1913470 (Migration) - [2023] AATA 869

1913470 (Migration) [2023] AATA 869 (23 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1913470
MEMBER:SM Michael Cooke
DATE:23 March 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:
·cl.116.211 of Schedule 2 to the Regulations
·cl.116.221 of Schedule 2 to the Regulations

Statement made on 23 March 2023 at 8:32am
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – person requiring care a member of the family unit of the family head sponsor – grandson and grandmother – usually resident in family head’s household and financially dependent – sponsor’s funds to caree’s parents to buy house next door and for food, clothing and mobility assistance – applicant the niece of sponsor – assistance cannot reasonably be provided by other relatives or obtained from service providers – caree’s reduced health and need for immediate and constant care – other relatives’ families or work – attempts to obtain care from providers – limited care provided – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.12(1)(e), 1.15AA(1), Schedule 2, cls 116.211(2), 116.221
CASES
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 26 April 2019 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visa on 24 February 2014. At that time, 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 (Cth) (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 116.221.
The delegate refused to grant the visas on the basis that cl 116.221 was not met because the applicant was not ‘a member of the family unit’ of the sponsor - pursuant to reg.1.12.
The applicant’s representative has responded to the various reasons for the delegate’s refusal in his tendered submission thus:
Further to our Submission dated 03 July 2020, we note that the delegate stated that:
“I am not satisfied that the Sponsor is a member of [the caree’s] (the person with medical conditions) family unit as defined in Regulation…

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 1913470 (Migration)

Details

AGLC: 1913470 (Migration) [2023] AATA 869
Case: [2023] AATA 869
Decision Date: 23 March 2023

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, specifically a Subclass 116 (Carer) visa. The applicant sought to be recognised as a carer for their aunt, who was an Australian citizen. The dispute centred on whether the applicant met the criteria to be considered a 'carer' under the Migration Regulations 1994. The decision was made by Senior Member Michael Cooke of the Migration Review Tribunal.

The Tribunal was required to determine two primary legal issues. Firstly, whether the visa applicant had claimed to be a 'carer' of an Australian relative at the time of application, as required by clause 116.211 of the Regulations. Secondly, the Tribunal had to assess whether the visa applicant was, in fact, a 'carer' of the Australian relative at the time of the decision, in accordance with clause 116.221 of the Regulations and the definition of 'carer' in regulation 1.15AA.

The Tribunal reasoned that the applicant satisfied the requirements of clause 116.211 because they had applied on the basis of being a carer for their aunt, who was an Australian citizen and thus an 'Australian relative'. Regarding clause 116.221, the Tribunal found that the applicant was a 'relative' of the Australian relative, as defined in regulation 1.03, and that the aunt was an Australian citizen usually resident in Australia. The Tribunal concluded that the applicant met the criteria for being a carer under regulation 1.15AA, specifically that the applicant was a relative of the resident.

Given these findings, the Tribunal remitted the applications for the Subclass 116 (Carer) visa for reconsideration by the Minister, with a direction that the criteria under clauses 116.211 and 116.221 of Schedule 2 to the Regulations had been met.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

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 116 visa.DECISION The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:·cl 116.211 of Schedule 2 to the Regulations· cl 116.221 of Schedule 2 to the RegulationsMichael CookeSenior MemberATTACHMENTMigration 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

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets the requirements for a ‘carer’.APPLICANT CLAIMS TO BE CARERWhether the visa applicant has claimed to be a ‘carer’ Clause 116.211 of the Regulations requires that 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 review applicant, who is the visa applicant’s aunt. 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. The Tribunal finds that the applicant claimed to be a ‘carer’ of another person (‘caree’) at the time of application; and the ‘caree’ is an ‘Australian relative’ – ie a ‘relative’ as defined in reg 1.03 who is also an Australian citizen. Therefore, at the time of application the visa applicant claimed to be a ‘carer’ of an Australian relative and satisfies the requirements of cl 116.211.APPLICANT IS A CARERWhether the visa applicant is a ‘carer’ Clause 116.221 requires that at the time of decision, the visa applicant is a ‘carer’ of the Australian relative (or ‘resident’). The term ‘carer' is defined in reg 1.15AA of the Regulations, which is set out in the attachment to this Decision. Applicant is a relative of the resident – reg 1.15AA(1)(a) Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the visa applicant’s aunt. The Tribunal finds that the applicant is a relative of the Australian relative, having regard to the definitions of ‘relative’ and ‘close relative’ in reg 1.03 and the relative is an Australian citizen and ‘usually resident’ in Australia. Therefore, as the visa applicant is the niece of the Australian relative, the visa applicant is a ‘relative’ of the resident within the meaning of reg 1.03 and meets the requirements of reg 1.15AA(1)(a).Certification – reg 1.15AA(1)(b) 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.