1930072 (Migration) - [2022] AATA 4681

1930072 (Migration) [2022] AATA 4681 (11 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Sean Dong (MARN: 1066448)
CASE NUMBER:  1930072
MEMBER:Justine Clarke
DATE:11 November 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criterion for a Subclass 116 (Carer) visa is met:
·cl 116.221 of Schedule 2 to the Regulations.

Statement made on 11 November 2022 at 11:22am
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – ‘carer’ of the Australian relative – assistance cannot reasonably be provided/obtained – assistance from other relatives – assistance from certain services – 24-hour care – communication in Vietnamese and Chinese language – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15AA; Schedule 2, cl 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 on 21 August 2019 by a delegate of the Minister for Home Affairs 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 review applicant and [sponsor] is an Australian citizen with a medical condition.[1] At the time of this decision, the review applicant is aged 79 years of age.
[1] She has Alzheimer’s Dementia and Osteoarthritis.
It is claimed that the first-listed visa applicant, that is, the primary visa applicant, is the review applicant’s daughter and that the second-listed visa applicant is the primary visa applicant’s son.
On 16 February 2015, the visa applicants applied for the visa. The visa applicants are both nationals of Vietnam. At the time of this decision, the primary visa applicant is [age] years of age, and the second-listed visa applicant is [age] years of age. Hereafter, the primary visa applicant is referred to as the visa applicant and the second-listed visa applicant is referred to as the secondary visa applicant.
At the time of application, 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 this case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 116 (Carer) 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 and the secondary criteria include cl 116.321.
Clause 116.221 is a time of decision criterion which provides: ‘[t]he applicant is a carer of the Australian relative mentioned in clause 116.211’.
Clause 116.211…

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 1930072 (Migration)

Details

AGLC: 1930072 (Migration) [2022] AATA 4681
Case: [2022] AATA 4681
Decision Date: 11 November 2022

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, specifically a Subclass 116 (Carer) visa. The review applicant, who is an Australian citizen usually resident in Australia, claimed that the visa applicant, their child, was their carer. The primary decision maker had not been satisfied that the visa applicant met the criteria for a carer visa. The Administrative Appeals Tribunal was tasked with determining whether the visa applicant qualified as a 'carer' under the Migration Regulations 1994.

The central legal issue before the Tribunal was whether the visa applicant met the requirements of clause 116.221 of Schedule 2 to the Migration Regulations 1994, which defines the criteria for a carer visa. This involved assessing whether the visa applicant was a relative of the Australian resident, whether a medical condition of the Australian resident necessitated ongoing direct assistance, and crucially, whether such assistance could not reasonably be provided by other relatives or obtained from Australian welfare, hospital, nursing, or community services.

The Tribunal considered the evidence presented, including statutory declarations from family members and correspondence from the review applicant's general practitioner, along with photographs. It was satisfied that the review applicant was an Australian citizen usually resident in Australia and that the visa applicant was a relative (child) of the review applicant, meeting the requirements of regulation 1.15AA(1)(a). The Tribunal also noted that the delegate had been satisfied on these points in the primary decision. The Tribunal concluded that the matter should be remitted for reconsideration by the Minister, with a direction that clause 116.221 of Schedule 2 to the Regulations 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 the present case is whether cl 116.221 is met. That is, whether, at the time of this decision, the visa applicant is the review applicant’s carer. 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 review applicant’s representative submitted a number of documents, including: written submissions; statutory declarations from a number of the review applicant’s family members; and correspondence from the review applicant’s general practitioner dated 6 September 2022 and 21 October 2022. A number of photographs were also submitted. The photographs depict the review applicant in a number of settings, including on outings with the visa applicant.Whether the visa applicant is a ‘carer’Is the review applicant an Australian citizen usually resident in Australia? In the primary decision, the delegate was satisfied that the review applicant is an Australian citizen who is usually resident in Australia. Accordingly, this requirement is not in issue. Notwithstanding, the Tribunal records here that it is satisfied, from the evidence before it, that the review applicant is an Australian citizen who is usually resident in Australia.Is the visa applicant a relative of the review applicant? (reg 1.15AA(1)(a)) As has already been stated, in this matter, it is claimed that the visa applicant is the child of the review applicant. 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 the child of a person. In the primary decision, the delegate was satisfied that the review applicant is the mother of the visa applicant. Accordingly, this requirement is not in issue. Notwithstanding, the Tribunal records here that, based on this evidence before it, the Tribunal is satisfied that: the visa applicant is the child of the Australian relative (that is, the review applicant); 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).Does the medical 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), states that: the Australian relative (that is, ‘the 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 two 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 visas 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 criterion for a Subclass 116 (Carer) visa is met:·cl 116.221 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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