1934787 (Migration) - [2024] AATA 151

1934787 (Migration) [2024] AATA 151 (22 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Sang Ik Moon
CASE NUMBER: 1934787

MEMBER:Justine Clarke
DATE:22 January 2024
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 the grant of a Subclass 116 (Carer) visa is met:
·cl 116.221 of Schedule 2 to the Regulations.

Statement made on 22 January 2024 at 4:42pm
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – carer of an Australian relative – assistance reasonably available from welfare, hospital, nursing or community services – updated medical information – no other relatives in Australia – cultural and language service barriers – substantial and continuing assistance – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, Schedule 2, cls 116.211, 116.221, 116.321; rr 1.03, 1.15
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 7 October 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, [named], is an Australian citizen with a medical condition. At the time of this decision, he is [age] years of age.
It is claimed that the first-listed visa applicant, that is, the primary visa applicant, is the review applicant’s son. It is claimed that the second-listed visa applicant is the primary visa applicant’s wife and that the third-listed, fourth and fifth-listed visa applicants are, respectively, the primary visa applicant’s [children].
On 30 June 2015, the visa applicants applied for the visas. They are all nationals of Vietnam. At the time of this decision, the primary visa applicant is [age] years of age; the second-listed visa applicant is [age]; the third-listed visa applicant is [age]; the fourth-listed visa applicant is [age], and the fifth-listed visa applicant is [age].
At the time that the visa applicants applied for the visas, 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 visa applicants are seeking to satisfy the criteria for the grant of Subclass 116 visas. 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 to be met include cl 116.321.
Clause 116.221 is a time of decision criterion…

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 1934787 (Migration)

Details

AGLC: 1934787 (Migration) [2024] AATA 151
Case: [2024] AATA 151
Decision Date: 22 January 2024

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, specifically a Subclass 116 (Carer) visa. The primary visa applicant sought to demonstrate that he was a carer for his Australian citizen father, who was usually resident in Australia. The central dispute revolved around whether the primary applicant met the criteria for being a "carer" as defined by the Migration Regulations 1994, particularly in relation to the need for assistance and the availability of alternative support. The decision was made by Justine Clarke.

The legal issues before the Tribunal were whether the primary visa applicant met the requirements of clause 116.221 of Schedule 2 to the Regulations, which defines a carer. This involved determining if the applicant was a relative of the Australian resident, if a valid medical certificate established a qualifying medical condition and need for assistance, and crucially, whether such assistance could reasonably be provided by other relatives in Australia or obtained from Australian welfare, hospital, nursing, or community services. The Tribunal also had to consider if the applicant was willing and able to provide substantial and continuing assistance.

The Tribunal found that the primary visa applicant was indeed a relative of the Australian resident and that the resident was an Australian citizen usually resident in Australia. While a medical certificate dated 31 March 2015 was considered, the Tribunal did not make a definitive finding on whether all the requirements of regulation 1.15AA(1)(b) and (2) were met. However, the Tribunal concluded that the primary applicant was a carer of the Australian relative, implying that the criteria under cl 116.221 were satisfied. The Tribunal noted that updated medical information, the absence of other relatives in Australia, and cultural and language barriers were relevant considerations in assessing the need for substantial and continuing assistance.

Consequently, the Tribunal remitted the applications for the Other Family (Migrant) (Class BO) visas for reconsideration by the Minister. The remittal was made with the direction that the criterion under cl 116.221 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 the present case is whether, at the time of this decision, the primary visa applicant ([name]) meets cl 116.221. That is, whether he is a carer of the Australian relative mentioned in cl 116.211.Whether the primary visa applicant is a ‘carer’ of the Australian relativeIs 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 primary visa applicant a relative of the resident? As has already been mentioned, in this matter, it is claimed that the resident ([name], the review applicant) is the father of the primary visa applicant ([name]). 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 father of the primary visa applicant. Accordingly, the requirement is not in issue. Notwithstanding, the Tribunal records here that, based on the evidence before it, the Tribunal is satisfied that: the primary visa applicant is the child of the Australian relative (that is, the review applicant); the primary 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 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. 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. In this case, the most recent certificate issued pursuant to reg 1.15AA(1)(b) and reg 1.15AA(2) is the certificate dated 31 March 2015.

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 the Subclass 116 visas.DECISION The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criterion for the grant of 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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