1829051 (Migration) - [2022] AATA 666

1829051 (Migration) [2022] AATA 666 (18 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1829051

MEMBER:Helena Claringbold
DATE:18 February 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) Carer visa.

Statement made on 18 February 2022 at 11:35am

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – relative of an Australian relative – care reasonably provided by Australian relatives – welfare, hospital, nursing or community services in Australia – continual supervision and assistance required – limited enquiries into NDIS and other services – language issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cls 116.211, 116.221; rr 1.03, 1.15
Social Security Act 1991
CASES
Anveel v MIBP [2013] FCCA 2181
Biyiksiz v MIMIA [2004] FCA 814
Hasran v MIAC [2010] FCAFC 40
Hon Anh Vuong v MIAC [2013] FCCA 274
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

On 8 November 2015, [name], the visa applicant (the applicant), applied for an Other Family (Migrant) (Class BO) Carer visa. The application was made on the basis of him providing care to his brother, [named], the sponsor and review applicant.
On 13 August 2018, a delegate of the Minister for Home Affairs refused to grant the visa. The delegate was not satisfied that the assistance for the sponsor cannot reasonably be provided by his relatives in Australia either individually or collectively. The delegate was not satisfied that the care the sponsor required cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia. Therefore, the applicant did not meet cl.116.221 of Schedule 2 of the Migration Regulations 1994 (the Regulations). On 4 October 2018, the sponsor provided the Tribunal with a copy of the delegate’s decision record. The applicant was represented in relation to the review. This is a review of the delegate’s decision.
At the time the visa application was made, 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.
On the 9 October 2018, the Tribunal wrote to the sponsor and advised him that if he wished to provide material or written arguments for consideration he should do so as soon as possible. He was also told that he could provide any information he believed supported the review application including a written statement explaining why he disagreed with the Department’s decision.
On 8 June 2021, the Tribunal invited the sponsor to provide in writing information that is up…

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 1829051 (Migration)

Details

AGLC: 1829051 (Migration) [2022] AATA 666
Case: [2022] AATA 666
Decision Date: 18 February 2022

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, Subclass 116 (Carer), where the applicant sought to provide care for his brother, an Australian citizen. The primary dispute revolved around whether the applicant met the criteria for being a "carer" under the Migration Regulations 1994, specifically concerning the inability of other Australian relatives or Australian community services to provide the necessary assistance. The decision was made by Member Helena Claringbold of the Administrative Appeals Tribunal.

The legal issues before the Tribunal were whether the assistance required by the sponsor could not reasonably be provided by any other relative who is an Australian citizen, permanent resident, or eligible New Zealand citizen, and whether such assistance could not reasonably be obtained from welfare, hospital, nursing, or community services in Australia. Additionally, the Tribunal considered whether the applicant was willing and able to provide substantial and continuing assistance to meet the sponsor's needs. The Tribunal was required to interpret and apply clauses 116.211 and 116.221 of Schedule 2 to the Regulations, and regulation 1.15AA, considering case law such as *Anveel v MIBP* and *Jajov v MIBP* regarding the assessment of "reasonable" provision of assistance.

The Tribunal reasoned that the applicant failed to satisfy regulation 1.15AA(1)(e)(ii) because the assistance required by the sponsor could not reasonably be obtained from welfare, hospital, nursing, or community services in Australia. While the applicant claimed to be able to provide substantial and continuing care, the Tribunal found that the criteria relating to the inability of other Australian relatives or Australian services to provide care were not met. Consequently, the Tribunal concluded that the applicant did not meet the criteria for a Subclass 116 visa.

The Tribunal affirmed the decision not to grant the applicant an Other Family (Migrant) (Class BO) Carer visa, finding that the applicant did not meet the prescribed criteria for the visa sought.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issues in the present case are whether the assistance for the sponsor cannot reasonably be provided by any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible New Zealand citizen for the sponsor; or whether the assistance for the sponsor cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia for the sponsor and whether the applicant is willing and able to provide to the sponsor substantial and continuing assistance to fulfill his needs. BACKGROUND ON THE EVIDENCE The applicant was born in [year] in Kabul, Afghanistan. His parents are deceased. He has [specified family members] living in Afghanistan and [siblings] living in [specified countries]. He also has a sister and a brother living in Australia. On 13 August 2018, the applicant was refused an Other Family (Migrant) (Class BO) Carer visa. The sponsor was born in [year] in Afghanistan. [In] July 1997, the sponsor first entered Australia. [In] March 2000, he was granted Australian citizenship. Whether the visa applicant has claimed to be a ‘carer’ Clause 116.211 of Schedule 2 to the Regulations requires that, at the time of application, the visa applicant claims to be a carer of an Australian relative. In the present case, the visa application was made on the basis that the visa applicant is a carer of the sponsor, who is the visa applicant’s brother. 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 reg 1.03 of the Regulations.Are the requirements of r.1.15AA(1)(e)(i) and r.1.15AA(1)(e)(ii) satisfied? Regulation1.15AA provides that the assistance cannot reasonably be:(e)(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(e)(ii) obtained from welfare, hospital, nursing or community services in Australia. Whether any relatives can ‘reasonably’ provide the relevant assistance and what a relative is capable of doing are matters for consideration in determining whether assistance cannot reasonably be provided: Anveel v MIBP [2013] FCCA 2181 at [61]-[62]. However, consideration should also be given to the nature of care actually required by the person needing the care when making such assessment: at [61]. Care may be provided collectively by more than one relative. In Jajov MIBP [2013] FCCA 1554 at [55], the Court held that r.1.15AA(1)(e)(i) should not be construed as requiring that the assistance must only be provided by a single person.Whether the assistance can reasonably be provided by any other relative? On the visa application form dated June 2015, the applicant declared the following: he is the brother of the sponsor. The medical condition causing the sponsor to need assistance is poor vision. He is clinically blind, depressed and anxious. He will provide assistance to the sponsor for bathing and showering, toileting, dressing and undressing, grooming, eating, mobility, transport and will also assist with preparing or supervising.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal has taken into consideration, individually and completely, the evidence in the Department of Home Affair’s (the Department’s) case file and the Tribunal’s case file. ISSUES The issues in the present case are whether the assistance for the sponsor cannot reasonably be provided by any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible New Zealand citizen for the sponsor; or whether the assistance for the sponsor cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia for the sponsor and whether the applicant is willing and able to provide to the sponsor substantial and continuing assistance to fulfill his needs. BACKGROUND ON THE EVIDENCE The applicant was born in [year] in Kabul, Afghanistan. His parents are deceased. He has [specified family members] living in Afghanistan and [siblings] living in [specified countries]. He also has a sister and a brother living in Australia. On 13 August 2018, the applicant was refused an Other Family (Migrant) (Class BO) Carer visa. The sponsor was born in [year] in Afghanistan. [In] July 1997, the sponsor first entered Australia. [In] March 2000, he was granted Australian citizenship. Whether the visa applicant has claimed to be a ‘carer’ Clause 116.211 of Schedule 2 to the Regulations requires that, at the time of application, the visa applicant claims to be a carer of an Australian relative. In the present case, the visa application was made on the basis that the visa applicant is a carer of the sponsor, who is the visa applicant’s brother. 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 reg 1.03 of the Regulations.Are the requirements of r.1.15AA(1)(e)(i) and r.1.15AA(1)(e)(ii) satisfied? Regulation1.15AA provides that the assistance cannot reasonably be:(e)(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(e)(ii) obtained from welfare, hospital, nursing or community services in Australia. Whether any relatives can ‘reasonably’ provide the relevant assistance and what a relative is capable of doing are matters for consideration in determining whether assistance cannot reasonably be provided: Anveel v MIBP [2013] FCCA 2181 at [61]-[62]. However, consideration should also be given to the nature of care actually required by the person needing the care when making such assessment: at [61]. Care may be provided collectively by more than one relative. In Jajov MIBP [2013] FCCA 1554 at [55], the Court held that r.1.15AA(1)(e)(i) should not be construed as requiring that the assistance must only be provided by a single person.Whether the assistance can reasonably be provided by any other relative?

Decision

Reasons for decision

For the reasons above, the visa applicant does not meet the criteria for a Subclass 116 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets the prescribed criteria for the visa sought. DECISION The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) Carer visa.Helena ClaringboldMemberATTACHMENTMigration 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

Therefore, the applicant does not meet r.1.15AA(e)(ii) of the Regulations. Other considerations A case note on the Department’s file relates to concerns held about the age of the visa applicant and the relationship between the visa applicant and the sponsor. As these issues do not relate to the considerations of the Tribunal it has not put this information to the sponsor and the Tribunal places no weight on the information. Therefore cl 116.221 of Schedule 2 to the Regulations is not met. For the reasons above, the visa applicant does not meet the criteria for a Subclass 116 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets the prescribed criteria for the visa sought. DECISION The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) Carer visa.Helena ClaringboldMemberATTACHMENTMigration 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.