Lin v Minister for Immigration & Multicultural & Indigenous Affairs

Evidence before the tribunal 12 On 25 June 2003 the Tribunal sent a letter addressed to Mr Guo inviting him to comment, in writing, on the following information: · You have relatives in Australia, including your wife, your daughter, your wife's sister (Ling Ching Shen) and her 3 sons. · At the time of the department's decision you had been receiving nursing home care. · The visa applicant is recorded to have stated that he had no experience caring for the elderly or had been responsible for the care of any elderly family members in China. He also is recorded to have stated that he wanted to go to Australia to look after you and attend educational courses. 13 On the following page of the letter the Tribunal stated: The Tribunal may find that the assistance required can be reasonably obtained from another relative or from welfare, hospital, nursing or community services in Australia. 14 Further information was provided to the Tribunal. Three of Mrs Lin's nephews residing in Australia provided the Tribunal with statutory declarations. The content of their respective statutory declarations is summarised in the following three paragraphs. 15 Mr Chun Ho Cheng stated that his wife resigned from work to look after his two children (a three-year-old son and a six-month-old daughter). He works for 'an international company' and is unable to offer any assistance to 'the husband of my auntie'. He further stated that he had no contact with Mr Guo for three years. 16 Mr Chun Fook Cheng stated that he works full time and is a single parent of a five-year-old daughter. He also lives with his aged mother, Mrs Lin's sister, who recently underwent heart surgery. He stated that he is unable to provide assistance to Mr Guo. Mr Chun Fook Cheng further stated that he only sees Mr Guo once a year. 17 Mr Chun Ngai Cheng stated that he works full time and assists his wife who suffers from serious arthritis. He stated that he helps his brother in the care of his sick mother and is unable to assist Mr Guo. Mr Chun Ngai Cheng further stated he has 'not met [Mr Guo] for a long time'. 18 Mr Guo's daughter, Mrs Lin Guo, provided the Tribunal with a typed letter. Mrs Lin Guo stated in the letter that she was unable to provide any assistance to her father for the following reasons. Her mother and father had lived with her until she sold her house and her parents then moved into government housing. Mrs Lin Guo and her husband work full time and her husband is a shift worker. She suffers from high blood pressure and diabetes. In addition Mrs Lin Guo stated, 'many different things can happen to a paraplegia to fix day and night that can not expect help from some one who dose [sic] not live in the same house'. 19 The Tribunal hearing was held on 27 August 2003. Mr Guo, with the assistance of an interpreter, gave oral evidence. The Tribunal summarised Mr Guo's evidence as follows: '● Mr Guo stays at a nursing home Ferguson lodge, regularly in order to give his wife a break. He stays there for 1-2 months at a given time. He goes to nursing home for respite care every 3-4 months; he has to apply and let them know and he is accepted if there is a vacancy. · He has not contemplated long term nursing care because he wants to be with his wife. His wife stated that she did not think long term beds were available there. Also the nursing home does not provide Chinese food. · At present he obtains Homecare assistance and has not really investigated other forms of help.'

The Tribunal's decision 20 As noted earlier, there is no dispute that Mr Lin's visa application satisfied pars 1.15AA(1)(a), (b), (c) and (d). The Tribunal affirmed the decision of the delegate on the basis that subparas 1.15AA(1)(e)(i) and 1.15AA(1)(e)(ii) were not satisfied. 21 The Tribunal, as I understand its reasons for decision, gave separate consideration to two possibilities:

(a) that Mr Guo will continue to reside, respite care aside, at home with his wife; and (b) that Mr Guo will be obliged to seek residential care in a nursing home.

22 The Tribunal's critical findings are in [39] of its reasons for decision which records: 'The Tribunal finds that in this case, the assistance that Mr Guo requires could reasonably be obtained through a combination of assistance provided by other relatives and welfare, hospital, nursing or community services. However, even if the Tribunal is wrong on the issue of whether assistance can reasonably be obtained from any other relative, the Tribunal still finds that assistance can reasonably be obtained from welfare, hospital, nursing or community services in Australia.' 23 Because the subparagraphs of 1.15AA(1)(e) were not satisfied the Tribunal did not proceed to consider whether the visa application satisfied par 1.15AA(1)(f). 24 The Tribunal accepted that Mrs Lin's medical condition limits the assistance that she can reasonably provide to Mr Guo. The Tribunal also accepted that Mrs Lin's sister was not in a position to reasonably provide assistance to Mr Guo. 25 The Tribunal's consideration of the other sources of assistance available to Mr Guo is contained in [30] - [38] of its reasons for decision which record: '[30] The Tribunal has taken into account of the evidence that other relatives such as Mr Guo's daughter and nephews are not in a position to provide assistance…The Tribunal finds … that her medical condition does not prevent her from undertaking full time employment. The Tribunal is not satisfied that the evidence establishes that some of the assistance Mr Guo requires in attending to the practical aspects of his daily life cannot be reasonably obtained from his daughter. [31] Mr Guo's nephews in Australia have given evidence that they have their own work and family commitments… [32] The Tribunal is not satisfied that the evidence establishes that the nephews cannot reasonably provide some assistance to Mr Guo in attending to the practical aspects of his daily life. [33] The Tribunal finds that the work and family commitments of Mr Guo's daughter and nephews are likely to apply to most families. The question is, whether the circumstances of the daughter and the nephews are such as to preclude a situation where assistance could be reasonably obtained from them. There is no evidence that the daughter and the nephews have considered or attempted to re-arrange family schedules and priorities in order to be able, collectively, to provide assistance to Mr Guo. The Tribunal is not satisfied that their evidence establishes that collectively they cannot reasonably provide a range of assistance at different times of the week to supplement the assistance provided by Mr Guo's wife. [34] Taking account of all the evidence before it the Tribunal is not satisfied that the assistance in paragraph (b)(iv) cannot reasonably be obtained by any other relative of Mr Guo who is also a resident.' [35] The evidence before the Tribunal is that Mr Guo already obtains significant assistance from Homecare Services on a daily basis. Homecare provides assistance for 2 hours each morning and for a further ˝ hour each evening. Homecare services is a part of the NSW Department of Ageing, Disability and Home Care (DADHC). The Tribunal notes that a range of other services are also available from DADHC, including respite care. The evidence is that Mr Guo has also availed himself of respite care services on a regular basis in order that Mrs Lin can obtain a break from caring for him. [36] There is little evidence before the Tribunal that Mr Guo has investigated the range of other services that might be available to provide assistance, including any additional modifications or equipment that might facilitate his turning in bed. [37] There is also no evidence that Mr Guo cannot reasonably obtain long-term assistance from nursing home or other similar community based services if required. Mr Guo has given evidence that he has not contemplated that because he wishes to be with his wife. There is also evidence that Mr Guo prefers the food prepared by his wife. The Tribunal understands Mr Guo's preferences in terms of remaining with his wife, and in relation to food, but the issue is whether assistance from nursing or community services cannot reasonably be obtained. The Tribunal is not satisfied that the evidence has established that this is the case. The Tribunal also notes Mrs Lin's view that there are no long-term options available at Ferguson Lodge, where Mr Guo has received respite care. There is no formal evidence that this is the case. In any case, even if Ferguson Lodge were not able to provide long term nursing home accommodation, that does not establish that other nursing home care is not reasonably available. [38] Having regard to the evidence the Tribunal is not satisfied that the assistance mentioned in paragraph (b)(iv) cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.'

consideration 26 By an amended application filed on 9 March 2004 the applicants contend that the Tribunal erred in its application of each criterion of par 1.15AA(1)(e) to Mr Lin's visa application. There are separate grounds of complaint for each criterion. 27 Mr Karp, counsel for the applicants, contended that the Tribunal misinterpreted and misapplied the criterion in subpara 1.15AA(1)(e)(i). In particular, he contended that the Tribunal erred in the way identified by Madgwick J in Issa v Minister for Immigration & Multicultural Affairs [2000] FCA 128 ('Issa v MIMIA'). The relevant passage of Madgwick J's in Issa v MIMIA reasons is at [12] where his Honour said: It occurred to me that the Tribunal member may have misdirected herself by focusing on whether the other Australian relatives and/or welfare services could reasonably make their support available to the applicant, rather than whether she could reasonably obtain it from them. This is not mere semantics. There would be many families in which, if they were minded to, the children could provide a high level of care for a parent, but in which in practice they might not be willing to do so. In such a case the applicant might be quite unable to obtain care and support from their children. The bare language used by the Tribunal member is suggestive that she confused these two concepts. 28 Notwithstanding the above observation of Madgwick J in Issa v MIMIA, his Honour in that case concluded that no legal error in the way the Tribunal applied the criterion in subpara 1.15AA(1)(e)(i) had been established. His Honour noted that the Tribunal member had correctly paraphrased the requirements of the paragraph. Further, his Honour concluded that it was open to the Tribunal member, on the evidence before her, to proceed on the basis that there was no real alienation between the applicant and her children and that the applicant's children would assist her to the extent that they could. 29 In this case, all of Mrs Lin's nephews residing in Australia provided evidence that they were not in close or regular contact with Mr Guo. They indicated that, by reason of their respective circumstances, they were not able to provide assistance to Mr Guo. Their evidence provides little, if any, support for an inference that they would be willing to assist Mr Guo if their circumstances were to change. 30 In my view, the language used by the Tribunal in this case supports Mr Karp's contention that the Tribunal misinterpreted and misapplied the criterion in subpara 1.15AA(1)(e)(i). The findings of the Tribunal at [30]-[34] indicate that the Tribunal member did not recognise the distinction identified by Madgwick J in Issa v MIMIA. The Tribunal asked whether Mr Guo's relatives 'cannot reasonably provide some assistance' rather than whether Mr Guo cannot reasonably obtain assistance from them. I agree with Madgwick J that the distinction is not merely semantic. The failure to make the distinction led the Tribunal to misapprehend the significance of the criterion in the light of the evidence before it. The Tribunal did not consider whether, and if so how, Mr Guo can reasonably obtain assistance from relatives in Australia who are apparently not minded to provide him with assistance. 31 Mrs Lin Guo's position appears to be different. If would seem reasonable to assume that Mr Guo could obtain assistance from his daughter more readily than from his spouse's nephews. In her letter to the Tribunal Mrs Lin Guo did not address the frequency or quality of the contact she has with Mr Guo or her willingness to support him. She did, however, state that, in effect, a person living outside the home of a paraplegic should not be expected to provide the kind of support that a paraplegic requires. The Tribunal member did not consider this evidence when applying the criterion in subpara 1.15AA(1)(e)(i) to Mr Lin's visa application. It may be that Mrs Lin Guo's comments do not disclose an unwillingness to provide assistance to Mr Guo. That is a matter for the Tribunal to decide. However, even if it were open to the Tribunal to find that Mr Guo can reasonably obtain assistance from his daughter, as opposed to Mrs Lin's nephews, this is not, in my view, critical to the applicants' case in this proceeding. The Tribunal found that the criterion in subpara 1.15AA(1)(e)(i) is not satisfied because Mrs Lin Guo and the nephews could 'collectively' provide support to Mr Guo. 32 Paragraphs [35] and [36] of the Tribunal's reasons for decision appear to be relevant to the Tribunal's consideration of whether the assistance required by Mr Guo can be provided to him while he continued to reside principally with his wife. The paragraphs contain implicit findings that assistance from welfare and other services is available to Mr Guo while he continues to reside at home with his wife. Nothing in the Tribunal's reasons for decision suggests that the Tribunal was satisfied that assistance of the kind identified in [35] and [36] would meet Mr Guo's long term need for assistance absent the assistance from relatives to which it had earlier given consideration. 33 I do not consider that it is to bring an excessively critical eye to the Tribunal's reasons for decision to conclude, as I do, that in considering the possibility of residential nursing home care being available to Mr Guo, the Tribunal proceeded on the basis that Mr Guo's 'preference in terms of remaining with his wife, and in relation to food' were irrelevant considerations (see [37] of the Tribunal's reasons for decision which is set out in [25] above). It is therefore necessary to determine whether, within the meaning of reg 1.15AA, factors of a kind that might broadly be described as cultural may impact on whether assistance from a particular source or sources may be reasonably obtained. 34 The certificate issued by Health Services Australia, as required by subreg 1.15AA(2), indicated that Mr Guo needed direct assistance in respect of, amongst other things, the preparation of meals. 35 'Reasonably' is a word of broad meaning. The Oxford English Dictionary 2nd Edition includes the following meanings: '1. According to reason, with good reason, justly, properly. … 3. Sufficiently, suitably, fairly.'

The Macquarie Dictionary 2nd Edition suggests similar meanings.

36 The Regulations are intended to impact particularly on non‑citizens of Australia. In the context which they provide, in the absence of an indication to the contrary, an assessment of what is reasonable in particular circumstances will, in my view, involve, amongst other considerations, consideration of cultural suitability. 37 The evidence before the Tribunal revealed that the availability of Chinese food was an issue of apparent significance to Mr Guo. In her letter of 11 July 2003 addressed to the Tribunal, Mrs Lin had referred to her husband being sent home from hospital 'so that he can experience once again the warmth of family care the meals he liked'. In the same letter Mrs Lin referred to having 'to prepare all the meals and tea' for her husband herself after the homecare worker has left, and to the applicant knowing Chinese cooking. Mr Guo's evidence to the Tribunal was that he did not contemplate long‑term nursing home care because 'the nursing home does not provide Chinese food'. There was also evidence before the Tribunal that suggested that Mr Guo, and to a greater extent Mrs Lin, did not speak English fluently. 38 I accept that it was open to the Tribunal to attach weight to, amongst other things, the fact that Mr Guo, to provide respite to his wife, had spent time in nursing homes that did not provide Chinese food and where the staff apparently spoke no Mandarin. It does not necessarily follow, however, that what might be reasonable for a limited period, might not be unreasonable in the longer term. I also accept that notwithstanding Mr Guo's preference for the food of his own culture and his and his wife's apparent lack of fluency in English, the Tribunal may not be satisfied that the assistance that Mr Guo requires cannot reasonably be obtained from a nursing home in Australia. 39 However, in my view, the Tribunal made an error of law by treating as an irrelevant consideration for the purposes of subreg 1.15AA(1) a consideration raised by the evidence before it, namely the preference of an ill and elderly Chinese person to eat Chinese food. That is, in considering whether the direct assistance in respect of the preparation of meals that Mr Guo required could reasonably be obtained from a source that would not, or might not, be able to provide food that he found acceptable on cultural grounds.

Conclusion 40 For the above reasons I conclude that the decision of the Tribunal is invalid as the Tribunal fell into errors of law which, so far as subpara 1.15AA(1)(e)(i) is concerned, caused it to ask itself the wrong question and, so far as subpara 1.15AA(1)(e)(ii) is concerned, caused it to ignore relevant material (Craig v State of South Australia (1995) 184 CLR 163 at 179). 41 In the circumstances, certiorari will issue to quash the decision of the Tribunal and mandamus will issue to the second respondent directing it to determine the second applicant's application according to law. I see no necessity for the issue of a writ of prohibition. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate: Dated: 13 May 2004 Counsel for the Applicants: L Karp