2201559 (Migration) [2022] AATA 3771 (14 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Sarah Akanda (MARN: 5512541)
CASE NUMBER: 2201559
MEMBER:Jane Marquard
DATE:14 September 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:
·cl 116.211 and 116.221 of Schedule 2 to the Regulations
Statement made on 14 September 2022 at 8:49am
CATCHWORDS
MIGRATION –Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – visa applicant is the sister of the Australian relative – Suicidal ideation and attempt – ongoing medical and mental health issues – no mainstream organisations that can provide on-going emotional support and motivation outside business hours – certificate provided meets the requirements of r.1.15AA(2) – assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia – decision under review remitted
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 22 November 2021 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) (Subclass 116) Carer visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND TO THE REVIEW AND SUMMARY OF FINDINGS
The visa applicant, [Ms A], is a national of Peru. She applied for the visa on 12 June 2017, claiming to be the carer of her sister, [Ms B], the review applicant. The review applicant was represented in relation to the review by the Immigration Advice and Rights Centre.
The delegate refused to grant the visa on 22 November 2021 on the basis that cl 116.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) was not met because evidence had not been provided that [Ms B] and [Ms A] were sisters. Furthermore, the delegate was not satisfied that documentary evidence had been provided to demonstrate that the assistance required for [Ms B] could not reasonably be provided by any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia.
New evidence was submitted to the Tribunal. The Tribunal was able to determine the matter on the basis of the documentary evidence, pursuant to s 360(2)(a)f the Act, and therefore…
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.
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AGLC
2201559 (Migration) [2022] AATA 3771
Case
[2022] AATA 3771
Decision Date
CaseChat Overview and Summary
This matter concerned an application for review of a delegate's decision to refuse a Subclass 116 (Carer) visa. The visa applicant, Ms A, a national of Peru, sought to migrate to Australia to care for her sister, Ms B, who is an Australian resident. The delegate had refused the visa on the grounds that Ms A and Ms B had not established they were sisters, and that the required assistance for Ms B could not reasonably be provided by another relative in Australia or obtained from Australian welfare, hospital, nursing, or community services.
The Tribunal was required to determine whether the visa applicant met the criteria for a Subclass 116 (Carer) visa, specifically whether Ms A was a relative of Ms B, and whether the necessary assistance for Ms B could not reasonably be provided by another relative or obtained from Australian support services. The Tribunal also needed to consider if Ms B had a medical condition causing significant impairment requiring ongoing direct assistance for at least two years, and if Ms A was willing and able to provide such assistance.
The Tribunal found that the evidence submitted was sufficient to establish that Ms A and Ms B were sisters and that Ms B required ongoing direct assistance for at least two years due to her medical condition, which included suicidal ideation and attempts, and other mental health issues. Crucially, the Tribunal was satisfied, based on extensive enquiries detailed in a statutory declaration, that the required assistance could not reasonably be provided by another relative in Australia or obtained from Australian welfare, hospital, nursing, or community services, as these organisations were unable to provide the necessary level of ongoing support. Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the criteria relating to the sister relationship and the inability to obtain assistance from other sources were met.
Orders
Orders of the court
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Background
Background to the litigation
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 November 2021 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) (Subclass 116) Carer visa under s 65 of the Migration Act 1958 (Cth) (the Act).BACKGROUND TO THE REVIEW AND SUMMARY OF FINDINGS The visa applicant, [Ms A], is a national of Peru. She applied for the visa on 12 June 2017, claiming to be the carer of her sister, [Ms B], the review applicant. The review applicant was represented in relation to the review by the Immigration Advice and Rights Centre. The delegate refused to grant the visa on 22 November 2021 on the basis that cl 116.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) was not met because evidence had not been provided that [Ms B] and [Ms A] were sisters. Furthermore, the delegate was not satisfied that documentary evidence had been provided to demonstrate that the assistance required for [Ms B] could not reasonably be provided by any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia. New evidence was submitted to the Tribunal. The Tribunal was able to determine the matter on the basis of the documentary evidence, pursuant to s 360(2)(a)f the Act, and therefore no hearing was held. The Tribunal has concluded that the matter should be remitted for reconsideration. The Tribunal is satisfied that the review applicant needs and will continue to need for two years, direct assistance in attending to the practical aspects of daily life. The Tribunal is satisfied that the visa applicant claims to be the carer of the review applicant and is willing and able to provide the assistance the review applicant needs. The Tribunal is satisfied that the assistance cannot reasonably be provided by another relative who is an Australian citizen or permanent resident or obtained from welfare, hospital, nursing or community services in Australia. The reasons for this follow. RELEVANT LAW AND QUESTIONS FOR DETERMINATION 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 the present case, the visa applicant is seeking to satisfy the criteria for the grant of a Subclass 116 (Carer) visa. The purpose of the Carer visa is to allow an Australian citizen, permanent resident or eligible New Zealand citizen, with a medical condition causing a significant level of impairment (or who has a family unit member with such an impairment), to sponsor an overseas relative to Australia to provide assistance of the kind required for the Australian relative (or their family unit member). 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 which requires that the visa applicant is a carer of the Australian relative mentioned in cl 116.211 of Schedule 2 to the Regulations.
Evidence
Evidence Before The Court
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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 116 visa.DECISION The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:·Cl 116.211 and 116.221 of Schedule 2 to the Regulations;Jane MarquardMemberATTACHMENT AMigration 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.ATTACHMENT BCommonwealth of Australia STATUTORY DECLARATIONStatutory Declarations Act 1959I, [named] of [address] SYDNEY in the State of NEW SOUTH WALES,LEGAL ASSISTANT, make the following declaration under the Statutory Declarations Act1959:1.I make this statement in my capacity as a volunteer legal assistant at [Organisation 8].2. Between the 2August 2022 and the 9 August 2022, I made the following enquiries with regards to availability of care for [Ms B], outlining her medical condition and specific care needs.3. On the 2 August 2022, I emailed [Organisation 9], and as of 30 August2022 I have not yet received a response in relation to my enquiry.4. On the 2 August 2022, I emailed [Organisation 1] and received a response on the same day from [named] (Client Liaison Officer). She advised that they were unable to provide the requisite amount of care.5.On the 2 August 2022, I emailed [named] Disability Services and received a response from [named] (Customer Service) on the same day requesting further NDIS information in order to lodge an enquiry. On 9 August 20221 provided this information via email, and as of 30 August 2022 I have not yet received a response.6.On the 2 August 2022, I emailed Catholic Care; Diocese of [city]. On 12 August 2022 I received a response from [named] (Intake Officer) advising that they were unable to provide 24 hour care for [Ms B].7. On the 2 August 2022, I emailed [Organisation 10] and as of the 30 August 2022 I have not received a response.8.On the 2 August 2022, I emailed [Organisation 11]. On 3 August 2022 I received a response from [named] (Customer Care Manager) advising that they are at full capacity for NDIS services and would have to reject the referral.9.On the 2 August 2022, I emailed Anglicare. As of 30 August 2022, I have not yet received a response.10.On the 2 August 2022, I emailed [Organisation 12]. On 12 August 2022 I received a response from [Ms H] (Intake Officer) asking to be contacted via phone to discuss the matter further. On 30 August 2022 I called [Ms H]. She advised me that her organisation can only provide care if the NDIS funding is sufficient. She mentioned that the costs would roughly be $60 an hour for weekdays, and that it would be unlikely that the funding would be able to cover for the 24-hour care needed by [Ms B]. She also stated her organisation would be unlikely to be able to provide the required care due to the lack in funding and staff availability.11.On the 2 August 2022, I filled out an online enquiry form with [Organisation 13] as I was not able to find an email address to contact them directly. As of 30 August 2022, I have not yet received a response.12.On the 2 August 2022, I emailed [Organisation 14]. On 3 August 2022 I received a response from [named] (Senior Practice Leader) advising, that [Ms B] would be unsuitable for their service.13.On the 9 August 2022, I emailed [Organisation 15]. On the 18 August 2022, I received a response from [Ms I] (Child, Youth and Family Support) referring us to [Organisation 16] and [Organisation 14]. [Ms I] did not indicate whether her service can assist [Ms B].14.On the 9 August 2022, I emailed KinCare. On the same day I received a response from [named] (CustomerService) advisingthattheywould not be taking any new clients.15.On the 9 August 2022, I emailed [Organisation 17]. On the same day I received a response from [named] (CEO) advising they were unable to assist [Ms B].16.On the 9 August 2022, I emailed [Organisation 18]. As of 30 August 2022, I have not yet received a response.17.On the 9 August 2022, I emailed [Organisation 19]. On the same day I received a response from [named] (Administration) requesting an in-person meeting to further discuss the needs of [Ms B], and I responded to this email requesting a phone call to discuss instead of an in person meeting. On 30August 2022, I called following up on the earlier email but I received no response.18.On the 9 August 2022, I emailed CareSouth. As of 30 August 2022, I have yet to receive a response.19.On the 9 August 2022, I emailed St Vincent De Paul. As of 30 August 2022, I have yet to receive a response.