1907968 (Migration) - [2019] AATA 6444

1907968 (Migration) [2019] AATA 6444 (21 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1907968
MEMBER:Margie Bourke
DATE:21 November 2019
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 21 November 2019 at 1:23pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) – Subclass 836 (Carer) – Federal Circuit remittal – carer of Australian relative – claim relatives cannot provide care – family feud – has not obtained assistance from welfare/community services – lack of evidence – no assessment of eligibility – not satisfied assistance could not be provide by relative/welfare – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5CA, 65, 360
Migration Regulations 1994 (Cth), Schedule 2 cls 836.111, 836.212, rr 1.03, 1.15AA
CASES

Anveel v MIBP [2013] FCCA 2181
Nguyen v MIBP [2017] FCCA 339
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 15 March 2019 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 2 April 2013. 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 (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.836.212 that the review applicant (who is also the visa applicant) claims to be the carer at the time of application, and cl.836.221 that the review applicant meets the criteria for carer in r.1.15AA at the time of decision.
The delegate refused to grant the visa on the basis that cl.836.212 was not met at the time of application, and cl.836.221 was not met at the time of decision. The delegate found the applicant did not meet both subclauses because the applicant did not meet the criteria in r.1.15AA.
The applicant appeared before the tribunal on 28 October 2019 to give evidence and present arguments. The tribunal also received oral evidence from the applicant’s stepmother, who is the person requiring care. The applicant’s father attended the hearing in a supportive role and did not give evidence. The tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.
The applicant was represented in relation to…

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 1907968 (Migration)

Details

AGLC: 1907968 (Migration) [2019] AATA 6444
Case: [2019] AATA 6444
Decision Date: 21 November 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for an Other Family (Residence) (Class BU) visa, Subclass 836 (Carer). The applicant sought to be recognised as a carer for her stepmother, who was an Australian citizen. The core of the dispute revolved around whether the applicant met the regulatory definition of a "carer" for the purposes of the visa subclass.

The Tribunal was required to determine if the applicant satisfied the criteria outlined in regulation 1.15AA of the Migration Regulations 1994, specifically whether she was a carer of an Australian relative. This involved assessing whether the person requiring care had a medical condition causing a significant impairment, whether this need for assistance was ongoing for at least two years, and crucially, whether such assistance could not reasonably be provided by other Australian relatives or obtained from welfare or community services in Australia.

The Tribunal found that while the applicant had claimed to be a carer of an Australian relative (her stepmother), and the relationship was established, she failed to demonstrate that the required assistance could not be provided by other relatives or obtained from welfare or community services. The decision noted a lack of evidence to support these claims, including no assessment of eligibility for such services and indications of a family feud that might impede assistance from other relatives. Consequently, the Tribunal affirmed the delegate's decision not to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The tribunal is satisfied based on the evidence before it, that the applicant meets the requirements of cl.836.212, that she claimed to be a carer at the time of application. I will briefly set out my reasons for this finding in this decision record, because it formed part of the delegate’s decision. I assume the delegate applied the requirements for the definition of carer in r.1.15AA for cl.836.212, which has the lesser requirement that the applicant claims to be the carer of an Australian relative, rather than as is required in cl.836.221 is the carer of the Australian relative referred to in cl.836.212. The main issue in the present case is whether the applicant meets the criteria in r.1.15AA which is the definition of carer in the regulations, for the purpose of meeting the requirements of cl.836.221.APPLICANT CLAIMS TO BE CARERWhether the applicant has claimed to be the ‘carer’ Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the carer of the applicant’s stepmother. I refer to my decision dated 7 January 2019, in which I consider the relationship between the applicant and the person needing care, who is the sponsor, for the purpose of an assessment as to whether the visa applicant met the requirements of sponsorship. I noted that r.1.03 did not define ‘step-parent’. I considered that the sponsor, (and person requiring care) was recorded in the application and sponsorship forms as the step parent or step mother of the applicant. I conducted an analysis of the definitions of parent and child in s.5(1) and s.5CA of the Migration Act, which included referrals to the meanings in the Family Law Act, and specifically did not limit who could be considered the child of a person. I found the applicant is the step child of the sponsor, and the sponsor is the step mother of the applicant. I am satisfied based on the certificate of Australian citizenship, that the sponsor, the person requiring care, [Ms A] was granted Australian citizenship in 2006, under her pre married or maiden name of [Ms A]. 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.836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations. I have considered the application forms and supporting documents and I am satisfied that at the time of application the applicant claimed to be the carer of another person. I am satisfied that the other person is an Australian citizen at the time of application, and a relative, namely the stepmother of the applicant at the time of application. I am satisfied the applicant claimed to be the carer of an Australian relative at the time of application.

Decision

Reasons for decision

For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.DECISION The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.Margie BourkeMemberATTACHMENTMigration 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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