Rasla v Minister for Immigration and Border Protection

BACKGROUND 4 The visa applicant applied to the Department on 19 November 2012 for a Subclass 116 Carer visa. The applicant herself is a 57 year old permanent resident who suffers from extensive physical and mental health problems, including carpal tunnel syndrome, reduced vision, osteoarthritis, psychotic depression, post-traumatic stress disorder and anxiety. It was common ground that the applicant needed '24/7' care, which I take as meaning constant care. A delegate of the Minister refused to grant the visa applicant, on 2 January 2013, as well as to the secondary visa applicants. On 16 January 2014, a differently constituted Tribunal affirmed the decision under review, but by consent the Federal Circuit Court of Australia accepted that there was jurisdictional error in arriving at that decision. The decision was remitted to the Tribunal for further consideration according to law. 5 The Tribunal wrote to the applicant on 6 August 2014 confirming that her application was to be reconsidered. On 22 August 2014, the applicant, the visa applicant and the secondary visa applicants were invited by the Tribunal to appear before it to give evidence and to present arguments. A hearing occurred on 27 October 2014. On 3 November 2014, the Tribunal wrote to the applicant pursuant to s 359A of the Migration Act 1958 (Cth). As noted by the primary judge (at [4]-[5] of the primary decision), the letter stated: 4. The review applicant and visa applicants were also represented by their registered migration agent at that hearing. Following the hearing on 3 November 2014 the Tribunal sent a letter to the review applicant and visa applicants consistent with s.359A of the Migration Act 1958 raising the following information: At the hearing on 27 October 2014, the visa applicant told the Tribunal that if the visa was granted and he came to Australia he would be able to support his family by running his business by working from home on his computer for 30 minutes to one hour per day. If this did not prove to be possible he stated he would look for part-time work to support his family. 5. The Tribunal identified in the letter how the information was relevant. The Tribunal expressly referred to the legislative requirement that the visa applicant must be willing and able to provide to the review applicant substantial and continuing assistance of the kind needed. 6 Through her representative, and by letter 6 November 2014, the applicant responded. By letters of 17 and 19 November 2014, the applicant again through her representative, provided further statements from her Australian relatives in relation to the preparedness of each relative to give financial support to the visa applicant in Australia, if that was required. 7 The Tribunal, on 16 December 2014, affirmed the decision under review as it was not satisfied that the visa applicant was a 'carer' of his mother within the definition of 'carer' in reg 1.15AA of the Migration Regulations 1994 (Cth). Particular focus was on reg 1.15AA(1)(f), which provides: (f) the applicant is willing and able to provide to the resident substantial and continuous assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires. (emphasis added) 8 Significantly, the Tribunal found that the visa applicant was not credible in respect of his 'willingness' to provide personal assistance to the applicant and also not credible in respect of his stated work plans in Australia. The Tribunal did not accept that the visa applicant would be able to work to provide for his family (a wife and two children) as well as providing 'substantial and continuing' assistance for the applicant. Taking into account his lack of credibility and work plans, the Tribunal was not satisfied that he was 'willing and able' to provide the applicant with substantial and continuing assistance. It followed that the visa applicant was not a 'carer' as he did not satisfy cl 116.221 to Sch 2 of the Regulations. In those circumstances the visa had to be refused: s 65(1)(b) of the Act.

STATUTORY FRAMEWORK 9 It is necessary to say a little about the statutory framework. The relevant criteria for the grant of a carer's visa may be found in Sch 2 of the Regulations and, in particular, cl 116.221 which requires that the applicant be a carer of the Australian relative mentioned in cl 166.211. The definition of 'carer' is found in reg 1.15AA which relevantly provides: 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 (within the meaning of subsection 23(1) of the Social Security Act 1991), 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 … (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. (2) A certificate meets the requirements of this subregulation if: (a) it is a certificate: (i) in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and (ii) signed by the medical adviser who carried it out; or (b) it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures. (3) The Minister is to take the opinion in a certificate that meets the requirements of subregulation (2) on a matter mentioned in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer.

GROUNDS OF APPEAL 10 If leave is granted, the applicant seeks to contend that: (a) the Federal Circuit Court erred in finding that the Tribunal did not apply the wrong test; and (b) the Federal Circuit Court erred in finding that the Tribunal's decision was not irrational, illogical and not based on findings or inferences of fact supported by logical grounds.

Ground 1 - the wrong test 11 The applicant contends that the wrong test was applied in two respects. 12 The applicant argues that the first error arose from the Tribunal's determinations of whether the visa applicant met the requirements of cl 116.221 and, in particular, in its approach to determining whether the visa applicant was a carer as defined in reg 1.15AA of the Regulations. In this regard, relevantly, the Tribunal needed to be satisfied that the visa applicant was willing and able to provide the applicant 'substantial and continuing assistance of the kind needed under subparagraph (b)(iv)'. 13 The applicant points to the test of 'substantial and continuing assistance' as being a cumulative test: Perera v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1120 per Gray J. Whether the assistance the visa applicant is willing and able to provide is 'substantial and continuing' is a matter of fact for the Tribunal: Narayan v Minister for Immigration & Multicultural Affairs [2001] FCA 1745 per Lindgren, Tamberlin and Merkel JJ. The terms 'substantial and continuing' qualify the kind of care that a visa applicant must be able and willing to provide. The applicant stresses that what is not required is that a prospective carer establish that he or she is willing and able to provide all the assistance that a relative requires (emphasis added). In contrast, what is required is to demonstrate a willingness and ability to provide substantial assistance (emphasis added). 14 The applicant argues that the Tribunal applied the wrong test in that it failed to give any consideration to the question of whether the visa applicant was willing and able to provide substantial, as distinct from all assistance. This error is demonstrated, it is said, by the fact that at no point did the Tribunal make any finding of fact as to the level of assistance (by reference either to the nature of the assistance or how many hours per week would be necessary) the visa applicant would be willing and able to provide to his mother. Because the Tribunal made no assessment of what level of care would be required for the applicant, the applicant argues the Tribunal cannot have actually formed any state of satisfaction first, as to what in its view constituted substantial assistance for the applicant and, secondly, whether the visa applicant was willing and able to provide that level of assistance. 15 The applicant draws attention to [33] of the Tribunal's decision, which was in these terms: The Tribunal further considered that if the visa applicant sought part time work while he was in Australia he would not also be able to offer substantial and continuing assistance as his mother requires. In determining this, the Tribunal does not take into account whether the visa applicant's sister, Heba would be sharing the assistance required with him. This visa application is on the basis of whether [the visa applicant] is willing and able to provide to [the applicant] substantial and continuing assistance of the kind needed under subparagraph (b)(iv). The visa applicant has given evidence, there is documentary evidence on the Department file and the Tribunal accepts, that [the applicant] needs 24/7 care. The visa applicant has said that his mother's risk of falling is a major consideration to be taken into account in assessing the nature of the continuous care she requires. His evidence is that she requires someone to be with her at all times to assist her if she should fall. The Tribunal considers that if the visa was granted and the visa applicant was not able to run his part of the family business on the part time basis of 30 minutes to 1 hour per day he would need to obtain part time work. The Tribunal considers that if he was to work part time he would not be able to provide substantial and continuing assistance as required by his mother. (emphasis added) 16 The Tribunal at this point found that if the visa applicant sought part time work whilst in Australia, he would not be able to offer substantial and continuing assistance as his mother required. The applicant argues that necessarily such a conclusion requires some assessment of the nature of and duration of the assistance required by the applicant, as well as an assessment of the number of hours the visa applicant would have to be able to commit (having regard to his potential part time work commitments), and the nature of assistance the visa applicant would be able to provide. This would be necessary, it is argued, to discern whether the assistance the visa applicant was able to provide met the threshold of 'substantial' under the Regulations. Having made no attempt to engage in any reasoning of this kind, it is argued that the Tribunal's findings at [33], and [36] in particular, are flawed and based fundamentally on an incorrect approach to the test in reg 1.15AA. This, it is said, is illustrated in [36] of the Tribunal's findings which was in these terms: The Tribunal does not accept that the visa applicant would be able to run what he described at the hearing, as a full time business, for which he attended the office 4 days of the previous week as well as working from home, in 30-60 minutes per day, from his computer at home. It does not find this to be credible. The Tribunal does not accept that the applicant would be able to find other work 'of the same kind' if he was not able to support his family in this way. It notes the visa applicant is involved in a family tourism business run together with his uncle in Egypt in which he can work flexible hours. It does not find his claim that he would be able to find work 'of the same kind' to be credible. The Tribunal notes the visa applicant said he would work to support his family. The Tribunal notes that when asked about how he would support himself and his family the visa applicant said he would look for a part time position in some sort of computer work or possibly working for the Church. The Tribunal is not satisfied the visa applicant will be able to secure work of the flexible/home-based kind claimed. Accordingly, the Tribunal is not satisfied he will be ab1e to provide substantial and continuing assistance of the kind needed. (emphasis added) 17 The example put in argument was that if a person has care needs of 30 hours per week, during daytime hours, it would be necessary for a relative seeking a carer's visa to be able to establish that he or she could commit each week to 30 hours of daytime care for the first person. It is contended that if this was a requirement, the definition of 'carer' at reg 1.15AA(1)(f) would provide that the carer must be 'willing and able to provide … the assistance of the kind needed …'. The definition could very easily have been drafted in this way, but was not. The level of care a carer needs to be willing and able to provide is qualified by the words 'substantial' and 'continuing'. While the question of whether a visa applicant is going to be willing and able to provide the requisite care required is a matter for the Tribunal to satisfy itself on the evidence before it, that does not remove from the Tribunal the obligation to correctly apply the test under the Regulations and to undertake the necessary fact finding consistent with a correct understanding of the test. 18 This argument was rejected by the Federal Circuit Court at [14]-[15] where the primary judge said: 14. In relation to ground 1, counsel for the applicant sought to argue that the Tribunal had, in effect, applied a test differing to that identified by reg.1.15AA(1)(f) to the effect of considering whether the first visa applicant was able to provide all the care required by his mother. I do not accept that the Tribunal's reasons support any such finding. The Tribunal's reasons do not reflect the erroneous application of the correct test identified in reg.1.15AA(1)(f). 15. In support of the argument advanced on behalf of the applicant, counsel referred to para.33 of the Tribunal's reasons and the reference to the review applicant needing 24/7 care. The Tribunal's reasons are not to be read with a keen eye for error. The Tribunal correctly referred to the relevant test twice in para.33 of substantial and continuing assistance, and there is no basis to read into the Tribunal's reasons any such error of the kind alleged in ground 1. Ground 1 fails to make out any jurisdictional error. 19 On this point, the applicant argues that simply because the Tribunal refers to the correct test does not mean that it has applied the correct test. Rather, a fair reading of [33] discloses that the Tribunal was considering whether the visa applicant could provide all of the assistance required and failed to make any finding as to the level of assistance that could be given by the visa applicant if he engaged in part time work. 20 In my view, this argument cannot succeed. The Tribunal was doing no more and no less than considering the argument as it was put by the visa applicant to the effect that he could run his business part time by a computer at home, working only half an hour to an hour per week. This stood in contrast to an experience the previous week where he had worked four days, although perhaps in unusual circumstances. In either event, the Tribunal was not satisfied that it would be possible to run the business on such a basis, it simply did not believe the account of the applicant that he would be able to do so. The applicant then went on to contend that he would be able to maintain other part time work to financially support his own wife and two children if he was not able to continue to work in the family business. This again, however, was mere assertion and there was no rational evidentiary basis to support that assertion. The Tribunal evaluated that prospect and, in the absence of any extrinsic evidentiary support, was not prepared to accept that evidence. 21 It is important in this context to recognise that it was common ground that the care required by the applicant was '24/7' or, in substance, constant care. While there may have been other possibilities for support, that was not the scenario depicted by the applicant. In my view, the Tribunal was not required to make further detailed inquiries and findings about other prospects which might exist for the applicant's care and how many hours per week would be necessary to constitute substantial and continuing assistance. Starting with the premise of care being required on a 24/7 basis, having regard also to the applicant's needs also to provide for his wife and two children, the Tribunal was entitled to reach, in the absence of evidence to the contrary, a conclusion which accorded with commonsense. It was entitled to do so without making more detailed findings about hypothetical scenarios which were not made out on the evidence before it: see, in a slightly different context, the decision of Buchanan J in Nguyen v Minister for Immigration and Border Protection [2016] FCA 688 (at [40]), where his Honour said: However, it was not necessary, in my view, for the AAT to specify how the appellant's needs might precisely be met by the family members already in Australia. Those are, ultimately, decisions for the family itself as the AAT clearly recognised. The AAT's task (in this particular respect) was to make an assessment of the matters referred to in reg 1.15AA(1)(e), namely whether the appellant's need for direct assistance in attending to the practical aspects of daily life could reasonably be provided by relatives in Australia or obtained from appropriate services available to her. Completion of the task did not require the degree of prescriptive detail and particularity which Ground 5 suggests. Nor was it a jurisdictional error not to specify, in greater detail, how each family member might be able or expected to contribute, in order for the AAT to conclude that it was not satisfied that the visa condition had been met. 22 In my view, the first proposed ground of appeal would not have sufficient prospects to be of success if an extension of time were granted.

Ground 2 - illogical and irrational conclusions 23 The argument on this ground pertains to three sub-grounds and is slightly more complex. The applicant contends, as she did in the Federal Circuit Court, that the reasoning of the Tribunal was irrational and/or illogical in three respects: (a) the reasoning regarding the visa applicant's ability to provide substantial and continuing assistance; (b) the reasoning regarding evidence of financial support of the visa applicant; and (c) the Tribunal's findings as to the visa applicant's ability to provide assistance. 24 The primary judge gave consideration to this ground (at [16]-[22]) of his Honour's reasons where he said: 16. In relation to ground 2, counsel for the applicant sought to attack the last sentence of para.36 as being an irrational, illogical and unreasonable finding. Given the identification of the needs of the review applicant, it cannot be said that no reasonable Tribunal could make the finding found in the last sentence of para.33, namely "the Tribunal considers that if the visa applicant was to work part-time, he would not be able to provide substantial or any assistance as required by his mother." The adverse finding made by the Tribunal was open and cannot be said to lack an evident and intelligible justification. 17. Counsel for the applicant also sought to attack the finding of the Tribunal placing little weight on the evidence of family members, that they would provide financial support to the first visa applicant if it was needed. The specific finding attack was that the Tribunal places limited weight on this evidence. 18. The criticism was advanced that the Tribunal's reference to the circumstances in which that evidence was put forward as a result of a s.359A letter was said to undermine the rational and logical basis upon which the Tribunal could come to an adverse conclusion in relation to that evidence. 19. It was open to the Tribunal to make the adverse finding made in relation to the evidence proffered belatedly as to the financial support being provided to the first visa applicant by his family. It was also open to the Tribunal to take into account that no evidence had been given to that effect by the first visa applicant at the hearing. There was no irrational, illogical or unreasonable finding by the Tribunal by reason of the decision to place limited weight on the evidence of the family members about the ability to financially support the first visa applicant. 20. The further grounds upon which it was argued that there was irrationality, unreasonable or illogicality was based on the reference in para.26 to the physical objective fitness of the first visa applicant to provide substantial and continuing care. On the further analysis engaged in by the Tribunal as to the ability of the applicant to provide that care, there was no inconsistency, illogicality, or unreasonableness in relation to those findings. 21. Insofar as it was argued in support of ground 2 that the Tribunal had to make a finding about the level of care that the first visa applicant could provide, the relevant consideration under reg.1.15AA(1)(f) referred to the applicant being willing and able to provide the resident substantial and continuing assistance of the kind needed that was identified by reference to reg.1.15AA(1)(iv). It was common ground in the material before the Tribunal that the nature of that care was 24/7 and the Tribunal so found. 22. There was no requirement of the Tribunal to make a finding about the level of care that the first visa applicant was able to offer in the context of his part-time employment. There was no jurisdictional error of the kind alleged in ground 2. 25 I turn first to the question of the visa applicant's ability to provide substantial and continuing assistance. The applicant relies on Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 per Crennan and Bell JJ (particularly at [130]) and WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87, where the Full Court (Lee, Carr & Tamberlin JJ) noted (at [7]): The Tribunal obtains power to make a determination under the Act where the determination is based on findings or inferences of fact that are grounded upon probative material and logical grounds. (See: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gummow J at [145]; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 per Gleeson CJ, Gummow, Kirby and Hayne JJ at [34]; Hill v Green (1999) 48 NSWLR 161 per Spigelman CJ at [72]). A determination that is based on illogical or irrational findings or inferences of fact may be shown to have no better foundation than an arbitrary decision and accordingly the review process will be unfair and will not have been conducted according to law. Here, of course, the words "irrational" or "illogical" are used with their proper meaning of devoid of, or contrary to, logic; or ignorant or negligent of, and not in conformity with, the laws of correct reasoning (see: The Oxford English Dictionary 2nd ed 1989, The Macquarie Dictionary 2nd ed. 1991), and are analogues of arbitrary or perverse. They are not used with a lesser colloquial meaning that may be applied where the words are introduced in debate to emphasise the degree of dissent from a disputed conclusion or point of view. (See: Eshetu per Gleeson CJ, McHugh J at [40]; Lam per Gleeson CJ at [9]). Illogical or irrational findings or inferences of fact upon which a determination is based become examinable as part of the matter that is subject to judicial review pursuant to the application for a prerogative or constitutional writ. (See: Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per McHugh, Gummow JJ at [54]-[59]; Bond per Mason CJ at 338, 359-360). 26 The essential argument for the applicant is that it is unreasonable, illogical or irrational for a Tribunal to reach a conclusion on a particular matter on the basis of a premise that does not support the conclusion. It is argued that in making its finding, to the effect that it was not satisfied that the visa applicant would be able to provide substantial and continuing assistance of the kind needed, the Tribunal took into account, as a premise to its conclusion, that it was not satisfied that if the visa applicant was not able to support his family by working in their business he would be able to secure other work 'of the same kind', namely, the flexible/home based kind claimed. It is further argued that having made that finding it did not follow that the visa applicant would be unable or unwilling to provide the requisite assistance. The applicant contends it was unreasonable, illogical or irrational for the Tribunal to form its satisfaction as to the ability of the visa applicant to provide substantial and continuing assistance to the applicant on the premise that he would not be able to find the part time work that he claimed he would seek. To find that the visa applicant would be unable to provide substantial and continuing assistance on the basis that he would be unable to secure part time employment was not a chain of reasoning open to a reasonable decision-maker, it is contended. The chain of reasoning itself was fundamentally illogical on a conclusion of critical importance to the outcome of the review. 27 The Tribunal did not conclude that the applicant could not find any part time work at all, but rather, did not accept that he would be able to find flexible part time work from home of a half to one hour per week. There was no evidence in support of a conclusion to the contrary and, as indicated above, that was the case that was put. It was well and truly open to the Tribunal not to accept it. In my view, for the reasons given by the primary judge, there was no illogicality or unreasonableness in the conclusion reached. It is very much a question of what weight the Tribunal sought to give to the unsubstantiated hypothesis. Matters of weight are matters for the Tribunal: Abebe v Commonwealth (1999) 197 CLR 510 (at [197]). Caution is required in treating allegations of illogicality or irrationality as means of seeking merits review: Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (at [56]). 28 The position is similar in respect of the asserted illogical conclusion in relation to the financial support of the visa applicant. It is contended there was no basis for the Tribunal to give 'limited weight' only to the evidence of Mr Wahid Girgis and Mrs Violet Girgis, that they would each support the visa applicant and his family, including financially, if required. The point is made that neither of the witnesses were required by the Tribunal to be questioned about his or her evidence and the Tribunal did not make any findings as to the credit of the evidence. The only reason the Tribunal gave for giving little or no weight, or limited weight to the evidence was that 'it was provided in the light of the issues raised by the Tribunal in its letter of 3 November 2014' and it was not raised initially without prompting by the Tribunal. What must be added to this summary, however, is that the actual statements themselves as made would have to be evaluated by the Tribunal in the full context. The statements were not particularly expansive or detailed, but of a general nature. Given the nature of the statements it is understandable that the Tribunal might give them limited weight in the context in which they were given, not initially, but only upon being pressed, as being somewhat unpersuasive. This (with the limited content) would be a perfectly reasonable basis for limited weight to be given to them. 29 The third sub-ground on which irrationality was asserted was on the topic of the applicant's 'ability' to provide the assistance. In this regard, it was argued that the conclusion reached in [26] of the Tribunal's decision could not sit with [28]-[39]. At [26], the Tribunal accepted the relevant ability of the applicant as a matter of objective fitness. Thereafter it went on to consider willingness, but the applicant complains that rather than consider willingness, the Tribunal lapsed back into considering ability and ultimately reached a conclusion inconsistent with that in [26]. It is argued that this error occurred after the Tribunal had properly set out (at [15]) that the question of a person's willingness is concerned with a person's state of mind, whereas the question of a person's ability requires an objective assessment: Xiang v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 64 per Goldberg, Finkelstein and Weinberg JJ (at [7]). 30 It is true that the Tribunal made express reference at [33] and [36] to the ability of the visa applicant to provide the assistance, but, taking the entire passage at [36]-[39] in context, this expression of ability was directed towards practical ability, having regard to other commitments, which in turn went squarely to the question of true willingness. It was the visa applicant's true willingness in relation to his employment intentions and real prospects, which the Tribunal doubted, having considered that he had 'tailored' his evidence to address the Tribunal's concerns it raised at the hearing. To take the word 'able' in two places in this analysis by the Tribunal is too literal an approach to the wording adopted by the Tribunal. It is clear that in this section, to reiterate, the Tribunal was examining practical ability (rather than physical and mental capacity) in the context of the visa applicant's true intent. This, in turn, was part of his actual willingness. In that context, I am not satisfied that there was any inconsistency in this analysis with the conclusion as to objective functional ability at [26]. 31 For these reasons, I am not satisfied that the second proposed ground of appeal would have sufficient prospects of success were the requisite extension granted.

CONCLUSION 32 The application for an extension of time within which to appeal from the specified orders will be refused with costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.