1920335 (Migration) - [2023] AATA 293

1920335 (Migration) [2023] AATA 293 (9 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mrs Danijela Jakovljevic (MARN: 9902396)
CASE NUMBER: 1920335

MEMBER:Justin Meyer
DATE:9 February 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 9 February 2023 at 11:31am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – care could be provided by relatives and services in Australia – extended family unable to provide care – sponsor’s lengthy absences for employment – assistance with medication – heavy reliance on the visa applicant – health and aged care service limitations – professional and ongoing therapeutic medical advice – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 836.111, 836.211 – 836.213, 836.221; rr 1.03, 1.12
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 9 July 2019 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 29 January 2018. 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 cl 836.221.
The delegate refused to grant the visa on the basis that cl 836.221 was not met because subregulation 1.15AA (1) (e) (ii) as the delegate was not satisfied that the assistance the resident requires could not reasonably be obtained from welfare, hospital, nursing or community services in Australia.
The applicant appeared before the Tribunal on 16 December 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [the named caree].
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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 assistance the review applicant (sponsor) requires can be reasonably obtained from…

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 1920335 (Migration)

Details

AGLC: 1920335 (Migration) [2023] AATA 293
Case: [2023] AATA 293
Decision Date: 9 February 2023

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The review applicant sought to act as a carer for their sponsor's wife, who was an Australian citizen and required assistance with daily living activities due to a medical condition. The core of the dispute revolved around whether the necessary care could be reasonably obtained from other relatives or from Australian welfare, hospital, nursing, or community services. The decision was made by Justin Meyer.

The legal issues before the Tribunal were whether the review applicant met the criteria for being a carer of an Australian relative, specifically whether the assistance required by the caree could reasonably be obtained from any other relative in Australia or from Australian welfare, hospital, nursing, or community services. Additionally, the Tribunal considered whether the sponsorship requirements were met.

The Tribunal found that the review applicant satisfied the requirement of claiming to be the carer of an Australian relative, as defined by the Migration Regulations 1994. The caree was an Australian citizen requiring assistance with mobility, personal care, and medication supervision, as evidenced by medical certificates. The Tribunal noted that the sponsor's lengthy absences for employment and the limitations of health and aged care services in Australia, coupled with the caree's heavy reliance on the applicant for professional and ongoing therapeutic medical advice, were factors to be considered in assessing whether the care could be reasonably obtained elsewhere.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that certain criteria for the Subclass 836 (Carer) visa 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 issue in the present case is whether the assistance the review applicant (sponsor) requires can be reasonably obtained from any other relative of the review applicant (sponsor) or from welfare, hospital, nursing or community services in Australia.Whether 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 will provide assistance to [the named sponsor] to care for a member of [his] family unit (i.e his wife, [the named caree]). 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 reg 1.03 of the Regulations. The applicant claimed to be the 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, permanent resident or eligible NZ citizen - [the sponsor]. For the purposes of this application, I find that the ‘resident’ referred to within the definition of Carer at Regulation 1.15AA is [the sponsor]. Documents supplied to support this application demonstrate that the applicant is the nephew of [the sponsor]. [The sponsor] and his wife have also been demonstrated to both be Australian Citizens. [The sponsor] has been found to be usually resident in Australia. The Carer Visa Assessment Certificate dated 6 July 2018 provided with this application states that [the caree] is “partially dependent” for assistance with her activities of daily living. In particular, she requires assistance with mobility, preparation of her shower, dressing the lower parts of her body, supervising medication, supervision for personal safety and transportation. There is a subsequent, consistent, certificate of 10 March 2022. Therefore, at the time of application the applicant claimed to be the carer of an Australian relative and satisfies the requirements of cl 836.212.Are the sponsorship requirements met? Clause 836.213 requires that at the time of application the applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18. If sponsored by the spouse or de facto partner, the spouse or de facto partner must cohabit with the Australian relative and must be an Australian citizen, permanent resident or eligible New Zealand citizen. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations. ‘Spouse’ is defined in reg 1.15A (for visa applications made before 1 July 2009) and s 5F of the Act (for visa applications made after that date, whilst ‘de-facto’ partner is defined in s 5CB of the Act).Family relationships

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 Regulations;Justin MeyerMemberATTACHMENTMigration 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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