Eugenio (Migration) - [2017] AATA 2626

Eugenio (Migration) [2017] AATA 2626 (7 December 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Anita Eugenio
VISA APPLICANTS:  Mr Rodrigo Eugenio
Mrs Marissa Eugenio
Mr Mark Dham Eugenio
Ms Winslet Marie Eugenio
Ms Irma Eugenio
CASE NUMBER:  1700459
DIBP REFERENCE(S):  CLF2016/93584
MEMBER:Margie Bourke
DATE:7 December 2017
PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 07 December 2017 at 11:11am
CATCHWORDS
Migration – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – Requires constant supervision and 24 hour care and assistance – Applicant’s subjective preference – Linguistic or cultural factors
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15A, Schedule 2, cl 116.221
CASES
Nguyen v MIBP [2017] FCCA 339
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 Immigration on 21 December 2016 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visa on 17 October 2013. 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 (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. Relevantly to this matter, the primary criteria to be met include cl.116.221 which requires that the primary visa applicant is the carer within the meaning of r.1.15AA of the Australian relative at the time of decision.
The delegate refused to grant the visas on the basis that cl.116.221 was not met because the delegate was not satisfied the primary visa applicant met the requirements of carer.
The review applicant appeared before the tribunal on 18 September 2017 to give evidence and present arguments. The tribunal also received oral evidence from the review applicant’s two daughters who reside in Australia, Arsenia Eugenio and Leny Eugenio, and the primary visa applicant gave evidence via telephone. The tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.
The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The main issue in the present case is whether the primary visa applicant meets the requirements of carer as defined in r.1.15AA.
APPLICANT IS THE CARER
Whether the visa applicant is a ‘carer’
Clause 116.221 requires that at the time of decision, the visa applicant is the carer of the Australian relative (or ‘resident’). The…

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 Eugenio (Migration)

Details

AGLC: Eugenio (Migration) [2017] AATA 2626
Case: [2017] AATA 2626
Decision Date: 7 December 2017

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, Subclass 116 (Carer), before the Tribunal. The primary issue for determination was whether the applicant met the definition of a 'carer' as prescribed by regulation 1.15AA of the Migration Regulations 1994. The applicant sought to establish that they were a relative of an Australian resident who required constant care and assistance due to a medical condition.

The Tribunal was required to assess whether the applicant satisfied the criteria outlined in regulation 1.15AA, specifically whether the applicant was a relative of the Australian resident, and if a valid certificate was provided detailing the resident's medical condition, the resulting impairment, and the ongoing need for direct assistance. Further, the Tribunal had to consider whether such assistance could not reasonably be provided by other means, either through other relatives or community services, and whether the applicant was willing and able to provide the necessary assistance.

The Tribunal found that the applicant was a relative of the Australian resident, satisfying regulation 1.15AA(1)(a). It also accepted that a certificate dated 4 July 2013 met the requirements of regulation 1.15AA(2) and addressed the matters specified in regulation 1.15AA(1)(b). However, the decision under review was affirmed because the applicant did not meet the criteria for a Subclass 116 visa. The Tribunal noted that there was no material before it that would permit a finding that the applicant met the prescribed criteria for the visa sought.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 main issue in the present case is whether the primary visa applicant meets the requirements of carer as defined in r.1.15AA.APPLICANT IS THE CARERWhether the visa applicant is a ‘carer’ Clause 116.221 requires that at the time of decision, the visa applicant is the carer of the Australian relative (or ‘resident’). The term ‘carer' is defined in r.1.15AA of the Regulations, which is set out in the attachment to this Decision. Applicant is a relative of the resident – r.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 r.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 mother. Based on the primary visa applicant’s birth certificate which records his parents’ names, I am satisfied that the primary visa applicant is the biological son of the review applicant, and a close relative within the meaning of r.1.03. Based on the evidence before me, I am satisfied the review applicant came to Australia in 1987, and based on her certificate of Australian citizenship, I accept she became an Australian citizen on 8 November 1995. I am satisfied that the review applicant has resided with her daughter for many years. I accept that the review applicant is usually resident in Australia. Therefore, as the primary visa applicant is the son of the Australian relative, the primary visa applicant is a ‘relative’ of the resident within the meaning of r.1.03, and meets the requirements of r.1.15AA(1)(a).Certification – r.1.15AA(1)(b) Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of r.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 r.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. I have considered the certificate dated 4 July 2013, and I am satisfied it meets the requirements of r.1.15AA(2). Further, the certificate addresses each of the matters mentioned in r.1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of r.1.15AA(1)(b) are met.Residency status of person with medical condition – r.1.15AA(1)(ba)

Decision

Reasons for decision

For the reasons above, the visa applicant does not meet the criteria for a Subclass 116 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 sought.DECISION The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.Margie BourkeMemberATTACHMENTMigration 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

Full text does not contain this section.