Nguyen v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs, as taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BUCHANAN J: 1 On 21 May 2013, the son of the appellant applied for an Other Family (Migrant) (Class BO), Carer (Subclass 116) visa. The son's wife and two children (then 5 years old and 2½ years old) were included in the application as family members. 2 The essential visa requirement relevant to the present proceedings was that the visa applicant be a carer of an Australian relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (Migration Regulations 1994 (Cth), Sch 2, cl 116.211 and cl 116.221). A carer is a person identified in reg 1.15AA(1), as follows: 1.15AA 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) the applicant is a relative of the resident; and (b) according to a certificate that meets the requirements of subregulation (2): (i) a person (being the resident or a member of the family unit of the resident) has a medical condition; and (ii) the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and (iii) the impairment has, under the Impairment Tables, the rating that is specified in the certificate; and (iv) because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and (ba) the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and (c) the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister for this paragraph; and (d) if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); and (e) the assistance cannot reasonably be: (i) provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or (ii) obtained from welfare, hospital, nursing or community services in Australia; and (f) the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires. (Emphasis in original.) 3 The appellant (the visa applicant's sponsor, who required care) was then 71 years old. She had been assessed as suffering from cognition impairment, osteoarthritis, food intolerance and anaemia. She lived with another son in a Sydney suburb. Apart from the visa applicant, the appellant had two sons, three daughters and an adult granddaughter who lived in Australia; all living within about 8-30 minutes away. 4 A delegate of the Minister was not satisfied that the visa applicant met the requirements for the grant of a carer's visa. After discussing the residential and domestic circumstances of each of the other children, and the appellant's granddaughter (herself a full-time housewife with two children), the delegate said: 16. I have taken into consideration that it is not uncommon in Australian society for the children of persons who are incapacitated by age, illness, or some other serious condition to adjust their work and other living arrangements to a considerable degree in order to meet the needs of such a family member. I do not consider it unreasonable to expect such arrangements to be made, especially if the provision of care can be shared amongst the sponsor's five children and one adult granddaughter already living in Australia. While I accept that it may not be possible for all of the care requirements of the sponsor to be met by her children and grandchild residing onshore, I am not satisfied that an additional family member is required to migrate to Australia to provide full-time care for the sponsor, when the sponsor's everyday care needs could potentially be met by her own immediate family members already living in Australia in combination with available welfare, hospital, nursing or community services. … 19. While the social worker report documents care options that the sponsor's family has approached, no evidence of which services have been approached has been submitted, nor have the communications between the sponsor and/or her family with these facilities. I am therefore not satisfied that the information submitted represents a full investigation by the sponsor or her family into welfare, hospital, nursing, education or community services available in Australia. In order to receive help from the government or access government-funded services, it is necessary to have an assessment by an Aged Care Assessment Team (ACAT) who visits the home of the person who requires care. An ACAT assessment enables welfare, hospital, nursing or community services in Australia to establish which services may be available to people in need. No evidence that an ACAT assessment has been undertaken has been submitted with this application. 20. Furthermore, there are other Government programs such as the Home and Community Care (HACC) program and the National Respite for Carers Program (NRCP) that do not require an ACAT assessment to access their service. Arrangements to receive care from these care providers may be made by contacting the Commonwealth Respite and Carelink Centre. As neither the sponsor nor the sponsor's family members in Australia have provided evidence that they have made an attempt to contact services similar to those outlined above, I am not satisfied that assistance required for the sponsor cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. 21. The very purpose of a Carer visa is to facilitate the migration of a family member to Australia where appropriate care cannot be sought from welfare, hospital, and nursing services or from family members already living in Australia. As discussed, care and assistance is currently being provided by the sponsor's son, Mr CHUNG Thai Hoang Minh, with whom the sponsor lives. I assert that the sponsor's four other children and one grandchild who are already living in Australia could provide additional care and assistance to their mother/grandmother. Finally the sponsor is currently receiving some community care, has been offered the services from an Aged Day Care centre which she has refused and, according to the social worker, the sponsor also qualifies for Nursing Home Care however no evidence has been submitted. I am therefore not satisfied that assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. 5 The delegate's decision was given on 9 July 2014. The appellant applied to the Migration Review Tribunal ("the MRT") for review of the delegate's decision. Before a decision had been made by the MRT its functions were taken over by the Administrative Appeals Tribunal ("the AAT"). On 11 August 2015, the AAT affirmed the delegate's decision. 6 The essence of the appellant's case was summarised by the AAT as follows: 16. The [appellant] provided a detailed submission to the Tribunal dated 2 August 2015, supported by various declarations and medical reports. In her submission to the Tribunal, the [appellant] stated the following. 17. She lives with one of her sons. Her son is a practising monk and she is a practising nun. The residence has been transformed into a place of worship. As the sponsor's condition worsened, it has become impossible for the son to provide adequate care and fulfil his duties as a monk. The son helps with food preparation and intake, dressing, exercises and movement, personal hygiene and medication. He acts as a full-time care [sic: carer] in addition to doing all the housework. 18. The [appellant] has five children and one granddaughter in Australia. She cannot reasonably obtain assistance from Australian relatives. 19. One daughter, Thi Thai Chung Phuong is a housewife with four children aged between 5 and 17. Her husband is the sole breadwinner who works long hours. Ms Phuong suffers from bad health, has diabetes, hypertension and hepatitis B and had several operations in recent years. 20. The son, Thai Hoang Nam Chung, has three children aged between 5 and 10. He works fulltime, as does his wife. He is not in good health, has diabetes, hepatitis, problems with pancreas and his gall bladder has been removed. 21. A daughter, Ms Hoang Thai HI Chung, is married with three children aged between 2 and 10. She was diagnosed with cancer in 2014 and had two operations. She is under treatment from her daughter. Her husband had taken up the role of the primary carer looking after her and the children. 22. Another daughter, Thi Thai Hong Chung is a housewife, she has four children aged between 2 and 19 and her husband is the sole breadwinner. She had an operation about 19 years ago and since then has a limited ability to perform manual work and do the lifting. 23. The son, Thai Hoang Minh Chung is the current carer and as an ordained monk, he has a place ready for him in a monastery in Vietnam. 24. The granddaughter, Hoang Bao Chau Chung is married and has two children aged 2 and 3. The son has a heart disease and had many operations. The husband works to support the family. She dedicates the time to care of r [sic: for] her family. 25. With respect to assistance being available from other sources, the [appellant] states that she is using an Aged Care Package at home, with 3 hours of visits per week. This service only provides general assistance such as cooking and cleaning and no assistance with medication or other tasks. Payment for those services causes her financial hardship. 26. With respect to a nursing home placement, the [appellant] states she is forgetful and apprehensive and is [sic: in] constant need to have the company of one of her children at all times, otherwise she would refuse to eat or shoer [sic: shower] or take medication. She can only communicate in Vietnamese and there are no known nursing homes that could accommodate her religious and dietary requirements, including prayer, silence and meditation. The [appellant] refers to the religious and cultural expectation that children would care for the elderly parents. 7 The AAT recorded the proposed care arrangements which would involve the visa applicant as follows: 29. … The [appellant] confirmed that she lives in a two bedroom Public Housing apartment and stated that if the visa applicant comes to Australia, he will live with her but the children will live with their aunt who lives about ten minutes' drive away. The daughter in law will spend the night at her apartment but will spend the days with the children. The [appellant] stated that her son last travelled to Australia before his children were born. He has not tried to travel to Australia since then because she has been receiving the care from her other son and there was no need for him to come. Now her son in Australia wants to live in a temple in Vietnam and she needs a carer. 8 The AAT took oral evidence also from the appellant and three of her children living in Australia. The AAT appeared to accept that neither the son with whom the appellant lived (described by the appellant as her current full-time carer) nor any of the other relatives living in Australia might in future be in a position individually to "provide the 24 hour a day care that the [appellant] requires" but said: 31. … However, the issue is not the 24 hour care, but contribution to the care that is provided by each of the relatives. … and: 36. The Tribunal has considered the statements and declarations provided by each of the [appellant's] adult children and grandchildren and the medical evidence that accompanied these statements. The Tribunal is prepared to accept that there are factors which would preclude them from being full-time carers for their mother and grandmother. The Tribunal accepts that each of the [appellant's] relatives have work commitments, they provide care for their respective children and that some of them have health conditions that prevent them from acting as carers or providing full-time assistance. However, the Tribunal does not consider that this is sufficient. The presented evidence does not establish, in the Tribunal's view, that the declarants are incapable of providing some level of support each, so that the totality of such support would adequately address the [appellant's] needs. … 9 The AAT concluded: 39. The Tribunal is mindful of the [appellant's] evidence that she needs carer [sic: care] 24 hours a day and, most importantly, during the night. She has informed the Tribunal that her son with whom she presently lives provides her with care but if he is to return to Vietnam, she does not want to live with any of her other children, because she will not have the peace and quiet to practise her religion. The Tribunal accepts that the [appellant] requires a degree of care at night and the Tribunal is prepared to accept that none of her relatives are able to provide such care. The Tribunal is mindful, however, of the evidence of the [appellant] and her children, indicating that they will pool together financial resources to support the visa applicant. The [appellant's] evidence to the Tribunal is that the money that will be required by the visa applicant and his family will be considerably less than the money that might be required if the family were to hire a carer. That may well be the case, but the Tribunal does not consider that a full-time carer would be required, given the Tribunal's view that other family members will be able to contribute some degree of care and support. The Tribunal does not accept the claim that the family will be unable to arrange a carer on a part-time basis, for example, during the night, while collectively contributing to their mother's needs at other times. 40. Overall, the Tribunal accepts that each of the [appellant's] children and the two adult grandchildren in Australia have various commitments that preclude them from being full-time carers. The Tribunal accepts that none of the relatives are able to provide the requisite degree of care on their own. However, the Tribunal is not satisfied that the relatives cannot provide some degree of care, so that they together, and in addition to any paid service, will provide the care that the [appellant] needs. 41. Having considered the totality of the evidence before it, 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. Therefore the requirements of r.1.15AA(1)(e) are not met. 10 The appellant then applied to the Federal Circuit Court of Australia ("the FCCA") for judicial review of the decision of the AAT. At this point, it was necessary to show that the AAT had made a jurisdictional error. 11 The appellant ultimately sought to rely on a "proposed amended application". In that document (which I shall discuss below) one series of contentions was that the enquiry directed by reg 1.15AA was whether there was a single relative in Australia who could provide the care proposed by the visa applicant (not a combination or group of such relatives), that the relevant question was whether the services necessary could only be provided by a relative or from welfare etc services and that only publically provided services were relevant to an assessment of available "welfare, hospital, nursing or community services". 12 Another contention was that the AAT had "side-stepped" the relevant issue when it concluded that the relatives in Australia could, as a group, provide the necessary care rather than examining in detail the nature and extent of the assistance which each could provide. 13 The FCCA rejected those contentions, finding that the AAT decision was not affected by jurisdictional error (Nguyen v Minister for Immigration & Border Protection & Anor [2015] FCCA 3254). 14 The appellant has now appealed to this Court. The grounds of appeal (as pressed at the hearing of the appeal) are stated as follows: Ground one 1 The Court denied the Appellant procedural fairness when it refused to consider the Appellant's post-hearing written submissions, and failed to consider the Appellant's proposed further ground of review. 1.1 At the hearing, the Court adjourned proceedings without hearing the Appellant's submissions in reply, and told the parties to put any further submissions in writing. 1.2 The Appellant filed submissions in reply, sought to raise a further particular with respect to the interpretation of regulation 1.15AA, and filed a proposed amended application which included the further particular. 1.3 The Court refused to consider the submissions, and did not accept that leave to file the submissions had been granted. 1.4 The further particular is that the Tribunal erred in focusing upon whether it was reasonable for members of the Visa Applicant's family to "pool together financial resources" and "arrange a carer on a part-time basis, for example during the night"(at [39]), rather than whether it was reasonable for the Visa Applicant to obtain (and pay for) those services. 1.5 The Court should have considered the submissions, should have considered the application for leave to argue the further ground, should have determined that it was in the interests of justice go grant leave, and having granted leave, should have found that the particular was made out. 1.6 In the alternative to particular 1.5, the Appellant says that in the light of the denial of procedural fairness, the Court should consider the application for leave to amend on its merits, and the ground on its merits. … Ground three 3.1 The Court erred in dismissing ground 1 (ii) of the Appellant's application to that Court (at [41] - [45]). 3.2 The Court dismissed the ground because the Court held that the use of "or" between regulation 1.15AA(1)(e)(i) and (ii) was conjunctive, not disjunctive, and therefore, that the Tribunal had not erred in reading the sub-sections conjunctively. 3.3 The Court should have found that there was no reason to depart from the ordinary use of the word "or", which is disjunctive. Ground four 4 The Court erred in dismissing ground 1 (iii) (at [46] - [50]). 4.1 The Court should have employed the sui generis principle in interpreting "welfare, hospital, nursing or community services", and understood that the words, when read together, were directed at governmental, quasi-governmental, or government-sanctioned, professional health or welfare services, rather than the informal, privately contracted services which the Tribunal appeared to have in mind. Ground five 5 The Court erred in finding that the Tribunal had not sidestepped the question of how 24 hour care was to be provided to the [appellant], or had failed to give genuine, proper, or realistic consideration to that question. 5.1 The Court should have found that the Tribunal was required to consider, with a degree of particularity, what care each relative may have been able to provide; and how that might amount to 24 hour care. (Italics in original.) 15 The appellant did not press Ground 2 in the notice of appeal, which contended that the reference in reg 1.15AA(1)(e) to "any other relative" was to a single such relative. The appellant now accepts that the term "relative" in reg 1.15AA should be understood as incorporating the plural, as well as the singular, sense of that term (see also, Acts Interpretation Act 1901 (Cth), s 23(b)).