1620069 (Migration) - [2018] AATA 2377

1620069 (Migration) [2018] AATA 2377 (8 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1620069
MEMBER:David Barker
DATE:8 May 2018
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 08 May 2018 at 2:39pm
CATCHWORDS
Migration – Other Family (Migrant) (Class BO) – Subclass 116 (Carer) – Visa applicant seeks to provide care to her nephew – Review applicant an Australian relative – Valid Carer Visa Assessment Certificate – Impairment rating of 30 – Autism spectrum disorder – Other care options available – Whether review applicant has explored other funding and service options – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.12, 1.15AA, Schedule 2, cls 116.211, 116.212, 116.221, 116.321
CASES
Anveel v MIBP [2013] FCCA 2181
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh v MIAC [2013] FCCA 274
Nguyen v MIBP [2015] FCCA 3254
Sefesi v MIBP [2016] FCCA 975
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 September 2016 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visa on 8 October 2015. The delegate refused to grant the visas on the basis that cl.116.211 and cl.116.221 to the Migration Regulations 1994 (the Regulations) was not met because the applicant did not meet the definition of carer, as defined in r.1.15AA(1)(f). As a result, the applicants could not satisfy the criterion for a carer visa set out in cl.116.211 and 116.221.
The review applicant appeared before the Tribunal on 24 January 2018 to give evidence and present arguments.
The review applicant was represented in relation to the review by her registered migration agent.
The Tribunal also received some oral evidence by telephone from the first-named visa applicant (the visa applicant). However, due to difficulties taking clear evidence from her over the telephone connection with Nigeria, the Tribunal gave the visa applicant time following the hearing to provide a written response to questions put to her during the hearing and also questions from the Tribunal which were passed on to her by the migration agent.
At the hearing on 24 January 208 the Tribunal put the review applicant on notice of an issue arising in the review relating to whether the visa applicant can meet cl.116.212, which requires the application to be sponsored by the Australian relative mentioned in cl.116.211. The Tribunal explained that the delegate had not addressed the issue, which arose from her being the person who is identified as the visa applicant’s sponsor, whereas her son…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1620069 (Migration)

Details

AGLC: 1620069 (Migration) [2018] AATA 2377
Case: [2018] AATA 2377
Decision Date: 8 May 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning an application for an Other Family (Migrant) (Class BO) visa, specifically Subclass 116 (Carer). The visa applicant, a Nigerian national, sought to provide care to her nephew, [Child 3], who resides in Australia and has autism spectrum disorder. The review applicant, [Child 3]'s mother and the visa applicant's sister, is an Australian citizen and the sponsor.

The primary legal issue before the Tribunal was whether the visa applicant met the criteria for a Subclass 116 Carer visa. This involved determining if [Child 3] had a medical condition causing a significant impairment requiring direct assistance, and crucially, whether such assistance could not reasonably be provided by other relatives in Australia or obtained from Australian community services. The Tribunal also considered the definition of "carer" and the requirements for sponsorship under the Migration Regulations 1994.

The Tribunal reasoned that while [Child 3] had a diagnosed autism spectrum disorder with an impairment rating of 30, and the visa applicant was willing and able to provide care, the critical criterion of whether other care options were reasonably available had not been satisfied. The visa applicant's responses to departmental officers indicated a lack of detailed understanding of the specific assistance required and the duration of that need, suggesting she had not adequately explored or demonstrated the unavailability of alternative care solutions. The Tribunal noted that the visa applicant's intention to work in Australia also raised questions about her capacity to provide the substantial and continuing assistance required.

Consequently, the Tribunal affirmed the decision not to grant the visa applicants the Subclass 116 visas, as the primary visa applicant did not satisfy the essential criteria for the visa. The Tribunal also noted that the secondary visa applicants, who had withdrawn their applications, could not be granted visas as the primary applicant had failed to meet the eligibility requirements.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background The review applicant was born in Nigeria and is currently [age] years old. She first came to Australia in 1997 on a skilled work visa and was subsequently granted Australian citizenship in 2000. She has three children from her marriage, which she declares ceased in or around 2015. She declares there was domestic violence in the marriage and that her ex-husband and the natural father of her three children is not permitted entry into her home. The review applicant's three children are [Child 1] aged [age] years, [Child 2] aged [age] years and [Child 3], currently [age] years of age. [Child 3] has a diagnosis of autism spectrum disorder. [Child 3] is the person who is nominated, at Question 65, as the Australian relative needing care in the visa application. The review applicant declares [Child 3]’s natural father has no involvement in his care. In a BUPA Medical Visa Services Carer Visa Certificate Assessment, dated [July] 2015, [Dr A] assessed [Child 3] as suffering from a total impairment rating of 30. [Child 3] was diagnosed as suffering from autism spectrum disorder. The visa applicant is a Nigerian national and is currently [age] years old. She is the younger sister of the review applicant and the aunt of [Child 3]. The visa applicant has four [children], who were the second-, third-, fourth- and fifth-named visa applicants. The Tribunal has however noted that on 7 February 2018 it received a Form 1446 Withdrawal of a visa application, in which the visa applicant indicates she no longer wishes to include her [children] (the second-, third-, fourth- and fifth-named visa applicants) in her visa application. The Tribunal notes this document appears to be undated but does appear to be signed by the relevant applicants. The Department delegate’s decision record, a copy of which was provided with the review application, states [Child 3]’s mother, the review applicant, is currently unemployed and in receipt of a carer pension and that [Child 3] was attending a special school. The delegate’s decision record reports that when interviewed by a Departmental officer on 19 September 2016, the visa applicant was unable to provide satisfactory answers with regard to [Child 3]’s medical condition. The delegate noted that the visa applicant stated that [Child 3] had autism but could not provide detailed information with regard to the kind of assistance that would be required from her, or about the length of time this assistance would be required. The delegate noted that the visa applicant stated she intends to work as [an Occupation 1] while she is in Australia. The delegate expressed the view that this indicated the visa applicant lacked knowledge about the assistance that is required by [Child 3], as outlined in the medical certificate submitted with the visa application. Further to this, the delegate noted that when asked about the length of time her assistance would be required, the visa applicant said she believed that [Child 3] will be able to talk and do things on his own as he grows older.

Evidence

Evidence Before The Court

On 7 February 2018, the Tribunal received further documents from the visa applicant’s representative including:· statutory declaration and submissions from the representative;· statutory declarations and response to questions from the visa applicant;· a Form 1446 Withdrawal of a visa application;· a report of [a] consultant paediatrician, dated 9 August 2016, regarding the review applicant’s eldest son, [Child 1].CONSIDERATION OF CLAIMS AND EVIDENCE At the time the visa application was lodged, the Other Family (Migrant) (Class BO) visa contained three subclasses: Subclass 114 (Aged Dependent Relative), Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Regulations. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa. The Carer visa permits a person who, or whose member of a family unit, has a medical condition causing a significant level of impairment and, because of that medical condition, has a need for direct assistance to attend to practical aspects of daily life, to sponsor a relative to provide the care needed. Both the sponsor and the person who has the medical condition must be an Australian citizen, Australian permanent resident or eligible New Zealand citizen.Sponsorship Clause 116.211 of the Regulations requires that the visa applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the visa applicant seeks to provide care to her nephew, [Child 3]. The application is sponsored by [Child 3]’s mother, the review applicant, who is the sister of the visa applicant. Clause 116.212 requires that the applicant is sponsored by the Australian relative mentioned in cl.116.211, or by a cohabiting spouse or partner of the Australian relative. It is somewhat unclear as to who is the Australian relative mentioned in cl.116.211. The general rule is that if the visa applicant claims to be his carer, then [Child 3] needs to be the sponsor.Can the review applicant be the sponsor? As has been noted above, cl.116.212 requires that the applicant is sponsored by the Australian relative. The Tribunal accepts that the visa applicant and review applicant are siblings and therefore relatives as defined in cl.116.111 and r.1.03 of the Regulations. There is also no doubt that the review applicant is an Australian citizen usually resident in Australia. However, although the review applicant is the sister of the visa applicant, her sponsorship is not encompassed by cl.116.212 because the Australian relative referred to in cl.116.212 is the same Australian relative referred to in cl.116.211, i.e. the person requiring care. Therefore, the ‘Australian relative’ referred to in this case is [Child 3]. The term ‘carer’ is defined in r.1.15AA of the Regulations and is set out in the attachment to this Decision. This definition contemplates care being given to either the Australian resident relative or a member of their family unit. The Tribunal notes that nephew, son, aunt and mother are all included in the definition of ‘relative’ in r.1.03 of the Regulations. It is apparent from the oral evidence and submissions made by the visa and review applicants that the visa applicant’s intention is to assist her sister, the review applicant, with regard to looking after [Child 3]. This would infer the visa applicant is seeking to care for the review applicant, as the Australian relative, through assisting her to look after a member of her family unit, namely, [Child 3].

Decision

Reasons for decision

In respect to the second-, third-, fourth- and fifth-named visa applicants, the Tribunal notes their wish not to be included in this review and to withdraw their visa applications. Irrespective of this, the Tribunal has not considered whether they are each a ‘member of the family unit’ for the purposes of cl.116.321. As the first-named visa applicant does not satisfy the primary criteria and therefore cannot be granted a Subclass 116 visa, the secondary visa applicants cannot satisfy cl.116.321.DECISION The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.David BarkerMemberATTACHMENTMigration Regulations 19941.15AA Carer1.15AA (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(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.(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.

Ratio Decidendi

Legal Principle Established

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