Lin (Migration) - [2019] AATA 1974

Lin (Migration) [2019] AATA 1974 (24 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Tze Chun Lin
VISA APPLICANT:  Miss Ai Chuan Lin
CASE NUMBER:  1728455
HOME AFFAIRS REFERENCE(S):           OSF2014/028260
MEMBER:Justin Owen
DATE:24 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.

Statement made on 24 May 2019 at 11:51am

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – capacity to participate in hearing – dementia – support from daughter increasingly unsustainable – assistance reasonably obtained from welfare, nursing or community services – language barriers – TeoChow dialect – cultural needs – personal preferences – fear of ‘strangers’ in the home – comprehensive ACAT assessment not undertaken – 24-hour care – Home Care package – unique or exceptional circumstances – Ministerial Intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 360
Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cls 116.212, 116.221, 116.222
CASES
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Kumar v MIAC [2009] FMCA 649
Lin v MIMIA [2004] FCA 606
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 15 September 2017 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 14 May 2014. 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 (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 visa on the basis that cl.116.221 was not met because the delegate was not satisfied the review applicant could not source the assistance she required from services in Australia and r.1.15AA(1)(e)(ii) was not met.
The review applicant appeared before the Tribunal on 26 March 2019. The Tribunal also received oral evidence from the visa applicant Miss Ai Chuan Lin who is the review applicant's daughter. The Tribunal also received oral evidence from Ms Ai Lien Li who is the review applicant’s daughter and Mr Chiech Chuan Lim who is the review applicant’s son. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The Tribunal held a second hearing on 9 May 2019. The Tribunal at this hearing received oral evidence from the visa applicant Miss Ai Chuan Lin, the review applicant’s other…

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.

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Details

AGLC: Lin (Migration) [2019] AATA 1974
Case: [2019] AATA 1974
Decision Date: 24 May 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an appeal by a visa applicant concerning the refusal of an Other Family (Migrant) (Class BO) visa, specifically a Subclass 116 (Carer) visa. The review applicant, the mother of the visa applicant, suffered from severe dementia and had significant cognitive and medical conditions. The dispute centred on whether the sponsorship requirements for the visa were met and, more broadly, whether the circumstances warranted ministerial intervention.

The Tribunal was required to determine if the sponsorship requirements for the Subclass 116 visa were satisfied at the time of application and at the time of the decision. A key issue was the capacity of the review applicant to understand the proceedings and provide evidence, given her diagnosed dementia. The Tribunal also had to consider whether the case presented unique or exceptional circumstances that would justify referring the matter to the Minister for discretionary intervention under section 351 of the Migration Act 1958 (Cth).

The Tribunal noted that the review applicant struggled to understand basic procedural matters, such as taking an oath or affirmation, and did not comprehend the review process itself, as confirmed by her representative. Medical evidence from her geriatrician indicated severe dementia and other disabling conditions. While acknowledging the significant and long-standing care provided by the visa applicant and her sister, and expressing sympathy for their situation, the Tribunal found that the sponsorship requirements were not met. However, recognising the deteriorating health of the review applicant and the potential for unique or exceptional circumstances, the Tribunal decided to refer the case to the Minister for consideration under section 351.

Despite the referral for ministerial consideration, the Tribunal affirmed the decision not to grant the visa applicant the Subclass 116 visa. The referral was made to bring the case to the Minister's attention for his discretionary power to substitute a more favourable decision if he considered it to be in the public interest.

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 EVIDENCEAre 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). Clause 116.222 requires that at the time of decision the sponsorship referred to in clause 116.212 that was approved by the Minister be still in force. At the opening of the 26 March 2019 hearing, the Tribunal invited the review applicant to take either the Oath or an affirmation before she provided oral testimony to the Tribunal. The review applicant replied that she did not understand. The Tribunal then explained the differences between an Oath and an affirmation and the choice the applicant could make in selecting an Oath or an affirmation before giving oral evidence. The review applicant repeated that she did not understand. Eventually an affirmation was taken by the review applicant. The Tribunal outlined the review process at the hearing and asked the review applicant if the process was clear. The review applicant responded that she did not understand anything. The review applicant’s representative addressed the Tribunal and stated that the review applicant did not understand anything. She urged the Tribunal to refer to the correspondence of Dr Ernest Tam, the review applicant’s geriatrician that had been submitted to the Tribunal just prior to the hearing (T1, Folio.177-181). The representative said that the review applicant was suffering severe dementia and she was unable to understand. She said that the review applicant was confused and was just nodding her head, knowing that today was an important day. The Tribunal asked if any Power of Attorney had been granted by the review applicant. The visa applicant and the review applicant’s other daughter each confirmed to the Tribunal that no Power of Attorney had been granted. The review applicant’s representative said she explained to the visa applicant and her sister that there was an enduring Power of Attorney that may be available to them, but confirmed that it had not been put in place. The Tribunal has noted the report of Dr Ernest Tam dated 23 March 2019. The Tribunal notes that Dr Tam in his report wrote that the review applicant continues to suffer from multiple and complex permanent and disabling cognitive and medical conditions which included mixed-type dementia.

Decision

Reasons for decision

The Tribunal has considered whether to refer this case to the Department for consideration by the Minister pursuant to s.351. This legislation gives the Minister discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal has carefully considered the review applicant’s circumstances and the claims made by the visa applicant. The Tribunal has great sympathy for both parties given their circumstances. On the evidence, the visa applicant – and especially her sister Ms Ai Lien Li - has played an indefatigable role over some years in providing care to the review applicant. The Tribunal accepts that the review applicant’s dementia will continue to deteriorate and she is in need of assistance that will increase in the years forward. The Tribunal considers the circumstances of the parties and considers they may be unique or exceptional. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and has decided to refer the matter to the Minister for his consideration. DECISION The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa. Having regard to the review applicant’s circumstances and having considered the Ministerial guidelines relating to the Minister’s discretionary power under s.351, set out in the Department’s Procedures Advice Manual (PAM3), the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention. Justin OwenSenior Member

Ratio Decidendi

Legal Principle Established

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