2114612 (Migration) - [2023] AATA 3586

2114612 (Migration) [2023] AATA 3586 (25 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2114612

MEMBER:Maxina Martellotta
DATE:25 September 2023
PLACE OF DECISION: Perth
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 25 September 2023 at 8:28am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – care reasonably be provided by relatives in Australia – understanding non-verbal communicating – substantial and continuing assistance – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 836.221; rr 1.03, 1.15
CASES
Anveel v MIBP [2013] FCCA 2181
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
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 14 October 2021 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth).
The applicant applied for the visa on 26 November 2018. At that time, Class BU contained three subclasses, being 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. Relevant to this matter, the primary criteria to be met includes cl 836.221(1), which requires that at the time of decision, the primary visa applicant is a carer of an Australian relative of the review applicant. ‘Carer’ is defined in reg 1.15AA.
The delegate refused to grant the visa on the basis that cl 836.221 in Schedule 2 could not be satisfied. The delegate specifically noted that this was because requested information (addressing why the assistance could not reasonably be obtained from welfare, hospital, nursing or community services in Australia, whether the applicant was willing and able to provide the required assistance and why any other relative in Australia could not reasonably provide the assistance) had not been provided by the applicant. The Tribunal notes that the applicant says that they were unaware that additional information had been requested by the Department as they never received the email requesting that information.
The applicant appeared before the Tribunal on 25 July 2023 to give evidence and present…

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 2114612 (Migration)

Details

AGLC: 2114612 (Migration) [2023] AATA 3586
Case: [2023] AATA 3586
Decision Date: 25 September 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 applicant sought to provide care for her granddaughter, who is the daughter of the applicant's son, an Australian permanent resident. The core of the dispute revolved around whether the applicant met the criteria for being a "carer" under the Migration Regulations 1994, particularly concerning the inability of other relatives or service providers to offer the necessary assistance.

The legal issues before the court were whether the assistance required by the care recipient could not reasonably be provided by any other relative of the resident who is an Australian citizen, permanent resident, or eligible New Zealand citizen, and whether such care could not reasonably be obtained from welfare, hospital, nursing, or community services in Australia. These questions directly addressed the requirements of regulation 1.15AA(1)(e)(i) and (ii) of the Migration Regulations.

The court found that the matter should be remitted for reconsideration. While the applicant was established as a relative of the resident and a certificate regarding the care recipient's medical condition and need for assistance was provided, the Tribunal concluded that the assessment of whether the assistance could not reasonably be provided by other relatives or obtained from service providers required further consideration. Consequently, the Tribunal remitted the application for a Subclass 836 (Carer) visa to the Minister for reconsideration of the remaining criteria.

Orders

Orders of the court

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Background

Background to the litigation

The issues in the present case include whether the assistance could not reasonably be provided by any other relative of the resident and also whether the care for the resident could not reasonably be obtained through various service providers (reg 1.15AA(1)(e)(i) and (ii)).Background In this case the application is made on the basis of the applicant providing assistance to her sponsor, [name], to provide care for a member of his family unit, his daughter [Miss A]. For the purpose of the application the delegate found [the sponsor], an Australian permanent resident, to be the sponsor and also the ‘resident’. The care recipient is [Miss A], who was born in [specified year]. She is currently [age] years of age. She lives in the family home. She is the applicant’s granddaughter and the sponsor’s youngest daughter. The care recipient is also an Australian permanent resident (granted in February 2017). The applicant was born in [year]. She is a citizen of the United Kingdom. Her visa application is sponsored by her son, [the sponsor]. He acquired Australian permanent residency in February 2017. [The sponsor’s] oral evidence and documents provided to the Department and the Tribunal confirm and the Tribunal finds that [the sponsor] lives and works in Australia. Whether the applicant is a carer Clause 836.221 requires that, at the time of decision, the applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in reg 1.15AA of the Regulations, which is set out in the attachment to this Decision.Applicant is a relative of the resident – reg 1.15AA(1)(a) Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (or the resident), within the meaning of reg 1.03 i.e., a ‘close relative’ or other specified relation. In the present case, the Australian relative is identified as the applicant’s son ([the sponsor]). This relationship is confirmed by documents, including birth certificates, provided to the Department and to the Tribunal. The Tribunal is also satisfied from documents provided to the Department that [the sponsor] is an Australian permanent resident usually resident in Australia. As the applicant is the mother of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of reg 1.03 and meets the requirements of reg 1.15AA(1)(a).Certification – reg 1.15AA(1)(b) Regulation 1.15AA(1)(b) requires that a certificate, which meets the requirements of reg 1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; the impairment has a rating (under the impairment tables) that is specified in the certificate; and 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.

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 issues in the present case include whether the assistance could not reasonably be provided by any other relative of the resident and also whether the care for the resident could not reasonably be obtained through various service providers (reg 1.15AA(1)(e)(i) and (ii)).Background In this case the application is made on the basis of the applicant providing assistance to her sponsor, [name], to provide care for a member of his family unit, his daughter [Miss A]. For the purpose of the application the delegate found [the sponsor], an Australian permanent resident, to be the sponsor and also the ‘resident’. The care recipient is [Miss A], who was born in [specified year]. She is currently [age] years of age. She lives in the family home. She is the applicant’s granddaughter and the sponsor’s youngest daughter. The care recipient is also an Australian permanent resident (granted in February 2017). The applicant was born in [year]. She is a citizen of the United Kingdom. Her visa application is sponsored by her son, [the sponsor]. He acquired Australian permanent residency in February 2017. [The sponsor’s] oral evidence and documents provided to the Department and the Tribunal confirm and the Tribunal finds that [the sponsor] lives and works in Australia. Whether the applicant is a carer Clause 836.221 requires that, at the time of decision, the applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in reg 1.15AA of the Regulations, which is set out in the attachment to this Decision.Applicant is a relative of the resident – reg 1.15AA(1)(a) Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (or the resident), within the meaning of reg 1.03 i.e., a ‘close relative’ or other specified relation. In the present case, the Australian relative is identified as the applicant’s son ([the sponsor]). This relationship is confirmed by documents, including birth certificates, provided to the Department and to the Tribunal. The Tribunal is also satisfied from documents provided to the Department that [the sponsor] is an Australian permanent resident usually resident in Australia. As the applicant is the mother of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of reg 1.03 and meets the requirements of reg 1.15AA(1)(a).Certification – reg 1.15AA(1)(b) Regulation 1.15AA(1)(b) requires that a certificate, which meets the requirements of reg 1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; the impairment has a rating (under the impairment tables) that is specified in the certificate; and 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 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.Maxina MartellottaMemberATTACHMENTMigration 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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