2309535 (Migration) - [2024] AATA 544

2309535 (Migration) [2024] AATA 544 (15 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr David Godwin
CASE NUMBER:  2309535
MEMBER:Glynis Bartley
DATE:15 January 2024
PLACE OF DECISION:  Sydney
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.836.212 of Schedule 2 to the Regulations

·cl.836.221 of Schedule 2 to the Regulations

Statement made on 15 January 2024 at 3:47pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Federal Circuit and Family Court remittal – care cannot reasonably provided by specified relatives in Australia – medical reports – impairment rating – physical and mental health conditions needing assistance – substantial evidence, statutory declarations and supporting statements – specified relatives’ health, work and family caring responsibilities – conflict within family – assistance from service providers – approved for higher level home care package – religious requirements for food – applicant’s long-term and ongoing care – sincere evidence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA(1)(e), Schedule 2, cls 836.111, 836.212, 836.221
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
Perera v MIMIA [2005] FCA 1120
Rafiz v MIAC [2004] FCA 564
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
ISSUE

The issue in this case is whether [the applicant] is a ‘carer’ of [his mother and sponsor].
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 9 July 2018. At that time, Class BU contained three 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 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. Relevantly to this matter, the primary criteria to be met include cl.836.212 and cl.836.221.
The delegate refused to grant the visa on 15 July 2020 on the basis that cl.836.221 was not satisfied. The delegate concluded that the applicant did not meet the definition of ‘carer’ in relation to his mother. Specifically, the applicant had not satisfactorily demonstrated that the assistance required by the sponsor could not reasonably be provided by…

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 2309535 (Migration)

Details

AGLC: 2309535 (Migration) [2024] AATA 544
Case: [2024] AATA 544
Decision Date: 15 January 2024

CaseChat Overview and Summary

The Federal Circuit and Family Court considered an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant sought to migrate to Australia to care for his mother, an Australian citizen. The dispute centred on whether the applicant met the criteria for being a "carer" under the Migration Regulations 1994, particularly concerning the inability of other Australian relatives or services to provide the necessary care.

The court was required to determine whether the applicant was a "carer" as defined by regulation 1.15AA of the Migration Regulations 1994. This involved assessing whether the sponsor (the applicant's mother) had a medical condition causing a physical, intellectual, or sensory impairment requiring direct assistance with daily life, and whether this need for assistance was ongoing. Crucially, the court had to consider whether such assistance could reasonably be provided by other relatives in Australia or obtained from Australian welfare, hospital, nursing, or community services.

The Tribunal found that the applicant had claimed to be the carer of an Australian relative, satisfying clause 836.212 of the Regulations. Furthermore, the Tribunal concluded that the applicant was a carer under clause 836.221, having been provided with substantially more evidence than previous decision-makers. This evidence included statutory declarations, supporting statements from relatives and service providers, and medical reports. The Tribunal accepted assurances that the applicant was not isolating his mother and that he understood the importance of her contact with other family members. Given the extensive evidence presented, including details about the sponsor's health, the limitations of other relatives, and the specific care needs, the Tribunal determined that the matter should be remitted for reconsideration. The Tribunal remitted the application for the visa to the Minister with a direction that clauses 836.212 and 836.221 of Schedule 2 to the Regulations were met.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.BACKGROUND The applicant is a [Age]-year-old citizen of Iraq. His wife and [children] (aged [Ages]) are [Country] citizens and live in [Country]. The applicant travelled to Australia in 2017. He was previously a resident of [Country], however his residency expired in October 2022, five years after he left. The applicant was employed as [an Occupation] in Bagdad. According to the application, he has been unemployed since he left Iraq in 2010. The sponsor is [an Age]-year-old Australian citizen by grant. She migrated to Australia from Iraq with her husband in 2009. The sponsor’s husband died in 2017. In addition to the applicant, the sponsor has a son, two daughters and a number of grandchildren living in Australia. She has [other children] living overseas. CONSIDERATION OF CLAIMS AND EVIDENCE Prior to the hearing the applicant’s representative provided additional documents to the Tribunal, including but not limited to the following: statutory declarations and statements by the applicant and the sponsor’s relatives in Australia, statements by the sponsor’s home care provider, medical reports regarding the sponsor and her Australian relatives, and statements by various priests and others associated with the sponsor’s religion. In making my decision, I have considered the documents in the Department and Tribunal files, as well as the oral evidence at the hearing. I had the benefit of being provided with substantially more evidence than the delegate and the previous Tribunal. The applicant’s oral evidence was generally consistent with the documents provided to support the application and the oral evidence from his mother. I had some concerns that the applicant may be socially isolating his mother from other family members, possibly due to his desire to protect her from being reinfected with COVID-19 and/or conflict within the family. I accepted the assurances from the applicant’s representative that this was not the case, and that the applicant understands his mother’s mental health and wellbeing is promoted by having contact with all of her children and grandchildren. Whether the applicant has claimed to be the ‘carer’ Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the carer of his mother. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations. There is a copy of the carer visa application made by the applicant and his mother in the Department file. In the application, the applicant claims to be the carer of his mother who is the sponsor. The sponsor is an Australian citizen, as evidenced by a copy of her passport provided.

Evidence

Evidence Before The Court

The sponsor is [an Age]-year-old Australian citizen by grant. She migrated to Australia from Iraq with her husband in 2009. The sponsor’s husband died in 2017. In addition to the applicant, the sponsor has a son, two daughters and a number of grandchildren living in Australia. She has [other children] living overseas. CONSIDERATION OF CLAIMS AND EVIDENCE Prior to the hearing the applicant’s representative provided additional documents to the Tribunal, including but not limited to the following: statutory declarations and statements by the applicant and the sponsor’s relatives in Australia, statements by the sponsor’s home care provider, medical reports regarding the sponsor and her Australian relatives, and statements by various priests and others associated with the sponsor’s religion. In making my decision, I have considered the documents in the Department and Tribunal files, as well as the oral evidence at the hearing. I had the benefit of being provided with substantially more evidence than the delegate and the previous Tribunal. The applicant’s oral evidence was generally consistent with the documents provided to support the application and the oral evidence from his mother. I had some concerns that the applicant may be socially isolating his mother from other family members, possibly due to his desire to protect her from being reinfected with COVID-19 and/or conflict within the family. I accepted the assurances from the applicant’s representative that this was not the case, and that the applicant understands his mother’s mental health and wellbeing is promoted by having contact with all of her children and grandchildren. Whether the applicant has claimed to be the ‘carer’ Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the carer of his mother. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations. There is a copy of the carer visa application made by the applicant and his mother in the Department file. In the application, the applicant claims to be the carer of his mother who is the sponsor. The sponsor is an Australian citizen, as evidenced by a copy of her passport provided. Therefore, at the time of application the applicant claimed to be the carer of an Australian relative and satisfies the requirements of cl.836.212. 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.Whether the applicant is a relative of the resident – reg 1.15AA(1)(a)

Decision

Reasons for decision

The appropriate course is therefore 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.836.212 of Schedule 2 to the Regulations·cl.836.221 of Schedule 2 to the RegulationsGlynis BartleyMemberATTACHMENTMigration 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

Full text does not contain this section.