Khan (Migration) - [2019] AATA 1668

Khan (Migration) [2019] AATA 1668 (30 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mohammed Zilpukar Khan
CASE NUMBER:  1720944
HOME AFFAIRS REFERENCE(S):           CLF2016/10393
MEMBER:Justin Owen
DATE:30 January 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 30 January 2019 at 3:09pm

CATCHWORDS
MIGRATION – Other Family (Residence)(Class BU) – Subclass 836 (Carer) – permanent or long-term need to provide direct assistance – insufficient evidence to determine assistance could not be provided by other family member or service – unconvincing and weak evidence to the needs of the primary carer requiring direct assistance – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, r 1.15AA, cl 836.221
CASES
Anveel v MIBP [2013] FCCA 2181
Jajo v MIBP [2013] FCCA 1554
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 and Border Protection on 24 August 2017 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 16 February 2016. 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 (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. 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 r.1.15AA of the Regulations which is set out in the attachment to this Decision.
The delegate refused to grant the visa on the basis that under cl.836.221 the applicant had not provided sufficient evidence to determine that the resident had a permanent or long-term need for assistance in providing direct assistance mentioned in regulation 1.15AA(1)(b)(iv) and therefore did not meet regulation 1.15AA(1)(d). The delegate also found that the applicant had not provided sufficient evidence to determine that the assistance cannot be reasonably be provided by any other relative of the resident, or reasonably obtained from welfare, hospital, nursing or community services in Australia: regulation 1.15AA(e)(i) and regulation 1.15AA(1)(e)(ii). As the applicant did not meet these requirements the delegate found the applicant was unable to meet the requirements of a Carer as defined in regulation 1.15AA. As the applicant did not satisfy regulation 1.15AA, the delegate found the applicant did not meet cl.836.221 in Schedule 2 to the Regulations.
The applicant appeared before the Tribunal on 24 January 2019 to give evidence and present arguments.
For…

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 Khan (Migration)

Details

AGLC: Khan (Migration) [2019] AATA 1668
Case: [2019] AATA 1668
Decision Date: 30 January 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr Khan, who sought review of a decision not to grant him an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant claimed to be a carer for his niece, Miss Ayesha Saima Ali, who has Down Syndrome and resides in Australia with her parents, the applicant's sister and brother-in-law.

The Tribunal was required to determine whether the applicant met the criteria for a carer visa, particularly under Regulation 1.15AA of the Migration Regulations 1994. This involved assessing whether Miss Ali had a permanent or long-term need for direct assistance with daily life due to her medical condition, and crucially, whether her Australian resident mother, Mrs Saira Ali, had a permanent or long-term need for assistance in providing that care, and if such assistance could not reasonably be provided by other relatives or obtained from community services.

The Tribunal found that while Miss Ali had a Carer Visa Assessment Certificate with an impairment rating of 30, the applicant's claim to be the primary carer was unconvincing. The applicant resided with Miss Ali and her parents, and while he assisted with school runs and shopping, Miss Ali's mother was responsible for her personal care, such as showering and toileting. The Tribunal concluded that the evidence did not establish that Mrs Saira Ali had a permanent or long-term need for assistance in providing care, nor that such assistance could not reasonably be provided by her or obtained from other sources. Consequently, the Tribunal affirmed the delegate's decision not to grant the visa.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE As stated in the decision record the applicant provided the Tribunal, the applicant has provided evidence of a Carer Visa Assessment Certificate for the daughter of the Australian resident, his niece Miss Ayesha Saima Ali. The decision record states that Miss Ali was assigned a rating of 30 under the Impairment Tables in her Carer Visa Assessment Certificate. The delegate’s decision states that Miss Ali has Downs Syndrome. The applicant claims to reside with Miss Ali, her mother (and his sister) Mrs Saira Ali and his brother in law, Miss Ali’s father. The Tribunal accepts the applicant is Miss Ali’s uncle and he is currently residing with Miss Ali and her parents. The Tribunal discussed with the applicant the care he currently provides his niece Miss Ali who is 15 years of age. The applicant said he has resided with Miss Ali and her parents since his relationship with his partner ended in November 2015. The applicant said he cares for Miss Ali by taking her to and from school (she is a student at Cecil Hills High). He said he does the shopping for the house with Miss Ali (with funds provided by Miss Ali’s mother and her husband). The Tribunal asked what Miss Ali’s mother, given she lives under the same roof, did for her daughter in terms of the provision of care. The applicant said Miss Ali’s mother does all the showering and toileting related activities with Miss Ali. He said that if he was feeling unwell then she does the activities he would normally do with Miss Ali. The applicant said Miss Ali’s mother also would clean around the house. Mr Ali’s claim is that he is the carer of Miss Ali. Where the person to whom the Carer Visa Assessment Certificate relates is not the Australian relative (resident), but a member of their family unit, r.1.15AA(1)(d) requires the Australian relative to have a permanent or long-term need for assistance in providing the direct assistance mentioned in r.1.15AA(1)(b)(iv). That direct assistance is for the subject of the certificate attending to the practical aspects of daily life for at least 2 years as a result of the medical condition. In the present case the Australian relative (resident) is not the subject of the certificate. The person to whom the certificate relates to is Miss Ayesha Saima Ali who at the time of decision is 15 years old. The decision record states that Miss Ali was assigned a rating of 30 under the Impairment Tables in her Carer Visa Assessment Certificate. The delegate’s decision states that Miss Ali has Downs Syndrome. The Australian relative claiming to have a permanent or long-term need for assistance in providing the direct assistance needed in attending to the practical aspects of Miss Ali’s daily life for at least 2 years as a result of the medical condition is the applicant’s sister, the mother of Miss Ali, Mrs Saira Ali.

Decision

Reasons for decision

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 applicant an Other Family (Residence) (Class BU) visa.Justin OwenSenior MemberATTACHMENTMigration 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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