1831401 (Migration) - [2023] AATA 1113

1831401 (Migration) [2023] AATA 1113 (28 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr David Harvey (MARN: 0854768)
CASE NUMBER: 1831401

MEMBER:Brendan Darcy
DATE:28 March 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 28 March 2023 at 10:29am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of the resident – assistance could reasonably be provided by any relative in Australia – large extended family nearby – appropriate enquiries into available assistance – community service providers consulted – joint caring support from family members – willing and able to provide to substantial and continuing assistance – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cls 836.111, 836.212, 836.221; rr 1.03, 1.05
CASES
Hon Anh Vuong v MIAC [2013] FCCA 274
Lam v MIBP [2013] FCCA 1263
Naidu v MIMIA (2004) 140 FCR 284
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 October 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 applicant applied for the visa on 5 July 2017. 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 clause 836.221 and the definition of carer under regulation 1.15AA.
The delegate refused to grant the visa on the basis that cl 836.221 was not met, as the resident had not provided sufficient evidence to determine that the assistance could not reasonably be provided by any other relative of the resident pursuant to regulation 1.15AA(1)(e)(i).
As the applicant did not meet the requirements defined in regulation 1.15AA(1) (e)(i), the applicant was unable to meet the requirements of a Carer defined in regulation 1.15AA. As the applicant did not satisfy Regulation 1.15AA, the applicant did not meet clause 836.221 in Schedule 2 of the Regulations.
The applicant appeared before the Tribunal on 23 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother, [Ms A], and three…

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 1831401 (Migration)

Details

AGLC: 1831401 (Migration) [2023] AATA 1113
Case: [2023] AATA 1113
Decision Date: 28 March 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning a Class BU Subclass 836 (Carer) visa. The applicant sought to bring his father, the sponsor, to Australia to provide care. The dispute centred on whether the sponsor's care needs could reasonably be met by other relatives in Australia or by community services.

The Tribunal was required to determine if the applicant had demonstrated that the assistance required by the sponsor could not reasonably be provided by any other relative in Australia. This involved assessing the sponsor's medical conditions and the extent of his care needs, as well as the availability and capacity of other adult relatives residing in Australia to provide the necessary substantial and continuing assistance. The Tribunal also considered whether appropriate enquiries had been made into available community services.

The Tribunal reasoned that while the sponsor had significant medical conditions requiring substantial and ongoing care, the applicant had not sufficiently demonstrated that this care could not be provided by other relatives. Despite the applicant's efforts to consult community services and the submission of statements from numerous family members indicating their inability to provide care due to various reasons such as other caring responsibilities, work commitments, or personal health issues, the Tribunal found these explanations insufficient. The Tribunal noted the presence of a large extended family in proximity and concluded that the applicant had not discharged the onus of proving that no other relative was willing and able to provide the required assistance.

Consequently, the Tribunal affirmed the delegate's decision, finding that the applicant had not met the criteria for the Carer 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 applicant applied for a review of the Delegates decision with the Tribunal on 25 October 2018, and attached the Departments Notification Letter, and decision record. Evidence before the Tribunal An updated CVAC was received by the Tribunal on 5 January 2022 (dated 22 December 2021), indicating that the resident, aged [age] years, now has an impairment rating of 70. His conditions include: · [Extensive list of medical conditions, with some treatments specified] It further states his ability to move around the house is affected by multiple conditions; he requires ongoing medication management; as well as total support with everyday activities. The applicant submitted to the Tribunal that on 7 June 2022, he contacted a large number of community services in search of suitable community facilities in Melbourne to care for [the sponsor, Mr A]. These were as follows: [extensive list of facilities]. The applicant stated that none of the care homes were able to provide adequate care for [the sponsor]. Furthermore, at the hearing the applicant stated that he cares for his father in the following ways: he stays with him and observes him during nights (ensuring that he does not fall from the bed), measures food intake, tests his blood, measures and administers [the sponsor’s] medication etc. He also provides emotional support and companionship through talking to [the sponsor], and helps him with the bathroom, and general mobility. As mentioned above, a scheduled hearing was held on 23 June 2022, where the applicant was represented. During the hearing, the applicant stated that he had never been married, engaged, party to a de facto relationship, and does not have any children. The applicant described his daily activities is providing support and care for his father and did so in some detail. The applicant’s representative provided post-hearing submissions on 21 July 2022. It included the following specific submissions: · A signed statement by [Son C], living in [Suburb 1], stating that he was too busy to provide care. It is dated 14 June 2022; · A signed statement by [Daughter A] living in [Suburb 1]. It is claimed she was too busy with homemaking duties. It is dated 14 June 2022; · A signed statement by [Son A] living in [Suburb 1]. He cannot provide care because he cares for his mother. It is dated 15 June 2022; · A signed statement by [Relative B] living in [Suburb 2] stating that she was a pensioner and unwell. It is dated 14 June 2022; · A signed statement by [Relative A] living in [Suburb 2], stating that she was too busy caring for her aunt. It is dated 14 June 2022; · A signed statement by [Grandchild A] living in [Suburb 1] that [they were] too busy with [specified duties]. It is dated 14 June 2022; · A signed statement by [Grandson B] living in [Suburb 3], stating that he was too busy to provide care. It is dated 14 June 2022; · A signed statement by [Grandson A] living in [Suburb 3]. He claimed he worked and travelled a lot. It dated 14 June 2022; · A signed statement by [Relative E] residing in [Suburb 1]. He claimed to be the carer for his father, [named]. It was dated 15 June 2022. · A signed statement by [Relative C] living in [Suburb 4]. He claimed to be too busy providing care for an unnamed elderly pensioner. It is dated 16 June 2022; · A signed statement by [Relative D] living in [Suburb 1]. He claimed to be too busy as a full-time worker to provide care for [the sponsor]. It is dated 15 June 2022; · A co-signed statement by [Daughter B], [Grandchild B], and [Grandchild C]. [Daughter B] claimed to be a carer while [Grandchild B] was receiving a pension and [Grandchild C] was a full-time student. It is dated 14 June 2022; · A signed statement by [Granddaughter A] residing in [Suburb 1].She claimed to be a young mother and had caring responsibilities for her mother in law. It is dated 15 June 2022; and· A signed statement by [Sister A] residing in [Suburb 1]. She claimed she could not care for her brother, [Mr A] because she is an aged pensioner and has her own medical conditions. It is dated 15 June 2022.

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The visa applicant (or ‘the applicant’), [named], was born in Iraq on [date]. The applicant resided in [Country 1] between January 2007 and November 2013 on a refugee visa, and subsequently acquired [Country 1] citizenship [in] January 2013. A copy of the applicant’s [Country 1] passport issued [in] 2018 is on the Departmental file. The applicant arrived in Australia [in] November 2013. Since then, he has departed Australia once, in February 2014. The applicant applied for a student via on 6 March 2015, which was granted on 8 April 2015. The applicant claimed he plans to complete a [specified qualification]. However, it was further claimed that his father’s health deteriorated at the end of 2016 and the applicant did not attend classes since the beginning of 2017. On 7 July 2017, the applicant lodged a Class BU Subclass 836 Carer visa. The resident (who is the sponsor) [Mr A], was born on [date] in Iraq. In 2008, he travelled to Australia on a humanitarian visa with his wife, [Ms A], born [DOB].The resident claims to be the biological father of the applicant. A copy of the sponsor’s Australian passport, issued [in] 2013 is on the Department’s file. The form 40 for sponsorship indicated that the resident became an Australian citizen on [in] 2012. Relevantly, the applicant and the resident and other family members are ethnically Assyrian and religiously Christian. The applicant provided evidence of a Carer Visa Assessment Certificate (CVAC) for the resident, [Mr A] to the Department. At the time, [Mr A] was assessed as having an impairment rating of 50 under the Impairment Tables. On 30 April 2018, an email was sent to the applicant requesting he provide evidence to demonstrate that the assistance required could not be reasonably provided by any other relative of the resident in Australia. The applicant was also requested to provide a statutory declaration to declare all the resident’s adult relatives in Australia. The Tribunal notes that the applicant declared in the Form 80 that he has a one sibling, [named], residing in Iraq [Country 1] and another, [named] residing in [another country]. The resident’s family – Australian citizens and permanent residents and eligible NZ citizens, were declared as follows: [Ms A] is the spouse of the resident. The resident’s spouse provided a statement to the Department to declare that she could not provide the required assistance to her husband as she had her own medical issues to confront and manage. The spouse provided a letter from her doctor as evidence to support her statement. [Daughter C] is the daughter of the resident. She lived with the resident, his wife [Ms A], [Son B] and the applicant at the residence of the resident. [Daughter C] declared that she could not provide the required assistance to her father due to her own medical issues. She further declared that she was receiving a disability support pension although occasionally performing light household chores such as cooking and light cleaning. She provided a letter from her doctor as evidence to support her statement.

Ratio Decidendi

Legal Principle Established

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