1822388 (Migration) - [2022] AATA 4346

1822388 (Migration) [2022] AATA 4346 (15 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Charlie Bulos (MARN: 9501091)
CASE NUMBER:  1822388
MEMBER:Deputy President J.L Redfern PSM
DATE:15 December 2022
PLACE OF DECISION:  Sydney
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:
·cls. 836.212 and 836.213 of Schedule 2 to the Regulations and;

·cl.836.221 of Schedule 2 to the Regulations.

Statement made on 15 December 2022 at 9:36am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian ‘relative’ – carer to assist sponsor in the care of her daughter – aunt of sponsor –18q deletion syndrome – circumstances where the carer visa assessment certificate is two or more years old – whether assistance cannot be reasonably be provided by another Australian relative or obtained from welfare, hospital, nursing or community services – whether the applicant is willing and able to provide the substantial and continuing care of the kind needed – applicant found to be the carer of the Australian relative sponsor – decision under review remitted with direction.
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr. 1.03, 1.15AA, 1.20, Sch 2 cls. 836.212, 836.213, cl.836.221
CASES
Biyiksizv Minister for Immigration and Multicultural Indigenous Affairs [2004] FCA 814
Lin v Minister for Immigration and Cultural and Indigenous Affairs [2004] FCA 606
SECONDARY MATERIALS
Department of Home Affairs, Procedures Advice Manual 3, Div1.2/reg 1.15AA – Carer
IMMI14/085
IMMI17/126
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 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).
The visa applicant, [applicant], applied for the visa on 13 February 2017 to assist her niece, [sponsor], with the care of her daughter, [child]. [Child] is the visa applicant’s grandniece, although [applicant] refers to her as her granddaughter because she says this is how it is generally referred to in Philippines. [Child] has a chromosome disorder known as ‘18q deletion syndrome’, which results in developmental delay and physical impairment. [Sponsor] has sponsored the visa applicant.
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. The central…

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 1822388 (Migration)

Details

AGLC: 1822388 (Migration) [2022] AATA 4346
Case: [2022] AATA 4346
Decision Date: 15 December 2022

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant, who is the aunt of the sponsor, sought to provide care for the sponsor's daughter, who suffers from 18q deletion syndrome. The central dispute revolved around whether the applicant met the criteria for being a "carer" under the Migration Regulations 1994, particularly concerning the need for assistance and the validity of the provided carer visa assessment certificate. The decision was made by Deputy J.l Redfern Psm P.

The primary legal issue before the court was whether the applicant satisfied the requirements of regulation 1.15AA(1) of the Migration Regulations 1994, which defines a "carer" for the purposes of the visa. This involved determining if the sponsor's daughter had a qualifying medical condition causing significant impairment, if this need for assistance would continue for at least two years, and crucially, whether such assistance could not reasonably be provided by another Australian relative or obtained from Australian welfare, hospital, nursing, or community services. The court also had to consider if the applicant was willing and able to provide the necessary substantial and continuing care.

The court found that the applicant was a relative of the Australian permanent resident sponsor and that the provided Carer Visa Assessment certificate, issued by Bupa Medical Visa Services, on its face met the requirements of regulation 1.15AA(2). This certificate indicated that the sponsor's daughter had 18q deletion syndrome, resulting in global developmental delay and other impairments, and a need for direct assistance for at least two years. However, the certificate was over six years old at the time of the decision, a delay attributed to the protracted processing and review stages, including pandemic-related hearing delays. Despite the age of the certificate, the Deputy President was satisfied that the applicant was a "carer" as defined by clause 836.221 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for reconsideration with a direction that the criteria for the Subclass 836 (Carer) visa, specifically clauses 836.212, 836.213, and 836.221 of Schedule 2 to the Regulations, were met.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In this case, based on the decision of the delegate and my findings about the birth certificates provided, it appears the critical issue that requires determination is whether I am satisfied that the assistance [sponsor] needs cannot reasonably be provided by another relative (who is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen) or that this assistance cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia. Notwithstanding this, and for completeness, my findings in relation to all of the relevant requirements in reg 1.15AA(1) of the Regulations are set out below.CONSIDERATION OF CLAIMS AND EVIDENCE I am satisfied that the visa applicant meets the requirements of sub-regs 1.15AA(1)(a) and (ba) because she is the aunt of [sponsor] who is an Australian permanent resident. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the 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. The visa applicant provided a Carer Visa Assessment certificate (the certificate) and medical adviser’s report from Bupa Medical Visa Services dated 7 September 2016. According to the assessment by the examining doctor that, at the time of the assessment, [child] had an impairment rating of 30 or more points, that she had a medical condition that was causing physical, intellectual or sensory impairment of her ability to attend to the practical aspects of daily life and that she had a need for direct assistance in attending to those practical aspects because of that medical condition. It was also reported that because of the medical condition, she had a need for direct assistance in attending to the practical aspects of daily life that would continue for at least two years. The medical diagnosis recorded is ‘18q deletion syndrome’ which results in the medical conditions of global developmental delay, including impaired intellectual function, speech and language delay, poor motor coordination and low muscle tone, delayed self-help activities of daily living skills including toileting, bilateral moderate mixed hearing loss, astigmatism and thalassaemia minor (anaemia). Bupa Australia Health Pty Ltd trading as Bupa Medical Visa Services is a health provider specified by the Minister under IMMI14/085 at the relevant time. The certificate provided by the visa applicant includes the details prescribed in reg 1.15AA(1)(b) and was signed and issued by a medical practitioner on behalf of Bupa Medical Visa Services. On its face, the certificate provided meets the requirements of regs 1.15AA(2) and 1.15AA(1)(b) of the Regulations. However, the certificate is now more than six years old. This can be attributed to the delay in the decision-making and review process, including a delay in the primary decision-making process with a further delay before this Tribunal, exacerbated by hearing delays arising out of the COVID-19 pandemic.

Decision

Reasons for decision

Given these findings, I am satisfied that at the time of my decision the visa applicant is a ‘carer’ and therefore satisfies cl 836.221 of Schedule 2 to the Regulations.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:· cls. 836.212 and 836.213 of Schedule 2 to the Regulations and;· cl.836.221 of Schedule 2 to the Regulations. J.L Redfern PSMDeputy PresidentATTACHMENTMigration 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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