Huang (Migration) - [2022] AATA 3317

Huang (Migration) [2022] AATA 3317 (15 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Jing Huang
VISA APPLICANTS:  Mrs Fei Huang
Mr Surui Huang
CASE NUMBER:  2012836
HOME AFFAIRS REFERENCE(S):          OSF2018/028285
MEMBER:Ann Duffield
DATE:15 August 2022
PLACE OF DECISION:  Canberra
DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 15 August 2022 at 1:15pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – carer of the sponsor – willing and able to provide substantial and continuing assistance – available care from Australian relatives – care reasonably provided by welfare, hospital, nursing or community services – no further attempts to seek community assistance – current carer’s health issues – NDIS services – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 116.211, 116.221; rr 1.03, 1.15
CASES
Anveel v MIBP [2013] FCCA 2181
Truong v MIBP [2014] FCCA 1289
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 26 June 2020 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visa on 19 April 2018. 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. Relevantly to this matter, the primary criteria to be met include cl 116.211 and cl 116.221.
The delegate refused to grant the visas on the basis that cl 116.211 not met because the delegate was not satisfied that the applicant met the definition of “carer” as stipulated in Regulation 1.15AA, in particular that the assistance required by the resident cannot reasonably be provided by any other relative or obtained from welfare, hospital, nursing or community services in Australia. The delegate was further not satisfied that the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind envisaged by the Regulations.
The review applicant appeared before the Tribunal on 27 July 2022 via Teams to give evidence and present arguments. The Tribunal also received oral evidence from the primary visa applicant (the visa applicant) via telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The secondary applicant on the application, Mr Surui Huang, DOB 6 July 2007, is the son of the visa applicant. He is 15 years old. There is some suggestion in the review applicant’s submission…

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 Huang (Migration)

Details

AGLC: Huang (Migration) [2022] AATA 3317
Case: [2022] AATA 3317
Decision Date: 15 August 2022

CaseChat Overview and Summary

This matter concerned an appeal by Ms Fei Huang against a decision not to grant her an Other Family (Migrant) (Class BO) visa, specifically a Subclass 116 (Carer) visa. The visa was sought to allow Ms Huang to provide care to Mr Strik, an Australian resident suffering from severe mental illness. The core of the dispute revolved around whether Mr Strik could reasonably receive the necessary assistance from other relatives in Australia or from available welfare, hospital, nursing, or community services, and conversely, whether Ms Huang was willing and able to provide substantial and continuing assistance.

The Tribunal was required to determine if the criteria for the Subclass 116 visa were met, particularly concerning the availability of alternative care for Mr Strik and Ms Huang's capacity to provide the required support. This involved assessing whether Mr Strik's needs could be met by other Australian relatives or by community services, and if Ms Huang possessed the willingness and ability to offer ongoing, substantial care. The Tribunal also considered the evidence presented regarding Mr Strik's medical condition, including a Carer Visa Assessment Certificate indicating a 30-point impairment rating due to schizoaffective disorder, and the steps taken, or not taken, to secure alternative care.

The Tribunal reasoned that while Ms Huang expressed willingness to provide care, including preparing meals, assisting with medication, hygiene, and appointments, there was insufficient evidence that other avenues for care had been exhausted. Specifically, the Tribunal noted the absence of attempts to seek other in-home assistance, hospital, community, or other services for Mr Strik, despite a request for NDIS assistance having been submitted. The Tribunal concluded that Ms Huang did not meet the criteria for the Subclass 116 visa, as the requirement for demonstrating that assistance could not reasonably be obtained from other sources was not satisfied.

Consequently, the Tribunal affirmed the decision not to grant Ms Huang the Other Family (Migrant) (Class BO) visa. No material was presented that would permit a finding that Ms Huang met the prescribed criteria for any other visa subclasses that may have been considered.

Orders

Orders of the court

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Background

Background to the litigation

The issue in the present case is whether the Australian resident cannot reasonably be provided with assistance by any other relative or obtained from welfare, hospital, nursing or community services in Australia, or that visa 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). BACKGROUND The review applicant is a citizen of Australia born on 17 February 1971 (51 years old). She previously sponsored her mother, Mrs Shufen Guan, DOB 4 October 1939, to Australia as a carer for Mr Strik (DOB 18 May 1978), the resident, in July 2010. That application was successful upon review to a differently constituted Tribunal in September 2011. Ms Guan is now 83 years old and has been the carer to Mr Strik since she arrived in 2012. She has been receiving a carer pension of $1075 per fortnight in relation to that role since her arrival. The visa applicant, Ms Fei Huang (DOB 11 April 1967) is the sister of the review applicant and sister-in-law to Mr Strik, She is retired. She has not declared any experience in mental illness. She claims to speaks basic English.Information before the Department and Tribunal The review applicant states that Mr Strik continues to suffer severe mental illness that prevents him from performing everyday functions. A Carer Visa Assessment Certificate dated 22 November 2021 indicates a total impairment rating of 30 points to Mr Strik. He has been diagnosed with schizoaffective disorder of a relapsing and remitting type which has had a severe impact on his function with multiple previous hospital admissions and ongoing inter-episode symptoms. Mr Strik’s most recent hospitalisation was in November 2020. A copy of that certificate is on the Tribunal file. The review applicant states that they made a request for NDIS assistance in June 2020. The review applicant provided the Tribunal with a copy of a letter from Mission Australia confirming that an NDIS Access Request has been submitted on behalf of Mr Strik on 12 June 2020. There is no evidence that the review applicant has made any attempt to seek other in-home assistance, hospital, community or other assistance for Mr Strik. According to statements provided by the review applicant and visa applicant, the visa applicant intends to find her own accommodation close to the home of the review applicant and Mr Strik. The visa applicant and her son will be assisted financially by the visa applicant’s husband as well as the review applicant who has stated that she will pay for their accommodation, car and utilities for two years after their arrival. The visa applicant has stated that she will prepare nutritious meals and assist Mr Strik to take his medicine, maintain his hygiene, wash his clothes, take him to doctor’s appointments and accompany him for exercise. The visa applicant and her son visited Australia in early 2017 and have met Mr Strik. The visa applicant states that she is aware that Mr Strik is suffering from mental illness, but she is not frightened or scared.

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 issue in the present case is whether the Australian resident cannot reasonably be provided with assistance by any other relative or obtained from welfare, hospital, nursing or community services in Australia, or that visa 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). BACKGROUND The review applicant is a citizen of Australia born on 17 February 1971 (51 years old). She previously sponsored her mother, Mrs Shufen Guan, DOB 4 October 1939, to Australia as a carer for Mr Strik (DOB 18 May 1978), the resident, in July 2010. That application was successful upon review to a differently constituted Tribunal in September 2011. Ms Guan is now 83 years old and has been the carer to Mr Strik since she arrived in 2012. She has been receiving a carer pension of $1075 per fortnight in relation to that role since her arrival. The visa applicant, Ms Fei Huang (DOB 11 April 1967) is the sister of the review applicant and sister-in-law to Mr Strik, She is retired. She has not declared any experience in mental illness. She claims to speaks basic English.Information before the Department and Tribunal The review applicant states that Mr Strik continues to suffer severe mental illness that prevents him from performing everyday functions. A Carer Visa Assessment Certificate dated 22 November 2021 indicates a total impairment rating of 30 points to Mr Strik. He has been diagnosed with schizoaffective disorder of a relapsing and remitting type which has had a severe impact on his function with multiple previous hospital admissions and ongoing inter-episode symptoms. Mr Strik’s most recent hospitalisation was in November 2020. A copy of that certificate is on the Tribunal file. The review applicant states that they made a request for NDIS assistance in June 2020. The review applicant provided the Tribunal with a copy of a letter from Mission Australia confirming that an NDIS Access Request has been submitted on behalf of Mr Strik on 12 June 2020. There is no evidence that the review applicant has made any attempt to seek other in-home assistance, hospital, community or other assistance for Mr Strik. According to statements provided by the review applicant and visa applicant, the visa applicant intends to find her own accommodation close to the home of the review applicant and Mr Strik. The visa applicant and her son will be assisted financially by the visa applicant’s husband as well as the review applicant who has stated that she will pay for their accommodation, car and utilities for two years after their arrival. The visa applicant has stated that she will prepare nutritious meals and assist Mr Strik to take his medicine, maintain his hygiene, wash his clothes, take him to doctor’s appointments and accompany him for exercise. The visa applicant and her son visited Australia in early 2017 and have met Mr Strik. The visa applicant states that she is aware that Mr Strik is suffering from mental illness, but she is not frightened or scared.

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.Ann DuffieldSenior Member

Ratio Decidendi

Legal Principle Established

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