Li (Migration) - [2023] AATA 3522

Li (Migration) [2023] AATA 3522 (11 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT: Mr Shuhua Li
VISA APPLICANTS: Mr Zhenyu Li
Ms Lu Sun
Master Shengxi Li

REPRESENTATIVE:  Mr Stanley Chan (MARN: 0430097)
CASE NUMBER:  1929635
HOME AFFAIRS REFERENCE(S):          OSF2015/000898
MEMBER:Deputy President Justin Owen
DATE:11 September 2023
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 11 September 2023 at 2:13pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa –Subclass 116(Carer)– visa applicant is the son of the ‘close relative’ who is an Australian citizen usually resident in Australia – no attempts were made whatsoever to obtain the care and assistance from community, government, hospital and welfare organisations the review applicant requires – applicant’s desire for this care to be obtained from his son is clearly a preference rather than for any specific cultural reason – not satisfied the visa applicant has the specialist skills required to provide the assistance the review applicant requires ––no evidence to show assistance cannot be provided by or obtained from welfare, hospital, nursing or community services in Australia – 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

CASES
Hon Anh Vuong v MIAC [2013] FCCA 274
Lam v MIBP [2013] FCCA 1263
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 11 October 2019 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 16 March 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 primary visa applicant (the visa 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 the delegate found it had not been demonstrated that the care the Australian resident (and review applicant) required, could not reasonably be obtained from welfare, hospital, nursing or community services in Australia and therefore the visa applicant was unable to meet reg 1.15AA(1)(e)(ii) of the Regulations.
The review applicant appeared before the Tribunal on 23 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s wife, Ms Shuzhen Sui and the visa applicant, Mr Zhenyu Li. The Tribunal hearing was conducted with the assistance…

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 Li (Migration)

Details

AGLC: Li (Migration) [2023] AATA 3522
Case: [2023] AATA 3522
Decision Date: 11 September 2023

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, Subclass 116 (Carer), brought by a son seeking to care for his Australian citizen father. The dispute centred on whether the visa applicant met the criteria for being a "carer" as defined by the Migration Regulations 1994. The decision was made by Deputy President Justin Owen of the Tribunal.

The Tribunal was required to determine whether the visa applicant satisfied the requirements of clause 116.221 of the Migration Regulations, specifically whether he qualified as a "carer" of his Australian resident father. This involved assessing whether the applicant was a relative, whether a valid certificate confirmed the father's medical condition and need for assistance, and crucially, whether such assistance could not reasonably be provided by other relatives or obtained from Australian welfare, hospital, nursing, or community services.

The Tribunal found that the visa applicant was a relative of the Australian citizen father and that a valid Carer Visa Assessment Certificate confirmed the father's medical condition, resulting in a 40-point impairment rating and a continuing need for direct assistance for at least two years. However, the Tribunal concluded that the applicant failed to satisfy the critical criterion that the required assistance could not reasonably be provided by any other relative or obtained from Australian community services. The Tribunal noted that no attempts had been made to seek care from such organisations, and the applicant's desire for his son to provide care was considered a preference rather than a necessity driven by a lack of alternatives. The Tribunal was not satisfied that the applicant possessed the specialist skills required to provide the necessary assistance, nor was there evidence that such assistance could not be obtained from Australian welfare, hospital, nursing, or community services.

Consequently, the Tribunal affirmed the decision not to grant the visa applicants the Other Family (Migrant) (Class BO) visas.

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 The issue in the present case is whether the visa applicant meets cl 116.221.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 visa 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 father. The Tribunal is satisfied on the evidence before it the visa applicant is the son of the ‘close relative’ who is an Australian citizen usually resident in Australia. The Tribunal notes the evidence in the Departmental file that the close relative (and review applicant) arrived in Australia in September 2004, acquired permanent residence in November 2005 and Australian citizenship on 29 April 2008. The Tribunal accepts the claim the close relative is ‘usually resident in Australia’. Therefore, as the visa applicant is the son 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 the 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 two 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 23 December 2021. 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 applicants meet the primary criteria for the grant of Other Family (Migrant) (Class BO) visas.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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