1911291 (Migration) - [2023] AATA 4869

1911291 (Migration) [2023] AATA 4869 (8 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Merlin Nicholas
CASE NUMBER:  1911291
MEMBER:Justine Clarke
DATE:8 August 2023
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 08 August 2023 at 11:01am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – ‘carer’ of the Australian relative – grandchild – assistance cannot reasonably be obtained/provided – other relatives – welfare, hospital, nursing or community services – language requirements – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA; Schedule 2, cls 836.212, 836.221
CASES
Anveel v MIBP [2013] FCCA 2181
Jajo v MIBP [2013] FCCA 1554
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 on 17 April 2019 by a delegate of the Minister for Home Affairs 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).
On 11 May 2018, the applicant, who is a national of Lithuania, applied for the visa. At that time, he was [age] years of age. At the time of this decision, he is [age] years of age.
At the time that the applicant applied for the visa, 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 this case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 (Carer) 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. Clause 836.221 is a time of decision criterion which provides: ‘[t]he applicant is a carer of the Australian relative mentioned in clause 836.212’.
The term ‘carer’ is defined in reg 1.15AA of the Regulations, which is set out in the attachment to these reasons. ‘Relative’ is defined in reg 1.03 of the Regulations. In this case, the Australian relative is [Ms A]. At the time the applicant applied for the visa, [Ms A] was [age] years of age. At the date of this decision, she is [age] years of age.
The applicant provided the Tribunal with a copy of the delegate’s refusal decision (the primary decision). The delegate refused to grant the visa to the…

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 1911291 (Migration)

Details

AGLC: 1911291 (Migration) [2023] AATA 4869
Case: [2023] AATA 4869
Decision Date: 8 August 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant sought to establish that they were the carer of an Australian citizen, Ms A. The Tribunal's decision was made by Justine Clarke.

The primary legal issue before the Tribunal was whether the applicant met the definition of a 'carer' under regulation 1.15AA of the Migration Regulations 1994. This involved determining if the applicant was a relative of Ms A, if Ms A had a qualifying medical condition requiring ongoing assistance, and crucially, whether such assistance could not reasonably be obtained from other relatives or Australian welfare services, and if the applicant was willing and able to provide the necessary care.

The Tribunal found that the applicant, who claimed to be Ms A's grandson, was indeed a relative as defined by the regulations, with no evidence to the contrary. The Tribunal also noted that the delegate had been satisfied with the evidence of the relationship. While the Tribunal had more evidence before it than the delegate, the decision text indicates that the Tribunal concluded that the matter should be remitted for reconsideration, implying that not all criteria for the visa had been definitively met or fully assessed at that stage.

Consequently, the Tribunal remitted the application for an Other Family (Residence) (Class BU) visa for reconsideration by the Minister, with a direction that certain criteria for a Subclass 836 (Carer) visa, specifically clause 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

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The key issue for determination in this case is whether, at the time of this decision, the applicant is [Ms A]’s carer and thus cl 836.221 is met. The Tribunal notes that it has a greater amount of evidence in respect to this issue than what had been before the delegate. In this review, the applicant’s representative submitted a number of documents, including: detailed written submissions dated 27 April 2023; a number of documents evidencing the identity of the applicant and [Ms A]; a number of documents in relation to [Ms A]’s health; a number of statutory declarations from Australian relatives; documents in relation to health and welfare services in Australia and documents in relation the applicant’s ability and willingness to provide care to [Ms A]. Whether the applicant is a ‘carer’ The applicant claims that he is the carer of [Ms A], who is an Australian citizen usually resident in Australia (‘the resident’). In the primary decision, the delegate was satisfied that [Ms A] is an Australian citizen who is usually resident in Australia. The Tribunal records here that it is satisfied, from the evidence before it—including a certificate of [Ms A]’s Australian citizenship, that [Ms A] is an Australian citizen who is usually resident in Australia.Is the applicant a relative of [Ms A]? (reg 1.15AA(1)(a)) The term ‘relative’ is defined in reg 1.03 as a ‘close relative’ (also a defined term in reg 1.03) or other specified relation. One of the relations specified as being a ‘relative’, is a grandchild. As has already been stated, in this matter, it is claimed that the applicant is [Ms A]’s grandson. In the primary decision, the delegate appeared to be satisfied that the applicant is [Ms A]’s grandson, stating, ‘[t]he claimed relationship between [Ms A] and the applicant is grandson to the sponsor. Birth certificates have been provided to demonstrate the relationship’. The Tribunal notes that there is no evidence to suggest that the applicant is not [Ms A]’s grandchild. Rather, the evidence suggests that he is. Based on the evidence before it, the Tribunal is satisfied that the applicant is the grandson of [Ms A] and that the requirement in reg 1.15AA(1)(a) is met. Does the certificate meet the requirements? (reg 1.15AA(1)(b) and reg 1.15AA(2)) Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 1.15AA(2), state 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.

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.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 RegulationsJustine ClarkeMemberATTACHMENTMigration 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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