Minister for Immigration and Border Protection v Nguyen

The Grounds of Appeal 8 Although there was some room for argument, it was apparent that the Federal Circuit Court Judge concluded that the Tribunal had fallen into jurisdictional error because: the Tribunal did not "address" particular "issue[s]" raised by Mrs Nguyen and had "provided no proper pathway of reasoning or detailed consideration of the issue and, frankly, glossed over the issue of the availability of 'Vietnamese speakers' employed in residential care facilities": [2017] FCCA 339 at [26] and [27]; the Tribunal "breached sections 359A and 359AA of the [Migration Act]": [2017] FCCA 339 at [35], [38] and [44]; and the Tribunal had failed to comply with s 368(1) of the Migration Act: [2017] FCCA 339 at [52]. It was also relatively apparent that the Federal Circuit Court Judge also concluded (inter alia) that: agreement should be expressed with a submission advanced on behalf of Mrs Nguyen that "the Tribunal focused on the availability of residential care facilities and not the obtainability of residential care facilities for this particular person who requires assistance": [2017] FCCA 339 at [21]; "the Tribunal focused on the availability of residential care or 'in home' care provided by outside providers" and that "[t]he Tribunal did not adequately explain by means of a pathway of reasoning the obtainability of those types of care by the person requiring assistance in the case", namely the mother: [2017] FCCA 339 at [25] (emphasis in original); and the "conclusions reached by the Tribunal … are illogical": [2017] FCCA 339 at [50]. 9 The Grounds of Appeal are lengthy but essentially seek to contend that the Federal Circuit Court Judge erred in reaching each of these conclusions. 10 Underlying each of the Grounds of Appeal was a recurring theme, namely: whether the Tribunal correctly construed and applied reg 1.15AA(1)(e) of the Migration Regulations. One particular aspect of that theme centred upon the use made of information obtained by the Tribunal in respect to the availability of 73 aged care facilities that were said by the Tribunal to be reasonably obtainable by the mother. 11 The Tribunal, it is respectfully considered, did not properly apply reg 1.15AA(1)(e) to this information and the Federal Circuit Court Judge was correct in concluding that the Tribunal's decision should be quashed. 12 It matters not whether the error committed by the Tribunal be characterised as the misconstruction or misapplication of reg 1.15AA(1)(e) to the facts; or as a failure to properly comply with the requirements imposed by s 368 of the Migration Act to make findings of facts which explained the conclusion it reached; or as unreasonableness. There can be no doubting that a common error may be characterised as giving rise to different errors differently expressed and that the grounds of review may well "overlap" one with the other: FTZK v Minister for Immigration and Border Protection [2014] HCA 26 at [90], (2014) 88 ALJR 754 at 772 per Crennan and Bell JJ. 13 However expressed, the end result is the same: the primary Judge was correct in quashing the Tribunal's decision. 14 Given this conclusion, it is unnecessary to resolve each of the individual Grounds of Appeal.

Regulation 1.15AA(1)(e) - "obtained from" 15 The central theme espoused before the Federal Circuit Court and this Court on appeal focussed upon the terms of reg 1.15AA(1)(e) of the Migration Regulations. 16 Regulation 1.15AA(1) provides in part as follows: Carer (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) …; 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; … 17 This provision has been considered on a number of occasions by Judges of this Court. 18 A seminal decision remains that of Gray J in Biyiksiz v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 814. His Honour there relevantly concluded in the context of considering a visa application in respect of a special need relative that the phrase "cannot reasonably be obtained" had to be read in the context of the person needing assistance. His Honour thus concluded in part as follows: [17] It cannot have been the intention of the framer of the Migration Regulations that the residence visa should be available to no-one, or should only be available in the rarest of cases. In Australia, health and welfare services are highly developed. There must be very few disabilities or prolonged illnesses for which assistance is unavailable from health or aged care institutions and professionals. If par (b)(ii) of the definition of 'special need relative' were to be construed as meaning that assistance reasonably available was reasonably obtainable in every case, there would be very few, if any, visas granted. For this reason, to accord with the purpose of the Migration Regulations in this respect, it is necessary to construe 'cannot reasonably be obtained' as 'cannot reasonably be obtained by the person requiring assistance'. It is necessary to recognise that this aspect of the definition of 'special need relative' focuses on obtainability by the person requiring assistance, as distinct from availability to the person requiring assistance. … [20] … The words 'cannot reasonably be obtained' must be construed by reference to reasonableness from the point of view of the person requiring assistance, and not only by reference to the reasonable availability of the assistance from other sources. This proposition accords with my own view of the purpose of the definition of 'special need relative' in the context of the criteria for a visa of the kind sought by the applicant. [21] For this reason, factors that are subjective to the person requiring long-term assistance will be of relevance in determining whether assistance can reasonably be obtained by that person from sources other than an applicant for the relevant visa. … This decision has been considered and applied in Jung v Minister for Immigration and Border Protection [2017] FCA 173 at [48] to [49]. It was also common ground in the present appeal that the approach of Gray J in Biyiksiz correctly identified the approach necessarily to be followed by the Tribunal in applying reg 1.15AA(1)(e). 19 The Tribunal in its reasons for decision did not refer to Biyiksiz. But it was not obliged to.

The 73 aged care facilities 20 Of particular concern in the present proceeding was the manner in which the Tribunal applied reg 1.15AA(1)(e) to the information the Tribunal had obtained that there were apparently 73 aged care facilities from which the mother could reasonably obtain assistance. 21 Three aspects of the use by the Tribunal of this information should be noted at the outset. 22 First, the Tribunal could obtain information in addition to that put before it by either the Applicant or the Respondent. Section 359 of the Migration Act thus provides that "[i]n conducting the review, the Tribunal may get any information that it considers relevant". 23 Second, the source and all of the content of the information obtained by the Tribunal was not disclosed by the Tribunal during the course of the hearing and the entirety of the information obtained remained undisclosed to the parties to the proceeding (and the Court) in the Tribunal's reasons for decision - the reasons exposing but part of the information obtained and then only in the barest of terms. 24 Third, the information obtained in relation to the 73 aged care facilities formed a central part of the reasoning process pursued by the Tribunal in reaching its conclusion to affirm the delegate's decision. 25 The manner in which the information obtained by the Tribunal was disclosed to the parties during the course of the hearing before it on 14 December 2015 emerged solely from the following exchange in the transcript of that hearing: 420. MEM And you know and then if that becomes too difficult or not viable there are plenty of residential care places and there's 73 available in your area at the moment. 421. [interpreter translates] 422. MEM Including one at Forest Lake at which there are Vietnamese speakers. 423. [interpreter translates] 424. MEM So I guess it looks like from the material you provided over the weekend that you did start to make some enquiries a year ago but it seems to have been put on hold. 425. [interpreter translates] 426. INT I did take mum to some of those places so she could have a look but when she got there she refused to go, she was very upset and she cried a lot. 26 The use thereafter made of the information obtained and the centrality of that information to the conclusion reached by the Tribunal is exposed by paragraphs [16], [49] and [53] of the Tribunal's reasons for decision. Those paragraphs, together with other paragraphs to which attention was directed during the course of the hearing of the appeal, provide as follows (without alteration): [16] … The tribunal expressed doubts that if they had not explored those options, it could not be satisfied that assistance could not be reasonably obtained. The Tribunal also noted its concerns that it might not be satisfied that a combination of family assistance, packages or residential care could not be reasonably obtained and provided. For instance, the tribunal noted there were 73 permanent residential places available in their area at the moment, including one at Forest Lake which had Vietnamese speakers. The tribunal referred to documents provided by the applicant that appeared to show they had been referred for ACAT assessment in 23 December 2014 and were awaiting the forms. The sponsor said they had taken their mother to places but she refused to go and cried a lot and did not want strangers in the house and only her family. They had received some assistance from Blue Care, but their mother did not want strangers in the home. The applicant said she provided all the assistance to her mother and described the assistance. She said the sponsor assisted with shopping, but others worked and had children. Others could not provide the assistance. … [49] At hearing, the tribunal noted Level 4 care packages offer significant assistance for in home care which can be tailored individually and include equipment needed for lifting, or respite care, in home care to the value of more than $50,00 each year. There were many available. For instance, the tribunal noted there were 73 aged care facilities available on the day of hearing in the Hoa Thi Nguyen's area. Further, there were places that offered specific services for Vietnamese clients. … [52] The tribunal considers while in home level 3 and 4 packages are not immediately available for the four providers the applicant checked, there are many providers. Further, the four providers checked by Margaret noted Level 1 and Level 2 packages were available and could be utilised until a level 4 package became available. The tribunal considers it is not unreasonable that once registered for the in home service that there may be a waiting period for those services and interim services. It is unfortunate the family did register for the package assistance in 2015, when they were first eligible. Further, respite care for up to 63 days a year is also available and there are many providers of Level 4 packages in the area. The tribunal considers the assistance can be reasonably obtained and provided by combining the use of respite care, assistance from the granddaughters and the immediate Level 2 packages, while waiting for Level 4 availability or using other Level 4 providers. [53] Further, and in any event, the tribunal also considers permanent residential care options can be reasonably obtained for Ms Hoa. As discussed at hearing there were 73 available residential places in their area at the time hearing, some of which had Vietnamese speakers. The tribunal accepts Hoa Thi Nguyen would prefer to be at home and in a Vietnamese cultural/religious environment, but the tribunal does not accept that she would not be cared for in residential care. There is evidence that there are Vietnamese staff in residential care homes in the area and the many other places also cater to different cultural, religious and ethnic needs. [54] Further, it is evident from the ACAT assessment in 2014 and the carer certificate that Hoa Thi Nguyen has difficulty communicating per se (regardless of language). For instance, she is unable to comprehend basic instructions and needs contact prompting. In the ACAT assessment in 2014 it was noted concerns exist regarding here capacity and comprehension. The tribunal considers residential care places are set up for and cater for persons who have cognitive impairment and communication difficulties. The tribunal does not accept that the language differences and in Ms Hoa's circumstances make it unreasonable for her live in residential care. Further, the tribunal considers the family could provide food for their mother and take her to church, if she were go into residential care. The tribunal considers there are a number of residential places available and suitable for Ms Hoa. [55] Having considered the evidence overall, the tribunal is not satisfied that assistance cannot be reasonably provided by and obtained from a combination of the assistance, two granddaughters, respite care and in home care packages or residential care to assist the sponsor to care for her mother, Ms Hoa. [56] The Tribunal is not satisfied that the assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e) are not met. (Footnotes omitted.) Set forth in the footnote to para [49] is a number of "web addresses". 27 The references in paras [49] and [54] to the "Level 4 care packages" and the "ACAT assessment in 2014" are references to a report prepared in February 2015 by a "Metro South Aged Care Assessment Team" which assessed the mother as entitled to "up to 63 days of subsidised residential respite care" which could be extended for a further 21 day period.

The source of the Tribunal's duty to explain 28 The degree of detail required to be exposed in the Tribunal's reasons for decision is that prescribed by s 368 of the Migration Act. 29 Section 368(1) provides, in relevant part, as follows: Where the Tribunal makes its decision on a review … the Tribunal must ... make a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based; and … 30 In giving content to the requirement to adequately explain the basis for an administrative decision, reliance was also placed by Counsel on behalf of Mrs Nguyen upon Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, (2001) 206 CLR 323. The Court was there considering s 430 of the Migration Act which similarly required a statement of reasons to include "reasons", "findings on any material questions of fact" and a reference "to the evidence or any other material on which the findings of fact were based". Within that context, Gleeson CJ observed (at 330): [5] When the Tribunal prepares a written statement of its reasons for decision in a given case, that statement will have been prepared by the Tribunal, and will be understood by a reader, including a judge reviewing the Tribunal's decision, in the light of the statutory requirements contained in s 430. The Tribunal is required, in setting out its reasons for decision, to set out "the findings on any material questions of fact". If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material. … McHugh, Gummow and Hayne JJ also further observed (at 346): [68] Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. … [69] It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material …

A correct application of the information to the conclusion reached 31 One of the two main issues resolved by the Tribunal included the question of whether it could be satisfied that community services were reasonably available to the mother. 32 The difficulty revealed by the manner in which the Tribunal exposed the fact that it had obtained information during the course of the hearing was that: the Tribunal did not then identify the source of its information that "there are plenty of residential care places and there's 73 available in your area at the moment". Without further information being disclosed, it is difficult to see how a party could meaningfully respond to a statement so broadly expressed. The information then disclosed, moreover, did not disclose: anything as to whether any of those "residential care facilities" offered services which could reasonably satisfy the needs of the mother. These difficulties were further compounded by the fact that the Tribunal's reasons for decision at paras [16], [49] and [53] fail to: disclose anything as to the nature of the services in fact provided by one or other (or all) of the 73 aged care facilities other than that disclosed in paras [49] and [52]. Those paragraphs, moreover: are expressed more in terms of a conclusion rather than a finding of fact which may be found to be supported by a reference to the evidence, presumably evidence to be found in the information obtained by, but not disclosed to, the parties; and seem to conflate the findings in respect to reg 1.15AA(1)(e)(i) with reg 1.15AA(1)(e)(ii). Paragraph [52] (for example) seems to address reg 1.15AA(1)(e)(i) but then shifts its attention to (or conflates) considerations of relevance to reg 1.15AA(1)(e)(ii). Although the requirements imposed by reg 1.15AA(1)(e) are expressed in the disjunctive, there is no impediment to the Tribunal considering both of the requirements together (cf. Nguyen v Minister for Immigration and Border Protection [2016] FCA 688 at [31] to [32] per Buchanan J). But that which remains unclear from paras [52] to [54] of the reasons for decision is a statement as to those findings which the Tribunal has considered "material" to one requirement or the other. It may also be finally noted that: the requirement imposed by s 368(1)(c) of the Migration Act to make "findings on any material questions of fact" is not met by a statement as to an ultimate conclusion founded upon a series of primary facts without a statement as to what those primary fact are, those being the facts which are "material" to the conclusion reached; and although there is no necessary difficulty with an administrative decision-maker making a statement such as that contained in para [55] that consideration has been given to "the evidence overall", such a statement does not shield from scrutiny such consideration as was in fact given to the evidence and (in particular) evidence going to a centrally relevant submission. A statement that a Minister for example has "considered all relevant matters" and "all other evidence" may be said to fall short of an adequate reference to the evidence and falls short of putting a party in a position whereby they can "connect" in any meaningful manner the "findings" to the evidence (cf. King v Minister for Immigration and Border Protection [2014] FCA 766 at [37], (2014) 142 ALD 305 at 320 per Flick J. See also: Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141 at [22], (2013) 229 FCR 290 at 297 to 298 per Flick J. It is "not only prudent but also desirable" to explicitly deal with such matters: [2013] FCAFC 141 at [31], (2013) 229 FCR 290 at 299 per Katzmann J. Wigney J agreed: [2013] FCAFC 141 at [34], (2013) 229 FCR 290 at 300). It is necessary "to explain what evidence [the Tribunal] has accepted or rejected": cf. TelePacific Pty Ltd v Federal Commissioner of Taxation [2005] FCA 158 at [50] to [53], (2005) 218 ALR 85 at 95 to 96 per Sackville J. The reference in para [49] of the Tribunal's reasons to the "web addresses" is, it is respectfully considered, not a sufficient reference to the evidence for the purposes of s 368(1)(d) of the Migration Act. That which is demanded by that provision is not a reference to the sources from which the evidence may be independently discerned. Rather, what is required is a reference to that part of the information to be apparently found at one or other (or possibly all) of the "web addresses" from which evidence may be found to base a finding made on a "material question of fact". There remains no necessity to refer to every piece of evidence (WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46] to [47], (2003) 236 FCR 593 at 604 to 605 per French, Sackville and Hely JJ), but there remains a necessity to refer to "the evidence" which founds facts "material" to a decision reached. 33 The Tribunal did in fact consider the circumstances in which the mother found herself, including her desire to stay at home; the extent to which family members could render assistance; her commitment to her church; and her dietary and social needs. That which is "missing", with respect, from the Tribunal's analysis, are findings in respect to the services in fact provided by one or other (or all) of the 73 residential care facilities and findings as to the manner in which the mother could reasonably obtain a service which matched her own personal circumstances. The failure of the Tribunal to make such findings founds a conclusion that the Tribunal did not consider that such findings were necessary to a proper application of reg 1.15AA(1)(e) to the facts. 34 Such findings which were "missing" and which were essential (or "material") to the conclusion reached were findings such as: the extent to which residential care facilities had "Vietnamese speakers" available and (in the case of the Forest Lake facility to which reference is made at para [16]) the regularity with which such "speakers" were in attendance and the positions occupied by such "speakers", there being presumably a difference between such "Vietnamese speakers" being available as nurses or caring staff as opposed to receptionists or visiting doctors; what were the "services for Vietnamese clients" to which the Tribunal referred (at para [49]); the "places" said by the Tribunal (at para [49]) to offer such services; the extent to which such services were available, such as whether services were available daily, regularly or intermittently; and the "many other places" which were said by the Tribunal to "cater to different cultural, religious and ethnic needs" (at para [53]), including the manner in which such "many other places … cater to different cultural, religious and ethnic needs" and whether such "needs" included having a Vietnamese background. Generalised statements made by an administrative decision-maker, with respect, fail to properly disclose to a Court undertaking a process of judicial review the manner in which and the basis upon which a decision has been made. It is to address such deficiencies that provisions such as ss 430 and 368 of the Migration Act are directed. 35 It is this "missing" evaluation which exposes the fact that the Tribunal failed to properly apply reg 1.15AA(1)(e) to the particular facts and circumstances of the mother. The Tribunal in fact considered the facts and circumstances of the mother but failed, with respect, to consider the other side of the equation: namely, the manner in which the 73 aged care facilities which it had identified presumably by its own searches "matched up" with the mother's personal circumstances. 36 To so construe the reasons provided by the Tribunal in the present case is not to construe them with an eye "keenly attuned to the perception of error" (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ); it is to construe those reasons by reference to what those reasons do not address rather than the manner in which the reasons resolves matters to which it has directed attention.

CONCLUSIONS 37 It was argued before the Federal Circuit Court that the Tribunal had committed jurisdictional error in construing and applying reg 1.15AA(1)(e). The Federal Circuit Court was correct in reaching the conclusion that the Tribunal had so erred. 38 The appeal should be dismissed. 39 Counsel for the Minister quite candidly accepted, and quite properly disclosed, that a principal concern of the Minister in the present proceeding was the standard at which "the bar is set" for the Tribunal to explain its decision. In addressing that concern, it must be recognised that each case depends (obviously enough) upon the peculiar facts and circumstances of the individual cases that come before the Court. The facts of the present case are quite unique. It turns essentially upon the fact that the Tribunal itself obtained information centrally relevant to the conclusion it reached and did not disclose that information to the parties. Whether the information obtained by the Tribunal went beyond the limited extent of the information disclosed in paras [49] and [53] of its reasons for decision remains unknown. Irrespective of whether such information should have been disclosed to the parties pursuant to ss 359AA or 359A of the Migration Act, the obligation remained upon the Tribunal to make findings of fact exposing the basis upon which the conclusion was reached that reasonable assistance could be obtained from one or other or each of the 73 aged care facilities referred to. Such findings of fact were unquestionably "material" to the conclusion reached and were not made. In the absence of such findings being made it would not be open to the Tribunal to express a mere conclusion that reasonable assistance could be so obtained by the mother. 40 An insistence upon the Tribunal making findings of fact "material" to a conclusion as to whether any one or other (or all) of the 73 aged care facilities was such that the mother could reasonable obtain services appropriate for her circumstances, it is respectfully considered, does not impose an onerous obligation upon decision-makers and certainly no obligation going beyond that already imposed by s 368. 41 There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1. The appeal is dismissed.
2. The Appellant is to pay the costs of the First Respondent. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Flick, Barker and Rangiah.