Akouch v Minister for Immigration and Multicultural Affairs [2026] FedCFamC2G 138

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. The applicant, a citizen of Lebanon, arrived in Australia in September 2016 on a visitor (class FA) (subclass 600) visa, and on 22 September 2017, made an application for a carer other family - residence) (class BU) (subclass 836) visa (the carer visa) to the (then) Department of Immigration and Border Protection (Department). His claim for the carer visa was advanced on the basis that he assisted with the care of his fraternal niece (referred to in these reasons as 'M') who had been diagnosed with Autism Spectrum Disorder.
2. The visa application was initially refused by a delegate of the (then) Minister for Immigration and Border Protection (now Minister for Immigration and Citizenship) (Minister) on 14 August 2018 (the first delegate decision) because the applicant had failed to provide the relevant certificate in support of the application within the time required.
3. The applicant sought a review in the (then) Administrative Appeals Tribunal (now Administrative Review Tribunal) (Tribunal) and on 20 November 2019, the Tribunal remitted the matter back to the Department for reconsideration.
4. On 31 January 2020, a delegate of the Minister again refused the application for the carer visa, on the basis that the applicant did not meet the relevant criteria (the primary decision).
5. The applicant sought a review of that decision by the Tribunal. On 15 July 2022, the Tribunal affirmed the primary decision (the Tribunal's decision). The Tribunal's decision was conditioned on its satisfaction that the assistance M required could be provided by her mother, and its lack of persuasion that the applicant would continue to provide the relevant assistance to M if his wife and daughter joined him in Australia.
6. The applicant applied to this Court on 10 August 2022 pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) seeking judicial review of the Tribunal's decision.
7. For reasons that follow, the application must be dismissed with costs.

1. At the hearing on 25 August 2025, the Court received the following into evidence:

(a) A court book compiled by the first respondent and comprised of relevant documents from the Department's file and the Tribunal's file concerning the visa application; and

(b) An affidavit of the applicant made 28 July 2025, annexing a transcript of the Tribunal proceedings on 20 May 2025.

1. The applicant filed an amended originating application on 30 July 2025 (the amended application) and proceeded upon the grounds in the amended application at the hearing. Those grounds are set out below.

1. The application to this Court for judicial review was made pursuant to s 476 of the Act, within the time stipulated in s 477(1) of the Act. There was no dispute that the Court has jurisdiction to entertain the application, nor was there any dispute that the Court's jurisdiction is exercisable to correct jurisdictional error.
2. Jurisdictional error describes a failure, by a person or body given authority under a statute to exercise a power, to comply with a condition attaching to the exercise of that power, where that failure has the result that the decision or exercise of power is regarded as lacking the authority of the statute. The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker may result where the decision-maker misunderstands the applicable law; asks the wrong question; exceeds the bounds of reasonableness; identifies a wrong issue; ignores relevant material; relies on irrelevant material; and in some cases, makes an erroneous finding or reaches a mistaken conclusion; or fails to observe some applicable requirement of procedural fairness: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [2]- [3]. In most cases an error will be jurisdictional in character only where it is material, in the sense that there is a realistic possibility that the decision could have been different if the error had not occurred: ibid [7].
3. Where it has jurisdiction, the Court is empowered by s 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) to make such orders as it considers appropriate.
4. The question whether the Tribunal decision involved jurisdictional error is considered below, following discussion of the applicant's visa application and his application for review.

1. The criteria for the grant of the visa sought by the applicant are contained in the Act and the Migration Regulations 1994 (Cth) (the Regulations).
2. Clause 836.221 of sch 2 of the Regulations must be satisfied in order for a visa of the kind sought by the applicant to be granted. That clause, as at the date of the Tribunal's decision, provided:

836.221

The applicant is a carer of a person referred to in clause 836.212.

1. Clause 836.212 of sch 2 of the Regulations then went on to state:

836.212

The applicant claims to be the carer of an Australian relative.

1. The term 'carer' is defined in reg 1.15AA of the Regulations as follows:

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

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

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

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

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

(iii) the impairment has, under the Impairment Tables (within the meaning of subsection 23(1) of the Social Security Act 1991), the rating that is specified in the certificate; and

(iv) because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and

(ba) the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

(c) the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister for this paragraph; and

(d) if the person to whom the certificate relates is not the resident, the resident has a permanent or long‑term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); and

(e) the assistance cannot reasonably be:

(i) provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

(ii) obtained from welfare, hospital, nursing or community services in Australia; and

(f) the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires.

(2) A certificate meets the requirements of this subregulation if:

(a) it is a certificate:

(i) in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and

(ii) signed by the medical adviser who carried it out; or

(b) it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures.

(3) The Minister is to take the opinion in a certificate that meets the requirements of subregulation (2) on a matter mentioned in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer.

1. Regulations 1.15AA(1)(b)(i) to (iv) refers to the resident (or their family unit member) having, according to a certificate that meets the requirements of subregulation (2), a medical condition causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life. The impairment must have a rating under the Impairment Tables contained in the Social Security Act 1991 of at least 30; and the person must, because of that condition, have a need for direct assistance in attending to the practical aspects of daily life that will continue for at least 2 years.
2. The subparagraphs of reg 1.15AA must all be satisfied in order for an applicant to meet the definition of "carer" therein. That is, if one of the requirements set out in the subparagraphs was not satisfied, an applicant would not meet the definition.
3. Central to the decision of the Tribunal the subject of the present application were the requirements in reg 1.15AA(1)(e) and (1)(f) that:

(e) the assistance required 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

(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.

1. Both were required to be satisfied for the applicant to meet the definition of "carer".
2. The operation of reg 1.15AA(1)(e)(i) was considered by Perram J in Valencia v Minister for Immigration and Border Protection (2019) 165 ALD 28; [2019] FCA 397, as follows:

9. ...(t)he effect of subcl (1)(e)(i) is that if the relatives of the person requiring care are residents and could reasonably provide this direct assistance then the visa applicant cannot be a carer. The severity with which this requirement operates may be observed: it does not ask whether the relatives will provide the direct assistance but rather only whether they reasonably could. Subclause (1)(e)(i) contemplates in its operation, therefore, that a person will not satisfy the carer requirements if there are Australian resident relatives who refuse to assist when they reasonably could: Nguyen v Minister for Immigration and Border Protection [2016] FCA 1460 at [45]- [53] per Bromwich J.

10. ...since subcl (1)(e) is cast in the negative it must be shown that the direct assistance cannot be reasonably provided or obtained.

11. Correspondingly, the Tribunal in coming to the opposite view is not obliged to work out a detailed analysis of a how a patchwork of familial or privately contracted care might combine to provide the required care: Nguyen v Minister for Immigration and Border Protection [2016] FCA 688 at [38]- [40] per Buchanan J. This has the effect - not immediately obvious when one first reads the subclause - of requiring the visa applicant to disprove a large range of potential scenarios involving the hypothetical assistance of the person to whom care is to be given.

1. In Nguyen v Minister for Immigration and Border Protection [2016] FCA 688, Buchanan J, considering reg 1.15A(1)(e) said at [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.

1. The "Ground 5" to which his Honour refers in the passage above was as follows:
   1. The Court erred in finding that the Tribunal had not sidestepped the question of how 24 hour care was to be provided to the [appellant], or had failed to give genuine, proper, or realistic consideration to that question.

5.1 The Court should have found that the Tribunal was required to consider, with a degree of particularity, what care each relative may have been able to provide; and how that might amount to 24 hour care.

1. The applicant, born 1 May 1978, is a citizen of Lebanon.
2. He first arrived in Australia in September 2016 on a visitor (class FA) (subclass 600) visa. The applicant's wife, and child born in 2013, remained in Lebanon.
3. On 22 September 2017, the applicant made an application to the Department for the carer visa. The application was made in respect of the applicant's niece (that is, his brother's daughter), "M", born in August 2013, who was diagnosed with Autism Spectrum Disorder. The applicant's brother, Mr Mohamad Akkouch (Mohamad) sponsored the applicant's carer visa. Mohamad and his wife, Mrs Maha (sometimes referred to as "Mahah") Akkouche (Maha), have three children, including M. It is timely to observe that throughout the materials concerning the application there appears a range of spellings of the applicant's family name across the different source documents. Where source documents are quoted herein, the spelling used in that document is reproduced.
4. In his application, the applicant stated that since his arrival in Australia, he stayed with Mohamad and helped with care for M. He stated that M became attached to him, and as Maha had been suffering 'major depression', the applicant had been looking after M.
5. In response to a question in the application about whether anyone had sought assistance from any Australian welfare organisation, doctor or health professional, hospital, nursing home or any other community service to assist M, the applicant responded in the affirmative, but stated that full-time assistance for M was not available.
6. Annexed to the carer visa application was a Child Development Unit Report of Dr Suzie Gardner on 9 February 2017 in respect of M, and a letter from Bupa Medical Visa Services dated 20 September 2017 which set out the requisite process for Bupa to conduct a medical assessment for a carer visa.
7. On 13 April 2018, the Department wrote to the applicant via email requesting more information in support of the carer visa, namely, that the applicant provide the Department with a Carer Visa Assessment Certificate (CVAC). The Department requested that the applicant provide an original of the final CVAC report to the Department by post within 28 days.
8. On 26 June 2018, the Department sent a further request for more information to the applicant, via an authorised recipient he had appointed early that month. The Department noted the initial request made on 13 April 2018, and that the Department was yet to receive the CVAC from the applicant.
9. On 14 August 2018, a delegate of the Department wrote to the applicant advising that his carer visa application had been refused (the first delegate decision) and attaching a decision record which set out the delegate's reasons for refusing the visa. The delegate found that the requirements under cls 836.221 of sch 2 and 1.15AA of the Regulations had not been met by the time of the decision, because the applicant had not provided the requested CVAC.
10. In fact, on 12 August 2019, the applicant had emailed the CVAC to the Department. The CVAC was dated 6 August 2019, and referred to a medical assessment of M conducted on 5 August 2019. The CVAC stated that M was assessed as having an impairment rating of 30 points, based on the Social Security Tables, consistent with reg 1.15AA(1)(c) of the Regulations.
11. The certificate identified M's need for assistance with:

(a) Bathing/showering. The certificate recorded M's sensory sensitivity to water which meant she required distraction whilst showering;

(b) Toileting, with M requiring help dressing afterwards;

(c) Dressing and grooming; and

(d) Supervision for personal safety, with M hitting herself in the face when she became irritable or unable to express herself, and a motor skill delay which meant she needed supervision around chairs and stools.

1. The functional assessment report that accompanied the certificate contained the following observations:

Compared to a child of the same age, [M] has significant difficulty concentrating on a task, reduced attention, reduced planning and problem solving skills and requires prompting and one-on-one attention to help direct her with tasks. Despite instructions and prompting, she is currently unable to fully dress, or wash/bathe herself and is fully dependent in this. She has a strong preference towards routine and can become upset when her routine is interrupted. [M] will also become upset when she is unable to express herself or understand others, which her mother says can happen on a daily basis. When becoming upset [M] may hit herself or others, is unable to self-soothe and requires another to console her. [M] will slap her face or hand flap when she is over excited or frustrated. [M] has sensory sensitivities to sounds, water and food. She will mainly eat snacks and occasionally requires hand feeding by her uncle as she won't eat her meal and accepts food only from him.

1. The applicant applied to the Tribunal for review of the first delegate decision.
2. On 21 November 2019, the Tribunal notified the applicant (via his authorised recipient) of the Tribunal's decision to remit the application back to the Department. A decision record, dated 20 November 2019, was annexed to the notification of decision cover letter (first Tribunal decision).
3. The first Tribunal decision records the applicant provided the CVAC dated 5 August 2019, in satisfaction of regs 1.15AA(1)(b)(i) to (iv), 1.15AA(1)(c), and 1.15AA(2) of the Regulations. However, the record noted that the delegate, in the absence of the CVAC, had not yet assessed the remaining requirements of reg 1.15AA, and accordingly remitted the decision for reconsideration with a direction that the criteria in regs 1.15AA(1)(b) and (c) were met.

1. On 11 December 2019, the Department wrote to the applicant requesting the following further information within 28 days:

(1) A copy of the full CVAC report dated 5 August 2019;

(2) A form 929 - Change of Address, in the event that the applicant's contact details had changed;

(3) Evidence the applicant was willing and able to provide the assistance M required;

(4) Evidence of M's entitlements under the National Disability Insurance Scheme (NDIS), including a copy of M's current NDIS funding plan;

(5) Evidence why the assistance purportedly provided to M by the applicant could not reasonably be obtained from welfare, hospital, nursing, or community services in Australia (the requirement in reg 1.15AA(1)(e)(ii));

(6) Clarification about whether any person is currently or has been receiving a carer's payment in regard to providing care for M;

(7) A declaration of all adult relatives of Mohamad (the applicant's brother) in Australia; and

(8) Evidence of why any other relative in Australia could not reasonably provide assistance to M. The Department required Maha and any other relative of Mohamad's in Australia not listed in the application and over the age of 18 to provide a statutory declaration and supporting evidence as to why they could not provide the required assistance.

1. On 9 January 2020, the Department received a bundle of documents from the applicant addressing the information requested by the Department by their letter dated 11 December 2019.

1. On 31 January 2020, a delegate of the Department wrote to the applicant advising that his visa application had again been refused (the second delegate decision) attaching a decision record (second delegate decision record).
2. The delegate was satisfied that regs 1.15AA(1)(a), (b), and (c) of the Regulations had been met: the applicant was a relative of Mohamad (the resident) and provided a satisfactory CVAC recording the relevant impairment rating.
3. The delegate found that reg 1.15AA(1)(d) of the Regulations was satisfied, and proceeded to consider reg 1.15AA(1)(e)(i) of the Regulations, whether the assistance required could not reasonably be provided by another relative of Mohamad.
4. The delegate noted that the Department requested that the applicant provide statutory declarations of all of Mohamad's adult relatives in Australia as to why it would be unreasonable for them to provide assistance to Mohamad and what assistance, if any, they currently provided to him. In response to that request, the applicant provided a statement from himself and two statements from Maha.
5. The delegate noted that in the applicant's statement he made reference to six of Mohamad's relatives, but it was unclear whether that was an exhaustive list. There was no evidence why it would be unreasonable for any of those six individuals to assist in M's care. The applicant had not responded to the question whether any person was in receipt of any carer payment from, nor provided evidence about any engagement with National Disability Insurance Scheme services.
6. In Maha's statement, she stated that she suffered from back pain, anxiety, and depression. However, the delegate further noted that no medical evidence was adduced to support the claim that she suffered medical conditions which prevent her from providing the assistance.
7. The delegate was not satisfied that the applicant satisfactorily demonstrated that the assistance Mohamad required to care for M could not reasonably be provided by Maha, either individually or in conjunction with assistance from other relatives or service providers in Australia, and found that regs 1.15AA(1)(e)(i) and (ii) were not met by the applicant.
8. The delegate found that the applicant did not meet reg 1.15AA(1)(f) on the basis that the applicant did not have any relevant qualifications or experience to provide the specialised care required by his niece. The delegate gave little weight to the photographs showing the applicant interacting with his niece and observed that the applicant offered no insight or evidence as to how he would support himself and his family without recourse to paid employment and how he would be able to balance his commitments to his own family to those he had to care for M. The delegate was not persuaded it was culturally appropriate for the applicant to undertake M's intimate care and observed the absence of evidence addressing the issue.
9. The delegate concluded that the applicant did not meet the definition of "Carer" in regulation 1.15AA and consequently, cl 836.221 in Schedule 2 of the Regulations was not met. The delegate refused the application.

1. On 5 February 2020, the applicant made an application to the Tribunal for review of the second delegate decision.
2. The Tribunal invited the applicant to provide further information in support of his application. The applicant provided the Tribunal with statutory declarations by himself, Mohamad, Maha and Mohamad's five siblings as to why they were unable to provide the required assistance for M.
3. The applicant's declaration stated:

Maha suffers from severe depression and anxiety and gets regular counselling from a psychologist (Amanda) as well as being medicated for her mental illness. Thus, Maha requires a lot of support in the care of her daughter [M]. Maha is unable to cope with her daughter's demanding needs on her own.

1. Mohamad's declaration referred to Maha's "severe depression and anxiety", and stated that M's "needs are demanding and exhausting and my wife's inability to do much due to her mental health puts us at a disadvantage".
2. In her statutory declaration Maha said:

...since [M]'s diagnosis my life has taken a turn and I have suffered severe depression and anxiety. I have needed to seek medical help from a psychologist and have been prescribed strong anti-depressants that I now cannot live without, leaving me helpless with caring for my daughter [M] whose disability is demanding and at times feels debilitating as I struggle with my own medical health issues. My condition has limited my ability to get a job and work and/care for my family especially my daughter [M], struggle to engage in many activities with her and support her in her development as she requires me to but her demanding needs is too stressful for me.

1. The applicant provided to the Tribunal a Patient Health Summary in respect of Maha which was dated 15 February 2022 (the patient health summary) and stated that Maha had suffered from depression and anxiety for "long time", was receiving regular counselling from a psychologist and was on Efexor daily. Notes concerning her history nominated 22 June 2017 as a date upon which the applicant was seen for anxiety/depression.
2. A report dated 21 February 2022 from Amanda Sahagian, psychologist, stated that the applicant suffered a Major Depressive Disorder with a comorbid Anxiety Disorder, triggered by M's diagnosis and the death of a cousin (the Sahagian report).
3. The Sahagian report recorded that Maha had reported depressive symptomatology, namely:

...feelings of worthlessness, helplessness, hopelessness, constant low mood, anhedonia, low motivation, decreased appetite, reduced sexual drive, social withdrawal, low energy levels, fatigue, poor sleep, and poor attention and concentration. She reported anxiety symptomatology including shortness of breath, chest tightness, heart palpitations, hot flushes, sweatiness, shakiness, impending doom, nervousness, body numbness, nausea, dry mouth, and fear of death of self.

Mrs. Akkouche's mental health state is severe and her symptoms have exacerbated due to the perpetuating triggers in her life. Additional stressors to Mrs. Akkouche's disorder can hinder her treatment program and progress and thus delay the recovery process. This has been a stressful time for her and these stressors can have debilitating effects on her fragile and unstable mental state and increase the symptom severity of her mental diagnoses.

1. Although Ms Sahagian stated that Ms Akkouche had sought counselling since June 2017, her report did not identify how frequently she had provided such counselling over the period that had elapsed since she first saw Ms Akkouche.
2. The Tribunal held a hearing on 20 May 2022. A transcript of that hearing was before the Court. During the applicant's evidence the Tribunal asked the applicant to explain his comment that Maha "can't work" and he answered, "She's like, you know, maybe she's got stress or depressed" (Transcript 20 May 2025, p.11 lines 30-33).
3. However, the evidence given by both the applicant and Maha at the hearing confirmed that Maha provided the intimate care for M. The applicant was asked a series of questions about the support provided by himself and Maha and accepted the following proposition by the Tribunal (Transcript 20 May 2025, p.22 lines 17-20):

it sounds to me like her mother does most of the caring, the dressing, the helping her to get ready for school, taking her to school, cooking her meals?

1. Maha was asked a series of questions about the support provided by herself and the applicant and accepted the following characterisation by the Tribunal (Transcript 20 May 2025, p.38 lines 28-33):

[the applicant] spends time with her...And he soothes her and has a good relationship. But most of the daily activities are looked after by yourself.

1. In its reasons dated 15 July 2022, the Tribunal set out the evidence before it at [15] then summarised the hearing at [16] and following.
2. At [21], the Tribunal described the circumstances of the applicant's wife and daughter who remained in Lebanon living in a house they own. The Tribunal noted that the applicant's wife came from a well-off family and that she had access to an inheritance. The applicant also had four siblings still living in Lebanon.
3. At [23], the Tribunal said:

The Tribunal asked the applicant about [M's] health conditions. He named her condition and the characteristics of her behaviour that arise from it. The Tribunal asked the applicant to describe the assistance he provides. He said in the mornings, her mother wakes her and helps her to get ready for school. She helps her with bathing, toileting and dressing. He gets the lunch box ready. Most of the time her mother takes her to school, but if she is not feeling well he will do that. When asked how often that is, he said in the past week he may have taken her twice. Around 2.30 Maha or he goes to collect her from school. Again usually it is her mother, but if she is unwell he will go and get her. When she comes home he will take her anywhere she wants to go. Sometimes they go to the park or for a walk. The applicant said whatever she wants, Maha interprets for him and he does for her. The Tribunal asked what language they communicate in. He said she mainly speaks in English and if he cannot understand he asks her mother. In the evenings he sits with her and plays. The applicant confirmed that he does not attend to the personal care needs of [M]. Her mother does all of that. The sister and brother don't offer any assistance because they are busy getting their own things done. They take themselves to university and school respectively.

The Tribunal discussed with the applicant that the CVAC lists the areas of care that [M] needs assistance with and most relate to personal care and grooming, which he has said he does not do and her mother does for her. It put to him that this may lead the Tribunal to find that the relevant care assistance is being provided by her mother. The applicant said that whenever the mother is unable to do it he does it. He has no issue attending to her personal care needs, as he considers her like his own daughter, but he conceded that mostly her mother does those things.

1. At [27]-[28], the Tribunal recorded the following:

The Tribunal discussed with the applicant his suitability to care for [M], given his background, gender and his own family responsibilities. Regarding his intentions for his wife and daughter, he confirmed that he would like for them to join him here and he believes they can help him to care for [M]. His daughter is a similar age to [M] and he considers her like his own daughter. The Tribunal put to him his employment history as indicated in Department forms and noted that he does not appear to have any special skills or qualifications to care for a child with autism. On the other hand, his employment history as a cement renderer is compatible with his brother's business and the Tribunal may have concerns that he has been or will seek to work for paid income as a renderer or in a related industry. The applicant confirmed he has never done any courses relating to caring for children with autism because he did not know he needed to. He denies he has worked for his brother. He said if he wasn't willing and able to provide the care he would not have applied to stay here on that basis.

The applicant confirmed his brother has been financially supporting him to date, and if his family comes here they will live with his brother's family and his wife will help to care for [M]. The Tribunal asked why he would be any different to his other siblings and decline to offer assistance because of his own responsibilities. He said he would not do that. They all have been here for a long time and have their own problems.

1. The Tribunal summarised the evidence of Maha, M's mother, at [30]-[31], as follows:

The witness confirmed that she does not work outside the home. The Tribunal asked her to describe her daily routine. She wakes between 7and 8 am and helps [M] get ready for school. She helps her with her toileting, bathing, dressing. She makes her breakfast and lunch. The applicant packs her lunch box. The applicant drives [M] to school if there is any reason that she is unable to do so. The Tribunal noted that the applicant's evidence was that mostly she drives her to school and he only does so if she is unwell. She confirmed that is correct. The other two children get themselves ready for school and university and do not have time to help with [M]. [M]returns from school at 2.45pm. She goes to pick her up by car. When they return home she changes her clothes and gives her something to eat. [M] may then spend time with the applicant. On Tuesdays and Thursdays she has regular appointments with specialists, arranged under her NDIS plan. In the evenings the applicant entertains her. The witness will help [M] with any homework she may have.

The Tribunal asked the witness what language [M] communicates in. She said she mostly speaks in English as she speaks little Arabic. [M] and the applicant manage to communicate through English and signs. At bedtime [M] takes medication to help her sleep and the witness is responsible for giving her this. During the night she may wake and when she does she sometimes seeks comfort from the applicant.

1. The Tribunal summarised the evidence of Mohamad as to the provision of care to M as follows, at [36]-[37] as follows:

The Tribunal asked the witness what assistance he needs to care for his daughter. He said since the applicant has been living with them his daughter has become used to him and comfortable with him. He (the witness) works very hard in his business to support the family. It became very difficult for his wife to care for their daughter and the applicant has been able to help his wife and she is very happy about that. The applicant helps with school drop offs and pick ups. The witness explained that he works long hours and in the evenings he also has to do paperwork so he has limited time to help care for his daughter. His other children are also busy with their own school work and study.

The Tribunal noted that the CVAC lists the daily activities that [M] needs assistance with and mostly they involved personal care, including toileting, showering and dressing and asked how the applicant is suitable to provide that assistance. The witness confirmed that most of that is done by his wife but if she is unable to do any of it the applicant is willing to do it. [M] is used to him now and she will allow him to help her. The Tribunal noted that they are now getting some assistance under the NDIS and asked why they would not seek further assistance from this scheme. He said assistance under NDIS is not available for the evenings and night. Also [M] does not trust anyone to assist her. They rely on the applicant now to provide the assistance if his wife is unwell. The Tribunal asked why his daughter, Hannah, who is now 18 cannot assist. He said she is not mature enough.

1. In the Findings and Reasons section of the Tribunal decision it dealt with the criterion in reg 1.15AA(1)(e), namely, the requirement that the assistance required cannot reasonably be provided by other means: relatives or other services available in the community at [52] to [61].
2. The Tribunal was satisfied (at [55]), that Mohamad worked full time in his business to support the family and had a need for long term or permanent assistance to provide direct assistance to M on a daily basis.
3. At [56], the Tribunal found that the applicant, Mohamad and Maha had been candid and forthcoming about the arrangements for M's care. The Tribunal found as follows:

...on the basis of this evidence the Tribunal finds that Maha, [M's] mother and spouse of the resident, attends to [M's] personal care on a daily basis. She gets her up in the morning, bathes her, dresses her, gives her breakfast and gets her ready for school. She is generally also the one who drives her to school, though the applicant occasionally does if Maha is unable to. Maha usually picks [M] up from school and helps her to change her clothes and gives her lunch. The applicant will collect her from school if Maha is unable to. The applicant spends time with [M] in the afternoons and on weekends, taking her out to the park, or to her grandmother's place.

1. The Tribunal accepted that Maha's other children did not provide any regular assistance given their own commitments.
2. The Tribunal accepted (at [57]) that no other relatives in Australia were in a position to provide assistance in caring for M. They each had their own family and health circumstances that meant the assistance required by M could not reasonably be provided by them.
3. At [58], the Tribunal concluded:

...the Tribunal finds that Maha, being the resident's spouse has been, and can reasonably continue to, provide the resident the assistance he requires to attend to the practical aspects of daily life for [M]. She has been undertaking the bulk of these responsibilities throughout the period that the applicant has been living with them to date. The applicant, Maha and Mohamad were consistent in their evidence that she attends to the personal hygiene care for [M]. The Tribunal finds that this care is being provided by, and is appropriate to continue to be provided by [M]'s mother.

The Tribunal is prepared to accept that the applicant has been helpful in the resident's family in the period he has been in Australia and that, as a result of the time he has been here, he has formed a significant relationship with his niece. However, the assistance to which r.1.15AA(1)(iv) refers relates specifically to assistance with attending to the practical aspects of daily life, and in this case, that assistance has been and is substantially attended to by the spouse of the resident. Given her relationship to [M] (as her mother) and the gender and cultural sensitivities of providing her personal hygiene care, the Tribunal finds that the assistance can, and is, reasonably provided by the resident's spouse.

For these reasons, 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 and therefore the requirements of reg 1.15AA(1)(e) are not met.

1. That is, the Tribunal's conclusion that the applicant had not met the requirement in reg 1.15AA(1)(e), was conditioned on its positive state of satisfaction that Maha was presently and could continue to provide the assistance required by M in attending to the practical aspects of daily life.
2. The Tribunal went on at [62] to [67] to address reg 1.15AA(1)(f); the question whether the applicant was willing and able to provide the assistance needed.
3. The Tribunal at [63] referred to the requirement in reg 1.15AA(1)(f) that the applicant be both willing and able to provide substantial and continuing assistance of the relevant kind, observing that the former concerns the applicant's state of mind, while the latter, requires an objective inquiry as to whether the applicant is suitable or fit to provide the assistance.
4. At [64], the Tribunal concluded:

The Tribunal considers that if the applicant's family joined him here, it is reasonable to conclude that he would similarly [to Mohamad's other siblings] be challenged by competing obligations to his wife and child, particularly given the lengthy separation they have endured. Additionally, taking into consideration the applicant's employment and skills history, the Tribunal is not satisfied that he would not seek to find employment in a field consistent with his background to support his family more comfortably. Taking into account this employment and qualification background, and his gender and cultural sensitivities of attending to the personal hygiene care assistance for his niece, the Tribunal finds that the applicant is not suitable to provide the substantial and continuing assistance of the kind needed.

1. The Tribunal concluded at [65] that the applicant was not willing and able to provide the assistance and did not meet the requirements of the subregulation.
2. The Tribunal affirmed the decision not to grant the applicant the visa.

1. The grounds advanced in the amended application are dealt with in turn below.

1. Ground 1 was as follows (emphasis in original):
   1. When it found that the applicant did not satisfy the requirement for a subclass 836 Carer visa that the assistance required by his niece could not reasonably be provided by any other relative - see reg 1.15AA(1)(e)(i) of the Migration Regulations 1994 (the regulations) - the Tribunal failed to complete the task required of it to review the decision of the first respondent.

Particulars

(a) The Tribunal failed to consider, or engage with evidence, that one of the "other relatives" who would provide assistance, being the mother of his niece, was significantly impaired in her ability to provide such assistance by her own mental illness

(b) The Tribunal focussed on the inability of the applicant to provide "intimate" care to his niece, and failed to consider, or engage with evidence, that he was providing a significant amount of non-intimate supervision for the personal safety of his niece, as well as assisting her with feeding.

1. The applicant's argument on this ground was put somewhat differently in his oral submissions to how it had been advanced in his outline of written submissions.
2. At the hearing, the applicant contended that he had made a substantial and clearly articulated claim that Maha was substantially debilitated by mental illness, which claim the Tribunal failed to consider. The applicant relied upon [24] of the judgment of Kiefel CJ, Keane, Gordon and Steward JJ in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17, where their Honours discussed the decision-maker's obligations to address representations made by the party affected, as follows:

Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder.

1. The applicant also relied upon the discussion in the following passage of Steward J in Kaur v Minister for Home Affairs [2019] FCA 2026 at [31], which summarised a number of authorities concerning the obligation of decision-makers to engage with the claims made by a visa applicant, both explicit and implicit:

In my view, the factors in Direction No. 69 which a decision-maker must take into account are those which have been the subject of substantial, clearly articulated claims made by the visa applicant. A failure to consider and engage with such claims may well constitute jurisdictional error: Dranichnikov v. Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ., at [95] per Hayne J.; Navoto v. Minister for Home Affairs [2019] FCAFC 135; SZSSC v. Minister for Immigration and Border Protection [2014] FCA 863; (2014) 142 ALD 150 at 172-176 [75]- [81] per Griffiths J. Alternatively, a failure to consider a claim engaging a factor listed in Direction No. 69 that is apparent on the face of the material before the Tribunal and which clearly emerged from that material, may also constitute jurisdictional error: NABE v. Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at 17 [55] and 22 [68] per Black C.J., French and Selway JJ.; AYY17 v. Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at 509 [18] per Collier, McKerracher and Banks-Smith JJ.

1. The applicant did not, by any written submission lodged with the Tribunal, or by any oral submission to the Tribunal, articulate an argument that Maha was "substantially debilitated" by mental illness. The applicant did not lodge any written submission with the Tribunal in support of his claim. The question that arises is whether that claim was apparent on the face of the material or clearly emerged from it.
2. I am satisfied that such a claim emerged from the material the applicant put before the Tribunal. The applicant's evidence raised for consideration the argument that, among the possible relatives who might have reasonably provided the relevant assistance, Maha could not reasonably provide such assistance, because of the vulnerability of her mental state.
3. In Maha's statutory declaration, she stated that she was:

...helpless with carring (sic) for my daughter [M] whos (sic) disability is demanding and at times feels debilitating as I struggle with my own mental health issues. My condition has limited my ability to get a job and work and care for my family especially my daughter [M] struggle to engage in many activities with her and support her in her development as she requires me to but her demanding needs is too stressful for me.

1. Both the patient summary and the Sahagian report referred to Maha's long history of depression. Her mental health state was described as "severe" and her mental state "fragile and unstable". The Sahagian report referred to a range of symptoms that might be thought likely to affect the capacity of a person suffering them to attend to the care of a child who required supervision to manage the risks posed by her disability. The identified fragility of Maha's mental state raised for consideration whether her present capacity to provide assistance may be compromised and not continue into the foreseeable future. Although the patient summary and Sahagian report were listed at [15] of the Tribunal's reasons, the Tribunal did not otherwise acknowledge, discuss, or analyse their contents. Given the Tribunal's disposition of the question raised by reg 1.15AA(1)(e) was rooted in its view about Maha's capacity to provide the relevant assistance, the question whether Maha was suffering from a condition that was affecting (or would likely in the foreseeable future, affect) her capacity to provide the assistance referred to in the CVAC, including the necessary supervision to ensure M's safety, should have been addressed by the Tribunal. It was insufficient for the Tribunal to merely acknowledge in its reasons that Maha was at times unwell, or unable to provide the assistance M required.
2. There are some obvious criticisms to be made of the Sahagian report. It does not identify the extent of contact between the psychologist and Maha and contains limited reasoning to support the diagnosis referred to therein. Nor does it address the question of the impact of Maha's condition on her capacity to provide the relevant assistance. However, the Tribunal member did not reject the report, or decline to give it weight, for those or any other reasons. The Tribunal did not refer to the report at all and did not make any finding about the nature of Maha's condition.
3. The evidence of the assistance being provided by Maha might arguably have provided a basis to be satisfied that the condition referred to in the Sahagian report did not significantly impact Maha. However, the Tribunal did not reach any such conclusion about Maha's condition as it did not identify or address at all the question of her condition and any effect it was having and would have on Maha's capacity to provide the assistance, in the present, or in the reasonably foreseeable future.
4. I am satisfied that the Tribunal erred in failing to address that part of the applicant's case.

1. Ground 2 was as follows:
   1. When it found that the applicant was not suitable or fit to provide the required assistance to his niece - see reg 1.15AA(1)(f) of the regulations - the Tribunal at [64] found that the applicant's ability to provide the required assistance would be hampered by the factors set out below, each of which were unsupported by the evidence and not open to the Tribunal.

Particulars

(a) The first such factor was competing obligations to the applicant's own family similar to those faced by five other relatives in Australia who were not able to assist.

(b) The second factor was the applicant's own family, because of the "lengthy separation", they had endured.

(c) The third factor was consideration the applicant's employment and skills history, which the Tribunal was not satisfied would not cause him to seek to find employment rather than provide the required assistance to his niece.

1. In his written submissions the applicant submitted that there was no evidentiary foundation for the Tribunal's statement in [64] that:

The Tribunal considers that if the applicant's family joined him here, it is reasonable to conclude that he would similarly be challenged by competing obligations to his wife and child, particularly given the lengthy separation they have endured.

1. The applicant submitted that the evidence about the other siblings (of M's father Mohamad) was that they each had pressing reasons why they were unable to provide the required care for M; one had a child with a brain tumour, three had multiple children and/or grandchildren of which they had the care, and the other suffered panic and anxiety attacks.
2. To establish that there was "no evidentiary foundation" for the Tribunal's finding, the applicant faced a high hurdle. That ground "cuts out" (or may not be made out) where there is even a skerrick of evidence supporting a conclusion: MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [59].
3. I do not read the Tribunal's use of the word "similarly" in [64] of the Tribunal's reasons as suggesting that the applicant's circumstances of having a wife and child without any identified illness or disability were comparable to having a child with a brain tumour, or suffering from panic and anxiety attacks. The Tribunal was not expressing a view about who had suffered the most, or who had the most dependants. Rather, the "challenge" to which the Tribunal refers in the passage is the existence of obligations to immediate family members who are present. The applicant had been living apart from the members of his immediate family whilst living in Australia. Given he was anxious to be reunited with his wife and child, it might reasonably be thought that if reunited, he would be principally responsible for providing them with care and support, and that his obligations to them would affect his capacity to spend time providing assistance to M.
4. There was an evidential basis for the Tribunal to think that there would be demands on the applicant's time if the applicant and his wife and child resumed family life together. The applicant had left Lebanon in 2014 (the year following his daughter's birth) and his daughter and wife continued to live there. It was reasonable for the Tribunal to infer from the period of separation, and the fact that a resumption of family life would involve the applicant's wife and daughter changing countries, that there would be a significant adjustment in resuming family life, and that the applicant's wife and daughter would look to him for support in establishing themselves in their new country as he was husband, parent, and the family member most familiar with their new country. Contrary to the applicant's submission, the conclusion did not contain the unwarranted assumption that "a wife migrating to join her husband in Australia with their teenage daughter would be likely to require the sort of attention which would prevent a husband who is not otherwise employed from assisting his brother and sister-in-law with the care of their disabled daughter". Rather, the Tribunal's lack of satisfaction that the criterion was met was based on a reasonable inference about the ordinary obligations of family life. It would have been foolish to think anything other than that the applicant's wife and daughter would experience significant challenges in resuming family life in a new country with new living arrangements after a long separation, and that the applicant would bear the principal responsibility for assisting them in that adaptation.
5. The applicant also challenged, on a "no evidentiary foundation" basis, the following passage in [64] of the Tribunal's reasons:

Additionally, taking into consideration the applicant's employment and skills history, the Tribunal is not satisfied that he would not seek to find employment in a field consistent with his background to support his family more comfortably.

1. There was evidence before the Tribunal to support the Tribunal's expression of doubt that he would not continue to commit himself to being a voluntary carer. The applicant had been living in his brother's house without any income other than what his brother provided for him. If his wife and child joined him, they would have needs to be met. The applicant possessed skills as a cement renderer and mechanic that could be deployed to earn an income and provide for himself and his family. The Tribunal's conclusion was not lacking in any evidentiary foundation as the applicant contends.
2. In order for the Tribunal to find that the applicant met the definition of "carer" in the Regulations, it was required to be positively satisfied as to the applicant's willingness and ability to provide the relevant assistance. The Tribunal was entitled to conclude that it was not satisfied as to the applicant's willingness and ability to provide the assistance if it doubted that the applicant would be willing to continue to live without an income, or doubted that he would be able to continue to devote considerable amounts of time to the care of his niece when his wife and child joined him.
3. The Tribunal did not err as alleged in Ground 2.

1. Ground 3 was as follows:
   1. When making the finding referred at paragraph 2, above, the Tribunal also failed to take into account that his wife and child would be unlikely to join him in Australia for an extended period of time, possibly longer than the two-year period required for the assistance, even if the applicant was granted a subclass 836 Carer visa.
2. The applicant submitted, by reference to data it attributed to the Department of Home Affairs website, that 50 per cent of offshore applications for partner visas are processed within 17 months and 90 per cent are processed within 25 months. As a consequence, the applicant submitted, there was a 50 per cent chance of the applicant's wife and daughter joining him within the two year period for the provision of assistance.
3. The applicant alleged that the Tribunal erred in failing to consider how long it would take the applicant's wife and daughter to join him in Australia.
4. The Tribunal did not err as the applicant alleges. There was no evidence or submission before it as to the time it would take any visa for the applicant's wife and child to be processed.

1. I have concluded that the Tribunal erred as alleged in Ground 1 in failing to have regard to the applicant's claims concerning Maha's illness when it considered the applicant's satisfaction of reg 1.15AA(1)(e) of the Regulations. However, I have not been persuaded the Tribunal erred, as alleged in Grounds 2 and 3, when it dealt with the applicant's satisfaction of reg 1.15AA(1)(f) of the Regulations.
2. Had the Tribunal properly considered the claim concerning Maha's illness it would have evaluated the patient health summary and the Sahagian report, and addressed the question about Maha's present and future capacity. None of that consideration could logically affect the further question, posed by reg 1.15AA(1)(f), about the applicant's willingness and ability to provide the assistance M required. The Tribunal's lack of satisfaction that the latter criterion was met, providing an independent basis for it to affirm the decision of the delegate. I am satisfied that the decision the Tribunal made could not realistically have been different if it had not made the Ground 1 error, but had instead properly considered the applicant's claim concerning Maha's illness.
3. I am not satisfied, therefore, that the Tribunal's error, found in respect of Ground 1 above, was jurisdictional in character.

1. Given the conclusion that I have reached that the Tribunal's error was not material, and therefore not jurisdictional, the application must be dismissed. I will order the applicant to pay the first respondent's costs. I will hear the parties as to the quantum of that order.

I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust.