Lazarevic (Migration) - [2022] AATA 4869

Lazarevic (Migration) [2022] AATA 4869 (22 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Dalibor Lazarevic
VISA APPLICANTS:  Mr Goran Mitrovic
Ms Dragica Mitrovic
Ms Gordana Mitrovic
Mr Mitar Mitrovic
REPRESENTATIVE:  Ms Danijela Stojanovic (MARN: 0958278)
CASE NUMBER:  2007889
HOME AFFAIRS REFERENCE(S):          OSF2016/029162 OSF2019/021707
MEMBER:Justin Meyer
DATE:22 November 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:
·cl 116.221 of Schedule 2 to the Regulations

In relation to the secondary applicants, the Tribunal remits the applications for the visas to the Minister to consider the remaining criteria for the grant of the visa.

Statement made on 22 November 2022 at 11:41am

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – sponsorship requirements – carer of an Australian relative – assistance from other relatives – assistance from certain services – cultural barriers – agoraphobia – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cls 116.212, 116.221
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 1 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 applicants applied for the visa on 5 July 2016. 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 because (per the delegate’s decision):
The Department accepts that the sponsor preferred to be cared for by a family member, this does not negate the requirement for the family to thoroughly investigate a broad range of other suitable care arrangements for the purposes of this application. I am not satisfied that this has occurred.
Having assessed all of the information available to me, I am not satisfied that it has been demonstrated that a full investigation on the availability of in-home welfare/community facilities has been made.
While I accept that the sponsor requires care, I do not find that it has been demonstrated that the care he requires has been sought and cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. Therefore,…

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 Lazarevic (Migration)

Details

AGLC: Lazarevic (Migration) [2022] AATA 4869
Case: [2022] AATA 4869
Decision Date: 22 November 2022

CaseChat Overview and Summary

This matter concerned applications for Other Family (Migrant) (Class BO) visas, specifically Subclass 116 (Carer) visas. The visa applicant, Mr. Goran Mitrovic, sought to migrate from Serbia to Australia to care for his nephew, Mr. Dalibor Lazarevic, an Australian citizen residing in Geelong. Mr. Lazarevic suffers from severe vision impairment, making him legally blind, and also experiences chronic depression, anxiety, and agoraphobia, requiring significant assistance with daily living activities. The review applicant, Mr. Lazarevic, contended that only his uncle could provide the necessary level of care due to the specific nature of his needs. The decision was made by the Tribunal.

The primary legal issues before the Tribunal were whether the visa applicant qualified as a "carer" under the Migration Regulations 1994, and whether the sponsorship requirements for the visa were met. Specifically, the Tribunal had to determine if the assistance Mr. Lazarevic required could reasonably be obtained from any other relative in Australia or from Australian welfare, hospital, nursing, or community services. The Tribunal also considered whether the sponsorship by Mr. Lazarevic encompassed the sponsorship of his family members who were also visa applicants.

The Tribunal reasoned that the visa applicant, Mr. Mitrovic, was a relative of the Australian citizen, Mr. Lazarevic, and that Mr. Lazarevic had a medical condition causing significant physical and psychological impairment, necessitating ongoing care for at least two years. The Tribunal was satisfied that Mr. Lazarevic had a permanent or long-term need for assistance and that the assistance could not reasonably be provided by any other relative in Australia or obtained from Australian services, considering the specific nature of Mr. Lazarevic's conditions, including cultural barriers and his psychological state. The Tribunal also found that the sponsorship of the primary visa applicant included the sponsorship of his family members.

Consequently, the Tribunal remitted the applications for the Subclass 116 (Carer) visas for reconsideration. The Tribunal directed that the criterion under clause 116.221 of Schedule 2 to the Regulations, relating to the sponsorship of the person satisfying the primary criteria, was met. For the secondary applicants, the Tribunal remitted their applications to the Minister for consideration of the remaining visa grant criteria.

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 assistance the review applicant (sponsor) requires can be reasonably obtained from any other relative of the review applicant (sponsor) or from welfare, hospital, nursing or community services in Australia.Whether the visa applicant has claimed to be a ‘carer’ Clause 116.211 of the Regulations requires that the visa applicant claims to be a carer of an Australian relative. In the present case, the visa application was made on the basis that the visa applicant is a carer of the review applicant, who is the visa applicant’s uncle. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 116.211(2). The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.SPONSORSHIPAre the sponsorship requirements met? Clause 116.212 requires that at the time of application the visa applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18. If sponsored by the spouse or de facto partner, the spouse or de facto partner must cohabit with the Australian relative and must be an Australian citizen, permanent resident or eligible New Zealand citizen. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations. ‘Spouse’ is defined in r.1.15A (for visa applications made before 1 July 2009) and s. 5F of the Act (for visa applications made after that date, whilst ‘de-facto’ partner is defined in s.5CB of the Act).Family relationships The relevant family relationships in this case are:·Mr Dalibor Lazarevic (the review applicant (sponsor)), a 33 year-old married father, an Australian citizen.·Mr Goran Mitrovic, (the visa applicant), the 50 year-old uncle of the sponsor, who resides in Serbia. The second, third and fourth visa applicants (Ms Dragica Mitrovic, Ms Gordana Mitrovic, and Mr Mitar Mitrovic) are Goran Mitrovic’s wife and children.The claims The review applicant (sponsor) in essence claims that only his uncle can provide the type of care that he needs. The conditions of the review applicant (sponsor) As confirmed by a 25 August 2021 letter from Dr Ahmed Hassan, a general practitioner in Geelong, the review applicant (sponsor) suffers from, or experiences:· Macular dystrophy with vison of 2/60 in both eyes.· He is legally blind.· Chronic depression A treating psychologist (Mr Zac Stojcevski), who the review applicant (sponsor) regularly consults, wrote on 29 October 2021 that he suffers from conditions as follows:· Congenital vision deficit/blindness and a deteriorating condition with retinal atrophy.· Psychologically he fulfills the diagnoses of severe adjustment disorder. Mixed anxiety and depressed mood present. Elements of trauma and agoraphobia.· Deteriorating physical and psychological condition. He is alone at times and ruminates.· Severe range of impairment. He has varying needs with dressing and grooming, bathing, restroom use and ambulation. He would benefit from intense and reassuring assistance of his uncle as carer.

Decision

Reasons for decision

The Tribunal is satisfied that the sponsorship mentioned in cl.116.221 of the person who satisfies the primary criteria includes the sponsorship of the family members.DECISION The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer visa) are met: ·cl.116.221 of Schedule 2 to the RegulationsIn relation to the secondary applicants, the Tribunal remits the applications for the visas to the Minister to consider the remaining criteria for the grant of the visa.Justin MeyerMemberATTACHMENTMigration 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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