Ali (Migration) - [2022] AATA 4619

Ali (Migration) [2022] AATA 4619 (8 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Basit Ali
VISA APPLICANTS:  Mr Muhammad Iqbal
Mrs Erum Shakeel
Miss Hareem Iqbal
Miss Sheikha Iqbal
CASE NUMBER:  2016479
HOME AFFAIRS REFERENCE(S):          OSF2018/009910
MEMBER:Andrew McLean Williams
DATE:8 November 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:
·cl 116.221 of Schedule 2 to the Regulations.

Statement made on 08 November 2022 at 2:22pm
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – ‘carer’ of the Australian relative – assistance cannot reasonably be obtained/provided – assistance from relatives – assistance from certain services – willing and able to provide ‘substantial and continuing assistance’ – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15AA; Schedule 2, cl 116.221
CASES
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64
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 November 2020 refusing to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (Cth) (‘the Act’).
The visa applicants applied for the visa on 5 June 2018. 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 primary visa applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Relevantly, the primary criteria include clause 116.221.
The delegate refused to grant the visas on the basis that cl.116.221 was unable to be met because Regulation 1.15AA(1)(e)(i) was not met by reason that the Delegate was not satisfied that the care and assistance required by Mr Basit Ali (the ‘Australian relative’ for purposes of r.1.15AA) could not reasonably be provided by any other relative, who was already resident in Australia.
Mr Bast Ali appeared before the Tribunal on 8 November 2022 accompanied by his appointed legal guardian and financial administrator, his brother Mr Arif Muhammad. Because of his significant cognitive impairment, Mr Basit Ali was unable to communicate with the Tribunal. Nevertheless, his appearance before the Tribunal was important, as it underscored the obvious practical reality of his requiring day-to-day care and assistance. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu (Pakistan) and English languages.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is essentially confined to the…

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 Ali (Migration)

Details

AGLC: Ali (Migration) [2022] AATA 4619
Case: [2022] AATA 4619
Decision Date: 8 November 2022

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, specifically a Subclass 116 (Carer) visa. The applicant, Mr Muhammad Iqbal, sought to be recognised as a 'carer' for his Australian relative, Mr Basit Ali. The decision was made by a Member of the Tribunal, Andrew McLean Williams.

The primary legal issue before the Tribunal was whether the visa applicant, Mr Muhammad Iqbal, qualified as a 'carer' under regulation 1.15AA of the Migration Regulations 1994. This involved determining if the applicant met the criteria outlined in subregulation 1.15AA(1), including being a relative of the Australian resident, the existence of a qualifying medical condition certified by a health professional, the severity of the impairment, and the Australian resident's ongoing need for assistance.

The Tribunal found that the applicant met several key criteria. Mr Iqbal was a relative of Mr Basit Ali, who was an Australian citizen. A certificate from Dr Arvind Das confirmed that Mr Ali had a permanent, progressive neurological condition, 'global cortical atrophy', causing severe cognitive and behavioural impairment, resulting in a 30-point impairment rating. This rating exceeded the specified threshold, and Mr Ali was an Australian citizen with a continuing need for assistance for at least two years. The Tribunal was satisfied that these aspects of regulation 1.15AA(1) were met.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with the direction that the criteria under clause 116.221 of Schedule 2 to the Regulations, relating to the applicant being a 'carer', were met. The Minister was to consider the remaining criteria for the Subclass 116 visa.

Orders

Orders of the court

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Background

Background to the litigation

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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 issue in the present case is essentially confined to the question whether the visa applicant, Mr Muhammad Iqbal qualifies as a ‘carer’ for purposes of r.1.15AA. Clause 116.221 requires that at the time of decision, the primary visa 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. Regulation 1.15AA(1)(a) requires the primary visa applicant be a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is Mr Basit Ali who is identified as the primary visa applicant’s brother. As such, the primary visa applicant does qualify as a ‘relative’, and easily meets the requirements of reg 1.15AA(1)(a). Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the 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. For a certificate to meet reg 1.15AA(2), it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister, or issued by a specified health provider in relation to a review of such an opinion. In this case there is a Bupa Health Assessment certificate issued by Dr Arvind Das on 13 September 2021 pursuant to regulation 1.15AA(1)(b) and 1.15AA(2) of the regulations that stipulates that Mr Basit Ali has an impairment rating of 30, in consequence of his suffering from ‘global cortical atrophy’: a permanent, progressive neurological condition giving rise to severe cognitive and behavioural impairment. In light of that certificate, and the care requirement matters further certified by the certificate, the Tribunal is satisfied in relation to the matters arising under r.1.15AA(1)(b). Regulation 1.15AA(1)(ba) requires that the person who has the medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen. Mr Basit Ali was conferred with Australian Citizenship on 22nd May 1986, long before the onset of his present medical condition, such that the requirements of reg 1.15AA(1)(ba) are now met in this instance. Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument. In the present case, the impairment rating specified on the certificate is 30. This is sufficient to meet the requirements of reg 1.15AA(1)(c).

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 applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:·cl 116.221 of Schedule 2 to the Regulations.Andrew McLean WilliamsMemberATTACHMENTMigration 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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