1819672 (Migration) - [2022] AATA 2605

1819672 (Migration) [2022] AATA 2605 (2 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Lauraine Ann Roze (MARN: 0801441)
CASE NUMBER:  1819672
MEMBER:David Crawshay
DATE:2 May 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:
·cl.836.221 of Schedule 2 to the Regulations.

Statement made on 02 May 2022 at 4:05pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – coronary artery disease – diabetes – chronic kidney disease – bilateral knee osteoarthritis – whether assistance can reasonably be obtained from relevant services – ACAT assessment – wait times between six and 15 months – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA; Schedule 2, cl 836.221
CASES
Biyiksiz v MIMIA [2004] FCA 814
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64
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
1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 July 2018 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant applied for the visa on 30 December 2016. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.836.221 of Schedule 2 to the Regulations.
3.    The delegate refused to grant the visas on the basis that cl.836.221 was not met because the delegate was not satisfied that the applicant was the carer of the resident. Specifically, the delegate was not satisfied that the assistance mentioned in r.1.15AA(1)(b)(iv) could not reasonably be provided by any other relative of the resident or obtained from welfare, hospital, nursing or community services in Australia: r.1.15AA(1)(e).
4.    The applicant appeared before the Tribunal on 2 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], who is the applicant’s mother, the sponsor and the person who requires assistance, and from [Ms B], who is a granddaughter of the sponsor.
5.    The applicant was represented in relation to the review.
6.    For the following reasons, the Tribunal…

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 1819672 (Migration)

Details

AGLC: 1819672 (Migration) [2022] AATA 2605
Case: [2022] AATA 2605
Decision Date: 2 May 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for review of a decision to refuse a Subclass 836 (Carer) visa. The applicant sought to migrate to Australia to care for their parent, who suffered from multiple chronic health conditions including coronary artery disease, diabetes, and bilateral knee osteoarthritis. The central dispute concerned whether the parent could reasonably obtain the necessary care and support from available Australian services, given the applicant's proposed role as a carer.

The Tribunal was required to determine whether the applicant had satisfied the criteria for the Other Family (Residence) (Class BU) visa, specifically whether the parent's need for assistance was such that it could not be reasonably met by Australian support services. This involved assessing the evidence presented regarding the parent's medical conditions and the availability and accessibility of formal care services within Australia.

In its reasoning, the Tribunal considered the evidence of the parent's health conditions and the impact these had on their daily life. Crucially, the Tribunal examined an assessment from the Aged Care Assessment Team (ACAT), which indicated significant wait times, ranging from six to fifteen months, for the provision of formal aged care services. The Tribunal found that these substantial delays meant that the parent could not reasonably obtain the required assistance from relevant services in a timely manner. Consequently, the Tribunal determined that the applicant had met the visa criteria. The decision under review was remitted to the Department of Home Affairs for reconsideration.

Orders