2425725 (Migration) - [2024] ARTA 860

2425725 (MIGRATION) [2024] ARTA 860 (3 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2425725

Tribunal:Senior Member M Bourke
Place:Melbourne
Date: 3 December 2024
Decision:The Tribunal sets aside the decisions under review and remits the applications for an Other Family (Migrant) (Class BO) visa for reconsideration, in accordance with the order that the first named visa applicant meets the following criteria for a Subclass 116 (Carer) visa:
- cl.116.211, cl.116.212 and cl.116.221 of Schedule 2 to the Regulations; and
the Tribunal sets aside the decisions under review and remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, in accordance with the order that the second, third, fourth and fifth named visa applicants meet the following criteria for a Subclass 116 (Carer) visa:
- cl.116.311 of Schedule 2 to the Regulations.

Statement made on 03 December 2024 at 10:28am
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – carer of an Australian relative – member of the family unit – visa applicant’s understanding of multiple sclerosis – employment experience as a nurse or carer – family commitments and health requirements of Australian relatives – services obtained through NDIS – decision under review remitted
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 106
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cls 116.211, 116.212, 116.221, 116.311, 116.321; rr 1.03, 1.12, 1.15, 2.08
CASES
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 an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 July 2024 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) Subclass 116 visa under s.65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visa on 8 September 2021. At that time, 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 applicants are seeking to satisfy the criteria for the grant of a Subclass 116 visa. Relevantly to this case, the primary criteria to be met includes cl.116.221, which require that the primary visa applicant meets the definition of carer as set out in reg 1.15AA.
The delegate refused to grant the visa on the basis that the primary visa applicant did not meet the requirements in reg 1.15AA(1)(e) and (f) and therefore did not meet the definition of carer for the purposes of cl.116.221.
The Tribunal has considered the documents, statements, information and submissions provided to it by the review applicant. The Tribunal may…

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 2425725 (Migration)

Details

AGLC: 2425725 (Migration) [2024] ARTA 860
Case: [2024] ARTA 860
Decision Date: 3 December 2024

CaseChat Overview and Summary

The case before the court involved an applicant seeking a Subclass 116 (Carer) visa to join his Australian relatives. The applicant claimed to be a carer for his Australian relatives, citing his own health issues and his role in providing care for his father and stepmother who suffer from various chronic health conditions. The Department of Home Affairs had previously rejected the application. The applicant appealed to the Tribunal, which was tasked with reviewing the decision and determining whether the applicant's claims and evidence were sufficient to warrant a reconsideration of the visa application.

The central legal issues in this case were whether the applicant met the requirements for a Subclass 116 visa, specifically whether he was a carer of an Australian relative, and whether the secondary visa applicants were members of the family unit of the primary visa applicant and had made combined applications with him. The Tribunal had to assess the completeness and credibility of the evidence provided by the applicant, including his health status, employment history, and family commitments. The Tribunal also needed to consider whether the family commitments and health requirements of the Australian relatives were such that they could not be met without the applicant's care.

The Tribunal found that the applicant did not provide a complete list of his Australian relatives and had submitted incomplete information and unsigned letters to the Department. However, the Tribunal accepted that the applicant was a carer for his father and stepmother, who suffer from severe health conditions that necessitate his care. The Tribunal was satisfied that the applicant's health issues, including his diagnosis of Multiple Sclerosis, and his role in providing care for his relatives met the requirements of the Subclass 116 visa. Furthermore, the Tribunal found that the secondary visa applicants were members of the family unit of the primary visa applicant and had made combined applications with him, thereby satisfying the secondary visa requirements.

The Tribunal concluded that the decision under review should be set aside and the matter remitted back to the Department for reconsideration. The Tribunal found that the primary visa applicant met the requirements for a Subclass 116 visa and that the secondary visa applicants met the criteria for being members of the family unit and making combined applications. The Tribunal's decision highlighted the importance of providing complete and credible evidence to support visa applications and underscored the need for the Department to carefully consider the carer's role and health status in visa decisions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The following are the written reasons that the Tribunal has concluded the decision under review is set aside and the matter should be remitted back to the Department for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCEInformation available to the Tribunal The Tribunal has considered the Department’s decision record dated 19 July 2024. The Tribunal is satisfied that the review applicant did not provide the Department with a complete list of his Australian relatives. The Tribunal is satisfied that the review applicant provided unsigned letters and incomplete information to the Department. The Tribunal is satisfied that a Carer Visa Assessment Certificate dated 15 April 2021 confirms the review applicant was born in [specified year], and has been diagnosed with Multiple Sclerosis, and has formal services provided through NDIS on a daily basis to assist the review applicant with going to the gym or attending appointments. The Tribunal is satisfied the review applicant receives a disability support pension, and has appointments with a general practitioner and a neurologist. The Tribunal is satisfied that the review applicant requires assistance with mobility supervision of his medication and for his personal safety and requires assistance with transportation. The Tribunal is satisfied that the review applicant’s condition is impacting his physical and mental health. The Tribunal is satisfied that the review applicant currently lives in a room provided by his brother, [Brother A]. The Tribunal is satisfied that the review applicant was assessed as having a permanent medical condition and was given an impairment rating of 30. The Tribunal received a current medical report from the review applicant’s neurologist dated 13 June 2024. The neurologist confirmed he spoke to the review applicant in a telephone consultation at the neuro-immunology clinic in May 2024 and confirmed the review applicant is well with no new symptoms or relapse or functional decline. The report confirmed the review applicant had missed previous clinic appointments and an appointment for his prescribed infusion. The review applicant provided Tribunal with a list of his family members who resided in Australia and in Lebanon. The Tribunal is satisfied that the review applicant has [specified relatives] who reside in Lebanon, and [specified relatives] who are deceased. The Tribunal has considered the statutory declarations and medical reports in relation to the review applicant’s father and stepmother, both of whom are Australian citizens, and is satisfied that the review applicant’s father is a pensioner who suffers from trauma, personality disorder, severe depression and other chronic disorders, and his current wife also suffers back pain and is on medication for depression and anxiety. The Tribunal is satisfied that the review applicant’s father and stepmother also have two school-age [children] aged [ages] years, and are unable to care for the review applicant due to their health conditions and family commitments.

Decision

Reasons for decision

Conclusion: – given the above findings the Tribunal concludes that at the time of decision the primary visa applicant is a carer of the Australian relative within the meaning of reg. 1.15AA(1), and therefore satisfies the requirements of cl.116.221.Secondary visa requirements Clause 116.311 requires that at the time of application secondary visa applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in subdivisions 116.21. Based on the application form, the Tribunal is satisfied that the second, third and fourth visa applicants made a combined application with the primary visa applicant. The fifth named visa applicant was born after the time of application, and therefore was not practically able to be included in the application for the visa. The fifth named visa applicant was included in the application for the review lodged with the Tribunal. Pursuant to reg 2.08, a child born to the primary visa applicant after the primary visa application is made but before it is decided are taken to have applied for the visa of the same class as the parent at the time they were born. Based on the birth certificate the Tribunal is satisfied that the fifth named visa applicant was born in September 2023, which was after the application was made on 8 September 2021, and prior to the Department decision being made on 19 July 2024. Applying reg 2.08, the Tribunal is satisfied that the fifth named visa applicant is taken to have made a combined application with the primary visa applicant. Based on the translated registered marriage certificate the Tribunal is satisfied that the second named visa applicant is the spouse of the first named visa applicant. The Tribunal is satisfied that the second named visa applicant is a member of the family unit of the primary visa applicant within the meaning of reg 1.12(2)(a). Based on the translated identity documents, family registration extract, passports and other information provided, the Tribunal is satisfied that the third, fourth and fifth named visa applicants are the children of the primary visa applicant and the second named visa applicant. The Tribunal is satisfied that the third, fourth and fifth named visa applicants are all aged under 18 and are the dependent children of the primary visa applicant and the second named visa applicant. The Tribunal is satisfied that the third, fourth and fifth named visa applicants are members of the family unit of the primary visa applicant within the meaning of reg 1.12(2)(b). As stated above the Tribunal is satisfied the primary visa applicant satisfies the primary criteria in Subdivision 116.21. For the above reasons are Tribunal is satisfied that the four secondary visa applicants are members of the family unit of, and made combined applications with the primary visa applicant, who is a person who satisfies the primary criteria in Subdivision 116.21. Accordingly the Tribunal is satisfied that the four secondary visa applicants, namely the second, third, fourth and fifth named visa applicants, meet the time of application criteria in cl.116.311.

Ratio Decidendi

Legal Principle Established

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