Fitzgerald (Migration) - [2024] AATA 366

Fitzgerald (Migration) [2024] AATA 366 (21 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs May Babaran Fitzgerald
CASE NUMBER:  2115600
HOME AFFAIRS REFERENCE(S):          CLF2018/211035
MEMBER:Deputy President Justin Owen
DATE:21 February 2024
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 836.221 of Schedule 2 to the Regulations.

Statement made on 21 February 2024 at 11:01am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – assistance could not reasonably be provided by relatives in Australia – welfare, hospital, nursing or community services in Australia – sponsor lives remotely from relatives – limited services in regional community – lengthy genuine partner relationship – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 836.221; 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 19 October 2021 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 7 September 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.
The delegate refused to grant the visa on the basis that cl 836.221 was not met because the delegate was not satisfied that it had been demonstrated that it would be unreasonable for the applicant’s Australian relatives to provide the care the sponsor requires. The delegate was also not satisfied the care the sponsor requires could not be reasonably obtained from welfare, hospital, nursing and community services. The delegate also found that there was no evidence to suggest the applicant was willing and able to assist the sponsor.
The applicant appeared before the Tribunal on 31 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, and sponsor Mr Barry William Fitzgerald and their daughter Miss Princess Fitzgerald.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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…

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 Fitzgerald (Migration)

Details

AGLC: Fitzgerald (Migration) [2024] AATA 366
Case: [2024] AATA 366
Decision Date: 21 February 2024

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant sought to migrate to Australia to care for their Australian resident husband. The decision was made by Deputy President Justin Owen.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a carer visa, specifically concerning the definition of a "carer" as set out in regulation 1.15AA of the Migration Regulations 1994. This involved determining if the applicant was a relative of the Australian resident, if a valid certificate established a medical condition requiring ongoing care, and if such assistance could not reasonably be provided by other means in Australia.

The Tribunal found that the applicant was a relative of the Australian resident, her husband, and that a valid Carer Visa Assessment Certificate (CVAC) had been issued, confirming the husband's medical condition, the resulting impairment, and the ongoing need for direct assistance for at least two years. The Tribunal noted that while the applicant and sponsor had been in a genuine and continuing relationship since 1998 and had children together, they had not sought advice regarding a Partner visa, which might have been a more straightforward pathway. Despite this observation, the Tribunal concluded that the criteria for the Carer visa were met.

The Tribunal remitted the application for reconsideration with a direction that the criteria for the Subclass 836 (Carer) visa, specifically clause 836.221 of Schedule 2 to the Regulations, 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

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCEWhether 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. 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 husband. The Tribunal is satisfied on the evidence before it that the applicant is the spouse and therefore a ‘relative’ of the Australian relative who is an Australian citizen usually resident in Australia. Therefore, as the applicant is the spouse 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). Regulation 1.15AA(1)(b) requires that a certificate, which meets the 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. The Tribunal is satisfied that a valid Carer Visa Assessment Certificate (CVAC) was issued on 20 August 2018 by Dr J E Carroll. The Tribunal is satisfied that the certificate meets the requirements of reg 1.15AA(2). The Tribunal is satisfied that according to the certificate, the resident or member of the family unit of the applicant has a medical condition causing impairments of the person’s ability to attend to the practical aspects of daily life. The Tribunal is satisfied that the impairment has an impairment rating (of 40) specified in the certificate. The Tribunal is satisfied that because of the medical condition, the person has and will continue to have for at least two years, a need for direct assistance in attending to the practical aspects of daily life. 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.

Decision

Reasons for decision

For completeness, the Tribunal notes that what may have been the easier and more logical pathway for the applicant and sponsor to follow in relation to the applicant’s migration status would be to lodge an application for a Partner visa. All the evidence before the Tribunal suggests the applicant and sponsor have been in a genuine and continuing de facto or spousal relationship since 1998. They have two children together who are both now successfully at university and loving of their parents. When the Tribunal enquired of this fact, the sponsor stated that he and the applicant had not sought any advice before lodging their application. 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 836.221 of Schedule 2 to the Regulations;Justin OwenDeputy PresidentATTACHMENTMigration 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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