Ma (Migration) - [2021] AATA 2352

Ma (Migration) [2021] AATA 2352 (11 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Yun Ma
CASE NUMBER:  1819770
HOME AFFAIRS REFERENCE(S):          CLF2016/98251
MEMBER:Deputy President J.L Redfern PSM
DATE:11 June 2021
PLACE OF DECISION:  Sydney
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:
·cls. 836.212 and 836.213 of Schedule 2 to the Regulations and;

·cl.836.221 of Schedule 2 to the Regulations.

Statement made on 11 June 2021 at 2:10 PM
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – sponsor’s need for assistance in daily life – consideration of sponsor’s capacity to understand sponsorship obligations – circumstances where the carer visa assessment certificate is two or more years old and an updated medical report has been provided by the general practitioner who is treating the sponsor – whether sponsor’s needs cannot reasonably be provided by another Australian relative – whether the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services – whether the applicant is willing and able to provide the sponsor substantial and continuing care of the kind needed – applicant found to be the carer of the Australian relative sponsor – decision under review remitted with direction.
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr. 1.15AA, 1.20, Sch 2 cl.836.2
CASES
Biyiksizv Minister for Immigration and Multicultural Indigenous Affairs [2004] FCA 814
Lin v Minister for Immigration and Cultural and Indigenous Affairs [2004] FCA 606
SECONDARY MATERIALS
Department of Home Affairs, Procedures Advice Manual 3, Div1.2/reg 1.15AA – Carer.
IMMI14/085
IMMI17/126
STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 July 2018 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, Ms Yun Ma, applied for the visa on 16 December 2016. 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, Ms Ma claims that she satisfies the criteria for the grant of a Subclass 836 visa as carer for her mother, Ms Yiqian Gao. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. The central criterion for the visa is that the applicant must be a ‘carer’ within the meaning set out in r. 1.15AA(1) of the Regulations.
On 3 July 2018, the delegate refused to grant the visa on the basis that the delegate was not satisfied Ms Ma was a carer to Ms Gao within the meaning of the regulation. The delegate was not satisfied that assistance could not reasonably…

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 Ma (Migration)

Details

AGLC: Ma (Migration) [2021] AATA 2352
Case: [2021] AATA 2352
Decision Date: 11 June 2021

CaseChat Overview and Summary

This matter concerned an appeal by Ms Ma against a decision regarding her application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The central dispute revolved around whether the sponsor, Ms Gao (an Australian permanent resident and Ms Ma's mother), required assistance that could not reasonably be provided by other Australian relatives or obtained from Australian welfare, hospital, nursing, or community services, and whether Ms Ma was willing and able to provide the necessary substantial and continuing care. The case was heard by Deputy J.L Redfern PSM P.

The primary legal issue before the court was to determine if the assistance Ms Gao required due to her medical conditions could not reasonably be provided by another Australian relative or obtained from Australian community services. This assessment was critical for satisfying the requirements of regulation 1.15AA(1) of the Migration Regulations. The court also considered, for completeness, all other relevant criteria under regulation 1.15AA(1).

The court found that Ms Ma met the requirements of sub-regulations 1.15AA(1)(a) and (ba) as she is the daughter of Ms Gao. The court examined a Carer Visa Assessment Certificate and a medical adviser's report dated 20 September 2016, which indicated Ms Gao had significant impairments requiring direct assistance for at least two years due to conditions including dementia, depression, and various physical ailments. However, the report identified individuals as Ms Gao's niece and nephew who occasionally assisted her, but Ms Ma and Ms Gao provided evidence that these individuals were not related to Ms Gao. Given the discrepancies and the critical nature of the assessment regarding the availability of alternative care, the court determined that the application should be remitted for reconsideration.

The Tribunal remitted the application for the Subclass 836 (Carer) visa to the Minister for reconsideration, with a direction that the criteria under clauses 836.212, 836.213, and 836.221 of Schedule 2 to the Regulations were met.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In this case, and based on the decision of the delegate, it appears the critical issue that requires determination is whether I am satisfied that the assistance Ms Gao needs cannot reasonably be provided by another relative of Ms Gao (who is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen) or that this assistance cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia. Notwithstanding this, and for completeness, my findings in relation to all of the relevant requirements in reg 1.15AA(1) of the Regulations are set out below.CONSIDERATION OF CLAIMS AND EVIDENCE I am satisfied that Ms Ma meets the requirements of sub-regs 1.15AA(1)(a) and (ba) because she is the daughter of Ms Gao who is an Australian permanent resident. 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. Ms Ma provided a Carer Visa Assessment Certificate (the Certificate) and medical adviser’s report from BUPA Medical Visa Services dated 20 September 2016. According to the assessment by the examining doctor, Ms Gao had an impairment rating of 30 or more points, with a total rating of 45 impairment points, she had a medical condition that was causing physical, intellectual or sensory impairment of her ability to attend to the practical aspects of daily life and she had a need for direct assistance in attending to those practical aspects because of that medical condition. It was also reported that because of the medical condition, she had a need for direct assistance in attending to the practical aspects of daily life that would continue for at least two years. The medical conditions recorded were dementia – Alzheimer’s, depression, balance and gait disorders, right shoulder impingement, cervical spondylosis, vertebral body fracture, right wrist break causing deformity and weakness, double incontinence, and bilateral knee osteoarthritis. It was noted that Ms Gao lived alone but that her niece and nephew, who were recorded as being “Peter Leung” and “Bao Zhu Shng”, would occasionally assist her with activities of daily living. The report noted that Ms Gao needed assistance with her mobility, bathing and showering, toileting, dressing, eating, supervision with her medication and supervision for transport. She was assessed as being fully dependent and it was noted that her “niece” provided her with assistance for daily living. Ms Ma and Ms Gao gave evidence that Mr Leung and Ms Song (incorrectly recorded as “Shng” on the Certificate) are not the nephew and niece of Ms Gao and their evidence in this regard is set out below. The Certificate was signed by Dr H Roslizar, who is also recorded as the examining doctor.

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:· cls.836.212 and 836.213 of Schedule 2 to the Regulations; and·cl.836.221 of Schedule 2 to the Regulations.J.L Redfern PSMDeputy President

Ratio Decidendi

Legal Principle Established

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