of deciding if the family could reasonably provide the assistance the mother needs in attending to the practical aspects of daily life because of her medical conditions. This is jurisdictional error. 25 Given this, it is not necessary that I deal with the question of denial of procedural fairness. If that were necessary, however, I would be satisfied that the Tribunal's failure to disclose the existence of the certificate did deny the appellant procedural fairness. The certificate is arguably invalid. It is not apparent that disclosure of the information covered by the certificate could be contrary to the public interest as referred to in s 376(1) of the Migration Act. Because the Tribunal did not disclose the existence of the certificate to the appellant the opportunity to demonstrate the invalidity of the certificate was lost and thereby the opportunity for the appellant to have access to the information covered by the certificate was also lost. The Minister contended that given the way in which the case was put (the mother's family in Australia could not care for her) and the Tribunal's acceptance that no individual family member in Australia could act as the mother's carer, the information covered by the certificate could not have supported the case and thus there was no practical injustice which is required to make out this ground of alleged jurisdictional error (BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198 at [32]-[33]). 26 I am not persuaded that the information covered by the certificate was immaterial given that the Tribunal reasoned that the required assistance could be provided jointly by the mother's family in Australia and not by any one of them individually. The information was Centrelink saying that the mother had a current right to a carer and no person was claiming the carer's pension. As submitted for the appellant, the fact a daughter had obtained a carer's pension in 2011-2012 did not establish the mother's current right to a carer. The sole repository of information to that effect would be Centrelink. While it is possible that the appellant could have obtained and submitted information to the same effect from Centrelink, the fact is the Tribunal had that information directly from Centrelink. The information was potentially relevant to the decision the Tribunal had to make because it supported the case that no family member in Australia, even with the assistance of other family members (as the Tribunal had found), had been able, or perhaps willing to take on the role of carer for the mother. As was submitted, it may have been inferred from the information that if any family member, with such other assistance as all other family members could provide, could have performed the role of carer (and thus obtained the carer's pension), then that would have been done because the mother's condition meant she was entitled to a carer and did not have one. 27 Accordingly, I would also have found jurisdictional error by reason of the Tribunal's failure to disclose to the appellant the existence of the certificate under s 376 of the Migration Act. 28 For these reasons, the appeal must be allowed, with costs, and consequential orders made to ensure the matter is remitted to the Tribunal to determine in accordance with law. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate: Dated: 2 March 2018