Desta v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 1199

1. On 16 March 2020, the Department of Home Affairs (Department) wrote to the applicant requesting additional information (CB 105-113). The applicant, through her social worker, provided these additional documents on 29 April 2020 (CB 130-177). On 12 May 2020, the applicant provided a letter from Dr Mohammad, in which he gave an update on the applicant's psychological condition (CB 179-180) (the second Mohammad report). In the second Mohammad report, Dr Mohammad wrote:

...The established rapport is an integral valuable aspect in her overall treatment. Similarly, she requires a family member whom she shares a close bond with as well as an affiliated cultural understanding to assist her with all aspects of her daily life. From a physical perspective, Ms Desta requires personal assistance with self-hygiene. Due to her cultural and religious sensitivities the quality of this assistance is essential in ensuring she is comfortable and not causing her any further distress. Henceforth I am inclined to recommend a family member to assist in providing such care as it will be more contributive and productive to Ms Desta's general health and wellbeing. I do believe that assistance from a stranger will cause her further distress and emotional anguish...

1. On 19 June 2020, a delegate of the Minister refused to grant the visa applicant and her family members the visa (CB 181-193). In the decision record, the delegate noted that despite requesting this information, the Department had not received any further supporting evidence as to the inability of the applicant's Australian relatives (two nieces and a nephew) to provide her with assistance. The delegate found that in the absence of evidence that the applicant was genuinely estranged from these relatives, it was not satisfied that it had been demonstrated that it would be unreasonable for the relatives to contribute to the applicant's care with the result that reg 1.15AA(1)(e)(i) of the Migration Regulations 1994 (Cth) (Regulations) (an element of the definition of "carer") was not met.
2. The delegate was also not satisfied that it had been demonstrated that the care the applicant required could not reasonably be obtained from welfare, hospital, nursing or community services in Australia. The delegate found that reg 1.15AA(1)(e)(ii) (a separate component of the definition of "carer") was also not met with the further consequence that the visa applicant was unable to satisfy cl 116.221 of Schedule 2 of the Regulations.
3. On 7 June 2022, the applicant applied to the Tribunal for review of the delegate's decision (CB 204-216). The application was made significantly out of time it appears because the applicant and her sister in Ethiopia, were only made aware of the adverse decision in around April 2022, when a social worker who had been providing support to the applicant in connection with the visa application, made further inquiries of the Department (CB 229-234). Ultimately, after the exchange of much correspondence, the Tribunal accepted that it had jurisdiction to deal with the review application due to irregularities in the notification process.
4. On 20 December 2023, the Tribunal wrote to the applicant with a request that she obtain and provide a new Carer Visa Assessment Certificate (CVAC) to determine whether the visa applicant met the definition of the term "carer" pursuant to regulation 1.15AA of the Regulations (CB 252-254).
5. On 13 March 2024, the applicant's social worker (and informal advocate) sent the Tribunal a copy of the applicant's satisfactory CVAC (CB 281) and Medical Adviser's Report (CVAC Report) (CB 272-280), both of which were based on a medical assessment performed on 20 February 2024. The email also attached copies of a letter from the applicant's GP and from the Chairperson of the Tigrian Community Association in Victoria, as well as a letter from the applicant's treating psychologist, Dr Mohammad (CB 282-283) (the third Mohammad report). In this correspondence, Dr Mohammad reiterated his previous concerns regarding the applicant's health, and his recommendation that she be supported by "a sibling with the same cultural affiliations".
6. The CVAC Report contained information including, under the heading "Impairment Rating" (CB 272):
   • The answer "Yes" to the question "Does the medical condition result in the need for personal care and attention on a daily basis to carry out routine bodily functions?".
   • The answer "Yes" to the question "Does the medical condition result in the need for constant supervision or monitoring because the person requiring care may be a danger to themselves or another?".
   • Characterisation as "permanent (at least 2 years)" of the need described in the preceding two sub-paragraphs.
   • The applicant suffered from "Chronic pain secondary to injury, impacting upon the function of the upper limbs" and "depression secondary to chronic pain and bereavement, impacting upon mental health function".
7. The CVAC Report recorded that the applicant required assistance with mobility, bathing/showering, dressing/grooming, eating/feeding, supervision for personal safety and transportation. The overall level of dependence with these activities of daily life was described as "partially dependent" (CB 276).
8. The CVAC Report certified the applicant as achieving, against the Social Security Act 1991 (Cth) rating of permanent medical conditions, a total score of 40 reflecting scores of 10 in each of chronic pain secondary to injury, impacting upon the function of the upper limbs and chronic pain secondary to injury, impacting upon ability to bend or turn the back, trunk and neck and a score of 20 in depression secondary to chronic pain and bereavement, impacting upon mental health function (CB 272).
9. On 9 April 2024, the Tribunal invited the applicant to attend a hearing on 1 May 2024 via videoconference (CB 294-301). The applicant participated in this hearing, along with her social worker. The visa applicant and her husband also participated in the hearing remotely and with the assistance of an interpreter in the Tigrinya and English languages (CB 322-324).
10. On 7 May 2024, the applicant's social worker sought an extension of time on the applicant's behalf to provide further evidence to the Tribunal (CB 325). The extension was granted (CB 326).
11. On 10 May 2024, the applicant appointed a lawyer as her authorised representative. A request made by the representative for some additional time to file evidence was granted by the Tribunal (CB 343).
12. On 31 May 2024, the applicant's representative sent an email to the Tribunal which attached the following documents (CB 345-366):
    • a statutory declaration from the applicant;
    • a statutory declaration from a community leader Mr Tesfahun Wubneh (identified as the President of Tigrian Community Association in Victoria) dated 30 May 2024 (the Wubneh declaration);
    • a statutory declaration from the applicant's ex-husband dated 5 March 2024;
    • a BUPA Carer certificate (the BUPA certificate);
    • a letter from the applicant's general practitioner;
    • a letter from the applicant's psychologist;
    • a support letter from the applicant's social worker, Ms Adams; and
    • submissions by the applicant's representative.
13. The Wubneh declaration read (CB 362):
    1. I am a community leader in the applicant (Ms Helen Desta's) community.
    2. I was approached regarding the situation involving Ms Desta's nieces and nephew.
    3. I contacted Ms Desta's niece (Mrs Mihret Kahsay Hadush) on 4th April 2024_who confirmed she was unable to assist in this matter or provide ongoing full-time assistance to Ms Desta.
    4. I contacted Mrs Desta's niece (Mrs Mebruit Kahsay Hadush) on 4th April 2024 who confirmed she was unable to assist in this matter or provide ongoing full-time assistance to Ms Desta.
    5. I understand Ms Desta's Nephew (Mr Ephrem Berihu Mahari) is unable to assist in this matter or provide support as he is currently in incarceration.
    6. There has been no contact with Helen for many years, specifically for approximately 13 years.
14. On 3 June 2024, the Tribunal affirmed the decision of the delegate and produced a written statement of decision and reasons (R) (CB 370-384).

1. The Tribunal identified the issue in the case as whether the visa applicant was a carer of the applicant at the time of decision and noted that resolution of this question directed attention to the definition of "carer" in reg 1.15AA of the Regulations.
2. The Tribunal considered whether reg 1.15AA(1)(e) could be satisfied by firstly assessing "the level and particulars of the assistance required by [the applicant]" (R [20]). The Tribunal did so by reference to the CVAC dated 20 February 2024 and noted findings recorded by the examining doctor, as well as the applicant's overall impairment rating of 40 points (R [21]-[27]). The Tribunal also referred to and reproduced parts of the third Mohammad letter, a letter from the applicant's GP dated 24 January 2024 (R [28]-[29]), evidence given orally and in writing by the applicant, and the oral testimony of the visa applicant and the visa applicant's husband (R [31]-[33]).
3. The Tribunal recorded the following at R [35], with references to "the resident" being a reference to the applicant:

The Tribunal has considered the information in front of it, including the above information and testimony, when assessing the level and particulars of the assistance required by the resident. While it notes information from the resident and others about her requiring "24/7" or "full-time" care, and specifically that she requires assistance overnight, it gives more weight to the contents of the CVAC in finding that the resident is partially dependant on other people to undertake activities of daily living. It considers that if she required assistance overnight as was assessed by her in the "Statement of assistance" dated 31 January 2024, then she would have been assessed as being "fully" dependent on others by the examining doctor in the CVAC.

1. It concluded about the level and particulars of the assistance required by the applicant at R [36]:

The Tribunal finds that the resident requires assistance with some mobility activities due to her inability to abduct or flex her shoulder joint beyond 90 degrees or bend forward to pick up objects at knee level. it finds that she required assistance with bathing and showering, and specifically washing her hair given shoulder limitations. It finds that she requires assistance dressing herself (again given her shoulder limitations). It finds that she requires assistance with eating and feeding although no particulars were given in the CVAC. It finds that she requires assistance with supervision for personal safety. The examining doctor noted that she requires assistance with supervision for personal safety. The examining doctor noted that she was unable to concentrate on tasks and often forgets her medical appointments and medications. It finds that she requires assistance with transportation, and notes that she was found not to be able to drive. Finally, although the resident has said by her GP in his letter of 24 January 2024 to have developed glaucoma that has resulted in ongoing issues with her vision, it finds that this condition would have been considered by the examining doctor in the CVAC given that the CVAC makes reference to the GP's letter.

1. The Tribunal then considered the question posed by reg 1.15AA(1)(e)(i) of whether the assistance cannot reasonably be provided by the applicant's relatives who are Australian citizens, Australian permanent residents or eligible New Zealand citizens.
2. In this context, the Tribunal referred to the applicant's evidence given at hearing that she had not had any contact with her nieces and nephew since 2011 and that she was unsure whether they would still have the same contact details (R [39]-[41]). The Tribunal referred to the applicant's submissions addressing the "substantial disconnect with her relatives within Australia" and noted that these submissions were accompanied by the Wubneh declaration and the applicant's statutory declaration, parts of which were reproduced by the Tribunal (R [42]- [44]).
3. The Tribunal found that the applicant had made no efforts to contact her nieces or nephew in the 13 years since they had become estranged. Insofar as the Wubneh declaration purported to contain evidence of the relatives' unwillingness to provide assistance to the applicant, the Tribunal identified two principal concerns with its reliability. First, the Tribunal described the relevant information - being that the nieces were unable to assist or to provide 'full-time assistance" - as hearsay. Second, even if true, the information was produced on the false premise that the assistance required by the applicant was full-time assistance whereas the Tribunal had earlier found that the assistance required was more limited (R [47]-[48]). The Tribunal placed little weight on the Wubneh declaration (R [49]).
4. The Tribunal otherwise discounted the applicant's explanation that her estrangement from her nieces meant that they would be unwilling to provide her with assistance. The Tribunal found that there was no probative information to show that they would be unable to provide assistance and in circumstances where that assistance would not need to be full-time. The Tribunal was not satisfied that at least some of the assistance required by the applicant cannot reasonably be provided by her nieces even if they have family duties of their own (R [50]-[51]). The Tribunal did however accept for present purposes that the applicant's nephew was currently incarcerated and would currently be unable to provide assistance to her (R [52]).
5. The Tribunal then considered the statutory question posed by reg 1.15AA(1)(e)(ii) of the Regulations, being whether the assistance required by the applicant cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia (R [53]).
6. In this context, the Tribunal referred to and extracted parts of a letter dated 30 January 2024 from Mr Wubneh in which he identified the nature and extent of the supports provided to the applicant by volunteers from the Tigrian community. The Tribunal referred to the applicant's evidence given at hearing about the community support and that she did not know if she could access other types of assistance and had not made any inquiries about her eligibility for the National Disability Insurance Scheme (NDIS) (R [54]-[57]).
7. The Tribunal referred also to evidence about the council's disability services (home care) and extracted submissions from the applicant's representative addressing reg 1.15AA(1)(e)(ii) (R [58]-[60]).
8. The Tribunal accepted that the applicant received up to three visits a week for two hours at a time from members of the Tigrian community and found that the arrangement was not reasonable in light of the applicant's level of dependence on others for assistance. The Tribunal accepted that the applicant required additional assistance and that council disability services would not be available to her where other organisations were providing those services (R [61]).
9. However, despite this acknowledgement of need, the Tribunal was not persuaded that the applicant had made her own case as to why assistance from external providers would be unreasonable. The Tribunal was especially concerned that the applicant had not made any inquiries into whether additional (or alternative) in-home services could be obtained and had not enquired into whether assistance could be obtained through the NDIS (R [62]-[63]).
10. The Tribunal's dispositive reasoning concluded with the following (at R [64]):

The Tribunal understands that the [applicant's] preference is for the visa applicant (her sister) to provide the assistance she requires. However, it considers that it must be satisfied that enquiries have been made about what additional services, if any, are able to be obtained before it can move on to consider whether the required assistance cannot reasonably be obtained from these services. In the present matter, and based on the information in front of it, the Tribunal finds that very few if any such enquiries have been made. Because of this, it is not able to be satisfied that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia in conjunction with the assistance that can reasonably be provided by relatives - in this case, [the applicant's] nieces if not her nephew. The requirements of rr. 1.15AA(1)(e)(i) and (ii), and ultimately r.1.15AA(1)(e) in its entirety, are not met.

1. The Tribunal found that the visa applicant was not a carer of the Australian relative (the applicant) and did not satisfy cl. 116.221. It followed that neither she, nor any of the four secondary visa applicants, satisfied the primary or secondary criteria for the grant of the visa or any of the visas in Class BO. The decision of the delegate was affirmed (R [65]-[69]).

1. To be eligible for the visa, the visa applicant was required to satisfy the criteria contained in cl 116 of Schedule 2 to the Regulations, which included the primary criteria described in cl 116.221. This provision, as well as those which relate to the core definition of "carer" are as follows.

116.21 - Criteria to be satisfied at time of application

116.211

(1) The applicant claims to be a carer of an Australian relative of the applicant.

(2) In this clause, Australian relative, in relation to an applicant, means a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

...

116.22 - Criteria to be satisfied at time of decision

116.221

The applicant is a carer of the Australian relative mentioned in clause 116.211.

1. Regulation 1.15AA(1) of the Regulations at the date of the Tribunal's decision provided the relevant definition of "carer" 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. Regulation 1.03 defined the term "relative" as:

relative, in relation to a person, means:

(i) a close relative; or

(ii) a grandparent, grandchild, aunt, uncle, niece or nephew, or a step‑grandparent, step‑grandchild, step‑aunt, step‑uncle, step‑niece or step‑nephew.

1. The applicant relies on an amended application for judicial review filed on 26 September 2024 as well as written submissions filed on the same date that were supplemented by argument at the hearing of the application on 22 October 2024. On this occasion, the applicant was represented by Mr Kenneally of counsel.
2. The Minister relies on written submissions filed on 11 October 2024 which were supplemented orally by counsel for the Minister, Ms McInnes.

1. Ground one reads:
   1. The Tribunal's findings that the applicant did not require 24/7 care or overnight assistance result in jurisdictional error as the Tribunal failed to:

1. have regard to a mandatory consideration being the Carers Visa Assessment Certificate Report (Report) and/or the opinion recorded in the Report as to the applicant's need for constant monitoring or supervision; 2. have regard to corroborative material relevant to its statutory task to assess the assistance the applicant required being the Report and/or the opinion recorded in the Report as to the applicant's need for constant monitoring or supervision; and/or

1. its conclusion was irrational, illogical, unreasonable.

Particulars

1. The Tribunal found the applicant did not require 24/7 care or overnight assistance because the Report stated that the applicant was only partially dependant on others for Activities of Daily Living.
2. The Report addressed the question whether the applicant required 'constant supervision or monitoring because the person requiring care may be a danger to themselves or another?' and answered 'yes'.
3. The Tribunal was required to consider the Report, and the opinions expressed in the Report relevant to the assistance required by the applicant.
4. The Tribunal failed to consider the Report's opinion at particular (b) and therefore failed to consider a mandatory consideration.
5. Alternatively, the Report's opinion at particular (b) was significant corroborative information, or an integral part of a clearly articulated argument by the applicant as to the level of assistance she required, which the Tribunal was required to consider.
6. Alternatively, the Tribunal's reasons for concluding that the Report indicated the applicant did not require overnight assistance or 24/7 care was unreasonable, irrational or illogical.
7. The error was material.

1. Ground one involves a challenge to the Tribunal's conclusion that it was not satisfied the applicant required supervision on a 24-hour basis and its rejection of her claim that she required overnight assistance. The applicant submits that these findings appear at R [35].
2. The applicant acknowledges that the Tribunal appears to support these conclusions by reference to the CVAC Report and the assessment that she was "partially dependent" on others for activities of daily living. However, the applicant submits that the basis for the Tribunal's inference that such an assessment would be inconsistent with a need for constant care or overnight assistance is not apparent. The applicant submits that to the extent the CVAC Report addressed the issue of scope of assistance, it did so directly and in response to the question "Does the medical condition result in the need for constant supervision or monitoring", which question was answered in the affirmative. The applicant submits that the omission of this part of the Report (which is reproduced at CB 272) in the Tribunal's reasons allows it to be inferred that this information was overlooked.
3. The applicant accepts that the CVAC, by virtue of its place in reg 1.15AA(1)(b) and reg 1.15AA(2) of the Regulations, is a mandatory relevant consideration and that the same character may not apply to all aspects of a CVAC Report. The applicant submits however that the opinion as to the need for supervision and monitoring had a mandatory quality because it went to the applicant's impairment rating, this being a matter about which reg 1.15AA(1) is directly concerned. The applicant submits that the Tribunal fell into error when it failed to have regard to this opinion.
4. Second, and alternatively, the opinion of the Assessor as to monitoring and supervision corroborated the applicant's claims about the extent of assistance required, which claims were critical and significant to the review and articulated in clear terms. The failure of the Tribunal to consider this opinion could be characterised as a constructive failure to complete the statutory task to have regard to the applicant's needs for assistance and by reference to evidence of significance (referring to Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99, [111]-[113]). Equally, it could be characterised as a constructive failure to consider a clearly articulated claim made by the applicant, or an integral part of that claim that she required constant monitoring and supervision.
5. The applicant submits that a third category of error also emerges, by the characterisation of the Tribunal's reasoning at [35] as irrational, illogical or unreasonable. This is said to follow from the failure of the Tribunal to provide an intelligible explanation for the conclusion that the CVAC Report suggested constant monitoring and supervision was not required when it positively said to the contrary. The Tribunal provided no reasons for why it inferred the Medical Assessor would have described the applicant as "fully dependent" for activities of daily living if she required overnight assistance and there was nothing in the CVAC Report that would support such an approach. In any case, as a matter of logic, a person could be "partially dependent" (i.e. able to do some activities themselves) but still require overnight assistance or monitoring. For the same reasons, the Tribunal's reasons failed to provide a rational basis for relying on the CVAC Report to reject the applicant's claim to need 24/7 care.
6. The applicant submits that the error was material. Had the Tribunal found the applicant required a degree of constant supervision or monitoring (including overnight assistance) as recommended by the CVAC Report, it may have been satisfied that such extensive support could not be met by the combination of government services and the applicant's nieces.

1. The Minister acknowledges that the CVAC and the CVAC Report must be read together to understand the assessment of the assistance required by the applicant but submits that this does not make every part of the Report (as distinct from the CVAC) a mandatory relevant consideration. The Minister submits that in the case of the Report, it was only the information appearing on page four (CB 276) and to which the Tribunal made explicit reference, that was required to be considered so as to illuminate the assistance required by the applicant.
2. The Minister submits that even supposing all of the Report was required to be considered, the applicant has not established that there was a failure on the part of the Tribunal to do so. In the context of the Report being a nine-page document, the Minister relies on the principle that an administrative decision-maker is not required to refer to every piece of evidence before it in its reasons for decision, or to engage in a line by line assessment of the evidence (referring to Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 at [46]-[47]). With these matters of context and principle in mind, the appropriate inference to draw is that the Tribunal read and considered the CVAC and the CVAC Report, as a whole, but did not consider the CVAC Report supported the applicant's claim to require 24/7 or full-time care.
3. In doing so, its focus, quite appropriately, was on the information appearing on page four. The Minister submits that the information explicitly referred to by the Tribunal was responsive to r. 1.15AA(1)(b)(iv) and ascertainment of the assistance required by the applicant. It was in this context that the Tribunal observed that the applicant had not been assessed as being "fully" dependent on others by the Assessor, and made findings about the assistance required (R [35], [36]).
4. The Minister submits that a fair reading of the Tribunal's reasons at [35] in any case suggests that it was the contents of the Report as a whole that did not support the applicant's contention that she required 24/7, full-time or overnight care. This observation was described by the Minister as consistent with the evidence, including that:

(1) the question emphasised by the applicant at CB 272 did not ask whether the applicant required 24/7, full-time or overnight care in those terms.

(2) nothing in the free text parts of the CVAC Report referred to any 24/7 need for supervision or monitoring, or any particular assistance that was required overnight.

(3) what was meant by the Assessor's assessment that "constant supervision or monitoring" was required was not explained in the CVAC Report. This being the case, there was nothing to controvert the possibility that was something less than 24/7, full-time or overnight.

1. The Minister submits that further clues that the Tribunal read and considered what appeared at CB 272 take the form of references by the Tribunal in its reasons to information that flowed from or was found only on that page of the CVAC Report. By way of example, the Tribunal used the language of "moderate functional impairment" (R [22], [24]) and "severe functional impairment" (R [25]) where such descriptions correlate to the ratings of 10 and 20 which were recorded as impairment ratings on the bottom half of the page.
2. The Minister submits that efforts by the applicant to appeal to SZRKT are misplaced having regard to the significance of the allegedly overlooked information in the assessment of the applicant's claims.
3. The Minister submits that the Tribunal's statutory task required it to consider and make findings about whether assistance required by the applicant could not reasonably be provided by relatives or obtained from others. While the Tribunal was required to consider the assistance required as part of that task, it was not required to make express findings about the person's need for assistance (referring to CYW21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1084 at [39]). On this analysis, the Tribunal's ultimate findings (recorded at R [64]) turned on it not being satisfied that the applicant's nieces could not provide "at least some level of assistance required" and the applicant not having made any enquiries about additional services from others, including the NDIS. Nothing in the conclusion concerning the application of reg 1.15AA(1)(e) turned on the Tribunal's findings about the actual assistance required by the applicant. In other words, the Tribunal's discharge of its statutory function was disconnected from any intermediate findings about the assistance required with the result that any failure of the Tribunal to consider evidence in the CVAC Report going to this matter would not involve jurisdictional error.
4. The Minister submits that the applicant's efforts to characterise the reasoning of the Tribunal recorded at R [35] as irrational, illogical or unreasonable should also be rejected. He submits that the only express finding recorded in that paragraphs was that "the resident is partially dependent on other people to undertake activities of daily living" which finding was plainly open based on what was contained in the Report (at CB 276). Insofar as the applicant takes issue with the Tribunal's failure to find that she required 24/7 care or overnight assistance, the Minister submits that this approach was open to the Tribunal based on the evidence before it, including that:

(1) The CVAC Report does not define the terms "partially" or "fully" dependent. An available interpretation of the Report was that the applicant was "partially dependent", meaning she would be able to care for herself part of the time, and would have been assessed as being "fully dependent" on others if she required assistance full time.

(2) The phrase "constant supervision or monitoring" does not only mean round-the-clock, 24/7 supervision. Instead, it can reasonably be understood to refer to frequent checks or regular monitoring intervals rather than continuous, direct observation. "Constant" does not equate to unbroken physical presence; rather, it implies consistent, attentive care tailored to the applicant's specific risks and needs. This could include regular check-ins, situational oversight, or heightened supervision during high-risk activities, as opposed to having someone present at all times. For instance, while the applicant may not require physical supervision every hour of the day or night, she might need regular monitoring or support systems to ensure safety in higher-risk situations (like cooking), while being less supervised in low-risk scenarios (like sleeping). This interpretation provides a more practical and proportionate understanding of what "constant supervision" entails.

1. The Minister submits that in circumstances where there are competing available interpretations of the CVAC Report, the high threshold of the error alleged has not been met.
2. The Minister also puts materiality in issue with respect to ground one. He submits that the counterfactual inquiry assumes that the Tribunal would have found that the applicant required 24/7 or overnight care. However, the historical facts remain that the Tribunal found that the applicant had not made any enquiries into whether additional in-home services could be obtained or whether assistance could be obtained through the NDIS. Further, no evidence had been put before the Tribunal of what assistance could or could not be provided through those services. In particular, there was nothing to show that those services could only provide service during the day but not at night or around the clock.
3. The Minister submits that in light of the facts as found and how the applicant presented her case to the Tribunal, it is not realistic that the Tribunal could have found the required assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia (in conjunction with any assistance that could reasonably be provided by relatives) because there was no evidence before the Tribunal of the unavailability of assistance from others. The Tribunal's course of reasoning that led it to conclude that reg 1.15AA(1)(e) was not satisfied could not have been any different even if it had found the level of assistance required was higher. Any error was therefore immaterial and not jurisdictional.

1. The resolution of this ground turns on acceptance of the Minister's argument that any postulated error was not, in the scheme of the Tribunal's reasoning, material.
2. Before I explain why this is the case, I wish to record my findings about the three alleged categories of error.
3. As to the first, being a failure to consider information in the CVAC Report made mandatory because of its significance to the applicant's impairment rating (a matter referred to in reg 1.15AA(1)(b) of the Regulations) I am not persuaded either that the opinion as to the need for constant supervision and monitoring possessed this quality or that the appropriate inference to draw from the Tribunal's reasons is that it was overlooked.
4. It is clear from authorities such as CYW21 that in making an assessment of whether, in a particular case, reg 1.15AA(1)(e) is satisfied, the decision-maker must have regard to the nature and extent of the relevant person's need for direct assistance in attending to the practical aspects of daily life but that this obligation falls short of requiring the decision-maker to record express findings about these matters.[1]
5. In this case, the Tribunal spent considerable time engaging in the exercise of "assess[ing] the level and particulars of the assistance required by the resident" as a step preliminary to engaging with the questions posed first by reg 1.15AA(1)(e)(i) and second, by reg 1.15AA(1)(e)(ii). The Tribunal's reasoning directed at this evaluation appears at R [21]-[36] and is replete with references to information that the Tribunal took from the CVAC and the CVAC Report (see R [21]-[27]) and from documents (namely the third Mohammad report and the letter from the applicant's GP dated 24 January 2024) that were referred to in the CVAC Report (R [28]-[29]).
6. Interestingly, while the parties to this proceeding made arguments that recognised the separate character of the CVAC Report and the CVAC, the Tribunal did not recognise this distinction in its reasons, referring uniformly to both documents, as "the CVAC" and referring to information that was taken from each of them, including information which, by implication, must have been extrapolated from the impairment table appearing at CB 272 (page 9 of 10 of the CVAC Report) and beneath the section which contained the supervision and monitoring opinion.
7. While the Tribunal did not expressly refer to this opinion, I consider that in circumstances where it made numerous references to most pages and sections of the CVAC Report and demonstrated a familiarity with the document as a whole, that the better inference is that it considered the opinion but found it to be immaterial to the questions that it was required to determine by dint of reg 1.15AA(1)(e) and the question that it had posed for itself, being what is the level and particulars of the assistance required by the applicant.
8. In this regard, while it is the case that the opinion appeared under the heading "impairment rating", it was not a matter that obviously informed the rating that was ultimately assigned to the applicant and it was not information that in any obvious way, shed light on the identification of the aspects of daily life in respect of which the applicant was assessed as requiring direct assistance. This information was contained instead on page four (CB 276) of the CVAC Report and was referred to by the Tribunal at R [27]. It did not, in my opinion, possess the character of information that was cogent, including because its meaning in connection with the identification of assistance was not explained, and because it was not significant in its place in the assessment of the applicant's claims.
9. Furthermore, the supervision and monitoring opinion was not a feature of the applicant's claim to require 24/7, full-time and/or overnight care. Instead, as the Tribunal appreciated, this claim principally reflected the applicant's own evidence, including the information that was recorded in the Statement of Assistance dated 31 January 2024 (R [30]). It is clear that the Tribunal took this information into account when considering the reliability of the claim.
10. Based on these findings and observations, I am not persuaded that the first two limbs of ground one are made out.
11. The third limb involves an argument that the rejection of the applicant's claim to require 24/7, full-time and/or overnight care, involved reasoning that was irrational, illogical or unreasonable. While cognisant of the high threshold required to establish an error of this kind, I am persuaded that the manner in which the Tribunal reasoned to a rejection of this claim does warrant this label. The Tribunal essentially found that the assessment of the applicant as "partially dependent" on others for activities of daily living precluded a finding that she required assistance overnight. In doing so, it gave no explanation for this conclusion and while the Minister has identified reasons why such a conclusion was open to the Tribunal, these reasons (referred to at [55]) were not relied upon by the Tribunal and do not, in my view, fall naturally from the CVAC Report or other material that was before the Tribunal. I accept the submission of the applicant that the Tribunal's reasoning was lacking intelligible justification and that it therefore involved legal error.
12. However, as indicated earlier, that is not the end of the matter. The Minister argues that any error arising from ground one (however characterised) is not jurisdictional because on the counterfactual that the Tribunal found that the applicant did require 24/7 or overnight care, the outcome, based on the reasoning employed by the Tribunal, would not have been any different. The Minister submits that because it was never a feature of the Tribunal's reasoning that the nieces were going to provide all of the assistance required by the applicant, there was a gap still to be filled by the services contemplated by reg 1.15AA(1)(e)(ii). The Tribunal found in respect of this category of assistance that there was no evidence at all as to whether such assistance could be provided to the applicant. This being the case, the reasoning would have remained the same; it was still the case that the nieces could have provided an aspect of the assistance, it being immaterial whether it was during the day or the night. The Tribunal's reasoning involved findings that the separate criterion in reg 1.15AA(1)(e) had not been satisfied.
13. In MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 at [38] the majority (Kiefel CJ, Gageler, Keane and Gleeson JJ) explained:

The counterfactual question of whether the decision that was in face made could have been different had there been compliance with the condition that was in fact breached cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made. Like other historical facts to be determined in other civil proceedings, the facts as to what occurred in the making of the decision must be determined on the balance of probabilities by inferences drawn from the totality of the evidence. And like other counterfactual questions in civil proceedings as to what could have occurred - as distinct from what would have occurred - had there been compliance with a legal obligation that was in fact breached, whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities.

1. On the counterfactual, the Tribunal's lack of satisfaction that some at least of the assistance required by the applicant could be provided by the applicant's nieces would not have been dispositive even assuming favourably to the applicant that the Tribunal took a broader view of what was required, including that it might extend to overnight care. On this eventuality, the Tribunal's reasoning with respect of reg 1.15AA would have continued to operate unaffected by any finding that the scope of care had different dimensions. That is because the Tribunal was evidently not satisfied that external care providers would not have been able to provide the assistance needed to bridge any gap not filled by the applicant's nieces.
2. While the Court appreciates that the threshold for establishing materiality is low, it nonetheless operates within a framework established by the decision-making adopted in the particular case and in some cases, that decision-making will effectively preclude the possibility of a different outcome. I consider this to be such a case.
3. No jurisdictional error arises in respect of ground one.

1. At hearing, counsel for both parties addressed grounds two and three together. It is convenient therefore that I adopt the same approach to these grounds in this judgment.
2. Grounds two and three read:
   1. The Tribunal failed to complete its statutory task to have regard to the assistance the applicant required and/or her particular circumstances in assessing whether that assistance could reasonably be provided by her estranged nieces or obtained from welfare, hospital, nursing or community services.

Particulars

1. The Tribunal was required to consider whether it was satisfied the assistance the applicant needed could not be:

   1. reasonably provided by her nieces; or

   2. reasonably obtained from welfare, hospital, nursing or community services.

   3. The Tribunal in assessing the matters at particular (a) was required to have regard to the nature of the assistance required.

   4. The applicant had made arguments and provided evidence that the assistance could only be provided by a family member she shared a bond with, rather than a stranger, due to her mental health condition and the nature of the assistance required.

   5. The Tribunal failed in considering the matters identified at particular (a)(i) or (a)(ii) to have regard to the applicant's argument that the assistance could not be provided by a stranger, or estranged family member.

   6. The error or errors were material.

2. The Tribunal failed to consider a clearly articulated argument based on established facts, and/or failed to consider corroborative or critical and significant evidence.

Particulars

1. The applicant repeats and relies on particulars (a)-(c) for ground 2.
2. The applicant provided a report from Mr Mohammad her treating psychologist dated 11 May 2020 that recommended a family member provide assistance and that having a stranger provide assistance would cause the applicant emotional distress or anguish.
3. The Tribunal failed to consider the clearly articulated argument that a stranger could not provide assistance or evidence of Mr Mohammad and therefore fell into jurisdictional error.
4. The error was material.

1. The applicant submits that the Tribunal failed to have regard to the nature of the assistance she required in assessing whether it could be provided by her nieces or strangers.
2. The applicant submits that this was a significant omission for two reasons. In the first place, because it failed to account for the applicant's clearly articulated claim that she required assistance from someone who is not a stranger. Second, and relatedly, because it reflected a failure by the Tribunal to consider important evidence, in the form of the second Mohammad report.
3. The applicant notes that in its consideration of reg 1.15AA(e)(i), the Tribunal found that she required support for bathing and showering, eating and feeding, and dressing herself. She submits that the Tribunal's reasons do not however reveal any consideration about whether the nieces, who had no relationship with the applicant, could reasonably provide care of this kind, which would invariably involve care of an intimate nature.
4. The applicant acknowledges that in the context of considering reg 1.15AA(e)(ii), the Tribunal did extract the applicant's submissions (R [59]). The applicant submits that despite this, the Tribunal did not expressly deal with the argument that the assistance could not reasonably be provided by a stranger due to the type of assistance and the applicant's mental health. Although the Tribunal acknowledged that the applicant's preference was for her sister to provide her care (R [64]), it found that necessary enquiries had not been made about additional services. The applicant submits that in so finding, the Tribunal failed to consider whether it was reasonable for the applicant to obtain those external services given that they would involve the provision of care from strangers. The applicant further submits that the characterisation of the applicant's case as involving a "preference" for her sister adopting the role of carer, betrays a misapprehension of her case and the evidence directed at it. In other words, it was not merely a preference, but a submission that was supported by medical evidence.
5. The applicant is also critical of the failure of the Tribunal to reference and therefore, it is said, consider, the first and the second Mohammad reports. The applicant submits that these reports were critical and significant because they established the longstanding nature of the treating relationship between Mr Mohammad and the applicant and contained the opinion that a stranger providing assistance would cause distress. The reports were therefore relevant to the question of whether the assistance could be provided by an estranged family member or obtained from services (provided by strangers).
6. The applicant submits that the Tribunal can be inferred to have overlooked the Mohammad reports and as a result, fallen into jurisdictional error of the kind identified in SZRKT. Alternatively, the failure to consider the reports is indicative of the error alleged by ground two.

1. The Minister submits that ground two proceeds incorrectly on the premise that the Tribunal considered that the applicant's nieces could reasonably provide assistance of all of the kinds that she required, however the Tribunal made no such finding. The Minister submits that consistent with the authority of Valencia v Minister for Immigration and Border Protection [2019] FCA 397; (2019) 165 ALD 28 at [10], which provides that analysis of reg 1.15AA(1)(e) permits the accumulation of effort between more than one relative and/or agency, the Tribunal approached the issue before it by looking at whether the necessary assistance could be provided by a team, rather than any one person. Reflecting this approach, the Tribunal was "not satisfied that at least some of the assistance required" by the applicant could not reasonably be provided by her nieces (R [51]). The Tribunal thus only made a finding of non-satisfaction, not a positive finding that assistance of all kinds required by the applicant could be sourced from the nieces.
2. The Minister submits that in circumstances where the Tribunal spent a large part of the decision (identified as R [21]-[36]) assessing the level and particulars of the assistance in order to make findings about "whether this assistance cannot reasonably be provided by appropriate relatives or obtained from the relevant services or a combination of both" (R [20]), this is a strong indication that it was conscious of the need to keep the assistance in mind when determining whether it could reasonably be provided by relatives or others.
3. The Minister submits that the limited explicit reasoning on whether assistance might "reasonably" be provided by the applicant's nieces is not reflective of the Tribunal having failed to consider the type of assistance required. Instead, the reasoning is directed to the more pressing issue before the Tribunal of why, due to perceived deficiencies in the evidence, the Tribunal was not in a position to generally assess what assistance was able to be provided to the applicant. The Tribunal found that the evidence before it was inadequate and that it was therefore unable to be satisfied that some of the relevant assistance could not be reasonably provided by the nieces (R [50]-[51]). The Minister submits that the Tribunal did not overlook the specific kinds of assistance involved.
4. As far as reg 1.15AA(1)(e)(ii) is concerned, the Minister submits that the Tribunal did not reach the point of having to make findings about whether available care could not reasonably be obtained by the applicant because it was not satisfied that enquiries had been made about what additional services, if any, were able to be obtained (R [64]).
5. The Minister submits that similar reasoning has been found not to involve a misunderstanding of the statutory task, or to indicate that evidence was overlooked in Mariam v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 436, a case described by the Minister as "analogous". According to the Minister, the Tribunal in Mariam had limited evidence before it about the assistance that could be provided by relevant organisations and found that the availability of services had not been fully investigated. The Tribunal in Mariam had not referred to evidence regarding the sponsor's emotional support needs; however, this was not found to indicate error, because the Tribunal's decision did not turn on whether or not assistance was reasonably obtainable from a particular provider or provider(s) that may have met the applicant's physical but not his emotional needs (Mariam at [50]).
6. The Minister submits that here, like in Mariam, the Tribunal was not considering the "reasonableness" of obtaining care from strangers or non-relatives as the Tribunal disclaimed its ability to do so (R [64]). That the Tribunal did not refer to evidence going to this issue is explicable as being irrelevant to the dispositive reasoning and the Court should be slow to infer that the evidence was overlooked in those circumstances (referring to Applicant WAEE at [47]).
7. The Minister submits that the pathway of reasoning adopted by the Tribunal also explains its failure to directly address the evidence relating to the issue of whether assistance could not reasonably be provided by strangers due to the applicant's particular vulnerabilities. The Minister notes that the Tribunal acknowledged that the applicant made this submission but submits that because the issue was not reached, the Tribunal was not obliged to consider related evidence that included the first and second Mohammad reports.
8. The Minister makes the allied submission that because reg 1.15AA(3) requires the Tribunal to take the opinion in a validly made CVAC to be correct for the purpose of deciding whether a visa applicant satisfies a criterion that they are a carer, the findings recorded in the CVAC should take priority over any recommendations made by Dr Mohammad, including a recommendation that the applicant have a close relative to assist her. The Minister submits that in any case, the evidence that was before the Tribunal, which included the reports prepared by Dr Mohammad, did not elevate the applicant's case for a close relative to assist her, beyond the articulation of a preference, as the Tribunal recognised in its reasons.

1. I am not persuaded that the Tribunal erred in either of the ways alleged by the applicant in these two related grounds.
2. First, as far as the Tribunal made findings about reg 1.15AA(1)(e)(i), part of its analysis occurred in R [50]-[51] where the Tribunal said:

The Tribunal has considered the claim made by the resident about being estranged from her relatives in Australia and whether this would be a reason why the assistance required by her cannot reasonably be provided by them because they are unwilling to do so. The first thing to be said is that it has not received any information from these relatives themselves that would show to the Tribunal that they continue to be estranged from her or, at the very least that they will not countenance any reconciliation with her. This is significant because, as explained to the resident at hearing, 13 years have elapsed since she and her relatives were alleged to have parted ways. It would not be unreasonable to expect some kind of change in attitude over such a long period of time. However, if the resident has not taken the opportunity to reconnect with her relatives personally but has instead left this task to a third person such as Mr Wubneh, then it might not be surprising that these relatives responded in the way that they did.

There is no probative information to show that the resident's nieces would be unable to provide assistance to the resident in circumstances where that assistance would not need to be full-time, including no declarations, letters or other documents authored by them and no substantiating information from them. In light of this lack of probative information, the Tribunal is not satisfied that at least some of the assistance required by the resident cannot reasonably be provided by her nieces even if they have family duties of their own.

1. On a fair reading of these passages, it is clear that the reasoning employed by the Tribunal did not create the opportunity to engage with the applicant's claim that any assistance be provided by family members who were not strangers, because the Tribunal was ultimately not satisfied that the applicant had proven there had been a genuine and/or sustained estrangement from her nieces and because the Tribunal found only that it was not satisfied the family members could provide some - unparticularised form of assistance. It is significant that the Tribunal recorded findings of non-satisfaction as this obviated the need for a close engagement with the applicant's claim to require care from a (non-estranged) family member. In this respect, the reasoning of the Tribunal is of a different character to that which was found to involve jurisdictional error in El-Chahini v Minister for Immigration and Border Protection [2018] FCA 202; (2018) 74 AAR 224. Instead, in El-Chahini, the Tribunal had recorded positive findings and made certain assumptions about the assistance that could be provided by relatives, which findings and assumptions were made in ignorance of claims made and evidence presented by the review applicant about her actual needs for assistance.
2. Second, as far as the Tribunal made findings that engaged with reg 1.15AA(1)(e)(ii), I accept the submission of the Minister that in analogous fashion to the reasoning that was discussed in Mariam (and also in Qazizada v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 250), the Tribunal explicitly disavowed its ability to evaluate whether external assistance services could reasonably be obtained because the applicant had failed to take steps to expose, through inquiries, what services might be available (see R [64], reproduced above).
3. The applicant had sought to explain her failure to make inquiries about in-home services by reference to language difficulties and a lack of awareness about other organisations. The Tribunal considered this explanation but did not accept it for reasons given at R [62]. The Tribunal also referred to material that identified the applicant's submission that for medical and interpersonal reasons, she required assistance from the visa applicant specifically or family members more generally (R [59]).
4. While I accept the submission of the applicant that the characterisation of her case for support from her sister, the visa applicant, as a "preference" understated the effect of the material before the Tribunal I do not consider anything turned ultimately on this characterisation in circumstances where the Tribunal was cognisant of the claim and its reasoning process foreclosed the need for its further interrogation.
5. No jurisdictional error arises in respect of grounds two and three.

1. Ground four reads:
   1. The Tribunal's finding that it was not satisfied the applicant's nieces could not reasonably provide assistance to the applicant was irrational, illogical or unreasonable.

Particulars

1. The only evidence before the Tribunal was that:

   1. the applicant and her nieces had been estranged for 13 years;

   2. the applicant's nieces had told a community member that they were unable to assist with the matter.

   3. The Tribunal concluded it was not satisfied the applicant's nieces could not assist because:

   4. the applicant's nieces had been asked by the community member if they would provide 24/7 care, which was not in fact required;

   5. if they had been asked the correct question to provide some assistance their attitude may be different;

   6. there was a possibility, if the applicant spoke to them, they may be willing to reconcile or provide assistance.

   7. The Tribunal provided no rational, logical, or reasonable basis for concluding that:

   8. the family members were not estranged, and may reconcile; and/or

   9. the applicant's nieces who had said they were unable to assist with the matter at all might offer support if told it was not 24/7 assistance.

1. The applicant submits that the only evidence before the Tribunal was that she and her nieces had been estranged for 13 years, and they had no extant relationship. The evidence of Mr Wubneh (contained in the Wubneh declaration) indicated that not only had the nieces refused to offer 24-hour care but were "unable to assist in this matter". Taken at face value, the nieces offered nothing to the applicant.
2. The applicant submits that in this context, the Tribunal's reasons for finding that it was not satisfied the nieces could not reasonably provide care, being that (a) their attitude may have changed if the applicant approached them; or (b) they were not asked the "correct question" in relation to care needs, was irrational, illogical, or unreasonable.
3. First, addressing the nieces' attitude, the applicant submits that the Tribunal did not reject her evidence that she and her nieces were estranged. Further, the only evidence, being that of Mr Wubneh, suggested the nieces had no desire to assist the applicant at all. The applicant describes the Tribunal's suggestion that their attitude might change if the applicant approached them as "pure speculation". There was simply no evidence at all to suggest that the applicant or her nieces had any relationship, or that it was repairable.
4. Second, as to the "correct question" and 24/7 support, the only evidence before the Tribunal was that the applicant's nieces were unable to assist with the matter at all. There was no basis for the Tribunal to speculate that if they were asked to provide more modest support their attitude would be different. They were "unable" to assist at all.
5. The applicant submits that while the Tribunal had no evidence from the nieces themselves, there was equally no evidence to suggest they would be willing or interested in a relationship with the applicant, let alone providing care. The nieces' non-engagement with the Tribunal process was entirely consistent with the family members being estranged.

1. The Minister submits that, given regulation 1.15AA(1)(e) is cast in the negative, the applicant had to satisfy the Tribunal that the relevant assistance could not be reasonably provided by a relative (referring to Valencia at [10]). The Minister submits that the evidence on this issue was simply unsatisfactory. Furthermore, the Tribunal was not required to accept uncritically the applicant's claim that her nieces would not provide her with any support, and the weight that the Tribunal gave to this evidence was a matter for it alone.
2. The Minister submits that the Tribunal's finding that reg 1.15AA(1)(e)(i) was not satisfied turned on a lack of probative evidence to establish that the applicant's nieces would be unable to provide some assistance to the applicant in circumstances where that assistance would not need to be full-time (R [51]). The Minister submits that this finding was open on the evidence given that the evidence of Mr Wubneh, and the absence of direct evidence from the nieces, left open the possibility that some assistance could reasonably be provided by the applicant's nieces, and in order to reach the state of satisfaction required, the evidence had to foreclose that possibility.
3. The Minister submits that the Tribunal explained why the evidence before it was insufficient such that it was not satisfied that the nieces could not reasonably provide some assistance (R [49]). The Minister submits that the Tribunal's logic was sound; for example, if the applicant was to directly ask her nieces whether they could provide transport once a week, their position may well have been very different. The relevant finding was open on the evidence and was not one which no reasonable decision maker could reach on the same evidence.
4. The Minister submits that the applicant's reliance on Mr Wubneh's evidence as demonstrating conclusively that the applicant's nieces could not provide any care to the applicant is an impermissible attempt at merits review. This was hearsay evidence, and it was for the Tribunal to determine the weight to place on it. The Minister submits that it is unclear in any case what Mr Wubneh (or the nieces) meant by being "unable to assist in this matter". Mr Wubneh's evidence could also be read as meaning that the applicant's nieces were unable to assist in the Tribunal proceeding. Equally, even if the evidence could only mean that they were "unable" to assist the applicant, the Tribunal's view was that this evidence was garnered on an incorrect understanding by the nieces of the applicant's requirements which meant that it was open to consider that the niece's responses, as a whole, might have been different had the right questions been asked of them. The Minister submits that there was no lapse in the logic of that reasoning.

1. I have approached the evaluation of ground four cognisant that the authorities on the ground of review of legal reasonableness recognise that:

(a) it is not amenable to rigidly defined categorisation or precise textual formulary and can comprehend decisions which have the quality of being "plainly unjust", "arbitrary", "capricious", "irrational", "lacking in evident or intelligible justification" and "obviously disproportionate" (BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 at [137] per Wigney J);

(b) there is an area of "decisional freedom" upon which the ground does not trespass and within which reasonable minds might reach different conclusions about the correct or preferable decision (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [28], [66]);

(c) it has a high threshold. The applicable standard has been described as "stringent", and as involving more than mere disagreement (even "emphatic" disagreement) with the manner or outcome of the exercise of the power (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [11], [135]).

1. The only evidence before the Tribunal that was capable of shedding light on the question of the capacity and willingness of the applicant's nieces to provide assistance to her was contained in the Wubneh declaration. However, as the Tribunal recognised, the evidence was hearsay, and it was therefore open for the Tribunal to place limited weight on this evidence in recognition of its inherently unreliable character.
2. The Tribunal was also evidently concerned with the capacity of the information contained in the Wubneh declaration to assist in understanding the true position with respect to the nieces because it purportedly contained their response to a question that did not accurately reflect the extent of the assistance that they might reasonably provide. In this respect, the evidence that was before the Tribunal and which it accepted, was that the applicant received at least some assistance from members of the Tigrian community, so that as a matter of fact, any assistance provided by the applicant's relatives (or other external care providers) would fall short of full-time.
3. In circumstances where there was a lacuna in the material presented by the applicant that the Tribunal found was not adequately filled by the Wubneh declaration, the Tribunal was left unilluminated as to the true current position of the nieces. The Tribunal was essentially making this point when it noted that the attitude of the nieces might have changed in the last 13 years.
4. I am not persuaded that the impugned finding was irrational, illogical or unreasonable. No jurisdictional error arises in respect of ground four.

1. In circumstances where the applicant has failed in establishing jurisdictional error in the decision of the Tribunal, it follows that I will make orders to dismiss the application. I will further order that the applicant pay the Minister's costs as agreed, or in default of agreement in accordance with the scale set out in Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

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