Nguyen v Minister for Immigration and Citizenship [2025] FedCFamC2G 1642

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographic, clerical or grammatical errors (r 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04(h) of the Rules.

1. Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 3 November 2020 which affirmed a decision of a delegate of the first respondent to not grant the applicants Other Family (Residence) (Class BU) Carer (Subclass 863) visas (visas).

1. The background to this matter is derived from the submissions of the parties and, unless otherwise indicated, does not appear to be in dispute.
2. The first applicant (applicant) is a 59-year-old female citizen of Vietnam (Court Book (CB) 39). The second and third applicants are Vietnamese citizens and members of the applicant's family unit (CB 36, 38 and 54). The (former) fourth applicant is the son of the first and second applicants (CB 52). The applicants arrived in Australia on 22 October 2012.
3. On 29 September 2016, the applicants applied for the visas (CB 13 to 313). The applicants were sponsored by the first applicant's mother (sponsor) (CB 27).
4. On 19 March 2018, the delegate refused to grant the applicants the visas finding that the first applicant did not satisfy cl 836.221 in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) as she did not meet the definition of 'carer' at regs 1.15AA(1)(e)(i) and (ii) of the Regulations (CB 329 to 336) in which "carer" is relevantly defined as:

(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:

...

(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

1. Having found that the applicant did not satisfy the criteria in cl 836.221 of Sch 2 to the Regulations, the delegate found that the second to fourth applicants did not satisfy the criteria for the visa pursuant to cl 836.321 of Sch 2 to the Regulations (CB 336 to 340).
2. On 6 April 2018, the applicants applied to the Tribunal seeking review of the delegate's decision (CB 344 to 346).
3. On 14 October 2020, all the applicants attended a hearing before the Tribunal to give evidence and present arguments, assisted by an interpreter in the Vietnamese language (CB 792 to 797).

1. The Tribunal identified that the relevant issue in the review was whether the applicant met the definition of 'carer' in reg 1.15AA of the Regulations (CB 800 at [11] and [15] to [17]).
2. The Tribunal set out information and material from the applicant and sponsor about why other members of the sponsor's family could not assist in her care, the specific care she required and why it was claimed that only the first applicant could provide that care (CB 800 at [18] to [20]). The Tribunal considered the material but, notwithstanding the opinions of the applicants, based its decision on whether the assistance could reasonably be obtained from other service providers (CB 801 at [20]).
3. The Tribunal accepted information from the sponsor's general practitioner and a psychologist (Mr Nguyen) about her health conditions and care requirements (CB 801 to 802 at [25] to [26]). The Tribunal accepted that community and welfare services provided to the sponsor may be different to which the first applicant could provide. However, the Tribunal did not accept the psychologist's opinion that such services would be expensive, impractical and inconvenient. The Tribunal also did not accept that the sponsor's emotional and psychological needs could not be met by other family members and medical professionals, or that manner in which the first applicant contributed to the sponsor's quality of life could not reasonably be met by welfare, hospital, nursing or community services in Australia (CB 809 at [45]).
4. The Tribunal considered evidence by Bankstown Older People's Mental Health Service (BOPMH), a second psychologist (Ms Marie Haque) dated 5 March 2020 and a social worker (Ms Hanh Nguyen) dated 6 March 2020. The Tribunal accepted that the sponsor suffers from the conditions claimed, that she and the first applicant have a strong bond, and that refusal to grant the visa may present language difficulties for the sponsor, challenge her mental well-being and increase her care needs. In respect of each of those aspects, the Tribunal did not accept assistance could not reasonably be obtained from welfare, hospital, nursing or community services in Australia (CB 809 at [46] to [48]).
5. The Tribunal considered submissions made by the applicants about the care they provided to the sponsor in contrast to the scope of available external services. The Tribunal accepted that the sponsor would prefer to remain in her own home to receive treatment and that she was reluctant to engage with external services (CB 809 to 811 at [49] to [56]).
6. The Tribunal found that while it seemed the sponsor and her family had not sought to obtain external services, there was little evidence that such services in Australia could not be reasonably obtained from welfare, hospital, nursing or community services (CB 811 at [57]).
7. The Tribunal did not accept that external assistance could not be reasonably obtained, noting there to be no independent evidence given to support a claim that 24-hour care by external service providers was either not available, or would be prohibitively expensive. There was also no evidence before the Tribunal to the effect that external service providers could not provide carer in relation to the sponsor's cultural and language needs, nor to her preference for care by a female (CB 811 to 812 at [58]).
8. The Tribunal ultimately found that:

the applicant has not provided any acceptable independent information that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia

and concluded that the sponsor had "unreasonably rejected" any such options (CB 812 at [59]).

1. Accordingly, the Tribunal was not satisfied the requisite assistance could not reasonably be obtained from welfare, hospital or nursing community services in Australia, and therefore found reg 1.15AA(1)(e)(ii) was not satisfied. The Tribunal noted that because first applicant had not satisfied that criterion for the grant of the visa, it had not proceeded to consider the remaining requirements. The failure of the first applicant to satisfy the requirement of reg 1.15AA (1)(e)(ii) meant the second and third applicants did not satisfy the criterion for a grant of the visa (CB 813 at [63] to [65], [67]).
2. The Tribunal affirmed the decision not to grant the applicants the visas (CB 813 at [68]).

1. By an application to show cause filed with the Court on 23 November 2020, the applicants commenced the instant proceedings. An Affidavit made by the applicants' solicitor was filed in support. The applicants have been represented by that solicitor since the inception of the proceedings. The proceedings were placed in the Court's central migration docket upon their commencement.
2. On 17 December 2020, a Registrar made orders by consent for the preparation of the proceedings for hearing, which included leave to the applicants to file an amended application by 11 March 2021 (2020 orders). Probably unsurprisingly, in circumstances where the applicants have been represented throughout the proceedings by the solicitor who authored the originating application, they did not initially take up the opportunity to amend. On 9 March 2021, a Registrar made orders extending the deadlines of Order 2 of the 2020 orders. On 25 May 2021, an Affidavit of the applicants' solicitor made on 25 May 2021 (annexing a transcript of the Tribunal hearing) was filed (transcript Affidavit).
3. On 1 December 2021, a Notice of Discontinuance was filed for the fourth applicant.
4. The proceedings remained in the central migration docket until 9 January 2025, on which date they were docketed to me and I made procedural orders listing them for final hearing (2025 orders). By the 2025 orders the applicants were again granted leave to file any amended application, Affidavit evidence and written submissions by 27 January 2025. The first respondent was ordered to file any additional evidence and written submissions by 3 February 2025.
5. On 29 January 2025, the applicants filed the following documents outside of the grant of leave in the 2025 orders:

(a) proposed Amended Application;

(b) further copy of the transcript Affidavit; and

(c) written submissions.

1. The parties appeared before me for hearing on 10 February 2025, with the applicants represented by their solicitor and the first respondent represented by Counsel. At the commencement of the hearing, the solicitor for the applicants sought leave to rely on the proposed Amended Application. In circumstances where the first respondent had been able to respond to the newly proposed grounds by his submissions, and did not otherwise oppose leave to rely on proposed Amended Application and the applicants' late-filed written submissions, I granted it. The applicants did not seek to read the transcript Affidavit on the basis that "nothing momentous"[1] turned on it. The Court Book was tendered by the first respondent, without objection, and marked as Exhibit "1R".
2. The applicants' written submissions were extremely brief, and submissions made for them at hearing were, with respect, somewhat difficult to follow. As will be discerned from the nature of the grounds below, while the solicitor for the applicants asserted in oral submissions that the decision was legally unreasonable, in truth, the grounds direct themselves overall to disagreement with the Tribunal's conclusions and urge the Court to conclude differently than did the Tribunal. That is no part of this Court's jurisdiction in undertaking judicial review, which a legal practitioner should well know.

1. By the Amended Application the applicants raise the following grounds (errors in original, particulars to ground 1 omitted):

1. The Tribunal finding that the Tribunal was not satisfied that the evidence provided demonstrated that the assistance sought by the Sponsor cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia, was in error because:

...

2. The Tribunal decision in paragraph 21 of the reasons for decision that it would not make any finding on the claims and information provided about the sponsor's family members being unable to care for the Sponsor and the Applicant's evidence to the Tribunal that their circumstances remain unchanged, was in error because:

a. This was a criteria to be considered by the Tribunal in making its determination pursuant to Regulation 1.15AA(1)(e)(i) of the Migration Regulations 1994 (Cth);

• b. It was a failure to consider the evidence on the criteria that was required to be considered by the Tribunal.
• c. Later on in its reasoning at paragraph 45, the Tribunal did in fact make a finding that "it does not accept that the sponsors emotional and psychological needs could not be assisted by family members",

3. The Tribunal finding, that the Tribunal was not satisfied that the evidence provided demonstrated that the assistance sought by the Sponsor cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia, was in error because it failed to consider all the evidence of enquiries made to service providers including:

• 1. Bankstown Community Transport
  2. Disability South West
  3. Bankstown Community Specialist Mental Health Service for Older People
  4. Share Care Inc
  5. Macarthur Disability Services
  6. Home Care Service Inner South
  7. Diverse Community Care
  8. Woodville Community Services
  9. South West Sydney Commonwealth Respite and Crelink Centre
  10. South West Sydney Home Care
  11. Uniting Care

1. Ground 1 alleges the Tribunal erred by not being satisfied that the evidence demonstrated that the assistance the sponsor sought could not be reasonably obtained from welfare, hospital, nursing or community services in Australia. The nine particulars to the ground are instead narrative submissions which allege error in specific parts of the Tribunal's decision by suggesting that it failed to consider certain evidence.
2. By ground 1(a) the applicants contend that the psychologists' reports (CB 106 and 179) detail extensive and constant care requirements, and daily tasks, which were required to be done for the sponsor by the first visa applicant. The applicants say that, in expressing their conclusions, the psychologists took into account the likely effects on the sponsor if the first applicant was not able to obtain the visa (CB 108 to 109). The applicants alleged the Tribunal erred by not accepting one psychologist's opinion that care from welfare or community services would be "expensive, impractical and inconvenient" (CB 809 at [45]), on the basis that it was unclear how the psychologist came to that view, and upon what evidence they had based that opinion. The applicants say this was in error because the opinion was within the knowledge and expertise of the psychologist, and based on evidence about the type of services required by the sponsor.
3. The first respondent says that the applicant's submissions in respect of this particular misconstrue the importance of the report. Contrary to the contentions of the applicants, the psychologist's opinion was that the assistance "from other welfare or community services for [the sponsor's] situation ... would be expensive and inconvenient" (CB 108 and 183). The first respondent submits that, beyond a bare assertion, the psychologist's report did not provide any explanation or analysis as to how the particular conclusion was reached, such that the finding by the Tribunal at [45] that it was unclear as to how they reached that view and on what evidence, was open to it. I agree.
4. By ground 1(b) the applicants say the Tribunal did not consider relevant evidence at [45] because, once considered, that evidence should have resulted in a decision that the sponsor's emotional and psychological needs could not have been assisted by family members and medical professionals. Specifically, the applicants say that evidence as to the depth of the emotional and psychological needs of the sponsor, and that other family members and medical professionals would be unable to care for the sponsor can be found in 8 pieces of evidence in the Court Book (see [31] below), and that the Tribunal failed to consider them.
5. Contrary to what is alleged, the solicitor for the first respondent has methodically traversed the material in the Court Book to submit that Tribunal's reasons for decision demonstrate it considered each of the following items:

(a) letter from Liverpool Health Services on the sponsor's admission at Liverpool Hospital between 27 August 2019 and 3 September 2019: CB 453 considered at Tribunal reasons at [33];

(b) letter from Dr Johnstone from Bankstown OPMH dated 17 January 2020: CB 391 considered at Tribunal reasons at [35] and [46];

(c) report from psychologist Ms Maria Haque dated 5 March 2020: CB 394 to 399 considered at Tribunal reasons at [36] and [47];

(d) report from psychologist Mr Van Son Nguyen dated 7 September 2017: CB 179 to 183 considered at Tribunal reasons at [26] and [45];

(e) BUPA Medical Assessment dated 29 August 2016: CB 157 to 159 considered at Tribunal reasons at [24];

(f) statutory declarations from family members: CB 507 to 574 considered at Tribunal reasons at [42];

(g) letter from Ms Hanh Nguyen dated 6 March 2020: CB 400 to 402 considered at Tribunal reasons at [37] and [48]; and

(h) notes from Bankstown Hospital are contained in the information provided by the applicants relating to the sponsor's medical care and medical and psychological conditions, as referenced by the Tribunal at [23] and [34].

1. I accept the cross-referenced analysis set in the preceding paragraph. As such, particular 1(b) in essence quibbles with the conclusion of the Tribunal and contends simply that it should have found differently. As with ground 1(a), the first respondent says the applicants have misconstrued the Tribunal's findings, and I agree. The reasons of the Tribunal make clear that it did consider all the evidence before it, including the statements and information provided by the sponsor's family (CB 801 at [21] and CB 806 to 807 at [39] to [42]).
2. By ground 1(c), the applicants argue that the Tribunal failed to consider all the evidence put before it, in particular evidence that the visa sponsor displayed aggression and an inability to be cared for by any person because of her psychological and language challenges, and her dementia. The applicants' submissions in support of this particular ground, urge upon the Court a different outcome than that which was reached by the Tribunal, saying that it ought to have made a favourable decision in respect of the applicants. Again, this is an impermissible attempt to engage the Court in merits review, absent any properly identified failure on the part of the Tribunal to establish error.
3. By ground 1(d) the applicants take aim at the finding of the Tribunal at [46] that it did not accept that assistance for the sponsor could not be reasonably obtained from service providers in Australia. Similarly, by ground 1(e) the applicants say the Tribunal failed to consider the totality of all other evidence in concluding that assistance could not be reasonably obtained from welfare, hospital, nursing or community services in Australia. It was contended that due to the visa sponsor's mental illness, pain and mobility difficulties, she required full-time care. The applicants say that the sponsor's psychologist expressed an opinion that the sponsor required full time care, and recommended the first applicant as the carer. However, by reference to the letter from Bankstown OPMH (see [31(b)] above), it is clear the Tribunal did have regard to the issues which the applicants now allege were not considered. The Tribunal made express findings about those issues at [23], [26], [33] to [44] and [58] to [59].
4. By ground 1(f) the applicants say that the last sentence of [57] of the Tribunal's decision failed to consider that the HCP level 1 was not sufficient for the needs of the sponsor, specifically in relation to the visa sponsor's psychological dependence upon the first applicant.
5. It is sensible therefore to set out [57] of the Tribunal's decision:

The sponsor may be reluctant to think of other aged care services. It appears to the Tribunal that neither the sponsor or her family took any action to obtain services offered to the sponsor either as a result of the letters that were sent to agencies or through ACAT. The evidence from ACAT is that the sponsor was assessed and eligible to receive permanent Australian Government subsidised care from May 2019 with an HCP level 3 and while she waited for those services to become available was assigned an HCP Level 1 and that these services were permanent. The instructions in how to obtain services in the Aged Care letter gives clear directions about how to activate interim services while awaiting the availability of the HCP Level 3. While it is unclear whether these services would provide the level of assistance required for the sponsor, there is little evidence that other services in Australia could not be reasonably obtained by welfare, hospital, nursing or community services.

1. The first respondent says that the contention in ground 1(f) proceeds on a misunderstanding of the Tribunal's findings. I agree. It will be seen from the preceding paragraph that the Tribunal noted that neither the sponsor nor the family had taken any action to obtain services offered to the sponsor through the Aged Care Assessment Team (ACAT). The Tribunal noted ACAT had assessed the sponsor as eligible to receive HCP Level 3 care and, until this became available, could receive HCP Level 1 care. The Tribunal noted it was unclear whether those services met the level of care required by the sponsor, but found there was 'little evidence that other services in Australia could not be reasonably obtained by welfare, hospital, nursing and community services'. I am satisfied that those findings were open to the Tribunal based on the material before it.
2. By ground 1(g) the applicants take issue with the Tribunal's finding that in-home assistance could be reasonably obtained from community services (CB 811 at [58]). In that paragraph, the Tribunal recorded that it had not:

been provided any independent evidence of enquiries made to community services or from service providers to show that this is the situation or that any investigation has been undertaken to establish whether 24-hour services are reasonably obtainable from welfare, hospital, nursing or community services in Australia.

1. By ground 1(h), the applicants contend the Tribunal failed to consider the expert opinion of the psychologist that such services would be "expensive, impractical and inconvenient" and that it failed to consider the psychological dependence by the visa sponsor upon the applicant as a cultural factor, in conjunction with the visa sponsor's communication ability, dementia and language abilities. I reject that assertion. A plain reading of the Tribunal's reasons for decision demonstrates that the sponsor's psychological and emotional dependence on the applicant and her difficulties in communication/language were considered: see CB 801 to 811 at [20], [25] to [26], [35] to [36], [38] to [45], [47] and [51] to [54] of its reasons.
2. Finally, by ground 1(i) the applicants say the Tribunal failed to consider the totality the evidence before it including, but not limited to, the independent expert opinion of the psychologists.
3. Contrary to this particular, the first respondent says that the Tribunal's reasons at [59] (and overall), demonstrate that it had regard to 'treating physicians', see in particular [31] above. The Tribunal ultimately found the evidence provided was not acceptable, independent information sufficient to satisfy the relevant visa criterion. I am satisfied that this finding was open to the Tribunal on the material before it and that, by ground 1, the applicants simply seek to cavil with the factual findings based on their disagreement therewith. Again, despite being cast as a ground which contends illogicality or irrationality by ground 1, the applicants simply pursue merits review. The applicants have failed to demonstrate that there was only one conclusion open on the evidence or that there is no logical connection between the evidence and the inferences drawn': see Fattah v Minister for Home Affairs [2019] FCAFC 31; (2019) 268 FCR 33 at [45] per Perram, Farrell and Thawley JJ.
4. Ground 1 is not made out.

1. This ground, as raised, is somewhat difficult to comprehend. By their written submissions the applicants say as follows:[2]

Saying that the Tribunal would not make any finding on the claims and information provided about the sponsor's family members being unable to care for the Sponsor, and then later making a finding that it does not accept that the sponsors emotional and psychological needs could not be assisted by family members, is a contradiction.

1. That was the only submission made in support of ground 2 either in writing or at hearing. To the extent that the applicants appear to contend the Tribunal's decision contains a "contradiction" (namely by reference to [21] and [45] of the reasons for decision in its assessment of the criterion in reg 1.15AA(1)(e)). I reject that allegation.
2. In Nguyen v Minister for Immigration and Border Protection [2016] FCA 688 at [31] to [32] Buchanan J considered the same clause of the Regulations and observed the following:

31. Similarly, there is no reason to construe reg 1.15AA(1)(e) as a condition with two mutually exclusive aspects. The end point of the enquiry is whether adequate assistance is already reasonably available in Australia. There is no reason I can see why, in that context, reg 1.15AA(1)(e)(i) and (ii) do not operate as concurrent (and, if necessary, combined) fields of enquiry.

32. The decision-maker must be satisfied that assistance is not reasonably available from either source - ie relatives or external services. That does not mean that the decision-maker should be satisfied that the condition stated by reg 1.15AA(1)(e) is met if the requisite degree of assistance is not available entirely from only one source or only the other, rather than by some suitable combination of the two, as is commonplace.

1. To the extent that in the present case the Tribunal essentially found reg 1.15AA(1)(e)(ii) could not be satisfied, in part because the sponsor had unreasonably rejected any option (CB 812 at [59]), that finding was open to it on the material in the review. I accept the submission of the first respondent that it followed logically therefrom that the Tribunal could not be satisfied as to the "end point of the enquiry",[3] namely whether adequate assistance was already reasonably available in Australia. The Tribunal's reasoning in respect of this assessment was consistent with existing and accepted authority, and no error is established by ground 2.

1. By this ground the applicants allege error constituted by the Tribunal allegedly having failed to have regard to the evidence of enquiries made by the sponsor with community services providers.
2. The applicants' sole submission in support of this ground is as follows:[4]

See pages 139 to 151 for letters to community service providers, and pages 185 onwards for their replies.

1. The first respondent submits that the Tribunal did consider and make findings which engaged with the evidence of the sponsor's enquiries with community service providers at [27] to [32], [35], [37], [46] and [56] to [57] of the reasons for decision. Paragraph [57] of the Tribunal's decision is extracted at ([35]) above. However, relevant to this ground also is the paragraph which preceded it in which the Tribunal said as follows:

The Tribunal has been provided information about the sponsor enquiring about services that may be obtained. The information provided is that the sponsor wrote to several agencies seeking assistance. Evidence has been provided, that she received some responses to her letters and was directed to various help lines which would advise her and that the advice could be given in either the Vietnamese or English languages. Other claims are made about residential care not being suitable for the sponsor because she can't speak English and can't communicate with staff and this would isolate her. It is claimed that nursing home care is inappropriate because the sponsor would be vulnerable to communicable disease, especially considering the risk of COVID-19. It is asserted that the sponsor's mental health would worsen if she was in a nursing home.

1. The first respondent says that the findings and reasons of the Tribunal were detailed in this regard.
2. It is well established that the Tribunal was not required to list every piece of evidence: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593 at [47]. As such, against the background of the findings it did make, there is no error constituted by the Tribunal not listing every service provider which the evidence recorded as having been contacted by the sponsor. I am satisfied that this ground otherwise seeks to engage the Court in merits review also.
3. Ground 3 does not establish error.

1. Absent jurisdictional error the decision of the Tribunal is a privative clause decision, and the application must be dismissed. I will so order.
2. I will hear the parties as to costs.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

[2] Applicant's written submissions filed 29 January 2025 at [12]

[3] Nguyen (supra) at [31] per Buchanan J

[4] Applicant's written submissions filed 29 January 2025 at [13]