Resolution of the issues
15 The gravamen of the applicant's contention is that, in effect, the Tribunal misconstrued the test, enunciated in Lin and Rafiq, for determining whether a visa applicant is a carer for the purposes of reg 1.15AA. As Lin and Rafiq both refer to Issa v Minister for Immigration, Multicultural and Indigenous Affairs (supra), it is useful to analyse in more detail the reasoning in that case.
16 In Issa, the issue before Madgwick J was whether the applicant was a "special need relative" of her mother, Mrs Issa. The applicant needed to establish that "substantial and continuing assistance … cannot reasonably be obtained from another relative or welfare services in Australia". His Honour set out at [8] of his reasons these findings of the Tribunal:
'The applicant's daughter attended at the hearing ... with her mother. Despite her protestations and having had the opportunity of seeing her give evidence to me I am not satisfied that she cannot do anything to help her mother. Whilst she was stated it is due to her problems being separated, I am not satisfied that she cannot assist her mother. Furthermore, I am not satisfied that her sons and their families are not able to assist the applicant... The mere fact that the visa applicant claims that her sons are too busy or that they have a bad attitude or that they get irritated quickly, does not convince me that they cannot do anything to help their mother. Furthermore, the evidence is that the review applicant does not often see her sons, but nevertheless she does see her sons. She admitted to the Tribunal that she sees her daughter on an average once a week. I am not satisfied that her daughter and her sons are unable to assist her.' (emphasis added by his Honour)
Madgwick J proceeded, at [12]-[13], to discuss whether the Tribunal had erred in its approach to the question of whether the assistance required by the applicant could not reasonably be obtained by the applicant;
'It occurred to me that the Tribunal member may have misdirected herself by focussing 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.
However, it is only fair to understand the reasons of the Tribunal member in other than a narrow and point-taking way. In the first place, the Tribunal member did, as I have indicated, correctly paraphrase the requirements of the regulation; she set out the relevant question as being whether the assistance could not reasonably "be obtained" from another relative or welfare services in this country. In the second place, there was material which suggested that there was no real alienation of Mrs Issa from any of her other natural children. The younger daughter, Nour, professed herself willing to help her mother as much as she reasonably could, but pointed out that she was at the time looking for work and was trying to re-establish her life after the separation from her husband. The Tribunal member was therefore entitled to understand and to conclude that to the extent that Nour and Mrs Issa's sons could reasonably help her, they would. On the facts of the case, then, the question as to whether Mrs Issa could reasonably obtain assistance from her relatives or the welfare services, would be answered by whether the relatives and those services could reasonably furnish such assistance. I think that that is what the Tribunal member was expressing. There is no legal error in such an approach on the facts of this case, although I point out the conceptual distinction for what use it may have in other cases.' (emphasis added)
17 On the approach adopted in Issa, the determination of whether the assistance required by an applicant cannot reasonably be obtained from another relative involves two distinct conceptual steps. The first requires an acknowledgement of the distinction between whether relatives could reasonably provide assistance or reasonably make such assistance available to the applicant on the one hand, and whether the applicant could reasonably obtain the required assistance, on the other. The second step is an assessment of whether the distinction ought to be made on the facts of the particular case. Specifically, it is necessary to ask whether, to the extent that the relatives could reasonably provide assistance, they would do so. If that question be answered affirmatively, it is unnecessary to give effect to the distinction between the relatives' being reasonably able to provide assistance and the applicant reasonably obtaining the necessary assistance.
18 In Rafiq, the mother of the applicant required assistance. The only other relative of the mother residing in Australia was the applicant's sister, who had been providing assistance to the mother for 23 years. However, that sister indicated before the Tribunal that she was no longer willing to provide the care required by the mother. The Tribunal was not satisfied that the assistance required by the mother could not reasonably be provided by that sister and found that the applicant did not satisfy subreg 1.15AA(1)(e)(i). Finn J found that, in reaching its conclusion, the Tribunal had asked and answered the wrong question. His Honour then said, at [10]-12] of his reasons;
'It is one thing to ask whether assistance can reasonably be obtained from a relative. It is quite another to ask whether that assistance can reasonably be provided by a relative: see Issa v Minister for Immigration and Multicultural Affairs [2000] FCA 128 at [12]. What a relative is capable of doing and what that person is willing to do are not necessarily the same.
There is an obvious reason why the subparagraph has the focus it has. Its object is not to effect a form of civil conscription of "available" relatives. Nor does it require a relative to act selflessly and contrary to that person's own wishes, even if absent any alternative means of assistance that relative might continue to provide assistance for reasons of love, duty etc.
In approaching the matter as it did, the Tribunal concerned itself with what the applicant's sister was capable of doing. That is not the concern of the subparagraph. Had the Tribunal asked itself the correct question it could well have reached the contrary conclusion in light of the sister's own and repeated evidence of her inability or unwillingness to continue providing the assistance she did.' (emphasis added)
19 In Lin, the applicant had applied for a carer's visa in respect of his uncle, Mr Guo, who lived with his wife, Mrs Lin, in Australia. Mr Guo, who was confined to a wheelchair and required substantial care, received his care primarily from his wife and, occasionally, from community services and a nursing home. The evidence before the Tribunal was that Mrs Lin was no longer able to care for Mr Guo and that Mrs Lin's three nephews residing in Australia had infrequent contact with Mr Guo and were not prepared to provide the required assistance. Further, Mr Guo's daughter, Mrs Lin Guo, had given evidence that she was unable to provide any assistance to her father due mainly to time pressures and her own health considerations. The Tribunal was not satisfied that the evidence established that some of the assistance which Mr Guo required could not be obtained from his daughter or his wife's nephews. As in the application presently before me, the Tribunal also found that there was no evidence that the daughter and his wife's nephews had attempted to re-arrange their family schedules and priorities in order to provide assistance to Mr Guo and it was further not satisfied that collectively the relatives could not reasonably provide a range of assistance at different times during the week.
20 In her reasons in Lin, Branson J referred to the decision in Issa and distinguished it on the basis that, in the case before her, the evidence provided little, if any, support for the inference that the wife's nephews would be willing to assist Mr Guo. Her Honour then concluded, at [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.'
21 With respect, I consider that the line of authorities discussed above correctly identifies that, in assessing whether subreg 1.15AA(1)(e) of the Regulations has been satisfied, a real conceptual distinction has to be drawn between whether the assistance can reasonably be obtained from relatives and whether it can reasonably be provided by relatives. Whether something can be provided is a notion that is addressed from the perspective of the provider. Conversely, whether something can be obtained is addressed from the perspective of the person requiring what is to be obtained. The language of subreg 1.15AA(1)(e) uses the word 'obtained' and therefore, in my view, it requires the question to be directed to the point of view of the person who needs the assistance.
22 The significance of the distinction becomes apparent when one applies the concept of "reasonableness", as subreg 1.15AA(1)(e) requires. The structure of the paragraph entails that reasonableness must be assessed in light of the circumstances of the applicant, not of the relatives who might be proposed as being expected to provide the care. It may be a reasonable expectation that members of a resident's family will provide care in a particular case. If, contrary to that expectation, a resident's children refuse to provide the requisite care, that refusal may be unreasonable when viewed from the standpoint of the children. A refusal by the available children to provide the care, even if unreasonable from that standpoint, cannot detract from the conclusion, from the standpoint of the resident, that he or she cannot reasonably obtain the care.
23 In my view, the Tribunal has misdirected itself in the present case as to the appropriate test for the application of subreg 1.15AA(1)(e). Specifically, the Tribunal has failed to draw the distinction between whether assistance can reasonably be provided and whether it can reasonably be obtained. This is apparent from a reading of pars 42 and 43 of the Tribunal's reason (set out at [8] above), where the Tribunal has clearly focused on whether it is reasonable to expect the members of the applicant's family in Australia to continue to provide the care which he needs. This is illustrated by observations like "There are no special impediments that would prevent the families from helping, simply a preference to attend to their own family life and business affairs" and "It is reasonable to think that children, even when they have their own personal obligations and problems should readjust work and personal schedules and even place of residence, to assist their parents." I have not selected these examples in an over-zealous desire to detect error (as cautioned against in Minister for Immigration, Multicultural and Indigenous Affairs v Wu Shan Liang (1996) 185 CLR 259, at 271-272). Rather, the Tribunal's remarks clearly indicate that the Tribunal focused, when considering the evidence before it, on whether it was reasonable to expect the family already in Australia to provide the care required by the resident father. On the other hand, I have not been able to discern in the Tribunal's reasons an assessment of whether, from the father's standpoint, it was reasonable for him to obtain the assistance of his relatives who were not minded or willing to provide it.
24 The facts in this case are distinguishable from those in Issa. In that case, the Court held that the Tribunal was entitled to, and did, find that, where the relatives could assist the resident, they would. Therefore, the question of whether assistance could reasonably be obtained could be answered by assessing whether the assistance could reasonably be provided. In the present case, on my reading of the Tribunal's reasons, there was no evidence that the applicant's relatives would provide assistance where they could. On a beneficial reading of the Tribunal's reasons, it may be inferred that the resident's daughter, Sarojina Nand, would continue to provide assistance where she could do so. However, the Tribunal held that the assistance could reasonably be provided by all the applicant's relatives collectively, not just from Sarojina Nand, and there was no evidence before the Tribunal that the other relatives were willing to provide assistance. By contrast, the facts of this case are more akin to those in Lin, where Branson J observed, at [31];
'Mrs Lin Guo's position appears to be different. It 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.'
25 It is necessary to refer only briefly to the Tribunal's findings in relation to subreg 1.15AA(1)(e)(ii). As I have pointed out at [9] of these reasons, the Tribunal seemed to suggest, in par 44 of its reasons, that assistance could also reasonably be obtained from welfare, hospital, nursing or community services, as contemplated by subreg 1.15AA(1)(e)(ii). However, it is not clear whether this was a finding of fact that, independently of any assistance obtained from the applicant's relatives, the applicant could reasonably obtain the required assistance from welfare, hospital, nursing or community services in Australia. If there had been such a finding, the Tribunal would have been entitled to conclude that the applicant had not satisfied subreg 1.15AA(1)(e). (See Issa, at [14].)
26 However, I am not prepared to read the Tribunal's reasons in this way. Rather, in my view, the preferable inference is that the Tribunal held that the assistance required by the applicant could be obtained from welfare, hospital, nursing or community services in Australia only in conjunction with the assistance which it considered could reasonably be provided by the applicant's relatives. Therefore, if the finding that the applicant could reasonably obtain assistance from his relatives is infected by a jurisdictional error, the Tribunal's findings in relation to subreg 1.15AA(1)(e)(ii) cannot prevail to preserve its decision from review.
27 I accept the submission of the respondent that it is for the applicant to adduce evidence that assistance cannot reasonably obtained by relatives or appropriate community services (see Tran v Minister for Immigration, Multicultural and Indigenous Affairs (supra) at [25]). However, in misdirecting itself as to the test required to satisfy subreg 1.15AA(1)(e), the Tribunal did not properly consider the evidence which had been adduced by the applicant. Accordingly, the error of the Tribunal was not in making a finding of fact like that instanced in SFGB at [20] of its reasons. Rather, the error involved misconstruing the criteria required to be satisfied by the visa applicant as conditions of obtaining the visa. Specifically, the Tribunal did not ask itself whether the evidence established that the applicant could reasonably obtain from his relatives the assistance he required. The Tribunal failed to exercise the jurisdiction entrusted to it (see Rafiq at [13], citing Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [82]), and thus committed a jurisdictional error not protected by s 474 of the Act.