Gurung (Migration) - [2023] AATA 3759

Gurung (Migration) [2023] AATA 3759 (21 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Manoj Gurung
REPRESENTATIVE:  Mr Tonnou Ghothane, Ghothane Lawyers
CASE NUMBER:  1827217
HOME AFFAIRS REFERENCE(S):          CLF2017/41121
MEMBER:Michael Ison
DATE:21 June 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 21 June 2023 at 5:04pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – ‘carer’ of an Australian relative – CVAC certification – fully dependent – assistance cannot reasonably be provided/obtained – other relatives – children – grandchildren – welfare, hospital, nursing or community services – specific cultural needs – Nepalese Buddhist – insufficient inquiries about the assistance that may be available – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA; Schedule 2, cls 836.212, 836.213, 836.221, 836.321
CASES
1822388 (Migration) [2022] AATA 4346
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 13 September 2018 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).
Background
The applicant is Mr Manoj Gurung who is 46 years of age and is a national of Nepal. Mr Gurung is referred to as the applicant in these reasons for decision.
The applicant first arrived in Australia on 11 March 2017 as the holder of a Visitor (Class FA) (Subclass 600) visa that was valid to 11 June 2017.
On 2 June 2017 the applicant applied for an Other Family (Residence) (Class BU) (Subclass 836) (Carer) visa while in Australia on the basis that the applicant is a relative of his sponsor, Mr Em Bahadur Gurung, who is the applicant’s father. It is the refusal to grant the applicant the Carer visa that is the subject of this review.
The applicant provided the Department with the certificate of relationship issued by the Lekhnath Municipality in Nepal showing the names of his parents. The certificate was signed and stamped by a relevant legal officer. This demonstrates to the Tribunal’s satisfaction that the sponsor Mr Em Bahadur Gurung is the applicant’s father.
Mr Em Bahadur Gurung is 83 years old and had Australian citizenship conferred on him on 27 April 2004. Mr Em Bahadur Gurung is referred to as the resident and also the sponsor in these reasons for decision.
On 23 June 2005 the applicant married Ms Shanti Devi Gurung and provided a copy of their marriage certificate to the Department. The Tribunal accepts that Ms Shanti Devi…

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 Gurung (Migration)

Details

AGLC: Gurung (Migration) [2023] AATA 3759
Case: [2023] AATA 3759
Decision Date: 21 June 2023

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse to grant Mr Manoj Gurung, a national of Nepal, an Other Family (Residence) (Class BU) visa, Subclass 836 (Carer). Mr Gurung applied for the visa on the basis that he is a carer for his Australian citizen father, Mr Em Bahadur Gurung, who is 83 years old. Mr Gurung's wife and two children remained in Nepal.

The primary legal issue before the Tribunal was whether Mr Gurung met the criteria for a Subclass 836 visa, specifically whether he was a 'carer' of his Australian relative as defined by the Migration Regulations 1994. This involved determining if the applicant was a relative of the resident, if a certificate (CVAC) certified the resident's medical condition and need for care, and crucially, if assistance could not reasonably be provided or obtained from other relatives or welfare services.

The Tribunal considered the definition of 'carer' under regulation 1.15AA, which requires the applicant to be a relative of the Australian resident and for a CVAC to certify the resident's medical condition and ongoing need for care. While the applicant was accepted as a relative and a CVAC indicated the father had an impairment rating of 30 due to osteoarthritis, chronic back pain, dizziness, and balance issues, the delegate had refused the visa on the basis that regulation 1.15AA(1)(e)(i) was not met. This was because the delegate found it had not been demonstrated that it would be unreasonable for the resident's other Australian relatives, including a son and daughter, to provide the required care collectively or individually. The Tribunal noted that the applicant's previous representative had indicated an intention to submit evidence addressing why other relatives could not provide care, and evidence regarding the unreasonableness of obtaining assistance from welfare, hospital, nursing, or aged care support providers, but this evidence was not received.

The Tribunal affirmed the delegate's decision to refuse the visa.

Orders

Orders of the court

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Background

Background to the litigation

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 September 2018 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).Background The applicant is Mr Manoj Gurung who is 46 years of age and is a national of Nepal. Mr Gurung is referred to as the applicant in these reasons for decision. The applicant first arrived in Australia on 11 March 2017 as the holder of a Visitor (Class FA) (Subclass 600) visa that was valid to 11 June 2017. On 2 June 2017 the applicant applied for an Other Family (Residence) (Class BU) (Subclass 836) (Carer) visa while in Australia on the basis that the applicant is a relative of his sponsor, Mr Em Bahadur Gurung, who is the applicant’s father. It is the refusal to grant the applicant the Carer visa that is the subject of this review. The applicant provided the Department with the certificate of relationship issued by the Lekhnath Municipality in Nepal showing the names of his parents. The certificate was signed and stamped by a relevant legal officer. This demonstrates to the Tribunal’s satisfaction that the sponsor Mr Em Bahadur Gurung is the applicant’s father. Mr Em Bahadur Gurung is 83 years old and had Australian citizenship conferred on him on 27 April 2004. Mr Em Bahadur Gurung is referred to as the resident and also the sponsor in these reasons for decision. On 23 June 2005 the applicant married Ms Shanti Devi Gurung and provided a copy of their marriage certificate to the Department. The Tribunal accepts that Ms Shanti Devi Gurung and the applicant are legally married. The applicant has two children from his marriage to Ms Shanti Devi Gurung being [Child A] who is [age] years old and [Child B] who is [age] years old. The applicant provided a copy of their birth certificates to the Department. The Tribunal accepts that [Child A] and [Child B] are the applicant’s children. The applicant’s wife and two children were not included in the applicant’s Carer visa application and remain in Nepal. On 2 June 2017 the applicant was granted a Bridging A (Subclass 010) visa that was valid to 4 October 2018 when the applicant was granted a Bridging B (Subclass 020) visa, which was valid to 7 May 2019. On 7 May 2019 the applicant was granted a further Bridging A (Subclass 010) visa, which the applicant continues to hold at the time of this decision. The applicant’s Bridging A visa has condition 8101 (No work) from Schedule 8 of the Migration Regulations 1994 (the Regulations) attached. The primary decision of a delegate of the Minister The applicant provided the Tribunal with a copy of the primary decision. The applicant applied for the visa on 2 June 2017. 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 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.

Evidence

Evidence Before The Court

Notwithstanding this, and for completeness, the Tribunal’s findings in relation to all of the relevant requirements in reg 1.15AA(1) of the Regulations are set out below.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant is the carer of the resident. APPLICANT IS A CARERWhether the applicant is a carer Clause 836.221 requires that at the time of decision, the applicant is a carer of a person referred to in cl 836.212. Clause 836.212 provides that the applicant claims to be the carer of an Australian relative (or ‘resident’). The term ‘carer’ is defined in reg 1.15AA of the Regulations which is set out in paragraph 43 of these reasons for decision.Applicant is a relative of the resident – reg 1.15AA(1)(a) Regulation 1.15AA(1)(a) requires the applicant to be 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 father for the reasons set out in the background of this decision. The Department file contains details of the resident’s grant of Australian citizenship and a copy of the biometric page of his Australian passport. The Tribunal finds the resident is an Australian citizen and the applicant is a ‘relative’ of the resident. The Department file also contains details of the resident’s personal circumstance which the Tribunal accepts. The Tribunal finds that the resident is usually resident in Australia. Therefore, as the applicant is the son 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 2 years to have, a need for direct assistance in attending to the practical aspects of daily life. For a certificate to meet the requirements of reg 1.15AA(2) it must be a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument and be signed by the medical adviser who carried it out. In this case, IMMI 14/085 applies and provides the approved health service provider is Bupa Australia Health Pty Ltd trading as Bupa Medical Services (Bupa). A CVAC has been issued in this case. The CVAC has been issued by a registered medical practitioner employed by Bupa who signed the certificate on 22 May 2017. The resident in this review has been assessed as having an impairment rating of 30 under the relevant impairment tables. The CVAC states that the resident has lower limb osteoarthritis and cramping, chronic back pain, dizziness and balance issues. The medical doctor who completed the assessment noted:Mr GURUNG’s lower limb and chronic back pain are consistent with his former service as a Paratropper in the British Army and his conditions and limitations will only worsen with age. His lower limb issues, combined with his dizziness (likely to also be a consequence of his service) result in an increased falls risk. Although some formal support services are in place for Mr GURUNG, they are insufficient for his current and future care needs and he requires someone to care and supervise him on a full time basis.

Decision

Reasons for decision

On 7 May 2019 the applicant was granted a further Bridging A (Subclass 010) visa, which the applicant continues to hold at the time of this decision. The applicant’s Bridging A visa has condition 8101 (No work) from Schedule 8 of the Migration Regulations 1994 (the Regulations) attached. The primary decision of a delegate of the Minister The applicant provided the Tribunal with a copy of the primary decision. The applicant applied for the visa on 2 June 2017. 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 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. Clause 836.221 provides:The applicant is a carer of a person referred to in clause 836.212. Clause 836.212 provides:The applicant claims to be the carer of an Australian relative. ‘Australian relative’ is defined in reg 1.03 and for an applicant means a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. ‘Carer’ is defined in reg 1.15AA which is reproduced in paragraph 43 of these reasons for decision. The delegate refused to grant the visa on the basis that cl 836.221 was not met. The delegate made this finding because the delegate found reg 1.15AA(1)(e)(i) (assistance cannot reasonably be provided by any other relative of the resident) had not been met because it had not been demonstrated to the delegate’s satisfaction that it would be unreasonable for the resident’s Australian relatives, which include a son and a daughter, to provide the care he requires either individually or on a collective basis.Postponement of the Tribunal hearing scheduled for 30 September 2022 On 17 August 2022 the Tribunal sent a letter inviting the applicant to attend a hearing on 30 September 2022 by video to give evidence and present arguments relating to the issues arising in the applicant’s case. On 28 September 2022 the Tribunal received an email from the applicant through a previous and not current representative requesting that the hearing be postponed. The previous representative, who was appointed by the applicant on 20 September 2022, requested an adjournment for a period of ten weeks to allow the representative sufficient time to properly prepare the applicant’s case for presentation to the Tribunal. In addition, the applicant requested an in-person hearing rather than a video hearing. The Tribunal agreed to these requests. In the above email the previous representative stated he would be submitting the following evidence in support of the applicant’s application for review but such a submission was not received by the Tribunal:·Statements from applicant, father, and siblings that explain why his other relatives cannot reasonably aid or care for the applicant and / or his aged father ·Current BUPA examining doctors report and other health professionals ·Character references ·Outcome of the My Aged Care discussions held between family and My Aged Care team however the family does not have a written report from those discussions. This needs to be obtained ·Evidence that indicates that assistance cannot be reasonably be obtained from any welfare, hospital, nursing, or aged care support providers in his local area, that meet his needs ·My Aged care assessment ·Any other supporting documents that are deemed to support the visa application by Mr Manoj Gurung ·Carer needs analysis for the aged father Tribunal hearing 7 December 2022 cancelled by the Tribunal

Ratio Decidendi

Legal Principle Established

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