Bui (Migration) - [2022] AATA 3495

Bui (Migration) [2022] AATA 3495 (6 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Thanh Long Bui
REPRESENTATIVE:  Mr Tam Nguyen (MARN: 0743595)
CASE NUMBER:  1919015
HOME AFFAIRS REFERENCE(S):          CLF2018/50480
MEMBER:Ann Duffield
DATE:6 July 2022
PLACE OF DECISION:
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 06 July 2022 at 11:18am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – assistance from relatives – applicant ‘s knowledge and understanding substantially lacking – sponsor’s sister – assistance from certain services – extent and cost of care provided through the sponsor’s NDIS plan – at least 20 hours of in-home care for the sponsor each week – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cl 836.221
CASES
Biyiksiz v MIMIA [2004] FCA 814
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 2 July 2019 to refuse to grant the review 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 29 May 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 as the carer of his brother, Mr Tang van Bui, his sponsor and an Australian citizen. 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 visa on the basis that cl 836.221 was not met because the delegate was not satisfied that the care required by the sponsor cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. Therefore sub regulation 1.15AA(10)(E)(ii) was not met.
The applicant appeared before the Tribunal on 23 June 2022 via Teams to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister and past carer of the sponsor, Thi Hue Bui. The sponsor did not attend as he was indisposed. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case or whether the assistance required cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. The Tribunal also considered…

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 Bui (Migration)

Details

AGLC: Bui (Migration) [2022] AATA 3495
Case: [2022] AATA 3495
Decision Date: 6 July 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant claimed to be the carer of their Australian citizen brother, who required assistance due to significant health conditions including schizophrenia and ischaemic cardiomyopathy. The central dispute revolved around whether the applicant met the regulatory requirements to be considered a carer, particularly concerning the availability of alternative assistance.

The Tribunal was required to determine two primary legal issues. Firstly, whether the applicant claimed to be the carer of an Australian relative as defined by the Migration Regulations. Secondly, and more critically, whether the assistance required by the sponsor could not reasonably be provided by any other eligible relative or reasonably obtained from welfare, hospital, nursing, or community services in Australia.

The Tribunal found that the applicant did meet the initial criterion of claiming to be the carer of an Australian relative, as the sponsor was an Australian citizen and the applicant's brother. However, the Tribunal's assessment of the sponsor's needs and the availability of alternative support led to the conclusion that the applicant did not satisfy the visa requirements. The Tribunal considered the sponsor's Carer Visa Assessment Certificate, which indicated a need for assistance with daily living activities and medication management. Despite the sponsor's significant health issues, the Tribunal was not satisfied that the assistance could not reasonably be obtained from other sources. Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 836 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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case or whether the assistance required cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. The Tribunal also considered whether there are other members of the sponsor’s family who were able to provide the assistance required by the sponsor.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 the applicant’s brother. 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. Clause 836.211 of Schedule 2 to the Regulations requires that at the time of application, the applicant claims to be the carer of an Australian relative. In this case, at the time of application, the applicant claimed to be the carer of the sponsor, who is an Australian citizen and the applicant’s brother. The sponsor was born on 3 January 1956 and was granted Australian citizenship on 31 March 1993. A copy of the sponsor’s citizenship certificate is on the department’s file at Folio 40. Therefore, at the time of application the applicant meets cl.836.211 of Schedule 2 to the RegulationsCarer Visa Report The sponsor provided a Carer Visa Assessment Certificate (CVAC) dated 5 October 2021 recording a total impairment rating of 40 points. The applicant suffers from schizophrenia and Ischaemic cardiomyopathy. Noted on the CVAC are the following comments: the sponsor has medical conditions that may impact his capacity to self-care including cooking, bathing, dressing and eating. He needs regular prompting to take his daily medications for his diabetes, cardiomyopathy, hypertension as well as the schizophrenia. The sponsor has been hospitalised on several occasions with the most recent being between July and August 2021. The Tribunal is satisfied that the certificate meets the requirements of reg 1.15AA(2).Whether the assistance cannot otherwise be reasonably provided or obtained Regulation 1.15AA(1)(e)(i) 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 New Zealand citizen; or that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia as required by Regulation 1.15AA(e)(ii).Whether the assistance cannot reasonably be provided by any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible New Zealand citizen

Decision

Reasons for decision

For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa soughtDECISION The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.Ann DuffieldSenior Member

Ratio Decidendi

Legal Principle Established

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