FEDERAL COURT OF AUSTRALIA Lo v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 895 Appeal from: Lo v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2019] FCCA 2642 File number: NSD 1926 of 2019 Judge: RARES J Date of judgment: 18 June 2020 Catchwords: MIGRATION – other family (residence) (Class BU) carer visa application – regs 1.03, 1.20, cll 836.213 and 836.227 of Sch 2 of Migration Regulations 1994 (Cth) – where cl 836.213 required that applicant "is sponsored" at time of application – where cl 836.227 required that sponsorship mentioned in cl 836.213 approved by Minister and still in force at time of decision – where sponsor had dementia at time of application – where Tribunal found sponsor not have capacity to understand sponsorship obligations at time of application – whether signed support by sponsor's spouse on original application evidence of spouse's sponsorship undertaking in reg 1.20 – whether cl 836.213 permits a person to give sponsorship undertaking after time of application. MIGRATION – certificate under s 376(2) Migration Act 1958 (Cth) – where Department gave Tribunal certificate Tribunal found valid – where Tribunal disclosed only some information covered by certificate and told applicant rest irrelevant – where provider of information withheld only sought to remain anonymous and identity not disclosed in balance of information – whether failure to disclose other information material. Legislation: Migration Act 1958 (Cth) s 376 Migration Regulations 1994 (Cth) reg 1, sch 2 cll 836.212, 835.213, 836.227 Cases cited: Berenguel v Minister for Immigration and Citizenship (2010) 84 ALJR 251 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Date of hearing: 18 June 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 34 Counsel for the Appellants: Mr R Chia Solicitor for the Appellants: MurdockCheng Legal Practice Counsel for the First Respondent: Mr P Knowles Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent The second respondent filed a submitting appearance ORDERS NSD 1926 of 2019 BETWEEN: HSIANG-LING LO First Appellant YI-SHAN HOU Second Appellant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: RARES J DATE OF ORDER: 18 JUNE 2020 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) RARES J: 1 This is an appeal from the Federal Circuit Court's decision not to grant the appellants Constitutional writ relief in respect of the decision of the Administrative Appeals Tribunal made on 2 July 2018 to affirm the Minister's delegate's decision not to grant the appellants other family (residence)(Class BU) visas: Lo v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2019] FCCA 2642. 2 The appellants are mother (Ms Lo) and daughter (whose entitlement to the visa was dependent on her mother's). Ms Lo's father was 96 years old at the time of the Tribunal's decision. 3 On the evidence before the Tribunal, from at least 2004, the father had a history of increased memory loss with little insight into his condition. On 6 July 2012, the father's treating doctor, a senior staff specialist in the division of rehabilitation and aged care at the Memory Clinic reviewed the father and opined that his "dementia has progressed significantly and his short-term memory is very impaired and he is disorientated most of the time." 4 On 25 August 2012 Ms Lo applied for the visas the subject of the Tribunal's decision, in her case as a carer for her father and in her daughter's case as Ms Lo's dependent. At that time, on the same day, the father signed a sponsorship form (form 40) that Ms Lo submitted with her application form 47 OF. The legislative context 5 Relevantly, the Migration Act 1958 (Cth) provided that the Secretary of the Minister's Department could give the Tribunal a notice under s 376(2) that a document or information had been given to the Minister in confidence, together with the document or information. The Tribunal could have regard to any matter contained in the document, or to the information, for the purpose of the exercise of its powers and, if it thought it appropriate to do so, having regard to the Secretary's notice, disclose any such matter or information, relevantly, to the visa applicant (s 376(3)). 6 The Migration Regulations 1994 (Cth) provided: Reg 1.03 Definitions In these Regulations, unless the contrary intention appears: … "sponsor" has the meaning given by subregulation 1.20(1). "sponsorship" means an undertaking of the kind referred to in regulation 1.20 to sponsor an applicant. Reg 1.20 Sponsorship undertakings (1) The sponsor of an applicant for a visa is a person …who undertakes the obligations stated in subregulation (2) in relation to the applicant. (2) Subject to subregulation (4), the obligations of a sponsor in relation to an applicant for a visa are the following: (a) if the application is for…, or a permanent visa… the sponsor undertakes to assist the applicant, to the extent necessary, financially and in relation to accommodation: (i) if the applicant is in Australia — during the period of 2 years immediately following the grant of that visa;… (3) A person…who has been approved by the Minister as the sponsor of an applicant for a visa must enter into the sponsorship by completing the relevant approved form and give it to the Minister not later than a reasonable period after the Minister approves the person as a sponsor. (emphasis added) 7 Schedule 2 of the Regulations prescribed the criteria for a subclass 836-carer visa. The applicant for a carer visa had to satisfy the following provisions in subclass 836 at the times specified in respect of an Australian relative (who in this case was the father as an Australian citizen (cl836.111)): 836.21--Criteria to be satisfied at time of application … 836.212 The applicant claims to be the carer of an Australian relative. 836.213 The applicant is sponsored (a) by the Australian relative, if the Australian relative: (i) has turned 18; and (ii) is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and (iii) is usually resident in Australia; or (b) by the spouse or de facto partner of the Australian relative, if the spouse or de facto partner: (i) has turned 18; and (ii) is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and (iii) is usually resident in Australia; and (iv) cohabits with the Australian relative. 836.22--Criteria to be satisfied at time of decision … 836.227 The sponsorship mentioned in clause 836.213 has been approved by the Minister and is still in force. (emphasis added) The issues 8 The issues raised in the appeal are within a narrow compass and replicate those before the trial judge, namely that his Honour erred in finding that: 1. cl 836.213 required "a sponsor'' to have been nominated and have given a sponsorship undertaking at the time of the visa application and, instead, ought to have found that the clause allowed evidence of sponsorship to be provided after time of application, and that the Form 40 dated 18 June 2018 signed by Ms Lo's mother (the 2018 form) was capable of satisfying the requirements of cl 836.213. 2. the Tribunal did not need to give Ms Lo notice of its conclusion that by signing the 2018 Form her mother only "gave her consent for the sponsorship and agreed to support the sponsor in fulfilling the responsibilities of sponsorship". 3. the notification under s376 dated 27 September 2017 was not invalid and its invalidity material. Background 9 On 25 August 2012, Ms Lo, with the assistance of a migration agent, completed and signed her application for a carer visa in accordance with form 47OF. In it she said that her father had Alzheimer's disease and needed care 365 days of the year, 24 hours per day and that she would provide him with daily assistance, such as cooking, cleaning, help changing his clothes, feeding, showering, toilet assistance, shopping and taking him to doctor's appointments. She provided the Department, when lodging the form 47OF, with evidence of her relationship to her father, his qualification, as an Australian citizen to be her sponsor, and a form 40 also dated 25 August 2012 that he had signed, which the migration agent had helped him complete as her sponsor in Australia. Ms Lo's mother indicated her consent on the form 40 to the above arrangements and agreed to support her husband in fulfilling his responsibilities of sponsorship as required under the Regulations. 10 Ground 3 of the notice of appeal concerned a notification and certificate under s 376 dated 27 September 2017 that the information, contained in a webform that the Department had obtained on 27 August 2017 from an anonymous informant, was confidential. The webform stated the informant wished to remain anonymous. The webform gave very detailed information that identified Ms Lo, including where she lived in Sydney, her date of birth, mobile and residential telephone numbers, and the following about her: What specific information do you want to provide that you believe may be of interest to the Department?: This person is here to look after her daughter who is doing studying in Australia so her visa is not permitted for working. But she has been working in a massage place possibly at one of the massage place at […] Westfield. She works at least five days a week and cash in hand (always included on Saturdays and Sundays). She is living with her aged parents and her daughter. Her father is 95 years and has been cared by her mother. Her younger sister who is living nearby […] has engaged an immigration lawyer to help Hsiang Ling [ie: Ms Lo] to apply for a care visa so she can stay in Australia permanently. Has this offence already occurred?: Yes When will/did the offence occur?: The second year since she entered in Australia. Where will/did the offence occur?: possibly at one of the massage place at […]Westfield How did you obtain this information?: Was told by her family The proceeding in the Tribunal 11 The Tribunal commenced the hearing by informing Ms Lo that it had received two s 376 certificates (including the one above) and was satisfied that both certificates were valid. It invited her to comment on the issue of their validity. She did not respond to that invitation, understandably no doubt because she would have found it difficult to do without further information. It then told her that it was satisfied that some of the information the subject of the certificates was not relevant to the review because that information did not address any history or aspect of the sponsorship, and that it placed no weight on that information. The Tribunal said that it would put to her the core of the other information, because, it told her, it would be the reason or part of the reason for affirming the decision under review, and went to her credibility, and that as a consequence it would affirm the delegate's decision. The Tribunal said that the information included, relevantly, that "at the same time you claim to be caring for Mr Lo, you have been working." 12 It invited her to comment on all of the information it had put to her compendiously. Then, it specifically questioned her about the information that "at the same time you claim to be caring for Mr Lo, you have been working". She responded, through the interpreter, that she definitely was not working, because her English was not good and she could not find a job. In the hearing Ms Lo produced the 2018 form that her mother had signed. Ms Lo initially told the Tribunal that she was providing the 2018 form because her mother had agreed to sponsor her (Ms Lo) to come to Australia to care for her father. She said that her mother had the right to sign documents, as his wife, on his behalf, and that her father had also signed the 2018 form, giving the sponsor his support. The Tribunal told Ms Lo, during the course of the hearing, that it would deal with the proffer of the 2018 form in its reasons, remarking that it was not possible for the sponsor to change during the course of the application. 13 In its reasons, the Tribunal referred to the certificates and its finding that they were valid. It stated that it had placed no weight on matters within the documents that it did not regard as relevant, and that it had put the core of the (relevant) information to Ms Lo. It recorded her response, set out above. As it had indicated during the hearing, the Tribunal found that it was not possible to change a sponsor or to provide a new sponsorship form during the course of the process of considering the application for the carer visa. It found that the mother's signature on the original form 40 in 2012 indicated her support for her husband's sponsorship of their daughter, but that this indication of support was not, itself, a consent by the mother to be the sponsor herself or to fulfil the actual sponsor's sponsorship responsibilities required under the Regulations. The Tribunal made the following findings: 31. There is no independent information before the Tribunal to demonstrate that, at the time of application, Mr Lo understood his sponsorship undertakings. It is evident, that Mr Lo's dementia condition was established before it is claimed that he signed the sponsorship form. It is apparent that his condition was proven before the time of application and before the Power of Attorney was provided. The Power of Attorney does not authorise the attorney to make health and lifestyle changes or to sign documents on Mr Lo's behalf. It merely empowers the attorney to manage the visa application. Other information is that Mr Lo and [the mother's] statements were written by others and there is no independent evidence that either of them understood the content of the information. The information has been provided to the Department and the Tribunal in English, when the evidence before the Tribunal is that both Mr Lo's and [the mother's] English skills are very limited. Neither, was the information provided in a language understood by Mr Lo and [the mother] and then translated by a relevant person. 32. Having considered the evidence individually and as a whole, the Tribunal is not satisfied that that, at the time of application, Mr Lo understood the sponsorship undertakings or that another person could commit to the undertakings on Mr Lo's behalf. 33. Therefore, at the time of application, the applicant was not sponsored as required by the legislation and does not satisfy cl.836.213 of Schedule 2 to the Regulations. At the time of decision the sponsorship is not in force and does not satisfy cl.836.227 of Schedule 2 to the Regulations. (emphasis added) The appellants' submissions 14 The appellants argued at the trial and on appeal that it was possible for an applicant for sponsorship, such as Ms Lo, to provide, later than the time of the application, material to show that her mother had sponsored her at the time of the original application, and therefore the sponsor had not changed. She relied on Berenguel v Minister for Immigration and Citizenship (2010) 84 ALJR 251 to support the proposition that it was not necessary for the sponsor to be identified, or have agreed to undertake the responsibilities of sponsorship at the time of the application and that this identification or agreement could occur at any time up to the time of decision. She also argued that, alternatively, the Tribunal had failed to give her notice, in contravention of its obligation under s 360 of the Act, that her mother's sponsorship in the 2018 form would be taken only as evidence of the mother's support of the father's acting as sponsor, rather than as the mother's independent undertaking to sponsor the daughter in the mother's own right. Ms Lo contended that if it was going to use the 2018 form in that way, the Tribunal had to bring to this to Ms Lo's attention during the hearing. 15 Ms Lo also argued that the certificate under s 376 was invalid, and the Tribunal's failure to disclose more fully the material the subject of the webform information could have affected the result of the review. The Trial Judge's decision 16 The trial judge rejected all of the appellants' arguments on the grounds. He rejected the first ground and found that the father was the only person, at the time of the visa application, who had given a sponsorship undertaking, and that the mother signed the form 40 in 2012 only to indicate her support of the father's sponsorship, and not in her own capacity as a proposing sponsor. 17 His Honour found that the 2018 form could be interpreted in one of two ways, either as being a new sponsorship by the mother for the daughter to be the father's carer or, alternatively, to show that it supported an inference that the mother wished to sponsor their daughter to be the mother's carer. The trial judge found that on neither of those views of the effect of 2018 form could Ms Lo make out any jurisdictional error by the Tribunal. That was because the 2018 form could not supply a basis for satisfying the requirements of cl 836.213, which could only occur at the time of the application, relevantly in 2012. 18 His Honour rejected the second ground below on the bases that Ms Lo was on notice, first, from the delegate's decision, that her father's capacity to understand the nature of what he was doing in signing the 2012 sponsorship form was an issue and, secondly, during the hearing, about the capacity of the mother to become a sponsor during the course of consideration of the 2012 application. 19 He found that the Tribunal had not made a jurisdictional error in its finding that the requirements of cl 836.213 had not been met. 20 His Honour rejected the third ground and found that the certificate under s 376 was valid. He concluded there was a reasonable prospect that the disclosure of the webform document would, by implication, disclose the identity of the informant who wished to have his or her identity treated in confidence. The trial judge said that, if he were wrong in that conclusion, the gist or core of the information the subject of the webform had been disclosed to Ms Lo at the Tribunal hearing and that any failure to disclose the actual form itself would not have been material relying on: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 444 [44]. Consideration 21 In my opinion, grounds 1 and 2 cannot succeed. The Regulations set out a scheme that defined a sponsor in regs 1.03 and 1.20(1), as a person who undertook the obligations stated in reg 1.20(2) in relation to the applicant for the visa. Sponsorship, as defined in reg 1.03, meant an undertaking to sponsor an applicant of the kind referred to in reg 1.20. The requirement in cl 836.213 that an applicant be sponsored by an Australia relative (relevantly here, the father), or the relative's spouse necessarily required that the sponsor, at the time of the application, had to indicate that he or she, then, was prepared to undertake the obligations set out in reg 1.20(2). 22 Next cl 836.227 required that in terms: The sponsorship mentioned in clause 836.213 has been approved by the Minister and is still in force. 23 Thus, cl 836.227, referred back to a fact that had to exist at the time that the application was made. That is because cl 836.213 did not, in its terms, refer to "sponsorship," but set a criterion that the applicant for the visa "is sponsored" (emphasis added) by an identified person. 24 Moreover, although the structure of the forms cannot govern the interpretation or construction of the Regulations, in my opinion, they appear to be drafted with a similar understanding. I reject the appellants' argument that the decision in Berenguel 84 ALJR 251 could apply to cl 836.213 so as to allow a sponsor to be identified after the visa application is made. French CJ, Gummow and Crennan JJ held that a requirement for a skilled residence visa, that an applicant have vocational or competent English at the time of the application, could be satisfied by the provision of evidence to support the standard or competency in English was obtained after the application had been made. Their Honours said that the evident purpose of the alternative criteria was to ensure that, when the Minister or delegate decided upon the application for a visa, the applicant: (84 ALJR at 255 [24]) will have demonstrated recent competency in the English language. It does not follow that the criterion can only be satisfied by evidence provided to the Minister at the time of submitting the application. 25 Their Honours then noted that s 55 of the Act provided that the Minister had an obligation to consider information provided by an applicant for a visa at any time up to the time of the decision, and that it was possible to provide up-to-date information at the time of the decision as to his or her competency in English. 26 In my opinion, nothing said in Berenguel 84 ALJR 251 affects the construction of the criterion in cl 836.213. Its language is intractable because the words "is sponsored" are in the present tense when referring to the time of the application. And, cl 836.227 requires the decision maker to be satisfied, at the time of the decision, that the sponsorship, at the time of application referred in cl 836.213, had subsequently been approved by the Minister and was still in force at the time of the decision. 27 Moreover, I can see no error in the Tribunal's decision, or in the trial judge's reasons, to suggest that there was any jurisdictional error in the Tribunal's reasoning that the only person whose sponsorship was relevant for the purposes of deciding the application was that of the father based on the original form 40. The Tribunal made an unchallenged finding that it was not satisfied that, when he signed the sponsorship form in 2012, the father understood the nature of the sponsorship obligations. Accordingly, in my opinion, grounds 1 and 2 fail. 28 The certificate under s 376 relied on the information in the webform document as having been received in confidence. The section relevantly provided, in s 376(1)(b), that it applied to a document or information, if matter contained in a document or information was given to the Minister or an officer of the Department in confidence. The Secretary had to give to the Tribunal the document or information to which s 376 applied, and section 376(3) empowered the Tribunal, for the purpose of the exercise of its powers, where it had been given such a document or information, to have regard to any matter contained in the document or the information, and, if it thought appropriate to do so, relevantly, disclose any matter contained in the document or information to the applicant or any other person who had given oral or written evidence. 29 The webform itself indicated only that the informant wished to remain anonymous and otherwise provided detailed information that Ms Lo allegedly was working while she was supposed to be looking after her father. It identified the source of the informant's information as someone from Ms Lo's family. In my opinion, there was nothing in the material in the webform document that would have enabled the informant to be identified, having regard to the informant's wish to remain anonymous and the statement that the information had been obtained through him or her being "told by her family". Clearly, the informant knew a considerable amount of detail about Ms Lo. However, it is difficult to see how disclosure of the webform could have revealed who the informant may have been. The only matter that the informant wished to remain confidential was his or her identity. I am of opinion that the certificate of notification under s 376 was invalid. 30 However, in SZMTA 264 CLR at 444 [44], Bell, Gageler and Keane JJ held that the Secretary's provision of an invalid notification that (the analogue to) s 376: applies in relation to a document or information amounts, without more, to an unauthorised act in breach of a limitation within the statutory procedures which condition the performance of the overarching duty of the Tribunal to conduct a review (cf Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at 32-33 [23]-[24], 35 [32]-[33]). Applying the principle of construction recently explained in Hossain v Minister for Immigration and Border Protection ((2018) 264 CLR 123 at 134-135 [29]-[31]), however, the Act is not to be interpreted to deny legal force to a decision made on a review in the conduct of which there has been a breach of that limitation unless that breach is material. (emphasis added) 31 Their Honours held that nonetheless, a breach of procedural fairness in the case of an undisclosed document or information would be material to the decision only if there is a realistic possibility that disclosure could have resulted in the Tribunal making a different decision (see SZMTA 264 CLR at 445–446 [48]–[49]). 32 That requires a determination in this appeal of whether there is a realistic possibility that the Tribunal's decision could have been different if it had either taken into account material, that it regarded was irrelevant and to which it gave no weight, or disclosed to Ms Lo the webform or more of the substance of its contents than the mere broad assertion, that she had been working at the same time as she claimed to be caring for her father. 33 In my opinion, none of that material in the webform, whether disclosed more fulsomely or in its entirety was realistically capable of affecting the decision of the Tribunal. That is because its decision substantively depended upon its conclusion that there was no independent evidence to demonstrate that the father had capacity to understand the sponsorship obligations at the time of his signing the sponsorship form in 2012. Clearly enough, the Tribunal's finding that no one else could assume or give those undertakings on his behalf was correct for the reasons I have already given. Conclusion 34 For these reasons, I am of opinion that the appeal should be dismissed with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 29 June 2020