2213297 (Migration) - [2023] AATA 2814

2213297 (Migration) [2023] AATA 2814 (17 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Ms Jennifer Nguyen (MARN: 2117717)
CASE NUMBER: 2213297

MEMBER:David Barker
DATE:17 August 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas 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 17 August 2023 at 5:37pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – care could reasonably be provided by relatives and services in Australia – attempts to obtain care from agencies – functional rapport with the sponsor – health and support needs of family members – limited capacity of care services – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Amendment Regulations 2009 (No. 13) (SLI 2009, No.289) Schedule 3
Migration Regulations 1994, Schedule 2, cls 836.111, 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
Jajo v MIBP [2013] FCCA 1554
Lin v MIMIA [2004] FCA 606
Perera v MIMIA [2005] FCA 1120
Sefesi v MIBP [2016] FCCA 975
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 6 September 2022 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visa on 5 June 2019. At that time, Class BU contained 3 subclasses, 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 applicants are 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. Relevantly to this matter, the primary criteria to be met include cl 836.221.
The delegate refused to grant the visas on the basis that cl 836.221 was not met because the delegate was not satisfied the requirements of reg 1.15AA(1)(e) were met, as they were not satisfied the evidence demonstrated that the assistance required by the first named visa applicant’s mother cannot reasonably be provided by any other relative in Australia, or obtained from welfare, hospital, nursing or community services in Australia.
The applicants appeared before the Tribunal on 28 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Brother A] and [Sister A],…

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 2213297 (Migration)

Details

AGLC: 2213297 (Migration) [2023] AATA 2814
Case: [2023] AATA 2814
Decision Date: 17 August 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Subclass 836 (Carer) visa. The primary applicant, a Vietnamese national, sought to migrate to Australia with her husband and two daughters to care for her Australian citizen mother, who had functional difficulties due to medical conditions. The Department had refused the visa application, and the applicant sought review of this decision.

The Tribunal was required to determine whether the applicant had satisfied the criteria under regulation 1.15AA of the Migration Regulations 1994, specifically whether the required assistance for the sponsor could not reasonably be obtained from other relatives in Australia or from Australian welfare, hospital, nursing, or community services. The Tribunal also needed to consider if the applicant was willing and able to provide substantial and continuing assistance.

The Tribunal reasoned that while the applicant had provided evidence of her mother's medical conditions and her own willingness to provide care, the evidence regarding the inability to obtain assistance from other sources was not sufficiently established. The applicant had indicated that her siblings and other relatives were either unwilling, uninterested, or constrained by their own commitments. However, the Tribunal noted that the Department had requested more detailed statutory declarations from these relatives, which were not fully provided or adequately addressed in the applicant's submissions. Furthermore, the Tribunal considered the limited engagement with Australian care services, noting that the available funding from the mother's home care package was not fully utilised, and the applicant's explanation for this was not entirely clear.

Consequently, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the criteria under clause 836.221 of Schedule 2 to the Regulations be reconsidered, including in respect of the secondary applicants.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.BACKGROUND The applicant, [named], is a Vietnamese national born in [specified year]. She is married to her spouse, [Husband A], being the second named visa applicant. They have 2 daughters, [names and years of birth], who are respectively the third and fourth named visa applicants. [Husband A] and his daughters (the secondary applicants) have applied for the visa on the basis of their membership of the family unit of the primary visa applicant [named] (the applicant). The application is sponsored by the applicant’s mother, [the sponsor], an Australian citizen residing in Australia who is also the person who requires care because of functional difficulties resulting from medical conditions affecting her. The applicant has [number] siblings in Australia, including [siblings named]. On 17 September 2021, the applicant was requested to provide evidence to demonstrate that the assistance required by her mother could not reasonably be obtained from welfare, hospital, nursing, residential care facilities or community services in Australia. The Department’s request also stipulated that all options for assistance including in-home and residential care should be investigated to determine whether the assistance required can be sourced from services in Australia. On 18 October 2021, the Department requested further evidence from the applicant addressing why the relatives of her mother could not reasonably provide assistance to her. The Department’s request specifically requested a separate statutory declaration with supporting documents from the relatives of the applicant’s mother including those whose identity had not been disclosed in the application. It was requested that the statutory declarations should include: Whether the relative could provide any of the required assistance to the applicant’s mother; Whether the relative had previously provided any of the required assistance to the applicant’s mother; and Why the relative cannot provide all or any part of the required assistance to the applicant’s mother. The applicant was requested by the Department to provide a declaration listing all the relatives of the applicant’s mother in Australia. The applicant was advised that relatives of the applicant’s mother in Australia included relatives who had turned 18 years old and who were an Australian citizen, Australian permanent resident or an eligible New Zealand citizen. It was also explained that relatives would include partner/spouse, child, parent, brother, sister, stepchild, stepparent, stepsister or stepbrother, grandparent, grandchild, aunt, uncle, niece, nephew, step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew of the applicant’s mother. The applicant provided further evidence to the Department which included a declaration in response on 12 November 2021, as set out in the delegate’s decision record. It was declared that the applicant’s mother has [number] adult relatives in Australia (spouse, [number] children, [number] grandchildren, [number] siblings, [number] nieces/nephews). [Number] ‘in-laws’ were also declared, which the delegate noted did not need to be scrutinised when assessing if the requirements of reg 1.15AA(e)(i) are met, as ‘in-laws’ do not meet the definition of ‘relative’ in reg 1.03.

Evidence

Evidence Before The Court

On 6 September 2022 the delegate refused the application on the basis that the delegate could not be satisfied that either reg 1.15AA(1)(e)(i) or reg 1.15AA(1)(e)(ii) was met. Evidence before the Tribunal The applicant applied for review of the decision to the Tribunal on 9 September 2022. On 23 May 2023 the Tribunal wrote to the applicant, inviting her to a hearing on 28 June 2023. Prior to and after the hearing the Tribunal received submissions and documentary evidence in support of the review application including:·representative submissions, dated 17 June 2023, 22 June 2023, 29 June 2023 and 3 July 2023·Bupa carer visa assessment report and certificate·Aged care assessment report ·Aged care and home care service contact·Doctor reports·List of the applicant’s mother’s family members in Australia·Photographs of daily activity of the applicant’s mother·Timetable of routine daily care·Supporting statement from the applicant’s daughters (secondary applicants)·Statutory declaration from [Sister B] ·Statutory declaration from [Brother A]·Copies of emails enquiring as to availability of aged care and home care service providers.Tribunal hearingEvidence from [name] (the applicant) The applicant confirmed that she and the secondary applicants reside in the same residential premises as her mother and father and that she remains the primary provider of care required by her mother. The applicant indicated that a home care service, [Care Service 1], has been engaged from March 2023 to provide 7 hours per week support to her mother, which comprises assistance with cleaning. Further to this, from June 2023 the assistance with cleaning was reduced to 4 hours per week to allow the provision of a massage service to her mother one hour per week. The applicant indicated that the services provided through [Care Service 1] utilise all of the available funding through the Level 3 home care package her mother has been approved to receive. The applicant explained that the Level 3 package was approved in or around July 2019, but as their enquiries indicated that would only provide for around 7 hours per week support and her mother requires support on a 24-hour, 7-day per week basis the family had misunderstood what was available through the homecare package and thought that they would be required to themselves fund the remaining hours per week of support their mother requires. As a consequence the family decided to not use the funding available through the Level 3 package and instead relied on the support the applicant was willing to provide to both her mother and father. The applicant explained that prior to a decline in her father’s health, he was providing most of the day-to-day support that her mother had required since coming to Australia. The applicant gave evidence that before her parents came to Australia they resided with her and the secondary applicants in Vietnam and that she had looked after her parents for many years. The applicant gave evidence that she was comfortable with the role of looking after her parents when they lived together in Vietnam, as they had in turn cared for her and her siblings when they were children and that it is a cultural expectation that children will reciprocate required care and support as parents age and decline in their health. The applicant indicated she willingly took on the role of providing assistance required by her mother here in Australia and understands that her siblings and other relatives in Australia are either uninterested, unwilling or constrained through their own familial responsibilities and commitments to provide the assistance her mother requires.

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 836 visa, including in respect of the secondary applicants.DECISION The Tribunal remits the applications for Other Family (Residence) (Class BU) visas 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.David BarkerMemberATTACHMENTMigration 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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