1702464 (Migration) - [2020] AATA 3303

1702464 (Migration) [2020] AATA 3303 (17 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1702464

MEMBER:Brendan Darcy
DATE:17 June 2020
PLACE OF DECISION: Melbourne
The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 17 June 2020 at 11:47am
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – carer of an Australian citizen – providing substantial and continuing care to the sponsor – efforts to access nursing, hospital or community services – family commitments preclude care from Australian relatives – sponsor refused assistance from community agencies – family did not pursue nursing home facilities – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 116.221; r 1.15
CASES
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 234
Lin v MIMIA [2004] FCA 606
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 and Border Protection on 8 February 2017 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 10 December 2013. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include clause 116.221 and regulation 1.15AA for the Migration Regulations.
The delegate refused to grant the visas on the basis that cl.116.221 was not met.
For the purposes of this review, the first named visa applicant, [name], will be referred to as the first applicant or the applicant; the second named applicant, [name], will be referred to as the second applicant; and the visa applicants’ sponsor, [name], as the sponsor or the review applicant.
The review applicant appeared before the Tribunal on 3 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from [name], the sponsor’s wife; the sponsor’s granddaughter, [Granddaughter A], and the first applicant via a teleconference facility.
The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The review applicant was represented in relation to the review by her registered migration agent, [name], but was not present at the scheduled hearing.
For the following reasons, the Tribunal has concluded that the it should…

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 1702464 (Migration)

Details

AGLC: 1702464 (Migration) [2020] AATA 3303
Case: [2020] AATA 3303
Decision Date: 17 June 2020

CaseChat Overview and Summary

This matter concerned an application for a Class BO Subclass 116 (Carer) visa by two applicants, citizens of the People's Republic of China, who are the son and daughter-in-law of an Australian citizen sponsor. The sponsor, who has limited English proficiency, required care. The visa was refused by a delegate of the Minister, and this decision was affirmed by the Tribunal.

The primary legal issue before the Tribunal was whether clause 116.221 of Schedule 2 of the Migration Regulations 1994 and regulation 1.15AA were satisfied at the time of the decision. This required determining if the sponsor genuinely required substantial and continuing care and attention that could only be provided by the applicants, and if all reasonable efforts had been made to access nursing, hospital, or community services in Australia, and if family commitments precluded care from Australian relatives.

The Tribunal affirmed the delegate's decision, finding that the sponsor had access to adequate community-based services in Australia, including a Mandarin-speaking care worker and services from [Council 1], but had refused to accept them. Evidence indicated the sponsor insisted on receiving care only from family members and declined assistance from a care worker who prepared meals he later accepted when provided by family. The Tribunal found no evidence that the refusal to accept services was due to cultural factors. The Tribunal concluded that the requirements of the visa were not met.

Orders

Orders of the court

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Background

Background to the litigation

The issue in the present case is where clause 116.221 of the Schedule 2 of the Regulations and regulation 1.15AA is met at the time of decision. Background The sponsor was born [date] in the Peoples Republic of China. [He] is an Australian citizen and it is claimed it is he who requires care in this visa application under review. The sponsor became a permanent resident in 2009. He is Mandarin speaking with little or no English language capacity. The first applicant was born on [date] in the Peoples Republic of China. He is the son of the sponsor. The second applicant the married partner of the first applicant. She was born in the Peoples Republic of China [date], Both visa applicants are citizens of the Peoples Republic of China. This Class BO Subclass 116 visa was lodged with the Department on 10 December 2013. Attached to this application was a Carer Visa Assessment undertaken on 28 October 2013. On 30 May 2016, a delegate on behalf of the Minister wrote to the sponsor requiring more information and to provide a response by email within 28 days. On 27 June 2016, additional documents were provided. It included the near relatives living in Australia: ·The sponsor’s spouse: [name]·The sponsor’s daughter, [name]·The sponsor’s son in law, [name]·Two of the sponsor’s grandsons: [names]; and ·The sponsor’s granddaughter: [Granddaughter A]. The above listed persons are all unable to provide care due to their own health conditions, work, study, and family commitments. The sponsor’s daughter, son-in-law, elder grandson, and granddaughter have full time work commitments, and the younger grandson has full time study commitments in university. On behalf of the Minister, the delegate refused to grant the visa applicants a visa on 8 February 2017. In the decision record, the delegate placed particular emphasis on the statutory declaration from a care worker, [named], who was previously hired by the family was provided in support of the application. It indicates that the sponsor refused the care worker’s help and insisted to receive help only from his family members. While the care worker cooked Chinese meals for sponsor in his house, he refused to have it, and when his family fed him with the same meal, he accepted the help. Further, Aged Care Assessment report indicates that the family have previously arranged assistance from [Council 1] services, but the sponsor declined to engage. The report states “It is hoped that the sponsor’s family will relocate from China to provide care for their father due to his increasing needs and declining health of his primary carer, [his wife]. Should this not occur, the family recognise that [the review applicant] will access permanent residential care due to the inability to continue with current care arrangement.” The review applicant applied to have the refusal decision reviewed by the Tribunal on 13 February 2017. The decision record was attached. Based on the information before the delegate, he or she concluded that the sponsor has access to adequate level of community-based services in Australia, however he has chosen not to accept the services. The delegate took into account that the sponsor was offered services by [name] who is a Mandarin speaking care worker and have Chinese cultural background, and also was offered services from [Council 1] yet the sponsor has refused to receive the services. The findings also considered cultural factor and found that there were no circumstances that are evidenced that the reason for not taking the services were due to cultural factors.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the it should affirm the delegate’s decision not to grant the visas to the applicants.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is where clause 116.221 of the Schedule 2 of the Regulations and regulation 1.15AA is met at the time of decision. Background The sponsor was born [date] in the Peoples Republic of China. [He] is an Australian citizen and it is claimed it is he who requires care in this visa application under review. The sponsor became a permanent resident in 2009. He is Mandarin speaking with little or no English language capacity. The first applicant was born on [date] in the Peoples Republic of China. He is the son of the sponsor. The second applicant the married partner of the first applicant. She was born in the Peoples Republic of China [date], Both visa applicants are citizens of the Peoples Republic of China. This Class BO Subclass 116 visa was lodged with the Department on 10 December 2013. Attached to this application was a Carer Visa Assessment undertaken on 28 October 2013. On 30 May 2016, a delegate on behalf of the Minister wrote to the sponsor requiring more information and to provide a response by email within 28 days. On 27 June 2016, additional documents were provided. It included the near relatives living in Australia: ·The sponsor’s spouse: [name]·The sponsor’s daughter, [name]·The sponsor’s son in law, [name]·Two of the sponsor’s grandsons: [names]; and ·The sponsor’s granddaughter: [Granddaughter A]. The above listed persons are all unable to provide care due to their own health conditions, work, study, and family commitments. The sponsor’s daughter, son-in-law, elder grandson, and granddaughter have full time work commitments, and the younger grandson has full time study commitments in university. On behalf of the Minister, the delegate refused to grant the visa applicants a visa on 8 February 2017. In the decision record, the delegate placed particular emphasis on the statutory declaration from a care worker, [named], who was previously hired by the family was provided in support of the application. It indicates that the sponsor refused the care worker’s help and insisted to receive help only from his family members. While the care worker cooked Chinese meals for sponsor in his house, he refused to have it, and when his family fed him with the same meal, he accepted the help. Further, Aged Care Assessment report indicates that the family have previously arranged assistance from [Council 1] services, but the sponsor declined to engage. The report states “It is hoped that the sponsor’s family will relocate from China to provide care for their father due to his increasing needs and declining health of his primary carer, [his wife]. Should this not occur, the family recognise that [the review applicant] will access permanent residential care due to the inability to continue with current care arrangement.” The review applicant applied to have the refusal decision reviewed by the Tribunal on 13 February 2017. The decision record was attached.

Ratio Decidendi

Legal Principle Established

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