Le v Minister for Immigration and Border Protection

The Tribunal's decision 16 There is no discussion in the Tribunal's reasons of the content of the assistance required by Ms Vo having regard to the medical condition giving rise to the impairment of her ability to attend to the practical aspects of daily life. There is simply a reference to "the assistance" required by Ms Vo. The Tribunal must necessarily have accepted that she has and will continue to have a need for "direct assistance in attending to the practical aspects of daily life". The first question then, properly framed, to be considered by the Tribunal is whether it can be satisfied that Ms Vo's need for direct assistance in attending the practical aspects of daily life cannot reasonably be provided by any relative of Ms Vo (other than Ms Le), being a relative who is an Australian citizen or an Australian permanent resident. 17 The candidate relatives considered by the Tribunal were these: Huu Tang Danh Le (husband aged 91 years) Thi Tang Dung Le (daughter aged 62 years) Thi Tang Hoa Le (daughter aged 58 years) Thi Tang Diep Le (daughter aged 53 years) Huu Tang Hoang Le (son aged 49 years) Tang Hoang Danh Le (son aged 44 years) Brian Bach (grandson aged 21 years) 18 The Tribunal accepted that Ms Vo's husband, aged 91 years, suffers from a medical condition and cannot reasonably provide Ms Vo with such assistance. 19 Thi Tang Hoa Le and Thi Tang Diep Le both live in Queensland and since Ms Vo and her 91 year old husband live together in Melbourne, the Tribunal accepted that their potential for relocation to Queensland (a matter raised by the Tribunal) was such that the Tribunal was satisfied that each of these relatives cannot reasonably provide such assistance. 20 That left four candidate relatives: a 62 year old daughter, Thi Tang Dung Le; a 49 year old son, Huu Tang Hoang Le; a 44 year old son Tang Hoang Danh Le; and a 21 year old grandson, Brian Bach. 21 In considering each of these candidate relatives, the question of whether the assistance can be provided by a relative is a notion to be addressed from the perspective of the provider: Naidu v Minister for Immigration (2004) 140 FCR 284 at [21], Ryan J. His Honour in making that observation was emphasising the importance of the distinction to be drawn between whether the assistance can reasonably be obtained from a relative (or one or more relatives) and whether it can reasonably be provided by relatives (for the purposes of Reg 1.15AA(e)(i) as it then was when it spoke of whether the assistance cannot reasonably be obtained from relatives). Now, Reg 1.15AA(1)(e)(i) uses the phrase "the assistance cannot reasonably be provided by any other relative …". Nevertheless, the observations of Ryan J remain important in understanding the notion of the perspective to be adopted when examining whether the assistance can "be provided" by the relevant relative. Also, the concept of reasonableness must be assessed in light of the circumstances of the provider. 22 Therefore, the question becomes one of: can the Tribunal be satisfied that, addressed from the perspective of the postulated provider, Ms Vo's need for direct assistance in attending to the practical aspects of daily life cannot reasonably, having regard to the circumstances of the postulated provider, be provided by any relative of Ms Vo other than Ms Le? 23 As to Ms Vo's 62 year old daughter, Thi Tang Dung Le, the Tribunal notes the contention that she cannot care for her mother because she takes care of her three year old great-nephew five days a week; she cooks for her husband and 21 year old son who both work full time; and she does not want to jeopardise her marital and family relationship by caring for her elderly mother as it will be too much strain for her. These circumstances were not doubted by the Tribunal. Other circumstances were that prior to applicant Le's arrival in Australia (in March 2013, when she began to care for both elderly parents), Thi Tang Dung Le "spent significant time caring for her mother" and now her view is that it is best that applicant Le care for her mother, with Thi Tang Dung Le providing "respite care" when needed. 24 As to these circumstances, the Tribunal says that it acknowledges that once Thi Tang Dung Le ceased caring for Ms Vo from March 2013, she assumed care responsibilities for her three year old great-nephew (or as the Tribunal puts it, "she decided to care for her great-nephew). The Tribunal then says at para 21: However it is the Tribunal's view that [it] would be reasonably open to Ms [Thi Tang Dung] Le to decide to care for her mother, rather than care for her great-nephew. 25 That conclusion is attended by sufficient doubt as it reflects asking the wrong question, fails to take account of uncontested circumstances and reduces a reasonableness consideration to its own view of how Ms Thi Tang Dung Le ought to change her circumstances and abandon her five days a week caring responsibilities for her great-nephew. The correct question is - can a person, in the circumstances of Ms Thi Tang Dung Le, reasonably provide Ms Vo with "direct assistance" in attending to the "practical aspects" of "daily life"? There is no discussion of how she might reasonably provide direct assistance (one-on-one) with the practical aspects of Ms Vo's life, each day, having regard to her own particular circumstances. 26 As to the 49 year old son, Huu Tang Hoang Le ("Huu"), he is a farmer and the Tribunal says that he lives three hours (presumably by car) from Melbourne although counsel for applicant Le says the brother lives four to five hours away from Melbourne. The Tribunal notes the contention that in order for Huu to assume caring responsibilities for his mother, he would have to give up work with resulting hardship. The Tribunal notes Ms Vo's evidence that she has had no contact with Huu and that he is not willing or able to care for her. Huu's brother, Tang Hoang Danh Le, put on evidence saying that Huu works full time on a farm at Robinvale and it would be unreasonable to ask him to terminate his employment and care for his mother. The Tribunal also notes that Tang Hoang Danh Le gave evidence that although Huu occasionally calls home to keep the family updated about his life, the family does not have his contact number and nor do they know his address or the details of his employer. The Tribunal reached this conclusion at para 25: The Tribunal considers that the claim that Ms Vo's family has no contact with Huu is inconsistent with their evidence that they know his location, his occupation and his financial situation. The Tribunal considers that it is not adequate for the applicant and the sponsor to simply assert that Huu cannot provide care. It is up to the applicant to make her case. Huu has not provided any oral or written evidence to the Tribunal regarding his circumstances or his inability to care for his mother. On the basis of the evidence before it, the Tribunal is not satisfied that Huu Tang Hoang Le cannot reasonably provide assistance to Ms Vo. 27 As to this conclusion, the claim was not that Ms Vo's family has no contact with Huu. The claim was that Ms Vo has had no contact with her son, Huu. The family acknowledged that Huu occasionally calls home to update the family "about his life" but they do not have his contact details, address or the details of his employer. That might well explain why applicant Le and Ms Vo were not able to put on evidence from Huu. The Tribunal does not seem to call into question that Huu is a 49 year old son living well outside Melbourne and working full time on a farm. Viewed from a perspective of the postulated provider, just exactly how might a 49 year old man, working full time as a farmer, reasonably provide his mother, an elderly woman, with the "direct assistance" an elderly woman requires in attending the "practical aspects" of an elderly woman's "daily life"? Just exactly how would such a person reasonably provide an elderly woman (his own mother) with "direct assistance" with toileting, bathing, continence issues, etc? There is no analysis of this in the Tribunal's reasons concerning the circumstances of Huu Tang Hoang Le, no doubt because there is sufficient doubt that the Tribunal has asked itself the correct properly formulated question. 28 As to the 44 year old son, Tang Hoang Danh Le, he lives with his parents and applicant Le in Kings Park, Melbourne. He gave evidence that he had been made redundant in 2014. His general practitioner provided a letter stating that Mr Le suffers from "significant pain and disability associated with lumbar radiculopathy" and that he "currently has no vocational work capacity". The Tribunal notes that the GP's letter does not go further and say that Mr Le's disability associated with lumbar radiculopathy restricts his ability to care for his mother. The Tribunal concludes at para 25: While the Tribunal acknowledges that his condition may limit the level of care he can provide, the Tribunal is not satisfied that he cannot reasonably provide some level of assistance to Ms Vo. At the very least, the Tribunal considers that Mr Le could interpret for his mother if she accessed personal care services from non-Vietnamese speaking workers. 29 The question for the Tribunal is - can a man in the accepted circumstances of Tang Hoang Danh Le reasonably provide an elderly woman with the "direct assistance" an elderly woman requires in attending to the "practical aspects" of an elderly woman's "daily life"? There is no analysis of that question because there is serious doubt the Tribunal asked itself the correct question. It found, in fact, inferentially, that Tang Hoang Danh Le could not reasonably provide Ms Vo with the direct assistance she requires in attending to the practical aspects of her daily life, and found that he could provide something less than "the assistance" contemplated by Reg 1.15AA(1). It found he could provide "some level of assistance" which is something other than "the assistance" for the purposes of the Regulation. The form of assistance he might provide consisted of acting as an interpreter in relation to personal care services obtained from non-Vietnamese speaking workers. 30 The final candidate is the 21 year old grandson of Ms Vo, Mr Brian Bach. 31 Brian Bach is single and lives with his parents in Kings Park. The Tribunal notes his evidence that he runs a network marketing business "most days of the week" and works "part time as a pharmacy assistant". The Tribunal notes Mr Bach's evidence that he lacks the expertise and care skills required to care for his grandmother and that she "cannot depend on him for 24 hours care". These particular factual contentions as to Mr Bach's circumstances are not doubted by the Tribunal. The conclusion arising from them is put this way at para 27: The Tribunal finds that Brian lives just a few streets from his grandmother. While acknowledging that he has work commitments, the Tribunal is not satisfied that [this] prohibits him from providing some level of care for his grandmother. The Tribunal does not accept that Brian requires "expertise" to assist in the care of his grandmother, as many family members provide quality care for elderly relatives without having prior experience or expertise. 32 Mr Brian Bach is a 21 year old young man. 33 Again, the forensic question is - can a 21 year old grandson of Ms Vo in the unchallenged circumstances of Brian Bach, reasonably provide his elderly grandmother with the "direct assistance" she requires in attending to the "practical aspects" of an elderly woman's "daily life"? The second question arising (as it does in the case of all of these providers) is - having regard to a consideration of that forensic question, in the context of all the circumstances confronting the postulated provider, can the Tribunal be satisfied that the postulated provider cannot reasonably provide "the assistance" having regard to the statutory elements of that phrase, as described? 34 There is more than sufficient doubt about whether the Tribunal asked itself the correct question in the case of each of these postulated providers, so as to warrant consideration of the proposed grounds of appeal by an appeal court subject to, first, the question of "aggregation" raised by the Tribunal; second, the challenge to the findings concerning Reg 1.15AA(1)(e)(ii), that is to say, whether the Tribunal could be satisfied that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia; and third, the relationship between these matters and the proposed grounds of appeal. 35 As to aggregation, the Tribunal at para 31 says that the question is "whether assistance cannot reasonably be provided by other relatives in Australia" and not "whether other relatives are willing to provide that care". The Tribunal says that the "only" question is "whether it is reasonable that they provide that care". Framing the question in that way might suggest that the Tribunal thinks its task is to decide for itself what is reasonable. The question the Tribunal has to reach a state of satisfaction about is whether, in all the relevant circumstances, it can be satisfied that the assistance, in terms of the statute, cannot reasonably be provided by any other relative. 36 The Tribunal concludes that Thi Tang Dung Le (the 62 year old daughter), Tang Hoang Danh (the 44 year old son), Huu Tang Hoang Le (the 49 year old farmer son) and Brian Bach (the 21 year old grandson) can reasonably provide Ms Vo with "some level of care" and puts it this way at para 31: While accepting that they cannot reasonably provide Ms Vo with the care she requires on an individual basis, the Tribunal finds that it would be reasonable for them to provide assistance to Ms Le [which should be a reference to Ms Vo] in combination [that is to say, aggregated] notwithstanding their work or family commitments and health concerns, as outlined in the documentary evidence submitted and oral evidence received during the hearing. 37 Thus, the Tribunal, by para 31, accepts that each postulated provider cannot, individually, having regard to their circumstances, reasonably provide "the assistance" to Ms Vo but that, in combination, they can reasonably provide her with "some level of care". That follows for the Tribunal because "when an elderly family member requires care, it is often necessary for other family members to make adjustments to current and planned arrangements so that they can support the person requiring care": para 32. Of course, what might often be necessary (or not) as a general reductionist statement across the broad sweep of family experiences is something entirely divorced from the actual circumstances of the particular postulated providers relevant to the Tribunal's decision. 38 There is serious doubt about whether there is any factual foundation for the conclusion that each nominated relative acting in combination, having regard to each of their particular circumstances, can reasonably provide Ms Vo with, not just "some level of care" but with the direct assistance she requires in attending to the practical aspects of an elderly woman's daily life, so as to support a conclusion that the Tribunal cannot be satisfied that the four relatives cannot reasonably provide the assistance contemplated by Reg 1.15AA(1)(e)(i). Framing the conclusion that way substitutes the notion of "some level of care" to that of the statutory conception of "the assistance" and fails to have regard to the requirement of taking into account reasonableness from the perspective of the circumstances confronting each provider. Reaching such a conclusion on such a foundation is an error of law because it fails to have regard to the relevant question and fails to take into account the relevant circumstances. The Tribunal fell into error by asking itself a question concerned with whether the four nominated relatives could reasonably provide Ms Vo with "some level of care" rather than asking the statutory question concerning "the assistance" contemplated by Reg 1.15AA(1)(e)(i). 39 None of this would matter if the Tribunal could not be satisfied, in any event, that "the assistance" cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. 40 Again, the relevant forensic question is whether Ms Vo's need, as an elderly woman, for direct assistance in attending to the practical aspects of her daily life can reasonably be obtained from welfare, hospital, nursing or community services in Australia, and therefore whether the Tribunal can be satisfied, in all the circumstances, that such assistance "cannot reasonably be obtained" from such sources in Australia. 41 I now turn to that question. 42 Applicant Le contended before the Tribunal that it was not feasible for Ms Vo to access community or health services because Ms Vo only speaks the Vietnamese language; she can only tolerate eating Vietnamese food; she does not want to be separated from her 91 year old husband; and she does not want to be looked after by strangers. In addition, Ms Vo, in her written statement of 4 December 2015, stated that many of the residential care facilities are expensive and she would not be able to afford such care even with the assistance of government. 43 At para 37, the Tribunal identifies particular documents put before it on these questions. 44 At para 38, the Tribunal says that it has had regard to the submissions of the representative of applicant Le dated 8 December 2015 in which the representative says that applicant Le made appointments to discuss the services provided by Grantham Green, Kalyna Care and Estia Health. The contention put to the Tribunal was that none of these facilities were able to provide carees with Vietnamese food or interpreters in the Vietnamese language. The Tribunal says at para 38 that it gives "no weight to this claim" as it is not supported by independent evidence from the providers that they were, in fact, contacted by Ms Vo's family. 45 At para 39, the Tribunal reaches a conclusion which may derive from the observation just mentioned at para 38, or otherwise. The conclusion or finding, however, is explained by reference to three factors set out at paras 39, 40 and 41. Those paragraphs are in these terms: 39. It is the Tribunal's view that Ms Vo's family has not made serious attempts to identify appropriate services. Firstly, they sent inquiries to Silver Chain, Comcare and Carers Victoria. While Comcare advised that they do not provide relevant services, both Silver Chain and Carers Victoria invited Ms Vo's family to contact them to discuss options further, however there is no information before the Tribunal that the family did so. 40. Secondly, the family's approaches to service providers were made on the basis that Ms Vo requires full time in-home care, and that she must have carers who speak Vietnamese. The Tribunal finds that this indicates that the family has not considered how Ms Vo may be cared for by a combination of relatives and service providers. It also indicates that the family is not open to having non-Vietnamese speaking carers providing services, in the context of family members interpreting for Ms Vo. The Tribunal considers that this is a practical option, given that Ms Vo lives with her son, Tang Hoang Danh Le, who is unemployed. 41. Thirdly, there is no written confirmation from the Mekong Vietnamese Aged Care facility that there are no vacancies and/or waiting list. The Tribunal asked [applicant Le] if she followed up with the Mekong facility. She said that they asked her for documents in order to consider an application, however she did not follow up as her mother does not want to go into residential care. 46 As to the financial issues, the Tribunal accepted the family's evidence that they cannot afford private services. However, the local Council for the area where Ms Vo lives is the Brimbank City Council. The Tribunal notes that the Council states on its website that it provides support and assistance with personal care, home care, meals on wheels, respite care and home maintenance. Thus, the Tribunal asked applicant Le whether she had applied to the Council for access to home services. Applicant Le told the Tribunal that she had not done so because her mother does not want strangers to care for her. At para 42, the Tribunal concludes that the family's decision not to contact the Council indicates to the Tribunal that the family has "not seriously attempted to obtain services which may meet Ms Vo's care needs". 47 At para 43, the Tribunal refers to an "ACAS Assessment" report by "Western Health" dated 26 August 2015 which recommended referral of Ms Vo to a continence nurse. However, Ms Vo declined the referral. The report said that Ms Vo was eligible for permanent and respite care at a low level at an aged care facility. However, the Tribunal observes that Ms Vo does not wish to have approvals for respite or permanent care. The report observes that Ms Vo lives with her son Danh and his wife Giau in Danh and Giau's home and that Danh and Giau work full time. At para 43, the Tribunal observes that this observation in the report is inconsistent with Danh's statutory declaration of 13 January 2016 in which he says that he was made redundant in April 2014 and thus, in the Tribunal's view, the family has "provided inaccurate information" to the ACAS assessor about their family circumstances. Against that background, the Tribunal said this at para 43: This leads the Tribunal to give limited weight to the assessor's conclusion that Ms Vo would not have not have the quality of life she currently benefits from in the absence of the care of [applicant Le]. It is apparent that the assessor did not have independent knowledge of the care provided to Ms Vo prior to [applicant Le's] arrival in Australia. 48 At para 44, the Tribunal finds that Ms Vo and her family have "dismissed the option of accessing additional support services provided by community and health providers on the basis that they cannot accommodate Ms Vo's personal care requirements in a culturally sensitive way". The Tribunal also observes at para 44 that "this position" would be "credible" if Ms Vo was currently accessing available services and was finding that they were "insufficient for her needs" or "culturally inappropriate". 49 The Tribunal, at para 45, notes that applicant Le put to the Tribunal that Ms Vo will not tolerate non-family members caring for her, whether in her home or in an aged care facility. The Tribunal acknowledges the evidence put to it that Ms Vo does not want to live in an aged care facility. The Tribunal then says that it is not satisfied that "residential options have been seriously discussed with her". The Tribunal then recognises the distinction between, on the one hand, a "preference" for a particular service and the significance of a "cultural factor", on the other hand, in determining whether the relevant assistance is "reasonably obtainable". The Tribunal also observes that a person's "mere preference" to be cared for by family members rather than strangers, is not "a barrier to [his or her] obtaining welfare assistance". 50 The Tribunal accepts that Ms Vo is "very attached to [applicant Le] and would prefer to be cared for by her rather than by people outside the family". The Tribunal observes, however, that "this preference" does not satisfy the Tribunal that the assistance cannot reasonably be obtained from relevant services. 51 At para 46, the Tribunal also recognises that, unsurprisingly, Ms Vo does not wish to be separated from her 91 year old husband. As to that consideration, the Tribunal observes that "it is increasingly common for residential care facilities to provide accommodation for couples" and concludes that "Ms Vo's family has not demonstrated that they have explored this possibility with relevant facilities". 52 As to the cost of residential care, the Tribunal, as already noted, accepted the family's evidence that they cannot afford private services. At para 47, the Tribunal says that it has researched aged care funding options for residential care and particularly a booklet issued by the Commonwealth Department of Social Services which sets out fees for "home care packages and residential aged care for people entering care from 1 July 2014". The Tribunal observes that the booklet says that new funding arrangements involve a number of options including arrangements for fully supported, concessional and charge exempt residents. The Tribunal also notes that the representatives for applicant Le submitted a pricing schedule for the Regis Shelton Manor in Frankston, Victoria, to illustrate that the cost of residential care is prohibitive for Ms Vo. The Tribunal says that it is not clear why that example was selected as it is located 80 kilometres from Ms Vo's home. Nevertheless, the Tribunal notes that the website for Regis facilities indicates that supported places are available in several of its facilities including Blackburn and Ringwood and that supported beds cost from $0 to $53 per day based upon eligibility. The Tribunal then says this at para 48: In the context of this information, the Tribunal is not satisfied that Ms Vo's family has seriously explored the range of financial options available to them. The Tribunal therefore does not accept that the cost of residential care is a barrier to Ms Vo being cared for in such a facility. 53 At para 48, the Tribunal concludes that based on the oral and written evidence available to it, the Tribunal is not satisfied that the assistance required by Ms Vo cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia and thus, the Tribunal is not satisfied about either limb of Reg 1.15AA(1)(e). 54 On that footing, the Tribunal determined at para 51 that it was not necessary to consider whether applicant Le is "willing and able to provide to the resident substantial and continuing assistance of the kind needed as required by r.1.15AA(1)(f)". 55 In the result, the Tribunal determined that applicant Le is not a "carer" for the purposes of the Act and Regulations and affirmed the decision not to grant her an Other Family (Residence) (Class BU) visa. 56 The applicant says that the Tribunal has failed to address a number of key factual questions material to the decision in relation to the second limb. The applicant says that the Tribunal has failed to consider the evidence and materials in relation to the nature of the care required by Ms Vo and thus the analysis of "the assistance" required by her and its impact upon her capacity to reasonably obtain that assistance from welfare, hospital, nursing or community services in Australia, to that extent, has not been considered at least so far as the exposed reasons of the Tribunal are concerned. 57 The applicant says that the Tribunal had evidence and materials before it which were probative of the factual matter that Ms Vo did not wish to receive care from strangers as her care, as an elderly woman, involves matters of intimacy and, in particular, engagement with her in relation to matters of personal hygiene, toileting, bathing and other such matters. Although the Tribunal recognised that Ms Vo had a "preference" to be cared for by applicant Le, the Tribunal attributed that preference to a discretionary unwillingness on the part of Ms Vo to receive services from anyone other than applicant Le, rather than analysing the expression of opinion in terms of the cultural sensitivities applicable to an elderly Vietnamese woman who preferred to be receiving "the assistance" from a mature female member of her own family, for cultural reasons. 58 These cultural questions of the relationship between the nature of the care, the detail of the care, the demands of Ms Vo in terms of her condition requiring assistance with matters of personal hygiene, continence, toileting, bathing and her natural disposition to remain in a settled situation with her 91 year old husband are not addressed in any measured analytical way from a cultural perspective. Some of these important factual matters are not addressed at all. Others are framed in terms of a contention and then dismissed. I can find no discussion in the reasons about the relationship between these cultural factors and the reasonableness in obtaining the relevant "assistance". The natural disposition of Ms Vo, as an elderly woman towards the end of her life, to be cared for by a woman with a mother/daughter relationship to her, assisting her with all matters of personal hygiene are matters the detail of which go to the statutory integer of "reasonableness". 59 These matters do not just go to factual concerns about which minds might differ. They do not just go to matters of merits about which no appellate court has a role to play. They go to a question of taking into account facts material to the statutory integers and the failure to do so, against the background of the statutory integers, is an error of law. 60 I am satisfied that there is sufficient doubt as to this limb so as to warrant reconsideration by a court exercising appellate jurisdiction. 61 I am satisfied that these matters fall within the scope of the grounds of appeal in challenging the decision of the Federal Circuit Court in failing to recognise contended jurisdictional error on the part of the Tribunal. I am satisfied that an extension of time is to be granted so as to enable these matters to be properly agitated before an appeal court. 62 As I observe at [15] of these reasons, I have examined these matters in much greater detail than would ordinarily be the case and I have done so because the parties have extensively addressed the merits, albeit in the context of an application to grant an extension of time. The parties, in that sense, have had the benefit of an expression of view about aspects of the challenge to the decision of the Tribunal. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.