Lukic (Migration) - [2022] AATA 4487

Lukic (Migration) [2022] AATA 4487 (7 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Sanja Lukic
REPRESENTATIVE:  Mrs Danijela Jakovljevic (MARN: 9902396)
CASE NUMBER:  1919401
HOME AFFAIRS REFERENCE(S):          CLF2018/12655
MEMBER:Brendan Darcy
DATE:7 December 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:
·cl 836.221 of Schedule 2 to the Regulations;

Statement made on 07 December 2022 at 1:34pm.
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – sponsor’s multiple physical and mental health conditions – care cannot be provided by other family members or obtained from service providers – husband’s age and health and son’s family duties – inquiries to service providers – sponsor’s fear of strangers – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA(1)(e)((i), (ii), Schedule 2, cl 836.221
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 9 July 2019 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 12 February 2018. 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 (Cth) (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 at the time of decision.
The delegate refused to grant the visa on the basis that cl 836.221 was not met because the definition of Carer was not met as outlined under regulation 1.15AA.
The applicant appeared before the Tribunal on 1 December 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Serbian and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant was born on 27 May 1975 in the former Socialist Federal Republic of Yugoslavia and is a citizen of the Republic of Serbia (Serbia).
The applicant arrived in Australia on 12 March 2017 while holding a Class FA Subclass 600 visitor visa. She applied for a Class BU Subclass 836 (Other Family) Carer visa on 12 February 2018 on the basis of providing assistance to her parent…

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 Lukic (Migration)

Details

AGLC: Lukic (Migration) [2022] AATA 4487
Case: [2022] AATA 4487
Decision Date: 7 December 2022

CaseChat Overview and Summary

This matter concerned an application for a Class BU Subclass 836 (Other Family) Carer visa by a citizen of Serbia, who arrived in Australia in March 2017. The applicant sought to provide care for her Australian citizen mother, the sponsor, who was born in 1957. The sponsor had multiple physical and mental health conditions, including muscular dystrophy, severe back and hip pain, PTSD, major depressive disorder, and anxiety disorder, resulting in a 70% impairment rating. The applicant’s father, the sponsor’s husband, and her adult son, who were relatives in Australia, were considered unable to provide the necessary care due to the husband's age and health, and the son's full-time employment and family commitments. The applicant also submitted statutory declarations indicating her willingness and ability to provide care, and that her mother feared strangers and institutionalisation. The Tribunal was required to determine whether the criteria for the visa were met, particularly concerning the inability of other relatives or service providers to offer the required assistance.

The Tribunal considered the evidence regarding the sponsor's medical conditions and the assessment of her impairment rating. It also examined the reasons why the sponsor's husband and son were unable to provide the necessary care, noting the husband's own health issues and the son's work and family responsibilities. Furthermore, the Tribunal took into account the sponsor's stated fear of strangers and her family's desire to avoid institutionalisation, which contributed to the need for the applicant's direct care. The legal principles applied centred on the requirements of regulation 1.15AA of the Migration Regulations 1994, which outlines the criteria for a carer visa, including the need for a medical condition causing significant impairment, a continuing need for direct assistance, and that such assistance cannot reasonably be provided by other relatives or obtained from welfare services.

The Tribunal concluded that the matter should be remitted for reconsideration by the Minister. The direction was that the criteria for a Subclass 836 (Carer) visa, specifically clause 836.221 of Schedule 2 to the Regulations, were met. This indicates that while the applicant's eligibility as a carer was established, further assessment of other visa criteria was necessary.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.DECISION The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:·cl 836.221 of Schedule 2 to the Regulations.Brendan DarcyMemberATTACHMENTMigration 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

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The applicant was born on 27 May 1975 in the former Socialist Federal Republic of Yugoslavia and is a citizen of the Republic of Serbia (Serbia). The applicant arrived in Australia on 12 March 2017 while holding a Class FA Subclass 600 visitor visa. She applied for a Class BU Subclass 836 (Other Family) Carer visa on 12 February 2018 on the basis of providing assistance to her parent and Australian citizen, Svetlana Koljanin (née: Markovic). Ms Koljanin, born in Yugoslavia on 1 May 1957, is the sponsoring family member (or the sponsor) of this Carer visa. Australian citizenship was conferred on the sponsor on 29 August 2000. At the scheduled hearing, the applicant stated her husband was residing in Serbia and that she has two adult children and a number of grandchildren. Her husband was not attached to the visa at the time of application. On 21 July 2018, the Department received a Carer Visa Assessment Certificate (CVAC) indicating the sponsor had an impairment rating of 70. (The impairment rating is assessed against the Social Security Act’s Tables of the Assessment of Work-related Impairment for Disability Support Pension which rates permanent medical conditions.) Medical conditions included muscular dystrophy, osteoarthritis, severe back and hip pain, post-traumatic stress disorder (PTSD), major depressive disorder and anxiety disorder. The submitted forms for a Carer visa indicated that the sponsor’s relatives in Australia included Vlado Koljanin (DOB: 30 August 1952), the sponsor’s husband, and Velimir Koljanin (DOB: 24 December 1983), the sponsor’s only son, were relatives of the sponsor and that it was unreasonable for them to provide the assistance the sponsor requires. According to the Departmental notes, the applicant was travelled outside of Australia while holding a Subclass 020 bridging visa B (or BV-B) between 16 March 2018 and 15 April 2018 and between 4 December 2018 and 22 January 2019. On file are four (4) statutory declarations signed by the applicant. Each are dated 24 March 2019. One of the statutory declarations indicating the applicant has a registered business name for a cleaning business; that the applciant occasionally worked some hours for extra income; but otherwise, was a full-time carer for the sponsor. The other statutory declaration indicated that the sponsor is married and has two adult children; that the applicant is close to the sponsor; that she has many suitable skills for providing care to her mother and is willing and able to provide assistance to the sponsor. It further states her mother requires continuous assistance and this will the case as long as she lives; that her father does not have the necessary skills to assist her mother; and the family do not want her mother to be institutionalised as she is mentally fragile and fearful of strangers. A further statutory declaration indicating that when the applciant travelled in 2018 and 2019, and her father assisted her mother; while another statutory declaration states her brother is not willing or able to provide care to his mother, that he is working on a full-time basis, and he is in a de facto relationship.