Federal Court of Australia Gorgees v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 746 Appeal from: Gorgees v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 2069 File number(s): NSD 892 of 2020 Judgment of: GOODMAN J Date of judgment: 7 July 2023 Catchwords: MIGRATION – appeal from the (then) Federal Circuit Court of Australia dismissing an appeal from the Administrative Appeals Tribunal – whether the Tribunal failed to consider some evidence relevant to reg 1.15AA(1)(e)(i) of the Migration Regulations 1994 (Cth) – whether such a failure was material – appeal allowed Legislation: Migration Act 1958 (Cth), s 359 Migration Regulations 1994 (Cth), reg 1.15AA; Sch 2, cl 836.221 Cases cited: Gorgees (Migration) [2019] AATA 3828 Gorgees v Minister for Immigration and Border Protection [2018] FCCA 2787 Gorgees v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 2069 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) CLR 421 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 44 Date of hearing: 28 June 2023 Counsel for the Appellant: Mr D Godwin Counsel for the First Respondent: Ms N L Gollan Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS NSD 892 of 2020 BETWEEN: EMMANUEL MATTI GORGEES Appellant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: GOODMAN J DATE OF ORDER: 7 July 2023 THE COURT ORDERS THAT: 1. The name of the first respondent be changed to the Minister for Immigration, Citizenship and Multicultural Affairs. 2. The appeal be allowed. 3. The orders made by the Federal Circuit Court of Australia in proceeding SYG1896/2019 on 28 July 2020 be set aside. 4. The matter be remitted to the Administrative Appeals Tribunal for determination in accordance with law. 5. The first respondent pay the appellant's costs, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GOODMAN J A. Introduction 1 The appellant is a citizen of Canada. In December 2013, he applied for an Other Family (Residence) (Class BU) Subclass 836 (Carer) visa. The appellant's mother, Mrs Khatoon Hanna, was his sponsor for the purposes of that application. 2 On 9 September 2014, a delegate of the first respondent (Minister) decided not to grant such a visa to the appellant on the basis that the delegate was not satisfied that the appellant met the statutory definition of a "carer" with respect to Mrs Hanna. The appellant then sought merits review of the Minister's decision in the Administrative Appeals Tribunal and, on 29 September 2015, the Tribunal affirmed the Minister's decision. 3 On 3 November 2015, the appellant filed an application in the (then) Federal Circuit Court of Australia for judicial review of the Tribunal's decision. That application was successful and on 28 September 2018 the Federal Circuit Court quashed the Tribunal's decision and remitted the matter to the Tribunal for reconsideration: Gorgees v Minister for Immigration and Border Protection [2018] FCCA 2787. 4 On 1 July 2019, the Tribunal (differently constituted) affirmed the delegate's decision: Gorgees (Migration) [2019] AATA 3828 (T). The appellant then sought judicial review of that decision by the Federal Circuit Court. 5 On 28 July 2020, Judge Driver of the Federal Circuit Court (primary judge) dismissed the application for judicial review and published his reasons for doing so: Gorgees v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 2069 (J). 6 The appellant appeals to this Court from the decision of the primary judge. For the reasons set out below the appeal should be allowed with costs. B. Background 7 As noted above, the appellant sought the visa on the basis that he is a carer for Mrs Hanna. Schedule 2 of the Migration Regulations 1994 (Cth) provided the criteria for a carer visa of this kind. Relevantly, cl 836.221 required the appellant to have been a "carer" of Mrs Hanna at the time of the decision whether to issue the visa. The definition of "carer" for the purposes of the Regulations was found in reg 1.15AA, which provided in so far as is presently relevant: (1) An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if: (a) the applicant is a relative of the resident; and (b) according to a certificate that meets the requirements of subregulation (2): (i) a person (being the resident or a member of the family unit of the resident) has a medical condition; and (ii) the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and (iii) the impairment has, under the Impairment Tables, the rating that is specified in the certificate; and (iv) because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and (ba) the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and … (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) … 8 As is apparent from the definition of "carer", it was necessary for the Tribunal to consider the ability of those relatives of Mrs Hanna who are Australian citizens, Australian permanent residents or eligible New Zealand citizens to provide the care required by her. The relatives of Mrs Hanna who potentially met this description were: (1) the appellant's siblings – Helen Koro, Youhanan George, Sihan Gorgees and Steve George; and (2) Mrs Hanna's adult grandchildren – being the following seven persons over the age of 18 years as at the date of the Tribunal's determination – (1) Ousama Koro (son of Helen Koro); (2) Sandra Khosho (daughter of Helen Koro); (3) Silvana Khosho (daughter of Helen Koro); (4) Sandi Adam (daughter of Helen Koro); (5) Joseph Koro (son of Helen Koro); (6) Bernadette George (daughter of Youhanan George); and (7) Matthew George (son of Youhanan George). C. The evidence before the tribunal and the tribunal's decision Pre-hearing evidence 9 Prior to the Tribunal hearing, the appellant provided the Tribunal with statutory declarations, each dated 13 March 2019, made by the appellant, Helen Koro, Youhanan George and Steve George. Evidence adduced at the hearing (9 May 2019) 10 On 9 May 2019, the Tribunal conducted its hearing. At that hearing, the appellant was questioned by the Tribunal, in particular as to the availability of his siblings and the adult grandchildren to assist Mrs Hanna. During the hearing, the Tribunal bluntly stated its concerns to the appellant: … When you have seven able grandchildren, three adult children in Sydney, it's hard for me to accept that no one is able to contribute to the care of your mother other than yourself. 11 The appellant then sought an extension so that he could provide further evidence concerning his siblings and the adult grandchildren. At the conclusion of the hearing, the Tribunal indicated that it would allow the appellant until 31 May 2019 to lodge the further evidence with the Tribunal. Post-hearing evidence Pt 1 (1 June 2019) 12 On 1 June 2019, the appellant's migration agent sent to the Tribunal a series of documents including: (1) an undated statement of the appellant which, for convenience, I will refer to as the appellant's 1 June 2019 statement. The appellant's 1 June 2019 statement was expressed to be a "… statement regarding my sister Helen Koro's children … and her current circumstances that prevent her children from providing care for my mother …". It then set out details concerning each of Helen Koro's children (i.e. five of the seven adult grandchildren). This included an explanation that Ousama Koro was unable to provide care to Mrs Hanna because he was pre-occupied with ongoing criminal proceedings, among other reasons; (2) a statutory declaration of Bernadette George: I am currently studying law/business full time at university. I am also working part time and do not have the time to take care of my sick and elderly grandmother. My uncle Emmanuel Gorgees is much better suited to take care of her. Should you have any queries, please do not hesitate to contact me; and (3) a statutory declaration of Matthew George: I am currently working full time and I am not able to provide the proper are that is required of my elderly and sick grandmother, [sic] Moreover I am incapable of most tasks that will require my attention as I have no experience in these matters. My uncle Emmanuel Gorgees is much better suited to the task of care of his elderly mother. (I will refer to these two statutory declarations as the 1 June 2019 adult grandchildren statutory declarations). Post hearing evidence Pt II (17 June 2019) 13 On 12 June 2019, the Registrar of the Tribunal sent to the appellant's migration agent a letter addressed to the appellant: I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Other Family (Residence) (Class BU) visa. You are requested to provide the following information: • Please provide additional evidence (particularly in relation to other relatives) or whether you have submitted everything you planned to submit. Please provide this information, in writing, by 19 June 2019. ... 14 On 17 June 2019, the appellant's migration agent responded by email, forwarding to the Tribunal statutory declarations from: (1) Sandra Khosho: I am a full time mother taking care of my three daughters [name] (8 years old), [name] (6 years old) and [name] (3 years old). They are young and require my fulltime care and attention. I do not have the time to provide Khatoon with the fulltime care she needs, especially taking into consideration her medical conditions; (2) Silvana Khosho: I am currently working and cannot provide the constant care that Khatoon requires, especially considering she suffers from multiple medical conditions. I feel I am incapable of providing the care she needs; (3) Sandi Adam: I am a carer for my grandmother (paternal). I don't have time to provide care for Khatoon. I also have three children I take care of. Their names and date of births are as follows … [the three children were aged 3, 4 and 5]; and (4) Joseph Koro: I am not capable of taking care of Khatoon an elderly woman. I have no prior experience in this matter, especially since she suffers from several medical conditions; 15 I will refer to these statutory declarations as the 17 June 2019 adult grandchildren statutory declarations. The Tribunal's decision 16 As noted above, on 1 July 2019, the Tribunal affirmed the decision not to grant the visa sought by the appellant. The Tribunal was satisfied that each of reg 1.15AA(1)(a), (b), (ba) and (c) were met, and that reg 1.15AA(d) did not apply. 17 As to reg 1.15AA(1)(b), the Tribunal recorded: 8. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of r.1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the 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. 9. For a certificate to meet r.1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister. 10. The applicant provided with his application a Certificate issued by Medibank Health Solutions in September 2013 indicating that the sponsor met the requirements for a carer as she had an impairment rating of 30 points on the Impairment Rating Tables. It also attested to the fact that the sponsor had a medical condition that was causing physical impairment of the ability of the sponsor to attend to the practical aspects of daily life. 18 However, the Tribunal was not satisfied that the requirements of reg 1.15AA(1)(e)(i) were met. In view of the nature of the ground of appeal advanced by the appellant it is necessary to set out the Tribunal's lengthy reasoning concerning reg 1.15AA(1)(e)(i). At (T[16] to T[33]) the Tribunal stated: 16. Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be provided by: any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia. 17. The applicant stated on the application form that his parents and four siblings reside in Australia. All of the sponsor's children have provided statements or declarations outlining why they are unable to care for their mother and their updated, albeit brief, declarations are before the Tribunal. They did not attend the hearing and the Tribunal was unable to test their evidence. 18. The applicant presented to the Tribunal a statement about the nature of the assistance he would provide and his capacity to do so. The applicant states that his sister Helen suffers from depression and back pain and has family responsibilities including her disabled husband, mother in law and children. The applicant states that his brother Youhanan works six days a week and has three young children and due to his family and work commitments he cannot provide the care. The applicant states that his brother Steve runs a small business and has three children. The applicant states that there are no house services available to meet his mother's needs unless there is a 'tremendous cost'. As noted above, the applicant provided brief declarations from his siblings, as well as evidence of having contacted other carer organisations, and a number of photographs depicting the applicant with his mother. The applicant also provided to the Tribunal a statement from the Aged Care Assessment Team NSW Local Health District stating that the sponsor has been approved for residential care at high level and Home care package Level 3. 19. In oral evidence, the applicant explained that none of his siblings are able to provide the required assistance. 20. The applicant said that his sister lives in Melbourne. He said his mother lived with her in Melbourne between 2002 and 2010 and then his mother returned to live in Sydney. The applicant was not entirely sure why the arrangements changed in 2010 but said that due to her age, it is difficult to care for his mother and she is becoming more of a burden. The applicant said that he does not have a good relationship with this sister and they have not spoken for ten years. He does not think his mother communicates with this daughter because they had an argument. The Tribunal accepts that given the distance, assistance cannot be reasonably obtained from this relative. 21. The applicant told the Tribunal that his brother Youhanan has three children, aged 20, 18 and 15. The Tribunal is of the view that given their ages, these children do not require continuous supervision. The applicant also said that this brother had his own construction business which he has now left and he now works in a factory. The applicant said that his brother's hours are such that he cannot care for their mother. This brother works night shifts, roughly from 8 pm to 7 am, six days a week. During the day he does various things and he also sleeps. The applicant said that he asked his brother to help but he said he cannot help. The Tribunal is prepared to accept that this relative has work commitments but does not accept that he has refused to help. The Tribunal is mindful that he works at night and appears to be available at least some time during the day. The Tribunal is not satisfied that he cannot contribute towards his mother's care. 22. The applicant said that his brother Steve works as a truck driver and works up to 60 hours a week. He also looks after his children, who are aged 15, 13 and 9. The applicant said that his brother's wife looks after the children while his brother works to meet the family's financial obligations. The Tribunal accepts that this relative has family and work commitments, but given the support from his wife in caring for the children, the Tribunal is not satisfied he cannot contribute towards his mother's care. 23. The applicant said that his sister Helen does not get along with her mother and this sister also has a health condition. Her children are aged over 25. The Tribunal is prepared to accept that due to her own health condition, this relative cannot provide extensive care, but in the Tribunal's view, some types of care – for example, cooking, driving to appointments, etc – may still be reasonably obtained. 24. The applicant also confirmed in his evidence to the Tribunal that the sponsor has 14 grandchildren in Australia and of them, seven are over the age of 18. The applicant said one of the grandchildren has "problems with the law" and is now on probation. Two of the grandchildren have their own children. The applicant said his mother does not want the care of his sister's children because she does not believe they care for her wholeheartedly. 25. The applicant told the Tribunal that his sisters provide him with financial support and he has also been working part-time. The applicant said that when he works, he prepares everything for his mother and he sometimes asks his siblings to help. He said that once he is entitled to a carer payment, he would not be working. The applicant also said that there are times where he could not go to work because there was nobody available to care for his mother. The applicant said that the grandchildren do not have a close relationship with their grandmother. 26. The applicant's relative also gave evidence to the Tribunal. Mr Hurmoz's evidence to the Tribunal is that it is the applicant who provides the care to his mother and not the other children, who only come to visit. He said the other relatives have their own commitments. Mr Hurmoz confirmed that the applicant worked in the afternoons and said he did not know who took care of the sponsor while the applicant worked. 27. With respect to services from other sources, the applicant provided with his application a list of organisations he claims to have contacted but who have not agreed to provide written confirmation of advice on the availability of services. The applicant suggested that the Tribunal can verify the information. With respect, the Tribunal does not consider it is required to contact a large number of organisations to seek advice on the availability of assistance required by the sponsor. It is for the applicant to satisfy the Tribunal that these organisations are unable to offer the requisite services. 28. The applicant subsequently provided to the Tribunal a copy of correspondence from My Aged Care inviting his mother, Ms Hanna to choose a home care provider and work out costs. The applicant said that the service has not yet started but when it does, it would only be for a few hours a week. The applicant said that he had approached other organisations and they can help her with some tasks and provided him with the prices. On 3 June 2019 the applicant provided further evidence to the Tribunal. He states that his mother has been assigned a level 2 Home Care package (due to the long wait for a level 3 package), and she is allowed five hours of care each week, which is insufficient to cover her needs. The applicant provided confirmation from the Department of Health that his mother has applied for Level 3 high care and has been placed in a queue. The applicant also provided a list of services he claims to have contacted. 29. The Tribunal generally found the applicant to be a truthful witness, but considers his evidence inadequate with respect to the assistance from other relatives. The Tribunal accepts his evidence that his siblings have work and family commitments and cannot provide full-time care to their mother. The Tribunal also accepts that one of the children resides in Melbourne and cannot contribute to the assistance required. The Tribunal is prepared to accept that the adult grandchildren have some commitments, although there is minimal information before the Tribunal about their commitment and willingness to care. The Tribunal is not satisfied on the evidence before it that at least some of the sponsor's children, as well as her adult grandchildren, cannot contribute to her care, despite their various commitments. The Tribunal is mindful that all but one of the sponsor's children live in Sydney, where the sponsor also resides and it appears that her grandchildren also live in Sydney. The applicant has not satisfied the Tribunal that there are any geographical restrictions to the provision of care. 30. The Tribunal also acknowledges the applicant's evidence that the others are either unwilling to provide the care or that his mother prefers that the care be provided by him. There is little or no evidence before the Tribunal to confirm the applicant's claim that the other children and, in particular, grandchildren, are unwilling to contribute to the care required. Further, the Tribunal does not consider that the sponsor's preference to be cared for by the applicant and not other relatives is a barrier to the assistance being provided by such relatives. 31. It is not necessary for the Tribunal to determine precisely how each of the relatives can contribute to the care of the sponsor and how such relatives can collectively provide the assistance required. It is not possible for the Tribunal to do so, given very limited, or non-existent, evidence concerning some of the relatives, such as the sponsor's adult grandchildren. 32. Overall, the Tribunal has formed the view that inadequate evidence has been presented with respect to the assistance that can be provided by relatives. On such evidence, the Tribunal is not satisfied that the requisite assistance cannot reasonably be provided by any other relative of the sponsor, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The Tribunal is not satisfied that the requirements of r. 1.15A(1)(e) are met. It is not necessary for the Tribunal to consider whether assistance can be obtained from other sources. 33. Given these findings, the Tribunal concludes that at the time of decision the applicant is not a carer of the Australian relative, being the sponsor, and therefore does not satisfy cl.836.221. (emphasis added) 19 I interpolate to indicate that: (1) T[20] is ambiguous as to which of the appellant's sisters lives in Melbourne. However, it is plain from the oral evidence provided by the appellant at the hearing that the sister residing in Melbourne is Sihan Gorgees (not Helen Koro); and (2) the reference at T[28] to further evidence having been provided to the Tribunal on 3 June 2019 appears to be a reference to the evidence sent by the appellant's migration agent on 1 June 2019 (see [12] above). The explanation for the Tribunal's reference to 3 June 2019 may be that Monday, 3 June 2019 was the first working day following the receipt of the email sent on Saturday, 1 June 2019. 20 The Tribunal did not consider whether the appellant had satisfied the requirements of reg 1.15AA(1)(e)(ii) or (f). D. The court below 21 On 25 July 2019, the appellant (who was then unrepresented) filed an application in the Federal Circuit Court seeking judicial review of the Tribunal's decision on the following grounds (as written): 1. Member did not consider my statement regarding why I applied for a carer visa. 2. Member did not take into account the multiple factors affecting my siblings' busy lives. 22 The proceeding was listed for a show cause hearing before the Federal Circuit Court on 30 January 2020. At that hearing, the primary judge raised an additional matter which he described at J[20]: The matter came before me for a show cause hearing on 30 January 2020. At that time, having heard Mr Gorgees orally, I formed the view that there was an issue meriting a final hearing separate from his grounds of review. I ordered the Minister to show cause why relief should not be granted in relation to whether the Tribunal gave proper genuine and realistic consideration to the evidence provided by Mr Gorgees on the question of the willingness and capacity of other family members to provide the assistance to his mother as she requires. 23 On 28 July 2020, the primary judge conducted a final hearing. His Honour delivered judgment dismissing the application on the same day. Relevantly, his Honour appears to have concluded that the 17 June 2019 adult grandchildren statutory declarations were taken into account because of the contents of T[17] (see [18] above): see J[31] and footnote 28. His Honour appears to have assumed that the description in T[17] included the 17 June 2019 adult grandchildren statutory declarations. For the reasons developed at [29] to [34] below, his Honour erred. E. The AMENDED notice of appeal and the PARTIES' submissions The amended notice of appeal 24 The appellant's amended notice of appeal sets out three grounds of appeal. The appellant's counsel indicated in submissions that he did not press the third of these grounds. The first two grounds are: 1. The primary judge erred in not finding that the Tribunal failed to give proper genuine and realistic consideration to the evidence provided by [the appellant] as to whether his relatives cannot reasonably provide assistance to his mother. 2. The primary judge should have found that the Tribunal overlooked material evidence that was of central importance to the decision. Particulars Statutory declarations of Joseph Koro, Sandi Adam, Silvana Khosho and Sandra Khosho Email from Hossam Hayba 17 June 2019 25 The two grounds of appeal overlap considerably and the parties addressed them together in submissions. I will do the same. I will also treat the particulars set out in the amended notice of appeal as applying to both grounds. The essence of the grounds of appeal is that the Tribunal erred in not considering the 17 June 2019 adult grandchildren statutory declarations. Appellant's submissions 26 The appellant's argument included the following propositions: (1) the Tribunal, by its 12 June 2019 letter, invited the appellant to provide "… additional evidence (particularly in relation to other relatives) …"; (2) having done so, the Tribunal was obliged by s 359(1) of the Migration Act 1958 (Cth) to have regard to the evidence that it had requested and that the appellant had provided on 17 June 2019. Alternatively, such an obligation arose from the Tribunal's obligation to take account of cogent evidence providing substantial support to the appellant's case (citing Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) CLR 421 at 436 [13] (Bell, Gageler and Keane JJ) and Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 at 509 [27] (Kiefel CJ, Keane, Gordon and Steward JJ); (3) the Tribunal's failure to take into account the 17 June 2019 adult grandchildren statutory declarations is evident from: (a) the Tribunal's express reference at T[17] to the existence of statutory declarations from the appellant's siblings but not from the adult grandchildren; and (b) the Tribunal's statements that: 29. … There is little or no evidence before the Tribunal to confirm the applicant's claim that the other children and, in particular, grandchildren, are unwilling to contribute to the care required. …; and … 31. …or non-existent, evidence concerning some of the relatives, such as the sponsor adult grandchildren. The Minister's submissions 27 The Minister contended, in essence, that the Tribunal did consider the 17 June 2019 adult grandchildren statutory declarations and in particular: (1) the Tribunals' acceptance at T[29] that "the adult grandchildren have some commitments, although there is minimal information before the Tribunal about their commitment and willingness to care" demonstrates that the Tribunal read and had regard to the 17 June 2019 adult grandchildren statutory declarations; (2) the Tribunal's reference to "minimal information" and "some commitments" must have been references to all of the statutory declarations from the adult grandchildren, as there was no other evidence before the Tribunal as to the commitments of the adult grandchildren; (3) the Tribunal's statement at T[30] that "[t]here is little or no evidence before the Tribunal to confirm the [appellant's] claim that the other children and, in particular, grandchildren, are unwilling to contribute to the care required", was not a conclusion by the Tribunal that there was no evidence from the grandchildren whatsoever. Rather, this was a finding that there was "little or no evidence" regarding the appellant's claim that the grandchildren are "unwilling to contribute to the care required", in the sense of contributing a part of the necessary care; and (4) the statutory declarations indicate an unwillingness to provide fulltime care, and none of the statutory declarations of the adult grandchildren contains a statement that its maker was unwilling to contribute to the care of the appellant's mother. The Minister submitted that this conclusion is reinforced by the Tribunal's statement at T[30] that: It is not necessary for the Tribunal to determine precisely how each of the relatives can contribute to the care of the [appellant's mother] and how such relatives can collectively provide the assistance required. It is not possible for the Tribunal to do so, given very limited, or non-existent, evidence concerning some of the relatives, such as the [appellant's mother's] adult grandchildren. F. Consideration 28 The Minister did not contest the proposition that the Tribunal was required to consider the 17 June 2019 adult grandchildren statutory declarations, and I am satisfied that the Tribunal was obliged to do so. 29 The first issue for determination is whether the Tribunal failed to do so. This requires consideration of the Tribunal's reasons against the evidence that was before the Tribunal. In doing so, the Tribunal's reasons must be read fairly, as a whole, and not in an unduly critical manner: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); Plaintiff M1/2021 at 512 [38] (Kiefel CJ, Keane, Gordon and Steward JJ). 30 Having read the Tribunal's reasons with that caution in mind and having considered the evidence that was before the Tribunal, I am satisfied that the Tribunal did not have regard to the 17 June 2019 adult grandchildren statutory declarations, for the following reasons. 31 First, the structure of the Tribunal's reasons suggests that the 17 June 2019 adult grandchildren statutory declarations were overlooked. That structure sets out, chronologically, the Tribunal's consideration of the trail of the evidence received by the Tribunal, expressly mentioning the pre-hearing evidence (see [9] above and T[17] to [18]), the oral evidence at the hearing (see [10] above and T[19] to [26]) and the 1 June 2019 evidence (see [12] above and T[28]). However, after mentioning the 1 June 2019 evidence, the trail goes cold and no mention is made of the 17 June 2019 adult grandchildren statutory declarations. Having embarked upon a course of describing the evidence received by the Tribunal in a chronological manner, it is to be expected that the evidence received on 17 June 2019 would also have been mentioned if considered by the Tribunal. Its omission suggests its non-consideration. 32 Secondly, I do not accept the Minister's submission that the references to the "commitments" of the adult grandchildren at T[29] must have been based upon evidence in the 17 June 2019 adult grandchildren statutory declarations. I cannot accept that submission in circumstances where: (1) the reference to the "commitments" of the adult grandchildren is very general; and (2) that reference could have been (and likely was) derived from the appellant's 1 June 2019 statement which sets out the circumstances, including some commitments, of the five adult grandchildren whose mother is Helen Koro (see [12(1)] above), or from the appellant's oral evidence (albeit limited) as to the circumstances of some of the adult grandchildren. This oral evidence included references to one of Helen Koro's daughters having three children. I note that there was some ambiguity in this evidence, given that two of Helen Koro's daughters (Sandra Khosho and Sandi Adam) have three children. However, it appears that the appellant was referring to Sandi Adam, given that he also referred to her being a carer for her grandmother (which Ms Adam confirmed in her statutory declaration included in the 17 June 2019 adult grandchildren statutory declarations). 33 Thirdly, there does not appear to be any finding of the Tribunal that must have been based upon evidence in the 17 June 2019 adult grandchildren statutory declarations because it could have had no other source. 34 Finally, the Tribunal made findings in terms which one would not expect to have been used if account had been taken of the 17 June 2019 adult grandchildren statutory declarations. In particular: (1) at T[29], the Tribunal stated that it was "mindful that all but one of the sponsors children live in Sydney, where the sponsor also resides and it appears that her grandchildren also live in Sydney". The finding that the grandchildren also live in Sydney is expressed in tentative terms ("it appears that …"). Had the Tribunal had regard to the 17 June 2019 adult grandchildren statutory declarations – which all specify addresses in Sydney, and each of which was accompanied by a photocopy of the maker's Driver Licence showing an address in Sydney – together with the 1 June 2019 adult grandchildren statutory declarations (which also specify addresses in Sydney), it is likely that the Tribunal would have stated in definite terms (as it did earlier in that sentence for the appellant's siblings other than Sihan Gorgees and Mrs Hanna) that the adult grandchildren lived in Sydney; and (2) at T[30] the Tribunal concluded that there was "little to no evidence" before the Tribunal to confirm the appellant's claim that the (adult) grandchildren were unwilling to provide or contribute to the care required. In circumstances where there were six statutory declarations from the adult grandchildren the very clear import of which was that they were unwilling to provide any contribution to the care required (see [12(2) and (3)] and [14] above), it is unlikely that the Tribunal would have reached this conclusion after reading all of those statutory declarations. Further, the conclusion expressed at T[30] is consistent with the Tribunal having been aware that there were seven adult grandchildren and having considered the appellant's 1 June 2019 statement and his oral evidence, but not having read the 17 June 2019 adult grandchildren statutory declarations. 35 In my view the Tribunal also failed to consider the 1 June 2019 adult grandchildren statutory declarations. The Tribunal referred at T[28] to the evidence sent on 1 June 2019 but did not identify the 1 June 2019 adult grandchildren statutory declarations as part of that evidence. Further, the Tribunal made no reference in its reasons to any statutory declaration from any of the adult grandchildren. 36 The second question for determination is whether the Tribunal's error was a jurisdictional error because it was material in the sense that there was realistic possibility of a different outcome if the error had not been made: see MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at 524 [39] (Kiefel CJ, Gageler, Keane and Gleeson JJ). 37 In considering the likelihood of a different outcome an important factor is the way in which the Tribunal approached the question of whether reg 1.15AA(1)(e) had been satisfied. 38 The approach taken by the Tribunal was to identify the set of qualifying relatives – the appellant's siblings and the adult grandchildren – and then to consider the evidence available concerning that set as against the assistance required by Mrs Hanna. In doing so, the Tribunal was considering the limitations on each relative's ability to provide care as part of considering whether the applicant had demonstrated that the care required could not be provided by the set collectively. So much is clear from the references in T[21] to T[23] to the Tribunal not being satisfied that the appellant's Sydney-based siblings could not contribute to the care of Mrs Hanna and from the references in T[31] and T[32] to the Tribunal being unable to satisfy itself as to the level of assistance that was available, because of the state of the evidence. 39 The Tribunal's views concerning the evidence of the members of the set were, in summary, that: (1) as to the appellant's siblings: (a) Sihan Gorgees could not reasonably provide assistance as she lived in Melbourne (T[20]); (b) it was not satisfied that the appellant's other (Sydney-based) siblings could not contribute or provide some partial assistance (T[21] to [23]); (2) as to the adult grandchildren, the evidence was insufficient. 40 The Tribunal's ultimate finding was that inadequate evidence had been presented by the appellant on the question of the assistance that could be provided by Mrs Hanna's qualifying relatives and that as a result the appellant had not discharged his onus (T[31] to [32]). 41 In this context, it is realistically possible that a different outcome could have been obtained if the 17 June 2019 adult grandchildren statutory declarations (and the 1 June 2019 adult grandchildren statutory declarations) had been considered together with the evidence of the nature of the care needed and the evidence that the Tribunal in fact considered. This is because it was open to the Tribunal to have formed the view that: (1) the effect of the evidence concerning the Sydney-based siblings was that they could provide some contributions short of the total contributions required; (2) the effect of the evidence in the 1 June 2019 adult grandchildren statutory declarations and the 17 June 2019 adult grandchildren statutory declarations was that the adult grandchildren could not reasonably have provided assistance which would have made up that shortfall; (3) consequently, reg 1.15AA(1)(e)(i) had been satisfied. 42 Finally, no submission was made (and the Tribunal made no finding) that a different outcome would have been unavailable because of the operation of the remainder of reg 1.15AA(1) that the Tribunal did not address, namely reg 1.15AA(1)(e)(ii) and (f). 43 For the above reasons, I am satisfied that the Tribunal's error was material. G. Conclusion 44 For the reasons set out above, the appeal should be upheld with costs. I will make orders accordingly. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman. Associate: Dated: 7 July 2023