1719569 (Migration) - [2018] AATA 3552

1719569 (Migration) [2018] AATA 3552 (9 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1719569
MEMBER:Moira Brophy
DATE:9 August 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 09 August 2018 at 12:50pm

CATCHWORDS
Migration – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – Whether care could be reasonably provided through alternative arrangements – Where the review applicant is significantly impaired - Where the review applicant has a number of relatives currently present in Australia – Where community services are available for support – Care can be adequately provided by currently present relatives and community services – Decision affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA, Schedule 2, cls 116.221, 116.321
CASES
Anveel v MIBP [2013] FCCA 2181
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Jajov MIBP [2013] FCCA 1554
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 2 August 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 23 August 2016. 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 cl.116.221.
The delegate refused to grant the visas on 2 August 2017 on the basis that cl.116.221 was not met because he was not satisfied that the assistance required by the review applicant could not reasonably be provided by her relatives in Australia or obtained from welfare, hospital or community services in Australia.
The review applicant, [Ms A] appeared before the Tribunal on 2 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the daughter of the review applicant [Ms B] and from the visa applicant [Ms C]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The review applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
TRIBUNAL HEARING
Review applicant’s evidence
The review applicant told the Tribunal that she…

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 1719569 (Migration)

Details

AGLC: 1719569 (Migration) [2018] AATA 3552
Case: [2018] AATA 3552
Decision Date: 9 August 2018

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, specifically a Subclass 116 (Carer) visa. The visa applicant sought to establish that she was the carer of her mother, who is an Australian citizen. The core of the dispute revolved around whether the visa applicant's mother required assistance that could not be reasonably provided by other means available in Australia.

The Tribunal was required to determine whether the visa applicant met the criteria for a Subclass 116 visa, particularly clause 116.221 of the Migration Regulations 1994. This clause mandates that the required assistance for the Australian relative cannot be reasonably provided by any other relative who is an Australian citizen, permanent resident, or eligible New Zealand citizen, nor obtained from welfare, hospital, nursing, or community services in Australia. The Tribunal also considered the definition of a "carer" as set out in regulation 1.15AA, which includes requirements relating to a medical condition, the resulting impairment rating, and the need for ongoing assistance.

The Tribunal found that while the visa applicant's mother had a medical condition causing significant impairment, as evidenced by a BUPA certificate with a 60% impairment rating, the crucial criterion of assistance not being reasonably available elsewhere was not met. The Tribunal noted that the visa applicant's mother had several relatives in Australia and that community services were also available. Consequently, the Tribunal concluded that the necessary care could be reasonably provided by these existing relatives and community services, meaning the visa applicant did not satisfy the requirements of clause 116.221.

As the primary visa applicant failed to meet the essential criteria for the Subclass 116 visa, the Tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The visa applicant said that her mother needed to lose at least 10 kg. She had been to two dietitians but that did not work, as she could not follow the diet. She was not able to organise what she eats. She needs somebody to care for her. She also needs somebody to ensure she gets exercise.CONSIDERATION OF CLAIMS AND EVIDENCE At the time of application, 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 visa 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 cl.116.221. An applicant must meet a number of requirements, as set out in r. 1.15AA, to meet the definition of carer. The issue for the Tribunal is whether the required assistance cannot be reasonably provided by: any other relative of the Australian relative who is an Australian citizen, permanent resident or eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia.Whether the visa applicant has claimed to be a ‘carer’ 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 is the carer of the review applicant, who is the visa applicant’s mother. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.116.211(2). The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations. The Tribunal is satisfied that; the Australian relative is the visa applicant’s mother and thus the visa applicant is a relative of the “Australian relative” resident within the meaning of r.1.03; that there is a certificate issued by BUPA on 18 May 2016 stating that the resident (or member of the family unit) has a medical condition causing impairments of the person’s ability to attend to the practical aspects of daily life and will continue to have for at least two years a need for direct assistance in attending to the practical aspects of daily life; the impairment rating of 60 meets the impairment rating in IMMI 07/13 (30) and that the person with the medical condition is an Australian citizen or permanent resident. Therefore, at the time of application the visa applicant claimed to be the carer of an Australian relative and satisfies the requirements of cl.116.211.Assistance cannot be reasonably obtained / provided – r.1.15AA(1)(e) Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be provided by: any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia.

Decision

Reasons for decision

As the primary visa applicant does not meet satisfy cl.116.221, the secondary applicants do not satisfy the requirements of cl.116.321.DECISION The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.Moira BrophyMemberATTACHMENTMigration 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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