2004871 (Migration) - [2022] AATA 3442

2004871 (Migration) [2022] AATA 3442 (5 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2004871
MEMBER:Justine Clarke
DATE:5 October 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 criteria for a Subclass 116 (Carer) visa are met:
·cl 116.221 of Schedule 2 to the Regulations.

Statement made on 05 October 2022 at 4:29pm
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – assistance cannot reasonably be provided by any other specified relative or obtained from service providers – other relatives’ estrangement, family, study, work, health or travel time – review applicant’s age, cultural and dietary preferences, and fear of strangers – cost of nursing home or at-home care – documentary and credible oral evidence – member of family unit – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.12, 1.15AA(1)(e)(i), (ii), Schedule 1, item 1123A, Schedule 2, cls 116.211, 116.221, 116.321
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 10 January 2020 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 [Age 1] years and will soon turn [Age 2].
[1] This claim and evidence are discussed further below.
It is claimed that the first-listed visa applicant, that is, the primary visa applicant, is the review applicant’s daughter.
On 13 May 2016, the visa applicants applied for the visa. The visa applicants are both nationals of India. At the time of this decision, the primary visa applicant is [Age 3] years of age, and the second-listed visa applicant is [Age 4] 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. The delegate was satisfied, from the evidence before her, that the secondary visa applicant is the child of the 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…

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 2004871 (Migration)

Details

AGLC: 2004871 (Migration) [2022] AATA 3442
Case: [2022] AATA 3442
Decision Date: 5 October 2022

CaseChat Overview and Summary

This matter concerned an application for review of a decision regarding a Subclass 116 (Carer) visa. The review applicant, an Australian citizen usually resident in Australia, sought to sponsor the visa applicant, her child, to provide care. The central dispute revolved around whether the visa applicant met the criteria for a carer visa, specifically whether assistance could not reasonably be provided by any other specified relative or obtained from service providers, and whether the visa applicant was indeed a 'carer' as defined by the regulations.

The Tribunal was required to determine if the visa applicant met the requirements of clause 116.221 of the Migration Regulations 1994. This involved assessing whether the visa applicant was the review applicant's carer. Key legal issues included whether the review applicant was an Australian citizen usually resident in Australia, whether the visa applicant was a relative of the review applicant as defined by regulation 1.03, and whether a medical certificate submitted met the requirements of regulations 1.15AA(1)(b) and 1.15AA(2) concerning the nature and duration of the medical condition and the need for assistance.

The Tribunal found that the review applicant was an Australian citizen usually resident in Australia, based on documentary evidence of her citizenship and passport, and the absence of evidence to the contrary. It also found that the visa applicant was a relative, specifically the child, of the review applicant, supported by the review applicant's statement and the visa applicant's passport which listed the review applicant as her mother. The Tribunal noted that the primary decision had not formally assessed this relationship. The provided text, however, did not detail the Tribunal's findings on the medical certificate's compliance with regulation 1.15AA(1)(b) and (2), nor did it state the final orders.

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.Whether the visa applicant is a ‘carer’Is the review applicant an Australian citizen usually resident in Australia? The Department’s file contains a certified copy of the bio-pages of the review applicant’s Australian passport (now expired) and a certified copy of her certificate of Australian citizenship. Based on this evidence, the Tribunal finds that the review applicant is an Australian citizen. With respect to whether she is usually resident in Australia, as has been noted, the review applicant is aged [Age 1] years and will soon turn [Age 2]. She attended the hearing in a wheelchair. There is no evidence to suggest that the review applicant lives anywhere other than Australia. Based on the evidence before it, the Tribunal is satisfied that the review applicant is an Australian citizen 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 stated that ‘the Department has not made a formal assessment of the claimed daughter/mother relationship at this time’. There is no evidence to suggest that the visa applicant is not the child of the review applicant. Rather, the evidence suggests that she is. In the review applicant’s signed statement of 11 March 2020, she stated that her daughter— the visa applicant—does not have a birth/baptism certificate but that her passport evidences her date of birth and relationship to her (the review applicant) and that the matter should be assessed on this evidence. The Tribunal notes that the parties submitted a certified copy of the bio-pages of the visa applicant’s current, valid Indian passport. The bio-pages state that the review applicant is the mother of the visa applicant. Based on this evidence, the Tribunal finds 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

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Ratio Decidendi

Legal Principle Established

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