1720570 (Migration) - [2019] AATA 2995

1720570 (Migration) [2019] AATA 2995 (19 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1720570
MEMBER:Russell Matheson
DATE:19 March 2019
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 19 March 2019 at 8:24am
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – care can be obtained through services in Australia – family members in Australia – applicant has little ability to provide care – no English language and driving skills – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 116.211, 116.221, rr 1.15AA(1)(f), 1.15AA, 1.03
CASES
Anveel v MIBP [2013] FCCA 2181
Jajo v 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 11 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] first named visa applicant (the visa applicant) is a national of Vietnam, born in July 1967. He applied for the visa on 17 September 2013. The application includes his partner and child. The application is based on [the visa applicant] being the carer for his Australian citizen father [who] is the sponsor and review applicant.
The delegate refused to grant the visas on the basis that cl.116.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not met because the delegate was not satisfied the visa applicant met 1.15AA(1)(f) of the Regulations made under the Act.
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 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.
The review applicant (sponsor) appeared before the Tribunal on 4 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, [name deleted] (review applicants wife) and [name deleted] (review applicants daughter). The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The review applicant’s daughter informed the Tribunal that the review applicant has health and hearing issues and requested to give evidence on his behalf because he has trouble comprehending issues and he is very deaf. The review applicant attended the hearing and remained in the hearing room during the Tribunal hearing.
The review applicant’s registered migration agent did attend the hearing.

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 1720570 (Migration)

Details

AGLC: 1720570 (Migration) [2019] AATA 2995
Case: [2019] AATA 2995
Decision Date: 19 March 2019

CaseChat Overview and Summary

This matter concerned an appeal to the Tribunal regarding a Subclass 116 (Carer) visa. The applicant sought to migrate to Australia to care for his father, an Australian citizen, who had various health problems. The core of the dispute revolved around whether the applicant was genuinely willing and able to provide the necessary substantial and continuing assistance to his father, and whether such assistance could reasonably be obtained through other means in Australia.

The Tribunal was required to determine if the applicant met the criteria under clause 116.221 of Schedule 2 to the Migration Regulations, which mandates that the applicant be the carer of the Australian relative at the time of the decision. This involved assessing the definition of 'carer' as set out in regulation 1.15AA, specifically whether the applicant could provide substantial and continuing assistance and whether such assistance could reasonably be provided by family members in Australia or obtained through welfare, hospital, nursing, or community services.

The Tribunal found that while the applicant claimed to be a carer and was a relative of the sponsor, there was insufficient evidence to demonstrate his ability to provide the required care. The applicant had no formal qualifications or prior experience as a carer, relying instead on "common sense." Furthermore, his inability to speak English and drive in Australia presented significant practical barriers to providing independent care, as he would need to rely on others for assistance with basic tasks and emergencies. The Tribunal also noted a lack of evidence regarding the applicant's wife's ability to secure employment to support the family in Australia, which was a stated intention. Consequently, the Tribunal affirmed the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the primary visa applicant is willing and able to provide substantial and continuing assistance of the kind needed in r.1.15AA(1)(f), and also, whether assistance can be reasonably provided to the sponsor by family members who are living in Australia, or reasonably be obtained through welfare, hospital, nursing or community services in Australia. Claims and findingsHas the visa applicant claimed to be a ‘carer’ of the sponsor? Clause 116.211 of Schedule 2 to the Regulations requires that the visa applicant claim to be the carer of an Australian relative. In the present case, the visa applicant applied for the visa based on claiming to be the carer of his father, who is an Australian citizen. Therefore, at the time of application, the visa applicant satisfies the requirements of cl.116.211. Clause 116.221 requires that at the time of decision, the visa applicant is the carer of the Australian relative (or ‘resident’). The term ‘carer' is defined in r.1.15AA of the Regulations, which is set out in the attachment to this decision. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of r.1.03 of the Regulations i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative identified as the visa applicant’s father. The visa applicant gave evidence at the hearing that his father needs his help because he [has various health] problems. The applicant provided some knowledge of the sponsor’s health issues. The applicant said that the sponsor currently lives with his younger brother and his family and he knows it will be crowded when he comes to Australia to live with them. The applicant gave evidence that his younger brother is currently looking after the sponsor but it is hard work because he has to look after his own family as well. He further stated that his brother’s wife provides care for the sponsor but she is busy looking after her children. The applicant also said that his other siblings in Australia could not look after the sponsor because they are busy and some are sick. He further stated that when he settles down in Australia he would move to another place with the sponsor and his family. The Tribunal queried the applicant as to how he would support his own family in Australia and he stated that his wife could get a job to support him and their daughter. There is insufficient evidence before the Tribunal to demonstrate that the visa applicant’s wife has the skills or education to gain employment in Australia to support their family. The Tribunal places little weight on the evidence provided. The applicant also said that said that he would not work when he comes to Australia, he will look after his father. The Tribunal queried as to what qualifications the visa applicant had in regard to providing aged care to the sponsor and looking after someone with [a particular medical condition]. The visa applicant said that he had no training but he had common sense. He would look after his father, would prepare breakfast, take him out into the sun to sunbath and cook for him. He further stated that he had no previous experience as a carer. The Tribunal asked the visa applicant if he had any knowledge about providing care for someone with [that medical condition]. The visa applicant said that [details deleted]. The Tribunal queried how the visa applicant would provide proper care for the sponsor given the fact he cannot speak English and does not drive. The visa applicant stated that he would ask for his brother’s help or someone else to help because he is not familiar with the roads in Australia, or he would call 000 if needed in the case of an emergency.

Ratio Decidendi

Legal Principle Established

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