D'Cruz (Migration) - [2022] AATA 1805

D'Cruz (Migration) [2022] AATA 1805 (16 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Rock D’Cruz
REPRESENTATIVE:  Mr Derrick Peters (MARN: 1175659)
CASE NUMBER:  2018360
HOME AFFAIRS REFERENCE(S):          CLF2018/356814
MEMBER:Christine Kannis
DATE:16 March 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 16 March 2022 at 1:06pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – applicant is the child of the Australian relative – Ms Barrett can reasonably provide significant assistance to sponsor – no evidence that Mrs D’Cruze’s family had meaningfully explored welfare, hospital, nursing or community services – insufficient evidence – at the time of decision the applicant is not a carer of the Australian relative– decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cls 836.212, 836.221

CASES
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
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 17 December 2020 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth).
The applicant applied for the visa on 18 October 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 836.221 which requires the applicant is the carer of the Australian resident relative within the meaning of reg 1.15AA at the time of decision.
The visa was refused on the basis that cl 836.221 was not met because the delegate found the applicant did not meet the requirements in reg 1.15AA(1)(e)(i) and (ii) because sufficient evidence had not been provided to demonstrate that assistance could not reasonably be provided by any other relatives, or reasonably obtained from welfare, hospital, nursing or community services in Australia.
The applicant appeared before the Tribunal on 28 February 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Maria Barrett and Mrs Joan D’Cruze. Oral evidence by telephone was received from Mr Roan Barrett and Mr Joshua Barrett.
The Tribunal exercised its discretion to hold the hearing by MS Teams video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by MS Teams video, having regard to the nature of this matter and the individual circumstances of…

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 D'Cruz (Migration)

Details

AGLC: D'Cruz (Migration) [2022] AATA 1805
Case: [2022] AATA 1805
Decision Date: 16 March 2022

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse a Subclass 836 (Carer visa). The applicant, a citizen of the United States, claimed to be a carer for his Australian citizen mother, Mrs Joan Philomena D’Cruze. The Tribunal was required to determine whether the applicant met the definition of a "carer" as defined in regulation 1.15AA of the Migration Regulations 1994.

The primary legal issues before the Tribunal were whether the applicant was a "relative" of the Australian resident, and crucially, whether the assistance required by Mrs D’Cruze could not reasonably be provided by any other relative who is an Australian citizen or permanent resident, or obtained from welfare, hospital, nursing, or community services in Australia. The Tribunal accepted, based on the applicant's willingness to undergo DNA testing and oral evidence, that the applicant was indeed the son of Mrs D’Cruze, thus satisfying the "relative" requirement.

The Tribunal's reasoning focused on the availability of alternative care. While acknowledging the applicant provided care and companionship, the Tribunal found that another individual, Ms Barrett, provided a significant amount of assistance with Mrs D’Cruze's daily needs and appointments. Furthermore, the Tribunal was not satisfied that Mrs D’Cruze’s four adult grandchildren, who resided in Western Australia, could not, in combination with Ms Barrett and potentially other community services, reasonably provide the required support. The Tribunal noted that care could be provided collectively by more than one relative and that the grandchildren, despite their preferences and commitments, could reasonably contribute to their grandmother's care.

Consequently, the Tribunal affirmed the delegate's decision, concluding that the applicant had not demonstrated that the required assistance could not reasonably be provided by other relatives or obtained from community services. The Tribunal found that there was insufficient evidence that the applicant's family had meaningfully explored welfare, hospital, nursing, or community services, and that at the time of the decision, the applicant was not the sole or primary carer.

Orders

Orders of the court

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Background

Background to the litigation

Prior to the hearing the applicant provided documentation which included but was not limited to statutory declarations, bank statements and a death certificate.Background In the present case, the visa application was made on the basis that the applicant is the carer of an Australian relative, his mother, Mrs Joan Philomena D’Cruze who is an Australian citizen. The applicant is a citizen of the United States of America. He first came to Australia in 1993 and has departed and arrived on a number of occasions since then, primarily as the holder of a Subclass 601 visa. On 23 May 2018 he was granted a Subclass 600 Visitor visa which ceased on 9 November 2018. The applicant currently holds a Bridging visa. Whether the applicant is a carerApplicant 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. The delegate noted that no formal assessment has been conducted to confirm the relationship status between the applicant and the resident, Mrs D’Cruze. At the hearing the Tribunal asked the applicant whether he is willing to undergo DNA testing to confirm his relationship with Mrs D’Cruze. Given the applicant’s willingness to undergo DNA testing and the oral evidence received from the applicant and the witnesses, the Tribunal accepts that the applicant is the son of Mrs D’Cruze. Therefore, as the applicant is the child of the Australian relative, the 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 two 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 (see Legislative Instrument IMMI 14/085) or issued by a specified health provider in relation to a review of such an opinion. At the time of application, a Carer Visa Assessment Certificate (CVAC) dated 2 October 2018 was provided. An updated CVAC dated 27 August 2021 has also been provided. The updated certificate is signed and dated by the doctor undertaking the assessment on behalf of the authorised medical visa services, and the certificate addresses all the requirements for the assessment and report in a CVAC.

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 In accordance with the President’s Direction Conducting Migration and Refugee Reviews (paragraph 8.2), the Tribunal has restricted its review to the particular criterion on which the primary decision was made. The issue in the present case is whether the applicant meets the definition of carer in reg 1.15AA, for the purposes of satisfying the requirements of cl 836.221, which requires that at the time of decision the applicant is a carer of the person referred to in cl 836.212, that is the Australian relative the applicant claims to be the carer of at the time of application. The term ‘carer’ is defined in reg 1.15AA(1)(a)–(f), (2) and (3) of the Regulations which is set out in the attachment to this Decision. The delegate was not satisfied that the applicant met:·reg.1.15AA(1)(e)(i) – the assistance cannot reasonably be provided by any other relative of the resident (as defined) who is an Australian citizen or permanent resident; or·reg.1.15AA(1)(e)(ii) – the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia Prior to the hearing the applicant provided documentation which included but was not limited to statutory declarations, bank statements and a death certificate.Background In the present case, the visa application was made on the basis that the applicant is the carer of an Australian relative, his mother, Mrs Joan Philomena D’Cruze who is an Australian citizen. The applicant is a citizen of the United States of America. He first came to Australia in 1993 and has departed and arrived on a number of occasions since then, primarily as the holder of a Subclass 601 visa. On 23 May 2018 he was granted a Subclass 600 Visitor visa which ceased on 9 November 2018. The applicant currently holds a Bridging visa. Whether the applicant is a carerApplicant 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. The delegate noted that no formal assessment has been conducted to confirm the relationship status between the applicant and the resident, Mrs D’Cruze. At the hearing the Tribunal asked the applicant whether he is willing to undergo DNA testing to confirm his relationship with Mrs D’Cruze. Given the applicant’s willingness to undergo DNA testing and the oral evidence received from the applicant and the witnesses, the Tribunal accepts that the applicant is the son of Mrs D’Cruze. Therefore, as the applicant is the child of the Australian relative, the 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)

Decision

Reasons for decision

The representative said Mrs D’Cruze gave evidence that she felt comfortable being cared for by the applicant and Ms Barrett. He said the expectation in the Indian community culture is that parents are not put in a nursing home or ‘given to someone else’. He said if a person has dementia they may be put in such a facility however Mrs D’Cruze is physically not mentally disabled and she is able to make her own decisions. The representative submitted that if Mrs D’Cruze is placed in an aged care facility it may affect her mental state and her lifespan. Conclusion The CVAC sets out the assistance Mrs D’Cruze requires and this includes assistance with some activities of daily living, supervising medication and personal safety and transportation. The applicant’s evidence was variously embellished or vague, in a manner that appeared to be to support his claim that he provides the required assistance to Mrs D’Cruze. The Tribunal does not suggest that he doesn’t provide his mother with care and companionship in the home. However, given the fact that Ms Barrett is in receipt of carer payment and taking into account the oral and written evidence, it is clear that Ms Barrett provides a significant amount of assistance with respect to Mrs D’Cruze’s day-to-day needs and taking her to regular appointments which include assisting with her weekly water therapy exercises. In addition, the evidence was that when Ms Barrett is at work on Wednesday, Ms Paulas provides assistance to Mrs D’Cruze. The Tribunal has considered the statutory declarations provided by Mrs D’Cruze’s grandchildren and the oral evidence of Mr Roan Barrett and Mr Joshua Barrett and is not satisfied that they could not, in combination with their mother, reasonably provide the required (as set out in the updated CVAC to be assistance with mobility, bathing/showering, dressing/grooming, supervising medication and personal safety and transportation) support to their grandmother. This could be in combination with other services that could be obtained within the community. The Tribunal accepts that the grandchildren would prefer not to provide assistance as they have their own lives, but their preference is not the test and the Tribunal has found that despite their family and work commitments, they can reasonably provide the required assistance to their grandmother. It is worth noting that care may be provided collectively by more than one relative. In Jajo v MIBP [2013] FCCA at [55[, the court held that reg 1.15AA(1)(e)(i) should not be construed as requiring that the assistance must only be provided by a single person. In the present case the Tribunal is satisfied that it is reasonable for the required assistance (as set out in the updated CVAC) to be provided by more than one relative. It is clear that Ms Barrett and Mrs D’Cruze’s four adult grandchildren residing in Western Australia are a close-knit family who spend time with each other on Sunday and at other times during the week. Mrs D’Cruze said her grandchildren are always in and out of Ms Barrett’s house. Ms Paulas already assists in Ms D’Cruze’s care for some time each Wednesday.

Ratio Decidendi

Legal Principle Established

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