Chau (Migration) - [2025] ARTA 2137

CHAU (MIGRATION) [2025] ARTA 2137 (3 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mrs Thi Mai Chau
Visa Applicants:  Ms Thi Lieu Nguyen
Mr Cam Hoa Phan
Ms Man Nghi Phan
Mr The Hao Phan
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2315828

Tribunal:General Member Howard
Place:Brisbane
Date: 3 July 2025
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 116.211 of Schedule 2 to the Regulations
·cl 116.221 of Schedule 2 to the Regulations
·cl 116.311 of Schedule 2 to the Regulations
·cl 116.321 of Schedule 2 to the Regulations

Statement made on 03 July 2025 at 2:55pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – sponsorship remaining in force – carer of an Australian relative – willing and able to provide substantial and continuing assistance – no time limit on sponsorship document – decision under review remitted
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 106
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994, Schedule 2, cls 116.211, 116.212, 116.221, 116.222, 116.311, 116.321; rr 1.03, 1.15
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 15 May 2023 to refuse 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 28 May 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 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.
The delegate refused to grant the visas on the basis that the visa applicants failed to satisfy cl 116.212 and cl 116.222 of Schedule 2 to the regulations on the grounds that the Form 40 sponsorship document was more than two years old and that the review applicant, despite requests from the Department, had failed to provide an updated Form 40 from the sponsor or, “any other information to demonstrate the applicants… sponsorship for this application remains in force at time of decision”.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The review applicant is Ms Thi Mai Chau and the primary visa applicant is Ms Thi Lieu Nguyen.
On 28 May 2018, the visa applicant lodged an application for a Subclass 116 (Carer) visa on the basis providing assistance to the sponsor, namely…

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 Chau (Migration)

Details

AGLC: Chau (Migration) [2025] ARTA 2137
Case: [2025] ARTA 2137
Decision Date: 3 July 2025

CaseChat Overview and Summary

In the matter of Chau (Migration) [2025] ART [insert number], the Administrative Review Tribunal (the Tribunal) was required to review the decision of a delegate of the Minister for Home Affairs, who refused to grant Ms Thi Lieu Nguyen a Subclass 116 (Carer) visa. The Tribunal was tasked with determining whether the delegate's decision was legally sound and whether the visa application met the necessary criteria under the Migration Regulations 1994.

The primary legal issues before the Tribunal were whether Ms Nguyen, the visa applicant, was a 'carer' as defined under the Regulations and whether she was a 'relative' of the sponsor, Ms Chau, who claimed to be an Australian relative of Ms Nguyen. Specifically, the Tribunal had to assess if Ms Nguyen met the criteria outlined in cl 116.221 of Schedule 2 to the Regulations, including the requirement to provide substantial and continuing assistance to an Australian relative with a medical condition. Additionally, the Tribunal needed to verify the validity of the medical certificate provided to support the visa application.

The Tribunal found that Ms Nguyen was indeed a relative of Ms Chau's son, who is an Australian citizen, thereby satisfying the requirements of cl 116.211. The Tribunal also determined that Ms Nguyen met the definition of a 'carer' under cl 116.221 as she was a relative of the Australian relative and the provided medical certificate was valid and met the requirements of reg 1.15AA. Given these findings, the Tribunal concluded that the delegate had not properly considered all relevant criteria and remitted the matter back to the Minister for reconsideration.

The Tribunal remitted the application for the visa to the Minister to reconsider the remaining criteria for a Subclass 116 (Carer) visa, with the direction that the criteria in cl 116.211, cl 116.221, cl 116.311, and cl 116.321 of Schedule 2 to the Regulations are met. This decision allows for a fresh assessment by the Minister, ensuring all relevant factors are duly considered.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. BACKGROUND The review applicant is Ms Thi Mai Chau and the primary visa applicant is Ms Thi Lieu Nguyen. On 28 May 2018, the visa applicant lodged an application for a Subclass 116 (Carer) visa on the basis providing assistance to the sponsor, namely the review applicant. On 15 May 2023, a delegate of the Minister refused to grant a visa on the grounds that the visa applicants had failed to satisfy cl 116.212 and cl 116.222 of Schedule 2 to the regulations. On 3 October 2023, the review applicant lodged an Application for Review in the Administrative Appeals Tribunal (now the Administrative Review Tribunal), (the Tribunal). The Tribunal has had the benefit of receiving extensive evidence and submissions from the review applicant, which information was unavailable to the delegate. As a result of this, the Tribunal informed the review applicant via email on 15 May 2025, that the Tribunal is satisfied that there was sufficient evidence to make a decision on the papers. Section 106 of the Administrative Review Tribunal Act 2024 (the ART Act) outlines circumstances in which the Tribunal may reach a decision without a Hearing. Pursuant to s.106 (1):“The Tribunal may make its decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding the Hearing of the proceeding if any of subsections (2) to (5) applies.” Relevantly, s.106(3) states as follows:“This subsection applies if:(a) the only parties to the proceeding are the applicant and a non-participating party to the proceeding or the Hearing of the proceeding; and (b) either:(i)the decision is wholly in favour of the applicant; or(ii)the applicant requests the Tribunal to make its decision without holding the Hearing of the proceeding; and(c) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.” The Tribunal is satisfied that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.CONSIDERATION OF CLAIMS AND EVIDENCEWhether the primary visa applicant has claimed to be a ‘carer’ Clause 116.211(1) of the Regulations requires that the primary visa applicant claims to be a carer of an Australian relative. In the present case, the visa application was made on the basis that the primary visa applicant is a carer of the review applicant’s son, who is the primary visa applicant’s nephew. 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 116.211(2). The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.

Evidence

Evidence Before The Court

The Tribunal is satisfied that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.CONSIDERATION OF CLAIMS AND EVIDENCEWhether the primary visa applicant has claimed to be a ‘carer’ Clause 116.211(1) of the Regulations requires that the primary visa applicant claims to be a carer of an Australian relative. In the present case, the visa application was made on the basis that the primary visa applicant is a carer of the review applicant’s son, who is the primary visa applicant’s nephew. 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 116.211(2). The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations. The Tribunal is satisfied that both the review applicant and her son are Australian citizens and hence the primary visa applicant satisfies cl 116.211. 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 116.211.Whether the primary visa applicant is a ‘carer’ 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. 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 primary visa applicant’s nephew. As the primary visa applicant is the aunt of the Australian relative, the primary visa applicant is a ‘relative’ of the resident within the meaning of reg 1.03, and meets the requirements of reg 1.15AA(1)(a).Certification – reg 1.15AA(1)(b) 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. The Tribunal finds that the certificate provided does meet 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.Residency status of person with medical condition – reg 1.15AA(1)(ba)

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 116.211 of Schedule 2 to the Regulations·cl 116.221 of Schedule 2 to the Regulations·cl 116.311 of Schedule 2 to the Regulations·cl 116.321 of Schedule 2 to the RegulationATTACHMENTMigration 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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