1928722 (Migration) - [2024] AATA 956

1928722 (Migration) [2024] AATA 956 (25 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Joumana El Halwe (MARN: 1388161)
CASE NUMBER:  1928722
MEMBER:Justine Clarke
DATE:25 January 2024
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 criterion for a Subclass 836 (Carer) visa is met:
·cl 836.221 of Schedule 2 to the Regulations.

Statement made on 25 January 2024 at 4:08pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – applicant had not provided a CVAC that meets the requirements of reg 1.15AA – applicant and sponsor are siblings – sponsor is an Australian relative of the applicant – certificate provided meets the requirements of reg 1.15AA – updated Carer Visa Assessment Certificate provided – sponsor’s needs for assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia – at the time of decision the applicant is a carer of the Australian relative – applicant is willing and able to provide to the sponsor the substantial and continuing assistance of the kind needed – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 65, 360
Migration Regulations 1994, rr 1.03, 1.15, 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 4 October 2019 by a delegate of the Minister for Home Affairs to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 6 March 2019, the applicant, who is a national of Lebanon, applied for the visa. At that time, she was [age] years of age. At the time of this decision, she 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…

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 1928722 (Migration)

Details

AGLC: 1928722 (Migration) [2024] AATA 956
Case: [2024] AATA 956
Decision Date: 25 January 2024

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer visa). The applicant, Ms A, sought to be recognised as the carer of her sister, Ms B, who is an Australian citizen usually resident in Australia. The central dispute revolved around whether Ms A met the criteria to be considered a carer under the Migration Regulations 1994, particularly in relation to the provision of a Carer Visa Assessment Certificate and the necessity of her assistance. The decision was made by Justine Clarke.

The court was required to determine whether the applicant, Ms A, was a "relative" of the Australian resident, Ms B, as defined by the regulations. It also needed to ascertain if the Carer Visa Assessment Certificate provided met the requirements stipulated in regulation 1.15AA(2). Furthermore, the court had to consider whether Ms B's needs for assistance could reasonably be met by other Australian relatives or obtained from Australian welfare, hospital, nursing, or community services, and crucially, whether Ms A was willing and able to provide the necessary substantial and continuing assistance.

The Tribunal found that the applicant, Ms A, was indeed the sister of the Australian resident, Ms B, satisfying the "relative" requirement under regulation 1.15AA(1)(a). The Tribunal also concluded that an updated Carer Visa Assessment Certificate provided met the requirements of regulation 1.15AA(2), confirming Ms B's medical condition, the resulting impairment, and the ongoing need for assistance. Crucially, the Tribunal determined that Ms B's needs could not reasonably be provided by other relatives or obtained from Australian services, and that Ms A was willing and able to provide the required assistance.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the criterion under clause 836.221 of Schedule 2 to the Regulations, concerning the applicant being a carer, was 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 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.Whether the applicant is a ‘carer’ The applicant claims that she 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 ‘the resident’. The Tribunal records here that it is satisfied, from the evidence before it—including the certified copy of the bio-pages of [Ms A]’s Australian passport, which is on the Department’s file, that [Ms A] is an Australian citizen who is usually resident in Australia.Is the applicant ([name]) a relative of the resident (that is, [Ms A])? (reg 1.15AA(1)(a)) Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative. 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. The term ‘close relative’ includes a sister. The Tribunal notes that, in the primary decision, the delegate stated that it was claimed that the applicant was the daughter of [Ms A]. This is incorrect. The claim is that they are sisters. (See the responses in the Form 47OF—Application for migration to Australia by other family members). The Tribunal notes the extract of the family civil record held by a Lebanonese Government department (both the copy of the original in Arabic and the copy of the English translation) as at 26 December 2017. This document states that both the applicant and [Ms A] have the same mother and the same father. Based on the evidence before it, the Tribunal is satisfied that the applicant is the sister of [Ms A] (the Australian relative) and thus a ‘relative’ of the resident within the meaning of reg 1.03. Accordingly, 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 the 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. For a certificate to meet reg 1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister (see Legislative Instrument IMMI 14/085), or issued by a specified health provider in relation to a review of such an opinion.

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 criterion for a Subclass 836 (Carer) visa is met:·cl 836.221 of Schedule 2 to the Regulations.Justine 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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