Begum (Migration) - [2023] AATA 4107

Begum (Migration) [2023] AATA 4107 (30 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Tajwar Begum
VISA APPLICANT:  Ms Zakia Haider Ali
REPRESENTATIVE:  Mr Iqbal Safari
CASE NUMBER:  2013574
HOME AFFAIRS REFERENCE(S):          OSF2017/020153
MEMBER:Stephen Conwell
DATE:30 November 2023
PLACE OF DECISION:  Melbourne
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.116.221 of Schedule 2 to the Regulations.

Statement made on 30 November 2023 at 4:11pm
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – physical and mental health conditions and full dependency for activities of daily living – other specified relatives’ work, care for own child and own health – assistance cannot be obtained from service providers – religious, cultural and language requirements – approaches to local providers – applicant willing and able to provide required care – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA(1)(b)(iv), (e), 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 August 2020 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant (the applicant) applied for the visa on 29 May 2017. 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 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 to this matter, the primary criteria to be met include cl.116.221 of Schedule 2 to the Regulations.
The delegate refused to grant the visa on the basis that cl.116.221 was not met because the delegate was not satisfied that the applicant was the carer of the resident, who is also the sponsor and review applicant (the resident or Mdm Begum). Specifically, the delegate was not satisfied that the availability of suitable services has been fully investigated for the purpose of r.1.15AA(1)(e)(ii). In the absence of evidence of what assistance was available to the resident, the delegate found that r.1.15AA(1)(e)(ii) was not met.
A copy of the decision record was provided to the Tribunal by the resident.
The resident was represented in relation to the review by her registered migration agent (representative). The representative attended the Tribunal hearing by video.
The review applicant (who is also ‘the resident’ in this matter, appeared before the Tribunal by video on 19…

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 Begum (Migration)

Details

AGLC: Begum (Migration) [2023] AATA 4107
Case: [2023] AATA 4107
Decision Date: 30 November 2023

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 sought to demonstrate that they were a carer for their mother, an Australian permanent resident, who required assistance with the practical aspects of daily life due to a medical condition. The Tribunal was tasked with determining whether the applicant met the criteria for being a carer under the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant satisfied the definition of a "carer" as defined in regulation 1.15AA of the Migration Regulations 1994. This involved assessing whether the applicant was a relative of the Australian resident, whether the resident had a qualifying medical condition with a specified impairment rating, and crucially, whether the necessary assistance could not reasonably be provided by other Australian relatives or obtained from Australian welfare, hospital, nursing, or community services.

The Tribunal found that the applicant was a relative of the Australian resident and that the resident met the requirements regarding their medical condition and impairment rating, as evidenced by a Carer Visa Assessment Certificate. However, the Tribunal determined that it had not been sufficiently assessed whether the required assistance could reasonably be obtained from other Australian relatives or from Australian service providers. Consequently, the Tribunal concluded that the matter should be remitted for reconsideration by the Department to address this outstanding criterion. The Tribunal directed that the applicant met the criteria under clause 116.221 of Schedule 2 to the Regulations.

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 whether the applicant is the carer of the resident at the time of this decision.Whether the visa applicant is a carer Clause 116.221 requires that at the time of decision, the visa applicant is a carer of the Australian relative (or “resident”). The term “carer” is defined in r.1.15AA of the Regulations which is set out in the attachment to this Decision.Applicant is a relative of the resident – reg 1.15AA(1)(a) Regulation 1.15AA(1)(a) requires the applicant is 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 identified as the applicant’s mother. Based on the evidence in the Departmental and Tribunal files the Tribunal is satisfied that Mdm Begum is usually resident in Australia. Since the applicant is the biological daughter of the Australian relative, she is a ‘relative’ of the resident within the meaning of reg 1.03, and meets the requirements of reg 1.15AA(1)(a). 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. In the present case, the person with the medical condition is the resident who is an Australian permanent resident – which is not in dispute. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.Certification – reg 1.15AA(1)(b) A Carer Visa Assessment Certificate (CVAC) in respect of the resident was issued by BUPA Medical Services in November 2022. The Tribunal is satisfied that it was signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister in compliance with reg 1.15AA (2), (Bupa Australia Health Pty Ltd). The Tribunal finds that the CVAC provided meets the requirements of reg 1.15AA(2). Further, the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of reg 1.15AA(1)(b) are met. In the present case, the impairment rating specified in the certificate is 40. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).Assistance cannot be reasonably provided/obtained – r.1.15AA(1)(e) Regulation 1.15AA(1)(e) requires that the assistance cannot 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. Under r.1.15AA(1)(b)(iv), the assistance is taken to be “direct assistance in attending to the practical aspects of daily life”. The Tribunal is required to assess the level and particulars of this assistance required by the resident in order to make a finding whether this assistance cannot reasonably be provided by the appropriate relatives or obtained by from the relevant services.

Decision

Reasons for decision

Consequently, the appropriate course is to remit the application for the visa to the Department 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 visa applicant meets the following criteria for a Subclass 116 (Carer) visa:·cl 116.221 of Schedule 2 to the RegulationsStephen ConwellMemberATTACHMENTMigration 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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