CANOL (Migration) - [2023] AATA 1237

CANOL (Migration) [2023] AATA 1237 (24 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms DENIZ CANOL
REPRESENTATIVE:  Mr Kayhan Oncu (MARN: 1386541)
CASE NUMBER:  1927511
HOME AFFAIRS REFERENCE(S):          CLF2018/71372
MEMBER:Moira Brophy
DATE:24 January 2023
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 836.211 and cl 836.221 of Schedule 2 to the Regulations.

Statement made on 24 January 2023 at 3:51pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – ‘carer’ of the Australian relative – assistance cannot reasonably be provided/obtained – other relatives – home care package – 24-hour assistance required – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.12, 1.15AA; Schedule 2, cls 836.211, 836.212, 836.321
CASES
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Lin v MIMIA [2004] FCA 606
Rafiq v MIMIA [2004] FCA 564
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 18 September 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 18 June 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 the basis that cl 836.221 was not met because the delegate was not satisfied the applicant was a carer to an Australian relative as defined in reg 1.03, and further, that the assistance required could not reasonably be obtained from family members or from welfare, hospital, nursing, or community services in Australia.
The applicant appeared before the Tribunal on 15 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Mrs Neriman Ozdemir. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
The visa applicant, Ms Deniz Canol, is a 52-year-old female. She was born in Turkey and is a citizen of Turkey. She was previously married to…

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 CANOL (Migration)

Details

AGLC: CANOL (Migration) [2023] AATA 1237
Case: [2023] AATA 1237
Decision Date: 24 January 2023

CaseChat Overview and Summary

This matter concerned an appeal by Ms Deniz Canol against a decision of the Migration Review Tribunal regarding her application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The dispute centred on whether Ms Canol qualified as a 'carer' for her aunt, Mrs Neriman Ozdemir, an Australian citizen, and whether Mrs Ozdemir's care needs could not be reasonably met by other means. The Tribunal was required to determine if the applicant met the criteria for being a carer under regulation 1.15AA of the Migration Regulations 1994.

The legal issues before the Tribunal were whether the applicant was a relative of the Australian resident, whether the Australian resident had a medical condition requiring direct assistance with daily life, and crucially, whether such assistance could not reasonably be provided by other relatives in Australia or obtained from community health services. The Tribunal noted that the elements of regulation 1.15AA were cumulative, meaning failure to satisfy any one element would result in the applicant not meeting the regulation overall.

The Tribunal found that the applicant, Ms Canol, was indeed a niece of the sponsor, Mrs Ozdemir, and that Mrs Ozdemir was an Australian citizen usually resident in Australia. The Tribunal also considered a Carer Visa Assessment Certificate which indicated Mrs Ozdemir had a medical condition requiring ongoing assistance. However, the Tribunal concluded that it could not be satisfied on the evidence before it that the care required could not reasonably be provided by other adult relatives in Australia or obtained from community services. Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that certain criteria for the visa were met.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On 2 March 2022, a Carer Visa Assessment Certificate from BUPA Medical Services dated 22 February 2022 was provided to the Tribunal for Mrs Neriman OzdemirCONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the visa applicant is the carer of the sponsor as defined in reg 1.15A and whether the sponsor’s needs could not be reasonably provided by either other adult family members or by community health care providers in Australia. The elements of reg 1.15AA are cumulative. If the primary visa applicant does not meet an element, then the primary visa applicant cannot meet the regulation overall. In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well as the oral evidence provided at the hearing. The Tribunal has also considered the Carer Visa Assessment Certificate dated 22 February 2022 provided, which the Tribunal requested prior to the hearing. 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 aunt. 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 sponsor, Mrs Neriman Ozdemir and her niece, Ms Deniz Canol (the visa applicant), on the Department file. On that application, the visa applicant claims to be the carer of her aunt, the sponsor Mrs Neriman Ozdemir (the caree). The caree is an Australian citizen, as evidenced by the copy of citizenship certificate provided. Therefore at the time of application, the primary visa applicant claimed to be a 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) 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 aunt. The Department file contains identity documents of the primary visa applicant and the sponsor, her aunt. The Tribunal is satisfied on the evidence before it that Mrs Neriman Ozdemir is the aunt of Ms Deniz Canol. The Tribunal is satisfied the primary visa applicant, Ms Deniz Canol meets the definition of close relative. The Tribunal is also satisfied that the sponsor, Mrs Neriman Ozdemir is an Australian citizen and is ‘usually resident’ in Australia.

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 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 836.211 and cl 836.221 of Schedule 2 to the Regulations.Moira BrophyMemberATTACHMENTMigration 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

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Background The visa applicant, Ms Deniz Canol, is a 52-year-old female. She was born in Turkey and is a citizen of Turkey. She was previously married to Mr Biilal Gonul. Mr Gonul resides in Turkey as do the two sons of the marriage. Her father is deceased, her mother, one brother and one sister reside in Turkey. The applicant is a niece of the sponsor. The applicant travelled to Australia on a temporary entrant Visitor (subclass 600) visa on 11 September 2017. She was granted a Student (subclass 500) visa on 31 January 2018 for the period to 18 June 2018. The sponsor, Mrs Neriman Ozdemir, is an 82-year-old female living in Sydney. She is a citizen of Australia and also a citizen of Turkey. The sponsor is in receipt of an aged pension and she resides in social housing. Her husband died in 2002. She has five children, one daughter lives in Turkey. Her parents are deceased and she has one brother and one sister living in Turkey. At the time of application, it was stated the applicant was required to provide care to the sponsor and a member of her family unit, the sponsor’s daughter Ms Hatice Ozdemir. The delegate in his decision determined that the person requiring care was the daughter of the sponsor and was satisfied the applicant was the niece of the sponsor and that the sponsor was the primary carer of her daughter Hatice. However the delegate was not satisfied sufficient evidence had been provided to show the care required could not be provided by other adult relatives resident in Australia. On 29 July 2021, the Tribunal wrote to the applicant requesting an updated Carer Visa Assessment Certificate. On 2 December 2021, the Tribunal was advised the application was proceeding on the basis the applicant was providing care to the sponsor and not to a member of the sponsor’s family unit. In material accompanying the advice, it was stated the sponsor had suffered a stroke in September 2020 resulting in her being hospitalized for two months in Westmead Hospital. The consequence was she was no longer able to provide to her daughter the care she needed. On 2 March 2022, a Carer Visa Assessment Certificate from BUPA Medical Services dated 22 February 2022 was provided to the Tribunal for Mrs Neriman OzdemirCONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the visa applicant is the carer of the sponsor as defined in reg 1.15A and whether the sponsor’s needs could not be reasonably provided by either other adult family members or by community health care providers in Australia. The elements of reg 1.15AA are cumulative. If the primary visa applicant does not meet an element, then the primary visa applicant cannot meet the regulation overall. In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well as the oral evidence provided at the hearing. The Tribunal has also considered the Carer Visa Assessment Certificate dated 22 February 2022 provided, which the Tribunal requested prior to the hearing. Whether the applicant has claimed to be the ‘carer’