Khaov (Migration) - [2024] AATA 2439

Khaov (Migration) [2024] AATA 2439 (25 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Lim Srun Khaov
VISA APPLICANTS:  Mrs Sokkim Tot
Mr Chhunheang Sroem
REPRESENTATIVE:  Mrs Lina Tjoeng (MARN: 0744254)
CASE NUMBER:  2008489
HOME AFFAIRS REFERENCE(S):          OSF2015/042342
MEMBER:Deputy President Justin Owen
DATE:25 June 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 25 June 2024 at 3:15pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass (Carer)– visa applicant is the niece of the Australian relative – a valid Carer Visa Assessment Certificate (CVAC) was issued – certificate meets the requirements of reg 1.15 – satisfied that the assistance required by the resident cannot be reasonably provided by a relevant relative – not satisfied the visa applicant has any experience or training in providing the substantial and continuing assistance an elderly person – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cls 116.221, 116.321

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 3 April 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 applicant is a 50-year old Cambodian national. The secondary applicant is her husband. The parties applied for the visa on 9 April 2015. 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 116.221.
The delegate refused to grant the visas on the basis that cl 116.221 was not met. The delegate was not satisfied the care the review applicant (Ms Lim Srun Khaov who is also the sponsor and the relevant Australian resident) requires could not be reasonably be 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.
The review applicant appeared before the Tribunal on 1 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Muoy Peov Khaov, Mr Vuthy Mau and the visa applicant Mrs Sokkim Tot who is the niece of the review applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.
The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following…

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 Khaov (Migration)

Details

AGLC: Khaov (Migration) [2024] AATA 2439
Case: [2024] AATA 2439
Decision Date: 25 June 2024

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, specifically a Subclass (Carer) visa. The visa applicant, the niece of an Australian resident, sought to be recognised as a carer for her aunt. The decision under review affirmed the refusal to grant the visa.

The primary legal issue before the Tribunal was whether the visa applicant met the criteria for being a 'carer' as defined by Regulation 1.15AA of the Migration Regulations 1994, particularly in relation to clause 116.221 of Schedule 2. This involved determining if the applicant was a relative, if a valid Carer Visa Assessment Certificate (CVAC) was issued and met regulatory requirements, and crucially, if the assistance required by the Australian resident could not be reasonably provided by other means.

The Tribunal was satisfied that the visa applicant was a niece and therefore a 'relative' of the Australian resident, meeting Regulation 1.15AA(1)(a). It also found that a valid CVAC had been issued and met the requirements of Regulation 1.15AA(2), confirming the resident's medical condition, the resulting impairment, and the ongoing need for assistance. However, the Tribunal was not satisfied that the visa applicant possessed the necessary experience or training to provide the substantial and continuing assistance required, nor that the assistance could not be reasonably obtained from other relatives or welfare services in Australia, as stipulated in Regulation 1.15AA(1)(e) and (f).

Consequently, the Tribunal affirmed the decision not to grant the visa applicants the Other Family (Migrant) (Class BO) visas, as the secondary visa applicant did not meet the primary criteria for the grant of such a 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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the visa applicant meets Regulation 1.15AA(1)(e) for the purposes of cl.116.221 of Schedule 2 to the Regulations.Whether the visa applicant is a ‘carer’ Clause 116.221 requires that at the time of decision, the visa 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 visa applicant’s aunt. On the evidence and identity documentation in the Departmental and Tribunal files, the Tribunal is satisfied that the visa applicant is the niece of the Australian relative. Therefore, as the visa applicant is the niece of the Australian relative, the visa 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 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 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 31 October 2019. 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 visa 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 person who has the medical condition 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.

Decision

Reasons for decision

There is no evidence, and no claims before the Tribunal, that the secondary visa applicant meets the primary criteria for the grant of an Other Family (Migrant) (Class BO) visa.DECISION The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.. 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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