FEDERAL CIRCUIT COURT OF AUSTRALIA
VU v MINISTER FOR IMMIGRATION & ANOR	[2014] FCCA 2579	

Catchwords: 
MIGRATION – Review by Migration Review Tribunal (Tribunal) of decision refusing to grant an Other Family (Migrant) (Class BO) (Subclass 116) Carer visa – whether in determining whether “assistance cannot reasonably be provided” by a relative requires an assessment not only of the relative’s capacity to physically provide the assistance but also the relative’s mental capacity to provide such assistance – whether the Tribunal considered medical opinions relating to the capacity of two relatives to provide assistance, given their mental conditions – whether, if the Tribunal considered the medical opinions, the Tribunal asked itself the wrong question in concluding, contrary to the medical opinions, it was not satisfied that two of the applicant’s sons could not reasonably provide assistance to the applicant – whether the Tribunal was unreasonable to the extent it found it reasonable that sons should provide bathing and toileting assistance to their mother – jurisdictional error.	

Legislation:
Migration Act 1958 (Cth), ss.65, 347, 348, 348(1), 349(1), 349(2), 349(3), 414
Migration Regulations 1994 (Cth), regs.1.15AA, 1.15AA(1), 1.15AA(1)(e), 1.15AA(2)	

Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123
Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274	

Applicant:	Thi Huong Vu	

First Respondent:	Minister for Immigration & Border Protection	

Second Respondent:	Migration Review Tribunal	

File Number:	SYG 2551 of 2013	

Judgment of:	Judge Manousaridis	

Hearing date:	11 April 2014	

Delivered at:	Sydney	

Delivered on:	11 November 2014	

REPRESENTATION
Counsel for the Applicant:	Mr L. Karp	

Solicitors for the Applicant:	MY T Nguyen Solicitors	

Counsel for the Respondents:	Mr J. Smith	

Solicitors for the Respondents:	DLA Piper	

ORDERS
(1)	The decision of the second respondent made on 17 September 2013 affirming the decision of the delegate of the first respondent made on 12 October 2012 is quashed.
(2)	The second respondent determine according to law the application made to it for review of the decision of the delegate of the first respondent made on 12 October 2012 refusing to grant an Other Family (Migrant) (Class BO) (Subclass 116) Carer visa.
(3)	The first respondent pay the applicant’s costs.

(1)	
FEDERAL CIRCUIT COURT 
OF AUSTRALIA 
AT Sydney	
SYG 2551 of 2013
Thi Huong Vu	
Applicant

And

Minister for Immigration & Border Protection	
First Respondent
Migration Review Tribunal	
Second Respondent

REASONS FOR JUDGMENT
Introduction
1.	This application for judicial review raises two issues. The first is whether the second respondent (Tribunal) misconstrued the expression “assistance cannot reasonably be provided” that appears in the definition of “carer” contained in reg.1.15AA of the Migration Regulations 1994 (Cth) (Regulations). The second issue is whether the Tribunal acted unreasonably in concluding it was not satisfied that the direct assistance the applicant required in attending to the practical aspects of her life could not reasonably be provided by a combination of the applicant’s husband and five of the applicant’s children.
Background
2.	The applicant is seventy-seven years old. She suffers from a number of medical conditions, including dementia, which impairs her ability to attend to the practical aspects of her daily life. Because of that impairment, the applicant “requires assistance with most aspects of daily living”.
3.	The applicant has six sons and two daughters. One of her daughters, the visa applicant, lives in Vietnam with her husband and children.
4.	On 29 June 2012 the visa applicant applied for an Other Family (Migrant) (Class BO) (Subclass 116) Carer visa (Carer visa). To qualify for that visa, the visa applicant had to satisfy the first respondent (Minister) she was a “carer” within the meaning of reg.1.15AA(1) of the Regulations. Under that definition, a person is a carer of another person if, among other things:
a)	according to a certificate that complies with reg.1.15AA(2), the other person has a medical condition that is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and
b)	because of the medical condition, the other person has, and will continue for at least two years to have, a need for direct assistance in attending to the practical aspects of daily life; and
c)	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 . . .”
5.	The delegate refused to grant a Carer visa to the visa applicant. The delegate was not satisfied that any other relative of the applicant could not reasonably provide assistance to the applicant in attending to the practical aspects of daily life.
The applicant’s case before the Tribunal
6.	Before the Tribunal, it was submitted on behalf of the applicant that assistance in attending to the practical aspects of her daily life could not reasonably be provided by her husband, or by any of her children living in Australia. She submitted that her daughter living in Vietnam, the visa applicant, could provide such assistance. 
7.	In support of her case, the applicant presented evidence about the medical condition and other circumstances of her husband and children. That evidence was as follows:
a)	The applicant’s husband suffered from a myocardial infarct, coronary disease, hypertension, probable diabetes, and severe sleep disorder.
b)	One of the applicant’s sons resided in Western Australia and another had no contact with the family for many years. The Tribunal accepted neither son could not reasonably provide assistance to his mother. 
c)	Another of the applicant’s sons (son X) had been diagnosed with anxiety and major depression. The Tribunal accepted son X worked part time.
d)	Another son worked full time, and had full custody of his eleven-year-old daughter.
e)	The applicant’s daughter in Australia suffers from chronic insomnia and depression, and was being looked after by her husband’s family. The Tribunal accepted this daughter could not reasonably provide assistance to her mother.
f)	Another son (son Y) had been diagnosed with chronic depression, and a medical certificate was provided stating “that he is not well and is not capable of taking care of another person due to the serious nature of his medical condition”.
g)	Another son worked full time and had a newborn baby.
Tribunal’s reasoning
8.	The structure of the Tribunal’s reasons and its conclusions are as follows. First, the Tribunal identified the evidence the applicant submitted in relation to the capacity of the applicant’s husband and children to provide assistance to the applicant. Second, the Tribunal considered whether it was satisfied that the applicant’s needs could not reasonably be supplied by welfare, hospital, and nursing or community services in Australia. Although the Tribunal noted there was nothing before it which showed there had been a bona fide attempt by the applicant to access community services, or that it would not be reasonable for the applicant to obtain community or welfare services, the Tribunal “emphasises that there is no suggestion that any such services will necessarily meet all her needs”. The Tribunal also concluded that “[a]ny such services will most likely be limited in scope and subject to local availability”. The Tribunal then considered whether it was satisfied the applicant’s husband and children could not reasonably provide assistance to the applicant.
9.	The Tribunal found the applicant’s husband “cannot reasonably provide some of the more physically demanding aspects of” the applicant’s care. It also acknowledged “there is no one individual Australian relative or one particular community service that is in a position to meet all of” the applicant’s needs. The Tribunal considered however, whether it could be satisfied that the applicant’s children and husband could not in combination reasonably provide assistance to the applicant. 
10.	The Tribunal concluded it was not satisfied the applicant’s husband and five children living nearby could not in combination reasonably provide the assistance the applicant needed. Its reasons were as follows:
a)	The Tribunal was not satisfied that four sons, including sons X and Y, are incapable of providing any assistance to the applicant.
b)	There was no evidence or suggestion that any of the siblings had any “physical problems”. 
c)	Sons X and Y work part time, even though they have depression. The Tribunal, however, did not:
accept that these brothers, notwithstanding their depression, are incapacitated to the extent that they cannot provide any assistance for their mother, given that they both have the capacity to work part time.
d)	As for the other two siblings, the Tribunal was not satisfied they are unable to reasonably provide some assistance for their mother, notwithstanding their work and family commitments.
Ground 1 – misconstruing reg.1.15AA(1)(e)
11.	The applicant submits the Tribunal misconstrued reg.1.15AA(1)(e) of the Regulations by construing the words “assistance cannot reasonably be . . . provided by any other relative” to mean “physical assistance cannot reasonably be . . . provided by any other relative”. The applicant relies on two matters. One is the Tribunal’s noting that none of the children had any “physical problems”. The second is what the applicant submits was the Tribunal’s not engaging with medical opinions expressed in reports that sons X and Y were not in a position to provide assistance to the applicant because of their mental conditions. The applicant submits that these matters indicate the Tribunal considered relevant only a person’s capacity to physically provide assistance, rather than also a person’s mental capacity to provide assistance.
12.	Counsel for the Minister, on the other hand, submits the Tribunal, in determining whether it was satisfied the applicant’s children could not reasonably provide assistance to the applicant, did not restrict itself to considering whether the applicant’s children were physically able to provide such assistance. Counsel referred to the Tribunal itself saying that it “carefully examined the medical reports concerning the various siblings”. The Tribunal also expressly referred to the mental conditions of sons X and Y.
13.	The issue that arises on the competing submissions, therefore, is whether the Tribunal considered the opinions contained in the medical reports about the mental conditions of sons X and Y. That requires me to identify the opinions in the medical reports the applicant submits the Tribunal failed to consider, and that part of the Tribunal’s reasons the Minister contends reveals the Tribunal did consider the medical opinions. Before I do that, there are two things I should do. The first is to make explicit one aspect of the meaning of reg.1.15AA of the Regulations. The second is to set out the basic principles relating to the statutory tasks the Tribunal is required to perform.
Meaning of “assistance cannot reasonably be . . . provided”
14.	The issue that was before the Tribunal was whether it was satisfied that “assistance cannot reasonably be . . . provided” to the applicant by the applicant’s relatives. I do not understand there to be an issue between the parties about whether or not “assistance cannot reasonably be provided . . . by a relative” must be determined by reference to the relative’s physical and mental capacity. 
15.	In any event, I find that the word “assistance”, as it appears in reg.1.15AA(1)(e) of the Regulations, refers to tasks that are necessary to be performed by one person or a group of persons to enable the person requiring the assistance to attend to practical aspects of daily life; that the question of whether assistance cannot reasonably be provided by a relative must be assessed by reference to the relative’s capacity to perform such tasks; and that, when assessing the relative’s capacity, it is necessary to assess the relative’s physical and mental capacity to perform those tasks.
Role of Tribunal
16.	The starting point is s.348(1) of the Migration Act 1958 (Cth) (Act). It requires the Tribunal to “review” “MRT-reviewable decisions”. The purpose of a review of a decision under s.348(1) is for the Tribunal to determine whether it should affirm, vary, remit, or set aside the decision under review and, where the Tribunal sets aside a decision, to substitute a new decision. To give effect to that purpose, the Tribunal is granted all the powers and discretions that are conferred by the Act on the person who made the decision. If the Tribunal varies the decision or sets aside the decision and substitutes a new decision, the decision, as varied or substituted is taken to be a decision of the Minister. In broad terms, therefore, s.348 of the Act requires the Tribunal to “form, for itself and on the material before it, the requisite state of satisfaction under s 65 of the Migration Act in respect of the criterion (or criteria) for a visa in issue before it”.
17.	Section 348 of the Act does not only require the Tribunal to form the requisite state of satisfaction under s.65 of the Act; it also requires the Tribunal to do the very thing s.65 requires the Minister (or a delegate of the Minister) to do, namely, to “consider” the application for a visa. That point was made by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Anthonypillai in relation to s.414 of the Act, which confers on the Refugee Review Tribunal the same power as s.348 confers on the Tribunal:
The word “consider” is defined in the Oxford English Dictionary, in part, as: “to view or contemplate attentively…examine…scrutinise…to fix the mind upon…to reflect upon”. It is precisely that obligation which s 414 [s.348] imposes, albeit indirectly, upon the Tribunal.
18.	Where it is claimed that the Tribunal made a jurisdictional error by failing to consider some evidence or argument, the correct analysis of such a claim is whether, by failing to consider such evidence or argument, the Tribunal failed to carry out the review required by s.348 of the Act. That point was made by the Full Federal Court in Minister for Immigration and Border Protection v MZYTS in relation to the Refugee Review Tribunal: 
Before both the Federal Magistrates Court and this Court the asserted error in the Tribunal’s decision was often described as a “failure to consider more recent information”. That description might suggest as a corollary some kind of freestanding legal obligation on the Tribunal to consider the most recent information. In our opinion, while those descriptions may explain the path leading to error, the error itself is a failure to perform the statutory task imposed on the Tribunal by the relevant provisions of the Migration Act.
19.	Applying these principles to the circumstances of this case, the Tribunal was required to consider the material that was before it, and determine, among other things, whether it was satisfied that assistance could not reasonably be provided to the applicant by any of her relatives. And “while it can generally be said that there is no onus of proof in administrative inquiries and decision making . . . it [was] for [the] applicant to provide [her] evidence and arguments in sufficient detail to enable the [Tribunal] to establish the relevant facts”.
The medical reports
20.	There are two medical reports, one for each of sons X and Y. The medical report concerning son X was given by a consultant psychiatrist, and was as follows:
This is to confirm [son X] . . . has been diagnosed with anxiety and major depression. These disorders have a major effect on his lifestyle. [Son X] has symptoms that include insomnia, restlessness, impaired concentration, mood swings and indecisiveness.
His condition is unstable. I have prescribed him with Zyprexa 5mg. nocte. He is having great trouble balancing his part time work and family life. [Son X] cannot care for his mother as this will only increase his stress levels as well as upset the balance that [son X] is trying to obtain between his health, family life and work commitments.
[Son X] is not suitable to care for his mother due to his current medical condition.
I have asked him to see me again in 8 weeks.
21.	The medical report concerning son Y was prepared by a doctor, and was as follows:
This is to confirm [son Y] has been a patient of our clinic. He has been diagnosed with Chronic depression.
The symptom leaves him feeling constantly tired and worn out. His ability to function on a daily basis has diminished and this has seriously affected his employment. He is now only capable of doing part time work.
[Son Y] is currently on medication. He has been seeing a specialist Dr . . . for treatment.
[Son Y] is not well and is not capable of taking care of another person due to the serious nature of his medical condition.
If more information is needed, please do not hesitate to contact us.
Did the Tribunal consider the opinions contained in the medical reports?
22.	The Tribunal referred to the medical report concerning son X, noting that son X had been diagnosed with anxiety and major depression. It also referred to the medical report concerning son Y, noting that son Y had been diagnosed with chronic depression and quoting from the report that son Y “is not well and is not capable of taking care of another person due to the serious nature of his medical condition”. 
23.	The Tribunal also referred to the mental conditions of sons X and Y in the following passage:
The tribunal carefully examined the medical reports concerning the various siblings. The tribunal acknowledges that none of the children are in a position to reasonably provide full-time assistance to their mother. However, with the exception of [the daughter living in Australia], the tribunal was not satisfied that the remaining four siblings are incapable of providing any assistance to their mother. There is no evidence or suggestion that any of the siblings have any physical problems. [Sons X and Y] have depression but nevertheless also work part time. The tribunal does not accept that these brothers, notwithstanding their depression, are incapacitated to the extent that they cannot provide any assistance for their mother, given that they both have the capacity to work part time.
24.	This passage reveals the Tribunal accepted as true a part of each of the reports, namely, the opinions that sons X and Y suffered from depression. The passage, however, does not set out the medical opinions that in terms state that neither son X and nor son Y has the capacity to provide assistance to the applicant. The question that arises is whether it should be inferred the Tribunal did not consider those opinions.
25.	I infer the Tribunal did not consider the opinions in the sense it was required to consider them under s.348 of the Act. That is, the Tribunal did not “view or contemplate attentively”, or “examine”, “scrutinise”, or “fix the mind upon” or “reflect upon” those parts of the medical reports that bore on whether sons X and Y could reasonably provide assistance to the applicant. I so infer because of the contrast between, on the one hand, the simplicity of the Tribunal’s reasoning, and, on the other, the information contained in the medical reports which is not addressed by the Tribunal’s actual reasoning, but which the Tribunal, as a rational and reasonable decision-maker, and given the reasoning the Tribunal in fact adopted, would have addressed in its reasoning had it considered the information.
26.	The Tribunal’s reasoning is comprised of three premises, and one conclusion:
a)	Sons X and Y work part time;
b)	because they work part time, they are capable of undertaking some activity, notwithstanding they have depression;
c)	because they are capable of undertaking some activity, they are also capable of providing some assistance to the applicant;
d)	therefore, the Tribunal is not satisfied that sons X and Y cannot provide some assistance to the applicant, in addition to working part time.
27.	Premise (c) is inconsistent with the opinions expressed in the medical reports that son X “is not suitable to care for his mother”, and son Y “is not capable of taking care of another person”. Had the Tribunal considered these opinions, it is reasonable to expect it would have explained in its reasons why, notwithstanding these opinions, the Tribunal was not satisfied sons X and Y could not provide some assistance to the applicant. That the Tribunal did not do so indicates, and I find, that the Tribunal did not consider the opinions. 
28.	Further, the medical reports contain other opinions which, although not necessarily inconsistent with any of the Tribunal’s premises, are relevant to determining whether sons X and Y could not reasonably provide assistance to the applicant, and which it is reasonable to expect the Tribunal would have referred to them in its reasons, had the Tribunal considered them. In relation to son X, there are the opinions that son X’s condition is “unstable”, that he “is having great trouble balancing his part time work and family life”, and that if son X were to provide assistance to the applicant that would “only increase his stress levels as well as upset the balance that [son X] is trying to obtain between his health, family life and work commitments”. As to son Y, there are the opinions that, as a result of his symptoms, son Y is left “feeling constantly tired and worn out”, that his “ability to function on a daily basis has diminished”, and that “this has seriously affected his employment”, rendering son Y “only capable of doing part time work”. 
29.	Had the Tribunal considered the reports, it is reasonable to expect the Tribunal would have explored in its reasons why, notwithstanding these opinions, the Tribunal was not satisfied that sons X and Y are unable to provide any assistance to the applicant. That the Tribunal did not do so indicates, and I find, that the Tribunal did not consider the opinions in the manner it was required to consider them under s.348 of the Act. If, therefore, the Tribunal failed to consider the medical opinions, then, given the significance of the medical opinions to the question the Tribunal had to determine, it follows the Tribunal failed to carry out the review of the delegate’s decision it was required to carry out under s.348 of the Act. As a result, the Tribunal made a jurisdictional error.
30.	If, contrary to my conclusion, the Tribunal did consider the medical opinions in relation to sons X and Y, I next consider whether the Tribunal made an error of the type referred to by Dixon J (as his Honour then was) in Avon Downs Pty Ltd v Federal Commissioner of Taxation in that part of the following passage commencing with the word “moreover”:
But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.
31.	In the case before me, the Tribunal has not made known the reasons why it did not accept the medical opinions that son X was not suitable to care for the applicant, and that son Y was not capable of taking care of another person, and why, given the medical opinions to which I have referred to in paragraphs 20 and 21 of these reasons, the Tribunal was not satisfied son X and son Y could not provide any assistance to the applicant. In these circumstances, is the Tribunal’s conclusion of non-satisfaction one that is capable of explanation only on the ground that it misconceived the question it had to ask itself when determining the application for review? Is the Tribunal’s conclusion unreasonable on the supposition that it addressed itself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations? 
32.	I am satisfied both questions must be answered in the affirmative. Given that:
a)	on the proper construction of reg.1.15AA of the Regulations (as I have found), whether or not a relative is in a position to provide assistance must be assessed by reference to the relative’s physical and mental capacities to do so; 
b)	there were opinions before the Tribunal which the Tribunal did not reject but stated that, due to their mental conditions, son X was not suitable to care for the applicant, and son Y was not capable of taking care of another person;and 
c)	there were additional opinions before the Tribunal which the Tribunal also did not reject, that could reasonably be taken to indicate that sons X and Y would not be able to provide assistance to the applicant,
the only reasonable conclusion the Tribunal could have arrived at was that sons X and Y could not reasonably have provided assistance to the applicant; and that it did not arrive at that conclusion indicates the Tribunal misconceived the question it had to address.
33.	In my opinion, therefore, even if the Tribunal considered the opinions contained in the medical reports, it made a jurisdictional error because it did not ask itself the question it ought to have asked itself when determining the application before it. Whether it did not ask itself the correct question because it misconstrued the expression “assistance cannot reasonably be provided” in the manner claimed by the applicant does not matter. 
34.	The grounds on which I have found the Tribunal made a jurisdictional error do not in terms reflect ground 1 stated in the application. However, both errors I have found, particularly the second error, fall well within the matters argued by the parties before me.
Ground 2 – unreasonableness 
35.	The applicant submits the Tribunal’s decision was unreasonable because the only relatives the Tribunal was not satisfied would be unable to provide assistance to the applicant are the sons in combination with the father, and it is unreasonable to expect the sons to provide the assistance that the applicant requires. That assistance includes dressing, washing, and toileting. The applicant submits it should be accepted that for an adult man to assist his elderly mother with bathing and toileting would be humiliating and distressing, not just for the son, but also for the mother.
36.	The Minister makes two submissions in response. First, he submits that no such case was put before the Tribunal, and no such case arises from the material that was before the Tribunal. There is nothing to suggest that any of the sons indicated they would find it humiliating and distressing to provide the assistance the applicant required. Second, the Minister submits that the claim does not rise above merits review.
37.	In my opinion, the Tribunal’s decision was not unreasonable, in the circumstances of this case, to the extent the Tribunal did not consider it unreasonable for the applicant’s sons to provide assistance to their mother in the form of bathing and toileting. First, it cannot be accepted as a universal truth that sons and mothers would find it humiliating and distressing for sons to assist their mothers by bathing their mothers and taking them to the toilet. Second, the applicant did not claim that she would find it distressing or humiliating for her sons to attend to her bathing and toileting needs. Nor did any of the sons put before the Tribunal any contention or evidence that they would find it distressing or humiliating to provide such assistance to the applicant.
38.	Ground 2 of the application, therefore, fails.
Conclusions and disposition
39.	The Tribunal made a jurisdictional error either by not considering medical opinions to the effect that son X was not suitable to care for the applicant, and that son Y was not capable of taking care of another person, and other medical opinions that could indicate sons X and Y would be unable to provide assistance to the applicant; or by considering the medical opinions, but misunderstanding the question the Tribunal had to ask itself when determining the application before it.
40.	I propose, therefore, to order that the Tribunal’s decision be quashed, and that the Tribunal consider the applicant’s application for review according to law. I also propose to order that the Minister pay the applicant’s costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate:  

Date: 11 November 2014