Denman (Migration) - [2022] AATA 5252

Denman (Migration) [2022] AATA 5252 (29 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Yoke Mui Denman
VISA APPLICANT:  Mr Stanley Van Goh
CASE NUMBER:  1920880
HOME AFFAIRS REFERENCE(S):          OSF2015/031219
MEMBER:Maxina Martellotta
DATE:29 November 2022
PLACE OF DECISION:  Perth
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 116.211 of Schedule 2 to the Regulations.

Statement made on 29 November 2022 at 12:04pm
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – ‘carer’ of the Australian relative – assistance cannot reasonably be provided/obtained – Level 4 Home Care Package – Alzheimer’s dementia – significant functional decline – cognitive impairment – 24-hour care and assistance required – cultural, religious and linguistic considerations – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cl 116.211
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 23 May 2019 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 applied for the visa on 26 November 2015. 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. Relevant to this matter, the primary criteria to be met include cl 116.221(1), which requires that at the time of decision the visa applicant is a carer of an Australian relative of the applicant. ‘Carer’ is defined in Reg.1.15AA.
The delegate refused to grant the visa on the basis that cl 116.221(1) was not satisfied because the visa applicant did not meet the definition of carer, as specified in Reg.1.15AA(1)(e)(ii). Specifically, the delegate was not satisfied that there was evidence to demonstrate the availability of residential facilities, or in-home assistance from welfare, nursing or community services had been fully investigated.
The review applicant appeared before the Tribunal on 9 August 2022 and 11 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, and two witnesses, Ms Tan and Ms Chan. The Tribunal provided the review applicant the opportunity to provide updated medical and carer information and evidence subsequent to both hearings. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
In addition to the oral evidence, other evidence before…

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 Denman (Migration)

Details

AGLC: Denman (Migration) [2022] AATA 5252
Case: [2022] AATA 5252
Decision Date: 29 November 2022

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, Subclass 116 (Carer), before the Tribunal. The review applicant, the mother of the visa applicant, is an Australian citizen residing in Australia. The visa applicant, a Canadian citizen residing in Canada, claims to be her carer. The central issue for the Tribunal was whether the visa applicant met the definition of a 'carer' under the Migration Regulations 1994.

The Tribunal was required to determine if the visa applicant satisfied the criteria for being a 'carer' as defined in regulation 1.15AA of the Migration Regulations 1994. This involved assessing whether the visa applicant was a relative of the Australian resident, whether a valid certificate established a medical condition causing impairment and a continuing need for assistance, and whether such assistance could not reasonably be provided or obtained from other sources in Australia.

The Tribunal found that the visa applicant was a relative of the Australian resident, satisfying regulation 1.15AA(1)(a). Furthermore, a Carer Visa Assessment Certificate (CVAC) provided by BUPA Medical Visa Service met the requirements of regulation 1.15AA(1)(b) and (2), confirming the Australian resident's medical condition, the resulting impairment, and the ongoing need for direct assistance for at least two years. However, the Tribunal noted that other criteria, specifically concerning the inability to obtain assistance from other relatives or services in Australia, and the visa applicant's willingness and ability to provide assistance, had not yet been fully considered.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the criteria under clause 116.221 of Schedule 2 to the Regulations, relating to the applicant being a carer, were met.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.BACKGROUND The review applicant was born in Malaysia in 1934. She is an Australian citizen resident in Australia. She is also the sponsor of the visa applicant. The visa applicant is her son, a Canadian citizen resident in Canada. The visa applicant claims to be the carer of his mother. The review applicant claims to have no other relative’s resident in Australia. The issue to be considered in this review is whether the visa applicant meets the definition of ‘carer’.CONSIDERATION OF CLAIMS AND EVIDENCEWhether 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 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 visa applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 1.03 that is, a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the visa applicant’s mother. The Tribunal is satisfied, from the oral evidence and the documents included in the Department, file that the visa applicant is a close relative of the resident who is the Australian relative , as defined in reg.1.03. A copy of the visa applicant’s birth certificate confirms the review applicant is named as his biological mother. As the visa applicant is the son of the Australian relative, the 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 or issued by a specified health provider in relation to a review of such an opinion. The Tribunal was provided with a Carer Visa Assessment Certificate (CVAC) undertaken by BUPA Medical Visa Service. It is dated 23 September 2022. The CVAC is signed by the examining doctor who carried out the assessment. The CVAC states that the requirements for a carer are satisfied as the review applicant has a medical condition which results in the need for direct assistance in attending to the practical aspects of daily life that will continue for at least two years.

Evidence

Evidence Before The Court

The review applicant was born in Malaysia in 1934. She is an Australian citizen resident in Australia. She is also the sponsor of the visa applicant. The visa applicant is her son, a Canadian citizen resident in Canada. The visa applicant claims to be the carer of his mother. The review applicant claims to have no other relative’s resident in Australia. The issue to be considered in this review is whether the visa applicant meets the definition of ‘carer’.CONSIDERATION OF CLAIMS AND EVIDENCEWhether 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 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 visa applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 1.03 that is, a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the visa applicant’s mother. The Tribunal is satisfied, from the oral evidence and the documents included in the Department, file that the visa applicant is a close relative of the resident who is the Australian relative , as defined in reg.1.03. A copy of the visa applicant’s birth certificate confirms the review applicant is named as his biological mother. As the visa applicant is the son of the Australian relative, the 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 or issued by a specified health provider in relation to a review of such an opinion. The Tribunal was provided with a Carer Visa Assessment Certificate (CVAC) undertaken by BUPA Medical Visa Service. It is dated 23 September 2022. The CVAC is signed by the examining doctor who carried out the assessment. The CVAC states that the requirements for a carer are satisfied as the review applicant has a medical condition which results in the need for direct assistance in attending to the practical aspects of daily life that will continue for at least two years.

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 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.Maxina MartellottaMemberATTACHMENTMigration 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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