Huang (Migration) - [2024] AATA 3074

Huang (Migration) [2024] AATA 3074 (19 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Yiqiang Huang
Ms Huiqing Zheng
Master Shangli Huang
REPRESENTATIVE:  Mr Stanley Chan (MARN: 0430097)
CASE NUMBER:  2108417
HOME AFFAIRS REFERENCE(S):          CLF2016/98065
MEMBER:Kira Raif
DATE:19 August 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas 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 19 August 2024 at 11:33am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – assistance could not reasonably be provided by relatives in Australia – social and behavioural issues – sponsor’s needs are best met by family members – welfare, hospital, nursing or community services in Australia – applicant’s qualification in Aged Care – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 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 24 June 2021 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant (the applicant) is a national of China, born in August 1978. He applied for the visa on 21 December 2016. The application includes his partner and child. The delegate previously refused to grant the visa in May 2018 on the basis that the sponsorship requirements were not met. The matter was remitted by the Tribunal in February 2021. In June 2021 the delegate again refused the application on the basis that cl 836.221 was not met because the delegate was not satisfied the applicant was the carer of an Australian relative. The applicants seek review of the delegate’s decision.
The visa applicants also made an application for a Carer visa offshore and it is the subject of a separate review before this Tribunal. The two applications were heard together as they raise the same issues.
The applicants appeared before the Tribunal on 19 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The applicants were represented in relation to the review. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Relevant law
At the time the application was made, 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…

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) [2024] AATA 3074
Case: [2024] AATA 3074
Decision Date: 19 August 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered 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 an Australian relative, asserting that assistance could not reasonably be provided by relatives residing in Australia. The core of the dispute revolved around whether the sponsor's needs, including social and behavioural issues, were best met by family members and whether the applicant's qualifications in Aged Care were relevant to the assessment.

The Tribunal was required to determine whether the applicant met the criteria for a Subclass 836 visa, particularly concerning the necessity of the applicant's care and the unavailability of adequate support from relatives in Australia. The assessment also involved considering whether the sponsor's welfare, hospital, nursing, or community services needs could be met by existing Australian services or if the applicant's presence was essential.

The Tribunal found that certain criteria for the Subclass 836 visa were met. It reasoned that the applicant's qualifications in Aged Care were relevant to the sponsor's needs. Consequently, the Tribunal remitted the application to the Minister for further consideration of the remaining visa criteria, directing that the specific criterion under cl 836.221 of Schedule 2 to the Regulations was satisfied.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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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 836 visa.DECISION The Tribunal remits the applications for Other Family (Residence) (Class BU) visas 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 RegulationsKira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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